Delhi District Court
Cbi vs Babita on 29 March, 2025
CBI vs. Babita
IN THE COURT OF SH. ANIL ANTIL, SPECIAL JUDGE,
PC ACT, CBI-15, ROUSE AVENUE DISTRICT COURT
NEW DELHI
Date of Judgment : 29.03.2025
CBI Case No.: 419/2019
CNR No : DLCT 11-001865-2019
RC No. : DAI/2019/A-0017/ACB/CBI/N.Delhi
U/Sec. : 7 of Prevention of Corruption Act, 1988.
COMPLAINANT Central Bureau Of Investigation
REPRESENTED BY Sh. Neetu Singh, Sr. PP
ACCUSED Smt Babita (ASI),
w/o Sh. Anand Pal Tomar,
R/o A-1 Block, Khasra No. 2/22,
Gali no. 4, Sant Nagar Extension,
Kamalpur Majara, Burari,
Delhi-110084.
&
Permanent Resident of Village &
Post Office Bawali, Barut, District
Baghpat, Uttar Pradesh.
REPRESENTED BY Sh. Sanjeev Bhardwaj, Advocate
Date of Offence 20.05.2019
Date of FIR 17.05.2019
Date of Charge-sheet 30.10.2019
Date of Framing of Charges 20.02.2019
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Date of Commencement of 28.02.2020
evidence
Date on which judgment is 12.03.2025
reserved
Date of Judgment 29.03.2025
Final Order Acquitted
Table of Contents
S. No. Contents Page Nos.
1. Facts of the case & prosecution 3-13
allegations
2. Charge of the offences 14
3. Prosecution Evidence 15-55
4. Statement of Accused 55-56
5. Defence Evidence on behalf of accused 56-57
6. Arguments of parties 57-62
7. Discussion / Analysis 62-105
8. Conclusion/Findings 106
9. Decision 106-107
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JUDGEMENT
1. The prosecuting agency (CBI), charge-sheeted accused
Ms.Babita (ASI) w/o Sh. Anand Pal Tomar to face trial for committing
offences punishable under Section 7 of Prevention of Corruption Act, 1988.
BRIEF FACTS ENUMERATED IN THE CHARGE-SHEET :-
2. In the present case, FIR was registered by the CBI on
17.05.2019 vide R.C no. DAI-2019-A-0017/CBI/ACB/New Delhi against
accused Ms Babita (ASI), on a complainant of Sh. Mohd. Fazil s/o Sh.
Jarinuddin r/o 8145/3, Gali no. 7, Pahar Ganj, New Delhi, while she was
posted at Police Station Nabi Karim, Central District, New Delhi.
3. In the complaint, it was alleged that Sh. Aftab, brother of
complainant Sh. Mohd. Fazil, had initially prepared a Video recording of
ASI Beant while he was receiving the bribe amount from him and he made a
complaint to this effect to the Police Control Room at 100 number ; the
matter was settled with the intervention of the Police Officials and the SHO
concerned at Police Station Nabi Karim and the bribe amount was returned
to Sh. Aftab by ASI Beant.
4. That after this incident the police of concerned Police Station
got annoyed with Sh. Aftab and his family, and on 09.11.2018, an FIR
bearing no. 386/2018 was registered against Sh. Aftab at P.S. Nabi Karim ;
he surrendered before the Police on 29.04.2019 and was sent to judicial
custody.
5. That on 24.11.2018 another case was registered vide FIR no.
396/2018 by the Police of Police Station Nabi Karim against Sh. Shadab,
another brother of complainant Sh. Fazil ; during investigation he was also
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apprehended and sent to the judicial custody thereafter.
6. That accused Babita was posted at Police Station Nabi Karim as
Assistant Sub-Inspector and the investigation of both the FIR’s bearing no.
386/2018 & 396/2018, lodged against the brothers of complainant herein,
was assigned to her by the concerned SHO.
7. It is alleged that on 15.05.2019 accused ASI Babita visited the
shop of complainant Mohd. Fazil and asked him to pay a sum of Rs.
2,00,000/- to Ms. Afsa, complainant of case FIR no. 396/2018 registered
against his brother Sh. Shadab at PS Nabi Karim and Rs. 50,000/- for herself
as a bribe amount for getting the matter settled.
8. That accused Babita also assured that she would arrange a
meeting with government advocate on 17.05.2019, and asked the
complainant to pay some bribe to the government counsel also, so that he
would remain silent before the court during proceedings to help his brother.
9. That pursuant to the said ‘demand’ by the accused Babita, the
complainant Sh. Mohd. Fazil filed a complaint against accused Babita
before the CBI on 16.05.2019 ; in order to verify the allegations levelled in
the said complaint, it was marked to Sh. Raj Saurabh, Inspector, CBI, ACB,
New Delhi for verification purpose.
10. Investigation revealed that accused Babita had arranged a
meeting between government Counsel and Complainant at Tis Hazari Courts
Delhi on 17.05.2019.
11. That the complainant informed about the said meeting to Sh.
Raj Saurabh, Verification officer, who then constituted a Verification team of
which independent witness Sh. Tejendra Sharma, Chief Telecom Supervisor,
MTNL Office of SDE/MDF Telephone Exchange, Sector-3, Rohini Delhi
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was also part ; the Verification Proceedings were conducted on 17.05.2019
first in the CBI Office through telephone by putting mobile phone on
speaker and then by physically visiting Tis Hazari Courts room no. 116, in
terms of the instructions given by accused Babita ASI on her telephonic
conversation.
12. That the recordings of the conversation between accused Babita
(ASI) and complainant Mohd. Fazil were recorded in a new and blank
memory card through DVR. The memory card was then taken out and
sealed with seal of CBI branch.
13. That the verification proceedings confirmed a demand of bribe
of Rs. 50,000/- on the part of the accused Babita(ASI) for helping the
complainant in the case of his brother Sh. Shadab, and on the basis of which,
present case was registered under Section 7 of the P.C. Act, 1988 by the CBI
against accused Babita, and investigation of the case was assigned to Ms.
Veer Jyoti Inspector, CBI for trap and further proceedings.
14. That the Inspector Veer Jyoti (TLO) thereafter constituted a
Trap Team consisting of Sh. Atul Hajela Dy. SP, Inspectors Sh. Shitanshu
Sharma, Sh. Raman Kumar Shukla, Sh. Harnam Singh, Sh. N.C. Nawal, Sh.
Raj Saurabh, Sh. Satish Kumar Bana, Sh. Anil Kumar Singh, Sh. Bhanwar
Lal, Sub-Inspector Sh. Nitin Choudhary, Constable Ms. Suman Manjoo and
Sh. Puran Singh, CBI ACB alongwith other subordinate staff and
independent witnesses Sh. Tejendra Sharma and Sh. Ram Prasad, both
officials of, telephone Exchange Sector-3, Rohini, Delhi.
15. That on 20.05.2019, at about 08:45 hours, they all assembled at
the office of Superintendent of Police CBI, ACB, New Delhi, and were
introduced to each other by TLO, the purpose of assembly and laying a trap
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on the accused Babita, ASI at Tis Hazari Courts, Delhi, was informed
accordingly.
16. That the complaint dated 16.05.2019 filed by Md. Fazil,
Verification memo dated 17.05.2019 and contents of the present case FIR
was read over and explained to all the members of the Trap Team at CBI
office before proceeding for Trap at Tis Hazari Courts.
17. That the complainant had produced a sum of Rs. 40,000/- i.e.
12 currency notes in the denomination of Rs. 2000/- each and 32 currency
notes in the denomination of Rs.500/- each to be used as bribe amount for
delivering it to accused Babita (ASI). The description of the said currency
notes including their distinctive numbers were noted in the handing over
memo dated 20.05.2019 marked as Annexure “A”.
18. That the demonstration proceedings regarding purpose and
significance of use of phenolphthalein powder and its chemical reaction
with solution of sodium carbonate and water was given by Inspector Anil
Kumar Singh ; the said powder was applied on the currency notes of Rs.
40,000/- produced by the complainant ; Sh. Ram Prasad was instructed to
touch the said tainted amount of Rs. 40,000/- ; he touched the tainted
amount with his right hand fingers and then washed his hand in the freshly
prepared colourless solution of sodium carbonate and water kept in a glass
tumbler, and the solution turned pink.
19. That the said pink colour solution was thrown and remaining
phenolphthalein powder was then returned to Malkhana, CBI.
20. That the Personal Search of the complainant was conducted by
the other independent witness Sh. Tejendra Sharma ; tainted amount of Rs.
40,000/- was put in the left side shirt pocket of the complainant by another
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independent witness Sh. Ram Prasad ; complainant was not allowed to keep
anything incriminating with him except his mobile phone ; complainant was
directed by the TLO to handover the tainted bribe money to accused on her
specific demand or to the person to whom she specifically directed to
deliver it.
21. That a new blank Micro SD Card make ‘Kingston’ was
produced and the introductory voice of independent witnesses Sh. Tejendra
Sharma and Sh. Ram Prasad were recorded through DVR ; Sh. Tejendra
Sharma was directed to act as a shadow witness and remain close to the
complainant to overhear the conversation and watch the transactions of
delivery of bribe amount ; TLO also directed the complainant and Sh.
Tejendra Sharma to give signal by rubbing the face by both hands and/or
through a missed call on her mobile phone as soon as the transaction of
bribe amount is completed, and Sh. Ram Prasad was directed to remain with
the trap party.
22. That a Handing Over Memo dated 20.05.2019 incorporating all
the steps of pre-trap proceedings was prepared and signed by all the trap
team members including independent witnesses and complainant.
23. That thereafter the Trap team including both independent
witnesses and complainant left the CBI office at about 09:50 hours and
reached vicinity of Tis Hazari Courts at about 10:30 hours.
24. That the DVR in Switched ON Mode with inserted Memory
Card, containing the introductory voices of both independent witnesses, was
handed over to the complainant by TLO ; Complainant kept it in his left
front pocket of the shirt ; the complainant entered the Tis Hazari Court
premises and reached in front of Court room no.116, Ist Floor ; independent
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witnesses and other trap team members followed him, and they all took their
positions nearby the Court room no.116.
25. That accused Babita came out from Court room no. 116 and
took the complainant Mohd. Fazil alongwith her to the ground floor through
staircase, and on reaching near the Lift accused Babita by way of gesture
through her fingers demanded the bribe amount and asked the complainant
to keep it in her file – “Nikal ke Eski Side mea Rakh de”.
26. That accordingly the complainant took out tainted money from
his left side shirt pocket and, as per her instructions, kept the same in the
pink colour file of accused Babita, which she was carrying at that time.
Accused Babita then left towards the corridor of the court room.
27. That after handing over the tainted amount to accused,
complainant gave a missed call signal to TLO, and she alerted the other
team members alongwith independent witnesses, and they all moved
towards accused Babita (ASI), and she was intercepted in front of Court
Room no. 8 in the Corridor of Tis Hazari Courts Complex.
28. That out of suspicion accused Babita threw the pink file on the
ground and the tainted money was also got scattered on the floor ; accused
Babita resisted her interception ; TLO introduced herself and challenged the
accused Babita, ASI for having accepted tainted bribe amount from the
complainant ; the place was cordoned by CBI ; the right hand of the
accused was caught by TLO and left hand by Smt. Suman Manjoo
Constable.
29. That Sh. Ram Prasad, independent witness upon the directions
of TLO recovered the tainted bribe amount alongwith file from the floor ;
tainted money was tallied with the serial numbers of GC notes already
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recorded in Annexure ‘A’ of Handing over memo by both the independent
witnesses, which was found matching, and they again signed on the said
Annexure ‘A’.
30. That the recovered currency notes were kept in a brown colour
envelope and marked as “Trap Money of Rs. 40,000/- in RC 17(A)/2019” ,
duly sealed with the brass Seal of CBI and signed by both the independent
witnesses. The Pink Colour file of Delhi Police bearing particular of case
FIR no. 519/2019 PS Nabi Karim, Delhi was also seized.
31. That the right hand wash marked as “RHW in RC-17(A)/2019”
and left hand wash marked as “LHW in RC-17(A)/2019” was separately
taken in the fresh solutions of Sodium Carbonate and water prepared
separately in clean glass tumbler, which had turned light pink ; it was
transferred in a separate clean glass bottles and the said bottles were seized
and sealed with the seal of CBI.
32. That a cloth was then taken from the Trap Kit bag and it was
rubbed on the pink file cover as well as on the papers available in the file ;
cloth was dipped in the fresh colour-less solution of Sodium carbonate and
water prepared in clean glass tumbler, which turned Pink ; it was transferred
in a clean glass bottle alongwith the cloth used for the rubbing with marking
as “File wash in RC17(A)/2019”.
33. That a Site Plan dated 20.05.2019 showing the position of
accused, complainant, independent witnesses and CBI Trap Team members
was prepared at the spot, which was signed by the TLO, independent
witnesses, Inspector Harnam Singh and the Complainant.
34. That the public had started gathering at the spot, therefore, the
team decided to leave the spot alongwith accused Babita (ASI) to carry out
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further proceedings at CBI office.
35. That after reaching CBI office, the recorded conversations were
played and it was revealed that the conversations between accused and the
complainant got recorded in the internal memory of the DVR, instead of
SD memory card, due to some technical issue.
36. That the audio recordings were heard in presence of
independent witnesses and complainant, which revealed that accused asked
the complainant “Nikal Ke Eski Side Mea Rakh De”, corroborating the
‘demand’ and ‘acceptance’ of bribe amount of Rs. 40,000/- by accused
Babita ; one copy of the recordings for the IO was prepared by using Write
Blocker device on the official laptop for the purpose of investigation.
37. That the memory card used for recording the conversation
during the trap proceedings was taken out from the DVR and marked as
“Empty Memory Card” used in RC 17(A)/2019 ; kept in a brown colour
envelop and sealed with the brass seal of CBI, after mentioning the RC
number on it.
38. That accused voluntarily gave her specimen voice in presence
of both the independent witnesses which was recorded in a new and blank
memory card marked as “S-1 in RC-17(A)/2019”, and the same was sealed
with the brass seal of CBI.
39. That the DVR make Sony used for recording conversations
between accused and the complainant was marked as “Q-2 in
RC-17(A)/2019(DVR)” and sealed with the brass seal of CBI.
40. That the Recovery memo dated 20.05.2019 incorporating all
the post trap proceedings was prepared by TLO and signed by all the trap
team members including witnesses and complainant.
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41. That the brass seal was thereafter handed over to Sh. Tejendra
Sharma (independent witness) by the TLO to keep it in safe custody with the
directions to produce the same as and when required.
42. That the attested photocopies of case FIR no. 386/18 & 396/18
from ASI Satish Kumar P.S. Nabi Karim were seized by TLO vide
Production cum Seizure memo dt. 20.05.2019.
43. That complainant Mohd. Fazil identified his voice and the voice
of accused Babita, ASI in presence of independent witnesses and the
proceedings regarding voice identification was incorporated by TLO in
Transcription-cum-Voice Identification memo dt 07.06.2019.
44. That Sh. Ram Niwas Inspector /SHO PS Nabi Karim also
identified the voice of accused Babita ASI in presence of independent
witnesses and the proceedings to this effect was incorporated in
Transcription-cum-Voice Identification Memo dated 18.07.2019.
45. That CFSL expert vide report no. CFSL-2019/C-504 dated
14.06.2019 has opined presence of phenolphthalein in all three exhibits i.e.
both the hand-washes and file wash.
46. That the exhibits marked as ‘Q-1’ and ‘Q-2’ containing
conversations between the accused and the complainant and specimen Voice
of accused Babita ‘S-1’, and two DVD-R’s containing the CCTV footages
of relevant Cameras installed at Tis Hazari Courts i.e. spot were sent for
obtaining the report of CFSL expert.
47. That the copy of CCTV footages retrieved from Tis Hazari
Courts Complex i.e. spot, were thereafter played before Sh. Ram Niwas
Inspector/SHO, Police Station Nabi Karim Delhi, wherein he identified
accused Babita and complainant Md Fazil in the presence of independent
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witnesses. These proceedings are incorporated in Identification Memo dated
18.07.2019.
48. That the certified copies of original judicial files of case FIR
no.396/18 dated 24.11.2018 under Section 376/328/506 IPC and u/s 6 of
POCSO Act against accused Shadab and case FIR no. 386/18 u/s 376/506
IPC against accused Aftab, both brothers of complainant Mohd. Fazil, being
investigated by accused Babita ASI were taken from Tis Hazari Courts.
49. That the appearance and presence of accused Babita ASI at Tis
Hazari Courts Complex in Room No. 116 on 20.05.2019, pursuant to
summons issued by the court, was confirmed by Ct. Chotey Lal, Prosecution
Branch, posted in the court concerned. The photocopy of Peshi Register
dated 20.05.2019 & 21.05.2019 were collected from the Directorate of
Prosecution, Govt of NCT of Delhi, Tis Hazari Courts, Delhi.
50. That the SHO Ram Niwas, PS Nabi Karim provided attested
copies of Duty Roaster from 15.05.2019 to 20.05.2019 to show that accused
Babita ASI was in the strength of said Police Station, and the Dak register
attested copies to show that accused Babita was required to appear before
the Court on 20.05.2019.
51. Investigation revealed that being the IO of the case bearing FIR
No. 396/18, accused Babita (ASI) had demanded a bribe from the
complainant Sh. Mohd. Fazil to help his accused brother in the said case ;
that the statement of victim/prosecutrix of the said case was recorded before
Ms. Snigdha Sarvaria, the then learned M.M. Central District, Delhi on
26.11.2018, and charge-sheet was filed by accused Babita accordingly
before the competent Court.
52. Investigation revealed that CAF of Mobile No. 9278137837,
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CDRs for the period 15.05.2019 to 20.05.2019, Cell ID location was
collected from Sh. Pawan Singh Nodal Officer, Vodafone Idea Limited and
the Cell ID location corroborated the facts mentioned in verification as well
as Recovery Memo dated 20.05.2019.
53. That the E-KYC of mobile number 9650821534 in the name of
complainant Mohd. Fazil alongwith CDR for the period 15.05.2019 to
20.05.2019, Cell ID location was collected from Sh. Surender Kumar, Nodal
Officer Bharti Airtel Ltd and the Cell ID location corroborated the facts
mentioned in verification as well as Recovery Memo.
54. Investigation revealed that regular Public Prosecutor Sh. Mohd.
Zafar Khan was on Casual leave on 20.05.2019 and Ms. Shubhra Goel,
Addl. PP (Substitute Prosecutor) attended the proceedings on behalf of the
prosecution in place of Sh.Mohd. Zafar Khan before the court of Learned
ASJ-01 (Room No. 116), which was the first date for recording the
evidence of prosecutrix, after framing of the charges in the case on
02.04.2019.
55. Investigation revealed that ‘demand’ of bribe amount,
acceptance, recovery and motive of accused Babita, ASI was established and
she has committed the offences punishable under Section 7 of the P.C. Act,
1988.
56. That the Sanction for prosecution of accused under Section 19
of the Prevention of Corruption Act, 1988 was obtained from the Competent
Authority of the department of accused.
57. After completion of the investigation, the charge sheet was filed
on 30.10.2019. Cognizance of the offences was taken. Accused Babita
(ASI) was summoned and compliance of Section 207 Cr.P.C was made
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accordingly.
CHARGE :-
58. Vide order dated 19.02.2020, on the point of charge, the learned
predecessor of this court opined that prima-facie there are sufficient material
to frame charge against the accused for the offence punishable u/s 7 of the
P.C. Act. Accordingly, charge for the said offence was framed on 20.02.2020
to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE : –
59. In support of its case prosecution has examined total 23
witnesses.
60. PW-1 Sh. Mohd. Fazil, Complainant deposed that he is in the
business of manufacturing biscuits ; has five brothers namely Shahzad,
Mehtab, Aftab, Afaq and Shadab ; that in the month of October, 2018, his
brother Aftab, who was running a Scrap shop, had recorded an incident of
demand and acceptance of bribe money of Rs. 10,000/- by one ASI Beant of
PS Nabi Karim, and a call on 100 number was made accordingly ; the said
incident was got resolved with the intervention of SHO and family members
of Aftab, and the amount of Rs. 10,000/- was returned to his brother Aftab
by ASI Beant Singh.
60.1 PW-1 deposed that after about one or two months of the
aforesaid incident, two FIRs were registered against his brothers namely
Aftab and Shadab under Section 376 IPC/POCSO at P.S. Nabi Karim within
the gap of 10-15 days, and during investigation of the said cases, which was
assigned to ASI Babita, his brothers were taken into Custody.
60.2 PW-1 deposed that on 15.05.2019, accused ASI Babita
alongwith another police official, who was in civil dress, visited his shop
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(PW-1), wherein he had requested them for help as his two brothers had
surrendered ; that accused ASI Babita told him to withdraw the complaint(s)
filed by him and Aftab’s sister-in-law against the police officials ; that PW-1
told them that he will discuss the issue with his two brothers, who were in
jail ; that thereafter accused ASI Babita left his shop asking him to revert
back on it, whereas the other person in civil dress stayed back there.
60.3 PW-1 Sh. Mohd Fazil deposed further that he persisted for help
with the said Police Official in civil dress, who then suggested him to enter
into a settlement with the Complainants/Prosecutrix of the said FIRs lodged
against his brothers ; that upon further queries of PW-1, said Police official
told him that the complainant Ms. Afsa Baby, Prosecutrix of FIR u/s 376
IPC lodged against his brother Shadab, would take Rs. 2 lacs and
Rs.50,000/- would be required to be given to accused ASI Babita for any
favourable outcome.
60.4 PW-1 deposed that he showed his financial incapacity to pay
such a huge amount but the said police official specifically told him that the
aforesaid amount shall be required to be paid to the Prosecutrix and the IO
of the case if he intends to settle the matter and seek relief for his brother.
60.5 That he also told the complainant to reach Tis Hazari Courts,
Delhi after two days where a meeting would be arranged with Ms Afsa
Baby, and accused ASI Babita would also be present, and thereafter the said
Police Official left his shop.
60.6 PW-1 further deposed that he had seen a video from UP on his
mobile, in which a rape case complainant was caught red handed receiving
money from the accused of that case, and he accordingly visited the CBI
office to file a complaint against accused police official, where he met CBI
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official in plain clothes and narrated the entire story to him.
60.7 Witness further deposed that on the asking of CBI officials, he
wrote the entire episode on two or three pages, and thereafter, he wrote a
fresh complaint dt 16.05.2019 on the dictation of CBI official in his own
handwriting on one paper under his signatures at point A, which was
exhibited as Ex. PW-1/1.
60.8 PW-1 Sh. Mohd Fazil deposed that he left the CBI Office
informing them that he has to visit Tis Hazari Courts Delhi on the next day
for a meeting, however, CBI Official asked him to first come to CBI office.
That in the evening of 16.05.2019 one person in civil clothes came to his
shop and asked him to call accused ASI Babita, and when he called her from
his mobile phone No.9650821534, she informed him that she was in the
police station Nabi Karim.
60.9 That he reached Police Station and met accused ASI Babita, and
PW-1 showed the CD and the affidavit executed in favour of his brother
Shadab ; ASI Babita told him that these documents needs to be shown to the
Government Counsel first before submitting the same in the court ; and in
case government counsel agrees, then only it would be placed on record, and
he was directed to reach Tis Hazari Court next day.
60.10 PW-1 further stated that he reached CBI Office on 17.05.2019
at about 9:30 am or 10:00 am ; that three or four CBI officials met him and
showed a DVR and a memory card ; and after inserting the said memory
card in the DVR it was played before him and was found to be blank.
60.11 That he was asked to make a call to accused ASI Babita from
his mobile phone by keeping it on Speaker Mode, during which she told the
complainant to reach near Room No.116 at Tis Hazari Court Delhi ; that
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thereafter, he alongwith three or four CBI officials left CBI Office in a
vehicle and reached Tis Hazari Court ; that the DVR was put on switched
ON mode and kept in his shirt pocket.
60.12 PW-1 stated that he alongwith another person reached near
Room No. 116, first floor Tis Hazari Courts, and when accused Babita was
not found there, he made a call to her, and she reached there after some time.
60.13. PW-1 Complainant further deposed that accused told him that
the public prosecutor was not available on that day, and thereafter, he came
back to the vehicle where other officials of CBI team were present.
60.14 That the CBI official took the DVR and switched it OFF ; that
after some time, he was again asked to call accused ASI Babita ; and on his
call, he was informed by accused that the public prosecutor has gone to offer
‘Namaj’ as it was Friday and asked him to come again for meeting on
Monday. The Verification Report dated 17.05.2019 (D-2) Ex. PW-1/2
bearing his signatures at point A, was prepared in the CBI office.
(Statement Regarding Trap Proceedings)
60.15 PW-1 Sh. Mohd Fazil deposed that on 20.05.2019, he reached
CBI office at about 9:00-9:30 am and produced a sum of Rs. 40,000/-
comprising of 12 currency notes in the denomination of Rs. 2000/- each and
32 currency notes in the denomination of Rs. 500/- each to the CBI official.
60.16 That demonstration proceedings regarding the reaction of
Phenolphthalein powder, which was applied to the said G.C. notes, with
Sodium Carbonate Solution was given by one CBI official by touching the
said currency notes and putting his hand in a glass of water solution, which
had turned pink.
60.17 He deposed that the said GC notes were put in his shirt pocket
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by one CBI official with the directions to hand over the tainted money to the
person who had visited his shop in a civil dress alongwith accused ASI
Babita, and if he was not found, then to hand over the same to accused ASI
Babita.
60.18 PW-1 further deposed that one DVR and memory card was
produced, which was kept by one CBI Official with him, and they left the
CBI office thereafter in three vehicles for Tis Hazari Court, Delhi.
60.19 He deposed that on reaching Tis Hazari Courts, the DVR was
put in his shirt pocket by the CBI officials, the shirt pocket got swollen up as
the currency notes were already kept in it, therefore, the said GC notes were
then taken out from his shirt pocket by one CBI official and kept with
himself.
60.20 That thereafter they all reached near Room No.116 inside the
court building, and upon reaching there, PW-1 made a call to accused ASI
Babita ; on her reaching, PW-1 requested her to take the CD and the
documents, but she did not take the same stating that the public prosecutor
was on leave.
60.21 PW-1 Sh. Mohd Fazil further stated that thereafter, as per
instructions of accused Babita, he followed her in the corridor and reached
on ground floor, through the stairs, in front of the lift.
60.22 He stated that he again asked her to take the documents & the
CD and requested her to get the statement of Afsa Baby recorded, but again
the accused did not take the document, and asked him to keep the
documents ready, and left the place.
60.23 PW-1 stated that subsequent thereto, when he was coming
down the stairs, he heard some commotion and found that accused ASI
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Babita had been arrested ; and saw a file and currency notes lying scattered
on the floor ; thereafter one of the CBI officials picked the file and currency
notes and gave those to another CBI official.
60.24 He stated that these were the same GC notes which were
brought by him to CBI office, and had been taken by one of the CBI Official
from his pocket when he was coming down the stairs at Tis Hazari Courts.
Then they all came back to CBI Office.
60.25 PW-1 Sh. Mohd Fazil identified his signatures at point ‘A’ on
the brown colour envelope, cardboard cover and on the plastic cover of
memory card mark as Q-1 exhibited as Ex PW1/3 ; witness also identified
his signatures at Point A on the Handing Over Memo Ex. PW-1/4 (D-4),
Recovery Memorandum Ex. PW-1/5 (D-5) on each page and on the Site
Plan Ex. PW-1/6 (D-6).
60.26 PW-1 Sh. Mohd Fazil deposed that on 17.05.2019, he signed
the transcript of the conversations recorded between him and accused ASI
Babita ; he also identified his signatures at Point A on the Rough
Transcription Ex. PW-1/7 (D-2A) and on a Black Colour Sony Make DVR
bearing particulars of this case.
60.27 Complainant also identified the voice of Sh. Tejinder Sharma
and Sh. Ram Prasad recorded in the DVR and the DVR itself make Sony
Ex. PW-1/8.
60.28 With the permission of the court complainant was cross-
examined by Learned Sr. PP , but despite that, he failed to disclose anything
incriminating against accused.
60.29 Complainant was also cross-examined on behalf of the accused
and he specifically answered to a suggestion put to him that accused had not
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demanded any money from him nor had he given any money to her at any
point of time. That the contents of the exhibited documents were not read
over to him before obtaining his signatures on the same, and he also failed to
answer as to how many times he visited CBI office during the proceedings/
investigation of the case
61. PW-2 Sh. Pawan Singh, Nodal Officer M/s Vodafone Idea Ltd
handed over the records of CAF of Mobile No. 9278137837, Cell ID
location and CDRs for the period 15.05.2019 to 20.05.2019 vide his letter
dated 21.06.2019 Ex PW2/1 (D-16) to CBI, and stated that as per their
records, mobile number was issued in the name of Ms. Babita w/o Sh. A.P.
Singh.
61.1 Witness identified the Customer Application Form Ex PW2/2,
Call details records as Ex PW2/3, Location ID Chart as Ex PW2/4 alongwith
Certificate under Section 65-B of Evidence Act Ex PW2/5, and his Seal and
Signatures appearing on the same at point A.
61.2 The witness was cross-examined by the learned defence
counsel. Witness stated that he was authorized by the department to produce
the relevant records and also produced the Original Power of Attorney
issued in his favour, copy of which was taken on record and exhibited as Ex
PW2/6. He admitted that it was not signed in his presence.
61.3 He stated that Idea Cellular limited was merged with the
Vodafone limited in September, 2018 and that is why the office address of
Idea Cellular is not reflected on the printouts of the CDRs handed over to
the IO during investigation of the present case.
61.4 Leaned counsel had also put some suggestions to the witness,
which he denied, and stated that he was deposing on the basis of record
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available at his office.
62. PW-3 Sh Mandeep S. Randhwa, Director MOPSW, Transport
Bhawan, New Delhi, was the then DCP, Central District Delhi, who had
accorded the Sanction for prosecution of accused Babita in the present case
vide order passed by him Ex PW3/1, bearing his signatures at point A,
which was sent to the SP CBI vide his letter dated 12.09.2019 Ex PW3/2
under his signatures at point A.
62.1 Witness also testified that at the relevant point of time accused
Babita was posted as ASI at P. S. Nabi Karim and he was competent to
remove her from the services.
62.2 In his cross-examination, witness denied the suggestions that
the Sanction was accorded in a mechanical manner and without application
of mind, or without going through the documents, or that the DCP
Headquarter was the competent person to accord Sanction for prosecution of
accused, or that he was not competent to accord sanction for prosecution of
accused.
62.3 PW-3 was not sure whether the draft of the Sanction order was
sent to him at that time by the CBI for taking his Sanction, and admitted
that it was not available in the file brought by him.
63. PW-4 Sh. Gurjan Singh (now Retired) was Incharge of CCTV
Room at Tis Hazari Courts, Delhi at the relevant time i.e. in the year 2019,
and as per the request of the IO, he had provided the CCTV footages dated
20.05.2019 of first floor lift no. 2 installed in front of Court rooms no.
104,105 & 115 and ground floor rooms no. 1 & 3 alongwith Certificate u/s
65B of Evidence Act, which were seized by the IO vide Seizure Memo Ex
PW4/1.
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63.1 He stated that IO again sought a fresh copy of CCTV footages
of the first floor lift area of the concerned court room, which were provided
vide Seizure memo Ex PW4/3 under his Certificate u/s 65-B of Evidence
Act Ex PW4/4 bearing his signatures at point A.
63.2 Witness identified the envelope containing the Parcel 1-DVD
Ex PW4/5 ; envelope marked as DVD-R Writex of footages dated
20.05.2019 of lift 2 area Ex PW4/6 ; three unsealed envelopes of yellow
colour Ex PW4/7, Ex PW4/8 & Ex PW4/9, and DVD taken out from Ex
PW4/9 bearing his signatures at point A, exhibited as Ex PW4/10.
63.3 He also identified another yellow colour envelope sealed with
the seal of CFSL i.e. Parcel 2 Ex PW4/11 ; unsealed envelope marked as
One DVD-R make Writex of footages dated 20.05.2019 Ex PW4/12, and
two other unsealed envelopes of Brown colour and plastic cover of DVD
taken out from Ex PW4/12 now Ex PW4/13 & Ex PW4/14 with DVD Ex
PW4/15 respectively.
63.4 Witness was cross-examined by the learned defence counsel
wherein he stated that the storage of the CCTV footage remained available
in the system for about 30 days, and it was provided to the IO after seeking
approval of the Incharge Computer, Tis Hazari courts Delhi ; the CCTV
footages were sealed by the IO at that time in his presence and he had signed
the same ; and had also issued a Certificate u/s 65-B of Evidence Act, but
admitted that the Certificate was already typed and available with the IO.
64. PW-5 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd
provided the CAF, Tower location Chart & CDR’s for the period 15.05.2019
to 20.05.2019 in respect of Mobile No. 9650821534 Ex PW5/2 under
Certificate u/s 65-B of Indian Evidence Act Ex PW5/3 bearing his
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signatures at point A to the IO via his letter dated 12.06.2019 Ex PW5/1
bearing his signatures at point A, which were taken into possession by the
IO vide seizure memo Ex PW5/4 (D-17A) bearing his signatures at point A.
64.1 Witness was cross-examined by the learned defence counsel
wherein he stated that at the relevant time he was alternate Nodal Officer
and promoted as Nodal Officer in the year 2020, and had no knowledge
whether the Alternate Nodal Officer is competent to provide the
details/information or data, alongwith Certificate u/s 65-B Evidence Act, to
the IO.
64.2 He admitted that there is only one printer available in the office
for use of all the 12 Nodal Officer and Alternate Nodal Officers.
65. PW-6 Sh. Shubham Bhardwaj, Assistant Director, DDA was a
witness to the Video/Audio identification proceedings so undertaken by the
IO in the CBI office, wherein he had also met the then SHO P.S. Nabi
Karim. But he deposed that he was not aware about the persons having
conversations in the said Audio recordings or seen in the Vide recordings.
65.1. He stated that some queries were made from the SHO P.S Nabi
Karim in his presence but was not able to recall what was asked or stated by
the SHO in that inquiries.
65.2 Witness identified his signatures at point A on the Video &
Audio Identification Memo’s Ex PW6/1 (D-9) and Ex PW6/2 ( D-13)
respectively.
65.3 Witness was cross-examined by the learned Sr. PP after seeking
permission of the court stating that witness was resiling from his earlier
statement.
65.4 During his cross-examination by learned Sr. PP, he admitted
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that he had appended his signatures on the aforesaid documents after
reading the contents of the same. He admitted that at that time the concerned
SHO, whose name he was not able to recall, had identified the lady in the
CCTV footages as Babita.
66. PW-7 Inspector Ram Niwas, was posted as SHO PS Nabi
Karim from 31.12.2017 to 20.07.2020, and on 20.06.2019, he joined the
investigation of the present case and handed over certain documents to the
IO CBI i.e. FIR nos. 386/2018 & 396/2018 P.S. Nabi Karim alongwith the
Certified copy of the Charge sheet through Sh. Satish Kumar SI, which were
assigned and being investigated by accused W/ASI Babita as the cases
pertained to sexual assault under Section 376 IPC & POCSO Act.
66.1 PW-7 also handed over copy of the Duty Roaster of PS Nabi
Karim for the period 15.05.2019 to 20.05.2019, with copy of Register vide
which the bail application of case FIR no. 143/2019 PS Nabi Karim
assigned to accused W/ASI Babita for attending the court proceedings, vide
his letter dated 14.06.2019 (D-18) Ex A-1.
66.2 Relevant to the facts of the case, he deposed that FIR no.
396/2018 was got registered by Ms. Afsa Baby, a minor girl, against one
Shadab (brother of complainant) on 24.11.2018, and the investigation of the
said case was assigned to accused Babita ASI ;
CCTV footages and the audio recordings were played before him in the CBI
office, thereafter, IO prepared the transcript of the conversations and memo
to this effect, which was signed by him.
66.3 He also identified the accused ASI Babita, her voice, transcript
cum voice identification memo (D-13 & D-13A) Ex PW6/2 with transcript
Ex PW7/1, Memory card (marked Q-1) with adapter in a plastic cover inside
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the company package kept in envelope Ex PW1/3, when it was played.
66.4 He also identified the DVR (marked Q-2) Ex PW1/8, kept in
an envelope, and when it was played, he identified the voice of accused
Babita at some instances stating that audio recordings were not audible
clearly as there was lot of noise in the background.
66.5 He also identified the DVD Ex PW4/10, kept in the envelopes
and plastic covers Ex PW4/5 to Ex PW4/9 ; when it were played, he
identified accused Babita only, and no other person in the said CCTV
footages of ground floor, as no other persons were clearly visible.
66.6 He also identified the another DVD Ex PW4/14, kept in the
envelopes Ex PW4/12 & Ex PW4/13, and when it was played, he also
identified the complainant Mohd. Fazil thereto :
i.e. CCTV Footages dated 20.05.2019.
(i) Ground floor lift no. 1 ( 11:00 to 11:10a.m.) – identified only
Babita and was not able to identify the person accompanying her as
their faces were not clearly visible, and other several persons are
also coming downstairs at that time.
(ii) Near Room no. 1 ( 11:00 to 11:10a.m.) – identified only
Babita and was not able to identify the person standing with her or
any other persons standing there.
(iii) Room no. 3 (11:00a.m. to 12:10pm) – identified only Babita in
the Corridor.
(iv) Room no. 104 (11:00 to 11:10a.m.) – identified only Babita and
was not able to identify the other persons standing with her as his face
was not visible, and again at around 11:04:05 – 13a.m.
(v) Room no. 105 (11:00 to 11:10a.m.) - identified accused Babita
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and followed by complainant Mohd. Fazil who is seen carrying some
documents at around 11:03:40 – 48 a.m while she is going down
stairs.
(vi) Room no. 115 (10:00 to 11:10a.m.) – video was blurred and
witness was not able to identify any person.
66.7 Witness PW7 was cross-examined by the learned defence
counsel on behalf of the accused, wherein he admitted that a GD Entry no.
82A dated 28.01.2019 Ex PW7/DX-1 was lodged by accused Babita against
the accused party(complainant herein), as she was not coming forward for
recording her statement under Section 164 Cr.P.C in FIR no. 34/2019 PS
Nabi Karim despite repeated reminders/notices in that regard.
66.8 PW-7 was not able to recall whether the proceedings w.r.t.
audio/video clip so played were recorded in his statement u/s 161 Cr.P.C or
not ; and on confronted with his statement dated 20.06.2019, he clarified
that proceedings of identification of accused and complainant in the audio
/video recordings had taken place subsequently on 18.07.2019, and therefore
these were not part of his earlier statement.
66.9 He admitted that there are several persons seen standing in the
video clip bearing file no. – Near Room no. 1 (11:00 to 11:10a.m.) dated
20.05.2019, and that accused Babita is thereafter leaving the said spot alone
and seen going in the corridor.
66.10 Witness admitted that the transcript of the audio recordings
were already prepared by the CBI officials before he reached there ; and on
specific question put to him, he stated that he can not say whether the audio
file bearing no. 190520_1040 mp3 contains voices of 3-4 female persons.
66.11 He denied the suggestion that he had not participated in any
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proceedings in respect of Audio/video and signed the said documents only at
the instance of the IO.
67. PW-8 Sh. Tejendra Sharma was posted as Senior Section
Supervisor in MTNL department at the relevant time and was one of the
independent witness of the Verification dated 17.05.2019 and the Trap
Proceedings dated 20.05.2019.
67.1 He stated that on the instructions of his senior officers, he went
to the CBI office on 17.05.2019 to join the investigation and met Sh. Raj
Saurabh, Sh. Nitin Kumar CBI officials where complainant Mohd. Fazil was
also present.
67.2 That Sh. Nitin Kumar told him that Mohd. Fazil has lodged a
complaint against ASI Babita of Delhi Police regarding demand of
gratification amount of Rs. 50,000/- to help the relative of complainant, who
was accused in a rape case.
67.3 PW-8 deposed that after some time a new DVR make Sony and
new memory card in sealed conditions were arranged by the CBI ; memory
card was played in the DVR to ensure his blankness, and thereafter his
voice sample was recorded in the said memory card through DVR.
67.4 He stated that the complainant Mohd. Fazil, on instructions
from CBI officials, had made a phone call to accused Babita, and in
response thereto, accused Babita asked him to come to Court room no. 116,
Ist Floor Tis Hazari Court. The mobile phone was on speaker mode and the
call was simultaneously being recorded in the DVR.
67.5 PW-8 deposed that accordingly the Verification team reached
Tis Hazari Courts to meet accused Babita ; the DVR was kept in the left
side shirt pocket of the complainant in Switched ON Mode for recording the
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conversations ; and he was instructed to remain close with the complainant
to over-hear the conversation between the complainant and the accused
Babita, if any.
67.6 He stated that complainant met accused Babita in front of Court
Room no. 116 on First Floor, and after some time, they all came back on the
Ground Floor. The DVR was then taken and Switched OFF.
67.7 He stated that complainant informed them that accused Babita
was demanding a sum of Rs. 50,000/- but the deal was not finalized as the
Court Lawyer (APP) had gone to offer Namaz.
67.8 That the said DVR was played in the CBI office and the
transcripts of the conversations were then prepared ; he identified his
signatures at point B on the Verification report and transcript (D-2 & D-2A)
already Ex PW1/2 & Ex PW1/7 respectively ; the memory card was taken
out from the DVR and sealed in an envelope with lak-Seal . The
complainant also informed at that time that, after discussion with accused,
coming Monday i.e. 20.05.2019 was finalized for meeting and to hand over
the bribe amount.
(Statement Regarding Trap Proceedings )
67.9 PW-8 further deposed that on 20.05.2019 he again visited CBI
Office, other independent witness Sh. Ram Pd, an employee of MTNL
Office, was already present there alongwith complainant Mohd. Fazil and
some CBI officials, and they all were briefed about the purpose of their
assembly by one of the CBI official.
67.10 He stated that complainant produced a sum of Rs.40,000/- in
the denomination of Rs. 2000/- and Rs.500/- each ; that some P. Powder
(witness was not able to state the full name of the powder ) was applied on
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the currency notes and other powder was also mixed in the water, wherein
it was orally informed by the CBI official that if any person touched these
notes and thereafter dipped his fingers in the said water solution, the
solution would turn pink.
67.11 He stated that he and Sh. Ram Pd were asked to touch the
currency notes, then dipped their fingers into the water solution, and on
doing this it turned into pink colour ; that currency notes were counted, their
serial numbers were noted down on a sheet ; he identified his signatures at
point X & X-1 on handing over memo (D-9) Ex PW8/1 of the currency
notes.
67.12 He stated that thereafter currency notes were put in the left
side shirt pocket of the complainant.
67.13 PW-8 deposed that a new DVR and a memory card in sealed
conditions were arranged by the CBI Officials during demonstration
proceedings ; that memory card was inserted in the DVR and played, it was
found blank ; that his voice sample as well as of Ram Parsad was recorded
in it, and thereafter the DVR with memory card was then kept in the left side
shirt pocket of the complainant.
67.14 He stated that thereafter they all ( Trap team members ) left the
CBI office for Tis Hazari Courts, Delhi, and he was instructed to remain
close with the complainant and try to overhear the conversations between
complainant & accused, and then to give a signal by covering/rubbing his
face or by giving a missed call to Sh. Nitin or Sh. Raj Saurabh, as and when
the complainant hands over the demanded money to accused.
67.15 That at the same time complainant was also instructed to
handover the money to accused only when it was demanded by the accused.
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67.16 He stated that they all reached in front of Court room no.116 at
about 11:00-12:00 noon at Tis Hazari Courts, Delhi and he remained present
there alongwith Sh. Ram Pd, two female officials of CBI and the
complainant.
67.17 That the complainant went inside the court room after putting
the DVR on Switched ON mode ; complainant and the accused both came
out of the court room and had some conversations ; they both walked in the
Court Corridor on first floor ; and then took the stairs and came on the
Ground Floor. He alongwith Sh. Ram Prasad ( PW-12) followed them and
were at a short distance behind the complainant and the accused on the
stairs.
67.18 He deposed that he was not able to hear the exact conversation
between accused and the complainant, as it was very crowded and there was
lot of noise, and at that time the accused was carrying black colour bag and
a file with her.
67.19 PW-8 deposed that he “….saw, as I could decipher from the
body language of the accused that accused asked the complainant to put the
money in the file which she was carrying with her ” , and complainant then
put the currency notes in the file of accused from his shirt pocket.
67.20 He deposed that accused then dropped the said currency notes
from the file stating that “maine nahi liye” , and the entire Trap team
members including the complainant were present there on the spot, when the
bribe money was dropped by the accused on the floor, wherein complainant
was stating that “mainey paise de diya hai aur kaam ho gaya hai”.
67.21 He stated that he and Ram Prasad picked the currency notes
from the Floor on the directions of CBI officials, same were counted and
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their numbers were tallied with the serial numbers of the GC notes as per
Annexure-A.
67.22 That the powder from the file was swiped off by two female
CBI Officials with their hands by jerking/shaking the file and also by the
accused, and if he remembered correctly, also with the ‘C hunni’ of accused
which she was wearing.
67.23 He deposed that hands of the accused were also dipped in the
water solution and solution had turned pink colour ; that the file and the
documents contained in it were swiped off by a cotton cloth by the CBI
officials, and the said cotton cloth was when dipped in water like solution,
that solution had also turned pink.
67.24 That the pink solution of hand-washes and file were put in
separate bottles. Witness identified his signatures at point A on all the three
bottles produced by the MHC(M) of RHW, LHW and file wash exhibited as
Ex PW8/2, PW8/3 and Ex PW8/4 respectively.
67.25 Witness also identified the currency notes and the envelope as
Ex PW8/5 (colly) and his signatures on the recovery memo ( D-5) Ex
PW1/5 ; Site Plan (D-6) Ex PW1/6, Arrest cum Personal Search Memo
(D-7) Ex PW8/6, Voice identification memo (D-12) Ex PW1/9 and
Transcription memo (D-12A) Ex PW1/10, two yellowish colour envelopes
sealed with the seal of AA (Mark Q-1) containing 8 GB Micro SD card
make Kingston Ex PW1/3 and (Mark Q-2) containing DVR make Sony Ex
PW1/9 and envelope duly sealed with the seal of SSA(PHY)CFSL/CBI/ND
Parcel-3 Ex PW8/8 .
67.26 He also identified the voices of Ram Parsad, Complainant,
accused Babita and himself in terms of exhibit PW1/3 (colly.), particularly
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in file no. 190517_1044 that of complainant and accused Babita and of
complainant only in file No. 190517_1127, besides the introductory files of
Verification proceedings.
67.27 With respect to trap proceedings, he identified the voice of
complainant and at some instances of accused Babita in file
no.190520_1040 stating that voice of female was not clear ; and in file no
190520_1322_01 that of accused Babita only and failed to identify other
voice, besides the introductory and specimen voices taken subsequently so
reflected in other audio files.
67.28 Witness stated that brass seal with impression CBI ACB ND
12/2010 was handed over to him after its use, which was taken on record
vide memo Ex PW8/7.
67.29 Witness was cross-examined by the learned defence counsel at
length and his testimony shall be discussed in the Analysis part of this
judgment.
68. PW-9 Sh. Mohd. Zafar Khan deposed that he was working as
Additional Public Prosecutor and deputed in the Court of the then learned
Addl. Sessions Judge-01, Central District/POCSO Court from 10.04.2019 to
20.05.2019.
68.1 He proved that he was on leave on 20.05.2019 and produced on
record the relevant documents i.e. leave application dated 20.05.2019, his
transfer & posting order alongwith copy of order regarding assignment of
duty to Ms. Shubhra Goel at his place on 20.05.2019 Ex PW9/1 (Colly.).
68.2 He deposed that he never had any discussion regarding this case
or case bearing FIR No. 396/2018 P.S. Nabi Karim or any other case with
accused Babita ASI at any point of time.
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68.3 Witness during his cross-examination by defence counsel,
wherein he admitted that he has no personal knowledge of the case.
69. PW-10 ASI Sanjay Singh was posted at PS Nabi Karim and
deposed that pursuant to the summons issued by the court of the then
ASJ-01, Central District, he was examined as a witness by the court on
20.05.2019 in case FIR no. 396/2018 ; accused ASI Babita was also present
in the court at that time ; during his examination she had left the court and
did not return in his presence. He identified the accused Babita in the court.
69.1 Despite opportunity, he was not cross examined by the learned
counsel for the accused.
70. PW-11 Sh. V.B. Ramteke, Deputy Director & Scientist-D
(Chemistry) deposed that in June, 2019, he was posted as HOD Chemistry
in CFSL, New Delhi ; that vide letter dated 30.05.2019 (D-15A), the articles
were received in the CFSL for analysis, and after endorsement, same were
marked to him by the then Director CFSL for examination.
70.1 He stated that he examined the contents of the said exhibits
marked as ‘RHW’, ‘LHW’ and ‘file wash’ by using Physico Chemical
Method, Chemical test, UV Visible Spectrophotometry and thin layer
Chromatography techniques.
70.2 Witness identified his signatures at point A on the report dated
14.06.2019 (D-15) alongwith forwarding letter Ex PW11/1 ( Colly), and
signatures of Sh. N.B. Bardhan, Director CFSL at point A on the letter dated
19.06.2019 (D-15B) Ex PW11/2 through which concerned SP CBI, New
Delhi was informed for collection of the report and the exhibits Ex PW8/2,
Ex PW8/3 & Ex PW8/4 respectively.
70.3 He also identified his signatures at point A on the envelope
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through which the cloth wrappers, having seal of CBI (ACB ND), the details
of the report and exhibits on it, and his signatures on the three cloth pieces at
point A exhibited as Ex PW11/3( Colly).
70.4 Witness was cross-examined by the learned defence counsel.
71. PW-12 Sh. Ram Prasad, Chief Telephone Supervisor was
another independent witness and part of Trap proceedings undertaken on
20.05.2019.
71.1 He deposed that on the instructions of his senior officer SDOP,
he visited CBI office ; where he met Smt. Veer Jyoti, Sh. Tajender Verma
another official of his department and some other CBI officials ; Smt. Veer
Jyoti informed that a complaint has been received from a person belonging
to a Muslim Community against one lady, who is an official in Delhi Police,
and they had to go to Tis Hazari Courts, Delhi for trap proceedings.
71.2 Witness stated that before leaving a demonstration proceedings
qua currency notes were conducted at CBI office ; they applied powder on
the currency notes given by the complainant ; Sh. Tejendra Sharma was
directed to touch the currency notes, and when he put his hands in the water
like solution, the colour of the solution had turned pink.
71.3 He stated that thereafter the number of the currency notes were
noted on a sheet which was signed by him ; his introductory voice was
taken before leaving the CBI office ; he was instructed to remain close
behind the complainant to over hear the conversations between accused and
the complainant during trap proceedings to be undertaken.
71.4 PW-12 further stated that they left the CBI office at about 09:40
a.m. and reached Tis Hazari Courts complex at about 10:45 a.m., and from
there they proceeded towards the Court Room of Tis Hazari Courts, Delhi,
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and they had remained present with the complainant outside the said court
room.
71.5 Witness further deposed that accused Babita came out of the
court room with 2-3 females. CBI officials followed accused Babita and
signaled us also to follow them, and at that time complaint was ahead of us.
71.6 That from first floor they went to the ground floor and he was
left behind on the stairs at a distance of about 15 steps or so, whereas PW-8
Sh. Tejendra Sharma and complainant (PW-1) were ahead of him.
71.7 He stated that when he came downstairs, he heard voice of
accused Babita wherein she was saying “maine kuch nahi kiya hai” and one
file was lying on the floor at that time.
71.8 He stated that he and Sh. Tajendra Sharma (PW-8) picked the
currency notes and file from the floor on the instructions of CBI officials ;
that hand washes of Babita were also taken ; the said currency notes were
then tallied with the list Ex PW8/1 already prepared in the CBI office ; and
thereafter they all came back to the CBI office where some documents
regarding the trap proceedings were prepared.
71.9 PW-12 deposed that he met Smt. Veer Jyoti, TLO (PW-17) next
day in the CBI office and signed some documents, which were already
prepared, after the contents of the same were read over by TLO Smt. Veer
Jyoti.
71.10 He identified his signatures at point C on the following
documents i.e.
– on the handing over memo of currency notes (D-4) Ex PW1/4
and its annexures Ex PW8/1 ( description of currency notes )
– on envelop Ex PW8/5 in which currency notes were kept ;
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- on recovery memo (D-5) Ex PW1/5 at point C ;
- on Site Plan Ex PW1/6 (D-6) ;
– on Arrest cum Personal Search Memo Ex PW8/6 ( D-7) ;
– Voice sample identification memo Ex PW1/9 (D-12 and its
Transcript Memo Ex PW1/10 (D-12A).
– on the envelope containing DVR make Sony Ex PW1/8
(Colly.)
– yellow envelope duly sealed with the Seal of “AA”, one Plastic
cover having memory card Ex PW1/3 ( colly.)
71.11 PW-12 identified only the introductory voice of PW-8 Sh.
Tejendra Sharma & himself and failed to identify the speakers in the other
audio recorded conversations.
71.12 On some aspect, witness was cross-examined by the learned Sr.
PP after the permission of the court, wherein he deposed that complainant
did not hand over the tainted money in his presence, and therefore, he was
not able to tell what all conversations had taken place between the
complainant and the accused.
71.13 He also failed to recall if the complainant was also present at
the spot, where the tainted money was lying, when he reached there.
71.14 Witness was cross-examined by the learned defence counsel
and his testimony shall be discussed in the later part of this judgment at
appropriate stage.
72. PW-13 Sh. Deepak Singh Junior Assistant in DGHS,
Karkardooma Courts, Delhi was a witness to the seizure / taking of CCTV
footages from Tis Hazari Courts Complex, Delhi.
72.1 Witness identified his signatures at point D on the Production-
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cum-Seizure memo dated 07.06.2019 Ex PW4/1 (D-9D) vide which the
CCTV footages was seized by the IO, and on the memorandum of
preparation of CTV footages dated 12.06.2019 (D-9E) Ex PW13/1 at point
A.
72.2 PW-13 during his examination produced original brass seal
endorsed with CBI ACB ND in the Court, used by the IO during the above
said proceedings qua seizure of CCTV footages on the said date, and the
same were taken on record vide Ex PW13/2.
72.3 Witness was cross-examined by the learned defence counsel
wherein he denied the suggestion that no seizure of articles/CCTV footages
was done on 07.06.2019 and that the receipt regarding the Brass seal was
antedated and antetime or that he had not visited the CBI office or the Tis
Hazari Courts Complex .
73. PW-14 Sh. Sandeep Sharma was posted as LDC in
Advertisement Department, MCD Office, Civic Centre, Minto Road, New
Delhi at the relevant time and was a witness to the Search Proceedings so
carried out by the CBI official at the house of accused Babita at Police
Colony at Burari, New Delhi on 20.05.2019 at about 04:00p.m.
73.1 The Search of the house was conducted by the team lead by
Insp. Negi in the presence of husband of the accused, who had reached there
after 2-3 hours and opened the house. A Search list was prepared by the
CBI officials thereafter, and he signed the said Search List dated 20.05.2019
(D-26) Ex PW14/1 (Colly.) at point A.
73.2 In his cross-examination, he stated that all the recovered articles
were seized by the IO, and he had no personal knowledge as to what was
done to the articles after taking the same by the CBI.
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73.3 He denied the suggestion that he was not the member of the
Search Team or had not visited the house of accused or that stood as a false
witness.
74. PW-15 Smt. Deepti Vashista was posted as Programmer in
System Division with additional charges of TAFSU, Special Crime Zone,
CBI, New Delhi, who had prepared copy of the CCTV footage for
investigation purpose on the instructions of IO Sh. Satish Bana (PW-21)
through FRED-L ( a laptop device used for forensic purpose) in the presence
of one independent witness.
74.1 Witness after seeing the memo dated 12.06.2019 under the
head Memorandum of Preparation of Investigating Officer’s copy of CCTV
footage seized in RC 17(A)/2019 CBI/ACB/New Delhi (D-9E), Ex PW13/1
identified her signatures at point B.
74.2 In her cross-examination, she stated that in preparing the copy
of the IO, two-three hours time was consumed due to technical issues as
there was some configuration issues in the FRED-L machine used for this
purpose, and thereafter another FRED-L machine of high configuration was
used.
74.3 She admitted that she had not given any Certificate u/s 65B of
the Indian Evidence Act with regard to the IO’s copy prepared by her.
74.4 She further stated that when it was being prepared there was a
lunch break and she had sealed her room with paper seal and the keys were
handed over to the independent witness.
74.5 She denied the suggestion that she had not prepared the
aforesaid copy or that it was prepared by IO or that she had merely signed
on the Ex PW13/1 or that she is deposing falsely.
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75. PW-16 Sh. Vinay Vashishth was posted as Junior Assistant in
the office of SE(DR) Project West & Central, Jhandewallan, Delhi and was a
witness of taking the CCTV footage from the Control Room, Tis Hazari
Courts, Complex, Delhi.
75.1 He stated that after the footage was copied in the DVD the
memorandum dated 10.07.2019 Ex PW4/3 to this effect was prepared by the
IO and he identified his signatures on the same at point B.
75.2 Witness also identified his signatures at point B on the articles,
already exhibited as Ex. Ex PW4/11, Ex PW4/12, Ex PW4/13, Ex PW4/14
and DVR as Ex PW4/15, in terms of testimony of other independent
witness PW-4 Sh. Gurjan Singh.
75.3 Witness was cross-examined by defence, where he failed to
remember the date or the month when he went to the CBI office or the name
of the CBI official whom he had met after reaching there, but denied the
suggestion that he was not part of the said proceedings.
75.4 He stated that CCTV footage was taken in DVD, and prior to
that IO had ensured the blankness of the said DVD, and the person who had
given the CCTV footage had signed on the Production-cum-Seizure Memo
so prepared by the CBI officials. .
76. PW-17 Smt. Veer Jyoti, Inspector CBI, ACB, New Delhi is the
Trap laying officer of the case stated to have been appointed by Sh.
Sudhanshu Mishra, Supdt of Police of her Unit.
76.1 She identified the signatures of Sh. Mishra on the original FIR
bearing no. RC 17A/2019/CBI/ACB/New Delhi dated 17.05.2019 (D-3)
registered against Smt. Babita, ASI PS Nabi Karim.
76.2 PW-17 deposed that prior to lodging the FIR, a written
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complaint dated 16.05.2019 (D-1) Ex PW1/1 was made by complainant
Mohd. Fazil in the CBI office, wherein it was mentioned that two FIR’s
bearing no. 386/18 and 396/18 were registered against his brothers and ASI
Babita was assigned the investigation of the said cases ; accused Babita had
demanded a sum of Rs. 50,000/- from the complainant for herself to get a
favourable statement from the victim of case FIR no. 396/18 against his
accused brother Shadab and further Rs. 2 lacs were to be paid to the victim
for changing her statement qua settlement.
76.3 That accused had also assured the complainant that she would
talk and arrange a meeting with Government Advocate (APP) for this and
advised him “unko kuch kar dena”.
76.4 PW-17 deposed that Verification Proceedings were conducted
by Inspector Raj Sourabh in presence of independent witness (PW-8) at Tis
Hazari Courts Delhi and the conversation between the complainant (PW-1)
and accused Babita were recorded the DVR.
76.5 She stated that before the Trap proceedings she had gone
through the audio recordings, its Transcripts and Verification proceedings,
wherein it was established that accused Babita was demanding a sum of Rs.
50,000/- from the complainant for getting the statement of the victim
changed in favour of accused in FIR no. 396/18.
76.6 She identified the Memorandum of Proceedings Memo dated
17.05.2019 (D-2) Ex PW1/2, alongwith Transcripts of Verification
proceedings (D-2A) Ex. PW1/7 received by her at the time of entrustment of
the FIR for Trap proceedings.
76.7 PW-17 Smt. Veer Jyoti stated that on 20.05.2019 a trap team
was constituted comprising of complainant Mohd. Fazil, two independent
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witnesses Sh. Tajender Sharma, Sh. Ram Prasad, and some officers from
CBI, and they were briefed about the case on all aspects before conducting
the trap proceedings.
76.8 Witness further stated that she had taken the sealed Memory
Card (Q-1) qua the Verification proceedings was taken from the Verification
Officer Sh. Raj Saurabh (PW-19), and the DVR and Brass Seal used in the
said proceedings from independent witness Sh. Tejendra Sharma (PW-8).
76.9 PW-17 stated that a sum of Rs.40,000/- to be used as Trap/bribe
money was produced by the complainant i.e. in the denomination of Rs.
2000 X 12 and Rs. 500 X 32, the currency notes numbers were noted on the
sheet separately as Annexure Ex PW1/8 (part of D-4), and after preparation
of the memo, it was handed over to the complainant vide memo Ex PW1/4
(D-4), and she identified her signatures on the same.
76.10 Witness deposed that Sh. Anil Kumar Singh Inspector
explained the purpose of use of Phenolphthalein powder and its reaction
with the Solution of Sodium Carbonate and water to the trap team members.
76.11 That the trap money produced by complainant was treated with
Phenolphthalein powder by Sh. Anil Kumar Singh, Inspector ; independent
witness Sh. Ram Prasad was asked to touch the said currency notes with
right hand ; and when he dipped his fingers in the freshly prepared solution
of Sodium Carbonate and water, it turned pink.
76.12 That the said pink solution was thrown away and remaining
powder was returned to Malkhana, and Sodium Carbonate was made part of
the Trap kit to be used in proceedings.
76.13 PW-17, TLO further deposed that the personal search of
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complainant was taken by Sh. Tejendra Sharma, and except the mobile
phone, no other article was allowed to be kept by him ; that the tainted
amount was then kept in the left side shirt pocket of the complainant by
another witness Sh. Ram Prasad.
76.14 That the complainant was directed not to handover the tainted
money to the accused or to any other person until or unless demand is
specifically made by the accused herself or asked by her to give it to some
other person.
76.15 TLO deposed that fresh Memory card was inserted in the DVR
and the introductory voice of the independent witnesses were taken ; Sh.
Nitin SI CBI, explained the working of the DVR to the team members ; that
a leather bag was arranged to be used as a Trap kit bag for keeping the clean
glass bottles and tumblers etc.
76.16 That Sh.Tejendra Singh (PW-8) was deputed as Shadow witness
and directed to keep watch on the activities and transactions of complainant
and the accused, he was also asked to give a signal by putting his hand over
his head and /or rub his head or may give a missed call to her as and when
the bribe money is transacted and given to the accused.
76.17 She deposed that from the CBI office they all (trap team
members) proceeded to Tis Hazari courts ; the DVR was handed over to the
complainant in a switched ON mode and kept in the left side shirt pocket of
the complainant.
76.18 That the complainant was then asked to go to the Court no. 116
where accused Babita had asked him to meet during verification
proceedings ; that all the team members had scattered around the court room
no. 116 ; she followed the complainant and the Shadow witness at that time.
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76.19 PW-17 further deposed that complainant made a call to accused
Babita after reaching in front of court room no.116, and thereafter, accused
Babita came there to meet the complainant ; at that time she was carrying a
black colour ladies purse/bag with her and demanded money from the
complainant ; she also informed him that concerned PP was on leave on that
day.
76.20 That their conversations about the money, status of
PP/government advocate, and facts about his share, which the accused had
stated to give from her amount, were recorded in the DVR.
76.21 PW-17 further deposed that after some time accused Babita
asked the complainant with gesture to follow her, and they both then turned
left in the corridor, and then came to ground floor in front of the Lift through
stairs.
76.22 TLO stated that she also followed accused and complainant
when they reached in front of the lift at ground floor. Accused Babita
opened the pink file which she was carrying in her hand and with the gesture
asked the complainant to put the bribe money, and accordingly the
complainant did so.
76.23 That the complainant thereafter moved 4-5 steps from the lift
on the ground floor and gave a signal by rubbing his hand on the face
indicating that bribe money has been paid to the accused and simultaneously
he had also given a missed call on her number.
76.24 She deposed that she alerted other team members already
scattered there, they all moved towards accused Babita and intercepted her
in front of Room no. 8 ground floor, who resisted her interception, and
threw the pink file.
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76.25 TLO deposed that she challenged the accused Babita that she
has taken bribe from the complainant, and she then tried to rub her hands
with Chunni of her Suit and started shouting “maine nahi liya maine nhi
liya” ; that complainant came to her and the DVR was then put in Switched
Off mode.
76.26 TLO Smt. Veer Jyoti further stated that in the meantime the
other team members also reached there ; the currency notes along with the
pink colour file papers were scatted on the floor ; that she caught hold right
hand wrist of accused Babita, whereas other hand was caught by constable
Suman Manjoo.
76.27 She stated that she directed accused to handover her black
colour bag to independent witness Sh. Tejendra Sharma, and other witness
Sh. Ram Prasad (PW-12) was directed to collect the currency notes, file and
the papers lying on the floor.
76.28 That the GC notes so recovered were counted and their serial
numbers were tallied with the already prepared document Annexure-A Ex
PW8/1, which was signed by both the independent witnesses. The recovered
currency notes were kept in a brown colour envelope and sealed with the
seal of CBI. She had also signed on the envelope after mentioning the case
FIR and other particulars etc.
76.29 PW-17 further stated that Sh. Ram Prasad was directed to keep
the file in his custody, and thereafter, a fresh solution of Sodium Carbonate
and water was prepared on the spot in a clean glass tumbler, and hand
washes of accused Babita and wash of Pink File were taken separately each.
76.30 That the solutions had turned into light pink colour, which were
transferred in glass bottles separately and tied with the cloth, tagged and
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sealed with the Seal of CBI, after marking them as ‘RHW’, ‘LHW’ and ‘File
Wash’ in RC17A/2019, and exhibited as Ex. PW-PW8/2, Ex PW8/3 and Ex
PW8/5 respectively bearing her signatures at Point B.
76.31 Witness also identified her signatures at point D on the Site
Plan Ex PW1/6 prepared by Insp. Harnam Singh on the spot ; that Search
order under Section 165 Cr.P.C authorizing Sh. C.M.S Negi to conduct the
house search of accused Babita was prepared ; the recovery memo of the
trap proceeding was prepared vide Ex PW1/5 (D-5), and thereafter they all
came back to CBI office for conducting further proceedings.
76.32 Witness further deposed that on reaching CBI Office the
recordings in the DVR were heard by all the members of the team ; copy of
the recordings were prepared by SI Nitin Kumar ; the memory cards were
separately sealed in the presence of independent witnesses.
76.33 That accused Babita was formally arrested and her personal
search, and search of her black colour bag/purse Ex PW8/6 ( D-7) dated
20.05.2019 was taken by Ct. Suman Manjoo bearing her signatures at point
C and signatures of accused at point D.
76.34 That during the examination of PW-17, Malkhana Moharrar
produced the yellow colour envelopes bearing case particulars as
CFSL-2019/P/532/Parcel4/Exhibit Empty Memory Card sealed with the
Seal of MKJ SSA(PHY) and from it a memory card was taken out.
76.35 She identified her signatures on the same at point A and
signatures of independent witnesses at different places. The envelop
alongwith the company paper packing and memory card was exhibited as Ex
PW17/2.
76.36 TLO further deposed that some words and sentences for
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reference from the transcript of verification proceedings of the audio
recording were noted separately ; fresh memory card and DVR were
arranged ; the specimen voice sample of accused Babita was taken after
informing her the purpose of the same, and the voice samples were sealed in
the brown envelope and marked as S-1 in RC no. 17A/2019.
76.37 PW-17 identified her signatures on the yellow envelope sealed
with the seal of Court Ex PW8/8 (colly) and signatures of independent
witnesses containing the paper packaging and the memory card in it.
76.38 On playing the said memory card, witness identified the voice
of Sh. Tejendra Sharma recorded in files no. 190520_1520.mp3 &
190520_1526.mp3, voice of Sh. Ram Prasad in files no. 190520_1522.mp3
& 190520_1527.mp3, and voice of accused Babita in files no.
190520_1523.mp3 & 190520_1525.mp3.
76.39 TLO further identified her signatures at Point C and of
independent witness on another yellowish colour envelop marked ‘Q-2’ Ex
PW1/8 (colly) having the DVR make Sony in it.
76.40 The DVR was played with the help of a laptop through write
blocker and witness identified the voice of Sh. Tejendra Sharma recorded in
file no. 190520_0919.mp3, voice of Sh. Ram Prasad in file no.
190520_0921.mp3, voice of complainant Mohd. Fazil (at 11.52 minutes)
and accused Babita in file no. 190520_1040.mp3 (at around 14.16 Mins.)
amongst others, and exclusive voice of accused Babita in
190520_1322_01.mp3.
76.41 She further deposed that seal so used in the proceedings was
handed over to the independent witness vide handing over memo, and the
documents prepared by her alongwith the exhibits were deposited in the
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malkhana.
76.42 During the examination of PW-17, as was observed by the
court, some modifications in the file qua dates and time was reflected
thereto, and Ct. Anoop Diwedi and Ct. Raj Kishore, who had appeared on
behalf of agency on the said date, failed to give satisfactory answer in that
regard, stating that they were not expert in that field.
76.43 Witness was cross-examined by the learned defence counsel at
length and his testimony shall be discussed later at an appropriate stage
under Analysis.
77. PW-18 Sh. Mukesh Kumar Yadav was posted as Chitha Munshi
at PS Nabi Karim and was maintaining Duty Roster Register of Police
Officials of Police Station.
77.1 He proved on record the entries in his own handwriting and
signatures entered in the Duty Roster Register for the period 15.05.2019 to
25.05.2019 of PS Nabi Karim and entry at Serial no. 18 dated 20.05.2019
vide which accused Babita W/ASI was assigned duties (D-18 page no. 7)
Ex PW18/1
77.2 Witness stated that he knows accused Babita, who was posted
in the Police Station Nabi Karim, and identified her.
77.3 In his cross-examination witness admitted that GD entry no. 82
A dated 28.01.2019 already Ex PW7/DX-1 was got recorded by accused
Babita ASI, and she narrated about the same to the concerned SHO in his
presence. That it was also informed by her (Babita) that Ms. Shama is
putting allegations on her that she was not letting the bail to be granted to
accused Aftab of case FIR no. 34/2019 PS Nabi Karim.
78. PW-19 Sh. Raj Saurabh was the Verification Officer, who was
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posted as Inspector, CBI, ACB, New Delhi. He was introduced to Mohd.
Fazil complainant of the present case by Sh. Sudhanshu Dhar Mishra, the
then concerned SP,ACB, CBI, New Delhi on 17.05.2019, wherein it was
stated that he has given a complaint dated 16.05.2019 Ex PW1/1 against
ASI Babita, alleging that ASI Babita was demanding a sum of Rs. 50,000/-
for settlement of the matter/FIR, registered against his brother, with the
victim/complainant of the said FIR.
78.1 PW-19 stated that during Verification Proceedings independent
witness PW-8 Sh. Tejendra Sharma was requisitioned and Sh. Nitin Kumar
SI CBI was also made part of the verification team. The purpose of
verification was explained to them. A new DVR and Kingston Micro SD
Card as well as Brass Seal of CBI were procured. SD card was then
inserted in the DVR, and after ensuring its blankness, the introductory voice
of independent witness was recorded in it.
78.2 PW-19 deposed that complainant was directed to make a call to
accused Babita, wherein she informed that she was in Court room no. 116,
Tis Hazari Courts Complex and the call was disconnected. That his mobile
phone was on speaker mode and the call was also recorded simultaneously
in the DVR, which was switched OFF thereafter.
78.3 PW-19 deposed that entire team then reached Tis Hazari Courts,
Delhi on 17.05.2019. Complainant and independent witness were asked to
go to meet / speak to ASI Babita with the direction to the independent
witness to over hear the conversation between the complainant and ASI
Babita.
78.4 PW-19 deposed further that, after 15 minutes or so,
complainant alongwith independent witness came back after meeting ASI
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Babita. The DVR was switched OFF. Complainant narrated about his
conversation with accused Babita that she has demanded a sum of Rs.
50,000/- for herself and Rs. 20,000/- for Public Prosecutor. That DVR
recordings qua verification proceedings were heard by the team and it was
found that complainant had narrated true facts.
78.5 PW-19 deposed that complainant was again asked to fix a
meeting by making call to ASI Babita, whereafter accused Babita told the
complainant to meet on Monday i.e. 20.05.2019.
78.6 The transcriptions of the audio recordings were taken through a
laptop with the help of write blocker. The memory card was put in a plastic
cover along-with its original packing and then in a brown envelope after
marking it as Q-1, and kept in safe custody in Malkhana.
78.7 That the brass seal was handed over to the independent
witness, and verification memo Ex PW1/2 (D-2) was prepared on which he
and independent witnesses signed. He also recommended for registration
of the case FIR.
78.8 That during his examination, an envelop duly sealed was
produced and opened. 8 GB Micro SD Kingston Company packet part of
Ex PW1/3 alongwith its packing was taken out from it. Witness identified
his signatures and signature of other independent witness on the same.
78.9 The memory card was played in the court, and PW-19 identified
the voice of Sh. Tejendra Sharma, Mohd. Fazil complainant, and also the
conversation between complainant and accused Babita.
78.10 PW-19 stated that after the Verification Proceedings the case for
further proceedings was assigned to TLO Smt. Veer Jyoti (PW-17).
78.11 Witness was cross-examined by the learned defence counsel at
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length wherein he admitted that he has no personal knowledge of the
contents of the complaint lodged by the complainant, and that concerned SP
of the CBI had not deputed SI Nitin to join the Verification Proceedings for
his assistance.
78.12 He also admitted that he and SI Nitin had not entered Tis Hazari
Courts Compound, therefore, they do not have any personal knowledge as to
what had transpired inside the Court Complex or whether the complainant
had actually met accused Babita there or not.
79. PW-20 Sh. Satyapal was working as Assistant Section Officer,
Department of Directorate of Education NCT of Delhi and was a witness to
the taking over of the CCTV Cameras installed at or near the shop of the
Complainant at Multani Dhanda, Pahar Ganj, New Delhi. However, as
deposed by him no CCTV Cameras was found installed in and around the
shop of the complainant.
79.1 Witness identified his signatures at point A on the memo dated
03.06.2019 (D-20) Ex PW20/1.
79.2 During his cross-examination, witness stated that no
documentation work was done before leaving the CBI office on that day,
and no notice was served upon the shopkeepers near to the spot for checking
their Cameras.
79.3 He denied the suggestion that he had not joined the
investigation or that he stood as a false witness on the documents prepared
by the CBI at their instance or that he is deposing falsely
80. PW-21 Sh. Satish Kumar Bana, IO of the Case deposed that he
was posted as Inspector ACB, CBI New Delhi on deputation basis from
March 2019 to March 2024 ; that the present case was assigned to him for
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investigation by the order of Sh. Sudhanshu Dhar Mishra, the then SP CBI.
Insp. Veer Jyoti, TLO (PW-17) of the case handed him documents of the
case i.e. FIR, Verification Memo, Pre-Trap Memo, Recovery Memo etc.
80.1 That after assignment of the case, he collected CAF, CDRs and
other relevant details of mobile phones of complainant from the Nodal
officer, and hand washes of accused Babita, File washes from Malkhana and
sent the same for analysis to CFSL. He examined the complainant,
independent witnesses and other witnesses of the case.
80.2 Witness identified the signatures of concerned SP on the letters
dated 25.07.2019 (D-11), 10.06.2019 (D-14), 30.05.2019 (D-15-A) and
25.06.2019 (D-15-C) sent to CFSL for analysis of exhibits Ex PW21/5,
ExPW21/6 Ex PW21/7 & Ex PW21/8 respectively.
80.3 He identified his own signatures on the transcripts-cum-voice-
identification memo dated 07.06.2019 (D-12) already Ex. PW1/9 & Ex
PW1/10, and another dated 18.07.2019 (D-13 & D-13A) Ex PW6/2 & Ex
PW7/1 respectively ; the letter dated 19.06.2019 (D-15-B) alongwith report
Ex PW11/2 regarding collection of report addressed to SP concerned from
CFSL : letter dated 21.06.2019 (D-16) received from Nodal Officer
alongwith requisitioned record/documents already Ex PW2/1 to Ex PW2/5 .
80.4 He further identified the Production-cum-Seizure memo
alongwith the documents dated 24,06.2019 (D-19) ; dated 02.08.2019
(D-21) Ex PW21/11, dated 14.08.2019 (D-21A) Ex PW21/12, dated
20.05.2019 (D-22) Ex A-2 ; Search list dated 20.05.2019 (D-26) Ex PW14/1
(colly), letter dated 26.08.2019 (D-27), letter dated 30.07.2019 (D-27-A) Ex
PW21/14 , and the documents (D-23) Ex A-3, (D-24) Ex A-4, (D-25) Ex
A-5 and three sealed bottles Ex PW8/2 to Ex PW8/4 and envelops
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containing the memory card and DVR.
80.5 IO further stated that Sanction for prosecution of the accused
was obtained, analysis report from the CFSL was collected and after
completion of the investigation the charge sheet was filed in the court for
trial of the accused.
80.6 Witness was cross-examined by the learned counsel for the
accused and the relevant part of his cross-examination is discussed at later
stage.
81. PW-22 Sh. Mahesh Kumar Jain deposed that in the year 2019,
he was posted as a Senior Scientific Assistant at CFSL Delhi, and after
April, 2024 transferred to CFSL Chandigarh ; that on 11.06.2019 on receipt
of four sealed parcel alongwith forwarding memo dated 10.06.2019 of CBI
ACB New Delhi, the same were assigned to him for examination ; he
accordingly examined the same and prepared his report dated 20.01.2020
with reference no. 17A/2019, CBI, ACB New Delhi.
81.1 He identified his signatures and stamp at point A on the report
Ex PW22/1 (colly.) and initials on the envelops, memory cards Ex PW1/3
& Ex.PW1/8, DVR Ex.PW1/8, plastic covers, Parcel-1/Ex.Q-1
(CO-25/2019), Parcel-2 Ex. Q-2 ( RC 17A/2019) and Parcel-3/Ex. S-1
(RC17A/2019).
81.2 In his cross-examination, PW-22 deposed that spectrographic
analysis computers were used and the data was stored in it ; the SD
cards/DVRs etc was transferred to the computer and thereafter
spectrographic analysis was done, however, the Certificate u/s 65-B of
Evidence Act was not issued in respect of the questioned and specimen
voice segregated by him.
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81.3 Witness deposed that he has not done any course in linguistic
and phonetic aspects as such but have examined those aspects in the present
case.
81.4 Witness admitted that he does not have Certificate or Diploma
or a Degree in the field of Forensic Acoustics and Speaker Identification
Course ; that hash value of the recordings while starting examination was
not noted by him.
81.5 On the court question, he deposed that he has sufficient
experience and examined so many voice samples, and therefore, he is an
expert on linguistic and phonetic aspects of exhibits under examination.
81.6 PW-22 stated that there is a format/auditory sheet in template
form and circulated in their office, which contains 10 parameters of auditory
analysis.
81.7 He admitted that he took about 18 days or so for analyzing the
exhibits and preparing its report, and during that time, the exhibits were not
kept in sealed condition, and that the exhibits were also handled by his
Assistant, who had assisted him in the examination process of exhibits.
81.8 To a suggestion put to him by defence, he admitted that the
transcripts so received at the CFSL were having indications in the form of
“C” and “A” to imply Complainant and Accused, but denied the suggest
that it was suggestive in nature or that the same is mentioned in the
transcriptions in order to give a favourable report in favour of the agency.
81.9 He admitted that hash value is obtained for detecting tampering
/ editing addition etc in the original electronic records, as one of the
parameters.
82. PW-23 Sh. A.D. Tiwari, Deputy Director (Photo) in CFSL,
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DFSS, New Delhi deposed that in the year 2019-2020, he was posted as
Principal Scientific Officer (Photo) in CFSL Delhi and during that time he
received exhibits/parcel for scientific examination.
82.1 He identified his signatures at point ‘A’ on the report prepared
by him vide report no. CFSL 2019/E-0666 dated 07.02.2020 Ex PW23/1
(Colly.) ;
– on the two envelops Ex PW4/5 & Ex PW4/6 containing
exhibits i.e. Parcel-I DVD-A Ex PW4/11 and Parcel-2 Ex
DVD-B ;
– signatures on the envelopes of CD/DVD-R already Ex PW4/7
to Ex PW4/10 respectively ;
– signatures on the envelopes and the CD/DVD-R already Ex
PW4/13 to Ex PW4/14 respectively.
82.2 Witness deposed that the CDS/DVD-R were containing the
CCTV footages and he did not find any tampering in the said CDs/DVD-R.
82.3 The witness was cross-examined by the learned defence
counsel wherein he admitted at the relevant time CFSL CBI was under the
administrative control of CBI.
82.4 PW-23 stated that he did not raise any queries to the
investigating officer or to any CBI official as to why Parcel 1A ( referred in
para 4.1 of the report ExPW23/1 ) was in unsealed condition and why Parcel
1-B ( referred in para 4.2 of the report ) was in a sealed condition.
82.5 He stated that the entire electronic records were independently
examined by him and he had not taken the assistance of any other official.
82.6 He admitted that from the opening of the Parcels for
examination on 06.08.2019 and its conclusion on 07.02.2020, the parcels
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were not kept in sealed condition.
82.7 He also admitted that he has not issued any Certificate under
Section 65-B of Evidence Act and the Hash Value of the exhibits were not
mentioned by him in his reports.
STATEMENT OF ACCUSED BABITA :-
83. After the closure of the prosecution evidence, statement of
accused was recorded under Section 313 Cr.P.C in which she denied the
case of prosecution and has produced evidence in her defence.
83.1 In her statement she denied the knowledge of demand of Rs.
10,000/- from the Aftab, brother of complainant Mohd. Fazil by ASI Beant
for allowing him to run his scrap shop, or capturing of the incident in his
mobile phone, and/or a call of complaint in this regard to police at 100
number, and then its settlement in the Police Station.
83.2 She stated that an FIR u/s 376 IPC was registered against Aftab
and another case FIR under the same offence was registered against
Shadab, both brothers of complainant Mohd. Fazil, at P.S. Nabi Karim,
after may be 2/3 months of the said incident, and the investigation of the
said cases were assigned to her.
83.3 She denied that on 15.05.2019 she alongwith one other police
officer in civil uniform visited at the shop of complainant, and meeting the
complainant there.
83.4 She denied the fact that she had approached the complainant
and demanded Rs. 50,000/- for herself and Rs. 2 lacs for Afsa Baby, the
Prosecutrix in the case against his brother Aftab u/s 376 IPC for getting the
matter settled.
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83.5 She stated that allegations levelled against her are incorrect ;
the recordings and case properties are false, DVRs are planted ; handing
over memos, recovery memos, Memorandum, Site plan, Transcripts are
false, fabricated, ante-dated and ante-timed, which were prepared and
signed by witnesses subsequently to implicate her falsely.
83.6 She stated that she was posted as ASI in P.S Nabi Karim and
PW-3 the then DCP Sh Mandeep S. Randhwa was not competent authority
to accord sanction for her prosecution, as he had no authority or powers to
remove or dismiss her from the Services.
83.7 Accused in her statement stated that it is a false case planted
upon her due to vengeance of the complainant and his family members who
held her responsible for the rejection of bail of brother of the complainant,
and they had extended threats to her to implicate her in a false case to teach
her a lesson. That all the witnesses produced by the prosecution are false and
interested witnesses.
83.8 She pleaded her innocence and produce one witness to support
her defence.
DEFENCE EVIDENCE :-
84. Accused preferred to lead defence evidence and examined SI
Vivek Kaushik as DW-1, who produced two orders dated 19.09.2013 and
05.03.2018 passed by the then Commissioner of Police and Additional
Commissioner of Police, Delhi Police respectively, duly attested by Ms.
Ritambra Prakash, ACP, CB-II, HQ, and identified her signatures and
official seal on the said orders Ex DW1/1 & Ex DW1/2 respectively at point
A.
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84.1 He also stated that vide order Ex DW1/1 accused Babita was
promoted and appointed at the post of W/ASI executive (Adhoc) under the
orders of Commissioner of Police, Delhi, and vide order Ex DW1/2 her
Adhoc Promotion and Appointment was confirmed by the competent
authority under the orders of Addl. Commissioner of Police Headquarters &
Establishment.
84.2 Witness was cross-examined by the learned Sr. PP for the CBI
and he admitted that the original file brought by him containing the Minutes
of the Departmental Promotion Committee dated 09.09.2013, and he
identified the signatures on the same of the then DCP Sh. V.A. Gupta at
point A, Sh. R.S. Chauhan DCP at Point B, and Sh. Dipender Pathak, Joint
CP at point C, and stated that he has no personal knowledge with respect to
the record produced by him.
FINAL ARGUMENTS :-
85. Learned Senior PP argued that prosecution has successfully
proved the charges against the accused by leading clinching evidence in the
form of direct and circumstantial/link evidence, and also that there is
sufficient evidence on record to prove the case of prosecution against the
accused ; the evidence of all the witnesses recorded during the trial fully
supports the version of the prosecution and the investigation conducted by
the independent agency.
85.1 He further submitted that to prove the offence under Section 7
of P.C. Act, against the accused, the necessary ingredients of Demand,
Acceptance and Recovery duly stand substantiated on record by the oral
statement of witnesses, specifically PW-8 Sh. Tejinder Sharma and PW-17
Ms. Veer Jyoti (TLO).
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85.2 That both the witnesses have deposed to the factum of demand
and acceptance of bribe money by accused Babita in front of the lift No. 1,
Ground Floor, Tis Hazari Courts Complex at the time of trap proceedings
undertaken on 20.05.2019.
85.3 Ld. Sr. PP further submitted that the statement of witnesses are
duly corroborated by audio recordings and the transcripts of the case
wherein the demand and acceptance of bribe money by accused Babita is
reflected in unequivocal terms during verification proceedings as well as
subsequently at the time of trap.
85.4 It was further argued that prosecution has been able to prove all
the foundational facts of demand, acceptance and recovery of tainted money,
and thereby presumption of Section 20 of PC Act is attracted.
85.5 That the burden thereafter shifted on the public servant accused
Babita (ASI) to rebut said presumption regarding existence of requisite
motive or reward as per Section 7 of PC Act, by leading direct or indirect
evidence, which he miserably failed to do, and hence, accused Babita ASI
be convicted for the said offence.
86. Per Contra, Ld. Defence Counsels for the accused assailed the
prosecution case primarily on the ground that the deposition of the
complainants is full of material discrepancies and even the testimonies of
the independent witnesses suffer from serious infirmities and contradictions
making them completely unreliable and untrustworthy.
86.1 That the prosecution has failed to prove affirmatively that the
accused public servant had obtained or accepted any bribe money or any
undue advantage from the complainant or to say that she dishonestly and
improperly performed her official duties in any manner what so ever.
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86.2 The allegations against accused are contradicted by the
statements of the witnesses and the documents brought on record thereby,
leaving the prosecution case completely insufficient to raise the presumption
of Section 20 of PC Act,1988.
86.3 Learned counsel for the accused argued that the prosecution has
miserably failed to prove its case as the star witness of the prosecution,
complainant Mohd. Fazil, has not supported the case of prosecution and
other other circumstances related to the incident, but has also contradicted
the deposition of other witnesses including the independent witnesses.
86.4 Highlighting his examination learned Defence Counsel
submitted that initially the complaint was written by him in three pages and
thereafter it was written by him on the dictates of CBI officer running into
one page only ; that the earlier drafted complaint not produced during
recording of evidence of witnesses ; that complainant and material
witnesses have deposed other facts which are not relevant and necessary to
the case of prosecution and creates doubt over his testimony.
86.5 Learned Defence Counsel also stated that the independent
witnesses of the prosecution have deposed contradictory to each other on
vital aspects of the case ; and even the IO and TLO have given different
versions qua the custody of audio recordings and on other material facts.
86.6 Ld. Counsel for the accused vehemently contended that no trap
had actually been laid and all the exhibits including the currency notes, and
hand washes have been conveniently planted by CBI in collusion with the
complainant in order to falsely implicate the accused in this case.
86.7 He submitted that the accused was called to Tis Hazari Courts
deceitfully by the complainant on 20.05.2019, she was overpowered by CBI
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officials, who were in plain clothes and was taken to CBI Office.
86.8 It is his submission that no transaction of bribe money had
taken place at that spot between accused & complainant, as alleged. He
argued that the prosecution case is totally unbelievable for various reasons.
86.9 He further submitted that there are vital missing links in the
prosecution case which go to its root. He pointed out that the Malkhana
Incharge and the person who had taken the exhibits to CFSL have not been
examined and the malkhana register also has not been proved which creates
an impression that the exhibits had been tampered with either in the
malkhana or on the way from malkhana to CFSL.
86.10 The Ld. Counsel further submitted that the CBI officials have
not adhered to their own CBI Manual which lays down the procedure while
conducting trap proceedings.
86.11 He pointed out that there is no evidence to show that the trap
team members offered their search to the accused before recovering tainted
money. He also pointed out that the trap proceedings were not videographed
or photographed as required under Rule 14.16 of CBI Manual
86.12 Learned defence counsel further submitted that the necessary
ingredients to prove the offence are missing therefore the offence alleged
against the accused has not been proved from the testimony of witnesses
examined by the prosecution.
86.13 Ld. Defence Counsel submitted that the complainant has lodged
a false complaint against the accused only due to enemity as the accused
was investigating officer in the cases registered against the two brothers of
accused in the same police station for commission of offence of Rape.
86.14 The Ld. Counsel argued that there is no evidence on record to
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show that accused had infact demanded bribe from the complainant and in
the absence of such demand which is sign qua non of the offences U/s 7 of
PC Act, no finding of guilt can be given against the accused.
86.15 He further argued that the report of CFSL cannot be relied upon
for the reason that CFSL New Delhi has not been notified by the
Government for giving opinion on electronic evidence.
86.16 He also assailed the report of CFSL on the ground that witness
was not competent to conduct voice examination in the absence of any
specialized training in this behalf and that the DVR, in which the telephonic
conversation is stated to have been recorded, was not sent to CFSL
alongwith the memory cards.
86.17 The Ld. Counsel further stated that the material witness like
police official who allegedly stated to apprehend the accused on the spot
alongwith TLO, who also had taken part in the trap proceedings have not
been examined and therefore, adverse inference needs to be taken against
the prosecution in this regard.
86.18 The Ld. Counsel pleaded for the acquittal of the accused. He
has relied upon a catena of judgments to buttress his submissions.
87. In rebuttal, Ld. Senior PP argued that the guidelines contained
in CBI manual are only directory and not mandatory in nature and
therefore, non adherence thereof is not vital to the prosecution case when the
evidence produced on record establishes the guilt of accused.
87.1 He further submitted that even if independent witnesses and
complainant have not fully supported the case of prosecution on some
aspects, that does not create any dent in the prosecution case and their
evidence, if read as a whole, corroborates the version of the prosecution and
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the testimony of remaining witnesses.
87.2 He reiterated that the prosecution has successfully established
its case that accused had demanded bribe from the complainant and lateron
accepted the bribe amount of Rs. 40,000/- from him during the trap laid by
CBI, wherein she was caught red handed.
DISCUSSION / ANALYSIS :-
88. A lengthy arguments have been addressed by learned Sr.PP for
CBI as well as by the learned defence counsel, the number of judgments,
primarily governing law related to the alleged offence have also been cited
at bar in support of their respective claims and the same shall be dealt with
at the time of appreciation of evidence underneath in the judgement.
89. Section 7 of the Prevention of Corruption Act, 1988 is
reproduced hereunder:-
” Offence relating to public servant being bribed.-
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 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 dutyCBI Case No. 419/2019 62 of 107
CBI vs. Babitain 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.
………………..
90. Perusal of the Section 7, as reproduced here in above, reveals
that the essential ingredients of the offence envisaged therein are :-
(i) The accused is a public servant or is expecting to be a public
servant ;
(ii) He accepts or obtains or agrees to accept or attempts to obtain any
gratification other than his legal remuneration from any person ;
(iii) for himself or for any other person ;
(iv) as a motive or reward for doing or forbearing to do any official
act or for showing or forbearing to show any favour or dis-favour to
such person in the exercise of his official functions or for rendering
or attempting to render any service or disservice to the said person.
91. Indisputably, for constituting an offence under Section 7 of the PC
Act, 1988, the demand of illegal gratification is a sine qua non and for
arriving at the conclusion as to whether all the ingredients of the offence viz.
demand, acceptance and recovery of amount of illegal gratification have
been satisfied or not.
92. The court must take into consideration the facts and
circumstances brought on the record in their entirety. Mere recovery of
tainted money is not sufficient to convict the accused when substantive
evidence in the case is not reliable, unless there is evidence to prove
payment of bribe or to show that money was taken voluntarily as bribe.
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93. Mere receipt of amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard to demand and acceptance
of the amount as illegal gratification.
94. The offence u/s 7 of PC Act also stands committed even if the
public servant ‘attempts’ to obtain illegal gratification.
95. In the instant case, admittedly accused Babita was a public
servant posted as ASI PS Nabi Karim during the relevant time i.e. in the
month of May, 2019, and was investigating the two cases registered against
the brothers of complainant Mohd. Fazil i.e. (i) FIR No. 386/2018
registered on 09.11.2018 under Section 376 IPC against accused Aftab & (ii)
Case FIR No. 396/18 registered on 24.11.2018 under Section 376 IPC &
POCSO Act against the accused Shadab at Police Station Nabi Karim,
There is no dispute to the said fact.
96. Before proceeding further, a useful reference be made to the
judgment of Constitutional Bench in the case titled as “Neeraj Dutta Vs
State (Govt. of NCT of Delhi), 2022 SCC OnLine SC1724″, wherein the
Hon’ble Supreme Court laid down the guiding parameters regarding proof
of demand and acceptance, not only by direct evidence but also by
circumstantial evidence, and had also given interpretation to the words
‘obtains’, or ‘accepts’, or ‘attempt to accept’, and all other essential
ingredients to make out an offence u/s 7, 13 (1) (d) r/w section 20 of the P.C.
Act.
97. The relevant excerpts of the Constitution Bench judgment is
reproduced here :-
” 88.4. (d) In order to prove the fact in issue,
namely, the demand and acceptance of illegalCBI Case No. 419/2019 64 of 107
CBI vs. Babitagratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver
without there being any demand from the public
servant and the latter simply accepts the offer and
receives the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the
public servant.
(ii) On the other hand, if the public servant makes
a demand and the bribe-giver accepts the demand
and tenders the demanded gratification which in
turn is received by the public servant, it is a case
of obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Sections
13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by
the bribe giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words, mere
acceptance or receipt of an illegal gratification
without anything more would not make it an
offence under Section 7 or Sections 13(1)(d)(i)
and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to
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bring home the offence, there must be an offer
which emanates from the bribe-giver which is
accepted by the public servant which would make
it an offence. Similarly, a prior demand by the
public servant when accepted by the bribe-giver
and in turn there is a payment made which is
received by the public servant, would be an
offence of obtainment under Sections 13(1)(d)(i)
and (ii) of the Act.
88.5. (e) The presumption of fact with regard to
the demand and acceptance or obtainment of an
illegal gratification may be made by a court of law
by way of an inference only when the
foundational facts have been proved by relevant
oral and documentary evidence and not in the
absence thereof. On the basis of the material on
record, the court has the discretion to raise a
presumption of fact while considering whether the
fact of demand has been proved by the
prosecution or not. Of course, a presumption of
fact is subject to rebuttal by the accused and in the
absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns
“hostile”, or has died or is unavailable to let in his
evidence during trial, demand of illegal
gratification can be proved by letting in the
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evidence of any other witness who can again let in
evidence, either orally or by documentary
evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate
nor does it result in an order of acquittal of the
accused public servant.
88.7. (g) Insofar as Section 7 of the Act is
concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that the illegal gratification was for
the purpose of a motive or reward as mentioned in
the said Section. The said presumption has to be
raised by the court as a legal presumption or a
presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20
does not apply to Sections 13(1)(d)(i) and (ii) of
the Act.
88.8. (h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in sub-para
88.5(e), above, as the former is a mandatory
presumption while the latter is discretionary in
nature.”
Appreciation Of Evidence :-
98. The legal position qua appreciation of evidence in trap cases
was summarized by the Hon’ble Madras High Court in ‘K.P.Kolanthai VsCBI Case No. 419/2019 67 of 107
CBI vs. BabitaState By Inspector of Police in Crl. Appeal no. 693 of 2008 decided on
09.08.2019’ in Para 12, wherein the Hon’ble High Court observed that : –
(i) To succeed in such a case, the Prosecution is obliged to prove the
demand of bribe before and at the time of trap, its acceptance and the
recovery of tainted money.
(ii) The demand can be proved by testimony of the complainant as
well as from the complaint made by him and other witnesses, if
proved in accordance with law and if it is corroborated in material
particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the
tainted money i.e. the money tendered as bribe money is recovered
from the possession of the accused, which presumption, of course, is
rebuttable under Section 20 of the Prevention of Corruption Act,
1988.
(iv) If the accused gives some defence, that can be scrutinized by the
test of preponderance of probability, while the Prosecution must
prove its case beyond all reasonable doubt.”
99. The genesis of a trap lies in the previous demand of bribe made by
the accused from the complainant, which becomes the basis of laying a trap
by the investigating agency. Then, it is for the Prosecution to, again, prove
the demand at the time when the trap was laid and thereafter, the question of
acceptance and recovery of bribe money also is required to be proved
beyond all reasonable doubts.”
100. Keeping these principles in the backdrop, now I proceed to
examine the evidence so adduced on record.
Demand, If Proved ? - No
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Complaint & Initial demand :-
101. It is the case of the prosecution that accused Babita had
demanded a sum of Rs. 50,000/- as bribe money from the complainant
Mohd. Fazil to favour his brothers, who were in judicial custody in a
Rape/POCSO cases of PS Nabi Karim, which were being investigated by
accused Babita ASI herein.
102. The complainant PW-1 Mohd. Fazil did not support the case of
prosecution wherein he has denied any demand of bribe money being made
by the accused ASI Babita to him.
103. PW-1 has also denied the contents of the initial complaint Ex
PW1/1 which is stated to have been made to the CBI, and which was the
genesis for further proceedings i.e. the Verification and Trap Proceedings
undertaken by the CBI.
104. Raising doubt over the veracity of the said complaint Ex
PW1/1, PW-1 deposed in the court that originally he had given a complaint
running into two-three pages under his own handwriting to the CBI officials
on 16.05.2019. The same was discarded by the CBI official. And thereafter,
he wrote another one page complaint on the dictation of CBI official which
was exhibited as Ex PW1/1.
105. In the cross-examination conducted by learned Sr.PP for CBI,
PW-1 deposed that his initial complaint of 2-3 pages was changed by CBI
official and the name of the then SHO Insp. Ram Niwas was got removed
from it.
106. He in fact deposed that he had made a call to ASI Babita and
reached Police Station on 16.05.2019 and showed her CD & Affidavit,
which were in favour of his brother and required to be submitted before the
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concerned POCSO Court at Tis Hazari Courts, Delhi, where the case of his
brother was pending trial.
107. Further, the case put up by the prosecution, in terms of
complaint exhibited as Ex PW1/1, is that accused Babita ASI had come to
the shop of the complainant and demanded a sum of Rs. 50,000/- for herself
and Rs. 2,00,000/- for Baby Afsa (Prosecutrix in POCSO case), and assured
the complainant that she would make Baby Afsa resile from her statement
before the POCSO Court, is also contradicted by the transcripts Ex PW1/10
and audio recordings of the day of trap at Tis Hazari Courts Complex in
DVR Ex PW1/8.
108. It is evident from the said conversations/transcripts ExPW1/10
(colly.), relied by the prosecution, that complainant Mohd. Fazil (PW-1), his
known one Sh Kasim and some other persons were accompanying the
prosecutrix themselves to the Court and assuring the accused Babita that
prosecutrix Baby Afsa would change her stance and not support the case of
prosecution.
109. On the queries raised by the accused Babita w.r.t. some CD’s of
the crime scene of the said case, the complainant (PW-1) and said persons
are even assuring her that prosecutrix would deny the same.
110. Since the regular learned PP was on leave and there was
apprehension of a long adjournment in the matter, accused Babita can also
be heard telling the complainant party ” chal PP wala kaam main karungi,
main samjha doongi kya kaya bolna hai”.
111. Accused Babita is herself asking complainant (PW-1) and his
other known persons to make her speak to Baby Afsa and their counsel so
that she could apprise them about the statement since the concerned PP was
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CBI vs. Babita
on leave.
112. The complainant herein Mohd. Fazil and his known persons i.e.
Mr. Kasim and some other persons, whose identity is not reflected by name,
appears to be managing the prosecutrix in the said POCSO case on their
own, and the Prosecutrix also seems to be under their control and influence,
as is evident from the Transcripts of the Trap Proceedings (running page 14
of transcript file no. 190520 – 1040, page -3.) Ex PW1/10 (colly.).
113. The foundations of the prosecution case are itself shaky. It is
not the case as put forth in the complaint or by the prosecution in the charge-
sheet that accused Babita had demanded the money to make the prosecutrix
resile from her statement.
114. The basis of the case that accused Babita herein had demanded
bribe money for herself and for prosecutrix to make her hostile/resile from
her statement in POCSO case raises strong doubt over the ‘demand’ of bribe
money by the accused Babita in the given facts.
Verification Proceedings :-
115. Verification proceedings were conducted on 17.05.2019 by the
agency on receipt of a complaint Ex PW1/1 from Mohd. Fazil.
116. PW-1 Sh. Mohd. Fazil deposed with respect to him meeting the
CBI officials at about 9:30 am or 10:00 am on that day, and thereafter going
to Tis Hazari Courts with the DVR, containing the Memory card, in
Switched ON Mode, on the asking of accused ASI Babita as per telephonic
call made from the CBI office by the complainant to her.
117. He stated that he met accused Babita in front of Room No.116,
First Floor, Tis Hazari Courts and discussed about the CD and the Affidavit,
which were in support of his brother Shadab, accused in Case FIR no.
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CBI vs. Babita
396/2018 PS Nabi Karim.
118. PW-1 stated that accused then informed him that the public
prosecutor was not available as he had gone to offer ‘ Namaj” it being
Friday,’and asked him to come again for meeting on Monday. During his
conversations with the accused the DVR was in a Switched ON Mode.
119. The verification report dated 17.05.2019 (D-2) bearing his
signatures at point ‘A’ was prepared in the CBI office and exhibited as Ex.
PW-1/2 (colly).
120. Herein also, he has not deposed anything incriminating against
accused Babita to say that she had ‘demanded’ any bribe money from him, if
at all, during the said Verification proceedings.
121. PW-8 Sh. Tejendra Sharma was the independent witness, who
had accompanied complainant (PW-1) to Tis Hazari Courts during
Verification proceedings on 17.05.2019, and was directed by the Verification
Officer to remain close to the complainant and try to over-hear his
conversations with accused Babita.
122. He deposed that on reaching Tis Hazari Courts, Delhi,
complainant (PW-1) met accused Baibta in front of Court Room no.116,
where they had some discussions, but PW-8 deposed specifically that he was
not able to hear the conversation that had taken place between the
complainant and the accused Babita at that time, as it was very crowded and
there was lot of noise in the corridor in front of the court room.
123. PW-8 admitted in the cross-examination at that time that there
were lot of public persons and litigants outside the said court room including
female advocates and litigants.
124 He also admitted that accused, besides having the conversations
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with complainant, had also spoken with one more lady advocate who had
come there outside the court room.
125. Further, in his examination-in-chief, PW-8 stated that
complainant after meeting accused Babita during verification proceedings
told us that “accused Babita was demanding a sum of Rs. 50,000/-, but since
court lawyer had gone to offer Namaz, the deal was not finalized”.
126. Contrary to that, PW-8 during cross-examination admitted that
after reaching back to the CBI Office on 17.05.2019, complainant (PW-1)
had told the Verification Team members that he was not able to have clear
conversations with accused in the Tis Hazari Courts regarding the ‘demand’
of bribe.
127. PW-8 stated that complainant again made a call to accused
Babita at around 12:30 to 12:40p.m from the CBI office after coming back
from Verification proceedings, as per the instructions of the CBI officials, to
fix a time for meeting and further discussions with her in that regard.
128. The fact of making the call after coming back to the CBI office
is also contradicted by his earlier statement, wherein PW-8 stated that the
complainant after meeting accused informed them at Tis Hazari Courts
Complex itself that ‘Monday’ has been finalized for meeting the accused,
and then they all came back to CBI office.
129. So, PW-1 has not stated about the demand being made by
accused during the verification proceedings and PW-8 (independent witness)
testified that he was not able to hear the conversation between them. There
is no ocular testimony on record to prove the factum of ‘demand’ of bribe
money by accused even at the time of Verification Proceedings.
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Audio Recordings And Transcripts Of Verification Proceedings :
130. The law governing the admissibility of Audio/Tape Recordings
and its evidentiary value is well established.
131. A useful reference can be made to the landmark judgment of the
Hon’ble Supreme Court in a case titled as Ram Singh Vs. Col Ram Singh
1985 (Supp.) SCC 611, wherein the Hon’ble Supreme Court after discussing
the case law has laid down that ” a tape recorded statement is admissible in
evidence subject to the following conditions :-
(1) The voice of the speaker must be identified by the maker of the
record or other person recognizing his voice. Where the maker is
unable to identify the voice, strict proof will be required to determine
whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape-recorded statement must be proved by
the maker of the record by satisfactory evidence : directed or
circumstantial.
(3) Possibility of tampering with, or erasure of any part of, the tape
recorded statement must be totally excluded.
(4) The tape-recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe
or official custody.
(6) The voice of the particular speaker must be clearly audible and
must not be lost or distorted by other sounds or disturbances.
132. A profitable reference can also be made to other judgments of
the Hon’ble Supreme Court governing the issue at hand namely (i) Yusuffali
Esmail Nagre Vs. State of Maharashtra 1967 SCC Online SC 87 ; (ii) N. Sri
Rama Reddy Vs. Shri V.V. Giri 1970 (2) SCC 340 ; (iii) Mahabir Prasad
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Verma Vs. Dr. Surinder Kaur (1982) 2 SCC 258 and (iv) R.M. Malkani Vs.
State of Maharashtra 1972(2) SCR 417.
133. In nut shell, the ratio of these judgments is that tape recorded
conversation is admissible in evidence to corroborate the evidence of the
witnesses who had stated that such conversations had taken place.
134. Before relying upon the audio recordings – the time & place and
accuracy of the recordings must be proved by competent witness ; the voice
must be properly identified ; the court must also rule out any tampering of
the record ; there should not be any element of duress, coercion or
compulsion ; and the statements should not have been extracted in an
oppressive manner or by force or against the wishes of a persons against
whom such conversation is to be used.
135. Previous statement made by a person and recorded on tape can
be used not only to corroborate previous evidence in the court but also to
contradict the evidence given before the court as well as to test veracity of
the witness and also to impeach the impartiality .
136. So, the tape recorded conversations can only be used as a
corroborative piece of evidence of conversations deposed by any of the
parties to the conversations, and in the absence of evidence of any such
conversations, the tape recorded conversations is indeed no proper evidence
and cannot be relied upon.
137. Firstly, with respect to Audio-recordings of the Verification
Proceedings dated 17.05.2019 Mark Q-1, (PW-1) Mohd. Fazil was not able
to identify any of the voices so recorded in the said Memory Card as there
was huge background noise and voices of different persons including voice
of 2-3 female advocates having conversation with accused Babita in
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between.
138. Secondly, the audio of the Q-1 (SD memory card) was of very
poor quality, difficult to identify the voices and the speakers thereto with the
normal audio device. A lot of focus and concentration with no disturbance
around was required to decipher the words of the conversations in the audio
recordings, and that also, only at some instances and not the whole
conversation.
139. Thirdly, there is also doubt over the proper and safe custody of
SD memory card ‘Q-1’ wherein the conversations between the complainant
and the accused were recorded during the Verification proceedings on
17.05.2019.
140. The Verification officer Sh. Raj Saurabh Shukla (PW-19)
deposed that after taking the transcripts of the audio recordings of the
verification proceedings, the memory card was put in a plastic cover along-
with its original packing. It was then put in a brown envelope, by marking it
‘Q-1’, and kept in safe custody of Malkhana CBI.
141. Whereas, TLO Ms Veer Jyoti (PW-17) deposed that she had
taken the Verification audio recordings marked as ‘Q-1’ alongwith
Verification report from the Verification Officer Sh. Raj Saurabh (PW-19)
on 20.05.2019, and not from the Malkhana, CBI.
142. She admitted that she did not inquire as to why Verification
Officer (PW-19) had not deposited the said ‘Q-1’ in the Malkhana of CBI.
She was also not in a position to state in whose custody the said audio
recordings ‘Q-1’ remained till it was handed over to her by the Verification
Officer on 20.05.2019, before Trap proceedings.
143. Ms. Veer Jyoti, TLO (PW-17) conceded that whenever a case
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property is deposited in the Malkhana, it is received by the Malkhana
Incharge against a memo by putting his stamp on the same, or may be by
affecting an entry in the Malkhana Register maintained there.
144. PW-17 admitted that there are no signature of the Malkhana
Incharge on the said Verification memo, nor the stamp so affixed there bears
the date when ‘Q-1’, if at all, was deposited in the Malkhana or as to when
the stamp was affixed thereto.
145. PW-17 further conceded that she did not verify the GD entry
register if any entry related to Verification proceedings or preparation or
seizure of ‘Q-1’ was made in the GD entry register or not.
146. The Verification Officer Sh Raj Saurabh (PW-19) also admitted
during his cross-examination by Defence Counsel that ‘Q-1’ is a case
property in the present case, but he was evasive on the question if he had
deposited the recordings of the ‘Q-1’ with Malkhana or not, contradicting
his earlier statement that ‘Q-1’ was deposited in Malkhana by him.
147. The investigating Officer, Sh. Satish Bana (PW-21), was also
evasive on the questions if he had verified from the GD Register about the
entries of case properties in the Malkhana, if so, effected by Verification
Officer Sh. Raj Saurabh.
148. IO (PW-21) admitted that he did not take the copy of any
register maintained by Malkhana Incharge, or the Caretaker Incharge for
that matter, nor did he inquire from Verification Officer Sh. Raj Saurabh as
to why he had not deposited ‘Q-1’ with the Malkhana Incharge, or as to
where he had kept, or in whose possession, the said audio recordings ‘Q-1’
were, during this interregnum period, till the time it came into the hands of
TLO (PW17) on 20.05.2019.
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149. Fourthly, the Complainant stated that the transcripts of the
Verification proceedings Ex PW1/7 (colly.) were got signed by him without
the voices/audio recordings being put to him by CBI officials.
150. The transcripts of Verification proceedings are Ex PW-1/2 and
Ex PW1/7 (D-2 & D-2A) respectively.
151. Fifthly, verification proceedings / Transcripts does not
specifically indicate that accused had demanded the bribe amount or had
agreed to accept bribe of Rs. 50,000/- with certainty.
152. During the conversations, whatever is identifiable from the
audio recordings, it is the complainant himself who is stating that “maine
kaha bhai se ki zmadam ke liye 50 ka intzam karna ….. , …..2 ka to intzam
ho gaya… PP ke to maine bataye hi nahi they …. .”, to which the accused
replied that “ke PP ke main apne se de doongi.”
153. One may argue, in terms of this conversation, that accused
Babita has agreed to the offer of Rs. 50,000/- so made by the complainant to
her, but there is nothing thereafter to prove that there was a ‘demand’ on the
part of accused Babita, and/or the acceptance of said bribe money on her
part during the trap proceedings, as discussed in the later part under heading
Trap Proceedings, to even bring out a case of “Acceptance” in terms of
Neerj Dutta ( Supra).
154. Moreover, as noted above, the audio recordings are of poor
quality, difficult to clearly make out the conversations ; and importantly
there is no oral testimony to support the said conversations of the audio
recordings.
155. Sixthly, the context and for what favour this amount was
offered by the complainant is completely missing from the said references in
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the conversations , even if, taken it to be the offer of bribe money.
156. Audio Conversation does not reflect that this amount was to be
given for dishonest or fraudulent performance of her official duties, one of
the essential ingredients of Section 7 of P.C Act, 1988. These conversations
can not be read in isolation to arrive at any finding thereto against accused
Babita.
157. This fact is also substantiated from the Verification memo Ex
PW1/2 (colly.) D-2 dated 17.05.2019, wherein the Verification Officer
(PW-19) has himself mentioned that (at page no.2 ; 3 rd line from bottom)
“the complainant further stated that she agreed to accept bribe amount of
Rs. 50,000/-“, which makes it abundant clear that the ‘demand’ of money
has not emanated from accused Babita.
158. Reiterating, it is the complainant (PW-1), who himself is
informing the accused, during the stated discussions, that he has asked his
brother to make arrangement of money for her, and there is nothing in the
said recorded conversations to reflect that accused had demanded the money
from the complainant, or to say she had agreed to accept the bribe money,
to give any favour to the complainant or to his brother in any case
whatsoever, as nothing is discussed in that regard, or to say to get Baby
Afsa resiled from her statement as a motive or reward.
159. Seventhly, even though there are some references about money
in the recorded conversations/transcripts Ex PW1/7 & ‘Q-1″, but reading the
same in the light of the judgments K.P. Kolanthai (Supra), it is difficult to
concede to the arguments of learned Sr. PP that the ingredients of the
offence under Section 7 of P.C.Act are made out simply on the basis of
Verification Proceedings, even taken on its face value.
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160. I must say that the verification proceedings are in the form of
preliminary inqury and can not be the sole basis to bring home the guilt of
the accused under Section 7 of P.C. Act in absence of demand/ acceptance or
obtainment so proved subsequently at the time of trap proceedings.
161. Prosecution is required to prove ‘demand’ of bribe before and at
the time of trap, its acceptance and the recovery of tainted money, which
agency has failed to do so as discussed underneath.
Trap Proceedings :- ‘Demand’ & Acceptance – Not Proved. Recovery also
Doubtful:-
162. As noted earlier, complainant PW-1 has specifically denied
accused Babita having demanded any money from him even on the day of
trap proceedings so conducted on 20.05.2019 at Tis Hazari Courts Complex.
163. He testified to the extent that CBI Officials had asked him to
handover the tainted money to the person who had come to his shop in civil
clothes alongwith accused Babita, and if the said person was not seen, then
to handover the tainted money to ASI Babita.
164. Complainant (PW-1) deposed that he had gone to Tis Hazari
Courts to meet accused Babita to hand over the CDs and Affidavit, which
were in favour of his brother, so that the documents could have been placed
on judicial record before the concerned POCSO Court.
165. Complainant Mohd. Fazil (PW-1) deposed that on the day of
trap proceedings the tainted money was kept in his front left side shirt
pocket in which the DVR was also kept, and thereby, the shirt pocket got
puffed, and the said tainted money/currency notes were then taken by one of
the CBI Official, who had kept those currency notes to himself, prior to
them (raiding team) reaching court No. 116 at Tis Hazari Courts Complex
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on 20.05.2019.
166. PW1 deposed that when he was standing with accused Babita in
front of the Lift (ground floor), he had asked her to receive the CD and other
papers which were to be placed on record before the Court concerned, but
she did not take those documents as the Public Prosecutor was on leave.
167. PW-1 deposed that accused Babita had left from the spot ( Lift
no. 1 GF) asking him to keep the documents ready, and lateron, when he
was coming down the stairs, he heard some commotion and came to know
that accused Babita has been arrested.
168. PW1 has denied the factum of any ‘demand’ of money by
accused Babita and/or him handing over the tainted money to her when they
were standing in front of lift No. 1 (ground floor), the place where the
transaction of bribe money took place in terms of the prosecution case.
169. Complainant(PW-1) failed to identify any of the voices in the
audio recordings of the day of trap proceedings when it were played before
him during his examination in the court citing huge background noise and
other voices not identifiable.
170. He again stated that the transcripts of the conversations of the
day of trap were got signed from him by the CBI officials without the audio
recordings played before him.
171. Complainant (PW-1) was declared hostile by the prosecution,
and during his cross-examination by learned Sr.PP, he (PW-1) reiterated that
“accused did not make demand from me of any bribe/gratification in lieu
favouring his two brothers against whom two cases were registered” .
172. He denied the suggestion that on demand of bribe money by
accused with gestures, he had kept the amount of Rs. 40,000/- in her pink
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file near the lift, or that he gave a missed call on the mobile of TLO, a pre-
decided signal to inform about the transaction of bribe money.
173. In the cross-examination by defence also, complainant (PW-1)
reiterated that accused Babita had not demanded any money from him nor
had he given any money to her.
174. Sh. Tejendra Sharma (PW-8) and Sh. Ram Prasad (PW-12)
were the independent witnesses, who were part of the trap team, and had
accompanied complainant (PW-1) & CBI officials to Tis Hazari Courts
Complex on the day of trap.
175. PW-8 deposed regarding the pre-trap demonstration
proceedings, wherein he stated that GC notes in the sum of Rs. 40,000/-
were produced by complainant Mohd. Fazil, and after noting down their
serial numbers and after applying some P. powder, it were kept in the left
side pocket of the shirt of the complainant.
176. He stated that he remained present in front of Court no. 116, Tis
Hazari Courts Complex with other independent witness Sh. Ram Pd
(PW-12), two female officials of CBI and the complainant Mohd. Fazil
(PW-1) ; that complainant and accused had some conversation, and
thereafter, taking left & right turn, they both took stairs and came on the
ground floor of the court premises.
177. PW-8 Sh Tejendra Sharma deposed that he alongwith Sh. Ram
Pd. (PW-12) had followed the accused and complainant (PW-1) and were at
a short distance behind them on the stairs.
178. But importantly, PW-8 has testified that he was not able to hear
the exact conversation that took place between complainant and accused as
it was crowded and there was lot of noise in the court premises at that time.
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179. PW-8 deposed that he saw, as he could decipher from the body
language of accused, that accused had asked the complainant to put the
money in the file which she was carrying with her, and the complainant
thereafter had taken out the currency notes from his shirt pocket and kept the
same in the file of accused Babita.
180. The facts deposed by PW-8 Sh. Tejendra Sharma are
contradicted by the testimony of other independent witness Sh. Ram Prasad,
examined as PW-12, who has stated that he was left behind on the stairs at a
distance of about 15 steps or so, and PW-8 Sh.Tejendra Sharma was ahead
of him.
181. PW-12 in-fact admitted that no conversation between the
complainant and the accused took place in his presence. He stated that when
he came down-stairs a large number of persons had gathered in front of a
lift, or may be in front of some gate, there was lot of noise and accused
Babita was heard saying “maine kuch nahi kiya hai”, and one file was lying
on the ground when he reached there.
182. His statement to this effect is also contrary to the relevant
CCTV Footages wherein he is not seen anywhere around the lift or the stairs
when the alleged transaction of money took place, nor the accused was
apprehended in front of said lift thereafter as per the case of prosecution.
183. PW-12 Sh. Ram Prasad was declared hostile on limited points
wherein he was cross-examined by learned Sr. PP thereafter but in the cross-
examination also PW-12 deposed to the fact that the complainant did not
handover the alleged money to the accused in my presence …… “.
184. During cross-examination by the learned defence counsel,
PW-12 reiterated to the fact that “it is correct that I had not heard any
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demand of bribe by accused Babita from the complainant in any case in any
manner whatsoever nor had I seen any transaction of acceptance of bribe or
money of accused between the accused and the complainant”.
185. PW-12 was also not aware if the complainant was present at the
spot where the tainted money was lying on the floor when he reached there.
186. PW-12 even states that after accused was apprehended, she was
directed by the CBI officials to touch the file and currency notes, or may be
the currency notes were also rubbed with her chunni, raising serious cloud
over the veracity of the proceedings i.e. hand washes of accused etc., so
conducted by the CBI officials on the spot and its consequent result of
change of colour-pink to handwashes thereto. And interestingly, the said
‘Chunni’ was neither seized nor its wash was taken by the CBI officials.
187. Here, it is worth mentioning that most of the facts deposed by
PW-8 Sh. Tejinder Sharma about him being close to accused and
complainant, and / or him being in the vicinity, and / or him seeing accused
and complainant on the ground floor, and/or accused from the body
language asking the complainant to put the money in the file, and/or
complainant thereafter putting the money in the file of accused Babita are
also belied and contradicted by the CCTV footages of the area i.e. Ground
floor Lift area when analyzed alongwith CCTV footages of first floor stairs,
(part of Ex PW4/5) which are relied upon by the prosecution itself in
support of its case.
188. PW-8 Tejendra Sharma is no-where seen near the accused and
the complainant, nor on the stairs leading to the lift on the ground floor, nor
anywhere near the stairs on the first floor when the transaction of tainted
money is stated to have taken place between accused and the complainant in
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front of the lift at around 11:04:44 a.m. [CCTV Footage of ground floor
near room no.1 ( Ex PW4/5)]
189. Infact, both PW-8 & PW-12 are seen on the first floor roaming
around at the time, when the stated transaction took place on the ground
floor in front of lift. They both can be seen on the first floor near lift till
11:05:28-29 am, at a distance away from stairs, and taking the stairs only at
11:05:54-55 am to come down, after TLO and other CBI Officials. (CCTV
Footage, First Floor, Room No. 104)
190. His (PW-8 ) fact of discerning from the body language of
accused Babita to the ‘factum of demand’ is also contradicted by the
deposition of TLO (PW-17) and other CBI officials, and the case of the
prosecution in terms of the charge-sheet/Trap Memo, wherein it is stated
that accused Babita had demanded the bribe money through ‘gesture by
hand’.
191. The testimony of PW-8 and PW-12 is further doubtful, as they
testified that after the tainted money/G.C notes were put in the file of
accused Babita in front of the lift at Ground Floor and lateron she dropped
them stating “maine nahi liya hai” when challenged by the TLO, and that
entire team was present there at the time when the bribe money was dropped
by the accused Babita.
192. The fact of apprehension of accused Babita in front of the lift is
also contrary to the case of the prosecution so put up, wherein prosecution
claims that after taking the tainted money accused Babita had gone in the
Corridor, as reflected in the CCTV Footage ( CCTV footage of ground floor
room no.3), and was apprehended in front of Court Room no. 8.
193. And surprisingly, the CCTV Footage of the said spot of the
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Corridor in front of Court No. 8 was not obtained by the investigating
officer for reasons best known to him.
194. These facts deposed by them are further contrary to the facts
reflected in the relevant CCTV footages of the area.
195. The CCTV footage of ground floor room no.1 reflects that at
around 11:05:14 am accused is seen moving towards the corridor and the
complainant (in check shirt), after taking few steps towards the corridor, is
seen going upstairs. At that time complainant was seen talking to some
other persons rather than giving any pre-decided signal of rubbing his hands
over his face or shouting “maine paisa de diye hain or kaam ho gaya hai”.
196. It is only after a considerable time that independent witnesses
PW8 & PW-12 are seen coming down the stairs and walking leisurely and
then towards the said corridor alongwith one CBI official, wherein one
female CBI officer (Ct. Suman Manjoo) is also seen present and waiting for
them near the Lift.
197. The CBI Official in Blue Shirt, who is seen running to the first
floor, appears to have gone there to call the independent witnesses and the
complainant after apprehension of accused Babita in the Corridor.
i.e. as reflected in CCTV Footage, GF, Lift No. 1: –
– At 11:06:14 am PW-8 & PW-12 are seen coming down the stairs
to the ground floor, and remained there on the stairs for about 2-
3 seconds, and thereafter they both are seen going upstairs, in the
direction to which one CBI official in Blue Shirt (Sh. Raj Saurabh) is
seen running.
– At 11:07:24 am one female CBI Official (Ct. Manju) seen coming
down the stairs in front of the lift at ground floor, waited for few
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seconds, and then going in the Corridor at 11:07:31-32 am
– At 11:07:26-28 am PW-8 & PW-12 are seen leisurely coming down
the stairs to the ground floor with one CBI Official , and then rushing
towards the Corridor at around 11:07:40 am, in the direction in which
accused and thereafter TLO had gone.
198. In between that, complainant in fact is seen going upstairs on
the first floor (11:06:11-14 a.m.) and coming back on the ground floor near
the Corridor after a long gap of about three minutes or so (11:08:07 a.m).
i.e.:-
– At 11:5:30 am complainant is seen walking towards the
Cooridor entry of the Corridor and then seen coming back at around
11:06:07 am.
– At 11:06:11 the blue shirt official is seen rushing back and
headed towards stairs, complainant is also going after him.
– At 11:08:00 am Blue Shirt CBI Official (Sh. Raj Saurabh) and
then at 11:08:04-06 complainant alongwith one more CBI Official are
seen hurriedly coming down the stairs. (CCTV Footage of
ground floor near room no.1 (Ex PW4/5).
199. Next, analyzing the CCTV Footage of first floor leading to the
stairs, Room No. 104, it is reflected that :-
– At 11:06:21 am CBI Official (who was in Blue Shirt) seen
running up the stairs and to the first floor.
– Both PW-8 & PW-12 are seen coming back on the first floor
through the same stairs at 11:06:38-41 am.
– one female CBI Official, after standing there on first floor for
some time, is seen taking the stairs to the ground floor at 11:07:05CBI Case No. 419/2019 87 of 107
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– PW-8 & PW-12 are seen again taking the stairs and going down
after the said female CBI Official at 11:07:13 am.
– Complainant is seen on the first floor taking the stairs
alongwith one CBI Official (Blue Shirt) at 11:07:54-55 am.
200. All these facts so reflected in the CCTV Footages were
admitted by PW-8 Sh. Tejendra Sharma during his cross-examination dated
29.03.2023, when the CCTV footages were put to him by the Ld. Defence
Counsel.
201. And significantly, prior to that, after accused Babita is seen
walking in the corridor, and only TLO Ms. Veer Jyoti and one more CBI
official are seen running in the corridor after accused Babita. i.e.
– At 11:05:15 am accused is seen walking in the Corridor at
Ground Floor.
– TLO and CBI Official in Blue Shirt (Insp. Raj Saurabh) seen
going in the Corridor behind the accused at 11:05:25 am.
– The Blue Shirt Official is seen rushing back heading towards
stairs and complainant after him at 11:06:11 am. (CCTV Footage,
Ground Floor, Room No. 3)
202. After reading and analyzing all these CCTV Footages, it is but
apparent that at that time when accused Babita was apprehended by TLO
Ms. Veer Jyoti (PW-17) in the Corridor of the Court Complex on the Ground
Floor, neither the independent witnesses nor the complainant Sh. Mohd.
Fazil were present at the spot.
203. So, the facts deposed by the independent witnesses and/or the
CBI officials showing the presence of independent witness at the spot when
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the accused is stated to have been apprehended in front of Court no. 8, Tis
Hazari Courts, Delhi are contrary not only to the footages shown in the court
but also to the testimony of independent witnesses PW-8 & PW-12.
204. Thus, appreciating the testimony of PW-1, PW-8 & PW-12 and
the CCTV footages of the area it is but difficult to say that the presence of
independent witnesses PW-8 and PW-12 is established at the spot near the
lift or near vicinity or within their visual reach at the time when the alleged
transaction of money took place between the complainant and accused.
205. The testimony of PW-8 & PW-12 does not inspire confidence
with regard to the facts deposed by them regarding the transaction of bribe
money and the spot where accused was apprehended and/or the recovery
was allegedly effected.
206. Further, TLO Ms. Veer Jyoti (PW-17) testified to the facts that
she was about ten stairs behind accused and the complainant when they
were having conversations in front of the Lift after reaching ground floor.
207. She deposed that accused Babita then opened the file, which
she was carrying in her hand, and with the gestures asked the complainant
for the bribe money ; the complainant then took out the bribe money from
the left shirt pocket and kept the same in the said file, which was in the
hands of accused Babita at that time.
208. Relying upon the judgment of Pradeep Narayan Vs. State of
Maharashtra (1955) 4 SCC 255 ; Tahir Vs. State (1996) 3 SCC 338 and
Ahir Raja Khima Vs. State of Saurashtra 1956 SC Vol. 217, Learned Sr.
PP had argued that CBI officials are competent and independent witnesses
and their testimony can not be read with suspicion merely because they are
Police Official or were part of the trap/raiding team, and if found
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trustworthy, then conviction can also be based upon their testimony.
209. It is submitted by the Ld. Sr. PP that PW-17 Ms. Veer Jyoti was
the trap laying officer and she witnesseth the demand of bribe money by
accused and thereafter its transaction/acceptance in front of the lift, and the
prosecution thereby is also able to prove the ‘demand’ and ‘acceptance’ by
accused Babita through her testimony in the present case.
210. There is no qualms to the said preposition of law and the
authorities cited at bar, but significantly during cross-examination learned
defence counsel confronted her about the aforesaid facts with her statement
under Section 161 Cr.P.C, wherein none of the said facts were recorded.
211. Nor was there any explanation forthcoming from Ms. Veer
Jyoti, TLO about the omission of said facts in her statement, which she
claimed that she had read when it was recorded by the Investigating Officer.
212. The said facts about Ms. TLO (PW-17) seeing the complainant
and accused in front of the Lift on the ground floor and the transaction of
tainted money in the file appears to be material improvement on her part to
cover up the lacunas in the case of prosecution, knowing well the fact that
complainant has not supported the case of the prosecution and there were
material contradictions in the testimony of independent witnesses qua the
manner in which the trap proceedings were undertaken.
213. The said facts admittedly were not stated by the TLO in her
statement u/s 161 Cr.P.C which are relevant and material omission, if at all,
she had seen it, to cast doubt over her deposition in that regard before the
Court, and not to mention that she is an experienced and senior officer of
CBI.
214. TLO Ms. Veer Jyoti is seen going down the stairs from the first
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floor at 11:04:53-54 am (CCTV FF, R.No. 104), but it is difficult to say as to
where she was standing and/or if she was able to see the alleged transaction
of crime, and much later in time to the accused Babita and complainant seen
having conversation in front of the lift at Ground Floor.
215. Her statement in that regard is also contradicted by the Site Plan
Ex PW1/6 (D-6) prepared by IO, wherein she is shown to be present on the
Ground Floor in front of the lift, and not on the stairs, at the relevant time.
216. Her fact about complainant giving a signal of transaction of
bribe money by rubbing his hand on the face and head is also not supported
by the testimony of complainant, nor by the independent witnesses, nor the
CCTV footages of the area.
217. Her deposition that Ct. Suman Manjoo caught accused Babita
by her left hand wrist and accused Babita handed over her black bag to
independent witness Sh. Tejendra Sharma and their presence on the spot,
where accused is stated to have apprehended, is also contradicted by the
testimony of independent witness and the CCTV footages.
218. The spot of apprehension of accused at the Court Complex is
further contradicted in terms of testimony of TLO and independent
witnesses.
219. In the CCTV footage of ground floor near Room No.1 (Part of
Ex PW4/5), PW-17 (TLO) Ms.Veer Jyoti and another official in Blue Shirt
are seen running in the corridor at around 11:05:25 am, whereas the
independent witness and other female CBI official were nowhere seen near
the lift or going towards the corridor in the direction to which accused
Babita was seen going at around 11:05:15 a.m. (CCTV footages ground
floor room no. 1 & at 11:05:23 am as reflected in CCTV GF R.No. 3 of the
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Corridor)
220. As noted earlier, the independent witnesses including the
female CBI official are seen coming down on the ground floor through the
stairs much later, may be after three minutes or so, from the time accused
Babita and thereafter TLO Ms. Veer Jyoti and the said male CBI official are
seen rushing in the corridor.
221. In fact, said male CBI official is seen running back alone from
the corridor and then seen climbing the stairs to reach the first floor of the
court complex, and it is only thereafter that these witnesses i e. independent
witnesses and some other CBI officials are seeing leisurely walking down
the stairs and then towards the corridor at 11:07:34 a.m., where the
prosecution claims accused was apprehended. ( CCTV footage GF R. no. 1).
222. Besides that, these witnesses also claimed the presence of
complainant at the spot when accused Babita was apprehended but his
presence is nowhere seen in an around the lift of the ground floor or him
moving towards the corridor at that time.
223 After meeting the accused Babita in front of the lift, complainant is
seen standing there on the ground floor and then taking few steps in the
corridor, but thereafter he is seen climbing back the stairs towards the first
floor at 11:06:11 am (CCTV GF R.No. 1).
224. Complainant thereafter is again seen coming back on the ground
floor through the same stairs, much after these independent witnesses had
reached the ground floor, and then moving towards the said corridor at
around 11:08:04-06 am. (CCTV footages in front of the Lift & GF near
R.No.1).
225 Implying thereby, except TLO Ms. Veer Jyoti, or may be some
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other CBI official, none of the independent witnesses and the complainant
were present when accused Babita is stated to have been challenged and
apprehended by the TLO for accepting the tainted money from the
complainant in the said corridor.
226. The statement of PW-17 (TLO) and other CBI official contrary
to the said facts about presence of independent witnesses and that of Ct.
Suman Manjoo at the time of apprehension of accused Babita are misleading
statements, contrary to the facts so revealed in the CCTV footages and
testimony of independent witnesses PW-8 and PW-12.
227. Further, PW-17 (TLO) specifically deposed that prior to leaving
for trap proceedings search of the complainant was taken by Sh. Tejendra
Sharma (PW-8), and except his mobile phone, no other article was permitted
to be kept by him.
228. TLO testified specifically that complainant was not carrying
any ploythene /polybag during the trap proceedings on 20.05.2019.
229. Witness PW-8 also stated that except the Mobile phone,
tainted money and the DVR, no other article was allowed to be kept by the
complainant. But during cross-examination, witness contradicted his earlier
statement and admitted that complainant was carrying one polybag with him
in Tis Hazari Courts Complex on the day of trap.
230. The said fact is also contradicted by the CCTV Footages
wherein complainant is clearly seen having one polybag/polythene in his
hands during the entire trap proceedings.
231. It is also surprising to see that the DVR and the tainted money
were kept in the same pocket, left side shirt, of the complainant which as
testified by independent witnesses was visibly bulky. So, any person would
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have simply noticed the DVR and the money so put in the shirt pocket of the
complainant on the bare glance.
232. There is no explanation or any other statement to show how,
when and where, the said polybag came into the possession of the
complainant when he was not permitted to keep anything in his possession,
except the mobile phone and the DVR, and he had remained present with
the raiding team throughout the trap proceedings.
233. All these contradictions and ambiguities cast a serious doubt on
the veracity of the trap proceedings so undertaken by the CBI.
Audio Recordings And Transcripts Of The Trap Proceedings :
234. As stated earlier, both the relevant audio recordings of
Verification (Q-1) and Trap Proceedings (Q-2) were not clearly audible as
there are lot of disturbances, other voices and loud noise in the background
of the said recordings, making it difficult to identify the speakers thereto.
235. There is also time gap in between the conversations. The
background noise in the audio recordings is quite high with voices of other
persons including some females thereto are audible in the recordings making
it difficult to identify the speakers with clarity.
236. The audio recordings/transcripts so prepared by the CBI qua the
conversation between the complainant and the accused though at some
places have references of “money” but there is no continuity and coherence
in the conversation between them to reach to any conclusion qua ‘demand’
and ‘acceptance’.
237. Further, it itself is the case of the prosecution that due to some
technical fault, the conversations during the trap proceedings got recorded
directly in the DVR (Mark Q-2) and not in the SD Card, which was inserted
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in the DVR for recording the conversations, and the prosecution has failed
to state anything about the technical fault or how it malfunctioned whereas,
prior to that all the recordings were carried out in the SD cards through the
same DVR.
238. Further, DVR (Q-2) had not initially played (opened) in the
laptop in the court during the testimony of complainant, and thereafter, it
was opened through a Fredee Machine and found to contain two empty
folders.
239. The Technical Expert/Asstt. Programmer of the CBI stated that
the shortcut file i.e. IC recorded exists in the device, and there might be
some hidden files in it.
240. He tried to clarify that may be the said relevant files got hidden
when the DVR was first tried to be played in the laptop through Write
Blocker or it could also be because of some Virus.
241. It was thereafter that Sh. Banwari Lal, Asstt. Programmer
through different commands was able to retrieve one folder by the name “F:
\_\REC_FILE\FOLDER01″ which contained five audio files, and further
stated that the Virus still exists in the DVR.
242. Further, when the DVR was played in the Court on 20.02.2024,
at the time of examination of PW-17 Ms. Veer Jyoti, the files stored thereto
including the relevant files did not open directly.
243. Some files were retrieved by the technical expert from the
hidden folders by using the system commands, and the relevant folder with
the name ” _(underscore)” when retrieved was found to contain
modification date 10.11.2021 at 23:41 so mentioned. Other files were also
found to have different modification dates, some that of the year 2013
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also.
244. Learned Sr.PP had submitted that no such modification dates of
the files were reflected in the recordings when it was played before the
Court on the first occasion, and the said discrepancy must have crept in the
files subsequently due to some technical issues, and therefore, it cannot be
said that the DVR is a tampered electronic record.
245. Assuming it to be so, but relevant to note is the fact that neither
the IO nor any other CBI official had recorded the ‘Hash Value’ of the
electronic record, nor was it taken by the CFSL experts PW-22 & PW-23 to
rule out the possibility of any tampering in the DVR/electronic records,
which is one of the important factor when the question of tampering /
manipulation of electronic record is under consideration.
246. Suffice to say that the discrepancies qua the modification date
and the storage of files do point to a fact that the DVR was not free from
technical malfunctioning and/or tampering and/or the virus, and in that case
it would be difficult to rely upon the said recorded audio files.
247. Not to mention that audio recordings and the transcripts are not
the substantive piece of evidence and can only be used as a corroborative
piece to the facts deposed by the witness, subject to its veracity, authenticity
and identification of the speakers thereto.
Nextly, Custody & Recordings in DVR (Q-2) doubtful :-
248. Verification officer Sh. Raj Saurabh Shukla (PW-19) deposed
that ‘Brass seal’ and the ‘DVR’ were handed over to the Independent
witness Sh. Tejendra Sharma (PW-8) after concluding the Verification
Proceedings on 17.05.2019.
249. Whereas, contrary to that, PW-8 Sh. Tejendra Sharma deposed (
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cross- examination dated 22.11.2022 page 1) that the ‘DVR’ and the ‘audio
recordings’ were sealed before him and deposited in the Malkhana by
calling another CBI official, and directions to deposit DVR and recordings
in the Malkhana were given in his presence.
250. And contrary to that, PW-17 (TLO), stated that the DVR
alongwith the Brass seal were taken from the independent witness during the
pre-trap demonstration proceedings.
251. Further contrary to that, PW-8 Tejendra Sharma testified that
the DVR and the new SD card were produced by CBI official during the
pre-trap demonstration proceedings.
252. Further, in the verification memo Ex PW2/1 (colly) dated
17.05.2019, it is mentioned by Sh Raj Saurabh (PW-19) that ‘DVR’ and the
‘Brass seal’ were handed over to independent witness PW-8 (Sh. Tejendra
Sharma) for safe custody under acknowledgment with directions to produce
as and when required for further proceedings.
253. But there is no acknowledgment of the DVR and / or of the
Brass Seal on behalf of independent witness as such, neither in the
Verification memo nor in any other handing over memo or other document
in that regard.
254. Custody of the DVR assumes significance in view of the fact
that all the conversations between complainant and the accused are stated to
have been recorded directly in the DVR due to some technical fault and not
in the SD card, whose blankness was ensured before the trap team by
playing it through the DVR. No such proceedings qua the DVR was
undertaken.
255. The question of ensuring blankness, its safe custody, and the
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veracity of the DVR, thereby is a serious lacuna in the case of prosecution,
wherein the defence has claimed that the audio recordings have been
fabricated and there was a technical fault and a virus in the DVR / files.
256. Further, the DVR was a vital piece of evidence through/in
which the conversations between the complainant & the accused and voice
of other independent witnesses were recorded and its custody during the
relevant period remains a disputed fact.
257. So, all these facts qua the safe custody of DVR (Q-2), and if it
remained in the possession of a private person (independent witness) for
three days and not deposited in the Malkhana it being the case property ; its
malfunctioning/technical fault wherein the relevant conversation during the
trap proceedings were got recorded in the DVR and not in the SD card ;
prior blankness of the DVR not ensured at the time of trap proceedings
dispute about the custody of DVR from 17.05.2019 to 20.05.2019 raises
strong suspicion qua the veracity of the DVR itself and the recorded
conversation thereto.
Discrepancies In The Site Plan Viz-A-Viz Oral Testimony :-
258. The Site Plan Ex PW1/6 (part of D-5) so prepared by the
Investigating Officer Inspector Satish Bana (PW-21) also does not support
the case of the prosecution in terms of the testimony of prosecution
witnesses PW-8, PW-12, PW-19 including that of TLO herself ( PW-17),
which further cast over the trap proceedings.
259. The presence of independent witnesses (PW-8 & PW-12) and
other members of the Team, who have been examined by the prosecution, is
shown on the ground itself in front of the lift (Room. no. 4) Cash branch
where the alleged transaction of tainted money took place.
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260. In contrary to that, all these witnesses have deposed to the fact
that either they were on stairs in front of lift or towards first floor, none of
them have stated that they were present on the ground floor in front of the
lift at the relevant time, when the complainant and the accused were having
some conversation in front of the lift.
261. TLO (PW-17) testified before the court that she was 10 stairs
behind them (the said fact was also not stated by her in her 161 Cr.P.C
statement when she was confronted by the learned defence counsel), and
contrary to that, in the Site plan ExPW1/6 her presence is shown at the
ground floor.
262. So there are material contradictions qua the presence of the
independent witnesses, CBI Officials including the TLO viz-a-viz their oral
testimony.
Hand Washes Raises Doubt :-
263. It is the case of the prosecution that the tainted money was kept
by the complainant in the pink file of the accused Babita which she was
carrying with her, and thereafter, on being challenged by the TLO, she had
thrown the pink file on the ground. Implying thereby that the accused had
not touched nor taken the tainted money with her own hands.
264. The additional facts of ‘rubbing/cleaning the hands with
chunni’ deposed by Ms.Veer Jyoti TLO (PW-17) & PW-8 Sh. Tejendra
Sharma are neither mentioned in the trap proceedings Memo, nor the
washes of the chunni was taken nor was it seized.
265. It may also be noted, in terms of testimony of TLO Ms. Veer
Jyoti (PW-17), the team had followed accused Babita and complainant to
tbhe Ground Floor Lift Area and then accused in the Corridor ; that accused
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Babita was apprehended in front of Court No. 8 in the Corridor and she had
caught hold the right hand wrist of accused Babita and Ct. Suman Manjoo
had caught hold of left hand.
266. Appreciating the said facts, I do not think that there was any
occasion or chance for Babita to touch the tainted money with her hands. If
at all it was so, there is no evidence on record to reflect that when and where
the accused Babita touched the tainted money.
267. So, the question of taking hand washes of the accused and the
solution turning pink colour further raises cloud over the Trap Proceedings
and the statement of witnesses of the prosecution in that regard. There is no
explanation on behalf of the prosecution on the said aspect.
268. Thus, there are material contradictions and lacunas in the case
of prosecution, the manner in which the trap proceedings were conducted,
and the manner in which transaction of tainted money and / or apprehension
of accused and /or presence of independent witnesses on the spot and/or the
spot itself where the accused was apprehended creates a serious dent in the
case of prosecution.
269. Nextly, as discussed above, the prosecution has failed to prove
the facts in issue namely proof of demand and acceptance of undue
advantage/ bribe money by any direct or circumstantial evidence.
270. The foundational facts of the charges remains not proved by
any cogent and reliable evidence and thereby no presumption u/s 20 of the
PC Act is attracted in the given facts of the case. The arguments of the Ld.
Sr. PP in that regard has no force.
CFSL Expert Testimony Lack Credence
271. PW-22 Sh. Mahesh Kumar Jain, Sr. Scientific Officer, Scientist
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CBI vs. Babita
D, CFSL had examined the Audio recordings in the case and during his
cross-examination he admitted that :
– that Hash value of the recordings while starting examination
was not noted by him ;
– that Hash value is obtained for detecting tampering / editing
addition etc in the original electronic records, as one of the parameters.
– that the exhibits were also handled by his Assistant, who had
assisted him in the examination process of exhibits, and it took him about 10
days or so to analyze and prepare the report during which the exhibits were
not kept in sealed condition ;
272. Significantly, he admitted that the transcripts of the audio
recordings were received at the CFSL wherein indications in the form of
“C” and “A” to imply ‘Complainant’ and ‘Accused’ were mentioned.
273. He denied the suggestion that it was suggestive in nature or that
the same is mentioned in the transcriptions in order to give a favourable
report in favour of the agency but the indications and the transcripts thereto
so sent by the CBI Officials do cast doubt on the fairness of the process and
its analysis by the CFSL Expert.
274. Similarly, PW-23 Sh. A.D Tiwari, Deputy Director (Photo) had
examined the Videos/Photos and he stated that he opened the parcels for
examination on 06.08.2019 and concluded the examination on 07.02.2020,
and admitted that during this interregnum period of 6 months the electronic
records were not kept in sealed condition.
275. He also admitted that he had not taken the Hash Value of the
exhibits prior to starting the examination, nor was it mentioned in his reports
Ex PW23/1.
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276. His Analysis Report states that Video files containing CCTV
footages (i) Room no. 104 dated 20.05.2019 ( 11:00 to 11:10:) (4) and
Room. no. 115 dated 20.05.2019 (10:00 to 11:10 ) were not found fit for
examination due to lack of sufficient required features.
277. In totality of the facts, the expert opinion is not free from
doubts and suffers from fairness, and it would not be safe to rely on the
reports as well as the testimonies of these expert witnesses examined as
PW-22 and PW-23, besides the fact that the analysis reports are merely an
Opinion and not a conclusive evidence.
SANCTION :-
278. Learned Defence Counsel has also challenged the Sanctioned
order Ex PW3/1 stating that the Sanction to prosecute accused has been
accorded by the incompetent Authority who was not competent to remove or
dismiss her from the services at the given point of time.
279. It was urged by learned counsel that the Sanction for
prosecution of accused was obtained from the Office of the Deputy
Commissioner of Police, Central District, Delhi vide letter No.
6646/HAP(P-II)/Central District, Delhi Dated 12.09.2019, whereas accused
was granted Adhoc promotion to the Post of W/Assistant Sub Inspector
(Exe.) vide official Notification no.A/1/3(IV-2)/2013/61658/CB-IV/PHQ
dated 19.09.2013 under the signatures of Sh. V.A.Gupta, DCP/L&B, who
had signed for and on behalf of Commissioner of Police Delhi on
19.09.2013.
280. It is stated that on completion of her probation period
successfully accused was allotted range number and granted confirmation to
the said post w.e.f. 19.12.2016, as per Rule 8(iii) of Delhi Police (Promotion
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CBI vs. Babita
& Confirmation Rules, 1980) signed by Sh. R.A. Sanjeev IPS, Addl.
Commissioner of Police, Delhi Police.
281. It is thus urged that the competent authority in terms of her
appointment/promotion orders read along with Article 311 Constitution of
India is ‘Commissioner of Police’, Delhi Police, and not the concerned
‘Deputy Commissioner of Police’ (PW-3) who had accorded Sanction to
prosecute the accused Babita in the present case.
282. Learned counsel for the accused relied upon the following
judgments in support of his submissions : – Davinder Singh Vs. State ILR
( 1974) II 400 (DHC) ; Gopal Bhai Mohanbhai Nagoda Vs. State of Gujarat,
IV ( 1993) CCR 3288 (DB) and Nanjappa Vs. State of Karnatka, ( 2015) 14
SCC 186.
283. To the contrary, learned Sr. PP submitted that in terms of
Section 21 read with Section 12 of the Delhi Police Act,1978 & the Rules a
DCP rank officer is competent to remove any official below the rank of
Inspector and thereby the contentions of the defence counsel can not be
sustained.
284. I do not concur.
285. The similar issue was examined by the Hon’ble High Court of
Delhi in the case titled as Devender Singh Vs. State, ILR (1974) II Delhi
400, wherein on the identical facts i.e. the accused Devender Singh was
promoted to Officiate as Sub-Inspector by the Order of Deputy Inspector
General, Ambala Range vide a Consolidate Order dated 17th April, 1961.
Whereas, the Sanction to prosecute the accused as required under Section 6
of the then P.C. Act was accorded by Supdt. of Police ;
286. The Hon’ble High Court after discussing the relevant
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CBI vs. Babita
Provisions of Punjab Police Act/ (Rules), and reading the same in light of
Article 311(1) of the Constitution of India, has held that the accused
Devender Singh being appointed by the DIG, Ambala Range, the concerned
Supdt. of Police, a authority which is subordinate to the appointing authority
and not competent to remove or dismiss the accused from the services, is not
competent to accord Sanction for his prosecution.
287. His conviction and sentence was set-aside by the Hon’ble High Court
with liberty to the prosecution to file fresh challan against him.
288. In the present case also, it is evident from the Notification No.
6646/HAP(P-II)/Central District, Delhi Dated 12.09.2019, that the Order to
assign the duties of ASI (Exe.) to the officials (Head Constables) was issued
by the office of the then ‘Commissioner of Police’, Delhi, in terms of the
Adhoc Promotion list (D-1) (Exe) of the officials mentioned thereto, signed
by the DCP concerned for and on behalf of ‘Commissioner of Police’.
289. The aforesaid order was a general order related to the Adhoc
Promotion of accused Babita, but significantly her regular appointment in
the said cadre was issued by the orders dated 19.12.2016 passed by the then
‘Addl. Commissioner of Police’, HQ&Establishment, Delhi Police, in his
official capacity, where the name of the accused is mentioned at 121.
290. At this stage, a useful reference be made to Article 311(1) of the
Indian Constitution which is quoted herein for ready reference.
Article 311 :
311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State :
(1) No person who is a member of a civil service of the Union or an all
India service or a civil service of a State or holds a civil post under theCBI Case No. 419/2019 104 of 107
CBI vs. BabitaUnion or a State shall be dismissed or removed by a authority subordinate to
that by which he was appointed.
291. The Constitutional provision in unequivocal terms specifies that
an official can only be dismissed or removed by the Appointing Authority or
its Higher in rank and not by any authority subordinate thereto.
292. Whereas, the Sanction to prosecute the accused in the present
case is accorded by PW3 Sh. Randhawa, the DCP concerned. PW-3 who has
accorded the Sanction is undoubtedly subordinate to the Rank of ‘Addl.
Commissioner of Police’, under whose orders accused Babita was promoted
to the regular cadre of ASI (Exe.).
293. No doubt, DCP Rank Official has been conferred powers to
appoint and dismiss an officer below the rank of Inspector in terms of the
Provisions under Section 12 and 21 of the Delhi Police Act, 1978.
294. But noting the factual aspects of the case at hand, the
appointment of the accused to a higher rank of ASI (Exe.) was done by the
Orders of ‘Addl. Commissioner of Police’, Delhi, and not by the DCP rank
officer.
295. So, the competent authority to remove or dismiss her from the
service, read in light of Article 311 of the Constitution, is the Addl.
Commissioner of Police, Delhi and not the DCP. Section 21 also stipulates
that the provisions of Section are subject to the provisions of Article 311 of
the Constitution of India and the Rules.
296. The reliance on Section 21 and Section 12 of the Delhi Police
Act, 1978 by the prosecution is thereby totally misplaced.
297. Thus, the Sanction to prosecute the accused Babita exhibited as
Ex. PW-3/1 is not in conformity with the legal provisions of law noted
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CBI vs. Babita
above.
298. The sanction accorded by the DCP in the present case is thereby
invalid and improper. Accordingly, accused Babita is also entitled to get the
benefit of the same on the said count.
FINDINGS / CONCLUSION :
299. (i) Initial ‘Demand’ of bribe money by accused i.e. complainant
and the verification proceedings – not proved.
(ii) ‘Demand’ at the time of trap proceedings – not proved.
(iii) ‘Acceptance’ of bribe money by accused – not proved.
(iv) Recovery of tainted money seriously under cloud.
(v) Place of Apprehension of accused disputed.
(vi) Custody of Q-1 (SD Card) & Q-2 (DVR) doubtful.
(vii) Q-2 is infected with virus and susceptible to malfunctioning.
(viii) Site plan contrary to the testimony of witnesses.
(ix) FSL reports does not inspire confidence.
(x) Sanction under S. 19 P.C.Act by incompetent authority.
DECISION : -
300. In the light of the foregoing discussion, the court is of the
considered opinion that the prosecution case is shrouded with cloud,
material discrepancies and contradictions. CBI has miserably failed to bring
any cogent and reliable evidence on record to bring home the guilt of the
accused for offence under Section 7 of the P.C. Act.
301. The essential ingredients of ‘demand’, ‘acceptance’ and
‘motive or reward’ for the purpose of Section 7 remained ‘not proved’,
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beyond reasonable doubt against accused Babita. Resultantly, accused
Babita a public servant is acquitted of all the charges in the present case.
302. The bail bonds of the accused Babita stands cancelled and her
Surety is discharged. The original documents of the surety if any, be
released to her/him against proper receipt after keeping photocopy of the
same on record against proper acknowledgment.
303. File be consigned to record room after necessary compliance.
Digitally
signed by
Announced in the open court ANIL ANIL ANTIL
Date:
on this 29th Day of March, 2025. ANTIL 2025.03.29
16:06:02
+0530
(ANIL ANTIL)
SPL. JUDGE (PC ACT): CBI-15
ROUSE AVENUE DISTRICT COURT
NEW DELHI/29.03.2025
CBI Case No. 419/2019 107 of 107