Delhi District Court
Cbi vs . Hawa Singh on 12 July, 2012
1
IN THE COURT OF SH. PRADEEP CHADDAH: SPECIAL JUDGE:
CBI01, CENTRAL DISTRICT. DELHI
CC No. 123/06 RC No. 46(A)/2004
PS: CBI/ACB/ND
CBI Vs. Hawa Singh
S/o Late Sh. Bhale Ram,
R/o Vill. & P.O. Jourasi,
Distt. Panipat,
Haryana.
(the then ACP, Delhi Police)
Date of Institution : 15.02.2006
Judgment Reserved : 23.05.2012 & 02.07.2012
Judgment Delivered : 12.07.2012
J U D G M E N T
1. CBI filed the present chargesheet against accused Hawa Singh u/s 7 and 13 (2) r/w 13(1) (d) of the P.C. Act.
CC No.123/06 CBI Vs. Hawa Singh pg 1 of 61 2
2. The law was set in motion after Harminder Singh a Sub Inspector in Delhi police posted in the office of DCP North District made a complaint to Superintendent of Police, CBI. Complainant alleged in his complaint that he was posted as sub inspector and was currently working as Confidential Assistant in the office of DCP North. He had been processing matter regarding issuance of crackers licence for Diwali and Dusshera. After obtaining signatures of Addll. DCP North, he used to get them issued by his staff.
3. On 5.1104 accused Hawa Singh who was ACP (Public Grievances Cell) summoned him to his office. He asked him (complainant) to share the money which he (complainant) was collecting from the parties for issuance of licences. He further told him that he had learnt that he (complainant) collected substantial amount. On 6.11.04 accused Hawa Singh again summoned him and asked him to provide him with crackers as he wanted to give them to somebody. He further told him to come up with his share of the booty. Complainant further alleged that he became unwell and went to dispensary where doctor prescribed him medical rest for 10 days. Even after 6.11.04 accused contacted him on his mobile phone and asked him to provide money and crackers. Accused in order to get his demands fulfilled CC No.123/06 CBI Vs. Hawa Singh pg 2 of 61 3 issued him a show cause notice on 8.11.04. Ultimately complainant claimed that as he did not want to pay any bribe to the accused, he was making the complaint.
4. The complaint led to registration of RC No. 46(A)/2004. The demand was confirmed and trap was laid and accused was apprehended. Accused immediately dipped fingers of his left hand in a cup of tea and became violent, but CBI team members caught hold of him from his wrist. The bribe amount was recovered. When fingers of the accused were dipped into colourless solution of sodium carbonate, the solution turned pink. His right hand wash was also taken. Remnants of tea in which accused had dipped his fingers were also transferred to clean glass bottle. The other solutions were also transferred to glass bottles, sealed and seized. Ultimately, the present chargesheet was filed in this court.
5. After providing copies my Ld. Predecessor framed the following charge against the accused:
"That on and before 06.11.2004 and even after, you Hawa Singh being posted as Assistant Commissioner of Police, P.G. Cell, North District, CC No.123/06 CBI Vs. Hawa Singh pg 3 of 61 4 Delhi being a public servant demanded Rs.5,000/ as a bribe/illegal gratification from complainant Harminder Singh, SI No. D454, posted in the office of DCP North District, Delhi on account of issue of licenses to the sellers of crackers and thereby you committed an offence punishable under section 7 of the Prevention of Corruption Act 1988 within my cognizance.
Secondly in the night intervening between 9/10112004 at your above said residence you demanded and accepted the bribe amount of Rs. 5,000/ from complainant SI Harminder Singh as illegal gratification by illegal means as a pecuniary advantage for yourself by corrupt or illegal means or otherwise by abusing your position as such public servant being employed as above public servant and thereby you committed an offence of criminal misconduct as specified under section 13(i) (d) and punishable u/s. 13(2) of Prevention of Corruption Act 1988 and within my cognizance
6. After charge was framed accused pleaded not guilty and claimed trial.
7. Prosecution in support of its case examined 12 witnesses.
8. First witness examined by CBI was Mr. C.L. Bansal from CFSL. He CC No.123/06 CBI Vs. Hawa Singh pg 4 of 61 5 deposed that on 16.11.2004 he was working as Sr. Scientific Officer in the Laboratory. Four sealed bottles containing liquid were received in their office. Contents of all the four bottles gave positive result for presence of phenolphthalein while only three bottles gave positive test for presence of sodium carbonate. Ex. LHWT gave negative test for presence of sodium carbonate. The report given by him was Ex.PW1/B. Upon being cross examined he claimed that his report Ex.PW1/B (wrongly typed as Ex.PW1/A) did not contain details of the tests conducted on the samples. The photocopy of the worksheet was Ex.PW1/DX. The chemical test had been conducted by himself as well as by Ms. Meeta, Sh. M. Chellian and Dr. N.M. Hashmi.
9. The second witness to be examined by the CBI was SI Rajkumar. He deposed that in December 2005 he was posted as Head Asstt. General Branch DCP Office. He had handed over a letter signed by M.N. Tiwari ACP which was Ex.PW2/A along with certified copies running into 17 pages to CBI. The copies were Ex.PW2/B1 to B17.
10. The third witness to be examined by the prosecution was Gulshan Arora, Nodal Officer, Hutchinson Essar Mobile. He deposed that vide letter CC No.123/06 CBI Vs. Hawa Singh pg 5 of 61 6 Ex.PW3/A he had provided call details of mobile No. 9811399072 for the period 5.11.04 to 09.11.2004 which were Ex.PW3/B1 to B3.
11. Thereafter, Sh. Rajneesh Tingle entered the witness box as PW4. He deposed that accused was member of DANIPS under administrative and supervisory control of Sh. K.S. Sugathan Joint Secretary (Union Territory) Ministry of Home Affairs. Documents for grant of sanction for prosecution of accused were received from CBI. They were processed by him and file was submitted to Mr. Vikram Dev Dutt, Dy. Secretary who in turn submitted the file with his recommendations to competent authority K.S. Sugathan. The matter was also discussed by him with Mr. Sugathan and sanction for prosecution was granted by the competent authority. The sanction was conveyed by him (PW Rajneesh Tingle) and the order was Ex.PW4/A.
12. Thereafter, star witness for the prosecution complainant Harminder Singh entered the witness box as PW5. He deposed that he was posted as sub inspector in November 2004 in the office of DCP North District. His job was to supervise work of CA Branch and also assigned work of issuance of cracker license in connection with Dussera and Diwali festival. The applications for cracker license were received in CA Branch. They used to CC No.123/06 CBI Vs. Hawa Singh pg 6 of 61 7 be sent to concerned police station for verification and after verification they were sent to PG Cell for crossverification. Those applications which were reverified and recommended by ACP PG Cell were sent to Addl. DCP (North) for signing the license. On 05.11.2004, he was called by accused who was ACP PG Cell. Accused told him that he (PW Harminder Singh) had received lot of money for issuance of cracker license from the applicants and so the money should be shared with him. On 06.11.2004 accused again asked him for his share of money and also some crackers. The witness claimed further that he fell sick and had gone to dispensary where again he received call on his cellphone from the accused who reminded him of his share in the booty and also crackers. On 07.11.2004, the demand was repeated telephonically by the accused. On 08.11.2004 as he could not meet the demand accused issued a show cause notice to him. In the morning and evening of 08.11.2004 he received telephone call on his landline no. 27856949 from the accused whereby he (accused) threatened to spoil his (complainant's) career if his demand was not met.
13. On 09.11.2004 accused again rang up at his residential telephone and threatened to stop his promotion if his demand was not met. The witness claimed thereafter he went to CBI office and met Mr. D.C. Jain who was SP CC No.123/06 CBI Vs. Hawa Singh pg 7 of 61 8 and gave his written complaint. The said complaint was Ex.PW5/A. The complaint was then handed over to Inspector Umesh Vashisth who took him to his room and questioned him. Then two independent witnesses namely C.L. Kane and B.D. Grover were called and a team was constituted. The independent witnesses also went through the complaint and questioned him. A digital recorder was arranged in which voices of independent witnesses were recorded and he was asked to contact the accused on his mobile phone. He accordingly dialled mobile no. 9811399072 of the accused from his mobile No. 9868096187 and talked to the accused. He told the accused that he had gone to Sadar Bazar and contacted cracker licencees who told him that they had Rs.20,000/ in name of the accused of which some amount had been given and when should he (PW Harminder Singh) give the money, today or tomorrow. Upon it accused replied that he could do as he desired. This entire conversation had been recorded and it was replayed and heard. It was then transferred to two new normal cassettes, one was sealed in a cloth wrapper and marked as Q1. He then produced Rs.5,000/. Their numbers were noted down on handing over memo. Phenolphthalein powder was applied on the notes and demonstration was given by B.D. Grover. Upon dipping the fingers in sodium carbonate solution, it turned pink. Then digital recorder of Cenix make was arranged. It was put on erase mode and CC No.123/06 CBI Vs. Hawa Singh pg 8 of 61 9 formal voices of independent witnesses were recorded. He was asked to switch it on before entering premises of the accused. A transmitter fitted mobile of Panasonic make was also given to him. Whenever a call would be made to CBI office, the instrument would be activated and recording would be done in CBI office also. He further deposed that mobile phone which was fitted with transmitter was kept in his jacket pocket. Trap money Rs. 5000/ was kept in his left upper shirt pocket. Independent witness Mr. C.L. Kane was to accompany him and watch the transaction and was to pose as a shopkeeper. He was also instructed to give signal after completion of transaction of bribe by scratching his head. He (PW Harminder Singh) was instructed to give a telephone call to TLO after completion of the bribe transaction. Handing over memo Ex.PW5/B was then read over and signed by all of them. They then left for office of DCP and reached there at about 8.15 p.m. When they went in, they came to know that accused had left. He then called accused on his mobile phone and talked to him. He then asked the accused if he could come to his residence for paying money, accused replied "Haan mere ghar aa jao". The said conversation was recorded on digital recorder and was also replayed. They then left for his residence at PS Patel Nagar and reached there at about 9.45 p.m. Accused was present in his house which was on the third floor and he opened the door and they sat in CC No.123/06 CBI Vs. Hawa Singh pg 9 of 61 10 the drawing room. Tea was served . While taking tea accused made a gesture by his hand demanding bribe. Thereupon, he (PW Harminder Singh) took out GC notes and extended his hand towards the accused. Accused extended his hand and accepted the bribe amount and kept it in the space between left side arm of the sofa and cushion of the sofa. He (complainant) then gave a ring to mobile of TLO. Upon it Inspector Surender Malik and TLO Umesh Vashisth entered the drawing room. They challenged the accused for having accepted bribe. Accused refused by saying that he had not demanded or accepted any bribe. He put fingers of his left hand in the tea cup and washed his left hand fingers in the tea. He became violent and threatened to shoot. Scuffle ensued between Surender Malik, Umesh Vashisth and the accused. TLO then handed over wrist of the accused which he was holding to Mukesh Kumar and SI Prem Nath. Independent witness B.D. Grover was asked by the TLO to recover the bribe amount which he did. He also tallied the numbers of the GC notes with handing over memo. Thereafter, solution of sodium carbonate was prepared and accused was asked to wash his left hand fingers in it. The solution turned mild pink in colour. Another solution was prepared and right hand fingers of the accused were dipped in it. No change in colour was observed. Again thereafter, a solution of sodium carbonate was prepared. It was poured in a bowl. The CC No.123/06 CBI Vs. Hawa Singh pg 10 of 61 11 portion of the seat on which money was kept was washed by C.L. Kane and the colour of the solution turned pink. All the solutions which had been prepared, were poured into separate bottles, labelled and sealed. Remnant portion of the tea was also poured from the cup in a clean glass bottle. Independent witnesses signed on them. The digital recorder was played. The recording confirmed demand and acceptance of bribe. The recording was transferred to two new cassettes and sealed. Inspector N.K. Jain prepared rough site plan. The same was Ex.PW5/C. Personal search of the accused was taken and he was also arrested. Recovery memo running into nine pages was Ex.PW5/D. It was prepared at the spot. CBI seal after use was handed over to independent witness B.D. Grover. Ex.PW5/E was prepared in CBI office on 23.12.2005. It was transcription cum voice identification memo. Another transcription was Ex.PW5/F. The GC notes which were recovered from the left side of sofa set of the accused, were Ex.P1 to P10.
14. Upon being crossexamined, the witness admitted that he was posted on deputation as Inspector CBI from 1997 to March 2004. He had worked with Inspector N.K. Jain, Inspector Surender Malik and Inspector Mridula Shukla, but he had not worked with Umesh Vashisth, A.V. Bhardwaj, M.S. CC No.123/06 CBI Vs. Hawa Singh pg 11 of 61 12 Singhal and Prem Nath. However, he knew them. He claimed that he had never worked under SP D.C. Jain nor did he know him before 09.11.2004, the date on which he had preferred complaint against the accused. He denied the suggestion that Ex.PW5/A to Ex.PW5/F were not prepared in his presence. After reading Ex.PW5/E, in the court he admitted that except portion DA26 to DA26 and DA27 to DA27 in the transcription there was no other sentence in which, "paise or money or any amount of money or any word regarding money was mentioned".
15. He further claimed that he had not visited house of the accused at any point of time before 9.11.04 or thereafter. He had been instructed to switch on the digital recorder upon reaching office of the accused and he was about to do so but then he learnt about non availability of the accused in his office. He denied the suggestion that he had made a false statement identifying voice of the accused or that audio cassette did not contain voice of the accused. He further claimed that he knew that accused used to reside in flats in police station Patel Nagar Complex and he had switched on the digital recorder upon entering the complex. He admitted that the cassette he heard in CBI office contained some noises and disturbances. He also admitted that when CBI officers entered the house of the accused, they first stepped into CC No.123/06 CBI Vs. Hawa Singh pg 12 of 61 13 his drawing room. He also admitted that he came to know on 4 th or 5th of November 2004 that Iftarcumdinner function was to be organized at Raj Niwas and he was required to act upon. Regarding show cause notice issued by the accused, he claimed that it was issued on 8.11.2004 and was served upon him on 16.11.2004. He denied the suggestion that he had made any false statement about his meeting the accused on 05/06.11.2004 or about demand being made. He also denied the suggestion that complaint was false. None of the staff in CA branch held any grudge against him. He also denied the suggestion that he had not attended his office on 6.11.04 between 9.30 a.m. to 1 p.m. He volunteered that as he was feeling unwell he sought permission from the accused and went to CGHS Dispensary for treatment. During his absence document Ex.PW5/DC was received in the office and thereafter document Ex.PW5/DB was to be issued. Document Ex.PW5/DC was requirement of outside force during Iftarcumdinner at Raj Niwas and document Ex.PW5/DB was TP message issued by Dy. Commissioner of Police for deputing officials during Iftarcumdinner. He denied the suggestion that he had not attended his office in the morning of 06.11.2004. Regarding disturbances in the recordings he offered an explanation and claimed that at the time when he was having talks with the accused, he was sitting in a CBI van and over head high voltage electric wires were there.
CC No.123/06 CBI Vs. Hawa Singh pg 13 of 61 14 The wires were passing above the van which had been stationed somewhere in Vidhan Sabha in office of DCP (North). He also denied the suggestion that the noises, disturbances, dropouts, cueing and mixing of sounds indicated acts of tampering with the recording and that the transcription Ex.PW5/F was fabricated document till portion D6. Regarding photographs MarkA1 to Mark A5, he claimed that they were photographs of the area leading to the office of DCP (North) but they did not pertain to the spot where their van was parked. He also claimed that transferring of sound from digital recorder to cassette was done in his presence. He denied the suggestion that his allegation in the complaint Ex.PW5/A to the effect that accused had demanded crackers and money was false. He claimed that he was not aware if any letter was issued by DCP 5th Battalion to DCP North on 01.11.2004 for initiating disciplinary action against him. He further claimed that he had asked direction of the house of the accused from a lady after entering the residential complex of PS Patel Nagar. He was carrying two instruments of which one was digital recorder which was recording sound on its own, while the other one was transmitter which was transmitting signals to the receiver kept in CBI office. He denied the suggestion that when accused went out of the drawing room in to varanda for arranging tea, he planted tainted money in corner of sofa. He also gave explanation for CC No.123/06 CBI Vs. Hawa Singh pg 14 of 61 15 seeking tea from the accused. He claimed that he asked for tea from the accused who was a police officer and was to take money from him because he should not get suspicious and pretend normal relations before taking money. He denied the suggestion that from 10 a.m. to 6.40 p.m. on 09.11.04 he along with his friends and colleagues in CBI was devising ways to falsely implicate the accused. Cassette Q1 was played in the court and the witness identified it as the conversation which took place on 09.11.04 in form of pre trap conversation in the office of CBI transcript of which was Ex.PW5/G. Witness claimed further that audio cassette mark STR contained conversation between him and the accused first from near his office and then at his residence and the transcription was Ex.PW5/F. He denied the suggestion that cassette STR/P12 was fabricated and doctored cassette and transcription Ex.PW5/F and PW5/G were fabricated documents. He also denied the suggestion that he had falsely planted the case on the accused.
16. The next witness to be examined by the prosecution was Mr. B.D. Grover from Meteorological Department, Government of India. He deposed that in the year 2004, probably on 8th or 9th of November, he was directed to report to CBI office alongwith Mr. C.L. Kane. They went to the CBI office where they met complainant Harminder Singh. Their sample voices were recorded CC No.123/06 CBI Vs. Hawa Singh pg 15 of 61 16 in a instrument and thereafter complainant Harminder Singh talked to the accused on mobile and the conversation was recorded. He (PW B.D. Grover) simultaneously heard the conversation with help of ear phone. Thereafter the recording was played and its transcription was Ex. PW5/G. The conversation was played in the Court and the witness Mr. B.D. Grover claimed that it was correctly reproduced. A trap bag was procured and complainant produced Rs. 5,000/. White powder was smeared on them and he (PW B.D. Grover) was asked to touch the notes and wash his hands in a solution. The solution turned pink. The notes were handed over to the complainant with directions to hand them over to accused Hawa Singh. The team then reached Civil Lines. Complainant traveled separately on a scooter with PW C.L. Kane. From Civil Lines the team proceeded to Police Station, Patel Nagar. Complainant and C.L. Kane went up to residence of the accused, while rest of the team waited outside. After about 2530 minutes, upon receipt of message, they went up. Some money was lying on side of the sofa in one room, where PW C.L. Kane was standing, while in the other room accused was sitting on a diwan saying that he had been falsely implicated. After recovery of the GC notes from the left corner of the sofa, he and C.L. Kane tallied the numbers of the notes with handing over memo and they were found to be same. The notes were Ex. P1 to P10. Left hand of the accused CC No.123/06 CBI Vs. Hawa Singh pg 16 of 61 17 was washed in a colourless solution which turned light red in colour and thereafter right hand of the accused was washed. The solutions were poured in separate bottles, sealed and labeled LHW and RHW respectively. The sofa seat was washed and the solution was poured in bottle labeled as SSW. The bottles were Ex. P11A, P12A and P13. They all contained his signatures. Bottle labeled LHWT was Ex. P14. The cloth pieces used for sealing of the four bottles were Ex. P15 to P18. The two cassettes were Ex. P19 and P20. Site plan Ex. PW6/A and PW5/C contained his signatures. (Site plan Ex. PW6/A is of the flat of the accused, while Ex. PW5/C is site plan of the drawing room of the flat of the accused). Personal search of the accused was taken vide memo Ex. PW6/B. Accused denied giving his specimen voice sample and the memos prepared in this regard were Ex. PW6/C and PW6/D.
17. Upon being cross examined he claimed that he had visited CBI office initially on 8th, 9th and 10th November , 2004 and thereafter he had visited 5 or 6 times. He had not identified voice of Hawa Singh in cassette Q1 which was Ex. P19. The voice identification process was carried out within one to three days of the date of raid. The CBI seal was handed over to him in CBI office on 10th or 11th November, 2004. He did not know that complainant CC No.123/06 CBI Vs. Hawa Singh pg 17 of 61 18 Harminder Singh had worked in CBI. In the Civil Lines, where CBI vehicle was parked, it was all dark and he heard over there that they have to go to Patel Nagar. After reaching East Patel Nagar, the vehicle was stopped and Harminder informed the team that they have to proceed to Police Station, Patel Nagar. After alighting from the vehicle, he and other CBI officers scattered. He admitted that accused was made to sit on the diwan after he was apprehended and scuffle, seen by him was in the said room. The complainant was present inside the bigger room in which diwan was lying and he had not seen any table, tea cup inside the bigger room. Accused had not signed the documents prepared by the CBI officers saying that he had been falsely implicated. Accused made some notings on the documents and few documents were prepared in the small room where sofa was lying. The witness then volunteered that one site plan was also prepared there. He denied the suggestion that he had signed the documents prepared at the spot without going through their contents. He produced a brass seal having initials of CBI, ACB, ND in the court before my Ld. Predecessor. He denied the suggestion that seat/cover of the sofa was not washed in his presence. He had not heard voice of the accused before the incident and was not sure if he could identify accused's voice in the cassette.
CC No.123/06 CBI Vs. Hawa Singh pg 18 of 61 19
18. Thereafter C.L. Kane was examined as PW7. In his similar testimony, he deposed that he was working in Meteorological department and had gone to CBI office alongwith B.D. Grover. There, they were told that one Sardarji Harminder had made a complaint from whom bribe was demanded. Their voices were recorded in some recording equipment and thereafter Harminder had telephonic conversation with Hawa Singh, which was duly recorded and then played. The voice of the other person was not clear. He had identified voices of complainant and accused and the transcription Ex. PW5/G was correct. The trap team was constituted and he was asked to remain close to complainant and pretend to be a shopkeeper. They left CBI office in two vehicles for Civil Lines. Complainant made a call from his mobile from office of accused as he was not present in the office. They then went to PS Patel Nagar. After sometime, he and complainant went to a flat. Complainant was instructed to give signal by mobile to CBI team after money was handed over. Upon pressing the call bell, accused himself opened the door. Both of them went inside and accused had conversation with complainant of some departmental matters. Complainant introduced him (PW C.L. Kane) as a shopkeeper running cracker shop in Sadar Bazar. Accused left for arranging tea. After sometimes, they were served with tea. Complainant then told Hawa Singh that he had collected some money and CC No.123/06 CBI Vs. Hawa Singh pg 19 of 61 20 would pay Rs. 5000/ of the collected amount. Complainant then handed over Rs. 5000/. Accused accepted them by his hand and kept them on left side of sofa. Thereafter inspector Vashisht and Malik entered the room. Complainant informed them by pointing out to the GC notes. Accused became furious and dipped his fingers in the tea cup. Thereafter scuffle took place between accused and CBI officers. In the meanwhile, wife and daughter of the accused came in and there was lot of noise. Accused was pinned down by inspector Malik and Vashisht and in the meanwhile remaining team members came in. Both hands of the accused were washed separately. One of the handwash turned pink. They were poured in separate bottles and sealed with CBI seal. The GC notes were recovered and their numbers were tallied. Sofa was also washed. The colour of the solution turned pink. It too was poured in separate bottles and sealed. Remnants of the tea was also poured in bottle and sealed. Accused was also asked to sign memos. He gave some remarks on the memos. Subsequently, they were called twice or thrice to CBI office. Audio cassette was played and transcription was prepared correctly. The witness then identified the GC notes, bottles containing hand washes, sofa seat wash and remnants of tea.
19. Upon being cross examined, he claimed that he was not aware that CC No.123/06 CBI Vs. Hawa Singh pg 20 of 61 21 complainant earlier had worked as Inspector in CBI. He and PW B.D. Grover had left the office together. He had heard conversation at CBI office recorded in digital recorder. Voice of accused was not recorded in his presence in the digital recorder. He could not identify voice of the accused. He and complainant travelled on two wheeler scooter and had left CBI office at about 7.00 pm. He did not remember if there were high tension wires at the place where complainant had parked his scooter. Complainant too came upstairs probably to the second floor and on the way he was asking some ladies for directions. He then admitted that upon pressing of the bell by the complainant, accused opened the door and complainant uttered the words "Jai Hind". He further claimed that accused had left the room, during their presence. He then categorically denied the suggestion that accused had not handled the bribe money and that complainant himself had planted the GC notes on the side of the sofa. He again denied the suggestion that when accused had left the room, complainant had planted the money on the sofa. Altercation had taken place between accused and CBI officers. He did not remember if digital recorder was played in the room after accused was pinned down. After 9.11.04, he went to CBI office 23 times, in connection with this case. He was not deputed for any other matter. He did not remember in what manner complainant gave signal to CBI officers. He CC No.123/06 CBI Vs. Hawa Singh pg 21 of 61 22 denied the suggestion that complainant had no conversation with the accused regarding payment of money. He also denied the suggestion that accused had not dipped his fingers in tea cup.
20. The next witness examined by CBI was inspector Mridula Shukla. She deposed that FIR Ex. PW8/A contained signatures of SP D.C. Jain. She had received investigation of the case from previous IO C.B. Ojha. She recorded statements of independent witnesses and other team members. After playing spot conversation and pre trap conversation before independent witnesses C.L. Kane and B.D. Grover and Harminder Singh, she got their voices identified and transcription was prepared. The tape recording conversation memo had been prepared by Inspector Shri Bhagwan. Eight sheet transcript Ex. PW8/C contained signatures of Shri Bhagwan, while searchcumseizure memo was Ex. PW8/D. She seized photocopies of documents from Inspector Pawan Kapoor vide seizure memo Ex. PW8/E. Call details of the mobile of complainant was Ex. PW8/F. After obtaining sanction order, she had filed the charge sheet.
21. Upon being cross examined, she denied the suggestion that she had not conducted any investigation and had participated in preparation of false CC No.123/06 CBI Vs. Hawa Singh pg 22 of 61 23 documents. She also denied the suggestion that she had consciously withheld material facts. She claimed that she could not remember if she had made enquries from the complainant about the show cause notice issued to him. She admitted that she and complainant had worked together for about year and a half. Regarding Ex. PW8/C she claimed that it was not prepared by her, but it contained signatures of inspector Shri Bhagwan. The trap had taken place on 09.11.04. No transcription was prepared on that day. She denied the suggestion that CBI had no instrument to record the conversation through Eves dropping. Regarding sanction , she admitted that draft sanction order was sent accompanied by copies of all relevant documents. She also claimed that she did not send any cassette to CFSL lab for comparison because accused refused to give specimen of his voice. She also claimed that during investigation she did not come to know on 1.11.04 that some police officer in the CA branch were apprehended at instance of the accused while they were consuming liquor. She also claimed that she did not know if complainant had conducted enquiry against HC Vinod Kumar. She also denied the suggestion that she and complainant Harminder Singh were close friends.
22. Thereafter CBI examined inspector Umesh Vashisht. He deposed that he CC No.123/06 CBI Vs. Hawa Singh pg 23 of 61 24 was posted as Inspector in AC branch, New Delhi of CBI. On 9.11.04 at about 10.30 am he was summoned by the SP who informed him about the complaint and directed him to lay a trap. He arranged for independent witnesses and constituted trap team. Independent witness B.D. Grover and C.L. Kane reported to him and were introduced to complainant Harminder Singh. They also questioned the complainant who denied having taken money from cracker licensee. In order to verify the complaint complainant was directed to contact the accused on his mobile. Conversation was recorded simultaneously, played and heard by all . Complainant had produced Rs. 5000/ on which phenolphthalein powder was applied and B.D. Grover gave the demonstration. The GC notes were kept in shirt pocket of the complainant. Digital recorder was arranged for recording spot conversation. One transmitter fitted mobile was also arranged for recording conversation. It was also handed over to the complainant. The pre trap conversation was transferred to audio cassettes. One was sealed and signed by the independent witnesses. It was Q1. C.L. Kane was asked to act as shadow witness and also give signal by scratching his head. Complainant too was instructed to give signal from his mobile phone. Upon reaching office of the DCP North, they came to know that accused had left. Accused was then contacted on his mobile by complainant, who then asked him to come to his CC No.123/06 CBI Vs. Hawa Singh pg 24 of 61 25 residence. They accordingly reached PS Patel Nagar and complainant and C.L. Kane went to his residence. At about 10.15 pm, Harminder Singh gave a missed call. Upon it, he (PW Umesh Vashisht) alongwith inspector Surender Malik rushed towards the room and entered inside. They found complainant and shadow witness sitting on a three seater sofa set, while accused was sitting on a single seat sofa. Accused denied having accepted money and dipped his left hand fingers in cup of tea. Thereafter he (Umesh Vashisht) and inspector Surender Malik caught hold of both the wrist of the accused. B.D. Grover was directed to recover the bribe money which was lying in between arm of the single seater sofa and its mattress. Their numbers were tallied with the handing over memo. Colourless solution of sodium carbonate was prepared. Left hand fingers of the accused were dipped and the solution turned mild pink. It was poured into bottle and capped. Another solution was prepared in which right hand fingers of the accused were dipped, but solution did not change its colour. Thereafter, cushion/ mattress of the single sofa set was taken. The solution was transferred to glass bottle which was capped and wrapped with a cloth wrapper. Remnants in the tea cup were transferred to another bottle. Recovery memo prepared regarding post trap proceedings was Ex.PW5/D. The digital recorder was played and heard. The conversation was CC No.123/06 CBI Vs. Hawa Singh pg 25 of 61 26 transferred to two audio cassettes, one of which was sealed. Accused was arrested and his personal search was conducted. GC notes of Rs.5000/ were also seized. On his direction rough site plans Ex.PW5/C and PW6/A were prepared. The seat cover was Ex.P23.
23. Upon being crossexamined, witness claimed that he had conversation with the complainant after he was referred by the SP to him, but he had not enquired if he (complainant Harminder Singh) was ever posted in AC Branch. He also admitted that complainant had led them to the room of the accused. He denied the suggestion that voice of the accused was not contained in any of the cassette produced in the Court. He could not remember if there were high tension wires and long electrical poles at the spot where they had parked their vehicles. He admitted that he did not verify contents of the complaint independently. He also denied the suggestion that neither any pre trap verification was done, nor any talks with the accused had transpired. He further claimed that trap was not called off when accused was not found in his office and it was decided to continue the trap. He also claimed that no order was taken from the court to transfer the data from digital recorder to audio cassette. He denied the suggestion that accused was innocent and had been falsely implicated.
CC No.123/06 CBI Vs. Hawa Singh pg 26 of 61 27
24. CBI thereafter examined SI Ravinder Singh as PW10. He deposed that he was posted as Confidential Assistant in the office of DCP, North w.e.f. 8.12.04 to March, 2006. Complainant Harminder Singh was his predecessor. Duty of Confidential Assistant included supplying of outside force to local police, appointment of SPOs, granting of licences etc. Before his joining Confidential Assistant, North Distt. used to deal with grant of cracker licences. He admitted that as per Ex. PW2/B16, SI Harminder had marked his presence on arrival as well as on departure on 6.11.04. Their duty hours were from 9.30 am to 6.00 pm.
25. Mr. M.N. Tiwari thereafter was examined as PW11. He deposed that he worked as ACP (PG) and ACP (HQ) in the office of DCP, North. The cracker licences were issued or rejected at the level of Addl. DCP, but files were routed through ACP (HQ). ACP(HQ) forwards the files pertaining to cracker licences to Addl. DCP from CA Branch. CA branch is headed by Inspector or SubInspector.
26. Upon being cross examined, he claimed that he did not know as to when Harminder Singh was promoted as Inspector and where he had joined on promotion. He was not aware of the process of show cause notice Ex.
CC No.123/06 CBI Vs. Hawa Singh pg 27 of 61 28 PW5/DE. Documents Ex. PW2/B1 to B17 were attested by him after comparing with the originals. As per rules, a person who is on medical leave cannot mark his attendance in the attendance register, but unscrupulous person could do so as attendance register does not remain in custody of DCP concerned.
27. The last witness to be examined by CBI was Rakesh Soni. He deposed that he had furnished call details from 5.11.04 to 9.11.04 and details of the subscriber of phone no. 9868096187. The said connection was in the name of Arjun R/o Flat no. 462, Golden Jublee Apartment, Sector11, Rohini.
28. After closure of prosecution evidence, statement of accused was recorded U/s 313 Cr.P.C.
29. In the statement U/s 313 Cr.P.C. accused claimed innocence. He claimed that a false case had been foisted upon him by his subordinate to whom he had issued a show cause notice. He claimed that complainant and CBI officers were excolleagues and public witnesses were hand picked. He expressed his desire to lead defence evidence.
CC No.123/06 CBI Vs. Hawa Singh pg 28 of 61 29
30. My Ld. Predecessor had allowed the application moved by the accused and had summoned and examined HC Panchram and Ct. Sukhbir as CW1 and CW2 on 22.02.07.
31. CW1 was H.C. Panchram. He produced order no. 27374/SIP/PC/North Distt. dt. 2.11.04. It comprised of six pages and the copies were Ex.CW1/1 to CW1/6.
32. CW2 was Ct. Sukhbir Singh. He produced roznamcha dt. 09.11.04 containing entry no. 56/74B of PS Patel Nagar. Their copies were Ex. CW2/A and CW2/B.
33. Accused examined another 16 witnesses in his defence.
34. DW1 was SI Yogesh Kumar. He deposed that after complainant Harminder Singh was repatriated to Delhi Police, his file was weeded out in 2008. He also produced personal file of inspector Mridula Shukla of CBI. She had joined on 17.6.97 in Anti Corruption Branch and had requested for transfer at CBI Academy at Ghaziabad and the request was declined on 3.4.2000 by Joint Director. He also produced personal file of Umesh CC No.123/06 CBI Vs. Hawa Singh pg 29 of 61 30 Vashisht. He joined ACB, CBI on 14.11.2000 and was repatriated to his department on 30.11.2006.
35. DW2 was Sh. Prashant Kumar Singh. He produced office order no. 73/12/215 dt. 15.12.05. The said order was Ex. DW2/1.
36. DW3 was Sh. Trilok Chand Meena. He produced visitor's register of CBI office. Its photocopy was Ex. DW3/1. According to him, there was no entry in the name of Harminder Singh, B.D. Grover and C.L. Kane on 9.11.04. He also produced files of Prem Nath, Shri Bhagwan, Mukesh Kumar and N.K. Jain. According to the records Prem Nath joined ACB on 26.12.2000, Shri Bhagwan joined on 2.6.04, Mukesh Kumar joined on 4.10.04, and N.K. Jain joined on 26.2.02.
36(a) Inadvertently no DW was assigned serial no. 4.
37. Sh. Surender was DW5. He produced FIR/RC book of November 2004 and crime register maintained by CBI, ACB. Upon going through FIR/RC book court found that some FIRs were handwritten, while others were typed out. Few of them were partly typed and partly handwritten.
38. DW6 was HC Satdev Singh. He produced general diary of November CC No.123/06 CBI Vs. Hawa Singh pg 30 of 61 31 2004. Entry no. 7 & 20 dt. 9.11.04 did not bear any time and on page pertaining to 16.11.04, entry no. 9 did not reflect name of the person.
39. DW7 was Sh. Jeevan Lal, SubInspector of CBI. He deposed that case property of the present case was deposited in Malkhana on 11.11.04.
40. DW8 was ASI Ranjit Singh. He produced log books of CBI Vehicle no. DL 3 CJ 4298, DL 3CG 0356, DL 3CJ 0723 and DL 3 CF 3141.
41. DW9 was Sh. Surjit Singh Dhaka. He deposed that on 1.11.04, he had shifted to North District as SubInspector. He knew accused Hawa Singh. On 6.11.04, accused called him and told him to look after job of CA branch because regular officer complainant Harminder Singh was ill and hospitalized. Harminder had come to the office in the evening, but he did not tell him about the pending jobs. On 7.11.04, accused telephoned him (DW S.S. Dhaka) and asked him to come to office as there were pending jobs. Iftar party was thrown by LG on 8.11.04 and till midnight of 7/8.11.04, he was busy making arrangements. On 10.11.04, Harminder came to the office. He told him that he had worked with CBI and was aware of rules and regulations and had done his job of entangling the accused in the present CC No.123/06 CBI Vs. Hawa Singh pg 31 of 61 32 case. He further volunteered that Harminder Singh was disturbed as his promotion had been withheld because of some previous cases. Harminder had been issued as show cause notice for not making arrangements for the Iftar Party. Upon being cross examined by Ld. PP, the witness claimed that he had no knowledge if accused had told Harminder Singh to make arrangements for the Iftar Party. He had also not seen any document directing Harminder Singh to make arrangements for Iftar Party and finally he admitted that after Harminder had told him that he had got the accused trapped, he took no steps.
42. Sh. Pawan Kapoor was DW10. He claimed that he knew accused who was ACP (HQ) as well as ACP (Vigilance). SI Harminder Singh was posted as SI (Personnel) and thereafter posted as CA (North) with concurrence of DCP (North). Harminder Singh got annoyed with the accused over his transfer as he thought that accused was instrumental in getting him transferred. On 1.11.04, he came with photocopy of a letter of DCP5th Battalion .DCP had recommended departmental action against Harminder Singh as he had turned hostile in a departmental enquiry against Head Constable Vinod. Harminder requested him not to put up the papers as he was due for promotion. On 2.11.04, he came to know that accused had CC No.123/06 CBI Vs. Hawa Singh pg 32 of 61 33 checked CA branch and one Constable Suresh was found drinking liquor with a public person. Accused then took him (DW Pawan Kapoor) and Harminder Singh to task for inability to maintain discipline. Those days cracker licences were being issued by CA branch and public used to visit the branch for licence. On 6.11.09 (there is typing error in the year. It should be 06.11.04) HC Raj Kumar came with a note sheet informing that Harminder was admitted in NPL Dispensary. The accused was appraised of the contents of the note sheet. Accused Hawa Singh asked him (DW Pawan Kapoor) to suggest a name for work in the seat of Harminder Singh. He then suggested name of SI S.S. Dhaka. On 7.11.04 accused telephoned him and informed that arrangements for Iftar Party had not been made. The arrangements were then made. He told the accused that he was not aware of the lapse by Harminder Singh. Accused then issued showcause notice to Harminder Singh on 8.11.04. Accused then received a telephone call from Harminder who asked him as to why he was after him as he was on the verge of promotion. On 9.11.04, he received two telephone calls from Harminder Singh, who asked him about whereabouts of the accused. On the night of 9.11.04, he received a telephone call from his Head constable informing that accused had been trapped. He met Harminder next day who told him that accused had been put in his place.
CC No.123/06 CBI Vs. Hawa Singh pg 33 of 61 34
43. On being cross examined by Ld. PP the witness admitted that he knew nothing about communication between accused and Harminder Singh. He was not aware of the exact talks which took place between them. He had not told anybody that Harminder had been enquiring about whereabouts of the accused.
44. Accused thereafter examined fatherinlaw of his daughter Mr. B.S. Dahiya as DW11. Mr. Dahiya himself was a police officer. He calimed that he received telephonic information on 9.11.04 that some people have entered house of the accused and were searching it. He reached there and saw few people including Harminder Singh. Harminder then told him in presence of everybody that accused had been harassing him and got issued show cause notice. He further told that he wanted to fix the accused and he had worked in CBI for 7/8 years and knew CBI officers. Complainant looked frustrated and he wanted to take revenge. He also stated in front of CBI officers that accused had not demanded bribe from him.
45. Upon being cross examined by Ld. PP, he claimed that he did not remember as to who had informed him about search in the house of accused. He denied the suggestion that he had fabricated a story to help out the CC No.123/06 CBI Vs. Hawa Singh pg 34 of 61 35 accused.
46. SI Sanjay Sharma was DW12 and SI Jatender Tiwari was DW15. In their almost similar testimony, they claimed that they were posted in PS Patel Nagar and knew the accused. On 9.11.04, they were sitting in room of SHO Inspector Bajwa. At 10.30 one CBI officer came and sought help as they had raided house of the accused. Both of them went over there. Raid was over. Some memos had been prepared. Accused wrote his remarks and signed. They met Harminder Singh over there. Harminder Singh told them that accused was harassing him, so he got him trapped by CBI officers as he had worked with them.
47. DW13 was Pooja Chaudhry, daughter of accused. She deposed that on 9.11.04, she was at her matrimonial home when she received telephone call in the night. It was to the effect that some people had got into house of the accused. She then came over and went inside. Her father had been surrounded by 6/7 people while others were ransacking the premises. A sardarji who was her father's subordinate was also there, had got the job done as he had been posted earlier with CBI.
CC No.123/06 CBI Vs. Hawa Singh pg 35 of 61 36
48. Wife of the accused Mr. Krishna Pawar deposed as DW14. She claimed that about 10.00 pm on 9.11.04 there was knock at the door. She opened the door and found a sardarji and a clean shaven man standing over there. They wanted to meet her husband. She woke him up. Both of them shook hands with her husband. Her husband went back to the bed room, while she went back to the kitchen. Shortly thereafter her husband took water for the guests and then asked for tea. Thereafter she heard noise of quarrel. When she reached the room, she saw that three persons had caught hold of her husband and were beating him. She tried to separate her husband but could not succeed. Her husband was made to sit on a diwan and those people were holding hands of her husband. They got his hands washed. The sardarji who had got the accused trapped told her that he had faced harassment at the hands of her husband and her husband had got him transferred and got issued a show cause notice. Her husband had been falsely implicated by the CBI.
49. DW16 was ASI Rawal Singh. He deposed that in 2004, he was posted at PS Patel Nagar as Emergency Officer. He received DD 57B at 10.25 pm in the police station. He learnt that some anti social elements had entered house of accused Hawa Singh. He then went to his house where he met a sikh CC No.123/06 CBI Vs. Hawa Singh pg 36 of 61 37 gentleman who told him that Hawa Singh had harassed him and since he had worked with CBI, he had brought CBI team. Upon being cross examined he claimed that he was not aware that accused had been arrested while accepting money.
50. The last defence witness was Anil Kumar. He produced copy of a letter addressed by Director, Services to Hawa Singh. He also brought with him original notings made by Rajneesh Tingal Under Secretary on 19.1.06.
51. I have heard Mr. Praneet Sharma Ld. Sr. Public Prosecutor and Mr. H.K. Sharma Ld. Counsel for the accused extensively. I have also gone through written synopsis filed by him along with judgments.
52. Sh. H.K. Sharma Ld. Counsel for the accused argued that Court cannot draw presumption against the accused until and unless Prosecution has proved that accused has accepted or obtained or agreed to accept or attempted to obtain any gratification or any other valuable thing. According to him only if one of above four is proved only thereafter Court can draw presumption not otherwise. The presumption so drawn can be rebutted by the accused.
CC No.123/06 CBI Vs. Hawa Singh pg 37 of 61 38
53. It was further submitted that complaint was made on 9.11.94 to the S.P.. S.P. did not make any endorsement for verification and registration of RC. RC was registered on the same day at 12.30 pm. In other words, all formalities which are necessary till stage of registration of RC were completed by 12.30 pm on 9.11.04. In RC no specific amount has been mentioned which was allegedly demanded by the accused. In the complaint Ex.PW5/A, complainant stated that accused has demanded money and crackers. On 6.11.04, complainant had proceeded on medical leave. It came to his knowledge that on 8.11.04 accused had issued a show cause notice to him. So according to Ld. Counsel the motive for filing of the complainant was sort of counter blast to the notice which had been issued.
54. In addition Ld. Counsel filed bulky written synopsis alongwith copies of fifty two judgments of various Hon'ble Superior Courts.
55. In the written synopsis he raised 17 issues. The first issue raised by him was to the effect whether prosecution had been able to prove necessary ingredients of Section 7 of PC Act or not. According to him, ingredients of Section 7 were not made out as reciprocal promise was an essential ingredient for Section 13(1)(d) of the PC Act. Original complaint Ex.
CC No.123/06 CBI Vs. Hawa Singh pg 38 of 61 39 PW5/A did not reflect the reciprocal promise and so case of the prosecution fails.
56. The second issue raised by him was that prosecution was unable to prove necessary ingredients for invoking presumption u/s 20 of the PC Act. He relied upon M.C. Mitra Vs. State :AIR 1951 Calcutta 524 wherein hon'ble High Court had observed that the presumption u/s 4 of P.C Act 1947 was rebuttable by the accused not only by oral testimony of the witnesses but also by his statement.
57. In the new act presumption u/s 20 is identically worded as presumption u/s 4 of the old Act. Ld. Counsel in the written submissions quoted from testimony of complainant and public witness and claimed that their testimony was contradictory.
58. He also claimed that the transcription did not reflect some sentences uttered by the accused. The original digital voice recorder had not been produced. Original cassette prepared through eves dropping equipment with the alleged use of transmitter have not been proved. The recovery of money itself is doubtful. The cassettes upon being played in the Court carried huge CC No.123/06 CBI Vs. Hawa Singh pg 39 of 61 40 noises. So according to the inference drawn by Ld. Counsel, demand did not exist and it was complainant only who had offered money. He also quoted from testimony of PW5 & PW7 and made a claim that testimony of these two witnesses on point of handing over of tainted money stood contradicted. In the transcript Ex. PW5/F there was a sentence "Nahin mode ke rakh de.....". According to Ld. Counsel, if this sentence had been spoken by the accused, then it would reflect that accused had not accepted the money, but had directed to keep it after folding it.
59. The third issue raised was regarding effect of not bringing on record primary evidence reflecting record of conversation. All conversations had been recorded on digital voice recorder and spot conversation was also recorded through transmitter fitted Panasonic mobile phone which was connected with recording device at CBI office. Upon being played in the court, the relied upon cassettes were not found to be mirror images. So according to the Ld. Counsel, inference has to be drawn that the audio cassettes were not admissible in evidence as secondary evidence. He relied upon large number of judgments in his support of this averment.
60. The next issue i.e fourth raised was as to whether identification of voices CC No.123/06 CBI Vs. Hawa Singh pg 40 of 61 41 by CFSL expert who had been provided with transcript constituted legitimate evidence. According to him, since transcript had been provided, the report was not admissible.
61. The next issue was as to whether accused was bound to explain all circumstances appearing against him. He relied upon Avtar Singh Vs. State of Punjab in this regard.
62. Thereafter issue no. 6 was regarding inspiring of confidence in the basic story of prosecution and claimed that the testimony of defence witnesses indicate false implication of the accused.
63. Issue no. 7 was regarding absence of demand and its effect. He claimed in his written synopsis that none of the witnesses has stated that accused had demanded Rs. 5,000/ either on 06.11.04 or in the night of 9/10.11.04. He relied upon 15 cases in support of his this averment.
64. The next issue was regarding need of corroboration in corruption cases. He relied upon 12 cases in his support, but did not spell out as to how CC No.123/06 CBI Vs. Hawa Singh pg 41 of 61 42 corroboration was lacking in this particular case.
65. Issue no. 9 was regarding statement made during course of investigation, if found mentioned in the testimony of TLO or Police officers, it cannot be taken up as evidence. He relied upon two judgments but did not spell out as to which statement made by any individual during course of investigation of this case was found mentioned in the testimony of Police Officers.
66. Issue no. 10 was to the effect that it would not proper for the court to pick out a sentence or two from the evidence of the witnesses and use the same. He relied upon Satpal Vs. Delhi Administration in his support.
67. Issue no. 11 was to the effect that if two views are possible, then accused is entitled to benefit of doubt. He relied upon three judgments in his support.
68. Issue no. 12 was to the effect that testimony of a witness brought in by the prosecution who is confronted with his earlier statement to prove that he is capable of making two different statements should not be believed. He relied upon 6 judgments but did not spell out in his written synopsis as to which witness in the present had made two different statements and so CC No.123/06 CBI Vs. Hawa Singh pg 42 of 61 43 testimony of such a witness should be thrown out.
69. Issue no. 13 was to the effect that raid report and site plan were not admissible since they contain averment which were made to the police official on his questioning. He claimed that PW6 & PW7 had stated that accused had signed the memos and had given some remarks on them, but the documents relied upon by the prosecution did not contain those remarks.
70. Issue no. 14 was regarding manner of appreciation of the evidence by the Trial court and he relied upon Amarpal (Rajpal) Vs. State : 2010 (VII) AD Delhi 696.
71. Issue no. 15 was regarding statement of the accused u/s 313 of the Cr.P.C. whether it should be based on the charge sheet or should be based on evidence. He relied upon two judgments of our own Hon'ble High Court in his support, but did not point out any particular question which was put to the accused in his statement u/s 313 Cr.P.C. by my Ld. Predecessor which was not based on evidence on record.
CC No.123/06 CBI Vs. Hawa Singh pg 43 of 61 44
72. Issue no. 16 was as to whether facts of the present case or existence of washes can be used as solitary evidence for conviction in a trap case. He relied upon P. Parasuramy Vs. State of Andhra Pradesh : 2011 (7) LRC 88 (SC).
73. The last issue raised by Ld. Counsel in the written synopsis was whether in the instant case testimony of the witnesses reflect a conscious act of abuse of investigating power of the CBI by filing of the charge sheet. According to the Ld. Counsel, complainant had worked with AC branch of CBI and had also worked with PW8 & PW9 and so it was deliberate abuse of investigative powers of CBI. He ultimately prayed for acquittal of the accused.
74. Now let us examine the evidence which has been led by the prosecution in support of its case that accused had demanded and subsequently accepted the bribe amount from the complainant, and the evidence led by the accused in his defence to show that he had been falsely implicated by his subordinate.
CC No.123/06 CBI Vs. Hawa Singh pg 44 of 61 45
75. Before dealing with oral testimony of the witnesses, I would like to discuss the recordings carried out by the CBI and the transcriptions prepared thereof. During course of pre trap proceedings, complainant was directed to talk to the accused. A digital recorder was arranged. The conversation was recorded simultaneously. It was played and heard by those who were present. A pre trap conversation recording memo Ex. PW5/H was also prepared. The recordings from digital recorder were transferred to blank two new audio cassette, one of which was marked Q1. Complainant was thereafter handed over a transmitter fitted Panasonic mobile phone and also a digital recorder make "Cinex". Again the conversation recorded was transferred to audio cassettes. Subsequently transcriptions of the conversation were prepared. They were filed in the Court. The cassettes were also played in the Court. They were exhibited. Though accused did not object to playing of the cassettes, he made allegations of tampering with them. Ld. PP had relied upon R.V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswamy and V.P. Temple:AIR 2003 Supreme Court 4548 and claimed that accused does not have the right to challenge exhibition of the transcriptions and the cassettes now. Hon'ble Supreme Court in the said case had held that objection to admissibility of the evidence CC No.123/06 CBI Vs. Hawa Singh pg 45 of 61 46 should be taken when it is tendered and not subsequently. With due respect, I would like to submit that the cassettes which were played were not in accordance with Evidence Act. ChapterV of the Evidence Act 1872 deals with documentary evidence. Admittedly the cassettes which were played in the court were not primary evidence. They were secondary evidence. As per Section 65 (c), secondary evidence can be given when the original has been destroyed or lost or for any other reason not arising from default or neglect of the party. For leading secondary evidence permission of the court is mandatory. If loss of the original document has not been proved, secondary evidence is inadmissible. In the case in hand there is not a single word talking of loss of original digital recorders or the recordings therein. So the subsequent recordings in the cassettes could not have been proved by the CBI. I have thus, no option left but to discard the evidence regarding cassettes which were played in the court. As the transcripts were prepared from those cassettes, they too will have to be discarded and not relied upon.
76. Now, we are left with oral testimony of the witnesses and other documents on the court record. Complainant PW5 Harminder Singh had deposed that he was working under the accused and on 05.11.04 accused had told him that he had collected lot of money from issuance of cracker licences CC No.123/06 CBI Vs. Hawa Singh pg 46 of 61 47 from the parties and he should share it with him. On 06.11.04 again the demand was repeated and in addition accused asked for crackers. On 07.11.05 in the evening, he received telephone call on his cell No. 9868096187 from the accused wherein he reiterated his demand. On 08.11.04 he learnt later on that accused had issued a show cause notice to him. Again in the morning and evening of 08.11.04 he had received telephone call on his landline number 27856949 from the accused wherein he extended threats.
77. In his statement u/s. 313 Cr.P.C., it was put to the accused that on 07.11.04 in the evening complainant had received a telephone call on his mobile no. 9868096187 from the accused wherein accused had again insisted upon crackers and his share of money. In reply to this question No. 10, accused simply said "It is incorrect". If we take a look at call details of telephone No. 9868096187, we find that indeed there was telephonic conversation between accused and the complainant on 07.11.04 twice. Thus, the explanation given by the accused is false. Individuals may lie but computerized telephone records do not lie. They clearly go to show that indeed there was conversation between the two on 07.11.04 and thereafter on 09.11.04.
CC No.123/06 CBI Vs. Hawa Singh pg 47 of 61 48
78. Complainant thereafter instead of meeting with the demand lodged complaint Ex.PW5/A with CBI. In his complaint he made very categorical claim that accused had called him on 05.11.04 and demanded his share. According to the complaint the demand was repeated on 06.11.04 and thereafter showcause notice was issued on 08.11.04. It is true that in the complaint, the amount of money demanded has not been mentioned but very categorical claim was made that accused had demanded his share in the amount allegedly collected by the complainant from cracker licencees.
79. According to complainant's testimony, after the trap party was organized, they went to office of the accused near Old Secretariat. Accused was not found in his office and complainant telephoned the accused and sought his permission for coming to his residence, which was granted. The team then reached PS Patel Nagar where accused had his flat. Independent witness C.L. Kane who was acting as a shadow witness accompanied the complainant inside flat of the accused. According to C.L. Kane, accused and complainant had some conversation wherein accused was told by the complainant that he had collected some money and would pay him Rs. 5000/ from the collected amount. He handed over Rs. 5000/. Accused accepted it with his hand and kept it on the left side sofa. Thereafter signal CC No.123/06 CBI Vs. Hawa Singh pg 48 of 61 49 was given and CBI officers barged in. Accused then got furious and dipped his fingers in the tea cup lying over there.
80. Ld. Counsel for the accused wanted the court to disbelieve and discard the testimony of the complainant on the ground that complainant was unhappy with the accused and he wanted to fix him with help of CBI officers. He knew some officers as he had worked on deputation with CBI. He also wanted the court to acquit the accused on the ground that there was failure on the part of the prosecution to prove demand.
81. I am afraid, request of Ld. Counsel cannot be allowed. Merely because complainant had worked with CBI for sometime in the past, should not mean that he had influenced the entire staff including SP to connive with him. If stand of accused is to be accepted, then every officer who at some point of time worked on deputation with CBI would be barred from approaching it for redressal of his grievance for all times to come. It is a known fact that CBI has very small cadre of its own officers. Large number of officers come from various other police organization on deputation for a limited period and then go back to their parent department. Complainant happened to be one such officer, who worked for some period with CBI in the past and knew CC No.123/06 CBI Vs. Hawa Singh pg 49 of 61 50 few CBI officers. Regarding claim of Ld. Counsel of non proving of demand, I would like to quote from a judgment of Hon'ble Supreme Court of India titled as State Vs. A. Parthibhan : (2006) II SCC 473:
"Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Sec. 7 of the Act. But if the acceptance of illegal gratification is in pursuance of demand by a public servant, then it would also fall under Sec. 13(1)(d) of the Act."
82. In the case titled as B. Noha Vs. State of Kerala: 2006 VI AD (Crl.) 465 Hon'ble Supreme Court had held that where voluntary and conscious acceptance of money had been proved, there was no burden on the prosecution to prove by direct evidence demand or motive. It has to be deduced from the facts and the circumstances.
83. In the instant case the pre trap conversation was heard by one independent witness by ear phone and subsequently by both independent witnesses when the recording was played. So it cannot be said that there was no demand. Further when this testimony of the independent witnesses is considered alongwith telephone records which were referred by me earlier, CC No.123/06 CBI Vs. Hawa Singh pg 50 of 61 51 we find that it corroborates testimony of the complainant that accused had demanded his share and repeated the demand over telephone, otherwise there was no occasion for the accused to ring up complainant. So Court can safely deduce that indeed there was demand of money by the accused.
84. According to independent witness B.D. Grover, he went inside the flat alongwith other CBI team members. There he saw accused sitting on a diwan and telling CBI officers that he had been falsely implicated. Thereafter independent shadow witness C.L. Kane, who was already inside the flat, told him that money was lying on the left side corner of the sofa. Thereafter he (B.D. Grover) picked up the GC notes and tallied the numbers with the handing over memo. Left hand of the accused was washed in colourless solution which turned light red. The said solution was poured in a bottle and marked LHW. Thereafter right hand of the accused was washed in solution which was poured in a bottled and labelled as RHW. Sofa seat was also washed and the solution was poured in another bottle and marked as SSW. Remnants of the tea were poured in a bottle and similarly marked as LHWT. The bottles were also sealed and then signed by the two independent witnesses.
CC No.123/06 CBI Vs. Hawa Singh pg 51 of 61 52
85. Independent witnesses Mr. B.D. Grover and Mr. C.L. Kane were not connected with CBI. Both of them were from Meteorological Department, Government of India. Before 09.11.04 they had not seen or met complainant Harminder Singh or the accused Hawa Singh. The pre trap conversation was heard by B.D. Grover with help of ear phone. Subsequently the recording was played, which was again heard by independent witness B.D. Grover and other independent witness C.L. Kane. Though the amount sought has not been mentioned in the complaint Ex. PW5/A, it would not matter as the pre trap demand was not only heard over ear phone by B.D. Grover, but also by other independent witness, when it was played. Both the independent witnesses had no axe to grind and thus their testimony is completely reliable. Telephone call details Ex. PW3/B2 and Ex. PW8/F fully corroborate that testimony of the witnesses that indeed accused and the complainant did have conversation before trap was laid.
86. As per testimony of Mrs. Krishna Pawar, wife of the accused, whom accused had examined in his defence, when she entered the room she saw that three persons had caught hold of her husband. Her husband had been made to sit on diwan and those people were holding his hands and then they got his hands washed. This would strenghten case of CBI to show that CBI CC No.123/06 CBI Vs. Hawa Singh pg 52 of 61 53 officers indeed were acting according to the rule book. They had caught hold of hands of the accused which were then washed and there was no frame up otherwise CBI officers could have simply caught hold of the accused and bundled him away. Now if we take a look at CFSL report, the contents of the bottle marked LHW, RHW and SSW gave positive test for presence of phenolphthalein and sodium carbonate, while contents of the bottle containing remnants of the tea gave positive test for phenolphthalein but negative for sodium carbonate. Complainant in his cross examination was given a suggestion that money was planted in absence of the accused when he had gone out for arranging tea. If this averment was correct then how come fingers of accused got smeared with phenolphthalein powder. This substantiates and corroborates the averment of the witnesses that accused upon being caught, dipped his left hand in the tea cup. That is why remnants of the tea cup tested positive for phenolphthalein and negative for sodium carbonate. Had accused not dipped his fingers, remnants of the tea would not have tested positive for phenolphthalein.
87. There is still another adverse circumstance against the accused. After being caught, he was asked to give his voice samples for purpose of comparison, but he refused. This refusal was in presence of the independent CC No.123/06 CBI Vs. Hawa Singh pg 53 of 61 54 witnesses. I have already observed above that independent witnesses were fully reliable as they did not have any personal agenda. Had the accused not been in telephonic conversation with the complainant and demanding bribe, he had nothing to fear and should have given his voice samples readily. The memos prepared in this regard were Ex. PW6/C and PW6/D. On two occasions, he had refused to give his voice samples. In his statement u/s 313 Cr.P.C., he offered the explanation that he had refused to give voice samples because CBI official wanted him to utter sentences reflecting demand of bribe. This is no explanation and no ground for refusing giving of voice sample. Exactly same sentences have to be repeated and only thereafter expert can give his opinion. This leads Court to draw inference that indeed demand of bribe had been made and accused refused to give his voice samples as expert would have been able to match the voices.
88. Learned counsel for accused relied upon case titled as G.V. Nanjundiah Vs. State (Delhi Administration) : AIR 1987 Supreme Court 2402. I have gone through the same. Facts of no two cases are identical. In the aforesaid cited judgment an executive engineer had been arrested for seeking bribe.
CC No.123/06 CBI Vs. Hawa Singh pg 54 of 61 55
89. In the said case Hon'ble Supreme Court disbelieved version of the complainant that complainant contractor and his son had met the accused in his office at 1 p.m. on 30.10.1973 when the demand was made. On that day Prime Minister of the country was to visit the site and as per complainant accused was present at the site till 11 a.m. and he had met accused in his office at DDA building at 1.00 p.m. Even the Special Judge in the said case had not placed any reliance on the testimony of complainant, his son and PW Sh. P.D. Sehgal. Further Hon'ble Supreme Court did not consider the independent witnesses as true independent witnesses because PW R.N. Khanna had admitted that he had joined 34 raids in the past and the other witness Verma had been working in the same office. Further Hon'ble Supreme Court found conduct of complainant unnatural. The complainant had withdrawn Rs.2500/ from bank and also obtained a certificate from the bank manager to this effect. Hon'ble court had held that no normal person would behave in this manner. Further Hon'ble Supreme Court did not believe that payment of bribe could be deferred for 10 minutes by the complainant awaiting arrival of fruits and sweets. In para25 of the judgment it was held that when no demand was made by the accused and prosecution had given a false story in that regard, the allegations of payment of bribe had to be viewed with suspicion and lastly it had come on record CC No.123/06 CBI Vs. Hawa Singh pg 55 of 61 56 that accused or his family members did not own any immovable or movable property. Accused had insurance cover of Rs.30,000/ and bank balance of less than Rs.1000/. In the case in hand facts are different. There is nothing on record to indicate that accused does not possess any movable or immovable properties and his savings are meager. There is nothing on record in the present case which should lead the court to term the behaviour of the complainant as abnormal. Rather if testimony of defence witnesses is to be believed, then it would indicate that complainant Harminder Singh was a foolish character. After arrest of the accused he on his own without being asked or questioned told everybody including family members of the accused that he had falsely got accused implicated in the case and that accused had not demanded any bribe. Such utterings cannot be expected from the complainant who himself was a senior police officer. There is nothing on record to show that the independent witnesses had also been part of raiding parties earlier. Rather PW Sh. C.L. Kane made a categorical claim that he had not been deputed to attend CBI office in any other matter. Moreover, in the above cited case Prime Minister was supposed to visit the site and at the eleventh hour his visit was cancelled so Hon'ble Court did not accept version of the contractor that he and his son had met the accused at 1 p.m. There is nothing of this sort in the case in hand and so the above cited CC No.123/06 CBI Vs. Hawa Singh pg 56 of 61 57 authority does not apply to the facts of the case in hand.
90. Ld. Counsel for the accused had submitted that when two views are possible, then view favourable to the accused should be adopted by the Court. It is long settled law that in such a situation view favourable to the accused should be adopted by the Court.
91. It would be relevant to quote observations of My Lord Mr. Justice A.K. Ganguly in case titled as Dr. Subramanian Swamy Vs. Dr. Manmohan Singh as follows:
"Therefore, the duty of the Court is that any anti corruption law has to be interpreted and worked out in such fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
92. Now coming back to the case in hand, though I have discarded the CC No.123/06 CBI Vs. Hawa Singh pg 57 of 61 58 cassettes and the transcriptions, there is sufficient material on record to prove that accused Hawa Singh indeed had demanded bribe of money and crackers. The version of the complainant and his testimony finds corroboration from other documents and testimony of independent witnesses. It is true that on some points there is slight variance in the testimony of the witnesses on few points but that would not damage case of the prosecution in any manner. My Lord Mr. Justice B.N. Aggarwal in case titled as Krishna Mochi Vs. State of Bihar (2002) 6 SCC 81 held:
" .......The Court while appreciating the evidence should not loose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, but if the same are boulders, the Court should not make an attempt to jump over the same CC No.123/06 CBI Vs. Hawa Singh pg 58 of 61 59 These days when crime is looming large and humanity is suffering and the society is also much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals."
93. It is human nature to forget few things and mix up facts over period of time. A normal human being does not have razor sharp computer like memory. Here complainant entered the witness box after about 2 ½ years of the incident and independent witnesses Mr. B.D. Grover and Mr. C.L. Kane entered the witness box and deposed after a gap of more than 3 years of the incident. This resulted in few minor and insignificant contradictions. They are not substantial and should be over looked. Material already on record suggest that there were no two views possible in this case, but only a single view emerged that nails the accused that he had demanded and accepted bribe.
94. Sanction to prosecute the accused had been granted by the competent CC No.123/06 CBI Vs. Hawa Singh pg 59 of 61 60 authority. CBI had already examined PW4 Rajneesh Tingal in this regard. Mr. Tingal had deposed that documents received from CBI had been processed by him and file was submitted to Mr. Vikram Dev Dutt, Dy. Secretary who had submitted the file with his recommendations to Mr. K. S. Sugathan, Joint Secretary, Union Territories. Sanction order issued for prosecution of accused was Ex.PW4/A. Earlier accused had moved an application seeking his discharge on the ground that sanction order does not reflect having being passed at instance of President of India or any other competent authority. I had dealt with this averment of the accused in past vide my speaking order dt. 29.11.11. I had held that competent authority indeed had applied its mind and thereafter gave green signal for prosecution of the accused. The sanction order was perfectly valid and application of the accused was ultimately dismissed. Testimony of PW4 and the required documents made it very clear that valid sanction had been granted to prosecute the accused.
95. The complainant's deposition in Court is fully corroborated by depositions of independent witnesses and documents. I, therefore, hold that prosecution has been successful in making out its case against the accused U/s 7 & 13(1)(d) r/w 13(2) of the PC Act beyond all shadows of CC No.123/06 CBI Vs. Hawa Singh pg 60 of 61 61 doubt that on or before 06.11.04 accused had demanded bribe of Rs. 5,000/ and crackers from the complainant and had accepted the money in the intervening night of 09/10.11.04. Accused Hawa Singh stands convicted accordingly U/s 7 and 13(1)(d) r/w 13(2) of P.C. Act.
Announced in open Court
on 12th of July, 2012. ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No.123/06 CBI Vs. Hawa Singh pg 61 of 61
62
IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 123/06 RC No. 46(A)/2004
PS: CBI/ACB/ND
CBI Vs. Hawa Singh
S/o Late Sh. Bhale Ram,
R/o Vill. & P.O. Jourasi,
Distt. Panipat,
Haryana.
(the then ACP, Delhi Police)
ORDER ON SENTENCE
1. This Court had vide its judgment dated 12.07.12 found the convict guilty U/s. 7 and 13(1) (d) r/w 13(2) of PC Act.
2. I have heard Sh. Praneet Sharma, Ld. PP for CBI and Sh. H.K. Sharma Ld. Counsel for convict at length.
3. Sh. Praneet Sharma, Ld. PP prayed for taking of strict view of the matter and granting of exemplary punishment to the convict. He further CC No.123/06 CBI Vs. Hawa Singh pg 62 of 61 63 prayed that sentences which should be awarded to the convict should run consecutively. On the other hand, Ld. Counsel for the convict prayed for taking of lenient view. He claimed that convict faced agony of trial for 7 years.
4. I have given my considered thought to the submissions made.
5. Convict Hawa Singh was working as Assistant Commissioner of Police in Delhi Police, incidently in Public Grievances Cell. The matters regarding processing of licences for crackers for Diwali and Dushehra were being dealt with his branch. His subordinate Harminder Singh a Sub inspector was also involved in the exercise of issuance of cracker licences. Convict was under the impression that Harminder Singh was collecting bribes from the public. He demanded his share of the booty and also some crackers.
6. Complainant instead of complying with the illegal and illegitimate extortion, made a complaint to CBI and got the convict trapped while CC No.123/06 CBI Vs. Hawa Singh pg 63 of 61 64 accepting Rs.5,000/.
7. Sh. H.K. Sharma prayed for taking of lenient view. He submitted that convict throughout his career discharged only administrative duties and was assigned executive functions only for a very short period. He remained as SHO, Chittaranjan Park for a year and a half. He further informed the Court that convict was instrumental in cracking few hard cases including the one in which Ambassador of Romania was kidnapped.
8. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."
9. I have given my considered thought. Convict is 65 years old retired public servant. Court must make an effort to strike balance between interest of society and age and related circumstances of the convict.
CC No.123/06 CBI Vs. Hawa Singh pg 64 of 61 65 Keeping in mind his age and back ground, I sentence convict Hawa Singh to undergo one year R.I. U/s 7 of P.C. Act . In addition, he shall be paying fine of Rs. 25,000/ and in default of payment of fine, he shall be undergoing S.I. for three months. I also sentence him to undergo RI for one years U/s 13 (1) r/w. 13(2)(d) of P.C. Act. In addition, he shall be paying fine of Rs. 25,000/ and in default of payment of fine, he shall be undergoing S.I. for three months.
10. The request made by Learned Special PP to the effect that sentences be ordered to run consecutively is declined. All the sentences of the convict shall run concurrently. He shall also be given benefits of period undergone as under trial (if any).
Announced in open Court
on July 17 , 2012 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No.123/06 CBI Vs. Hawa Singh pg 65 of 61