Delhi District Court
C.B.I. vs . 1) Ps Sehrawat on 27 August, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No. 43/11
Unique Case ID No. 02401R0013961999
C.B.I. Vs. 1) PS Sehrawat
S/o Sh. Nanda Singh
R/o Vill. Amberhai Palam,
Dwarka, New Delhi - 75.
2) Daulat Ram
S/o Sh. Deep Chand,
R/o C344, Naroji Nagar,
New Delhi.
3) SP Dubey
S/o Sh. MD Dubey,
R/o R2, 429, Raj Nagar,
Palam Colony, New Delhi.
4) Anup Singh Dahiya
S/o Sh. MS Dahiya
R/o 10834/18, Pratap Nagar,
New Delhi.
5) Maharaj Singh
S/o Sh. Harlal Singh,
R/o Vill. Mistali, PS Sahiabad,
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 1 of 62
Distt. Ghaziabad, UP.
6) Brijpal Singh
S/o Sh. Jamadar Singh,
R/o H.No. 309, Old Post Office,
Shahdara, Delhi.
7) Vijay Kumar (expired)
S/o Late Sh. Amar Nath Sharma,
R/o H. No. 948, Punjabi Mohalla,
Gantta Ghar, Subzi Mandi,
Delhi.
8) Kamal Kapoor
S/o Sh. Jagmohan Lal,
R/o H. No. 1755, Outram Line,
Kingsway Camp, Delhi.
9) Devraj
S/o Sh. Harbans Lal,
R/o H. No. 1045, Dr. Mukherjee Nagar,
Delhi.
10) Jagmohan Singh
S/o Sh. Avtar Singh,
R/o LIG Flat No. 88A, ACII,
Shalimar Bagh, Delhi.
RC No. : 71(A)/95DLI
u/Ss : 120B IPC r/w Sec. 7, 12 and 13(2) r/w 13(1)(d) of PC
Act, 1988.
Sec. 7 and 13(2) r/w 13(1)(d) of PC Act and Sec. 12 PC
Act, 1988.
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 2 of 62
Date of Institution : 30.01.2007
Received by transfer on : 20.10.2011
Arguments Heard on : 21.08.2012
Date of Decision : 27.08.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. RK Jain, Ld. Counsel for A1 PS Sehrawat.
Sh. HK Sharma, Ld. Counsel for A2 Daulat Ram, A5 Maharaj Singh and A6
Brijpal Singh.
Sh. YP Kahol, Ld. Counsel for A3 SP Dubey.
Sh. Vikram Singh, Ld. Counsel for A4 Anup Singh Dahiya.
Ms. Monika Arora, Ld. Counsel for A8 Kamal Kapoor, A9 Devraj and A10
Jagmohan Singh.
JUDGMENT
Facts:
1.0 On 21/8/95, CBI received an information relating to acceptance of huge amount of bribe from the touts operating in the Motor Vehicle Inspection Unit, Transport Department, Delhi Administration located at Burari, as illegal gratification for passing various types of four wheelers including trucks, buses and metadors during inspection / pollution tests. On receipt of this information, a surprise checking party consisting of two independent witnesses PW2 Uday Kumar and PW7 JC Sharma was CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 3 of 62 constituted under PW15 Sh. RK Chadha. PW11 Sh. SK Peshin was also member of the raiding party besides other police officials. PW7 Sh. JC Sharma and PW8 HC Wasan Singh being shadow witnesses were directed to take a round while other members of the raiding party followed them. On being pointed out by source, 04 touts A7 to A10 and 07 MVIs including A1 to A6 were duly identified including Sh. M. Johnson, MVI. The shadow witnesses and the surprise check party members observed that touts were engaged in collecting money from owners / drivers of vehicles and also from other subtouts. These touts were seen having conversation with MVIs A1 to A6.
It was observed that A1 to A6 MVIs returned to shed No. 5, where they were joined by touts A7 to A10. The shadow witnesses were keeping a close watch on them. The conversation that took place between MVIs and touts revealed the collective involvement of all the accused persons in connection with the collection of illegal gratification for passing of vehicles. The shadow witnesses saw that before entry of touts in Shed No. 5, A4 AS Dahiya gave a polythene bag containing GC notes to A1 PS Sehrawat and thereafter, A3 SP Dubey MVI took money from tout A8 Kamal Kapoor and passed on to A1 PS Sehrawat. A1 PS Sehrawat kept it on the table. The rest of the MVIs A2 Daulat Ram, A5 Maharaj Singh, A6 Brijpal Singh also took money from the touts A10 Jagmohan Singh, A9 Devraj and A7 Vijay Kumar (since expired) respectively. At around 3:15pm, shadow witnesses PW7 JC Sharma and PW8 HC Wasan Singh gave the pre CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 4 of 62 scheduled signal to the raiding party. The raiding party under PW15 DySP RK Chadha including PW2 Uday Kumar raided the said shed. PW2 Uday Kumar was directed to pick up the GC notes from the table of MVIs. The GC notes lying on the official tables of A1 PS Sehrawat, A3 SP Dubey, A4 AS Dahiya, A2 Daulat Ram, A6 Brijpal Singh and A5 Maharaj Singh were found to be Rs. 37,400/, Rs. 13,000/, Rs.23,000/ and Rs.8,000/ respectively. During this, A1 PS Sehrawat took out a polythene bag from his pant pocket and thew it behind the steel almirah. The polythene bag was picked up and it was found containing Rs. 12,000/ and an affidavit in the name of Sh. Ram Avtar. Interestingly, A1 PS Sehrawat told the CBI party that PW1 IS Khanna, Chief MVI has also been receiving Rs. 10,000/ per week out of the collections made by the MVIs. PW10 Suresh Kumar also made a complaint that PW7 Vijay Kumar (since expired) had extracted Rs. 8,00/ from him for passing his vehicle. A sum of Rs. 93,400/was recovered alongwith slips containing particulars of vehicles and details of collections were seized from the touts and MVIs. During investigation it transpired that at shed No.5, there was no cash collection counter and the touts were not authorized to collect the cash from the drivers / owners etc , and pass on the same to STA officials. The collections seized therefrom was not meant for deposit in any government account. The owners of the vehicle were required to deposit only Rs.50/ against the computerised cash receipt. The investigation revealed that the accused persons posted there as MVIs encouraged corruption and the touts were playing the significant role. The corrupt system was assuring CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 5 of 62 guaranteed clearance of vehicles and the general public was also taking advantage of it.
During investigation, the specimen handwriting / signature of the accused persons were taken and were sent to GEQD alongwith slips recovered from the possession of the accused persons. The GEQD opinion confirmed the writings of touts and MVIs on the slips recovered. CBI concluded that as far as role of Chief MVI PW1 IS Khanna is concerned, he was on leave on the day of surprise check and there was no evidence against him except the allegations made by other accused persons.
After investigation, the chargesheet u/Ss 120B IPC r/w Sec. 7 of the PC Act, 1988 and Sec. 7, 12, 13(2) r/w 13(1)(d) of the PC Act, 1988, was filed against the accused persons. The cognizance was taken and the accused persons were summoned.
2.0 Being a prima facie case, charge u/Ss. 120B IPC r/w Sec/ 7, 12 and 13(2) r/w 13(1)(d) of PC Act, 1988 was framed against all the accused. A separate charge was framed u/Ss 7 and 13(2) r/w 13 (1)(d) PC Act, 1988 against accused A1 PS Sehrawat, A2 Daulat Ram, A3 SP Dubey, A4 Anup Singh Dahiya, A5 Maharaj Singh and A6 Brijpal Singh and a separate charge u/S 12 of the PC Act was framed against accused A8 Kamal Kapoor, A9 Devraj and A10 Jagmohan Singh. The accused persons pleaded not guilty to the charge and claimed trial.
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 6 of 62 2.1 During the trial, A7 Vijay Kumar expired and proceedings against him stood abaited vide order dtd. 03/09/03.
3.0 CBI examined 15 witnesses in support of its case.
3.1 PW1 Sh. IS Khanna, Dy. Commissioner (Retd.) was posted as Chief Motor Vehicle Inspector , Burari on 21/8/95. This witness broadly deposed about the procedure adopted for the inspection of the vehicles. 3.2 PW2 Sh. Uday Kumar, an independent witness was member of the raiding party. However, he did not support the case of the prosecution on material grounds and was declared hostile.
3.3 PW3 Sh. Vishnu Dutt, proved the attendance register as Ex.PW3/B so as to show the presence of accused persons in the office on 21/8/95.
3.4 PW4 Sh. RP Aggarwal, was posted as Dy. Director (Transport) on 21/8/95. He primarily proved that after the raid was conducted, on account of agitation from the transporters, he was asked by the CBI to get the process of the inspection completed. The witness stated that he left the office after 9:15pm after the proceedings were completed by the CBI. This witness was also declared hostile on material points. .
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 7 of 62 3.5 PW5 Sh. M. Johnson was also posted as MVI on 21/8/95. He also turned hostile on the material points and was cross examined in detail by the CBI. However, his cross examination by the prosecution did not elicit anything against the accused persons.
3.6 PW6 Sh. AK Kapoor, the then Inspector, ACB/CBI was member of the raiding party and broadly spoke in confirmity with the case of the CBI.
3.7 PW7 Sh. JC Sharma, another independent witness also turned hostile and did not support the case of the prosecution. Interestingly, he stated that when he reached in the room, he found a long table on which the currency notes were lying. This witness was also cross examined in length by the CBI. However, CBI was not able to get any favourable statement from this witness.
3.8 PW8 HC Wasan Singh another shadow witness alongwith PW7 Sh. JC Sharma was some solace for the CBI. He deposed regarding the fact that A4 AS Dahiya entered the shed and handed over one polythene bag to A1 PS Sehrawat saying that, that was the collection for passing of vehicles. He also stated that MVI also enquired from the touts about the CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 8 of 62 collection on which the touts informed them that they had collected the money of the vehicles which were passed and the touts handed over the money collected by them to different MVIs which they kept on their tables. PW8 HC Wasan Singh also proved the recovery of amount from the different tables in Shed No. 5. The witness was cross examined in length by the defence.
3.9 PW9 Sh. Ram Babu, a public witness stated to have given bribe to A4 AS Dahiya resiled from his earlier testimony and went to the extent of saying that he did not come to the authority and filed only one affidavit signing the same as Ram Avtar. This witness was also cross examined in length by the CBI, but in vain.
3.10 PW10 Sh. Suresh Kumar author of the complaint Ex.PW10/A also chose to turn hostile and did not support the case of the prosecution. During cross examination by Ld. PP, the witness stated that his statement was not recorded by the CBI. He straightaway denied the statement allegedly made by him.
3.11 PW11 Sh. SK Peshin, another member of the raiding party deposed in sync with the case of the prosecution and made wholehearted effort to prove the case of the prosecution. This witness was cross examined CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 9 of 62 at a great length by the defence so as to discredit his testimony. 3.12 PW12 Sh. RK Jain, GEQD proved his report as Ex.PW12/H. 3.13 PW13 Inspt. Rajesh Kumar is the subsequent IO. The investigation was transferred to Inspt. Rajesh Kumar after the registration of the case.
3.14 PW14 Ms. Kiran Dhingra, proved the sanction order Ex.PW14/A. The sanction order has been assailed by the accused persons on the ground that the same has been granted mechanically without any application of mind.
3.15 PW15 DySP Rajeev Kumar Chadha, the architect of the entire case proved the proceedings conducted by him during the pre raid, raid and post raid. This witness was also subjected to arduous cross examination by the defence.
4.0 In their statement u/s 313 Cr.PC, accused persons denied all the allegations and submitted that they have been implicated falsely.
A1 PS Sehrawat in his statement u/S 313 Cr.PC took the position that he did not visit Shed No. 5 on 21/8/95 and no money was paid CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 10 of 62 to him. He also denied about any raid having been conducted. The accused stated that he was arrested falsely. A1 PS Sehrawat stated that sanction granted against him is invalid. A1 PS Sehrawat stated that he had been discharging duty on autorickshaw pit alongwith A6 Brijpal Singh MVI and A5 Maharaj Singh MVI. The accused stated that the witnesses produced by the CBI are stock witnesses. He further stated that the authority was closed for three days on account of Janmashtami i.e., 18/8/95, 19/8/95 and 20/8/95, which happened to be Sunday. On 21/8/95, while he was working at a distance of 300 meters from Shed No. 5 and had no reason to visit Shed No.
5. Ex.PW2/A is a forged document and no money was recovered from him and the money was planted. The names shown in Ex.PW2/A are false and frivolous as there were no person in the name of Tonny, Dola, Gora, Ved Prakash. No such persons were found and seen. Even their parentage and address were conspicuously absent from the seizure memo. The accused stated that from the authority he was taken to his residence from where the jewellery and money was seized.
A2 Daulat Ram also in his statement u/S 313 Cr.PC denied to have received any money. He also denied his presence in Shed No. 5 and other incriminating evidence put to him. Accused stated that his specimen signatures were never taken and the CFSL report is scientifically incorrect.
A3 SP Dubey was also in denial mode. He stated that no money was paid to him. He never entered Shed No. 5 and no raid was conducted in CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 11 of 62 his presence. Accused stated that his specimen signatures were never taken and the CFSL report is scientifically incorrect. Accused stated that he was picked up from Pit No. 3, where he was discharging duty and was implicated falsely.
A4 Anup Singh Dahiya also in his statement u/S 313 Cr.PC stated that he never entered Shed No. 5 on the said date as he was discharging his duty in Pit No. 3 till 5:30pm. A4 Anup Singh Dahiya stated that he signed the fitness certificate of Bus No. DBP 1648 at 17:15 hours as reflected in Ex.PW11/D3. The raiding party picked him up from the inspection pit after 5:30pm and took him forcibly to CBI headquarters for questioning where he was forced to sign many blank paper and made to write many documents and further, forced to sign Ex.PW2/A surprise check memo and personal search memo without going through their contents. The accused stated that surprise check memo and siteplan was prepared at CBI headquarters on the next day and his signatures were taken forcibly on the same. A4 Anup Singh Dahiya stated that no money was recovered in his presence. The specimen signatures assigned to him are not his signatures and the CFSL report is scientifically incorrect. The accused also stated that the sanction granted against him is invalid. A4 Anup Singh Dahiya stated that on 21/8/95 he attended the office like any other day. He stated that on 21/8/95, CBI conducted a separate raid at his parental house at Pratap Nagar and his residence at Uttam Nagar and during the said search at his parental house, some disproportionate assets were recovered and in this regard RC No. CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 12 of 62 72(A)/95 was registered. PW15 RK Chadha got the information of recovery of assets in his name and found an opportunity to make him an accused in his case also.
A5 Maharaj Singh also deposed on the similar lines as that of A2 Daulat Ram. He denied his presence in Shed No. 5 and stated that he has been implicated falsely by the CBI.
A6 Brijpal Singh in his statement denied his presence in Shed No. 5 and stated that no such raid took place in his presence. He either denied or expressed his ignorance about the incriminating evidence put to him. Accused stated that the witnesses produced by the CBI were interested witnesses.
The statement of A8 Kamal Kapoor was also on the same pattern. He denied his presence in Shed No. 5 and expressed ignorance about the incident happened therein. The accused stated that no such raid was conducted in his presence. He further denied about his specimen handwriting / signature being taken and stated that HC Wasan Singh and Sh. JC Sharma are handpicked witnesses of CBI. They had been appearing as witnesses for CBI in multiple cases. CBI did not join any public witness from the spot and he was implicated falsely.
A9 Devraj in his statement u/S 313 Cr.PC either expressed his ignorance or denied the evidence against him. A9 Devraj took a stand that he never entered Shed No. 5. He also denied about his presence in Shed No. 5 at CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 13 of 62 the time of the alleged raid. A9 Devraj stated that no specimen handwriting / signature were taken. HC Wasan Singh was an interested witness being CBI official. Accused stated that he was running a mechanical workshop outside Burari Transport Authority and he was implicated falsely.
A10 Jagmohan Singh also made his statement on almost similar line and either denied the evidence or expressed his ignorance about the same. The accused stated that the witnesses produced by the CBI are interested witnesses. He stated that he was into transport business with his father and brother under the name and style of M/s Laxmi Forwarding Company and had gone to the Burari authority for some personal work and there he was implicated falsely.
5.0 The accused persons examined 09 witnesses in defence. 5.1 HC K. Mamachan, Malkhana Mohrar was examined on behalf of A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh as DW1. He stated that Malkhana Register reflecting deposit of case property for the period 19/8/95 to 30/8/95 is not traceable. The record seized vide seizure memo Ex.DW1/D1 have already been filed in the Court and are Ex.PW12/G1, PW12/G2 and PW12/G4.
DW1 K. Mamachan was recalled for further examination so as to prove the unrelied documents / records as Ex.DW1/D3 to D35. CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 14 of 62 5.2 Sh. Raj Kumar DW2 has been produced by A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh. He produced the photocopy of the Diary Dispatch register pertaining to entry No. 270 showing inspection by CBI team on 1/2/08. The photocopy of the register has been proved as Ex.DW2/D1 & D2.
5.3 DW3 Sh. Devanand Mishra gatekeeper / chowkidar has been examined on behalf of A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh so as to prove that the CBI team visited Pit No. 5 in the year 2008 and remained there for about ½ an hour. It is pertinent to mention here that DW2 and DW3 has been examined by the defence so as to prove that while PW11 Sh. SK Peshin and PW15 Sh. RK Chadha were being examined in the Court, they visited Pit No. 5 so as to ascertain its length and breadth. 5.4 DW4 Sh. SB Saroha another CBI official was examined by A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh. He stated that in CBI FIRs are kept in loose sheets and after registration they are bound togehter in the register form.
5.5 DW5 Sh. Ashok Tyagi has been examined on behalf of A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh. He produced the file pertaining to vehicle bearing registration No. DL1Y 2414. He proved that CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 15 of 62 inspection of this vehicle was conducted on 21/8/95 and the fitness certificate issued by the "Bradma Machine" shows that it was generated at 4pm on 21/8/95 and the inspection of this was was conducted by Maharaj Singh (A5). The photocopy of form No. 20 and fitness certificate has been proved as Ex.DW5/D1 and DW5/D2.
5.6 DW6 ASI Rakesh Kumar examined by A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh stated that CBI does not maintain any register containing the detail / particulars regarding requisition of public witnesses from other government offices.
5.7 DW7 Sh. Rajender Prasad an official from transport department deposed about the procedure of the inspection. 5.8 DW8 Sh. Vikas Goswami examined on behalf of A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh, produced the record pertaining to vehicle No. DBP 1648. The fitness certificate of this vehicle shows to have been issued at 5:15pm on 21/8/95 having been signed by A4 Anup Singh Dahiya and A2 Daulat Ram.
5.9 A4 Anup Singh Dahiya also chose to appear in the witness box u/S 315 Cr.PC and made his statement on oath as DW9. He deposed about CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 16 of 62 the procedure of the inspection. Accused stated that on 21/8/95, he was inspecting the vehicles at inspection Pit No. 3 from 7am to 10am. The vehicle DBP 1648 was initially failed by him and the driver again brought to him after rectifying the defect. The vehicle was inspected by him (A4) and A2 Daulat Ram during the period 3:45pm to 4:45pm and the certificate of fitness was signed by him (A4) and A2 Daulat Ram in between 5:15pm and 5:25pm. The certificate of fitness has been proved as Ex.DW8/D1. The certificate of fitness in the court record has been proved as Ex.PW11/D1 to D3. The accused stated that while he was tallying the records of COF issued on 21/8/95 under his signatures, some officials of CBI came to him around 5:45pm and levied allegations that the vehicles are issued COF without inspecting the vehicles and after taking bribe from the vehicle owner / drivers. The accused stated that he alongwith other MVIs were forced to sit in the different vehicles brought by the CBI and some of them were taken to their residential houses for search and then they were taken to CBI headquarters. The accused stated that he has been falsely implicated. 6.0 Sh. DK Singh, Ld. PP for CBI has argued that CBI has successfully proved its case against the accused persons. Ld. PP has argued vehemently that PW8 HC Wasan Singh has made a consistent and corroborative statement on oath regarding the demand and acceptance of illegal gratification by the accused persons. PW6 Sh. AK Kapoor, PW11 Sh. SK Peshin, PW13 Inspt. Rajesh Kumar and PW15 Sh. RK Chadha have duly CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 17 of 62 proved the pre raid, raid and post raid proceedings. The contradictions which have occurred in the testimony of these witnesses are minor in nature and does not go to the root of the case. PW2 Sh. Uday Kumar though turned hostile during the chief examination but during the cross examination by the Ld. PP, supported the case of the prosecution on material grounds. Ld. PP submitted that an unholy nexus had taken place in the transport department. The subtouts, touts and officers were hand in gloves. CBI got an information of this sinister design. The raid was conducted without wasting any time. The accused persons were found in possession of huge amount of money which they had received as illegal gratification. The open game of corruption was going on with the help of touts and subtouts. The public was also taking benefit of the corrupt system. This is revealed from the testimony of other witnesses including the transport officials and public witnesses. They did not support the case of the prosecution and turned hostile.
Sh. DK Singh, Ld. PP submitted that the accused persons were found in possession of certain slips containing the vehicle numbers and details of the money to be passed on as illegal gratification. The handwriting on these slips duly tallied with the specimen handwriting given by the accused persons voluntarily, during the course of investigation. Ld. PP submitted that in view of the GEQD report Ex.PW12/H, the offence against the accused persons stands proved. In support of his contention, Ld. PP has cited State of UP Vs. Ram Babu Misra, AIR 1980 SC 791, Sukhvinder CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 18 of 62 Singh & Ors. Vs. State of Punjab, (1994) 5 SCC 152, State of Haryana Vs. Jagbir Singh and Anr., AIR 2003 SC 4377(1) and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, (2011) 2 SCC 490.
Sh. D.K. Singh, Ld. P.P. for CBI submitted that as far as recovery of money is concerned, the prosecution has proved this fact beyond reasonable doubt. It has also been pointed out that during the raid, a sum of more than Rs.90,000/ was recovered from the table of the accused persons, and the accused persons have not come forward with any explanation regarding the presence of this money. Sh. D.K. Singh persuaded this Court to take into account Section 8 and Section 114 of the Indian Evidence Act so as to come to conclusion that the money recovered from the table of he accused was an ill gotten money. In support of his contention, Ld. P.P. for CBI invited the attention of the Court towards illustrationI of Section 8 of the Indian Evidence Act which provides as under : "Section 8 (i) 'The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it are relevant." 6.1 Per contra the Ld. Defence counsels have argued vehemently and at length that prosecution has miserably failed to prove its case against the accused persons.
Sh. R.K. Jain, Ld. Counsel for A1 PS Sehrawat besides advancing lengthy arguments also gave written synopsis and raised as many CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 19 of 62 as 42 points, indicating the loopholes in the case of the prosecution. Sh. R.K. Jain, Ld. Counsel submitted that the prosecution has not produced any evidence to show that any money was received by the accused persons nor there was any evidence to prove the demand on behalf of the accused persons. In absence of any evidence in regard to demand and acceptance of money, the statutory presumption u/s. 20 of Prevention of Corruption Act cannot be raised. The witnesses produced by the CBI are not reliable and there is gulf of difference in their testimony. The prosecution has not produced any evidence so as to connect the MVI A1 to A6 with touts i.e. A7 to A10. The conspiracy cannot be inferred on the mere asking of the prosecution. There has to be some cogent and credible evidence to prove the conspiracy amongst the accused persons. The case of the prosecution is flimsy and rested on weak foundation and the genesis is itself shaky. Ld. Counsel also assailed the sanction for prosecution granted by PW14 Ms. Kiran Dhingra as mechanical and having been granted without application of mind. CBI was required to prove, at least, some evidence to show that A7 to A10 were touts and they had been acquiring money from the general public for passing on the same to the accused persons. The testimony of shadow witnesses PW7 J.C. Sharma and PW8 Wasan Singh is replanted with contradictions. The evidence of the prosecution witnesses is inconsistent regarding the time, amount and location. CBI has also failed to bring any material on record to prove the abuse of official positions or misconduct on behalf of public servants. Admittedly, no public person has been examined CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 20 of 62 who could say that he had paid illegal gratification or accused persons obtained any pecuniary advantage from them. Ld. Defence Counsel submitted that prosecution acted in haste and even did not follow the CBI manual. Mere presence of currency notes by itself cannot be held to be proper or sufficient proof of demand and acceptance. CBI was bound to prove their case beyond reasonable doubts, however, the quality of the evidence is too weak, to be relied upon. Interestingly, even the number of the currency notes were not noted down and the same was also not seized as per law.
Sh. HK Sharma, Ld. Counsel for A2 Daulat Ram, A5 Maharaj Singh and A6 Brijpal Singh stated that prosecution has miserably failed to prove its case against the accused persons. There is no evidence to prove the charge framed against the accused persons. The prosecution has not been able to bring in, evidence of demand or acceptance of bribe. There is no evidence to prove that demand was made or accused persons accepted any bribe. Ld. Counsel also pointed out that the prosecution has not proved that the accused persons were the only persons available at Shed No. 5. Sh. H.K. Sharma, Ld. Counsel further argued that the case of the prosecution is full of contradictions. As per surprise check memo Ex.PW2/A, the fitness rolls Ex.PW11/D1 to D3 were seized and this surprise check memo was concluded at 5.30 P.M. However, the bare perusal of the fitness rolls could indicate that inspections were conducted even after 5.30 P.M. The CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 21 of 62 prosecution witnesses and in particular the members of the trap team have made contradictory statements. Sh. H.K. Sharma pointed out that Section 165 (5), Code of Criminal Procedure, 1973 which provides that the search memo should forthwith be sent to nearest Magistrate competent to take cognizance of the offence has been violated. CBI officers have admitted in their cross examination that the copy of surprise check memo was not sent to the Special Judge. This fact indicates that the surprise check memo was not prepared in the manner as shown on the record. Sh. Sharma argued that M. Jhonson, who has been produced by the CBI as PW5 was present at the time of raid, however, he has been let off by the CBI with ulterior reasons. It has further been argued that PW8 Wasan Singh, who is the star witness of the CBI itself is in the realm of doubt as his signatures do not appear on either surprise check memo or personal search memo of the accused persons. This fact throws a doubt on the presence itself of Wasan Singh at the spot. PW8 in the cross examination by the accused persons has also not been able to give the details of the money and his cross examination amply indicates his non presence in the spot. PW2 Uday Kumar and PW7 J.C. Sharma, so called independent witnesses of the CBI have also been inconsistent, incoherent and not logical.
Sh. Y.P. Kahol, Ld. Counsel for A3 S.P. Dubey invited the attention of the Court towards Section 7 and Section 13 (1) (d) of the Prevention of Corruption Act so as to buttress to point that CBI has miserably failed to prove any evidence to fulfill the ingredients of Section 7 CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 22 of 62 and 13 (1) (d) of the Prevention of Corruption Act. Ld. Counsel submitted that for that matter, CBI has also not led any evidence so as to prove the ingredients of Section 12 of the Prevention of Corruption Act. Sh. Kahol also took this Court through the testimony of PW8 Wasan Singh so as to press the point that he was not present at the spot and CBI introduced him later on only to makeup the deficiency. Sh. Kahol submitted that interestingly, CBI did not made M. Jhonson and Madan Singh, MVI's, who were present at the spot as an accused for the reasons best known to them.
Sh. Vikram Singh, Ld. Counsel for A4 Anup Singh Dahiya besides advancing arguments, also filed written synopsis. He submitted that the sanction granted u/S 19 of POC Act Ex.PW14/A was granted without application of mind and the sanctioning authority has stated untrue facts in the sanction order. Ld. Counsel submitted that as per surprise check memo Ex.PW2/A, there is no recovery from A4 AS Dahiya and there is no evidence of demand and acceptance by the accused. He further submitted that the prosecution has not taken any sanction u/S 197 Cr.PC against any of the MVIs and in absence of sanction u/S 197 Cr.PC even the cognizance of offences taken by this Court is bad in law as the Court is barred to take cognizance of any offence while acting or purporting to act in the discharge of his official duty. There is no evidence in regard of A4 Anup Singh Dahiya entering into a conspiracy with his coaccused persons and no evidence of any recovery of money from A4 Anup Singh Dahiya. Ld. Counsel further submitted that the case property was not sealed, neither denomination of CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 23 of 62 currency notes was mentioned anywhere in any document, nor signatures of raiding party were taken on the currency notes. The prosecution did not produce any evidence in regard to deposit of case property in the malkhana. Ld. Counsel further submitted that his client is entitled to be acquitted on account of absence of any evidence against his client.
Ms. Monika Arora, Ld. Counsel for A8 Kamal Kapoor, A9 Devraj and A10 Jagmohan Singh pointed out the contradictions in the testimony of prosecution witnesses. Ld. Counsel submitted that the testimony of the prosecution witnesses suffer from inherent contradictions and therefore, they are not reliable. Ms. Monika Arora, Ld. Counsel submitted that Mr. M Johnson (PW5) even did not identify her clients A8 and A9. PW6 Sh. AK Kapoor even was not able to tell that who had picked up the currency notes from the table nor he was able to tell the author of the surprise check memo Ex.PW2/A. Sh. JC Sharma PW7 is also an unreliable witness. HC Wasan Singh PW8 the only ray of hope for the prosecution has also proved to be an unreliable witness. He admitted that no public witness complained to him that the touts had taken money in the name of MVIs. Ld. Counsel also pointed out the other raring weakness / contradictions in the testimony of other witnesses.
7.0 Before proceeding to advert to the submissions of the learned counsel for the parties, it may be useful to see the ingredients of Section 7, CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 24 of 62 13(1)(d) and 13(1)(2) of the POC Act.
The essential ingredients of Section 7 are :
(i) that the person accepting the gratification should be a public servant;
(ii) that the should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person.
The essential ingredients of Section 13(1)(d) of the Act are :
(i) that he should have been a public servant;
(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and
(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
In the case of M.W. Mohiuddin Vs. State of Maharashtra 1995 (2) SCR 864, the Supreme Court referring to the case of Ram Krishan and another Vs. State of Delhi (1956) SCR 183 as well as dictionary meaning of the word "obtain" observed as under :
"Whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved that accused made a demand and also got the affirmation CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 25 of 62 from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same in the bag which was brought by the accused and as asked by him, these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification."
In A. Subair Vs. State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under :
"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
In the case of C.K. Damodaran Nair Vs. Government of India, 1997 Cr.LJ 739, the Apex Court this Court had an occasion to consider the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 (now Section 13(1)(d) of the Act, 1988), and it was held :
"12. The position will, however, be different so far an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid or the statutory presumption under Section 4 (1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) - and not under Section 5(1)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 26 of 62 established by proof of either "acceptance" or "obtainment".
7.1 It is settled law that mere recovery of bribe money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantial evidence of demand and acceptance in the case is not reliable. (Reference can be made to M. Narsinga Rao Vs. State of AP 2001(1) SCC 691). In view of the above propositions of law, it is recapitulated that the statutory presumption under Section 20 of the Act is available for the offence punishable under Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence under Section 13(1)(d), it will be required to be proved that some initiative was taken by a person who receives and in that context demand or request from him will be a prerequisite. 7.2 In view of above proposition of law, it may be reiterated that for an offence under Section 13(1)(d) of the POC Act, it will be required to be proved that some initiative was taken by the receiver. A demand or request emanating from the appellant and his accepting the tainted money would be a prerequisite for establishing the guilt under Section 13(1)(d) of the Act or Section 7 of the Act of 1988.
7.3 The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 27 of 62 In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.
Section 20 of the PC Act 1988 provides for raising of a presumption in the event it is proved that the accused person has accepted or obtained or to obtain for himself any gratification or valuable thing. The presumption u/s 20 can be invoked if the prosecution has successfully proved by way of clinching evidence that accused has accepted or agreed to accept any gratification or valuable thing. Once this fact is proved, the presumption as provided u/s 20 PC Act, 1988 can be raised that public servant has accepted or agreed to accept the same as a motive for doing or forbearing for doing an official act. However, it is a rebuttable presumption and the burden of proof shifts upon the accused to prove that it was not as a motive or reward that the gratification or valuable thing was obtained. However, the onus on the accused to rebut this presumption is not as onerous as on the prosecution.
The core question that must be answered is whether there is sufficient legal evidence on record to bring home the guilt of the accused persons for the offence under Sections 7 and 13 (1)(d) read with 13 (2) of POC Act.
Findings:
8.0 If we sum up the case of the CBI, it would be that an CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 28 of 62 information was received that in Burari Transport Authority, the vehicles were being passed by the Motor Vehicle Inspectors on the receipt of illegal gratification from touts operating in the authority. On this information, the CBI team alongwith two independent witnesses PW2 Uday Kumar and PW7 JC Sharma reached at Burari Transport Authority and there at the pointing out of source, the touts were identified and after shadow witnesses PW7 JC Sharma and PW8 HC Wasan Singh observed that the touts i.e. A7 to A10 passed on the illegal gratification to MVIs A1 to A6, the raid was conducted and the illegal gratification was found lying on the table in front of the accused persons. During the course of raid, two independent complaints from PW9 Ram Babu and PW10 Suresh Kumar was also received. The accused persons were also found in possession of certain slips containing the vehicle number and amount of money, indicating the operation of racket, in pursuance of which the certificate of fitness were being issued to the public, in pursuance to criminal conspiracy. The public servants were charged u/S 7 of the PC Act for taking gratification other than legal remuneration in respect of an official act and for committing criminal misconduct by abusing their official position as public servant and for receipt of valuable thing or pecuniary advantage by corrupt or illegal means. A8 to A10, who were termed as touts were also charged u/S 12 of POC Act for abatement of offence defined in Sec. 7 of the POC Act.
8.1 CBI inorder to prove its charge, examined 15 witnesses. The CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 29 of 62 CBI witnesses, if divided into categories can be classified as:
1) Transport department : PW1 Sh IS Khanna, PW3 Sh. Vishnu Dutt, PW4 Sh. RP Aggarwal and PW5 Sh. M. Johnson;
2) CBI witnesses : PW6 Inspt. AK Kapoor, member of the raiding party, PW8 HC Wasan Singh, shadow witness, PW11 DSP SK Peshin, another member of the raiding party, PW13 Inspt. Rajesh Kumar, first IO and PW15 DSP RK Chadha, head of the raiding party;
3) GEQD : PW12 Sh. RK Jain; and,
4) Independent witnesses : PW2 Uday Kumar and PW7 JC Sharma.
8.2 Before discussing the evidence of the above said witnesses in detail, let us examine the ingredients of criminal conspiracy and the quality of evidence required to prove for the offence of criminal conspiracy. The criminal conspiracy has been defined u/S 120A IPC:
"120A - Definition of criminal conspiracy -
When two or more persons agree to do, or cause to be done,
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 30 of 62
It is pertinent to mention here that the ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. It is not necessary that illegal act is actually done. The very agreement to do an illegal act is an offence and is punishable. In the case of criminal conspiracy, it is very difficult to adduce direct evidence. Generally, a conspiracy is hatched in secrecy and therefore, the prosecution in such case normally rely upon evidence of act of various parties to infer that the acts were done in reference to their common intention. It is a herculean task for the prosecution to prove the conspiracy and the only way to prove the same is to rely or place circumstantial evidence. The Court in such cases is required to ascertain that whether the accused persons had been pursuing the same end independently or they were together in the pursuit of unlawful object. If the act had been independent and the pursuit to an unlawful object was not done together, it may not amount to conspiracy. The prosecution may not be able to prove the express agreement, but there is to be some manifestation of agreement between the accused persons to do an illegal act. It would be impractical to expect that the prosecution would prove the actual words of communication to prove the conspiracy. If the prosecution proves the tacit understanding between the conspirator, it should be accepted as sufficient to prove the offence.
In the case of State v. Nalini, 1999 (5) SCC 253, the Apex Court inter alia held as under:
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 31 of 62
"In reaching the stage of meeting of minds, two or more persons share information about doing an il legal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by il legal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the con spiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of con spiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
The theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. Those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to be CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 32 of 62 ing liable for criminal conspiracy; but, the nonpartic ipant conspirators cannot be found guilty of the of fence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are gov erned by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
A distinction was maintained between the con spiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in S. 10 of Evidence Act based on the principle of agency. S. 10 of the Evidence Act pro vides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition pre scribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made ad missible on the principle that there is mutual agency amongst the conspirators. Whether or not the conspir ators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what pun ishment has to be given for the conspiracy and the oth er offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 33 of 62 in the case of S. 34, IPC, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But S. 120B does not convey that idea.
In Nalini's case, Wadhwa, J pointed out, the need to guard against prejudice being caused to the accused on account of the joint trial with other con spirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of con spiracy". The pertinent observation of Judge Hand in U.S. v. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatev er with the main offenders." At paragraph 518, Wad hwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive atti tude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the con spiracy as follows :
"One who commits an overt act with knowl edge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 34 of 62 guilty though he intends to take no active part in the crime."
It was further observed in the cited case that:
One more principle which deserves notice is that cu mulative effect of the proved circumstances should be taken into account in determining the guilt of the ac cused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be con scious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict." AIR 1988 SC 1883 :
1989 Cri LJ 1.
In Chaman Lal v. State of Punjab , AIR 2009 SC 2972, it has been inter alia held as under :
"It would be appropriate to deal with the question of conspiracy. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" given in Section 120A reads as follows:
"120A. When two or more persons agree to do, or cause to, be done, (1) an illegal act, or CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 35 of 62 (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 36 of 62 offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
"58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 37 of 62 conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
The bare perusal of the above said judgments would make it clear that in the case of criminal conspiracy it is very difficult to get the direct evidence and most of the time the Court has to rely on circumstantial evidence in order to infer the conspiracy amongst the accused persons. However, conspiracy cannot be accepted at the mere asking of the prosecution. Prosecution would always be required to prove the meeting of mind amongst the accused persons by cogent and creditworthy evidence. There has to be some evidence to show the consensus amongst the accused persons. This Court is conscious of the fact that for the offence of criminal conspiracy it is not necessary that all the accused persons must play an active role during the entire event of conspiracy. The offenders may break away during the event and new offenders may also join during the same but their direct or indirect role has to be there to make them a party to the criminal CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 38 of 62 conspiracy. The prosecution would always be under a duty to prove this meeting of mind or connection amongst the accused persons by way of reliable evidence.
8.3 The main architect of the case is PW15 DSP Rajeev Kumar Chadha who stated that on 21/8/95 SP Sh. RK Dutt shared an information about the malpractices in the transport authority. The surprise check party under his leadership consisting of PW11 DSP SK Peshin, PW6 Inspt. AK Kapoor, PW8 HC Wasan Singh, SI Vipin Kumar and other officials were formed. The independent witnesses PW2 Uday Kumar and PW7 JC Sharma were joined. The raiding party left the CBI office at 1:15pm and reached Burari Transport Authority at 2pm. The witness stated that he contacted the source outside the Burari Transport Authority and the source identified the touts who were receiving money from subtouts. PW7 JC Sharma and PW8 HC Wasan Singh were appointed shadow witnesses who entered Shed No. 5. Around 3pm, MVIs also entered Shed No. 5 and thereafter, the touts entered the same. After around 1015 minutes PW7 JC Sharma and PW8 HC Wasan Singh gave signal. The raiding party entered Shed No. 5 and found that A1 PS Sehrawat, A2 Daulat Ram, A3 SP Dubey, A4 AS Dahiya, A5 Maharaj Singh, A6 Brijpal Singh and M. Johnson were present. He stated that some currency notes were lying in the front of the MVIs. PW8 HC Wasan Singh informed that money was handed over by touts to MVIs. PW8 HC Wasan CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 39 of 62 Singh also informed that A1 PS Sehrawat had also taken out a polythene bag from his pocket and threw it behind the almirah. On the direction of PW15 Sh. RK Chadha, PW2 Uday Kumar counted the notes as well as picked up the polythene bag. PW15 Sh. RK Chadha stated that A8 Kamal Kapoor had handed over a sum of Rs. 37,400/ Ex.P1 to A1 PS Sehrawat, A9 Devraj had handed over a sum of Rs. 23,000/ Ex.P2 to A6 Brijpal Singh, A10 Jagmohan Singh had handed over a sum of Rs. 13,000/ Ex.P3 to A2 Daulat Ram and A7 Vijay Kumar (since expired) had handed over Rs. 8,000/ Ex.P4 to A5 Maharaj Singh. The currency notes recovered from polythene bag having been thrown by A1 PS Sehrawat was also proved as Ex.P5. PW15 Sh. RK Chadha stated that accused persons were interrogated and their version was truly and correctly recorded in surprise check memo Ex.PW2/A. It is pertinent to mention here that the witness stated that Sh. M. Johnson PW5 though was found present in the Shed No. 5, was not made an accused as he stated that he did not take any share. The witness stated that PW10 Suresh Kumar had handed over a written complaint against A7 Vijay Kumar (since expired). Sh. RK Chadha stated that surprise check memo Ex.PW2/A was concluded at 5:30pm and thereafter, the raiding party left the spot. He also stated that A7 to A10 disclosed that they received financial consideration through subtouts. It is pertinent to mention here that the witness admitted that when the raiding party entered Shed No. 5, Sh. M. Johnson was inside the Shed No. 5, but he was not shown in the siteplan. It is also an admitted fact that the cash was not sealed nor their numbers were noted in the surprise CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 40 of 62 check memo Ex.PW2/A. Sh. RK Chadha also stated that he did not record statement of subtouts. To a specific suggestion PW15 Sh. RK Chadha stated that he cannot say that if PW7 Sh. JC Sharma has been witness in around ten cases.
PW6 Inspt. AK Kapoor stated that on reaching the Burari Transport Authority, the source was sent with PW8 HC Wasan Singh and at around 3pm, independent witness came out of room and gave the pre appointed signal. A1 PS Sehrawat and three others were sitting on the chairs and some money was placed before them on the table. PW6 Sh. AK Kapoor stated that Sh. JC Sharma, PW7 informed that money was given by touts to Inspectors. Thereafter, money was counted. A1 PS Sehrawat threw a bag and the same was seen by the raiding party and at the direction of PW15 Sh. RK Chadha, PW2 Uday Kumar picked it up. It is also pertinent to mention here that PW6 stated that during surprise check, few slips were recovered and seized from agents giving details of the amount of the collected money in respect of vehicles. During cross examination by A2 Daulat Ram and A6 Brijpal Singh, witnesses admitted that independent witnesses specially PW7 JC Sharma has been joined as witness in other CBI cases. It also came in the cross examination that a long table was lying in room No. 5. The witness denied the suggestion that Inspectors were taking lunch and tiffins were lying open on the table. PW6 Sh. AK Kapoor stated that he cannot say who had written Ex.PW2/A. In the cross examination on behalf of A8 Kamal Kapoor and A9 Devraj, PW6 admitted that no public witness made any complaint CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 41 of 62 regarding payment of money. During the lengthy cross examination on behalf of A3 SP Dubey, the witness has almost been evasive and casual and was never firm on his statement. It is worth to mention that during cross examination on behalf of A1 PS Sehrawat, the witness stated that he cannot say if A1 PS Sehrawat was on duty in autorickshaw pit which was at a distance of 300 - 400 meters at the time of surprise check . Nor was he able to recollect that A1 PS Sehrawat was called specifically from his pit to inform him about the raid and to issue fitness certificates to the different persons of their vehicles. In the cross examination on behalf of A4 AS Dahiya, the witness admitted that prior to entering the shed, he did not know that who received what amount from whom.
PW11 DSP SK Peshin was another star witness on behalf of CBI. He stated that when they entered the shed, the chairs were occupied by A1 PS Sehrawat, A6 Brijpal Singh, A2 Daulat Ram and A5 Maharaj Singh. The witness stated that touts also produced various slips containing the details of amount and the details of the vehicle numbers in respect of the passed vehicles. In respect of other circumstances, the witness made a consistent statement. In the cross examination PW11 DSP SK Peshin admitted that he knew PW7 JC Sharma as he had joined in a trap case. The specific suggestion was put to the witness that PW7 was a stock witness, but the same was denied. PW11 DSP SK Peshin also stated that post raid proceeding was completed at 5:30pm. In the cross examination on behalf of A5 Maharaj Singh, the witness stated that raid was conducted on the same CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 42 of 62 day, the information was received. He also stated that he remained at Burari Transport Authority only till 5:30pm and by that time, the surprise check memo and personal search memo were prepared. Sh. SK Peshin stated that accused persons were interrogated in CBI office. The witness admitted that seized money was not sealed. It is interesting to note that PW11 DSP SK Peshin stated that he remained in Anti Corruption Branch, CBI from 1988 to 1998 and during this period, PW8 HC Wasan Singh also remained posted but he did not identify the signatures of HC Wasan Singh. It also came in the cross examination of PW11 DSP SK Peshin that no evidence was collected at the spot against PW5 Sh. M. Johnson MVI and another MVI Madan Singh. It is also pertinent to mention here that the raiding party did not examine at the spot, the drivers / owners of the vehicles from whom the money was being taken by the touts to the given to the MVIs. He admitted that recovery was not effected from the person of the accused and the same was recovered from the large table in front of the accused. It is also interesting to note that the witness stated that it took less than 30 minutes to reach Burari Transport Authority from Lodhi Road. The witness stated that he had not seen any MVI or touts taking money from PW10 Suresh Kumar or anybody else. The witness also stated in the cross examination that no vehicle owner was examined by the raiding party at the spot to show that the amount was paid or received by the aforesaid persons. The witness admitted that A3 SP Dubey had not given any money to A1 PS Sehrawat in his presence or in the presence of raiding party. He also admitted the fact that PW5 M. Johnson CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 43 of 62 was present in the room.
PW8 HC Wasan Singh stated on oath that on 21/8/95, he himself alongwith the raiding party reached Burari Transport Authority at 2pm and was directed to go inside the authority with PW7 JC Sharma and source. The witness stated that source informed him about the collection of money by touts and he himself saw alongwith PW7 JC Sharma that Inspectors of Burari Transport Authority took their seats inside the shed, the touts went inside the shed. HC Wasan Singh deposed on oath that he saw A4 Anup Singh Dahiya handing over one polythene bag to A1 PS Sehrawat saying that, that was the collection for passing of the vehicles. He also stated that MVI enquired from the touts about the collection, on which the touts informed that they collected the money of the vehicles which were passed and all the touts paid the collected money to the different MVIs which they kept on their tables, and amounts were recovered from different tables. A1 PS Sehrawat threw away the packet from his pocket. In the cross examination, on behalf of A2 to A6, the witness admitted that Ex.PW2/A surprise check memo does not bear his signatures. He also admitted in the cross examination on behalf of A9 and A10 that he did not sign any memo pertaining to this case. During cross examination, HC Wasan Singh was not able to give the details of the money given by each tout to the MVIs. He also admitted that nor did he state the same to CBI in his statement. HC Wasan Singh stated that no public person complained to him that the touts took money in the name of the MVIs. In further examination on behalf of accused CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 44 of 62 persons, the witness admitted that he himself alongwith PW7 JC Sharma were observing by moving to different places alongwith the source and the touts were also moving from one place to another. It is pertinent to mention here that the witness stated that he cannot say that whether the accused persons were sitting on their respective table or one table. In the cross examination, the witness stated that all the proceedings were done in the same room in which the accused persons were detained. However, he was not able to tell if the records pertaining to the vehicles which were given fitness certificate were collected or not. HC Wasan Singh stated that he remained at Burari Transport Authority till 5:30pm and thereafter, entire CBI team returned to CBI office. HC Wasan Singh was not knowing that A1 PS Sehrawat was called in Shed No. 5 at about 5:25pm on that day.
The investigation of the case was entrusted to Inspt. Rajesh Kumar (PW13) after registration of FIR Ex.PW13/A on the basis of complaint Ex.PW13/B, which was sent by DySP RK Chadha PW15 from the spot through Ct. Satbir. Insp. Rajesh Kumar made a detailed statement regarding the proceedings conducted by him. It is pertinent to mention here that in the cross examination the witness stated that he had not recorded the statement of PW8 HC Wasan Singh though he admitted that the case was assigned to him at about 4:30pm to 4:35pm. It implies that after 4:35pm, the proceedings have been conducted by him being the IO. Inspt. Rajesh Kumar stated that surprise check memo Ex.PW2/A was handed over in CBI office in CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 45 of 62 the midnight of 2122/8/95. It also came in the cross examination that he reached quite late in the office at about 2:30am as from the spot he went for the house search of one of the accused persons. It is also pertinent to mention here that Inspt. Rajesh Kumar stated that SI Vipin Kumar and SI Shobha Dutt had accompanied him. The witness stated that he left the spot at 6pm and raiding party was still there and from the spot he went to the residence of A4 Anup Singh Dahiya to conduct the raid. PW13 Inspt. Rajesh Kumar also did not examine any person who is alleged to have paid money to the accused persons.
8.4 The other set of important witnesses would be the independent witnesses PW2 Uday Kumar and PW7 JC Sharma. To the disappointment of CBI, both of these witnesses turned hostile and did not support the case of the prosecution. PW2 Uday Kumar in his testimony though admitted to have joined the raiding party, however, he stated that his attention was drawn on hearing noise and he saw that CBI team started apprehending the touts. PW2 Uday Kumar stated that 24 persons were apprehended and those persons were taken to a room where some Inspectors were sitting and they were also apprehended. PW2 Uday Kumar stated that money was recovered from the pocket and drawer of the Inspectors. PW2 Uday Kumar could identify only A3 SP Dubey and that too because he had visited his house. The witness proved the surprise check memo as Ex.PW2/A, the siteplan prepared on the spot as Ex.PW2/B, the personal search memo of the accused CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 46 of 62 persons as Ex.PW2/C to Ex.PW2/J and the papers recovered from the possession of the accused persons as Ex.P1 to P7. The witness was declared hostile. In the cross examination by Ld. PP, the witness specifically denied that A8 to A10 were collecting money and making notes on the slip of papers. He also admitted that A1 PS Sehrawat picked up polythene bag from the pocket and threw the same behind the almirah. In the cross examination by the defence, the witness stated that the MVIs were taking lunch and their tiffings were open and lying on the table. He also stated that he had not seen accused A4 AS Dahiya giving Rs. 12,000/ to A1 PS Sehrawat nor did he see A1 PS Sehrawat throwing the polythene bag behind the almirah.
Similarly, PW7 JC Sharma also turned hostile though he admitted that he accompanied PW8 HC Wasan Singh as shadow witness but did not support the case of the prosecution on material grounds. PW7 JC Sharma stated that he alongwith PW8 HC Wasan Singh took a view of the inside portion of the authority and went to a room, the door of which was closed and noted that some people were getting their papers filled up. PW8 HC Wasan Singh told him after about 1 ½ hour to call other trap team members. PW7 Sh. JC Sharma walked down to call the raiding party and then followed them. The witness stated that he found long table on which currency notes were lying, which were counted and wrapped in handkerchief. On being declared hostile by the prosecution, the witness denied the entire CBI case and did not identify the accused persons. He signed Ex.PW2/A without knowing the contents of the same as there was so much crowd. In the CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 47 of 62 cross examination, the witness stated that he had not seen anything except that he had visited there. The witness also stated that in all CBI raids whenever he had joined the team, the CBI officials had been obtaining his signatures without letting him to go through the contents of the same. 8.5 The witnesses from the Transport Department PW1 Sh. IS Khanna, PW3 Sh. Vishnu Dutt, PW4 Sh. RP Aggarwal and PW5 Sh. M. Johnson also did not provide much relief to the CBI. PW1 Sh. IS Khanna deposed broadly about the procedure for issuance of the certificate of fitness. The only point worth noting in his evidence would be that there were three pits for inspection and around 400 inspections per day used to be conducted. PW3 Sh. Vishnu Dutt proved the presence of accused persons in the office on the day of the incident. The testimony of PW4 Sh. RP Aggarwal is some what relevant to point out the contradictions in the testimony of the prosecution witnesses. He stated that on the day of incident, he was Dy. Director (Transport) and the CBI officials informed him about the raid and asked him to remain in office till further instructions by CBI. Sh. RP Aggarwal stated that at about 5:30pm, he was called by CBI in Shed No. 5 to complete the fitness process in view of the resentment shown by the public. PW4 Sh. RP Aggarwal asked MVI PW5 Sh. M. Johnson to go ahead with the fitness process and CBI continued its proceedings till 9pm. This witness was also declared hostile by the prosecution. In the cross examination, the CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 48 of 62 witness refused his own statement. He stated that fitness certificates were issued till 5:45pm at the advise of CBI. He also stated in the cross examination that in Shed No. 5, Inspectors used to take lunch. PW5 Sh. M. Johnson who was found in Shed No. 5 at the time of raid was also declared hostile. Even in the cross examination, the witness did not provide any support to the CBI, rather he stated that he signed the surprise check memo at the advise of the CBI.
8.6 PW9 Sh. Ram Babu and PW10 Sh. Suresh Kumar, the only remaining public witnesses, again totally resiled from their testimony and did not support the case of the prosecution at all. PW10 Sh. Suresh Kumar refused to have given any complaint to CBI and despite being cross examined did not say anything.
8.7 CBI has also relied upon the testimony of PW12 Sh. RK Jain, GEQD. The plea of the prosecution is that certain slips were recovered from the possession of the accused persons and on these slips there were number of the vehicles and certain amounts. The disputed documents Q1 to Q13 Ex.PW2/K1 to K7 were examined by PW12 Sh. RK Jain and compared the specimen handwriting of A10 Jagmohan Singh S1 to S9 and after comparison found that Q1 and Q2 have been written by the author of S1 to S9 i.e. A10 Jagmohan Singh. The disputed documents Q3 to Q7 has been CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 49 of 62 written by the author of S10 to S37 i.e., A8 Kamal Kapoor, Q8 was written by the author of S38 to S45 i.e. A4 AS Dahiya and Q11 & Q12 were written by the author of S50 to S57 i.e. A6 Brijpal Singh. The report has been proved as Ex.PW12/H. The expert also examined Q9 to Q17 Ex.PW12/B1 to B5 and compared the same with specimen handwriting of A5 Maharaj Singh S46 to S49 Ex.PW12/C1 to C4, A3 SP Dubey S58 to S76 Ex.PW12/D1 to D19, A1 PS Sehrawat S77 to S80 Ex.PW12/E1 to E4, A2 Daulat Ram S88, S94 to S97 Ex.PW12/F1 to F10 as well as admitted writing of A5 Maharaj Singh A4, A5, A10, A3 SP Dubey A11 to A16, A1 PS Sehrawat A1 to A3, A6 to A9 and A2 Daulat Ram A17 & A18, Ex.PW12/G1 to G4 and opined vide report Ex.PW12/H that Q17 is written by the author of S46 to S49, A4, A5& A10 i.e. A5 Maharaj Singh, Q15 & A16 is written by the author of S58 to S76, A11 to A16 i.e. A3 SP Dubey, Q9 is written by the author of S77 to S80, A1 to A3 & A6 to A9 i.e A1 PS Sehrawat and Q13 & Q14 is written by the author of S81 to S88, S94 to S97, A17 & A18 i.e. A2 Daulat Ram. CBI has pressed that this is an important link witness which has connected the accused persons with the offence.
CBI has led much emphasis on the expert evidence of PW12 Sh. RK Jain. It has been argued that the evidence of handwriting expert has connected the accused persons with the offence. I am afraid that this argument has not been able to convince me. First of all, we must understand that the evidence of an expert is only an opinion. It is not a conclusive piece of evidence. Secondly, the matter regarding which the expert opinion has CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 50 of 62 been given has to connect itself with the facts in issue on the basis of reliable evidence. In the present case, recovery itself, of the documents is doubtful. Secondly, these documents does not connect well with the offence alleged against the accused persons. In order to make this evidence a material piece of evidence, the CBI was required to prove atleast some evidence to show that there was transaction of illegal gratification in respect of the vehicle numbers mentioned in such slips. Unfortunately, no such evidence has come. Therefore, this piece of evidence would not be sufficient, alone or read with other evidence, to record the conviction against the accused persons. 8.8 If we go through the testimony of the entire prosecution witnesses, one thing is clear that at the time when allegedly A8 to A10 handed over the money to A1 to A6 only PW7 JC Sharma and PW8 HC Wasan Singh were present. PW7 JC Sharma in his testimony totally resiled from his testimony. He did not utter even a single word regarding the demand or acceptance of money. The witness only stated that he found long table on which currency notes were lying. It is interesting to note that even in his testimony he stated that he had not seen anything except that he had visited there. Thus, out of the two witnesses who could prove the main ingredients of the offence; one had totally broken the spine of the case of the prosecution and the other witness PW8 HC Wasan Singh supported it to the extent that the witness stated that he alongwith PW7 JC Sharma saw that MVIs took their seats in the sheds and then touts went inside. He also stated that MVIs CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 51 of 62 enquired from the touts about the collection and then the touts paid the money collected by them to different MVIs. It is pertinent to mention here that PW8 HC Wasan Singh also did not depose specifically that which of the touts paid money to which of the MVI. He also stated that amounts were recovered from different tables which is also in contradiction to the testimony of PW7 JC Sharma where he stated that amount was recovered from a long table. The testimony of another public witness PW2 Uday Kumar is also in total contradiction to the testimony of these witnesses because he stated in his statement that initially CBI team started apprehending the touts and then they were taken to a room where Inspectors were sitting and the money was recovered from the pocket and drawer of the Inspectors. The question is that on the basis of such quality of evidence, the conviction can be based. I have discussed in detail the salient part in the testimony of prosecution witnesses. Bare perusal of the testimony of these witnesses reveals certain material contradictions which certainly go to the root of the case. It is a matter of record that currency notes were recovered from the table. It is not the case of the CBI that the same were touched by the accused persons or recovered from their person. In these circumstances, the case of the prosecution becomes difficult. Reference can be made to Ganapathi Sanya Naik Vs. State of Karnataka, AIR 2007 SC 3213. 8.9 In the present case, it is quite surprising that CBI appointed their own official PW8 HC Wasan Singh as a shadow witness alongwith PW7 JC CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 52 of 62 Sharma. It may be recalled that it has come on the record that PW7 JC Sharma had been witness of CBI in other cases. It is a settled proposition that in the trap cases it is always desirable that the panch witnesses should be independent witnesses. It has also been noted that even as per the case of the prosecution PW7 JC Sharma and PW8 HC Wasan Singh remained in Shed No. 5 where allegedly the conversation took place between the accused persons regarding the payment of illegal gratification but no arrangement was made for recording of such conversation. It again raises a doubt regarding the genuineness and credibility of the case of the prosecution. PW8 HC Wasan Singh does not seem to be a reliable witness. Even his presence on the spot seem to be doubtful. Admittedly, his signatures does not appear on the surprise check memo or any other memo. PW13 Inspt. Rajesh Kumar who had taken over the investigation immediately after the registration of the FIR admitted that he did not record the statement of PW8 HC Wasan Singh. PW8 HC Wasan Singh being official of the CBI would obviously be interested in the success of its case. It is highly debatable that whether HC Wasan Singh can be termed as independent witness. The solitary purpose of relying on the evidence of shadow witness is on the ground that he is a disinterested person. PW15 DSP RK Chadha picked PW8 HC Wasan Singh who would obviously harbour interest in the prosecution. Except the testimony of PW8 HC Wasan Singh, there is no other evidence so as to prove the demand and acceptance of bribe. There is a big question mark on the credibility on the testimony of PW8 HC Wasan Singh. He being a partisan CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 53 of 62 witness, in the absence of any other witness it is difficult to accept his version. In a case where the shadow witness was a Constable working with a Vigilance Organization itself, it was held that he cannot be called an independent witness. Reference can be made to Charan Das Vs. State, 2003 CriLJ 4701. The testimony of PW11 DSP SK Peshin and PW15 DSP RK Chadha is also not sufficient to place the conviction as they have also buckled under the cross examination of the defence.
9.0 In respect of the charge of conspiracy against the accused persons it is shocking that prosecution has not led even an iota of evidence so as to show even any meeting of mind amongst the accused persons. It is also a settled proposition that mere recovery of money divorced from the circumstances under which it is paid is not sufficient to record the conviction. The prosecution is required to prove strong substantive evidence so as to prove the guilt of the accused persons. It is also pertinent to mention here that in the corruption cases one needs to bear in mind that these are serious cases fraught with great consequences and no laxity is permissible with regard to the procedure to be adopted in relation to the trap as also the establishment of legal requirements i.e. demand and acceptance. In the present case, CBI has acted in the most casual manner. It was a very good case to be investigated. The corruption in the transport department is quite well known. CBI acted in undue haste by conducting the raid immediately on CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 54 of 62 the receipt of information without doing any homework. Even the subtouts were not even examined, what to say of making them an accused. The CBI officers admitted with courage that they did not examine any public person who had alleged to have paid the money to touts or subtouts. Unfortunately, the two witnesses who were examined did not support the case of the prosecution. The witnesses have delightfully made weak statements. It is also worth to note that CBI has not led any evidence that how many vehicles were passed on that day. No record relating to this has been proved. After all the bribe was for issuance of certificate of fitness of the vehicles which came for inspection. It was the important link evidence which has been missed by the CBI for the reasons best known to them. Even the currency notes seized from the table were even not sealed. Their numbers were also not noted down in the seizure memo. The prosecution has also not been able to bring any evidence so as to prove the ingredients of Sec. 12 of the POC Act. 10.0 Sh. DK Singh, Ld. PP for CBI has argued vehemently for taking into account Sec. 8 and Sec. 114 Indian Evidence Act.
Section 3 of the Indian Evidence Act defines evidence.
"Evidence - Evidence means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) [all documents including electronic records produced for the inspection of the Court], CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 55 of 62 such documents are called documentary evidence."
The principles regarding presumption is very well settled. A legal presumption unless rebutted would tantamount to prove the case in hand. If the prosecution has produced reliable material to show that the accused had received money which was in turn recovered from his possession, a statutory presumption can be raised. The concept of presumption is that it is an inference of fact derived from proved facts. The rule of caution is that the presumption cannot be used to draw another discretionary presumption. The presumption under Prevention of Corruption Act can also be raised only if the condition precedent for drawing such presumption is satisfied.
10.1 Section 8 of the Indian Evidence Act provides that any fact which constitutes a motive or preparation for any fact in issue or relevant fact is relevant and is admissible u/s. 8 of the Evidence Act as part of the Res gestea. Section 3 of the Indian Evidence Act also defines "Relevant" which reads as under: "Relevant - one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts."
10.2 A fact in issue is 'principal act' or 'factum probandum' and the relevant fact the 'evidentary fact' or 'factum probans'. CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 56 of 62
Section 6 to 16 of the Indian Evidence Act are the example of the principle called Res gestea. Res gestea are the events themselves speaking through the instinctive words and acts of participants, the circumstances, acts and declarations which grow out of the main fact.
I consider the true interpretation of this provision would be that the relevant acts forming part of the res gestea can be taken into account to draw inference of fact drawn from other known or proved facts. In any case, the prosecution would be required to prove the factum probandum. The relevant facts can be helpful to prove the circumstances only if the evidence regarding the fact in issue is cogent and credit worthy. If the evidence in regard to fact in issue itself is weak or shaky in character, there would be no utility of the relevant facts.
10.3 Ld. P.P. has also urged this Court to draw the presumption against the accused persons in pursuance of Section 114 of Indian Evidence Act. It is pertinent to mention her that presumption is a rule of law that Court may draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved. There are three classes of presumption i.e. presumption of law, presumption of fact and mixed presumptions. A presumption of law is a rule of law that a particular inference shall be drawn by a Court from particular circumstances. A presumption of a fact is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved. The presumptions arising u/s. 114 are CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 57 of 62 presumptions of fact, hence they are rebuttable and discretionary. In order to draw a presumption as laid down in Section 114 (a), it has to be proved that accused was found in possession of stolen property soon after the theft and could not give a satisfactory account of his possession. This presumption cannot be drawn unless it is a necessary inference from the circumstances of the case, which cannot be explained or any other hypothesis save the guilt of the accused. The necessary ingredient to invoke this presumption is that accused should have been proved to be in the possession of the property and the property is proved to be the stolen property. There cannot be any presumption as to the fact of the possession and the presumption of guilt can arise only when the possession is proved and that the property is a stolen property. Thus for better understanding, the prosecution is required to prove three ingredients i.e. ownership of the article, its theft and recent possession by the accused. The fact that the stolen property may reasonably be presumed to be stolen property does not justify the raising of the presumption. It is also pertinent to mention here that the accused cannot be called upon to prove absence of carried knowledge or belief. It is also worth to mention here that such possession must be shown exclusive as well as recent. If a property has been found at a place which is accessible to other other, it cannot be held to be an exclusive possession.
If all the accused persons are in joint possession of the property, a presumption may arise that all of them are either thief or receivers of stolen property. But before such presumption can be used, it is for the prosecution CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 58 of 62 to prove that each one of the accused had either physical possession of the stolen property or any part of it, that one or more of the accused had possession of the stolen property or any part of it, either physical or constructive, on behalf of themselves and the other coaccused and to their knowledge. It is also pertinent to mention that illustration (A) though refers to the case of theft, but extends to other charges also. It is also necessary to mention that the possession of the stolen property even if accompanied by failure to give an account as to how such possession acquired would not raise a strong presumption. It would be wrong to say that after raising the presumption, the burden of proof would shift to the accused. The fact that no rational explanation is possible or that the explanation offered is not acceptable should not militate against the innocence of the accused. Reference can be made to Singaram Vs. State of Tamil Nadu, 1954 Cr.L.J. 115 (Madras) wherein it was held as under:
"the mere possession by an accused person of articles which were on the person or in custody of a murdered man at the time of his murder without any explanation for such possession cannot lead to an inference that he took part in the murder that he was privy to it. The presumptions mentioned in the illustration to S.114, Evidence Act cannot be stretched to that extent. One can very well imagine a case where a jewel on the person of a murdered individual came to be in the possession of another without any kind of reasonable explanation being offered by that individual. The fact that no rational explanation is possible, or that the explanation offered is unacceptable, should not militate against the innocence of the individual with regard to the offence of murder. Something more is necessary than mere possession of articles."
It may be recalled that in criminal trial, the onus of proof never CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 59 of 62 shift to the accused and always remain on the prosecution. The prosecution would still be liable to prove its case beyond reasonable doubts. 10.4 Coming to the facts of the present case, even if the recovery Rs. 93,400/ is accepted, the prosecution would be required to prove on the similar lines, the fact regarding the money recovered as a bribe money and the accused persons were in possession of the same. The question is whether the prosecution has proved on record that money allegedly recovered from the table lying in shed No. 5 was actually an illegal gratification. The fact cannot be accepted to have been proved at the mere asking of the prosecution. It may be that the money which was referred from the table of the accused was an illegal gratification, but then there is a long distance to travel between 'may' and 'must'. The prosecution is required to prove beyond reasonable doubt that the money recovered was meant for illegal gratification. It would be drawing parallel to a fact where suppose the dead body was found on a table with certain persons sitting and standing around it. Would this fact alone per se make the accused persons liable is a question to answer. It is also pertinent to mention that in absence of reliable evidence regarding demand and acceptance, the statutory presumption u/S 20 POC Act, cannot be raised.
11.0 I consider that the statement of the witnesses produced by the CBI are extremely shaky and unconvincing. The integral part of the story CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 60 of 62 given by the witnesses does not seem to be believable and the same is unreliable and unworthy of credance. It is also pertinent to mention here that in the testimony it came that PW7 JC Sharma had been a regular witness with the CBI. In these circumstances, it is questionable that whether such witnesses can be called an independent witness. Reference can be made to GV Nanjundiah Vs. State (Delhi Administration), AIR 1987 SC 2402. In this case, one of the panch witness had admitted that he had earlier joined three or four such raids for trap organized by the CBI and therefore, the Supreme Court held that he cannot be called an independent witness. 11.1 The evidence on the record do suggest a strong suspicion against the accused persons regarding discharge of their duties. However, on account of the quality of investigation and the evidence, which has come on the record, it is not sufficient to record the conviction against the accused persons. However, the material on the record may be considered sufficient for the departmental authorities to take appropriate action against the accused persons.
12.0 In view of the above discussion, I consider that CBI has not been able to prove its case beyond reasonable doubt. Hence, giving benefit of doubt, A1 PS Sehrawat, A2 Daulat Ram, A3 SP Dubey, A4 Anup Singh Dahiya, A5 Maharaj Singh, A6 Brijpal Singh, A7 Vijay Kumar CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 61 of 62 (expired), A8 Kamal Kapoor, A9 Devraj and A10 Jagmohan Singh are acquitted of the charge u/Ss 120B IPC r/w Sec. 7, 12 and 13(2) r/w 13(1)
(d) of PC Act, 1988 and Sec. 7 and 13(2) r/w 13(1)(d) of PC Act and Sec. 12 PC Act, 1988 in case RC No. 71(A)/95DLI.
Accused persons are on bail. Their Sureties are discharged. Their bail bonds are cancelled. Original documents, if any, on record, be returned to the accused against proper acknowledgment. 12.1 In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.20,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months. 13.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma)
on 27.08.2012 Spl. Judge (PC Act) : CBI
Saket Courts : New Delhi
CBI Vs. PS Sehrawat & Ors. CC No. 43/11 Page 62 of 62