Prithvi Singh Yadav v. C.B.I.

(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.” The Constitution Bench later affirmed the aforesaid decision in the case of Neeraj Dutta (Supra) and held that:-

an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act.”

14. The Court may, when the foundational facts have been proved by relevant oral and documentary evidence, raise a presumption of fact while considering whether demand of illegal gratification has been proved by the prosecution or not. Needless to state that this presumption of fact is subject to rebuttal by the accused. This presumption is different from the one provided for in Section 20 of the Act. While the former presumption is discretionary in nature, the latter is a mandatory presumption. The Constitutional Bench of the Supreme Court in Neeraj Datta (Supra) holds:-

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.

15. Present is a case wherein the complainant as well as the independent witnesses have turned hostile. The factum of complainant turning hostile by itself would not lead to finding of acquittal. It is open to the prosecution to prove the demand of illegal gratification by relying on other witnesses and leading other including circumstantial evidence. When a witness turns “hostile” his evidence is not discarded automatically. Rather, a careful and circumspect endeavour is made to cull out that part of the testimony which is creditworthy and corroborated by other reliable evidence. This is contingent on the witness being able to withstand the scrutiny of cross examination. Due reference in this regard may be made to Neeraj Datta (Supra), wherein it was held:-

87. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

88. What emerges from the aforesaid discussion is summarised as under: xxx 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 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. xxx

90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

16. The Trial Court held that the charge of initial demand of bribe of Rs 3 lacs by the appellant was not proved. Insofar as allegation of the latter demand of Rs. 2 lakhs is concerned, notably the complainant did not support the prosecution case in his examination-in-chief. The complainant, in his testimony stated that he had written the complaint (Ex.P.W. 1/A) based on the dictation given to him by PW19/S.B. Shankar who told him that if he lodged a complaint against the appellant, he could get rid of the seven cases which were pending against him. The independent witnesses PW2/Manmohan Singh and PW4/Surjit Gandhi have both denied interacting with the complainant or seeing the complaint. In this backdrop, it is to be determined whether despite the complainant turning hostile, the prosecution has been able to prove the demand of Rs 2 lacs.

17. On the aspect of pre-trap proceedings, the PW5/TLO, deposed that constable J.N. Mithani duly gave the demonstration involving phenolphthalein and sodium carbonate and the pink solution was duly sealed and stored. He had also stated that the sealed bottles were signed and labelled by the witnesses. However, while both the complainant and PW2/Manmohan Singh, the independent witness stated that they could not admit or deny whether the pink solution was transferred, sealed and signed, the other independent witness PW4/ Surjit Gandhi outrightly denied that any demonstration took place in his presence. The Trial Court observed that the said bottle does not bear either of their signatures. Constable JN Mithani, who allegedly gave the demonstration and was in a position to shed light on the factum of demonstration, was inexplicably not made a part of the pretrap team. He was neither produced as a witness nor his statement under Section 161 Cr.P.C. was recorded. At this juncture, it is pertinent to note that all the testimonies record that the notes were treated with phenolphthalein, but none of them state that the polythene bag in which the notes were kept was also treated.

18. The next contradiction arises in context of the alleged phone call made by the complainant to the appellant. TLO stated in his testimony that before leaving for the raid, the complainant rang up the appellant to inform him that he would get slightly late because of the rally. The complainant, on the other hand, deposed that he had actually called the police station and talked with one Bharat Kumar, a Sub-Inspector and mediator of the appellant. The testimony of PW2/Manmohan Singh, the independent witness also fails to corroborate the prosecution case as he states that he was not present in the room when the appellant made the phone call. Again, it is noted that Bharat Kumar, who could have shed light on the situation was not cited as a witness by the prosecution. In fact, not even a suggestion was given to the complainant seeking an explanation for this divergence from the prosecution story.

19. The variance in testimony of the complainant from the version of the prosecution becomes even more apparent when it comes to the alleged demand. The prosecution version has been already briefly summarised earlier and is not being reproduced for the sake of brevity. As per complainant, when he reached the house of the appellant, he noticed that appellant was going out in his van. Upon informing him that he had brought Rs. 2 lacs in cash, the appellant told him to get out and talk to him in his office. The complainant has categorically denied that the appellant demanded any money from him. He rather stated that after the appellant refused to take the money, he returned to the CBI officials who directed him to give money to the accused, failing which the case shall be cancelled. Thereafter, he gave chase to the appellant, intercepted him and requested him to take the money and took the keys of the appellant‟s van. He has further stated that the appellant slapped him following which he also slapped him back. According to him, during this time the polybag containing cash fell down and was picked up by the CBI officials. With respect to the post trap proceedings, complainant stated that the appellant was taken to a nearby building where complainant stood outside and hence did not witness the preparation of sodium carbonate solution, the accused‟s hands being dipped in the solution and the same turned pink.

20. Since the complainant has turned hostile, other witnesses must be turned to seek corroboration of the prosecution version on the crucial aspect of demand. PW2/Manmohan Singh, one of the independent witnesses deposed that he was dropped by complainant about 1 km away from the house of the appellant and he couldn‟t say whether or not complainant entered the house of the appellant. He also supported complainant‟s version by stating that upon his return, CBI officials had directed complainant to chase and intercept the appellant. He further stated that the polybag was picked up either by him or by CBI officials and he also refused having witnessed the post trap proceedings. PW4/Surjit Gandhi, the other independent witness, also failed to corroborate the version of the prosecution on material aspects. He failed to corroborate the prosecution version of complainant going in the house of the appellant. He also did not recognize the driver of the van or witnessing the post trap proceedings.

21. The recovery of the GC notes in this case has been from a polythene bag lying on the road and not from the person of the appellant. Notably, the prosecution case from the inception has been that only the GC notes were treated with phenolphthalein and not the polythene bag, however, there is no explanation as to how the solution turned pink from appellant‟s hand since no witness has stated that he ever touched the GC notes.

22. Another important aspect which merits discussion relates to the taperecorded conversation. The tape-records are “documents” as defined in Section 3 of the Evidence Act which stand on no different footing than photographs. The very first requirement for making such recordings admissible is that the voice of the person alleged to be speaking must be duly identified by the maker of the record. If the maker denies that the voice is his, very strict proof would be required to prove the identity of the voice. Moreover, every possibility of tampering of the tape should be ruled out. The Supreme Court in Ram Singh v. Col. Ram Singh (Supra) held that: -

32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows: “(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.” Although learned SPP has sought to distinguish the abovementioned decision by stating that it was rooted in the facts of that case as serious doubts had been raised about the recording therein, however, there is no merit in this contention and the general principles and safeguards laid down therein would be applicable to all cases where tape recordings are relied on.

23. In the present case, complainant, who was the maker of the recording, failed to identify his voice as well as the voice of the appellant in his testimony. That being the situation, strict proof was required to prove the identity of the recordings. TLO conceded in his testimony that he did not record the specimen of the voice sample of the complainant. He has stated that in the post trap proceedings, he handed over the cassette to PW18/ K.C. Sharma for preparation of the transcript. He further stated that no expert or technician had joined the trap proceedings. PW19/S.B. Shankar failed to identify the tape as it was not produced in Court. Moreover, in his testimony, he stated that he did not say whether the transcript was prepared from the original cassette or by playing its copy.

24. PW20/Roy Alexander conceded that the statement under Section 161 Cr.P.C. of PW18, who prepared the transcript, was not recorded. He further stated that he did not try to get the voices in the recording identified in presence of a Magistrate, nor did he obtain an order from court for breaking open the seal of the cassette for holding identification proceedings. He testified that when the unsealed tape was played before the witnesses, all the witnesses had identified the voice of the appellant, and moreover, PW10/ Umesh Singh and PW16/Subhash Chand also identified the voice of complainant. However, the Trial Court observed that as per the case diary, PW10 could not identify the voice recorded in the cassette.

25. Various questions have also been raised regarding the handling of the tape and its storage. In this regard, TLO stated that he did not deposit the cassette in the Malkhana alongwith other case property and rather, handed over the same to PW20/Roy Alexander when he gave charge of the investigation to him. He further stated that he deposited the case property on the same day but didn‟t sign the Malkhana Register. During the trial, PW7/Bir Pal, who was in charge of the Malkhana, had brought the original Malkhana register pertaining to September 1991 when the case properties were submitted. He however, failed to bring the movement register, where entry and exit and re-entry of case property is entered, of the period from 27.09.1991 till 24.07.1997. He further stated in his cross examination that there was no mention of pre-raid memo or its annexure carrying GC notes in the register. Neither did the deposit of CFSL form find a mention in the relevant entries. Though the recording of his testimony was deferred, he was never recalled. The effect of partial cross examination is not that the statement is rendered inadmissible. Some weight can still be attached to this statement, after applying the rule of caution of not acting upon the statement without it being materially corroborated. Reference may be made to decision of a Co-ordinate Bench of this Court in Krishan Dayal v. Chandu Ram,9:- I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is Krishan Dayal v. Chandu Ram, reported as 1969 SCC OnLine Del 134 concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely anumus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity.

26. There are some other factors as well which need to be borne in mind to assess the overall circumstances. PW20/Roy Alexander stated that his investigation revealed that there existed no externment order against the complainant, which was alleged to be the very reason for the appellant demanding bribe in the first place. Moreover, it has been alleged that there existed prior enmity between the appellant and CBI officials. The genesis of this enmity was said to be the appellant refusing to hand over the custody of the case file of one Gurmit Kaur without registration of case by CBI. As per the testimony of DW5/HC Ved Prakash, the Trap Laying Officer was an interested witness and had prior enmity with the appellant. Testimony of PW19/S.B. Shankar would show complaint was addressed to SP, CBI SIU- VIII which normally used to deal with cases of cheating and forgery and the trap cases were investigated by the Anti-Corruption Branch (ACB) and no explanation has been given for the respondent veering off its normal course.

27. Though the reliance has been placed by the respondent on the decision in M. Narasinga Rao (supra), the same is distinguishable in as much as in that case the recovery of money was from the pocket of the accused therein, whereas in the present case the recovery has been shown from a polythene bag lying on the road and not the person of the appellant. In so far as the case of Chaturdas (Supra) is concerned, the factum of acceptance of gratification from the accused was duly established. The same, however, cannot be said for the present case.

28. On an overall assessment of the facts and circumstances of this case, it becomes clear that the prosecution case has been severely weakened by the complainant turning hostile. That by itself would not have been fatal to the prosecution, however, key elements of the prosecution case, as discussed in the previous paragraphs, are not supported by the two independent witnesses either. No site plan has been prepared of the appellant‟s house to bring some clarity as to the position of the trap party. Prosecution has not put forth any witness who can claim to have heard the demand by the appellant. Identities of the voices in the recording have also not been conclusively established. The procedure adopted by the prosecution has also raised doubts as to the handling and storage of the said tape. Mere transcripts cannot be used to establish that a demand took place without supporting evidence, which in this case is found to be lacking. Moreover, it is not the case of the prosecution that the cash was recovered from his pocket. The GC notes were lying in a polythene bag which was recovered from the road. From the starting, it has been the case of the prosecution that only the notes were treated with phenolphthalein. Keeping that in view, the prosecution has failed to establish how the appellant‟s hands turned the sodium carbonate solution pink, if he only had contact with the polythene bag. In toto, the prosecution has failed to prove the foundational facts which are necessary for the Court drawing the presumption of the appellant having demanded the money.

29. Upon a careful analysis of the testimonies as well as the material placed on record, this Court is of the considered opinion that the allegations against the appellant under Sections 7, 13(1)(d) of PC Act are not conclusively proved. Consequently, the appeal succeeds and the appellant‟s conviction under the aforesaid sections is set aside. The bail bonds are cancelled and sureties stand discharged.

30. The appeal is disposed of in the above terms.

31. A copy of this judgment be communicated to the concerned Trial court alongwith the records and to the concerned Jail Superintendent for information.

MANOJ KUMAR OHRI (JUDGE) FEBRUARY 18, 2025