Delhi District Court
Cbi vs . 1 Krishan Sharawat, on 3 August, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 09/2012
RC DAI 2007/A/0054A/ACB
U/s 120B IPC & 7 & 13 (2) r/w 13(1) (d) of PC Act
(Case UID No. 02406R1109852008)
CBI Vs. 1 Krishan Sharawat,
(The Then Inspector, Entertainment Department)
Son of Sh. Mange Ram Sharawat,
Resident of Flat No. 35, Pocket-1,
Phase-1, Sector-13, Dwarka, New Delhi.
2 Vinay Kumar Khanna,
Son of Late Sh. B.N. Khanna,
Resident of E-12/18, DLF City, Phase-I,
Gurgaon.
i) Date of Institution :31.03.2008
ii) Date on which case was received on
Transfer by this Court :25.02.2012
iii) Date of framing of charge :28.07.2009
iv) Date of conclusion of arguments :25.07.2013
v) Date of Judgment :03.08.2013
Memo of Appearance
Sh. U.C. Saxena, learned Senior Public Prosecutor & Ms. Jyotsana
Sharma, learned Public Prosecutor for CBI.
Sh. Harsh Kr. Sharma, learned defence counsel for accused Krishan
Sharawat.
Sh. P.S. Singhal, learned defence counsel for accused Vinay Kr.
Khanna.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 1 of 46
JUDGMENT
PROSECUTION SAGA 1.0 M/s Balaji Cable TV Network, 187/A, Arjun Nagar, New Delhi was in the business of providing Television Cable Service in the area of Arjun Nagar, New Delhi. Sh. Harjeet Singh was one of its partners.
1.1 Accused Krishan Sharawat was posted as Inspector, Entertainment Tax Department, Govt. of NCT of Delhi, ITO, New Delhi and in last week of Nov'07, he along with his team had gone to their office and seized some documents. Since owners were not there, he left his mobile number with their employees. When contacted on phone, he asked Harjeet Singh to meet him next day in his office.
1.2 Harjeet Singh accordingly met accused Krishan Sharawat who told him that entertainment tax of his concern was pending for several months and asked him to deposit the same. Consequently, Harjeet Singh deposited tax for two months only and could not deposit the entire tax for want of funds.
1.3 Thereafter, Harjeet Singh received one notice to appear in the office of Entertainment Tax Department, ITO, New Delhi on 30.11.2007 with papers of his cable company. He then called up accused Krishan Sharawat on telephone and questioned him about such show cause notice. Accused Krishan Sharawat, then, asked him to meet him at Kamal Cinema, Safdarjung Enclave on 11.12.2007 at 4.30 PM.
1.4 Accordingly, Harjeet Singh met Krishan Sharawat on 11.12.2007 at 4.45 PM when accused demanded Rs. 4,500/- as bribe claiming that he would get his tax adjusted and would also get the time limit for depositing the tax extended and would not check their cable connections either. He also scared CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 2 of 46 that if his demand was not met, he would show extra cable connections in their name and would raise extra demand and would even get their cable business closed down. Accused Krishan Sharawat also asked him to bring such money at the same place on 11.12.2007.
1.5 Since Harjeet Singh was not interested in bribing anyone, he rushed to CBI office on 12.12.2007 with written complaint against accused Krishan Sharawat.
1.6 A trap team was constituted and independent witnesses were arranged and in order to confirm about the genuineness of the complaint, complainant was asked to contact accused on mobile. Complainant contacted him on his mobile and ensuing conversation confirmed that there was demand of Rs. 4,500/- from accused Krishan Sharawat and that he further agreed to accept Rs. 3,000/- as first installment. However, that day, trap was not actually laid as in view of later conversation, accused Krishan Sharawat asked complainant to meet him on 13.12.2007 at about 2.00 PM at Kamal Cinema, Safdarjung Enclave.
1.7 Both the independent witnesses reported CBI office again on 13.12.2007 and again complainant was asked to make call to accused and during such conversation also, accused Krishan Sharawat asked complainant to come near Kamal Cinema, Safdarjung Enclave with bribe money.
1.8 Regular Case DAI-2007/A/0054A/ACB was registered against accused Krishan Sharawat and investigation was entrusted to Insp. Sandeep Chaudhary.
1.9 Complainant produced six GC notes of denomination of 500. Those were treated with phenolphthalein powder and practical demonstration regarding reaction between such powder and colorless solution of sodium CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 3 of 46 carbonate was given. Complainant was asked to keep such smeared notes in his upper left chest side pocket of his wearing shirt and was directed to handover such tainted bribe notes to accused on his specific demand and not otherwise.
1.10 Sh. M.S. Bhandari, independent witness was asked to act as shadow witness and other independent witness Sh. G.S. Rawat was also asked to remain with trap team. A Digital Voice Recorder was arranged and its functioning was explained to complainant and witnesses and such recorder was given to complainant. There were exchange of calls and accused Krishan Sharawat made one call from mobile number of his co-accused.
1.11 Trap team left CBI office and reached the stipulated place. Accused Krishan Sharawat again contacted complainant and asked him to handover the bribe quickly. After reaching the spot i.e. near Kamal Cinema, complainant accompanied by shadow Sh. Bhandari rushed towards one Santro Car No. DL9CP-0081. Accused Vinay Kumar Khanna, co-accused and friend of accused Krishan Sharawat was on steering wheel. Accused Krishan Sharawat, who was found sitting on the left front side seat of Santro car, asked about the bribe money on which complainant told him that he could bring Rs. 3,000/- only. Accused Krishan Sharawat then asked him to give the same. Complainant extended the same towards accused Krishan Sharawat who lifted one bunch of papers from the dashboard of the car and asked the complainant to put the bribe amount in said bunch. He then gave the same to his co-accused Vinay Khanna for counting. Accused Krishan Sharawat assured complainant not to worry about the issue of his entertainment tax.
1.12 After such bribe transaction, shadow witness gave pre-appointed signal and other trap team members accordingly rushed towards Santro car and challenged accused. Accused Vinay Khanna, who tried to hide such bribe money by throwing the same near handbrake, turned pale and revealed that he had counted the bribe money as per the direction of accused Krishan Sharawat.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 4 of 461.13 Hand-washes were carried out at the spot and paper wash (of relevant page of bunch of papers in which said GC notes were kept by Krishan Sharawat) and surface wash (place near the handbrake from where the tainted bribe money was recovered) were also taken and chemical reaction also indicated the acceptance of bribe. Digital recorder was taken back from the complainant and it was also played at the spot and the conversation recorded therein also re-confirmed the demand of bribe by accused Krishan Sharawat.
1.14 Further necessary investigation was carried out. Specimen voice samples of accused were taken. Reports from CFSL were also obtained. Sanction for prosecution of accused Krishan Sharawat was also obtained from competent authority. Investigation also indicated that accused Vinay Khanna was having prior knowledge of bribe transaction and his mobile phone was used by accused Krishan Sharawat in the commission of offence and he was knowingly accompanying his co-accused and had even counted the money which clearly reflected that he was equally guilty and was part of conspiracy.
COGNIZANCE AND CHARGES 2.0 After comprehensive investigation, charge-sheet was filed in the Court on 31.03.2008. Both the accused were indicted for offences U/s 120B IPC & 7 & 13 (2) r/w 13(1) (d) of Prevention of Corruption Act 1988 and substantive offences thereunder.
2.1 Cognizance was taken by the Court on 08.07.2008.
2.2 After compliance of Section 207 Cr.P.C., arguments on charge were heard and vide order dated 25.07.2009, both the accused were ordered to be charged for offences punishable under Sections 120B IPC & 7 & 13 (2) r/w 13(1)
(d) of Prevention of Corruption Act 1988 and accused Krishan Sharawat was also charged under substantive sections.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 5 of 462.3 Charges were framed on 28.07.2009. Both the accused pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined thirteen witnesses in support of its case.
3.1 Witnesses can be categorized as under:-
(i) Independent/public witnesses.
PW1 Sh. G.S. Rawat (independent witness).
PW2 Sh. Harjeet Singh (Complainant).
PW3 Sh. M.S. Bhandari (shadow witness).
(ii) Officials from Excise Department
PW5 Sh. Nirmal Kumar Bahadur.
PW6 Sh. R.M. Pillai (Sanction Authority)
PW9 Sh. E. Rajababu.
(iii) Officials from mobile companies.
PW8 Sh. R.K. Singh (official from Bharti Airtel who has proved CDR of mobile no. 9871166777 of accused Vinay Khanna).
PW10 Sh. Anuj Bhatia (official from Vodafone Essar Mobile Service Ltd. who has proved CDR of mobile no. 9811114629 of Krishan Sharawat and of mobile no. 9999059576 of complainant Harjeet Singh).
(iv) Officials from CFSL.
PW4 Dr. N.M. Hashmi (Senior Scientific Office who had given chemical analysis report regarding washes and confirmed presence of phenolphthalein.
PW13 Dr. Rajender Singh (Principal Scientific Officer who had conducted voice spectrographic examination).
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 6 of 46(v) CBI officials.
PW12 DSP Sandeep Chaudhary (Trap Laying Officer).
PW11 Insp. Manish Kr. Upadhayay (Investigating Officer).
3.2 It would be imperative to point out right here that complainant Harjeet Singh entered into witness box on 18.09.2009 but was partly examined that day and his further examination was deferred. Thereafter, prosecution was given numerous opportunities to produce him before the Court but prosecution failed to procure his attendance before the Court.
3.3 Present case was received on transfer by this Court on 25.02.2012 and prosecution evidence was closed on 21.05.2013 but, in between, not even once, prosecution could produce him before the Court. Process reports on record indicated that he was no longer residing at his any of the given addresses i.e. 1C/48, NIT, Faridabad or 33, Prem Vihar, Agra or local address of Delhi.
3.4 I would also like to lay emphasis that though prosecution evidence was closed yet it was made loud and clear to prosecution that as and when it was able to lay its hands upon present and correct address of the complainant, it be apprised to the court immediately. Fact, however, remains that situation still remains the same as CBI does not possess the present and correct address of its very material witness. Part testimony of complainant, which is slender and very initial, also cannot be read in evidence being incomplete.
STATEMENTS OF ACCUSED 4.0 Statements of accused u/s 313 Cr.P.C. were recorded. They both pleaded innocence and claimed that they had been falsely implicated.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 7 of 464.1 According to accused Krishan Sharawat, as Entertainment Inspector, his job was to collect the due and payable entertainment tax from the cable operators and he was duty-bound to visit the offices of such defaulters to collect tax from them in the form of demand draft. He denied his having any conversation with complainant. He, however, admitted that M/s Balaji Cable was nonpayer of entertainment tax/cable tax. According to him, since he was trying to collect as much entertainment tax as possible, even if anyone had contacted him claiming himself to be representative of the cable defaulter, he responded positively to such person also so that such person may be impressed upon to make the payment. According to him, he was rather making extra effort to collect arrears of the entertainment tax from the defaulters. He admitted that on the relevant day, he was sitting in the car but had not demanded any bribe either by gesture or otherwise and complainant had only shown him one assessment notice. Complainant was accompanied by two three persons and complainant threw money in the car. He also claimed that recorded conversation was fabricated. According to accused Krishan Sharawat, complainant was having a grudge against him as he had pressed him hard to clear the tax arrears.
4.2 Accused Vinay Kr. Khanna also admitted that he was in Santro car at the relevant time and date. He admitted that mobile no. 9871166777 belonged to him and that it was used by his co-accused Krishan Sharawat but he supplemented that he did not know as to in what context such mobile was used by his friend. He claimed that he was in the car along with accused Krishan Sharawat and that three persons had come towards them and started talking to Krishan Sharawat and one of those three persons had thrown money inside the car and he merely picked those up to return the same to them but in the meanwhile his hand was caught hold by one of those three persons. He also claimed that he had been falsely implicated.
4.3 Both the accused, however, did not choose to lead any evidence in defence.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 8 of 46RIVAL CONTENTIONS 5.0 Learned Prosecutors have claimed that prosecution has been able to prove its case to the hilt. According to them, both the independent witnesses and TLO have stood the ground and their testimony is virtually unshaken and unimpeached and clearly indicates acceptance of bribe. It has been stressed that both the accused were acting in league and accused Vinay Kr. Khanna was all along with accused Krishan Sharawat and his mobile phone was used and he had also been hearing the entire conversation and was in the thick of the things. He also knew that accused Krishan Sharawat was a public servant who was not supposed to accept any such money. The manner in which money was accepted clearly indicated that it was not any legitimate payment and despite that Vinay Khanna did not raise his eyebrows. Further that such cash amount was counted by him as per the instruction of his co-accused and then when they both were surrounded by CBI team, accused Vinay Kr. Khanna threw such money all of a sudden. If at all, he was not having any malice or guilty intention, he would not have reacted in such manner and would not have thrown the money.
5.1 Learned Prosecutors are conscious and wary of the fact that the complainant Harjeet Singh has not graced the witness box and that his part- testimony is of no avail.
5.2 During course of the final arguments, IO-Insp. Manish Upadhayaya was also called by the Prosecutors to ascertain any development who reiterated that there was no clue with respect to the present and correct address of complainant Harjeet Singh.
5.3 Learned Prosecutors have, however, contended that transparent, natural and cogent testimony of both the independent witnesses and of TLO has made up the deficiency in this regard. It has also been claimed that even electronic evidence lends full corroboration to the story of prosecution. They CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 9 of 46 have also strongly relied upon the reports of both the experts of CFSL which also prop up prosecution version.
5.4 Sh. Harsh Kr. Sharma has refuted aforesaid contentions and has claimed that accused Krishan Sharawat has been falsely implicated. Claiming as under, he has stressed that case of CBI does not stand proved at all:-
(i) Complainant has been held back by the prosecution and the testimony of two independent witnesses and TLO is too fanciful to be believed.
(ii) Testimony of material witnesses is self-contradictory and inter- contradictory and there is no coherence or corroboration on crucial points.
(iii) Prosecution has miserably failed to explain as to how the complainant was possessing assessment notice when as per pre-trap memo, complainant was not permitted to carry any such notice.
(iv) The manner of the actual spot transaction is entirely ambiguous as post trap document i.e. recovery memo reflects complainant had extended the money inside the car whereas oral testimony indicates that money was kept on paper.
(v) TLO did not see complainant extending money and did not overhear any live conversation and, therefore, his testimony is of no help
(vi) Transcription has further complexed the entire scenario as it is not clear as to who is the orator of first two lines of spot conversation.
(vii) Only one document i.e. site plan had been prepared at the spot which even does not reflect the position of PW1 Sh. Rawat whereas in his statement u/s 161 Cr.P.C. he had clearly claimed that he had even signed such site plan.
(viii) As per PW1 Sh. Rawat, complainant was not present at the time of preparation of transcription but transcription bears the signatures of complainant as well.
(Ix) All the three material witnesses i.e. both the independent witnesses and TLO ducked some vital questions by giving evasive replies.
(x) Insp. Prem Nath was also one of the important witness who was allegedly standing very near to the car and he has not been examined by the prosecution.CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 10 of 46
5.5 Sh. P.S. Singhal has contended that accused Vinay Kumar Khanna has been falsely implicated in the present matter. According to him, that day, such money was thrown inside the car and accused Vinay Kr. Khanna had merely picked up those notes and, in no time, some officials of CBI appeared there and when he was challenged by such officials, he threw those notes out of fear. It has been contended that he was not at all trying to hide such notes. He has also claimed that non-examination of complainant has proved to be fatal and even the alleged transcription does not indict Vinay Kr. Khanna in any manner whatsoever. According to Sh. Singhal, both the independent witnesses are planted witnesses because had they been present at the spot, they would have certainly signed the site plan but the site plan placed on record does not bear their signatures at all.
EVALUATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions and scanned the entire evidence as well as the documents. My attention has also been drawn towards several judgments cited at the Bar, both by prosecution and by defence, and I would advert to those at appropriate place.
6.1 It has already been noticed above that complainant Harjeet Singh was not produced by the prosecution for his further evidence and, therefore, his deposition, being unfinished, cannot be read in evidence. However, when the complainant Harjeet Singh reported in CBI office, CBI officials thought it prudent to associate two independent witnesses viz PW1 G.S. Rawat and PW3 M.S. Bhandari.
6.2 PW12 Insp. Sandeep Chaudhary was posted as Inspector in ACB Delhi Branch of CBI. On 12.12.2007, he was working under the supervision of Sh. S.S. Sharan, SP/CBI/ACB and PW12 Sh. Chaudhary has deposed that he was called by his SP and was introduced with Harjeet Singh, complainant. He CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 11 of 46 was also given one complaint which was against Krishan Sharawat, Inspector of Entertainment Tax Department posted at ITO, New Delhi and such complaint was entrusted to him for verification. He then called two independent witnesses who were Administrative Officers of LIC of India, posted at Connaught Place, New Delhi. They both came to CBI office and put necessary questions to complainant in order to find out the genuineness of the complaint. PW1 Sh. Rawat has supported Sh. Chaudhary and has deposed that he and his colleague Sh. M.S. Bhandari went to CBI office on 12.12.2007 where they met Insp. Sandeep Chaudhary who apprised them regarding complaint of Harjeet Singh and also introduced them with him and it was also apprised that some illegal gratification had been demanded from him. PW1 Sh. Rawat has also deposed that one handwritten complaint "in Hindi" was also shown to them. Such complaint has been proved as Ex. PW2/A. He further testified that he and Sh. Bhandari went through such complaint which was also read over to them by Sh. Chaudhary. He also reiterated the contents of complaint in brief in witness box. To the similar effect is the testimony of PW3 Sh. Bhandari.
6.3 In order to verify the genuineness of the allegations made in the complaint, complainant was asked to contact accused Krishan Sharawat. Following mobile numbers are important in context of present case:-
S. Subscriber Mobile No. Service CDR D No. No. Provider 1 Complainant Harjeet Singh 9999059576 Vodafone Ex. PW10/B Part of D-10 2 Accused Krishan Sharawat 9811114629 Vodafone Ex. PW10/B Part of D-10 3 Accused Vinay Kr. Khanna 9871166777 Airtel Ex. PW8/B D-11 6.4 Complainant Harjeet Singh was asked to make call to the mobile of
accused Krishan Sharawat and such incoming and outgoing calls were also recorded. CDRs on record would also show that there were following relevant calls that day:-
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 12 of 46S. No. Mobile No. Mobile No. Time Duration Type of Call 1 9999059576 9811114629 11:45:21 105 Seconds Outgoing 2 9999059576 9811114629 11:49:03 7 seconds Outgoing 3 9999059576 9811114629 11:50:16 17 seconds Outgoing 4 9999059576 9811114629 11:51:14 106 seconds Incoming 5 9999059576 9811114629 16:20:55 89 seconds Outgoing 6 9999059576 9811114629 16:27:57 18 seconds Outgoing 6.5 It would also be important to mention here that on 12.12.2007 one call from the mobile of Vinay Kr. Khanna was also received on the mobile complainant Harjeet Singh at 12:23:42 which was of duration of 13 seconds only.
All such calls can be correlated from other two CDRs also.
6.6 PW1 Sh. Rawat has deposed before the Court that telephonic conversation took place between complainant and accused in their presence and these were also recorded simultaneously on a compact cassette recorder and a verification memo was also prepared in this regard. Such verification memo has been proved as Ex. PW1/A (D-2). He also deposed that such telephonic conversation was heard as the speaker of the mobile phone of complainant was on hands-free mode. He also deposed that such conversation also reflected that accused Krishan Sharawat had shown inability to reach near Kamal Cinema that day by saying that he was far away from that place. He also deposed that as far as he was able to recall from his memory, accused Krishan Sharawat had insisted complainant to leave such demanded amount with some other cable operator but complainant refused to accept such proposal by saying that he would not like to bring some other person in the deal and conversation ended with the resolution to meet next day.
6.7 PW3 Sh. Bhandari has also deposed that he had also heard such conversation which was also being recorded simultaneously. He also deposed that complainant was claiming that he could not arrange Rs. 4,500/- and would give Rs. 3,000/- to the accused and remaining sum of Rs. 1,500/- would be given CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 13 of 46 later on. Accused Krishan Sharawat asked complainant to come within one hour near Kamal Cinema but complainant told that he could reach only between 4.00 PM & 5.00 PM and when complainant Harjeet Singh again contacted accused Krishan Sharawat at about 4.00PM to confirm his arrival at the stipulated place, accused replied that he could not reach as he was at some distant place. He has also proved the verification memo Ex. PW1/A and has also identified his signatures at point B. PW12 Sh. Sandeep Chaudhary has also deposed on the similar lines.
6.8 Verification memo was drawn same day i.e. 12.12.2007 and blank cassettes were also arranged and it was ensured that those were not containing any pre-recorded voice. All such pieces of conversations dated 12.12.2007 were transferred to such cassettes. One such cassette was marked as Q1 and one spare cassette was also prepared for investigation purpose. Transcription of such conversation contained in Q1 was prepared on 14.12.2007 which has been proved as Ex. PW1/H. There were five pieces of conversations which were transferred to such cassette marked Q1 and the last conversation indicated that accused Krishan Sharawat had asked complainant to meet him at about 2.00 PM next day.
6.9 Such cassette marked Q1 was also played before the Court during trial. Cassette has been exhibited and proved as Ex.P14. When PW1 Sh. Rawat entered into witness box, such cassette was played and he identified his own introductory voice as well as of his colleague PW3 Sh. Bhandari. He also identified the voice of complainant Harjeet Singh and of accused Krishan Sharawat. He also identified his signatures on cassette as well as on the related transcription Ex. PW1/H and deposed that the dialogues spoken by accused were marked "A" and dialogues spoken by complainant "C" in the transcription. Similarly, when PW3 Sh. Bhandari was examined before the Court, said cassette contained in pullanda Q1 was played and he also identified his own voice as well as voice of PW1 Sh. Rawat and also identified the voice of complainant as well CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 14 of 46 as of accused Krishan Sharawat.
6.10 Now let me see as to what transpired on 13.12.2007.
6.11 Such occurrence of 13.12.2007 can be divided in three parts. First part relates to the action taken in CBI office. Second part relates to journey en route to the spot and third is of spot.
6.12 Both the independent witnesses have deposed that they both were asked to come to CBI office again on 13.12.2007 and they reached there on 13.12.2007. PW1 Sh. Rawat has deposed that they reached at about 10.00-11.00 AM and CBI officials dropped hint that they may have to go for trap that day. Complainant Harjeet Singh was also present there in the CBI office and he was again asked to make phone call to accused Krishan Sharawat at about 12.00 o'clock. Such telephonic conversation was also heard by both the independent witnesses and according to Sh. Rawat, during such conversation, Krishan Sharawat asked complainant to come to Kamal Cinema to hand over the bribe and complainant again expressed his inability to pay the entire amount of Rs. 4,500/- and claimed that he could pay only Rs. 3,000/-. Further verification memo was also drawn on 13.12.2007. Such memo has been proved as Ex. PW1/F (part of D-20).
6.13 Complainant Harjeet Singh then produced six GC notes of Rs. 500 and those notes were treated with phenolphthalein powder. PW3 Sh. Bhandari has deposed that he was then asked to put such notes in the left hand side pocket of the shirt of Harjeet Singh. A voice recorder was also kept in the pocket of Harjeet Singh. Demonstration regarding reaction of phenolphthalein powder with some solution was also given. Complainant was directed to handed over those powder treated notes to accused on his demand or to any other person on the direction of accused and serial numbers of GC notes were also noted down and PW3 Sh. Bhandari was also directed to act as shadow witness and he was CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 15 of 46 directed to remain close with the complainant to watch activities and to overhear the conversation.
6.14 PW1 Sh. Rawat and PW3 Sh. Bhandari have corroborated the case of prosecution on this score.
6.15 PW3 Sh. Bhandari has also deposed that he was directed to give signal by scratching hair of his head with both the hands once such GC notes were handed over to the accused by the complainant. PW3 Sh. Bhandari has further claimed that all the members of the trap team washed their respective hands thereafter. Digital voice recorder was also arranged and it was played before them in order to ensure that it was not containing any pre-recorded voice. PW3 Sh. Bhandari has further deposed that introductory voices of he himself and of PW1 Sh. Rawat were recorded and DVR was given to complainant.
6.16 Following chart would show the various incoming and outgoing calls made on 13.12.2007:-
Calls made in CBI Office:
S. No. Mobile No. Mobile No. Time Duration Type of Call 1 9999059576 9811114629 11:58:16 37 Seconds Incoming 2 9999059576 9811114629 13:01:12 14 seconds Incoming 3 9999059576 9811114629 13:01:51 9 seconds Incoming 4 9999059576 9871166777 13:15:59 13 seconds Incoming 5 9999059576 9811114629 13:26:43 10 seconds Incoming En route calls:
S. No. Mobile No. Mobile No. Time Duration Type of Call 1 9999059576 9811114629 13:37:49 40 Seconds Outgoing 2 9999059576 9871166777 13:41:57 19 seconds Incoming 3 9999059576 9871166777 13:44:09 16 seconds Incoming 6.17 It will be also important to mention here that complainant had been given one digital voice recorder and he had also recorded the most crucial CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 16 of 46 conversation i.e. spot conversation. Handing over memo Ex. PW1/B (D-3) was also prepared in CBI office and proceedings at CBI office were completed by 1.30 PM.
6.18 PW1 Sh. Rawat has deposed that CBI team then proceeded for trap in two separate vehicles from CBI office. PW12 Sh. Sandeep Chaudhary has also deposed that complainant was directed to hand over bribe money to accused only on his specific demand or to any other person only on the specific direction of accused and not otherwise. He also claimed that all the trap team members washed their hands with soap and water and personal search of complainant was taken in order to satisfy that complainant was not carrying any other incriminating article/ documents with him. He also claimed that PW3 Sh.
Bhandari was asked to act as shadow witness and he was directed to remain close to the complainant to overhear the conversation and to see the transaction of bribe. He also deposed about the specific signal assigned to Sh. Bhandari. He also deposed that after preparing handing over memo, trap team left CBI office at about 1.30 PM and reached near Kamal Cinema, Safdarjung Enclave at about 1.50 PM. He also deposed that, in the meanwhile, complainant was instructed to contact accused Krishan Sharawat at about 1.38 PM from his mobile to the mobile of accused Krishan Sharawat in order to find the location on which accused explained that he was standing just ahead of Safdarjung Club on the roadside. At about 1.42 PM and 1.45 PM, accused Krishan Sharawat contacted from other mobile phone no. 9871166777 to the mobile of complainant and asked him to hand over the bribe money and such telephonic conversation was also recorded in DVR and was also heard through in-built speaker of mobile of complainant. Thereafter, complainant was handed over DVR in switch-on mode and shadow witness PW3 Sh. Bhandari was asked to accompany the complainant and they both rushed towards accused who was sitting in a Santro car.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 17 of 466.19 PW3 Sh. Bhandari has also deposed that all such conversation were duly recorded in DVR and accused told complainant during such conversation that there was club situated near the place where some building construction material was also lying where they were waiting in a car. He deposed that at about 2.00 PM entire trap team reached near Kamal Cinema and trap team was divided in two parts. He and complainant proceeded towards accused who was sitting in a car and other remaining trap team was also following them. He then deposed that accused Krishan Sharawat was found sitting adjoining the driving seat of such car and accused Vinay Kr. Khanna, whose name was revealed later on, was sitting on driver seat. On reaching near the car, accused Krishan Sharawat and complainant recognized each other and accused Krishan Sharawat asked complainant whether he had brought the money to which complainant replied that his matter should be settled and he should not face any problem in future. Accused Krishan Sharawat assured him that no such problem would arise and accused Krishan Sharawat asked complainant to give money by gesture. Complainant told accused Krishan Sharawat that he could arrange Rs. 3,000/- instead of Rs. 4,000/-. Accused Krishan Sharawat took out some bunch papers from the dash board of the car and asked complainant by gesture of eyes to put the bribe money on said bunch of papers. Thereafter, complainant took out the bribe money from his left side pocket of the shirt and put the same on such papers held by accused. Thereafter, accused Krishan Sharawat handed over such bribe amount to co- accused Vinay Kr. Khanna with instruction to count the same. In the meanwhile, he (PW3 Bhandari) gave pre-determined signal to the trap team members. Insp. Sandeep Chaudhary along with trap team members reached the spot.
6.20 Insp. Sandeep Chaudhary has also deposed that all the team members including Sh. G.S. Rawat had taken suitable position and complainant was seen talking with a person sitting in the left front seat of Santro Car and said person was, later, found to be accused Krishan Sharawat. He also deposed that shadow witness was also standing on left side window of the car at some CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 18 of 46 distance from the complainant and when shadow witness gave pre-designated signal, he along with independent witness and other team members rushed to the car and enquired from the complainant on which complainant told that accused Krishan Sharawat had accepted bribe amount of Rs. 3,000/- and narrated the entire story regarding the manner in which money was kept on a bunch of papers. Thereafter, he challenged accused Krishan Sharawat regarding demand and acceptance of bribe amount on which Krishan Sharawat turned pale and asked for an excuse for his misdeed. Accused Krishan Sharawat was caught with his both wrists and when other accused Vinay Kr. Khanna tried to conceal the bribe money by throwing the same near handbrake car, Insp. Prem Nath caught him from his both wrists.
6.21 Thereafter, hand-washes were taken. Hand-washes of Vinay Kr. Khanna i.e. LHW and RHW indicated that he had touched the bribe money as the solution of sodium carbonate turned pink. Paper wash of bunch of paper was also taken which also turned solution into pink. Such paper wash was put in glass bottle marked as PW.
6.22 PW1 Sh. Rawat was then asked to take out the bribe money from the floor of the car and he picked up those notes. PW1 Sh. Rawat has also deposed before the Court that he recovered such money which was lying near the handbrake of the car and he tallied the numbers of such notes from the numbers noted in pre-trap memo and such numbers were found to be same. Thereafter, a neat cloth was arranged and surface of the car where bribe money was thrown by accused Vinay Kr. Khanna was wiped with such cloth and such cloth was dipped in freshly prepared sodium carbonate solution which also turned pink and such solution was kept in glass bottle which was marked as SW.
6.23 PW12 Sh. Chaudhary has further deposed that DVR was taken back from the complainant immediately and it was played and the conversation was heard in the presence of witnesses who also confirmed the demand of bribe CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 19 of 46 by accused. Such conversation was transferred into a blank audio cassette which was marked as Q2 and before transferring the contents, it was ensured that such cassette was not having any pre-recorded voice. Rough site plan was also prepared at the spot which has been proved as Mark A (D-7) and since place of the transaction was a busy road and since public had gathered, keeping in mind the law & order situation as well as safety of accused, it was decided that further proceedings would be carried out in the office of ACB/CBI Delhi office. Accordingly, trap team members, independent witnesses, complainant and both the accused came to CBI office.
6.24 Recovery memo Ex. PW1/C (D-4), arrest-cum-personal search memo of accused Krishan Sharawat Ex. PW1/D (D-5), arrest-cum-personal search memo of Vinay Kr. Khanna Ex. PW1/E (part of D-5), car search memo Ex. PW1/M (D-19) and car & key seizure memo Ex. PW1/L were prepared in CBI office on 13.12.2007 itself.
6.25 Thus, as per deposition appearing on record, shadow witness along with complainant went towards Santro car. Accused Vinay Kr. Khanna was found sitting on the driving seat. Complainant had conversation with accused Kr- ishan Sharawat and as per the demand, complainant took out bribe money of Rs. 3,000/- from his pocket of his wearing shirt and extended the same towards accused Krishan Sharawat. Accused Krishan Sharawat, however, acted in a very clever and cunning manner and did not touch the notes and rather, with the gesture of his eyes, asked complainant to put the same in a bunch of papers and then asked his co-accused to count the same. In the meanwhile, shadow wit- ness gave indication to CBI team which rushed there in no time and after giving their introduction, accused was challenged. Then, accused Vinay Kr. Khanna threw the bribe money near handbrake in order to hide the same. For the mo- ment, I am not referring to the conversation as recorded on 13.12.2007 and as contained in cassette Ex. P-17 contained in pullanda Q2.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 20 of 466.26 Sh. H.K. Sharma has argued that both the independent witnesses are planted witnesses and their testimony is not reliable at all. According to him, the version appearing on record is inter-contradictory as well as self- contradictory. According to him, it was not possible for the other members of the trap team, who were at some distance, to notice as to what was transpiring inside the car. According to him, if complainant had extended his hand inside the car to offer the bribe, it was not possible for the trap team members to notice that complainant had been asked to put the bribe money in a bunch of papers.
6.27 Testimony of PW3 Sh. M.S. Bhandari is very clear on this score. He has categorically claimed that Krishan Sharawat asked complainant, by gesture of eyes, to put bribe money on bunch of papers.
6.28 As far as TLO Sh. Sandeep Chaudhary is concerned, he has merely claimed that complainant was seen talking with a person sitting on the left front seat of the Santro car and they rushed to the spot once shadow witness gave pre-decided signal. In his cross-examination, Sh. Sandeep Chaudhary has admitted that he did not overhear any live conversation between complainant and occupants of the car and that he rather heard recorded conversation subsequently.
6.29 PW1 Sh. Rawat, who was with the trap-team and at some distance, has deposed that he had seen complainant taking out the notes and that such amount was kept on the bunch of papers by the complainant as per the direction of accused. According to Sh. Sharma, it was not possible for Sh. Rawat to have noticed such fact. In his cross-examination, Sh. Rawat has claimed that he was at some distance and, therefore, he did not hear the entire conversation but some pieces spoken at a louder pitch were heard by him. I cannot be oblivious of the fact that testimony of Sh. Rawat was recorded in the Court on various dates between 01.09.2009 till 19.07.2013 and it is not expected that he would create virtual scene replicating the exact happening without any digression. A careful CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 21 of 46 perusal of his testimony would indicate that he has come up with all the material and vital details and did not miss out on any material aspect. The crux and substance of his testimony gives a strong impetus to the case of prosecution.
6.30 Minor contradictions are bound to appear in each and every criminal trial and it becomes the pious duty of the Court to see whether the contradictions or omissions pointed out by the defence go to the root of the matter and thereby tend to create a reasonable doubt with respect to the correctness of the prosecution version or not. If these contradictions create a suspicion then these can be said to be material contradictions. However, inconsequential, insignificant and trivial contradictions cannot be given any weightage.
6.31 Let me come to the transcription contained in cassette Ex. P-17 contained in pullanda Q-1. Such transcription has been proved as Ex. PW1/J and there are five sets of conversations and the most important is the spot- conversation which has been marked as Y5 to Y8. Such transcription reads as under:
--Hello.
-Aare yah Dusare Wala Paise Le Raha, Dusare Wala Yah Khara Hai.
-Sir Ji Notice Ka Kaya Karun..... Notice.
-Kaya Kah Rahe Ho.
C-Jo Notice Aa Rakha Hai.... Namaste Sir.
-Kab Ka Ban Gaya Yah.
C-Yah Dekho Na Notice, Aap Batao Mujhe.
C-Notice Aaya Hai, Batao.
A-Notice To Aayega, Notice Assessment Karao Nahi Karaoge Kaya.
C-Sir Maine Bola 30 Tarikh Ko Do Kisat Jama Bhi To Karai Hai. A-Yah To Assessment Notice Hai.
C-Hai.CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 22 of 46
A-Yah Assessment Notice Hai.
C-Assessment Bolo.
A-Jo Pichhale Saal Ka Tax Jama Kar Rakha Hai, Unko Security De Do, Yah Assessment Ho Jayega, Ek Saal Ka........... C-Kal Ki Baat To Nahi Hogi iss pe.
A-Aare Koi Dikkat Nahi, Yah Assessment Karani Parati Hai, Yah Kaun Bhai Hai, Cable Wale Hai Kaya.
C-Nahi, Ye Haridwar Jana Hai, Na Bataya Tha Na Kal Death Ho Gai, Haridwar Jane Ko Baithe The Kab Se.
A-Aachcha-Aachcha, Isame Koi Dikkat Nahi Aayega. Isako Bataa Raha Hun Assessment Hai, Tax up-to-date Karke Na.
Assessment Kara Dena, Kaaye Ki Dikkat Hai.
A-Abhi To Tax Hi Hai Adhura Tera.
C-Dekh Lena Sir, Koi Baat Na Ho Aapke Upar Hai.
A-Kaya Kahna Hai Bhai Sahab.
Yah Hamara Kaam Hai Na.
A-Aisa Hai, Inke Liye Koi Sardardi Wali Baat.
Udhar Rakh.
C-Aap Gin To Lo Ek Baari, Gin To Lo Ek Bari, Aare Kam Hai. A-Aare Na.
C-Jayada Kam Hai, Isliye Kah Raha Hun.
A-Kitane Hai.
-Kaya Kah Raha Hai.
-Kitane Hai Yah.
C-Gin Lo Na.
-Yah To Teen Hai Sirf.
C-Sir Hai Hi Itane, Main To Bol Hi Tha, Abhi Teen Hai. A-Gin Liyo Phir Tax up-to-date Kar Do.
C-Hai.
A-Tax up-to-date kar de.
C-Ji Sir, Batao Na.
A-Kaya.
C-Phir Kaise Karna Hai.CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 23 of 46
A-Kaya Karna Hai.
C-Kaise-Kaise Karna Hai.
-Kisne Liya.
C-Inhone Unke Haath mein de diya.
-De.
C-Inhone Unke Haath mein de diya.
6.32 Both the defence counsels have expressed their astonishment with respect to the first line occurring in said piece of conversation. It is also important to mention here that in the transcription since letter "C" is missing, probably prosecution feels these first line utterances were not of the complainant. The Court, however, heard the conversation recorded in Q1 & Q-2 very carefully, minutely and repeatedly. In fact, both the cassettes were requisitioned during the final arguments and were retained on record and it is loud and clear that even this line " Aare yah Dusare Wala Paise Le Raha, Dusare Wala Yah Khara Hai" has been spoken by none other than the complainant.
6.33 PW3 Sh. M.S. Bhandari, shadow witness was also cross-examined with respect to aforesaid utterances and in his cross-examination, he deposed that these words were uttered by complainant Harjeet Singh. Naturally, then he was asked as to whom he had addressed so. Sh. M.S. Bhandari then deposed that he heard that utterances but he could not tell whether he addressed that line to any particular person. He then further claimed that these were addressed to accused Krishan Sharawat. Surprisingly, according to defence suggestion, these words were spoken by shadow witness Sh. M.S. Bhandari. Suggestion is required to be rejected out-rightly as these utterances are found to be of complainant and complainant only. PW1 Sh. Rawat, who was, admittedly, at some distance, has claimed that these words were spoken by complainant. In response to a specific question in this regard, he categorically deposed that complainant was talking to the accused and none else and these words "Aare CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 24 of 46 yah Dusare Wala Paise Le Raha, Dusare Wala Yah Khara Hai" were the reaction of the complainant since money was not actually taken by Krishan Sharawat. He also claimed that he was at a distance of 5-7 meters and he could also see inside the car through the rolled down window of Santro car.
6.34 TLO Sh. Sandeep Chaudhary was also grilled about such line of spot conversation. He deposed that transcription was prepared by Insp. Prem Nath and only Insp. Prem Nath could answer as to who had spoken these words.
He created some sort of confusion by claiming that it was quite possible that those utterances might be of Insp. Prem Nath. But fact remains that such line is found spoken by complainant only.
6.35 Now it remains to be seen in what context, complainant was forced to say so. Naturally, complainant had come with a specific purpose. He knew that he was a crucial member of the trap team. He did not want to pay bribe and, therefore, he himself had contacted CBI and wanted accused to be caught red- handed while accepting bribe. In such a situation, he would not have, naturally, uttered any line which may create any alarm in the mind of the accused. I went through the entire charge-sheet and also the statements of witnesses recorded u/s 161 Cr.P.C. and even the case diary to find out any logical explanation of such utterances. I noticed that shadow witness Sh. M.S. Bhandari, in his such statement u/s 161 Cr.P.C, claimed that he along with complainant was standing on the road near Safdarjung Club and one person, who was sitting in the driver seat of a Santro car, called the complainant by giving a signal by raising his right hand and then he along with complainant reached near the Santro car. This is the same Santro car in which both the accused were found sitting. This, noticeably, provides some raison d'être behind uttering said line. When complainant received signal from some other person, he might have felt that such other person wanted to collect the bribe and he might have, therefore, innocuously said so which too was captured by DVR.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 25 of 466.36 I am wary of the fact that such statement recorded u/s 161 Cr.P.C. is not admissible in evidence per se and matter has to be adjudicated on the basis of legally admissible material. But, since complainant has not testified before the court, such scene is required to be reconstructed by the court. Moreover, it is also as plain as nose on the face that such line was spoken by complainant before he had actually met accused Krishan Sharawat. The spot conversation has already been extracted above and after line "Aare yah Dusare Wala Paise Le Raha, Dusare Wala Yah Khara Hai", complainant started talking about one notice and then said "Namaste Sir'. If complainant had actually met accused Krishna Sharawat before uttering said line, there was no reason for him to have greeted him subsequently.
6.37 I am, therefore, of the opinion that defence cannot be permitted to take out any advantage of any nature whatsoever from the aforesaid utterance.
6.38 Defence has also laid stress upon one notice of assessment. As per spot conversation, it was shown by the complainant to accused. Oral testimony before the Court does not point out that complainant had shown any such notice to accused Krishan Sharawat but the transcription does talk about the same.
6.39 I have heard the spot conversation which is hardly of three minutes duration and even if some notice was shown to the accused by the complainant and even if independent witnesses and TLO have not corroborated such fact about showing of any such notice, such gaffe, in itself, would not be enough to create any doubt with respect to the correctness of the case of prosecution. As already observed above, it is not possible for the independent witnesses to reveal happenings frame by frame.
6.40 Sh. Sharma has contended that as per the case of CBI, complainant was not permitted to carry anything incriminating other than bribe CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 26 of 46 money, DVR and mobile. But, he was found carrying the notice of assessment which was, in fact, an incriminating piece in the context of present case. However, I am not impressed with such defence contention and even if complainant, without the knowledge of others, carried any such notice with him and had even shown such notice to the accused, that would not mean that prosecution story is artificial in toto.
6.41 Admittedly, site plan does not bear signatures of independent witnesses and name or location of one crucial witness Sh. Rawat is not shown or reflected therein. However, such omission would not mean that Sh. Rawat had not gone to the spot or that site plan has been switched. Inspector Prem Nath has not entered into witness box but it does not cause any dent upon the case. It is accepted fact that it is the quality of the evidence which matters and not the quantity.
6.42 Merely because, there was a possibility, which can be surely in any case, to throw the notes would not tantamount to hold that notes were thrown inside the car. Testimony led by CBI manifestly indicates that bribe was accepted by the accused Krishan Sharawat as per his illegal demand. Words 'udhar rakh', 'kitney hai' appearing in transcription and attributed to accused Krishan Sharawat coupled with testimony of independent witnesses and of TLO instantaneously repel and ward off any chance of throwing the money.
ELECTRONIC EVIDENCE 7.0 According to Ld. Prosecutors, even if complainant has not graced the witness box, court can always, additionally, fall upon electronic evidence to gather the truth more so when his voice has been, in no uncertain terms, identified by all the concerned witnesses.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 27 of 467.1 A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Evidence Act. It is res gestae. In S. PRATAP SINGH V. STATE OF PUNJAB, AIR 1964 SC 72, Apex Court considered the issue and clearly propounded that tape recorded talks are admissible in evidence. As regards the evidence recorded on a tape Recorder or other mechanical process, court is always required to keep following safeguards in mind:-
(1) The voice of the speaker must be identified by the maker of the record or by others who recognize his voice. Where the voice is 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 voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out.
(5) The statement must be relevant according to the rules of evidence and (6) The recorded cassette must be carefully sealed and kept in safe custody.
7.2 Reference be also made to Ram Singh & Ors vs Col. Ram Singh AIR 1986 SC 3, R. M. Malkani v. State of Maharashtra AIR 1973 SC 157, two most landmark and often-quoted judgments on the subject.
7.3 Thus, as regards such recorded voice, proper identification is sine qua non and the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. It is also required to be established that such conversation was appropriately recorded and secured and sealed immediately leaving no chance of tempering. It is known fact that tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. Voice of the speaker must be CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 28 of 46 also duly identified by the maker of the record or by others who recognize his voice. Here, voices of accused Krishan Sharawat and complainant have been duly identified by the material prosecution witnesses.
7.4 Undoubtedly, science of voice recognition is not as accurate and prefect as the science of fingerprinting. It is still developing. I am also mindful of the fact that electronic evidence is essentially to be used for corroboration purpose. It cannot be taken as primary evidence. This court is also conscious of the observations given by Apex Court in the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143 to the effect that evidence of voice identification is, at best, suspect, if not, wholly unreliable. Thus, such electronic evidence is required to be weighed in the backdrop of primary evidence only. It is being evaluated in order to purely comprehend whether it lends assurance and credibility to the version of independent witnesses or not. And, on careful perusal of transcription of such conversation and also on the basis of hearing the actual contents of such cassettes, I do feel that such electronic evidence strengthens the case of CBI as it lends full support to the deposition of material independent witnesses.
7.5 I would, however, lay emphasis on one crucial aspect which CBI rarely adheres to.
7.6 In the instant case also, for the most crucial conversation which occurred at the spot, DVR had been used. Therefore, needless to say, such DVR was very essential piece of evidence. Such DVR must be containing the original file but for reasons best known to the investigating agency such DVR, which is not that expensive gadget, was not made part of case property. Rather, the contents were transferred to cassettes which act was not fully justifiable. While transferring the contents from DVR to cassettes, if anyone has malafide intention, some portion can be easily deleted or left out as per the comfort of investigating agency. Fortunately, I have not been able to gather any malafide CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 29 of 46 intention on part of anyone to edit the contents while transferring and nor defence has been able to show that the voices contained in such cassettes were not of complainant and accused Krishan Sharawat. Mere bald denial will not serve any purpose.
7.7 Judicial time is valuable. It has been experienced that in such type of cases, sometimes, the court has to sacrifice whole day for hearing entire such conversation recorded on cassette. CBI, for totally inexplicable reasons, is not making best use of the technological tools. Playing of such conventional cassette, virtually now a stone age tool, requires bringing a cassette player. Biggest drawback of such cassette player is that one cannot run such cassette from a particular point for any particular duration. In case of CD or DVD, conversation can be heard even from a particular fraction of second. It is not so in the case of cassette. Courts are equipped with computer systems and if instead of transferring the contents to cassettes, such contents are transferred to CD or DVD, it would become very easy and convenient for the Court to hear such audio-evidence with the help of computer.
7.8 Taking voice sample of an accused by the police during investigation is not hit by Article 20 (3) of the Constitution. Moreover, it has not been pleaded before me that accused were coerced to give such samples.
7.9 PW13 Dr. Rajender Singh had carried out auditory examination and on the basis of comparison of questioned voices and specimen voice of accused Krishan Sharawat, voice spectrographic examination and taking note of format frequency and distribution, intonation pattern, numbers of formants and other general visual features in voice grams, he opined that questioned voice was probable voice of accused Krishan Sharawat. He has proved his such report as Ex. PW13/A (D-13). Merely because CFSL is administratively controlled by CBI, it cannot be inferred that report was biased or unfair.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 30 of 467.10 It will be important to mention that Dr. Singh, too, admitted that when the contents are transferred from DVR to cassette, there can be a possibility of editing the contents. He admitted that CFSL had received the cassettes and not DVR. He also admitted that he had received transcription which was containing as to what was said by whom. Merely because such transcription contained references about the speakers, it cannot be mechanically inferred that report is based on such references only and that Dr. Singh has not carried out any actual examination at all. Dr. Rajender Singh is found to be having more than 22 years experience in the field of forensic voice identification and has examined more than 1000 cases of such nature and I do not have any reason to discard his testimony.
7.11 Needless to say that transcription should be prepared with complete precision and voice of every person figuring therein should be got identified during the investigation stage itself. As far as possible, Voice expert should not be sent any reference which may assist him to identify the speaker. Except for specimen and questioned voices, nothing else should be sent to such expert. In the present matter, however, I would go to the extent of saying that even if I completely disregard the electronic evidence, the overwhelming oral evidence, in itself, is sufficient to nail down accused Krishan Sharawat.
CHEMICAL EXAMINATION REPORT 8.0 PW4 Dr. N.M. Hashmi was posted as Senior Scientific Officer-II in CFSL and he has proved his report dated 04.01.2008 as Ex. PW4/A (D-12). He was supplied with bottles containing RHW & LHW of accused Vinay Kr. Khanna. One another glass bottle having label of PW was containing paper wash of paper on which accused Krishan Sharawat had accepted the bribe and another sealed bottle mark SW was containing surface wash near the handbrake of Santro car.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 31 of 468.1 Contents of all such bottles gave positive test of the presence of phenolphthalein.
8.2 I have already observed that even as per the case of prosecution, accused Krishan Sharawat had not accepted the money by touching his own hands. He had forwarded a bunch of papers and asked complainant with gesture of eyes to put the notes in that bunch and then his co-accused had picked up those notes with his hands and counted the same. It was for this precise purpose that hand washes of accused Krishan Sharawat were not taken at the spot.
JOB PROFILE OF ACCUSED KRISHAN SHARAWAT 9.0 There does not seem to be any dispute with respect to the job profile of accused Krishan Sharawat. In his statement u/s 313 Cr.P.C. he admitted that he joined as Inspector, Entertainment Tax Department in April 2007. He also claimed that he and other similarly situated Inspectors, as per the directions of superiors, were directed to make all efforts to get the required tax revenue collected from the defaulters and, therefore, he was trying to contact all such defaulters to collect the maximum tax. According to him, even if anyone tried to impersonate as representative of any such defaulter cable operator, he was contacting him on phone and was responding positively so that such cable operator makes due and payable entertainment tax. According to him, he was making extra efforts to collect arrears of entertainment tax.
9.1 Enthusiasm to generate more and more revenue for the department would earn a round of applause for any public servant.
9.2 However, accused in his own statement recorded u/s 313 Cr.P.C. also admitted that he used to collect such tax in the form of demand draft payable to Entertainment Department. Things would have been entirely different CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 32 of 46 had he collected any demand draft or pay order in the name of Entertainment Department from complainant Harjeet Singh.
9.3 He had no business to collect cash.
9.4 I have seen the testimony of PW9 Sh. E. Raja Babu who was Entertainment Tax Officer-cum- Assistant Commissioner, Luxury Tax in 2007 and was Head of the Entertainment Tax Branch. He deposed that on 13.12.2007, Insp. H.K. Lal came to his office and informed that Krishan Sharawat, Inspector of their branch had been apprehended by CBI team red-handed and that CBI wanted file containing assessment documents of M/s Balaji Cable TV Network. Such file was accordingly given by him to CBI vide seizure memo Ex. PW5/A. Such file is Ex. PW5/B. In his cross-examination, he admitted that mode of payment of Entertainment Tax was through cheque or DD and the Inspectors were to ensure that taxes were paid by the assessee. When asked whether it was also the duty of such inspector to collect the tax by visiting office of the assessee, he claimed that there was no official order in that regard. He also, however, claimed that inspectors were required to ensure that the tax was deposited.
9.5 Thus, even if it is assumed that it was part of the job of Entertainment Tax Inspector to collect arrears of tax by visiting the office of such cable operators, there was no rationale in accepting any cash amount from anyone.
9.6 Consumption of alcohol in a public place is prohibited and attracts penal action.
9.7 Accused Krishan Sharawat was a public servant and if his stance is to be believed then he was on official duty when he was travelling in Santro car as according to him he had gone to collect tax from defaulter cable operators. It CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 33 of 46 was asked from Sh. Bhandari whether he had noticed any glass containing any liquor inside the car or whether he had noticed accused or his companion taking drinks in the car. Sh. Bhandari, however, pleaded ignorance about any such fact. Further suggestion put to this witness does clearly indicate that as per defence stance, accused were consuming liquor in Santro car at the relevant time. Such conduct on the part of any public servant is awful and appalling and does not do any good to the defence. Undoubtedly, the Court should not be swayed away by such suggestion of defence but fact remains that such act of drinking alcohol in public place on the part of a public servant would be reflection of the manner in which he used to take up his job - whether seriously or very casually.
LOCUS OF HARJEET SINGH 10.0 Much has been said by defence regarding the status and locus of complainant Harjeet Singh.
10.1 According to defence, there is no material on record to suggest any sort of connection between Harjeet Singh and M/s Balaji Cable TV Network. My attention has been drawn towards file Ex. PW5/B. In fact, name of Harjeet Singh is conspicuously missing in such file. It talks about one Vipin Kumar and one Sukhbir of M/s Balaji Cable TV Network. It would have been certainly better had the investigating agency collected some documents in order to demonstrate as to in what capacity, Harjeet Singh was interacting with Entertainment Tax Department.
10.2 Fact, however, remains that when statement of accused Krishan Sharawat was recorded u/s 313 Cr.P.C., he admitted that complainant Harjeet Singh asked as to what was to be done with the assessment notice. He also claimed in his such statement u/s 313 Cr.P.C that he told complainant to deposit the whole tax with ITO Headquarters. Entertaining Harjeet Singh, who was CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 34 of 46 armed with assessment notice, itself, indicates that complainant was having some sort of nexus with M/s Balaji Cable TV Network. If he was a rank outsider, would accused Krishan Sharawat explain as to why he entered into in-depth conversation with him? Moreover, I need not remind myself that criminal machinery can be set in motion by anyone.
CONSPIRACY THEORY 11.0 As far as accused Vinay Kr. Khanna is concerned, as per prosecu- tion there are following imputations appearing on record:-
(i) He was accompanying his co-accused Krishan Sharawat on 13.12.2007.
(ii) He permitted his mobile phone to be used by Krishan Sharawat.
(iii) He counted the money given to him by Krishan Sharawat and he knew that the same had been offered as bribe to Kr-
ishan Sharawat.
(iv) When challenged by CBI team, he threw the money in order to hide the same.
11.1 According to accused Vinay Kr. Khanna, he was only a friend of Krishan Sharawat.
11.2 Undoubtedly, to befriend any public servant is not an offence. Similarly, travelling with a public servant in a car is also not criminal. Merely by lending his phone to Krishan Sharawat, accused Vinay Kr. Khanna has not committed any wrong or illegal act either.
11.3 I have carefully gone through the transcription of conversation dated 12.12.2003 & 13.12.2003 and I have also heard the conversation as found recorded in two cassettes. I am not unmindful of the fact that when accused Krishan Sharawat was talking to the complainant on mobile, he must have been CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 35 of 46 talking in a normal manner and mobile handset of Krishan Sharawat would not have been on hands-free mode, most likely. In such a situation, it was not feasible for accused Vinay Kr. Khanna to have heard as to what responses were given by complainant Harjeet Singh. From the one sided conversation, it cannot be robotically deciphered that accused Vinay Kr. Khanna knew fully well that his co-accused had called Harjeet Singh for such ulterior purpose. Such demand can be inferred only when both-side conversation is heard.
11.4 Such tainted GC notes were not handed over to accused Vinay Kr. Khanna directly by the complainant. Such notes were rather given to Krishan Sharawat. Thereafter, Krishan Sharawat had given the same to Vinay Kr. Khanna for the purpose of counting only.
11.5 Learned Prosecutors have claimed that accused Vinay Kr. Khanna very well knew that Krishan Sharawat was a public servant and that he had accepted the money in a blatant manner. Such money was received by Krishan Sharawat before his eyes which clearly indicates that he was part of the conspiracy. It has further been contended by learned Prosecutors that accused Vinay Kr. Khanna tried to befool everyone by throwing the notes which act was purely for the purpose of concealing the notes.
11.6 I am, however, not impressed with such contention. Indubitably, Vinay Kr. Khanna knew that accused Krishan Sharawat was a public servant but to accept that he would also be knowing completely about the in-depth job profile and duties of accused Krishan Sharawat would be too fanciful to imagine. Undeniably, he must have seen accused Krishan Sharawat accepting money in some unusual manner as accused Krishan Sharawat had taken the money on a bunch of papers. He, admittedly, counted the same but mere counting of notes would not show that he was a co-conspirator in real sense. Rather, the moment accused Krishan Sharawat had accepted the money, offence was complete for all practical purposes. By that time, accused Vinay Kr. Khanna had neither been CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 36 of 46 asked to count the notes nor had he thrown the notes. Therefore, till the time of actual completion of offence, only imputations appearing on record against accused Vinay Kr. Khanna are to the effect that he was accompanying accused Krishan Sharawat and he had permitted accused Krishan Sharawat to use his mobile phone.
11.7 I also do not find convincing evidence on record which may depict, without any skepticism, that by throwing the notes, accused Vinay Kr. Khanna was actually trying to conceal the notes.
11.8 PW3 Sh. Bhandari has deposed that when he gave pre-determined signal to the trap-team, Insp. Sandeep Chaudhary along with other trap team members reached at the spot and bribe money was recovered from near the handbrake of the car which was thrown by accused Vinay Kr. Khanna under the fear. I lay emphasis on these exact words. As per the shadow witness, who was at the spot all along, such money was thrown by accused Vinay Kr. Khanna under panic and not in order to screen the same. PW1 Sh. Rawat has deposed that accused Vinay Kr. Khanna had thrown the GC notes. He nowhere claimed that his such act was to conceal the factum of acceptance of notes. PW12 Sh. Sandeep Chaudhary, TLO did depose that accused Krishan Sharawat tried to conceal the bribe money by throwing the same near handbrake of the car but his such deposition is not in complete synchronization with the testimony of shadow witness Sh. Bhandari.
11.9 Thus the role and conduct of accused Vinay Kumar Khanna does not transform him into any abettor or co-conspirator. His mere knowledge that his friend had accepted any bribe will also not make him guilty. His act of counting the notes would not also project him as willing partner-in-crime.
11.10 In view of my foregoing discussion, I find it to be a fit case where accused Vinay Kr. Khanna deserves to be given benefit of doubt for CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 37 of 46 want of convincing and clinching evidence to the effect that he was intentionally aiding his co-accused or that he had abetted commission of offence in question or that he was a co-conspirator.
JUDGMENTS CITED AT THE BAR 12.0 Undoubtedly, as already noticed above, complainant was not fully examined and his part-evidence is of no avail. According to learned defence counsels, prosecution case is liable to fail for want of version of the most material witness.
12.1 Learned Prosecutors have, on the other hand, contended that there are various instances where merely on the basis of testimony of independent witnesses and in some cases even relying on sole testimony of TLO, conviction has been recorded. They have also claimed that in several reported judgments, even in the backdrop of the hostile testimony of complainant, accused has been held guilty relying on deposition of other witnesses and, therefore, there is no universal principle that in case complainant does not grace the witness box, entire case is liable to be discarded. Prosecution has relied upon following judgments:-
(i) State through CBI Vs. Satvir Singh, Criminal Appeal No. 337/1999 (DOD: 07.01.2011) Delhi High Court
(ii) Yogesh Kumar Vs. State, Criminal Appeal No. 15/2007 (DOD: 02.04.2009) Delhi High Court
(iii) Kishan Chand Mangal Vs. State of Rajasthan AIR 1982 SC 1511
(iv) Dr. K. Satyanarayana Reddy Vs. State of AP Criminal Appeal No. 157/2005 (DOD: 30.07.2012) AP High Court
(v) Bhupinder Singh Sikka Vs. CBI Criminal Appeal no.
124/2001 (DOD: 25.03.2011) Delhi High Court CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 38 of 46 12.2 Sh. H.K. Sharma, learned defence counsel has also placed his re- liance upon various judgments.
12.3 In relation to issue relating to absence of demand in any trap case and its consequent effect, reliance has been placed on Suraj Mal Vs. State (Del- hi Admn.) (1979) 4 SCC 725; G.V. Nanjundiah Vs. State AIR 1987 SC 2402; Anand Swaroop Vs. State 1988 Cri.L.J. 756; Harbharosey Lal Vs. State of UP 1988 Cri.L.J. 1122; Som Prakash Vs. State of Punjab 1992 Cri.L.J. 490 (SC); CM Girish Babu Vs. CBI (2009) 3 SCC 779; V. Kannan Vs. State 2009 (IX) AD (SC) 293; State of Maharashtra Vs. Dyneshwar Luxman Rao Wankhede VI (2009) SLT 439; Bansari Dass Vs. State of Haryana 2010 (3) JCC 1842 (SC); Rajinder Singh Vs. State of Punjab 2010 (1) CC Cases (HC) 60 (P&H); Harbans Singh Vs. State of Punjab 2010 (2) CC Cases (HC) 287 (P&H); Ashok Kumar Vs. State of Haryana 2011 (1) CC Cases (HC) (P&H) 281; Pyare Lal Vs. State 149 (2008) DLT 425 (DB); Prem Raj Meena Vs. CBI (2011) (1) Crimes 730 (Del); State of Kerala & Anr. Vs. C.P. Rao (2011) 6 SCC 450.
12.4 It has also been stressed by Sh. Sharma that corroboration is always essential in any corruption-case. In this regard, he has relied upon Panna Lal Damodar Rathi Vs. State of Maharashtra 1980 SCC (Cri.) 121; Ayyasami Vs. State of Tamilnadu 1992 Cri. L.J. SC 608; Chanderbhan Vs. State (CBI) 73 (1998) DLT 318; Subhash Prabhat Sonvane Vs. State of Gujarat AIR 2003 SC 2169; Karnail Singh Vs. State of Punjab (2009) 3 CC Cases (HC) 145 (P&H); State of Maharashtra Vs. D.L. Rao Vankhede (supra); A. Subair Vs. State of Kerala 2009 (VII) AD (SC) 117; V. Kannan Vs. State (supra); Banarsi Dass Vs. State of Haryana (supra); Rajinder Singh Vs. State of Punjab (supra); Ashok Kumar Vs. State of Haryana (supra).
12.5 Sh. Sharma has contended that testimony of independent witnesses is not reliable as they have come up with different versions and, therefore, they have not been able to withstand the test of cross-examination. In CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 39 of 46 this regard, he has placed his reliance upon Suraj Mal Vs. State of Delhi AIR 1971 SC 1408; Sat Paul Vs. State AIR 1976 SC 294; Panna Lal Damodar Rathi Vs. State (supra); Randhir Vs. State 1980 Cri.L.J. 1397 (Delhi); Sunny Kapoor Vs. State AIR 2006 SC 2242 and CM Girish Babu Vs. CBI, Cochin (supra).
12.6 Relying upon Union of India Through Inspector Vs. Purnandu Biswas JT 2005 (12) SC 505 and State of AP Vs. T. Venkateshwara Rao 2004 (III) AD (SC) 493, it has been argued that any statement made during the course of investigation by any TLO cannot be considered as an evidence. As regards site plan, it has been claimed that site plan is drawn on the basis of statement given to any official of investigating agency and, therefore, such site plan is also to be considered as a part of statement and, therefore, cannot be relied upon as it is not admissible in evidence per se. In this regard, he has placed his reliance upon Santa Singh Vs. State of Punjab AIR 1956 SC 526 and Ram Krishan Mithan Lal Sharma & Ors. Vs. State of Bombay AIR 1955 SC 104.
12.7 It has also been argued that entire evidence is required to be read and conclusion cannot be drawn merely on the basis of some stray sentences appearing in the testimony of any witness. In this regard, reliance has been placed upon Sat Paul Vs. Delhi Admn. (supra).
12.8 Sh. Sharma has further contended that if two views are possible, accused is entitled to benefit of doubt and in order to substantiate his such contention, he has relied upon T. Subramanian Vs. State of Tamil Nadu AIR 2006 SC 836; Vikramjit Singh @ Vickey Vs. State of Punjab 2007 (1) Crimes 181 and Sambhaji Hindurao Deshmukh & Ors. Vs. State of Maharashtra 2008 (1) C.A.R. (SC) 235.
12.9 Relying upon Amarpal (Rajpal) Vs. State 2010 (VII) AD (Delhi) (DB) 696, it has been argued by the defence counsel that trial court is under bounden duty to evaluate the evidence with microscopic eyes and then test the CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 40 of 46 veracity of ocular evidence.
12.10 Needless to express that each case has its own peculiarity and factual matrix of any two case would never be comparable. In UNION OF INDIA & ANR. VS. ARULMOZHI INIARASU & ORS (2011) 9 SCR page 12, it has been very aptly observed as under:-
"Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. (Ref.: Bharat Petroleum Corpn. Ltd. & Anr. Vs. N.R.Vairamani & Anr; Sarva Shramik Sanghatana (KV), Mumbai Vs. State of Maharashtra & Ors. and Bhuwalka Steel Industries Limited Vs. Bombay Iron & Steel Labour Board & Anr.)"
12.11 I have gone through the aforesaid cited judgments very carefully. Legal propositions are not disputed at all. However, defence cannot dig out any real advantage out of these cited judgments keeping in mind the peculiar, unique, typical and distinguishing facts of the case in hand. It cannot be said that in the present case, any of the ingredient i.e. demand, acceptance or recovery has not been proved. Testimony on record is also trustworthy and there is enough corroboration. It also is not a case where accused has been implicated by complainant out of any enmity. It is also not the case of defence that money was received by him but that was on account of any legitimate dues like repayment of loan or payment of lease rent etc. There is nothing to show that money was forcibly thrust upon the accused. Admittedly, decision has to be on trustworthy and forceful evidence and not on shaky evidence or inferences.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 41 of 4612.12 Evidence, just discussed above, clearly indicates complicity of accused Krishan Sharawat. Both the independent witnesses have withstood lengthy cross-examination commendably and defence has not been able to bring out infirmity of such a magnitude which may be indicative or suggestive of any false implication. I am not able to find out any material which may show that the both the independent witnesses were planted witnesses or that they had not seen the occurrence with their own eyes. Rather suggestions put to Sh. Bhandari would indicate that even defence never harboured any dispute about the presence of such witnesses near the spot. Answers recorded in this regard are as under:-
"It is wrong to suggest that place where accused Krishan Sharawat was apprehended was not walking distance from the place where we had alighted."
"It is wrong to suggest that we re-boarded the car to reach that place after alighting at Safdarjung Development Area."
12.13 I would also like to remark that testimony of any complainant in any such case is of utmost important but case of prosecution cannot be discarded merely because it failed to examine complainant though ideally complainant should be examined. Prosecution tried hard to produce him but he shifted from his last known address without any clue and in such a situation, CBI cannot be blamed and accused cannot be given any clemency.
12.14 Court has the benefit of assessing and evaluating the testimony of both the independent witnesses including shadow witness. There is no reason as to why these neutral officials would depose against a stranger.
12.15 In State of U.P. v. Zakaulla, (1998) 1 SCC 557 it was held that the conviction can be based even on the evidence of the trap laying officer without corroboration. Relevant portion reads as under:-
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 42 of 46"10. The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependant of the police or other officials for any purpose whatsoever. [Hazari Lal v. State (Delhi Admn.) [(1980) 2 SCC 390: 1980 SCC (Cri) 458: (1980) 2 SCR 1053].]
11. The most important evidence is that of PW 4 Harendra Singh Sirohi, the Superintendent of Police who arranged the trap. We must mind the fact that he had no interest against the respondent. But the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officer. He made arrangements to smear the phenolphthalein powder on the currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into the pocket of an unwilling officer. Such a test is conducted for his conscientious satisfaction that he was proceeding against a real bribe-taker and that an officer with integrity is not harassed unnecessarily.
12. The evidence of such a witness as PW 4 can be acted on even without the help of any corroboration [vide Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90: 1979 SCC (Cri) 656: (1979) 2 SCR 330]; Hazari Lal v. Delhi Admn. [(1980) 2 SCC 390: 1980 SCC (Cri) 458:
(1980) 2 SCR 1053]."
12.16 Even in one case relied upon by defence i.e. Som Parkash Vs. State of Delhi, AIR 1974 SC 989, while convicting the accused for accepting bribe, it was observed as under:-
".........general denunciation of investigating officers as a suspect species also ill merits acceptance. The demanding degree of proof traditionally required in a criminal case and the devaluations suffered by a witness who is naturally involved in the fruits of his CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 43 of 46 investigative efforts, suggest the legitimate search for corroboration from an independent or unfaltering source-human or circumstantial to make judicial certitude doubly sure. Not that this approach casts any pejorative reflection on the police officer's integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may, impair confidence in the system of justice. We are aware of the exaggerated criticisms of the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements recorded by police investigators but these are, partly at least, the hangover of the British past. To-day, trust begets trust and the higher officers of the Indian Police, especially in the Special Police Establishment deserve better credence."
12.17 Site plan, even if excluded from the scope of consideration, would hardly make any difference. Moreover, even the preparation of exhaustive memorandums before leaving for spot, to me, was not really warranted.
12.18 Sh. Sharma has relied upon one judgment cited as Ashok Kumar Vs. State Criminal Misc (Main) No. 374/2005 ( DOD 03.08.2006, Delhi High Court) but keeping in mind the facts of the present case, I am not really able to comprehend as to how principal accused can dig out any benefit out of the same as said judgment pertains to abettor/co-conspirator.
CONCLUSION 13.0 Basic difference between Section 7 & 13 (1) (d) of PC Act is that whereas Section 7 bars demand, Section 13 (1) (d) bars acceptance. Thus these both penal sections can co-exist though sometimes these may seem overlapping. Any person can be convicted u/s 7 of PC Act even when he merely attempts to demand without there being any element of acceptance. Similarly, any person can be convicted u/s 13(1)(d) of PC Act when he obtains any money or pecuniary advantage without any explicit demand though fact remains that obtaining any such advantage would have implicit and in-built component of demand as well.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 44 of 4613.1 The fact that any witness did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the court finds that in the process the credit of the witness has not been completely shaken, it may after reading and considering the evidence of the said witness, accept in the light of the other evidence on record that part of his testimony which it found to be creditworthy and act upon it. Here whereas, no prosecution witness was even cross-examined by prosecution. Both the independent witnesses and trap laying officer have given convincing and inspiring version and there does not seem to be any reason whatsoever to disbelieve them. As already mentioned above, they have withstood the exhaustive grilling during the cross-examination and the minor infirmities and omissions appearing on record, which do not go to the root of the matter and apparently superficial and cursory in nature, do not create any doubt in the veracity of the case of prosecution. No animosity has either been suggested and defence has not attempted to elucidate as to why even TLO would make a false case against accused.
13.2 Conversation as recorded in both the cassettes if heard in toto would clearly signify the element of demand as well as the acceptance of bribe. Recovery of notes also stands proved. Reports of forensic experts have also corroborated the case of CBI. It is also a fit case where legal presumption u/s 20 of Prevention of Corruption Act can be invoked against accused Krishan Sharawat for offence u/s 13(1)(d) PC Act.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 45 of 4613.3 It thus stands proved that accused Krishan Sharawat, a public servant, accepted illegal gratification for himself for showing favour to M/s Balaji Cable TV Network in respect of assessment of its entertainment tax and such gratification was obtained by him by corrupt and illegal means and by abusing his position as public servant.
13.4 Accused Krishan Sharawat is accordingly held guilty and convicted under Section 7 & 13 (1) (d) of Prevention of Corruption Act 1988.
Announced in the open Court On this 3rd day of August, 2013 (MANOJ JAIN) Special Judge (PC Act) (CBI) South District: Saket Courts: New Delhi CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 46 of 46 CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr.
Tuesday, August 06 2013 Present: Sh. U.C. Saxena, learned Sr. P.P. & Ms. Jyotsna Sharma, learned P.P. for CBI.
Convict Krishan Sharawat with counsel Sh. H.K. Sharma. Acquitted-accused Vinay Kumar Khanna with counsel Sh. P.S. Singhal.
1 Personal bond and surety bond in a sum of Rs. 25,000/- each u/s 437A Cr.P.C. have been furnished by acquitted-accused Vinay Kumar Khanna. Accepted.
2 I have heard arguments on sentence.
3 Sh. Saxena has placed his reliance upon two judgments. Relying on State of Gujarat Vs. Hon'ble Mr. Justice R.A. Mehta (Retd) & Ors. (2013) 3 SCC 1, it has been claimed that corruption in civilized society is a disease like cancer which, if not detected, would spread its malignance among the polity of the country leading to disastrous consequences. It has also been argued on the strength of the observations made therein that corruption is bigger menace than external threat and, therefore, corruption was not merely a fringe issue but a subject of grave concern which requires to be dealt with in a decisive manner.
4 Sh. Saxena has further placed his reliance upon A.B. Bhaskara Rao Vs. Inspector of Police CBI Vishakapatnam (2011) 10 SCC 259 and has contended that Courts are not required to be lenient and sympathetic to such convicts.
5 Sh. H.K. Sharma has, on the other hand, prayed for maximum leniency. According to him, convict is lone bread earner of the family who lost his only son few months prior to the incident in question. It has also been brought to CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 47 of 46 the notice of the Court that matrimonial life of his only daughter is also in complete disarray and doldrums as she was compelled to leave her matrimonial home and is residing with her parents for last three years. It has also been claimed that even the wife of convict has become mentally unstable due to the aforesaid facts related to her children. Sh. Sharma has also stressed that convict is suffering from physical disability and requires immediate hip & knee transplant. Sh. Sharma has also contended that in the entire career of convict spanning in 34 years, no other incident of any such nature has been brought to the notice of the Court and, therefore, it happens to be a fit case where convict should be shown compassion.
6 I am also cognizant and conscious of the fact that conviction in the present would also eat up his job. I am also mindful of the fact that he is facing agony of trial for last five years. He also regularly and punctually attended the Court dates. It was also noticed by the Court that he is having apparent difficulty in walking as he was always found walking with a limp. He is reportedly 55 years of age.
7 Keeping in mind the overall facts and circumstances of the case and balancing the aforesaid aggravating and mitigating circumstances, I sentence convict Krishan Sharawat as under:
(i) For offence u/s 7 PC Act, convict Krishan Sharawat is sentenced to undergo SI for a period of one year and fined Rs. 10,000/- in default thereof, convict would further undergo SI for three months.
(ii) For offence u/s 13 (1) (d) PC Act, convict Krishan Sharawat is sentenced to undergo SI for a period of two years and fined Rs. 10,000/- in default thereof, convict would further undergo SI for three months.
8 Both the sentences would, however, run concurrently.
CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 48 of 469 Needless to say that convict would be entitled to benefit of Section 428 Cr.P.C.
10 He be sent to jail under appropriate warrants to serve the sentence.
11 Fine amount has been deposited.
12 A copy of judgment and order on sentence be supplied to convicts free of cost.
13 Ahlmad is directed to paginate and book-mark for digitization purpose.
14 File be consigned to Record Room.
Announced in the open Court on this 6th day of August 2013.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 09/2012 CBI Vs. Krishan Sharawat & Anr. Page 49 of 46