Delhi High Court
Raksha Jindal vs Central Bureau Of Investigation on 5 March, 2015
Author: Siddharth Mridul
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on : 05.03.2015
CRL.A.124/2013
REKHA SHARMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Arvind Chaudhary, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.152/2013
RAKSHA JINDAL ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Vikas Pahwa, Sr. Advocate with Mr. Atul Bhuchar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.159/2013
NIRMAL DEVI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Ms. Geeta Luthra, Sr. Advocate with Mr. Jatin Sehgal and Ms. Naina
Dubey, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.165/2013
CRL.A. 124/2013 & ORS. Page 1 of 400
PUSHKAR MAL VERMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Manohar Lal, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.170/2013
AJIT SINGH SANGWAN ...... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.171/2013
SHER SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.172/2013
CRL.A. 124/2013 & ORS. Page 2 of 400
MAHAVIR SINGH LATHAR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma and Mr.
Ashok Kumar, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.173/2013
SASHI MALHOTRA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.174/2013
ANAR SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.175/2013
RAM KAUR ..... Appellant
CRL.A. 124/2013 & ORS. Page 3 of 400
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.186/2013
KRISHNA GUPTA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.187/2013
BRAHMA NAND ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.188/2013
PREM BAHL ..... Appellant
Versus
CRL.A. 124/2013 & ORS. Page 4 of 400
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.189/2013
RAJENDER PAL SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.194/2013
DILBAG SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Devender Kumar and Mr. Rajesh Jangra, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.198/2013
SARWAN KUMAR CHAWLA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
CRL.A. 124/2013 & ORS. Page 5 of 400
Advocates who appeared in this case:
For the Appellant : Ms. Geeta Luthra, Sr. Advocate with Mr. Jatin Sehgal and Ms. Naina
Dubey, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.204/2013
JEET RAM KHOKHAR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.205/2013
KAILASH KAUSHIK ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.206/2013
KANTA SHARMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
CRL.A. 124/2013 & ORS. Page 6 of 400
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.213/2013
OM PRAKASH CHAUTALA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ram Jethmalani, Sr. Advocate and Mr. R.S. Cheema, Sr. Advocate
with Mr. N.S. Shekhawat, Ms. Tarannum Cheema, Mr. Zorawar Singh,
Mr. Amit Sahni, Mr. Sunny Modgil, Mr. Pranav Diesh, Mr. Karan Kalia,
Ms. P.R. Mala, Mr. Rajinder Banku and Mr. Rajiv Sidhu, Advocates
For the Respondent : Mr. Rakesh Kumar Khanna, ASG with Mr. Harsh Prabhakar, Mr.
Anirudh Tanwar, Mr. Mohit Nagar and Ms. Priyanka Sinha, Advocates
CRL.A.231/2013
ABHILASH KAUR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Vikas Pahwa, Sr. Advocate with Mr. B. Badrinath and Mr. Sumit
Arora, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.237/2013
SUDHA SACHDEVA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. S.C. Chawla, Advocate
CRL.A. 124/2013 & ORS. Page 7 of 400
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.238/2013
VINOD KUMARI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Pramod Kumar Dubey, Advocate with Mr. Shiv Pande, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.245/2013
RAM SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Vikas Pahwa, Sr. Advocate with Mr. Sumit Chaudhary, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.246/2013
MADAN LAL KALRA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Vikas Pahwa, Sr. Advocate with Mr. Sumit Chaudhary, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
CRL.A. 124/2013 & ORS. Page 8 of 400
Sharma, Advocates
CRL.A.247/2013
YOGESH KUMAR SHARMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. N.K. Sharma, Advocate with Mr. Sanjay Sharma, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.248/2013
RAM KUMAR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.249/2013
TULSI RAM BIHAGRA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A. 124/2013 & ORS. Page 9 of 400
CRL.A.250/2013
USHA RANI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Pradeep Dahiya, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.251/2013
DALIP SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.252/2013
MAMAN CHAND ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A. 124/2013 & ORS. Page 10 of 400
CRL.A.253/2013
PHOOL KHURANA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.255/2013
AMAR SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.256/2013
NARAIN SINGH RUHIL ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A. 124/2013 & ORS. Page 11 of 400
CRL.A.257/2013
SAWAN LAL ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.258/2013
RAJENDER SINGH DAHIYA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.260/2013
SAROJ SHARMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma, Mr. Ashok
Kumar and Mr. Vijay S. Bisnoi, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A. 124/2013 & ORS. Page 12 of 400
CRL.A.268/2013
DARSHAN DAYAL VERMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.269/2013
RAM SARAN KUKREJA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.270/2013
BIHARI LAL ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.271/2013
HARBANS LAL ..... Appellant
CRL.A. 124/2013 & ORS. Page 13 of 400
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.277/2013
SANJIV KUMAR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant :Mr. Arvind Nigam, Sr. Advocate with Mr. Aditya Singh and Ms. Kamini
Jaiswal, Advocate1
For the Respondent : Mr. Rakesh Kumar Khanna, ASG with Mr. Harsh Prabhakar, Mr.
Anirudh Tanwar, Mr. Mohit Nagar and Ms. Priyanka Sinha, Advocates
CRL.A.293/2013
KRISHAN LAL NARANG THR. ITS
PAROKAR DEEPALI NARANG ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Rajiv Garg, Advocate with Mr. Rajeev Kapoor and Mr. Ashish
Garg, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.295/2013
DURGA DUTT PRADHAN ..... Appellant
CRL.A. 124/2013 & ORS. Page 14 of 400
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. R.K. Kapoor, Advocate with Mr. Vikram Saini along with the
Appellant in person
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.301/2013
CHAND SINGH VERMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ram Naresh Yadav and Mr. Amit Kumar, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.303/2013
JOGINDER LAL ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Amit Kumar, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.313/2013
DAYA SAINI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
CRL.A. 124/2013 & ORS. Page 15 of 400
Advocates who appeared in this case:
For the Appellant : Ms. Rebecca M. John, Sr. Advocate with Mr. Vishal Gosain and Mr.
Harsh Bora, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.334/2013
AJAY SINGH CHAUTALA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. R.S. Cheema, Sr. Advocate with Mr. Naresh Sekhawat, Ms.
Tarannum Cheema, Mr. Amit Sahni, Mr. Sunny Modgil, Mr. Zorawar
Singh, Mr. Vaibhav Mishra, Mr. Ashwani Bansal and Mr. Jalaj
Aggarwal, Advocates
For the Respondent : Mr. Rakesh Kumar Khanna, ASG with Mr. Harsh Prabhakar, Mr.
Anirudh Tanwar, Mr. Mohit Nagar and Ms. Priyanka Sinha, Advocates
CRL.A.340/2013
SHER SINGH BADSHAMI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Mukul Rohtagi, Sr. Advocate with Mr. Mohit Mathur, Mr. Giriraj
Subramaniam, Mr. Amit Sahni, Mr. Zorawar Singh, Mr. Vaibhav Mishra,
Mr. Ashwani Bansal and Mr. Jalaj Aggarwal, Advocates
For the Respondent : Mr. Rakesh Kumar Khanna, ASG with Mr. Harsh Prabhakar, Mr.
Anirudh Tanwar, Mr. Mohit Nagar and Ms. Priyanka Sinha, Advocates
CRL.A.346/2013
VIDYADHAR ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
CRL.A. 124/2013 & ORS. Page 16 of 400
For the Appellant : Mr. D.C. Mathur, Sr. Advocate with Mr. D.P. Singh, Mr. D.S. Kohli,
Mr. Rajkiran Vats, Ms. Sonam Gupta, Mr. Ravi Prakash Vyas and Mr.
Salil Bhattacharya, Advocates
For the Respondent : Mr. Rakesh Kumar Khanna, ASG with Mr. Harsh Prabhakar, Mr.
Anirudh Tanwar, Mr. Mohit Nagar and Ms. Priyanka Sinha, Advocates
CRL.A.369/2013
URMIL SHARMA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Hari Om Yaduvanshi, Advocate with Mr. Abhinav Jain, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.374/2013
BANI SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ramesh Gupta, Sr. Advocate with Mr. Bharat Sharma and Mr.
Ashok Kumar, Advocates
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.379/2013
SHEESH PAL SINGH ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
CRL.A. 124/2013 & ORS. Page 17 of 400
For the Appellant : Mr. Vikas Pahwa, Sr. Advocate with Mr. Sumit Chaudhary, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.381/2013
VEER BHAN MEHTA ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Sumit Arora, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CRL.A.416/2013
OM PRAKASH TIWARI ..... Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Sumit Chaudhary, Advocate with Mr. Pushpinder Singh, Advocate
For the Respondent : Ms. Rajdipa Behura, SPP with Ms. Monica Gupta and Ms. Nidhi
Sharma, Advocates
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
SIDDHARTH MRIDUL, J.
1. The present batch of appeals arise from the judgment and order of the
Special Judge (Prevention of Corruption Act), (CBI), Rohini dated
16.01.2013 convicting the appellants in the following terms by way of order
on sentence dated 22.01.2013.
Accused Name of Accused Criminal Conviction Maximum
No. Appeal Sentence
No. (In Years)
1. Vidya Dhar, IAS 346/2013 Section 120-B IPC r/w Section 10
418/467/471 IPC rw Section
13(2) PCAct
2. Sher Singh Badshami 340/2013 Section 120-B IPC r/w Section 10
418/467/471 IPC rw Section
13(2) PCAct
3. Sanjiv Kumar, IAS 277/2013 Section 13(2) rw 13(1)(d) PC 10
Act
Section 120-B IPC r/w Section
418/467/471 IPC rw Section
13(2) PCAct
4. Om Prakash Chautala 213/2013 Section 13(2) PC Act rw 10
13(1)(d) PC Act
Section 120-B IPC r/w Section
418/467/471 IPC rw Section
13(2) PCAct
5. Ajay Singh Chautala 334/2013 Section 120-B IPC r/w Section 10
418/467/471 IPC rw Section
13(2) PCAct
32. Madan Lal Kalra 246/2013 Section 13(2) PC Act 10
(Kurukshetra) Section 418 IPC, Section 467
IPC and Section 471 IPC
Section 120-B IPC r/w Section
418/467/471 IPC rw Section
13(2) PCAct
38. Durga Dutt Pradhan(m) 295/2013 Same as A-32 10
40. Daya Saini (Panipat) 313/2013 Same as A-32 10
41. Ram Singh (Panipat) 245/2013 Same as A-32 10
37. Pushkar Mal Verma (m) 165/2013 Same as A-32 5
10. Vinod Kumari 238/2013 Same as A-32 4
11. Maman Chand 252/2013 Same as A-32 4
12. Sawan Lal 257/2013 Same as A-32 4
13. Kanta Sharma 206/2013 Same as A-32 4
14. Prabhu Dayal Expired
before
filing of
the charge-
sheet
15. Phool Khurana 253/2013 Same as A-32 4
16. Harbans Lal 271/2013 Same as A-32 4
17. Ram Saran Kukreja 269/2013 Same as A-32 4
18. Udal Prasad Sharma Expired
during trial
on
05.12.2012
19. Brij Mohan Discharged
on
23.07.2011
20. Chand Singh Verma 301/2013 Same as A-32 4
21. Yogesh Kumar Sharma 247/2013 Same as A-32 4
22. Abhilash Kaur 231/2013 Same as A-32 4
23. Sher Singh 171/2013 Same as A-32 4
24. Anar Singh 174/2013 Same as A-32 4
25. Kailash Kaushik 205/2013 Same as A-32 4
26. Ajit Singh Sangwan 170/2013 Same as A-32 4
27. Ram Kaur 175/2013 Same as A-32 4
28. Mahavir Singh Lathar 172/2013 Same as A-32 4
29. Narain Singh Ruhil 256/2013 Same as A-32 4
30. Krishan Lal Narang 293/2013 Same as A-32 4
31. Usha Rani 250/2013 Same as A-32 4
33. Veer Bhan Mehta 381/2013 Same as A-32 4
34. Shashi Bhushan Expired
during trial
on
12.11.2008
35. Dilbag Singh 194/2013 Same as A-32 4
36. Ram Kumar 248/2013 Same as A-32 4
42. Puran Chand Expired
during trial
on
03.12.2012
43. Sheesh Pal Singh 379/2013 Same as A-32 4
44. Rekha Sharma 124/2013 Same as A-32 4
45. Raksha Jindal 152/2013 Same as A-32 4
46. Jeet Ram Khokhar 204/2013 Same as A-32 4
47. Nirmal Devi 159/2013 Same as A-32 4
48. Amar Singh 255/2013 Same as A-32 4
49. Sudha Sachdeva 237/2013 Same as A-3 4
50. Darshan Dayal Verma 268/2013 Same as A-32 4
51. Saroj Sharma 260/2013 Same as A-32 4
52. Tulsi Ram Ram Bihagra 249/2013 Same as A-32 4
53. Nathu Ram Expired
during trial
on
17.01.2012
54. Om Prakash Tiwari 416/2013 Same as A-32 4
55. Bihari Lal 270/2013 Same as A-32 4
56. Rajender Singh Dahiya 258/2013 Same as A-32 4
57. Dalip Singh 251/2013 Same as A-32 4
58. Kamla Devi Expired
before
filing of
the charge-
sheet
59. Rajender Pal Singh 189/2013 Same as A-32 4
60. Sarwan Kumar Chawla 198/2013 Same as A-32 4
61. Urmil Sharma 369/2013 Same as A-32 4
2. In as much as all the aforementioned appellants figured as accused in
the Court of the Special Judge and since common questions of fact and law
arise, the appeals are disposed of through common judgment.
BACKGROUND OF THE PROSECUTION
3. The background of the prosecution as described by the trial judge is
that Sanjiv Kumar (A-3), an IAS Officer of Haryana Cadre, filed a Writ
Petition (Cri.) No. 93/2003 in the Supreme Court alleging that while he was
posted as Director Primary Education, Haryana, he was pressurized by Om
Prakash Chautala (A-4), the then Chief Minister of Haryana to replace the
original award lists prepared for the selection of JBT teachers with fake
award lists. The genuine lists were prepared by the Selection Committees of
various districts in Haryana after conducting interviews of the candidates.
Sanjiv Kumar produced before the Supreme Court a set of 15 award lists
duly signed by the members of the selection committees and submitted that
these fake lists were to be substituted in place of the original lists. He refused
to be a part of it and consequent to his refusal, one FIR and various
departmental enquiries were initiated against him. Sanjiv Kumar claimed
that despite such pressure, he implemented the original award lists and
declared the results, which antagonized Om Prakash Chautala and his
political and bureaucratic colleagues. Accordingly, he prayed CBI
investigation in this scam.
4. The Supreme Court vide its order dated 25.11.2003 directed the CBI
to investigate the matter.
5. During investigation, Sanjiv Kumar handed over one set of interview
list of District Kaithal and part list of District Kurukshetra to CBI. For sake
of convenience, the 15 award lists filed by Sanjiv Kumar in the Supreme
Court and the one interview list of District Kaithal and part list of District
Kurukshetra given by him to CBI during investigation would be hereinafter
referred to as Supreme Court Lists.
6. During investigations, CBI collected the award lists of 18 districts
from the office of Director Primary Education-Haryana. These lists would be
hereinafter referred to as Directorate Lists. It is not in dispute that the result
of JBT teachers was declared on the basis of these Directorate Lists.
7. Sanjiv Kumar claimed that these Directorate Lists are genuine
whereas Supreme Court lists are fake. The case of the prosecution is vice
versa.
CASE OF THE PROSECUTION
8. Till ‗1999 recruitment of JBT teachers was being conducted by
Haryana Staff Selection Commission-Chandigarh. Om Prakash Chautala, the
then Chief Minister of Haryana was also holding the portfolio of Education
Minister-Haryana in September, 1999. It is the case of the prosecution that a
malafide decision was taken in the Cabinet of Ministers on 08.09.1999, at
the instance of Om Prakash Chautala, vide which the JBT Teachers'
recruitment was taken out from the purview of Haryana Staff Selection
Commission and was entrusted to the Directorate of Primary
Education-Haryana with the ulterior motive to bring the recruitment under
his control on the pretext of acute shortage of teachers. In compliance of this
Cabinet decision, the Directorate of Primary Education advertised 3,206
district wise vacancies of JBT teachers in Indian Express and Dainik Tribune
on 15.11.1999. These selections were to be made through District Level
Selection Committees in 18 Districts of Haryana. As per the charge sheet,
the 18 District Level Selection Committees conducted the interviews for
these posts during December, 1999. The award lists were sent to Directorate,
Primary Education. At that time, one Mr. R.P. Chander- IAS was the
Director of Primary Education.
9. Mr. R.P. Chander was transferred on 27.04.2000 and Ms. Rajni Shekri
Sibal took over as Director Primary Education on that day. It is alleged that
Ms. Rajni Shekri Sibal was called along with Prem Prashant-IAS & P.K.
Mahapatra-IAS at Haryana Niwas-Chandigarh where Ajay Singh Chautala
(A¬5), Sher Singh Badshami (A¬2) were also present. It is alleged that she
was asked to change the award lists. Rajni Shekri Sibal along with Prem
Prashant and P.K. Mahapatra were called to another meeting which was held
at H.No. 78, Sector-7, Chandigarh which is the residence of Vidya Dhar (A-
1). This meeting was also attended by Ajay Singh Chautala and Sher Singh
Badshami apart from Vidya Dhar. Here also, Sher Singh Badshami asked
Rajni Shekri Sibal to change the award lists so that their favoured candidates
may be accommodated. It is alleged that Rajni Shekri Sibal, Prem Prashant
and P.K. Mahapatra refused to agree to this proposal.
10. Prosecution has alleged that Om Prakash Chautala was Chief Minister
of Haryana from 1999 to 2005. Ajay Singh Chautala (A-5) is the son of Om
Prakash Chautala (A-4) and was Member of Parliament from Bhiwani
Constituency of Haryana at the relevant time. Vidya Dhar an HCS Officer
(later promoted to IAS) and was Officer on Special Duty (OSD) to the Chief
Minister and Sher Singh Badshami was the political advisor to the Chief
Minister during the period of conspiracy. Prem Prashant was Financial
Commissioner Education and Languages (FCEL) and P.K. Mahapatras was
Director, Secondary Education, Haryana.
11. As per prosecution, Rajni Shekri Sibal received an anonymous phone
call at her residence and she was offered 5% share of the collected money to
agree to the aforesaid proposal. Subsequently, her house was also burgled. It
is alleged that with a view to ensure the safety of the award lists received
from 18 District Primary Education Officers, she wrapped the almirah
containing the said award lists with four metres of cloth and sealed it using
one rupee coin. Vide a note dated 20.06.2000, she proposed to form a
committee for compilation and preparation of the results of JBT teachers by
Haryana State Electronics Development Corporation Ltd. (HARTRON),
Chandigarh.
12. It is alleged that when Rajni Shekri Sibal refused to modify or replace
the interview award lists, she was transferred and was replaced by Sanjiv
Kumar (A-3) on 11.07.2000 with the approval of Om Prakash Chautala. At
that time, Sanjiv Kumar was already holding the substantive charge of
Special Project Director, Haryana Prathmik Shiksha Pariyojna Parishad
(HPSPP) and he was given additional charge of Directorate of Primary
Education with an understanding that he would prepare a second set of
award lists and replace it with the original award lists.
13. Prosecution claims that Sanjiv Kumar took out the original award lists
from the said almirah in the middle of August, 2000 and asked his P.A.
Mohan Lal Gupta and Office Superintendent Sardar Singh to check as to
how many scheduled caste and backward class candidates are exceeding
their vacancies and are being selected in the General category. For this
purpose, Prerna Guest House-Panchkula was arranged by Sanjiv Kumar.
14. It is alleged that Mohan Lal, Sardar Singh and Balram
Yadav-Assistant in Directorate Primary Education made use of Prerna Guest
House for two or three days and checked the original award lists, but, could
not reach any conclusion and accordingly those lists were returned to Sanjiv
Kumar. Prosecution claims that this shows that actually the original award
lists had been taken out of the almirah prior to 16.09.2000, when a drama of
de-sealing the said almirah and taking out the award lists in presence of six
members of result compilation committee was enacted. As per investigation,
the new set of award lists had already been placed in the almirah before
16.09.2000 and these new lists were sent to HARTRON which compiled the
result of JBT teachers candidates. The result was ready on 03.10.2000 and
thereafter it was published in the newspapers and the appointments were
given to the selected candidates on the basis of new and fake award lists.
15. As per prosecution, at the behest of Om Prakash Chautala with the
active support of Vidya Dhar and Sher Singh Badshami, some Chairpersons
and the members of District Level Selection Committees were called by
Sanjiv Kumar at the Rest House of Water Supply & Sanitation Department
of Punjab located at 1257, Sector-18B, Chandigarh in last week of
August-2000, some were called in Haryana Bhawan, New Delhi on
01.09.2000 and some were called in the office of Director Primary
Education-Chandigarh. These Chairpersons and members (who have been
impleaded as A-6 to A-62) were instructed to prepare the second set of
award lists of their respective districts. On their request, even photocopies of
original award lists were given to them for this purpose. Prosecution alleges
that after collecting the second set of award lists, Sanjiv Kumar placed the
fake award lists in the almirah in his office. Thereafter, on 16.09.2000, he
conducted bogus proceedings of de-sealing the almirah and taking out the
award lists from it and sent the same to HARTRON for compilation of
results.
16. In order to prove its case, prosecution examined in all 68 witnesses.
FACTUAL ASPECTS
17. The names and particulars of Chairpersons and members of the
District Level Selection Committees are as under:
S. No. Name Designation Chairpersons/Members Accused
I. AMBALA
1. Smt. Prem Bahl District Primary Education Officer, Chairperson A-6
Ambala
2. Smt. Sashi Malhotra Principal, Govt. Sr. Secondary Member A-7
School, Ambala
3. Krishna Ex-Block Education Officer, Member A-8
Ambala-II
II. BHIWANI
4. Brahma Nand District Primary Education Officer, Chairman A-9
Bhiwani
5. Ms. Vinod Kumari Principal, Govt. Sr. Secondary Member A-10
School, Bhiwani
6. Sawan Lal Block Education Officer Member A-12
7. Maman Block Education Officer, Bhiwani- Member A-11
II
III. FARIDABAD
8. Ram Saran Kukreja District Primary Education Officer, Chairman A-17
Faridabad Sh. R.S.
Kukreja was
DPEO till
02.12.1999
after which
Sh. Harbans
Lal took over
the charge
9. Harbans Lal DPEO (02.12.1999 till 31.01.2002) Chairman A-16
10. Udal Prasad Sharma Dy. District Education Officer, Member A-18
Faridabad
11. Brij Mohan Block Education Officer, Palwal-II Member A-19
IV. FATEHABAD
12. Kanta Sharma District Primary Education Officer, Chairperson A-13
Fatehabad
13. Prabhu Dayal Principal, Khabra Kala Member A-14
(since
expired)
14. Phool Khurana Block Education Officer, Bhuna Member A-15
V. GURGAON
15. Chand Singh Verma District Primary Education Officer, Chairman A-20
Gurgaon
16. Abhilash Kaur Block Education Officer, Gurgaon Member A-22
17. Yogesh Kumar The then Dy. District Education Member
Sharma Officer, Gurgaon
VI. JHAJJAR
18. Sher Singh District Primary Education Officer, Chairman A-23
Jhajjar
19. Anar Singh Dy. District Education Officer, Member A-24
Jhajjar
20. Kailash Kaushik Sr. Block Education Officer, Member A-25
Jhajjar
21. Ajit Singh Sangwan District Primary Education Officer, Chairman A-23
Jind
22. Ram Kaur Dy. District Education Officer, Member A-27
Jind
23. Mahavir Singh Block Education Officer, Jind Member A-28
VIII. KARNAL
24. Narain Singh Ruhil District Primary Education Officer, Chairman A-29
Karnal
25. Krishan Narang Dy. District Education Officer, Member A-30
Karnal
26. Usha Rani Block Education Officer, Karnal Member A-31
IX. KURUKSHETRA
27. Madan Lal Kalra District Primary Education Officer, Chairman A-32
Kurukshetra
28. Veerbhan Mehta Dy. District Education Officer, Member A-33
Kurukshetra
29. Sashi Bhushan Block Education Officer, Member A-34
Kurukshetra
X. KAITHAL
30. Dilbag Singh District Primary Education Officer, Chairman A-35
District Kaithal
31. Ram Kumar Block Education Officer, Kalayat, Member A-36
District Kaithal
32. Megh Nath Sharma Dy. District Education Officer, Member Not
Kaithal Accused
XI. MAHENDERGARH
33. Pushkar Mal Verma District Primary Education Officer, Chairman A-37
Mahendergarh
34. Durga Dutt Pradhan Principal, Govt. Girls Sr. Member A-38
Secondary School
35. Bani Singh Block Education Officer, Member A-39
Mahendergarh
XII. PANCHKULA
36. Sheesh Pal Singh District Primary Education Officer, Chairman A-43
Panchkula
37. Rekha Sharma Block Education Officer, Ramgarh, Member A-44
Panchkula
38. Raksha Jindal Ex-Principal, Govt. Sr. Secondary Member A-45
School, Panchkula
XIII. PANIPAT
39. Daya Saini Assistant Director, Primary Chairperson A-40
Education, Haryana, Chandigarh
40. Ram Singh. Dy. District Education Officer, Member A-41
Panipat
41. Puran Chand Block Education Officer, Panipat Member A-42
(expired during trial)
XIV. ROHTAK
42. Jeet Ram Khokhar District Primary Education Officer, Chairman A-46
Rohtak
43. Amar Singh Block Education Officer, Narnaul Member A-48
44. Nirmal Devi Dy. District Education Officer, Member A-47
Rohtak
XV. REWARI
45. Sudha Sachdeva District Primary Education Officer, Chairman A-49
Rewari
46. Darshan Dayal District Primary Education Officer, Chairman A-50
Verma Rewari
47. Saroj Sharma Dy. District Education Officer, Member A-51
Rewari
48. Tulsi Ram Bihagra Block Education Officer, Bawal-II, Member A-52
District Rewari
XVI. SIRSA
49. Nathu Ram District Primary Education Officer, Chairman A-53
Sirsa (expired
during trial)
50. Ram Saran Kukreja The then District Primary Chairman A-17
(same as S.No.8) Education Officer, Faridabad (Only
till 02.12.1999) and DEPO, Sirsa
thereafter
51. Om Prakash Tiwari District Education Officer, Sirsa Member A-54
52. Bihari Lal Block Education Officer, Member A-55
Kalanwali, Sirsa
XVII. SONEPAT
53. Rajinder Singh District Primary Education Officer, Chairman A-56
Dahiya Sonepat
54. Dalip Singh Dy. District Education Officer, Member A-57
Sonepat
55. Kamla Devi Block Education Officer, Sonepat- Member A-58
II
XVIII. YAMUNA NAGAR
56. Rajinder Pal Singh District Primary Education Officer, Chairman A-59
Yamuna Nagar
57. Sarwan Kumar Dy. District Education Officer, Member A-60
Chawla Yamuna Nagar
58. Joginder Lal Block Education Officer, Yamuna Member A-62
Nagar
59. Urmil Sharma Block Education Officer, Yamuna Member A-61
Nagar
18. It has to be mentioned that except Bani Singh (A-39) and Raksha
Jindal (A-45), all the above mentioned accused persons have admitted the
aforesaid particulars to be correct during trial and in their statements u/s 313
Cr.P.C.
19. It is not in dispute that Om Prakash Chautala was the Chief Minister
of Haryana from 1999 to 2005. Vidya Dhar (A-1) was his OSD and Sher
Singh Badshami (A-2) was his political advisor during that time. Vidya Dhar
was an officer of Haryana Civil Services and later on promoted as IAS
Officer and, therefore, a public servant. Sher Singh Badshami was not a
public servant, though, holding a post of Political Advisor to Chief Minister
during the relevant time. Ajay Singh Chautala (A-5) is son of Om Prakash
Chautala (A-4) and was Member of Parliament from Bhiwani constituency
during the said period.
20. It is also not in dispute that more than 8000 candidates applied and the
result was prepared by HARTRON based on the Directorate Lists and
appointments were given to 3206 candidates pursuant to the said result.
21. The contents of the Writ Petition No. 93/2000 Ex.PW-63/B-1 filed by
Sanjiv Kumar and his reply (Ex.PW-63/B3) to the counter affidavit of the
respondent therein and the order of Supreme Court (Ex.PW-63/PX, D-113)
are also not in dispute.
RESPECTIVE STANDS OF THE ACCUSED
22. Om Prakash Chautala (A-4), Ajay Singh Chautala (A-5) and Sher
Singh Badshami (A-2) have denied not only their participation in the crime,
but also, having any knowledge of the same at the relevant time. They have
claimed that Sanjiv Kumar and Rajni Shekri Sibal are playing in the hands of
their political opponents namely Bhupinder Singh Hooda, the Chief Minister
of Haryana (at the time of trial) and earlier the main opposition leader
belonging to Indian National Congress Party, in connivance with other
politicians like Karan Dalal and Kapil Sibal.
23. Sanjiv Kumar (A-3) claims that his stand in Supreme Court as well as
before this court is a correct stand and the Supreme Court Lists are false lists,
whereas Directorate Lists are genuine lists.
24. Daya Saini (A-40), the Chairperson of Panipat District Level Selection
Committee and its members Ram Singh (A-41) and Puran Chand (A-42
since expired) had taken the stand in their statements u/s 313 CrPC as well as
during the entire trial that they had prepared only one list which is the
Directorate List and, therefore, Directorate List of District Panipat (D-18
Ext.PW15/C) is a genuine award list.
25. Madan Lal Kalra (A-27), the Chairman of District Level Selection
Committee-Kurukshetra also stated that he had prepared only one list i.e. the
Directorate List (D-16(I), Ex.PW-15/D) and the same is genuine.
26. Pushkar Mal Verma (A-37), the Chairman of District Level Selection
Committee-Mahendergarh (Narnaul) and its members Durga Dutt Pradhan
(A-38) and Bani Singh (A-39) denied having signed both the lists. Bani
Singh (A-39) in fact denied being a member of the District Level Selection
Committee and having conducted any interviews.
27. Raksha Jindal (A-45) took the defence that she was never appointed as
member of the District Level Selection Committee-Panchkula. However, she
was misled by Rekha Sharma (A-44) another member of the committee and
she signed the two award lists only as the token of having calculated the
marks given in the said award lists.
28. To sum up, whereas A-3, A-27, A-40, A-41 and A-42 have taken the
stand that the Directorate Lists are the genuine lists, most of the
Chairpersons and the members of the District Level Selection Committees
support the prosecution version and assert that the Supreme Court Lists are
the genuine lists and Directorate Lists are the fake lists and that these fake
lists were prepared by them, not voluntarily, but, under immense pressure
from Sanjiv Kumar, Sher Singh Badshami and Vidya Dhar. These accused
persons have consistently claimed during the whole trial that they were not
only apprehensive of harm to their service but also to their physical safety
and their family's lives.
FINDINGS OF THE TRIAL JUDGE
29. The trial Judge has held as proved the following circumstances:
i) Members who had retired before making of fake lists are not
public servants and, therefore, acquitted of charge under The
Prevention of Corruption Act, however they were charged and
ultimately convicted of conspiracy read with Section 13
Prevention of Corruption Act because they conspired with other
public servants including A-3.
ii) The Directorate lists compiled by the prosecution during
investigation and on the basis of which the results were declared
were the fake lists.
iii) Specimen signatures of the appellants taken by the police during
investigation without seeking permission of the Magistrate are
admissible in evidence.
iv) The evidence of the handwriting expert proving the signatures
of the Chairpersons and members on the fake award list is
substantive evidence and can been relied upon.
v) With regard to appellants who have denied their signatures on
the Directorate list, signatures of such appellants in their
statement under Section 313 Cr.P.C. have been used for
comparison to arrive at a finding of identification of such
signatures.
vi) With regard to the changing of award lists, it has been
concluded that the almirah was duly sealed by PW-23 Rajni
Shekri Sibal, the then Director Primary Education. Then
almirah was placed behind a wooden screen in the chamber of
successor Director A-3, Sanjiv Kumar and was concealed from
the view of officials and visitors entering his room.
vii) Sanjiv Kumar (A-3) was able to take out the original award lists
from the almirah in the month of August 2000.
viii) In the last week of August and on 01.09.2000, these original
award lists were available with A-3 when he met concerned
DPEOs of different districts in Water Supply & Sanitation
Department's Guest House, Chandigarh and Haryana Bhawan,
New Delhi.
ix) For the offence of forgery as contained under Section 467 IPC,
the Supreme Court Lists are valuable security, and the
Directorate Lists (even if the same are illegal being forged) are
also forged ‗valuable securities'. The concerned appellants
having signed the Directorate Lists have caused the making of
false documents and are thereby guilty of offences under
Section 467 and 468 IPC.
x) For the offence of cheating as contained under Section 418 IPC,
the State of Haryana has been dishonestly induced by the act of
forgery of the award lists and by their implementation due to
which jobs were given to undeserving candidates and deserving
candidates failed to get the same. The concerned appellants are
therefore, guilty of the offence of cheating under Section 418
IPC.
xi) For the offence of criminal misconduct as contained under
Section 13 PC Act, it was observed that by implementing the
forged lists, undeserving candidates have availed the benefit of
salary, stability and security which is one of the finest pecuniary
advantages and such public servants are, therefore, guilty of the
offence of criminal misconduct.
xii) A-3, Sanjeev Kumar is an accomplice to the conspiracy of
changing the original lists and ultimately implementing them,
however, his testimony as a witness in his defence can be used
to corroborate the prosecution version regarding the roles of
other co accused.
xiii) PW-23, Rajni Sekhri Sibal is a reliable witness and has
truthfully testified regarding the pressure exerted upon her to
change the original lists and the events leading up to the
declaration of the results. PW-16 Prem Prashant and PW-26 P K
Mohapatra are also reliable witnesses and have truthfully
testified.
xiv) A-1 Vidya Dhar was present at the meeting held at his residence
and at the Water Supply Guest House wherein efforts were
being made to replace the lists and that he has conspired
towards the same.
xv) A-2 Sher Singh Badshami was present at the meetings (all of
them), his presence at the meeting in Haryana Bhawan was
symbolic of the approval of the conspiracy at the highest level
and he took an active interest in pressurizing and threatening
other chairpersons and the members of the District Level
Selection Committees.
xvi) A-5 Ajay Chautala was present at the meetings wherein PW-16,
PW-23 and PW-26 were pressurised to change the award lists.
Thereafter, he was constantly in touch with A-3 through
telephonic conversations on 30.08.2000 and 01.09.2000 which
is the period during which the fake award lists were being
prepared. A-5 had a stake in the parliamentary constituency of
district Bhiwani and the final result shows that the candidates
selected from District Bhiwani far exceeded the vacancies of
that district. Thus, A-5 stands fully proved to be conspiring in
this scam.
xvii) The note sheet exhibited as Ex.PW-38/E proves that the
meeting wherein the decision to enhance the interview marks
was taken was attended by A-1, A-2 and A-4 and, therefore,
their involvement in the conspiracy from its very inception
stands fully corroborated.
xviii) A-4 Om Prakash Chautala was instrumental in taking out JBT
vacancies out of the purview of the Haryana Staff Selection
Commission and enhancing the marks allotted towards
interview. His son, his OSD and his political advisor being
persons close to him actively executing the conspiracy coupled
with the testimony of A-3 regarding the breakfast meeting
wherein express instructions were given to change the award
lists leads to the irresistible conclusion that the entire conspiracy
was hatched at the behest of A-4.
30. On behalf of the prosecution, learned ASG Mr. Rakesh Kumar
Khanna assisted by Mr. Harsh Prabhakar have addressed arguments
regarding appellants A-1 to A-5 and Ms. Rajdipa Behura, learned SPP has
addressed arguments for appellants A-6 to A-62.
ARGUMENTS ADVANCED ON BEHALF OF A-3
31. Since the edifice of this case is based on a factual finding regarding
the genuineness or the falsity of a particular set of lists, whether the
Directorate lists or the Supreme Court lists, at the outset it would be most
appropriate to highlight the rival submissions made on behalf of the parties
regarding the two sets of lists. A-3 had submitted before Supreme Court a set
of 15 award lists, thereafter one list of District Kaithal and a part list of
District Kurukshetra was handed over to the investigating officer during
investigation.
32. It is the case of the CBI that the lists which were implemented i.e. the
Directorate lists are the fake lists whereas A-3 has argued that the Supreme
Court lists are in fact the fake lists which were handed over to him to be
implemented and, therefore, he is the leading appellant to prove the falsity of
the Supreme Court lists.
33. Rival submissions regarding the two sets of lists are enlisted district
wise as under:
I. FARIDABAD
i) The Directorate list of this district is D-4 exhibited as Ex.PW-
15/L and the Supreme Court list is D-22 exhibited as Ex.PW-
17/A. A-17, R. S. Kukreja was the Chairman of this committee
and conducted interviews only till 02.12.1999 after which he
was transferred to Sirsa. He was replaced by A-16, Harbans Lal
who conducted interviews from 02.12.1999 onwards.
ii) D-61 is a file recovered from the office of DPEO, Faridabad
and contains 2 lists. One list is a complete list containing all
interview marks and grand total marks along with signatures of
all committee members and the other is a photocopy in which
interview marks and grand total marks are concealed,
seemingly by putting some paper on it. It is the case of the
prosecution that this file contains a copy of the fake list and one
copy of the original list.
iii) It is submitted on behalf of the prosecution that PW-17 Brij
Mohan, who was a member of the District Selection
Committee, Faridabad has deposed that on 02.09.2000 he was
pressurized to append his signatures on an award list at the
instance of Chairperson of District Selection Committee -
Harbans Lal and other persons. He scribed the letters ―UP‖
under his signatures on the first nine pages as an imprint of
protest and the said letters signified ―under pressure‖. The
witness explained that he could not scribe the letter ―UP‖ on
subsequent pages of the said list as one Suresh Girdhar, Deputy
Superintendent stood up from his chair and witness
apprehended that he may notice the same, therefore, he did not
scribe ―UP‖ any further. This witness has not been cross-
examined at all on behalf of A-3 and his testimony has gone
unchallenged on all counts.
iv) Learned ASG Mr. Khanna has drawn my attention to the
Directorate List of District Faridabad and points out that at the
top of page 39 the date ―09.12.2000‖ has been scribed in hand.
This fact is a tell-tale mark of the creation of award list in the
year 2000 and thus, lends further credence to the assertion of
the prosecution that the said list was in fact created in the year
2000 as deposed by Brij Mohan and not in the year 1999.
v) It is submitted that the pattern of marks awarded to various
candidates in the Supreme Court List of District Faridabad (D-
22) is evenly spread whereas; the marks awarded to candidates
in the Directorate List of Faridabad lie in stark extremes.
vi) It has been argued on behalf of A-3 that the signatures of R.S
Kukreja are not present on the Supreme Court List which
reflect the interview marks for the first two days when he was
the Chairperson of the District Selection Committee-Faridabad
before his transfer whereas they are present on the Directorate
list for the first two days of the interviews. It is also argued that
the prosecution is silent over the fact that A-16, Harbans Lal
who succeeded R. S. Kukreja has signed on all the pages of the
Supreme Court list as the Chairman, including the 2 days when
R. S. Kukreja was the Chairman.
vii) Learned Senior Counsel Mr. Arvind Nigam has sought to
destroy the credibility of PW-17, Brij Mohan by pointing out
the following fallacies:
It is argued that PW-17 has deposed that Harbans Lal
had reached his house seeking his signatures on the
second list, on 31.08.2000, (which is the date on which
Brij Mohan had retired), claiming to have been coming
straight from Haryana Bhawan. It is not the case of the
prosecution that A-3 was involved in the making of the
fake lists on 31.08.2000, since it is alleged that M. L.
Gupta (PW-56) and Sardar Singh (PW-31) were on their
way to New Delhi on 31.08.2000 from Chandigarh and
had allegedly stayed the night in SCERT Gurgaon. They
have also deposed that till the morning of 01.09.2000
they were unaware of where the said meeting was to be
held, nor, had any idea about why they had been called to
Delhi. It is submitted that it is highly unlikely that PW-
17 would have gone wrong in remembering the date of
his retirement. Therefore, it is argued that the testimony
of PW-17 on one hand and that of PW-56 and PW-31 on
the other hand regarding the dates on which PW-17
could have been approached to sign on the fake lists is
not in harmony with each other.
It was submitted that the factum of scribing ‗UP' has
also not been stated in the affidavit dated 26.07.2003
[Part 8/D-37-D-66/D-58/Page 217] filed by Brij Mohan.
It has been urged on behalf of A-3 that PW-17 has as a
matter of fact appended his signatures on three lists,
however he deposes about appending his signatures only
on two lists.
It has been vehemently contended that the discharge of
Brij Mohan on the ground of appending his signatures on
the second award list under pressure impelled the other
accused to coin a similar defence and falsely implicate
Sanjiv Kumar for securing parity with Brij Mohan.
It is also submitted that non-examination of Suresh
Giridhar by the prosecution casts suspicion since in his
presence Brij Mohan claims to have scribed ―UP‖ under
his signatures.
It has been urged that the forensic report does not
evidence the existence of words ―UP‖ and on its strength
it is sought to be submitted that no such words have been
scribed by Brij Mohan.
Much emphasis has been laid on the fact that the
prosecution has suppressed one Brij Mohan s/o Late
Ram Singh; who was proposed to be examined as a
prosecution witness as evidenced from the List of
Witnesses appended along with the Final-Report [Part
1/Vol 1C/Page 207-Seriatum No. 13] and rather the
prosecution surreptitiously examined at Trial accused-
Brij Mohan s/o Sh. Ram as PW- 17.
II. JIND
i) The Directorate list of this district is D-5 exhibited as Ex.PW-
2/2 and the Supreme Court list is D-23, exhibited as Ex.PW-
2/1. Three witnesses, PW-5 Milap Singh, PW-14 Dhup Singh
and PW-2 Ravi Dutt have deposed regarding the genuineness
of the D-23, the Supreme Court list.
ii) PW-14 has deposed that he was posted as the Deputy
Superintendent in the office of DPEO, Jind from 01.05.1998 to
14.10.2004 and he had signed the original award list as a token
of having checked the academic qualifications of the
candidates. He has also deposed that sometime in the month of
September, 2000 Ajit Singh Sangwan (A-26), Chairperson of
District Selection Committee, Jind pressurized him to sign an
award list, which he refused to sign unless the original list
would be shown to him. He further deposed that two clerks,
namely Ravi Dutt and Milap Singh had visited Delhi on
01.09.2000 and perhaps after two or three days they were
typing the list, which they stated was being prepared on the
basis of photocopies supplied to them at Delhi by A-3. The
Directorate list does not bear his signatures whereas the
Supreme Court list does.
iii) PW-2 Ravi Dutt and PW-5 Milap Singh have deposed about the
meeting at Haryana Bhawan on 01.09.2000 and how the
Directorate List of District Jind was prepared by them in the
month of September, 2000 at the instance of the members of
the District Selection Committee. Learned ASG submits that
they also corroborate the testimony of PW-14 Dhup Singh to
the extent that the Directorate list prepared by them in the
month of September, 2000 does not bear his signatures,
whereas, the Supreme Court List bears the same.
iv) Learned ASG submits that a careful perusal of the two lists vis-
a vis each other would significantly reveal that the Supreme
Court List has several corrections and there are many instances
where white fluid has been applied to effect such corrections.
The Directorate List on the other hand evidences no such
corrections and the corrected entries are typed. It is, therefore,
evident that the Supreme Court List bears the stamp of
genuineness as these corrections evidence the contemporaneity
of the said document, whereas, the Directorate List which was
prepared later and utilized the Supreme Court List as its base,
naturally had no correction as the corrected content was
straightaway typed by its authors who would obviously not
make the same mistake which had occurred during the
preparation of the document make contemporaneously.
v) It is pointed out by the CBI that the pattern of marks awarded
to various candidates in the Supreme Court List of District Jind
is also spread evenly whereas the marks awarded to candidates
in the Directorate List of Jind lie in stark extremes.
vi) It is argued on behalf of A-3 that PW-2 and PW-5 were the
steno-typist and clerk in the DPEO office of Jind. They were
not the DLSC members and had no role to play in the
interviews. As such they wouldn't know the difference between
the lists, not being familiar with the marking pattern as they had
not conducted the interviews. This is clearly exhibited by PW-2
when he identifies the SC list as the fake one in the first
instance and then subsequently, clarifies that it is the
Directorate list which is fake.
vii) It has been explained by A-3 that PW-14 Dhup Singh was not a
member of the District Selection Committee and, therefore, was
not required to append his signatures on the award list. It is
submitted that PW-5 has deposed that the second list was not
signed by PW-14 because he was on leave on that particular
day. It is argued that the prosecution has not been able to
establish whether the absence of signatures of PW-14 on the
Directorate lists is owing to the fact that he was not authorized
in the first place to sign or on moral grounds or due to the fact
that he was on leave.
viii) It has been contended by A-3 that PW-14 Dhup Singh in his
statement recorded under Section 164 Cr.P.C. [Part 7(II)/Pages
48-54] had stated that he received a message on 30.08.2000
from Shadi Lal Kapoor that the committee members should
come along with the records on 01.09.2000 and it was thus
sought to be urged that the copies of the original award lists
were already available with the District Selection Committee-
Jind. Therefore, the case of the prosecution was alleged to be
baseless that the original award list of District Jind was
supplied to Ajit Singh Sangwan (A-26) at instance of Sanjiv
Kumar (A-3) for getting the same photocopied.
ix) A-3 has examined Subhash Chander (A-3/DW-11) in his
defense to purport a claim that the fake award list for District
Jind were dispatched in a sealed envelope [Part 8/S.No. 12
Misc Exhibits/Page 138] by Ajit Singh Sangwan (A-26)
through the said Subhash Chander on the first Saturday of
September 2000 and he delivered the said envelope to Vidya
Dhar (A-1) at his residence in Sector-7, Chandigarh. According
to Sanjiv Kumar (A-3), the said envelope was handed over as it
is by Vidya Dhar (A-1) to Sanjiv Kumar (A-3) and Sanjiv
Kumar (A-3) without opening the said envelope submitted the
same before the Supreme Court. The Investigating Officer had
taken into custody the said sealed envelope from the registry of
the Supreme Court. A-3 argues that although he had opened all
the fake lists thrusted upon him for implementation before
presenting the same in the Supreme Court, but, he had
deliberately kept the envelope received from Jind, duly sealed
and it was opened in presence of Pushpa Ramdeo, Dy.
Registrar (PW-43) in Supreme Court. A-3 submits that she
testified that at serial no. 15 of the memo, it is written that "one
envelope containing award list of JBT teachers-Jind these list
were in sealed cover". It is argued by A-3 that this proves that
sealed envelope containing the fake Jind list opened in the
Supreme Court, is the same list which Subhash Chander
delivered to Vidya Dhar. Subhash Chander has also identified
his handwriting on the Jind envelope Ex.PW-43/DA-1. It is
contended that the Trial Court being empowered in this regard,
did not make an attempt to compare the handwriting of this
witness with the one on the sealed envelope.
x) It is also submitted on behalf of Sanjiv Kumar (A-3) that he had
asked the Investigating Officer to get the said envelope
subjected to forensic analysis, however it was not done.
xi) The prosecution addresses this contention by submitting that
testimony of this witness is not worth the paper on which it is
scribed. The version belatedly deposed to by this witness is
inherently incredible and a yarn of falsehood for the following
reasons:
The said witness had no reason to oblige Ajit Singh
Sangwan (A-26)-DPEO by carrying his confidential
documents to Chandigarh as he was of his own
admission not subordinate to the DPEO. The witness
does not remember the messenger through whom he was
summoned by the DPEO-Ajit Singh Sangwan (A-26).
It has emerged in evidence led by prosecution (PW-14,
PW-5, PW-2) that the Directorate List of District Jind
was prepared 2-3 days after 01.09.2000. Subhash
Chander has claimed before the court that he carried the
envelope containing the fresh JBT lists to Chandigarh on
the first Saturday of September, 2000. It is highlighted
that the first Saturday of September, 2000 was in fact
02.09.2000 and by then the said award lists had not been
prepared by the clerks - PW-2 and PW-5. Therefore, the
testimony of this witness is vitiated at its core.
It is palpably unconscionable that Ajit Singh Sangwan
would divulge the sensitive contents of the envelope to a
mere carrier like Subhash Chander; who was not even his
subordinate and has no discernable reason to repose trust
in him. As a matter of fact, Ajit Singh Sangwan (A-26)
has denied the version of this witness by putting such
suggestions in the cross-examination of this witness and
the statement made by him in terms of Section 313
Cr.P.C.
The witness is unable to describe the topography of the
house of Vidya Dhar (A-1) which was allegedly visited
by him for the said purpose.
The witness claims that he wanted to make a statement to
CBI about the said facts which he perceived as relevant
to the investigation of the case and he even visited the
CBI office at Chandigarh and Delhi but his statement
was not recorded. Curiously, he never gave any
representation in writing through registered AD/e-mail to
the superior officers or the Court about the fact that his
statement was not being recorded. The witness is unable
to describe the office of the CBI.
This witness has concocted an amusing and an
improbable version of how he could discover the
whereabouts of Sanjiv Kumar (A-3) in a bustling city
like Delhi. The witness would have the Court believe
that by visiting the Supreme Court and inquiring from
random lawyers about the JBT case in the court corridor
he received information from some advocate that one
Shri Malik was handling this case, whereas, of his own
admission he did not even have a gate-pass. The witness
does not explain how he traced Shri Malik and according
to him he obtained the address of Sanjiv Kumar (A-3)
from the said lawyer. Interestingly, the said lawyer (Shri
Malik) is not produced as a witness for the defence by
Sanjiv Kumar (A-3) to vouch for the testimony of this
facile witness.
He claims that Sanjiv Kumar (A-3) asked him to supply
a copy of his typed statement to him, which would be
given to CBI and in furtherance thereof, he got his
statement typed and handed over the same to Sanjiv
Kumar (A-3). It would be relevant to note that had this
been true, Sanjiv Kumar (A-3) would have definitely
forwarded the said statement to CBI. No suggestion has
been given to the Investigating Officer that he withheld
such evidence and neither has Sanjiv Kumar deposed
about such a chance/fortuitous meeting with Subhash
Chander in his deposition as a witness before the Court
in terms of Section 315 Cr.P.C or in his examination
under Section 313 Cr.P.C. No foundation for the
evidence of this witness for the defence has been laid by
Sanjiv Kumar (A-3) before the Court which casts serious
suspicion on the veracity of such evidence. It is the
submission of the prosecution, the evidence of this
witness is, therefore, a product of afterthought and
confabulations.
The witness claims that he had kept a copy of the said
typed statement with himself and had handed over the
original to Sanjiv Kumar (A-3). The witness could not
produce the copy of the said statement in the court at any
stage even though he stated that he had handed over the
same to his son-Sandeep Kumar; who had accompanied
him to the Court during his deposition. The witness in
fact produced a statement (Ex.A-3/DW-11/1) (Part
8/S.No 12 Misc Exhibits/ Page 113-114) before the Trial
Court which was claimed by him to be faxed by his son;
who was in possession of the copy of the said statement.
Evidence revealed that the statement produced by this
witness before the Court had in fact been faxed from
01126895640 (Fax installed in the name of Virender
Chopra, H.No.8001 GF Pocket-8, Sector-C, Vasant
Kunj, New Delhi).
The witness was evasive in tendering his specimen
writings before the Trial Court as he claimed that owing
to his illness there may be some difference in his
handwriting.
The witness admitted that in the year 2005 he had
contested elections for the Zila Parishad in Haryana and
record reveals that the said elections took place in the
month of April. It is highly improbable that he would
trace Sanjiv Kumar (A-3) in an alien city without leads
in the month of March, 2005; when he must be subsumed
in the preparation for the said elections.
III. PANCHKULA
i) The Supreme Court List of this District is D-21 exhibited as
Ex.PW-18/A and the Directorate List is D-3 exhibited as
Ex.PW-18/B. Both these lists are computerized. According to
the FSL report, D-21 was prepared on 17.12.1999 by one
Hitesh Bansal at his residence. D-3 was prepared by a private
firm M/s. V.C.C Computer Education, Sector 12A, Panchkula.
It is the case of the prosecution that D-3 was prepared at the
instance of A-44, Rekha Sharma, who was a member of the
Selection Committee, Panchkula.
ii) PW-20 Hitesh Bansal has testified that in 2004 the IO, R.N.
Azad inquired from him about the computer job which he had
done for Rekha Sharma during December, 1999. R.N. Azad
had taken the relevant data from his computer in a floppy and
the floppy & the hard disc of the computer were seized by him.
From the floppy, a print of the said work i.e. award list of JBT
candidates was taken. It showed that this list was got prepared
on 17.12.1999. This print out (D-42) is Ex.PW-20/C and tallies
with the Supreme Court List.
iii) A-3 relies on testimony of the expert witness U.Ramamohan
(PW-65) wherein he testifies that the computer was updated in
MS-Word-2000. It is argued that the fact that the computer of
Hitesh Bansal was having 2000 version of Microsoft Office, it
is clear that the list contained in the print out Ex.PW-20/C
could not have been prepared in the year 1999. Rather this fact
proves the contention of A-3 that this list was prepared in the
year 2000. It is argued that in the year 2000 the fake list was
prepared whereas genuine list was prepared in the year 1999.
As per submissions of Sanjiv Kumar, the print out Ex.PW-20/C
is, therefore, of the year 2000 and the same tallies with the
Supreme Court List and thus the Supreme Court List is a fake
list, whereas the Directorate List of Panchkula District is the
genuine list.
iv) It is also argued that the forensic expert PW-65 was not
mandated by the CBI to authenticate the date/time/month/year
which appeared on the hard disc seized from the computer of
Hitesh Bansal, PW-20. Seizure of the CPU of the computer of
Hitesh Bansal would have given evidence of the Bios clock
which in turn controls the chronological stamping of the hard
disc.
v) Factually, the Directorate list at Page No. 9 has 5 incorrect Roll
Nos. that have been corrected by hand and attested by A-44.
These corrections do not exist at all in the Supreme Court list.
It is argued by Learned Counsel on behalf of A-3 that if the
Supreme Court list was indeed the original list then how could
the original list have 5 incorrect Roll Nos. and led to the
preparation of the final results. In the same breath it is argued
that if Supreme Court list were the original list and a fake list
had to be prepared from it, then what was the need to correct
mistakes that were present in the original list. Similarly,
calculation errors are pointed out in the Supreme Court list for
Roll Nos. 85036/85008/85030/85038/85054/ 85032/85035 and
85063 to show that an original list cannot have such mistakes
thereby leading to the conclusion that the Supreme Court list
cannot be the genuine list.
vi) It is argued on behalf of A-3 that the Supreme Court list is
complete in all respects, carrying details of all categories
including SC(A), SC(B), BC(A), BC(B), ESM, PH etc whereas
the Directorate list only contains data relating to General
Category candidates and, therefore, cannot be the original list.
vii) The trustworthiness of PW-20 is attacked on the ground that it
is highly improbable that a person who neither ran a
commercial computer shop nor ever knew Rekha Sharma nor
gave any receipt for the work that he had undertaken was
chosen by Rekha Sharma for such a sensitive job and also
allegedly kept the said confidential data of December, 1999
stored in his computer till the year 2004, allegedly at the behest
of Rekha Sharma, when the C.B.I. I.O. seized the same, even
though he had allegedly stopped doing such computer work 6
months after Rekha Sharma had come to him for getting the
award lists of Panchkula computerized in December, 1999.
IV. REWARI
i) The Directorate list is D-14 and exhibited as Ex.PW-39/A and
the Supreme Court list is D-32 and has been exhibited as
Ex.PW.15/B. A-49, Sudha Sachdeva and A-50, Darshan Dayal
Verma were the Chairpersons of the District Level Selection
Committee- Rewari and Saroj Sharma (A-51) and Tulsi Ram
Bihagra (A-52) were its members. D.D. Verma (A-50) was
initially the Chairperson for the first three days of the
interviews thereafter, he was transferred and Sudha Sachdeva
was posted in his place.
ii) The Directorate list is signed by all the members except A-49
whereas the Supreme Court list contains signatures of all
members. Another factual aspect of the Supreme Court list is
that Darshan Dayal Verma (A-50) has signed as "Ex DPEO" on
first 12 pages of the award lists and thereafter, Sudha Sachdeva
has signed as the chairperson.
iii) It is argued on behalf of A-3 that the list which contains the
signatures of all members should be the fake list as it was not
possible for a member to refuse even an illegal direction that
came from the government headed by Om Prakash Chautala.
The fearful environment in which the remaining members were
made to sign the fake lists is evident from their statements
under Section 313 Cr.P.C. Learned Counsel submits that a
Chairman or a member may not sign in case he or she is not
available on the date of interview for any reason. Attention is
drawn to the affidavit (D -58) of Sudha Sachdeva which has
been proved as Ex.PW-46/10 in which she swears on oath that
she had signed the second list. It is argued that this also fortifies
the argument that Sudha Sachdeva had signed the second list
and consequently, the list which bears the signatures of Sudha
Sachdeva should be fake list.
iv) It is also argued that on the original list, Darshan Dayal Verma
(A-50) would have signed for first three days as DPEO and not
as Ex DPEO. The Directorate list bears the signatures of D. D.
Verma with the designation DPEO. His designation on the
Directorate list shows that he signed this list when he was
District Primary Education Officer, Rewari. The Supreme
Court list bears his signatures with designation as Ex DPEO,
which demonstrates that he signed this list when he had already
relinquished the charge as DPEO. Therefore, Supreme Court
list must be termed as the fake list and the Directorate list
should be treated as the original list
v) Learned Counsel points out that the SC list till page 14 follows
the predictable pattern of grand total marks being in decimals.
However, from pages 15-59 the grand total marks in decimals
have been rounded off to whole numbers. On contrast, in the
Directorate list pages 1-37 reflect the actual and exact marking
in the Grand total column thereby evidencing that the
Directorate list is the original one.
vi) Learned ASG submits that the evidence tendered by PW-39
Om Prakash and PW-40 Subhash Chand establish that the
Directorate List of District Rewari was prepared in August/
September, 2000. It is pointed out that PW-39 was not
subjected to any cross-examination by A-3 and his evidence
has gone unchallenged. Furthermore, even PW-40 Subhash
Chand has not been suggested by A-3 that he has deposed
falsely, although he was cross-examined by him.
vii) A-50/ DW-1 Darshan Dayal Verma has stepped into the
witness-box in terms of Section 21 of the Prevention of
Corruption Act, 1988/Section 315 of Cr.P.C., 1973 and has
explained how he was pressurized by Sanjiv Kumar (A-3) and
Sher Singh Badshami (A-2) at Haryana Bhawan to cooperate in
creation of a second award list. He further deposed that Sudha
Sachdeva (A-49) had dictated the interview and grand total
marks to him while getting prepared the second award list in
September, 2000. It is argued that during his cross-examination
by Sanjiv Kumar (A-3) he has not been questioned with regard
to the aspect that why he signed on the Supreme Court List as
Ex DPEO. Even otherwise, it is submitted that D.D. Verma was
the Chairperson of the District Selection Committee, Rewari
for the first three days only as he was transferred to Sirsa,
therefore, it is highly probable that he signed the Supreme
Court List after having received the transfer orders and,
therefore, chose to write Ex DPEO. Therefore, the Supreme
Court List cannot be termed as the fake list on this count.
V. BHIWANI
i) The Supreme Court list of this district is D-25 exhibited as
Ex.PW-30/A and the Directorate list is D-7 and has been
exhibited as Ex.PW-15/M.
ii) The prosecution is relying upon the testimony of PW-30 Tara
Chand; Deputy Superintendent in the office of District Primary
Education Officer, Bhiwani who has deposed that the Supreme
Court List contains his signatures on all 47 pages as a token of
checking the particulars etc and that the same was prepared
during December, 1999. The Directorate List does not contain
his signatures anywhere.
iii) This is vehemently refuted by Learned Counsel for A-3 by
citing the advertisement issued in the newspapers as well as the
Corrigendum (D-40/II, Page No.137, Corrigendum to Adv
No.1/99) which clearly states that the applications must be
submitted personally only on 28.11.1999. The following
portion of the deposition of PW-30 is pointed out:
―the advertisement 01/99 appeared on 15.11.1999 in the
newspapers and thereafter the applications started
coming which continued up to 28.11.1999. I had got
started category wise typing of the lists from
26.11.1999.....‖
iv) It is argued that the original certificates were to be checked and
returned to the candidates on the same day after 4:00 p.m. and,
therefore, his testimony is totally false, misleading and
mischievous. It is also pointed out that Tara Chand was not a
member of the Selection Committee and as such absence of his
signatures on the Directorate list is justified by this explanation.
VI. ROHTAK
i) D-12 is the Directorate list and D-30 is the Supreme Court list.
It would be relevant to highlight that D-30 is a carbon copy and
does not contain the interview and grand total marks.
ii) It is pointed out on behalf of A-3 that Pages 9, 10, 11, 13 and
14 of the Supreme Court list do not contain any signatures of
the Committee Members. It is, therefore, contended that in
view of these irregularities remaining unexplained by the
prosecution, it cannot be said that the SC list is the original list.
iii) Learned ASG submits that the fact that the Directorate List of
District-Rohtak (D-12) carries marks in the said columns
cannot be dispositive of an inquiry into the veracity of the lists
of the said district. A-3 has alleged that the bunch of Supreme
Court Lists were handed over to him by Vidya Dhar (A-1) for
substituting them in place of the original award lists. It is
respectfully submitted that Om Prakash Chautala (A-4) and
others would not be in a position to fulfill their sinister motives
by handing over a list to A-3 for implementation which does
not carry the interview and grand total marks. Therefore, the
Supreme Court List cannot be the fake award list as sought to
be canvassed by A-3.
iv) It is submitted that the answer to this vexing question and the
reason for the existence of such a list which does not carry the
interview and grand total marks, surfaces from the explanation
tendered by accused- Jeet Ram Khokhar (A-46), Nirmal Devi
(A-47) and Amar Singh (A-48) under Section 313 Cr.P.C that
they had separately sent such an award list (carbon copy)
without marks in the interview column, in addition to the award
list which duly carried marks in the interview and grand total
column.
VII. KURUKSHETRA
i) The Directorate list of this district is in two parts, the first being
the general list and the second being the award list of B. Ed
candidates exhibited as Ex.PW-15/D. The Supreme Court list
of this district is a part list and an equivalent of the list carrying
interview marks of the B. Ed candidates.
ii) It is pointed out on behalf of A-3 that the application forms of
the B.Ed. candidates were received in Kurukshetra and the
academic profiling of these candidates based on their
Application forms was done in Kurukshera itself. It is then
argued that based on the contention of the prosecution that the
Supreme Court list (D-36) is the original list, how is it on the
same stationery/sheet as that of D-29 & D-11 i.e. the Supreme
Court list and Directorate lists of the JBT lists of Yamunanagar.
The written statement of A-59, who was DPEO Kurukshetra,
under Section 313 is pointed out wherein he states that in the
second week of September, 2000 he signed an award list of
B.Ed. candidates in the office of DPEO Kurukshetra.
iii) Learned Senior Counsel Mr. Nigam submits that the award lists
for B. Ed candidates were received after the almirah containing
the original lists was sealed by PW-23. A-59, in his statement
under Section 313 has said that he had deposited the sealed
award lists by hand on 01.08.2000 to Om Prakash Kundu. PW-
31 has deposed that Mr. Kundu was a clerk in his branch and
was deputed to collect the award lists of B. Ed candidates from
Kurukshetra and deliver them to M.L.Gupta. It is argued that
the original lists were in the possession of M.L. Gupta .
iv) Learned ASG submits that the interviews of the B.Ed
candidates were conducted at Kurukshetra by the DPEO
Yamunanagar [Part 8/D-40 (I)/ Page 66-67]. Therefore, the fact
that the said list appears in the same format or handwriting does
not cast any suspicion and is in fact natural.
v) Addressing the argument on behalf of Sanjiv Kumar (A-3) that
if he was hand in glove with the scamsters, he would have
never called for the real B.Ed candidates award lists from
Kurukshetra through Kundu on 01.08.2000. It is argued that the
said contention is liable to be rejected as Sanjiv Kumar (A-3) is
not so juvenile to foist the fake lists without even calling for the
original award lists from Kurukshetra as this would have surely
exposed their conspiracy since question-mark would be raised
as to how result was declared without the award lists of B.Ed
candidates being even called for.
vi) It is submitted that it has been established by testimony of PW-
56 M.L. Gupta that the members of the Result Compilation
Committee were handed over the list of B.Ed candidates
interviewed at Kurukshetra along with award lists of other
districts on 16.09.2000. Significantly, it was deposed that the
said list of B.Ed candidates was lying in the drawer of Sanjiv
Kumar (A-3) and it was collected from there whilst being
handed over to the members of the Result Compilation
Committee on 16.09.2000. [Part 2(II)/PW-56/Page 151] It is
yet again pointed out that the said portion of his evidence has
not been challenged by Sanjiv Kumar (A-3) in cross-
examination.
VIII. KARNAL
i) The Directorate list of this district is D-9 exhibited as Ex.PW-
15/F and the Supreme Court list is D-27 exhibited as Ex.PW-
28/A.
ii) It is submitted on behalf of A-3 that PW-28, Dheeraj Kumar,
clerk at DPEO-Karnal has categorically stated that the members
of the selection committee used to sign the last page of the
interview list on each date of the interview and used to sign at
the relevant place at the end of the list which was filled till that
moment on that date. This description best fits the Directorate
list as opposed to the Supreme Court list of Karnal wherein
there are no signatures at the bottom of the page rather there is
a certificate containing signatures of all members after every
few pages.
iii) It is submitted that the order passed in case of WP(C) 16220/99
pertaining to Julie Chhabra is dated 19.07.2000 i.e. her
interview was conducted later in time and the Directorate list
Karnal contains her particulars along with signatures of the
Chariman- N.S. Ruhil (A-29) and Dy.DEO- K.L. Narang as Ex
DPEO and Ex.Dy.DEO. This can be explained by the fact that
when her interview was conducted after passing of the order,
the DPEO and Dy.DEO were not the chairman and deputy
DEO and signed accordingly, therefore, the Directorate list is
the original list of Karnal. The Supreme Court list on the other
hand does not even contain her result. This is further fortified
by the deposition of PW-55.
IX. FATEHABAD
i) The Directorate List of Fatehabad is D-13 exhibited as Ex.PW-
15/A and the Supreme Court List is D-31 and has been
exhibited as Ex.PW-43/E.
ii) Learned Counsel for A-3 points out inconsistencies between the
Section 313 statement of A-13 on the one hand and that of PW-
56 and PW-31 regarding the meeting at Haryana Bhawan.
According to A-13, the message had come on 31.08.2000 at
4pm from M. L. Gupta, PW-56, PA to DPE, for coming to
Haryana Bhawan on 01.09.2000 at 10:00 a.m. with all members
of DLSC for meeting about JBT Teachers. This is totally
contrary to the deposition of PW-56, M.L. Gupta and PW-31,
Sardar Singh that they themselves were unaware till the
morning of 01.09.2000 as to where they had to reach in Delhi
and for what purpose.
iii) It is also pointed out on behalf of A-3 that even though both the
lists have been signed by the same members and Chairperson,
the signature of A-13, is missing on 2 pages, i.e. Page Nos. 9 &
57 of the Supreme Court list, D-31. Directorate list, D-13 is
duly signed by all DLSC members including A-13 on all pages.
X. MAHENDERGARH
i) The Directorate list of this district is D-6 exhibited as Ex.PW-
15/O and the Supreme Court list of this district is D-24
exhibited as Ex.PW-43/B.
ii) It is pointed by learned counsel on behalf of A-3 that the
Supreme Court list is signed by 5 persons, 3 of whom are
authorized and 2 of whom are unauthorized to sign the same.
The Directorate list on the other hand has only been signed by
the 3 authorised members. It is argued that the prosecution has
failed to explain the identity of these 2 unauthorized persons
whose signatures appear on the Supreme Court list, which
accordingly to him could have lent material evidence in
establishing the falsity of the Supreme Court list.
iii) Learned counsel submits that at the time when the interviews
for JBT candidates were being conducted, simultaneously the
interviews of the candidates for the posts of C & V Teachers
(Classic & Vernacular Teachers), Masters and Lecturers were
also being conducted. It is argued that during the investigation,
CBI had seized the award lists of interviews of C & V teachers
of District Mahendergargh (Narnaul, Ex.PW-24/L, D-60
Volume I to IV). It is argued that perusal of this list would
show that its pattern of interview marks tallies with the
Directorate list. It is submitted that the CBI had not found this
list to be a fake. Had it been so, CBI would have also
prosecuted the officials, who prepared this award list of C & V
teachers.
iv) It is argued by Sanjiv Kumar (A3) that if in the eyes of CBT,
the interview pattern of the C & V teachers is not illegal and if
this award list is not fake, how the Directorate lists, which
contain the same pattern of interview marks as that of Ex.PW-
24/L, could be termed as the fake lists. Accordingly, it is
submitted that not only the Directorate list of Mahendergarh
but also all the Directorate lists having the same pattern of
interview marks as contained in Ex.PW-24/L are genuine lists.
Consequently the Supreme Court list of District Mahendergarh
and the other Supreme Court lists should be treated to be fake
lists.
XI. GURGAON
i) The Directorate list of this district is D-15 and the Supreme
Court list is D-33.
ii) Learned counsel appearing on behalf of A-3 has pointed out 2
Roll Nos. to show skewed pattern of marking in Supreme Court
list. On Page No. 2, Roll No. 20001, the total academic marks
is 49.42 whereas interview marks are 15.58 making a grand
total in whole numbers of 65. For Roll No. 20002, the total
academic marks are 48.92, and interview marks is 18.08,
making a grand total of 67. The Supreme Court list shows that
the interview marks have been given in decimals so that when
added with the academic marks (which are bound to be in
decimals), results in Grand Total marks which are in whole
numbers. Unlike the Directorate list where the interview marks
are in whole numbers (19 and 18 respectively) for the said Roll
Nos. and so the Grand Total marks are in decimals. It is argued
that this artificial marking in interviews leading to the Grand
Totals being in whole numbers cannot be the basis of any fair
interviews and, therefore, the Supreme Court list is not the
original list.
XII. AMBALA
i) It is argued that the tables in Supreme Court list are drawn in
hand in a slant and shoddy fashion which shows they are fake
lists because it is the fake lists which are made in a hurry and
are not very systematic.
XIII. SIRSA
i) The Directorate list of this district is D-19 and has been
exhibited as Ex.PW-15/N and the Supreme Court list is D-34
and has been exhibited as Ex.PW-43/G.
ii) Learned Counsel appearing on behalf of A-3 argues that the
Prosecution has failed to address the issue that R.S. Kukreja, A-
17, DPEO, Sirsa, claims to have gone to Chandigarh sometime
in the first week of September whereas the Prosecution's case
is that only one meeting was held in Chandigarh and that too on
30.08.2000. It is also argued that contrary to what R.S. Kukreja
says, the other 2 DLSC members of Sirsa deny having gone to
Chandigarh for any such meeting.
XIV. YAMUNA NAGAR
i) The Directorate list of this district is D-11 and has been
exhibited as Ex.PW-15/J and the Supreme Court list is D-29
exhibited as Ex.PW-27/A.
ii) It is contended on behalf of A-3 that A-62, Joginder Lal was a
substituted member after 3 days of conducting of interviews to
fill in for A-61, Urmil Sharma and the signatures of both A-61
and A-62 appear together on Pages 1-17 of the Supreme Court
list which demonstrates that the Supreme Court list of this
district cannot be the genuine list. A-61 has deposed in her
statement under Section 315 that her signatures were taken
forcibly on the second set of award lists where she has signed
on more number of pages than she had done on the original list.
In the Directorate list her signatures are present only from
pages 1-23 thereby lending support to the contention that the
Directorate list is the original list of this district.
iii) It is also submitted that the prosecution has failed to explain
how the signatures of the other two DLSC members is missing
on some of the pages whereas the signatures of the chairman is
present on all the pages. It is also pointed out that on pages 52-
55 of D-29, only the signatures of DPEO R. P. Singh are
appearing and the signatures of the other two members are
absent.
XV. SONEPAT
i) The Directorate list of this district is D-8 exhibited as Ex.PW-
15/G and the Supreme Court list is D-26 and exhibited as
Ex.PW-43/C
ii) It is submitted on behalf of A-3 that A-56, R.S. Dahiya has
stated in his statement under Section 313 that he has deposited
the fake lists of Sonepat on 17th or 18th September, 2000 at
HARTRON with PW-31. It is, therefore, argued that the list
that came out from the almirah on 16.09.2000 should be the
original list of this district. It is also argued that the prosecution
has not explained the fact that the Directorate list is the typed
First List and the Supreme Court list is the carbon copy .
iii) It was also pointed out that on page 17 of the Supreme Court
list, the signature of the Chairman, R.S. Dahiya is missing. The
Directorate list on the other hand is duly signed by all 3
members on all the pages.
XVI. KAITHAL
i) Similar to the argument put forth for the district Sonepat, it is
argued on behalf of A-3 that A-35, the Chairman of the
Selection Committee has stated in his statement under Section
313 Cr.P.C. that he has deposited the fake lists in HARTRON
on 17th or 18th September, 2000, therefore, the list that came out
from the almirah and was signed by the Result Compilation
Committee ought to be the original list.
ii) It is also argued that the said ―FORMULA‖/marking pattern is
reflected in the Directorate list which came out of the almirah
on 16.09.2000, and, so, it cannot be the Fake List. It couldn't
have been substituted later by another set as it was signed by 6
members on each page and so one can only deduce that this
marking pattern would be of the Original List which came out
of the almirah on 16.09.2000, and, not of the Fake List which
was given by Dilbaag Singh at HARTRON on 17/18.09.2000.
XVII. PANIPAT
i) The Directorate list of this district is D-18 exhibited as Ex.PW-
15C. A-3 has not submitted any list pertaining to this district.
ARGUMENTS OF A-3 REGARDING HIS ROLE IN CONSPIRACY
34. At the very outset, Learned Counsel appearing on behalf of A-3
alleges that the prosecution has evolved two different theories against A-3,
one being that he got prepared a second set of award lists and replaced the
same. For this the prosecution has relied on the testimony of PW-31 Sardar
Singh and PW-56 Mohan Lal Gupta. At the same time the prosecution is also
trying to prove that at the time when Mrs Rajni Shekhri Sibal (PW-23) was
holding the post of Director Primary Education a second set of award lists
were already prepared however upon refusal of Mrs Rajni for replacing the
second set of award lists with the original ones, A-3 was brought in her
place.
I. Haryana Bhawan/Punjab Guest House and Hartron Exercise
35. It is argued that somewhere in the middle prosecution mixed both the
aforesaid stories and developed a new story that it was A-3 who had got a
fake set of award lists prepared by calling meetings of the district level
selection committee members at Punjab guest house and Haryana Bhawan
Delhi and for achieving the ends of having a second set of award lists
prepared, in the last week of August, 2000, brought the original lists with
him to Delhi at Haryana Bhawan for making available photo copy of the
original award lists which were submitted by the District Level Selection
Committee in the office of Director Primary Education, by hiding the
interview marks and grand total so that a fresh set of list may be prepared.
36. It is pointed out that although the mandate of the meeting was to
give/make available only the names, roll numbers and marks for academic
qualifications of the candidates (done at the DLSC level prior to holding the
interview), yet what is unclear from the case of the prosecution is as to why
was there a need for the appellant to carry the above original award lists for
holding such meetings when it is culled out conclusively from the documents
available on the records that the data which was to be allegedly supplied to
the candidates was already available in the form of data entered by
HARTRON from the original application forms which had already been
submitted to HARTRON soon after letter dated 31.07.2000 (D-56 page 33-
Ex.PW-55/D) was received from HARTRON for handing over the data to
Mukesh Bajaj AGM (PW 55).
37. It is sought to be explained that the application forms were not sent
out on 03.08.2000 through the following list of dates:
03.01.2000 Letter by FCEL to MD HARTRON refereeing to a meeting dated
D59 @ 38 17.12.1999 in which it was decided that the recruitment of the
Ex.PW-55/A teachers will be processed using computers and HARTRON would
prepare a cost estimate with respect to the same.
A cost estimate sought from HARTRON so that decision may be
taken in this regard.
26.05.2000 Cost estimate submitted by HARTRON to Sec. Secondary
D-59 @ 37 Education with a copy to Director Primary Education for
Ex.PW-55/B compilation of result.
17.07.2000 Letter By Shri Prem Prashant FCEL to Sanjiv Kumar, Director
D-40(III) @ 40 Primary Education for taking help of HARTRON for finalisation of
result.
26.07.2000 Letter by Dy. Director Primary Education to HD HARTRON stating
D-59 @ 36 that the Government has approved the rates conveyed by it vide
Ex.PW-55/C memo dated 26.05.2000, with a further request to start the
computerisation process at the earliest while stating therein that the
material for the said process of computerisation would be supplied
to it (HARTRON) as and when required.
31.07.2000 Letter by General Manager (F&A) HARTRON to Director Primary
D-59 @33 Education stating that Shri Mukesh Bajaj Asst. GM would look
Ex.PW-55/D after the computerisation of JBT Teachers Selection with request to
handover the data to Shri Mukesh Bajaj AGM at the earliest.
Letter received in the office of DPE on 31.07.2000 itself.
31.07.2000 Corresponding Noting in the file of DPE stating that for
D-40(I) @ 77-78 computerisation with respect to the appointment of JBT Teachers
HARTRON has designated Shri Mukesh Bajaj AGM and further
HARTRON has written that the data may be made available to him
immediately. Therefore permission was sought for sending the Data
to HARTRON for further actions.
Noting by Sardar Singh @ 77 bottom:- That HARTRON has
nominated Shri Mukesh Bajaj AGM as a member of JBT Selection
Committee, therefore, permission was sought to send the
Application forms of candidates which were already available in the
Directorate Dasti to him.
Noting Approved on 31.07.2000
09.08.2000 Letter by Mukesh Bajaj AGM HARTRON to Director Primary
D 40(III) @ 57 Education stating therein that data entry of all forms was completed
Ex.PW-31/D3-1 by 04.08.2000 and the check list of the same has been generated.
The proof reading of the Forms was to be completed within 2 days
i.e. 5th and 6th August, 2000 by the staff of Education Department.
But till date the same has not be done which had already been
informed to the Dy Director Telephonically, because of which the
finalisation of the results was delayed.
14.08.2000 It is mentioned in the said noting dated 14.8.2000 by Phool Chand
Part 8 / D-40(I) @ that all the staff of the Education Department was made to read the
78-79 proof on working days as well as on Gazetted Holidays and as such
the proof reading has been completed, however it was mentioned
Also available in that the proof prepared by HARTRON had a lot of mistakes and the
Paperbook of same was not found satisfactory.
CR.L.A. No.277 Phool Chand's note is endorsed by PW55 in Part 2/II page 81-82
of 2013 in vol IV , who adds to it that ― However the mistakes were rectified and the
Annexure A-5 @ same was again sent to the department on 25.8.2000‖
page no.755 and The above Noting of Phool Chand dt. 14/8/2000 is (wrt to the letter
pg. 756 dt. 09.08.2000 written by Mukesh Bajaj) whereby HARTRON has
communicated that they have completed the proof by 05.08.2000
but no one from the Education department has come to check it.
16.08.00 Additional Noting by S.S.Tanwar:- Upon proof reading of Data Fed
Part 8 / D-40 (I) @ by HARTRON 70% mistakes are found. Roll numbers and Data of
81-83 candidates do not match and in case of many candidates the
Also available in category is not written. Even in SC(A) SC (B) BC(A) BC(B) E.S.
Paperbook of MTDE S.M. their category is not written.
CR.L.A. No. 277 DPE asked to speak to MD HARTRON and have the work done
of 2013 in vol through experienced employees of HARTRON.
IV, Annexure A-5
@ page no.757
PW-55 @pg. 50 Two persons from the DPE office had come to HARTRON for the
part 2(II) & purpose of proof reading as well as taking away all the application
quoted by the forms of JBT candidates that had come from the districts.
Trial Judge in
Part1/B pg.181
25.08.2000 Gate passes Ex PW-55/DA and PW 55/DB issued by Veena
Sabharwal which mentions District wise ascending lists and
descending lists of JBT candidates as endorsed by PW55 in Part 2/II
page 81.
16.09.2000 Original Interview Mark-sheets taken out from the Sealed Almirah
D-42 @ 23 in the presence of the 6 member committee and a memo was drawn
Ex.PW-31/A to that effect and the original award lists handed over to the
committee.
03.10.2000 Complied Results along with the documents were sent to O/o DPE
D-59 @ 8 vide gate pass PW31/DP.
Ex.PW-55/V Part 8/D 59 at page 4 shows the Gate Pass dated 3.10.2000 in the
D-59 @ pg.4 name of S.S. Tanwar showing Original interview JBT records and
Result of sheets after preparation of final result. (NO application
Forms mentioned in the gate pass)
07.10.2000 Results published in the Indian Express News Paper.
II. Prerna Guest House
38. It is argued that the prosecution has tried to suggest that since the
nature of work was confidential, therefore, an inference is drawn from the
statement of A3/DW-1 to show that a room was provided to the persons
from DPE office for doing the official work which was supposed to be done
by them. It is submitted that A-3/DW-1 although was in-charge of the Prerna
Guest House, yet he used to sit in the office building at Sector 17/C, at
Chandigarh which is flowing from a statement under section 161 Cr.P.C.
which had been attached by the prosecution along with the charge sheet.
Meaning thereby that it was always in the knowledge of the prosecution that
the said witness was never stationed in the Prerna Guest House. It would,
therefore, be misleading to rely upon a statement for the purpose of showing
that PW-31 and PW-56 had taken a room in Prerna Guest House for the
purpose of performing the alleged mandate given to them by A-3 Sanjiv
Kumar.
39. So far as A-3/DW-2 i.e. Ramji Tiwari who was in charge of the
workshop which were conducted in Prerna Guest House for the purpose of
creating the text books is concerned, it is submitted that there is positive
evidence which had come out that in the month of August, 2000 while the
workshop was going on, 2 officials from the Directorate of Primary
Education, namely, M.L.Gupta and one Sardar Singh had come with one bag
and one person was holding one handle of the bag and the other was holding
the other handle of the bag. Further it has come in the evidence of Ramji
Tiwari that Sharwan Kumar - Caretaker of the guest house who was
permanently stationed in Prerna Guest House informed him in advance that
the 2 officials from the office of director Primary Education would come and
he requested that some space may be given to them for doing that work. It
has further come in his evidence that since the room demanded by them had
already been occupied by teachers attending the workshop which was
continuing at the relevant point in time, therefore, they had given the
aforesaid 2 officials from space in one corner of the hall.
40. During the cross examination of his A3/DW-2, upon being specifically
asked about his presence in the Prerna guest house, he had given a specific
answer that Prerna Guest House was maintaining a register in which the
names of the participants in the workshops were mentioned and further he
specifically stated that his name must also be mentioned in the said register.
He has also specifically stated that when he had asked M.L. Gupta and
Sardar Singh about the lists, they had informed them that the same were
HARTRON lists brought for the purpose of proof reading.
41. It is contended that from all the statements of the aforesaid different
witnesses it becomes absolutely clear that the exercise done by Sardar Singh
and M.L. Gupta at Prerna Guest House was in fact done in the 3rd or the 4 th
week of August, 2000 i.e. when the 2nd proof (taken out on 25.08.2000 as
ascending and descending lists) prepared by HARTRON after correcting the
mistakes which are pointed out to them as mentioned in note dated
14.08.2000 and 16.08.2000 at Pages 81 and 84 of D-40-(I) wherein at Page
84 it is stated that while reading the proof prepared by HARTRON it was
found that roll numbers and Data of candidates do not match & in case of
many candidates the category is not written. Even in SC (A), SC (B), BC(A),
BC (B), ESM or DESM their category is not written.
[That it becomes clear (that the said Prerna Guest House
exercise took place in the 3rd - 4th week of Aug. 2000),
from the statements of :-
Sardar Singh PW-31 in :
Part 7(1) Page 172 (Statement under Section 161 Cr.P.C)
Part 7(2) Page 41 (Statement under Section 164 Cr.P.C)
M. L. Gupta PW-56 in :
Part 7(1) Pg.176 & 180 (Statement under Section 161
Cr.P.C)Part 2(II)
Page 92, 107, 108 (Statement recorded during the course of
Trial)
Daryao Singh A-3/DW-1 in :
Part IV, Page 11 says that the Prerna Guest House happened
in last week of August, 2000]
42. It is contended that from all the statements of the aforesaid different
witnesses it becomes With reference to the evolving of formula and checking
overlapping of castes/categories, it is argued that even the IO in his
testimony admits Joint Merit List was essential to determine the final
placement of candidates. It is an admitted case of prosecution that at the
time when the said exercise of Prerna Guest House was being conducted
there was no joint merit list available either with PW-31 or with PW-56.
Therefore, it was absolutely impossible for anyone to find out of 8000 JBT
candidates as to firstly how many of them would be figuring in the final
merit list of 3206 candidates and secondly to find out as to how many SC/BC
candidates would have overlapped the seats of General Category Candidates
out of the 3206 candidates who would have come up in merit. The statement
of the Investigating Officer himself that without there being any joint merit
list of the candidates no purpose whatsoever would be served by either
evolving a formula or by trying to find out as to how many SC/BC
candidates had overlapped the seats of general candidates assumes
significance.
43. With a view to discredit the testimony of PW-56, my attention was
directed towards his testimony where he deposes regarding the lists being
perused by A-3. He states that it was his general impression and that he had
not specifically seen those lists. On being asked whether the two dak bags
meant for the alleged Prerna Guest House exercise contained the said
original award lists, he says he is not certain. He further deposed that he
cannot say whether they were those very award lists which had come from
the districts and that he was not asked to check the said district level award
lists in Prerna Guest House. It is highlighted that while M.L. Gupta talks
about A-3 perusing award lists, Sardar Singh who was present at the same
time with ML Gupta in the Director's room, in his examination in chief (Part
2/I, Pg. 304,) has deposed that the Director had two bags before him which
he directed them to take to Prerna Guest House. In his statements u/s 161
Cr.P.C. and 164 Cr.P.C. also, Sardar Singh does not say that he saw A-3
perusing the award lists.
III. Circumstantial Evidence Against A-3
44. It is pointed out that the almirah in which the lists were contained was
put behind a wooden screen in the office of Director Primary Education
(DPE), however it is sumitted that for this fact neither any question been put
to the appellant while examining under section 313 Cr.P.C nor the Site Plan
Ex.PW-31/DK (D-88 page 3) shows any wooden screen.
45. Learned Senior Counsel contends that during the stage of framing of
charges, the trial judge had prejudged the issue of the Directorate Lists being
fake and Supreme Courts being genuine while discharging A-19 Brij Mohan
by giving a positive finding that a ‗UP' appears under the signatures of Brij
Mohan without there being any comments with regard to the same by the
Forensic expert in Part8/D-150 page 94-95.
46. With reference to district Faridabad, it is submitted that the document
D-61(I) which is a copy of D-4, the Directorate list contains the same
interview marks and grand total for all candidates as Directorate Lists, D-4,
and the original signatures of all the 3 District Level Selection Committee
Members, namely, Harbans Lal, Brij Mohan and Udal Prasad. This clearly
shows that although a copy of D-4 was prepared, the original list was sent to
HARTRON for the purposes of preparation of the final merit list, and the
copy of D-4, which is D-61(I), was retained in the DPEO office as an office
copy. This copy was seized by the CBI during raids in the year 2004 from
the office of the DPEO Faridabad and labeled as D-61(I) by the CBI.
47. It is pointed out that PW-17 Brij Mohan in his deposition [Part 2(1) at
page 144] has clearly stated that he signed 40 pages of the fake lists.
However a perusal of Directorate list and D-61(I) would reveal that in fact he
had signed 40 pages of Directorate list + 28 pages of D-61(I) which is a copy
of the Directorate List. However, as far as the Supreme Court list of district
Faridabad is concerned, he has signed only 40 pages of the Supreme Court
lists of Faridabad.
48. It is submitted that the factum of the lists being taken out from the
almirah before 16.09.2000 emerges from the evidence of PW-56 and PW-31.
Therefore, their testimonies have to be gone through with a fine toothed
comb. It is pointed out that the minutes of the meeting dated 16.09.2000
Ex.PW-31/A (Part 8, D-42, Page 23) shows that the almirah was completely
sealed from all sides by cloth and had three seals over it which also shows
that there was no tampering of seals when the almirah was opened before the
de-sealing committee on 16.09.2000. The office note of PW-31, dated
15.09.2000 (Part 8/D-40/I, Page 87-88) also endorses the abovementioned
fact. Further, (in Part2/I, Page 331) PW-31 states that he cannot tell whether
the said almirah was opened prior to 16.09.2000. It is argued that nowhere in
their depositions either the Supreme Court or the Directorate Lists were put
to them to identify as to which one was seen by them prior to 16.09.2000 at
Prerna Guest House. There is no identification of any list being made by
them during the course of trial with respect to the one seen by them at Prerna
guest house. It is argued that there is no positive evidence forthcoming to
show that either of the star witnesses of prosecution i.e. PW-31 or PW-56
have deposed as to which one of the lists was seen by them prior to
16.09.2000, therefore, when the prosecution has itself not lead such evidence
to prove a positive fact which could lead to the hypothesis of conviction of
the accused then it cannot be concluded that the lists were taken out prior to
16.09.2000.
49. Learned Senior Counsel has highlighted the following circumstances
as proof of his innocence in the conspiracy of preparation of fake lists:
i) Vishnu Bhagwan, A-5/DW-1 (Part IV page 161 and 164)
deposes that he had recommended to the then CM, the name of
A-3, for additional charge of DPE.
ii) A-3, deposes u/s 315 Cr.P.C. that he came to know of the
design of the CM after he had taken charge and met the CM
over breakfast.
iii) The effort by A-3, to appoint all the remaining JBT candidates
under the World Bank aided project, DPEP, of which he was the
State Project Director, supports his stand that he did not accept
the directions of the CM and his officials about implementing
any fake lists so that their candidates could be favoured.
iv) That the fact that documentary evidence brought by A-3 shows
beyond doubt that the Supreme Court lists cannot be the
genuine lists, proves that A-3, frustrated the ends of the said
conspiracy contemplated by the CM.
v) That the fact that A-3, safeguarded the fake lists and brought the
scam in the open through his Writ Petition No.93/2003, also
proves his intention of not being part of the said scam.
vi) The factum of a dozen criminal and departmental inquiries
instituted against A-3 after 16.09.2000, also establishes that he
was being hounded and punished by the State Government
rather than rewarded.
vii) That A-3 has always held that he never accepted the directions
of the then CM about the said scam. These facts as stated above
show that it is not the normal conduct of a person who is
allegedly part of any conspiracy. Rather, his actions indicate
that he never agreed to be part of any conspiracy right from the
beginning.
viii) That the B.Ed. candidates interview results reached his office on
01.08.2000 and remained with his PA, M. L. Gupta, and A-3
did not bother to take it in his possession from him, if there was
any intention on his part to prepare a second set of lists or to
switch the lists.
ix) That even though Prem Prashant, Rajni Shekhri Sibal, P. K.
Mahapatra, and, Vishnu Bhagwan as well as R. P. Chander
were at some stage or the other, aware of the said scam taking
shape, and, had also attended meetings where some of these
officers discussed the difficulty regarding various aspects of
what was being asked of them by officials of CM office, yet
they have not been charged with being of co-conspirators;
implying thereby that merely attending the meetings in ones
official capacity and discussing the viability of what was being
asked of them, does not make them conspirators; in fact, when
called for a meeting by the CM office, a senior officer like Prem
Prashant went to a junior officers house, taking with him 2 other
officers. It is argued that this is precisely what happened with
A-3 who is asking for parity with these officers.
50. Heavy reliance has been placed on behalf of Sanjiv Kumar (A-3) upon
the decision of the Bombay High Court reported as Om Prakash Berlia and
Another v. Unit Trust of India and Others, AIR 1983 Bom 1 to contend
that in the absence of examination of the authors of the lists as witnesses, the
prosecution has failed to prove the truthfulness of the contents of the lists. It
has been urged that all the authors of the lists are arrayed as accused and,
therefore, the prosecution has failed to prove the offences, as it could not
establish the truthfulness of its contents.
IV. Whether A-3 was in a position to exert pressure
51. Learned counsel submits that much reliance is placed on the stand
taken by the accused A-6 to A-62 to show that A-3 exerted pressure on them
to sign the fake lists. With a view to discredit this impression, the following
evidence is pointed out:
i) Rajni Shekri Sibal PW -23 (Part 2/1, page 188 last Para) clearly
states that DSE (Director Secondary Education) was the co-
ordinator for effecting appointments to both the Primary and
Secondary Directorates.
ii) P. K. Mahapatra, DSE, frames complete policy regarding these
appointments, end to end, as revealed through these 9 pages of
the file. (Part 8/ D -40 /II Pg 101-109)
iii) The DSE also suggests that the third member of the DLSC, i.e,
the BEO to be nominated by the DSE himself. Pertinent to
mention here that second member Deputy DEO, reports directly
to DSE. (On Page 102)
iv) The DSE is being requested by the DPE to nominate the
DPEO's. (On pages 127 and 135). Similarly, the supremacy of
DSE over DSE is clearly revealed and established. (On Pages
28, 29, 127 & 135 as well as 182 & 184 etc.) Most of the DLSC
members have themselves deposed that their services were
regulated by the Directorate of Secondary Education.
v) Deposition of 5 defence witnesses u/s 315 Cr.P.C. in this regard
Cross of D. D. Verma, A-50/DW-1 by A-3 dated
25.07.2012
Q. Who was the next reporting authority for you when
you were posted as Dy. DEO Yamuna Nagar?
A. The next reporting authority was the DEO Yamuna
Nagar. The DEO Yamuna Nagar would be reporting to
the Director Secondary Education in Chandigarh.
Q. When you were posted as Principal DIET in Ding,
District Sirsa, is it correct that Director Secondary
Education was your controlling authority?
A. Yes, it is correct.
Q. When you were transferred four times, under whose
orders these transfer orders issued?
A. The Financial Commissioner Education & Languages
and Secretary to Education Department. To the best of
my knowledge, Sh. Prem Prashant was at this post.
Cross of Sher Singh A-23/DW-1 by A-3 dated
07/07/2012 :
It is pertinent to mention that Sher Singh had retired on
31.01.00 and so would not have been under any kind of
pressure from A-3.
―He (DC Jhajjhar) also threatened me that till the time I
do not make the second set of lists, I would not be
allowed to leave Jhajjar. It is correct that the first threat
that I received was from DC Jhajjar‖. About the
telephonic threat from A-3, Sher Singh says that, ―This
conversation did not take place face to face but over the
telephone. On telephone, I answered Sh. Sanjeev Kumar
that I will prepare the lists as directed. The then DPE
Sanjeev Kumar did not tell me as to how this second set
of list had to be made. Other than this particular episode,
there was no instance whereby Sanjeev Kumar ever
threatened or pressurized me. There was also no
previous instance of any threat or pressure from Sanjeev
Kumar‖..... ―I had never remained a subordinate of Sh.
Sanjeev Kumar.‖
Cross of Jogindar Lal, A-62/DW-1.
He retired on 31/3/2000 and in Part IV page 223 says ―I
do not know if Sanjiv Kumar was the Director at that
time. I never met Sh. Sanjiv Kumar, the DPE". So clearly
the pressure could not have come from Sanjiv kumar, A-
Urmil Sharma,A-61/DW-1 & (5) Sarwan Kumar Chawla
A-60/DW-1
They do not claim to have met Sanjiv Kumar or spoken to
him on phone and their services came under the
Directorate of Secondary education. They were not under
the administrative control of DPE.
52. With regard to the role of PW-2 and PW-5 in Haryana Bhawan, it is
submitted as per their own admission, Ravi Dutt & Milap Singh did not go
inside Haryana Bhawan where these alleged proceedings were taking place.
M.L. Gupta states (Part 2/II, page 139) that he gave the original list of
district Jind to A.S. Sangwan, A-26, which he has also stated in his statement
u/s 164 Cr.P.C. (Part 7(1), page 176) he nowhere mentions Ravi Dutt or
Milap Singh. Similarly, Sardar Singh also does not mention these two
witnesses in response to questions put to him therein. In his statement
recorded u/s 161 Cr.P.C. ( Part 7(1), page 172), and, u/s 164 Cr.P.C. (Part
7(2), page 42), Sardar Singh talks of the original list given to A.S. Sangwan,
A-26 and not to Ravi Dutt or/and Milap Singh. Both Ravi Dutt and Milap
Singh have deposed that original list was given to them.
53. Coming to the argument regarding Supreme Court list of Jind being
retrieved from a sealed envelope in November-December, 2003 it is argued
that the IO, R.N. Azad, deposes that no investigation was carried out on this
point whether the envelope of Jind carrying the Supreme Court list was in
sealed condition and whether the handwriting on this envelope is that of one
Subhash Chander, A3/DW-11. To the next question, he feigns amnesia as to
from where the Supreme Court list of Jind was retrieved in November-
December, 2003. The testimony of Pushpa Ramdeo, PW-43 has to be
considered in this light.
54. It is also argued that it is significant that A.S. Sangwan, A-26 and Ravi
Dutt have given different versions as to how the fake lists were delivered at
Chandigarh.
i) Statement of A. S. Sangwan u/s 164 Cr.P.C., Part 8/D-
135 Page No.16, 2nd para, wherein he states that ―on
5/9/2000 we sent the said list to SPD office, DPEO,
Haryana Chandigarh through Ravi Dutt and he handed
over the same to one Mr. Arora (most probably PA to Mr.
Sanjiv Kumar) at Chandigarh.‖
ii) Statement of Ravi Dutt u/s 164 Cr.P.C., Part 8/D-137,
Page No. 27, : ―The selection committee handed over the
lists after giving marks of the interview in a sealed cover
& it was deposited in Chandigarh with Mr. Sanjiv
Kumar....I had accompanied Mr. Sangwan to deliver the
said list to the PS of Mr. Sanjiv Kumar .....And the said
list was handed over to Mr. Sanjiv Kumar‖.
ARGUMENTS BY CBI REGARDING ROLE OF A-3 IN
CONSPIRACY
55. A-4 inducted A-3 as Director Primary Education by giving him
additional charge on 11.07.2000 after having met him over a breakfast
meeting on 10.07.2000, wherein the issue of changing award lists was
discussed. It is argued that if Sanjiv Kumar (A-3) had not been in agreement
with the sinister designs of O.P.Chautala (A-4) on 10.07.2000 wherein
according to his own admission in his deposition U/s 315 Cr.P.C. the issue of
changing the award lists was discussed, he would never have been endowed
with the said additional charge on 11.07.2000 on the basis of oral/informal
orders from the Chief Minister which were confirmed/approved by him on
17.07.2000 [Part 8/S.No. 7-Miscellaneous Documents exhibited from the
side of Prosecution/Pages 30 and 34-37].
56. PW-26 has deposed that A-3 used to often boast about his proximity
with the Chautala Government and this part of his deposition has gone
unchallenged in cross-examination. Furthermore, it would be relevant to
highlight that PW-26 is a senior IAS officer and had no animus or ill will to
falsely implicate any of the accused.
57. Evidence led by the prosecution in form of testimonies of PW-31,
PW-56 and PW-58, clearly establish beyond the shadow of doubt that the
original award lists which were supposed to be lying sealed in the almirah
were in fact taken out by Sanjiv Kumar (A-3) and were handed over to PW-
31 and PW-56 for the purpose of being taken to Prerna Guest House,
Panchkula, in the second-third week of August of 2000.
58. It was mandated by A-3 that the said lists be checked for ascertaining
the number of candidates from the reserved category who would encroach
upon the seats of the General Category.
59. It is highlighted that Sanjiv Kumar (A-3) has suggested to PW-31 and
PW-56 in their cross-examination that they were sent to Prerna Guest House
to compare the HARTRON lists that were collected from HARTRON on
28.08.2000 as evidenced by the gate-pass to the said effect (Part 8/D-37-D-
66/D-59/Page 2-3). However, interestingly, no such suggestion was given to
PW-58; who had also visited Prerna Guest House.
60. In order to substantiate his claim, Sanjiv Kumar (A-3) has examined
two witnesses in his defence, namely, A-3/DW-1 Daryao Singh and A-
3/DW-2 Ramji Tewari. It is submitted by the prosecution, that bare perusal
of their testimony reveals that the version deposed by the said witnesses is
ex-facie destructive to one another and, therefore, no implicit reliance can be
placed thereon.
61. Learned ASG submits that the documentary evidence (Part 8/D-37-D-
66/D-59/Page 2-3) clearly laments that on 25.08.2000 only the ascending
and descending lists of 8192 candidates were taken out from HARTRON
and not the application forms of 8192 candidates as well, as is being claimed
by Sanjiv Kumar (A-3) without any evidentiary basis. As a matter of fact,
Sanjiv Kumar (A-3) has suggested to PW-55 Mukesh Bajaj, an official from
HARTRON, that the material collected from HARTRON on 25.08.2000 was
taken out in two bags. It is highlighted that even the proforma of the
application form (Part 8/D-37-D-66/D-40(II)/Page 119-123) runs into four
pages and the same is required to be necessarily filed by the candidate along
with relevant documents in support. It is impossible for the ascending and
descending lists of 8192 candidates and also the application forms of 8192
candidates running in at least four pages each to have been carried from
HARTRON in merely two bags as suggested by Sanjiv Kumar (A-3)
himself.
62. Furthermore, file notings (Part 8/D-37-D-66/D-40(I)/Pages 81-84)
reveal that proof-reading was done by the officials of the Directorate of
Primary Education at HARTRON premises itself and the same was complete
by 14.08.2000. Therefore, there was no occasion for PW-31 and PW-56 to
have conducted any such comparison at Prerna Guest House, as suggested by
Prerna Guest House.
63. The applications forms were in fact received from HARTRON along
with the result on 03.10.2000 as the Gate-Pass (Part 8/D-37-D-66/D-59/Page
4) indicates that the Original Interview JBT records and result was being
taken out from the premises of HARTRON.
64. Therefore, it is contended that the very foundation of the evidence
sought to be tendered by the two defence witnesses of Sanjiv Kumar (A-3)
stands demolished in wake of the above-described documentary evidence.
65. Analysis of the testimony of the two witnesses examined by Sanjiv
Kumar (A-3) in his defence would reveal fundamental contradictions
between them in core areas which warrant their rejection. A-3/DW-1 Daryao
Singh; who was the Care-Taker of Prerna Guest House deposed that PW-31
and PW-56 had informed him that they had come to compare the forms of
JBT teachers with some confidential HARTRON lists. Significantly the said
fact finds no mention in his statement under Section 161 Cr.P.C. made
before the Investigating Officer during the investigation [Part 7/Vol. I/ Page
136-137]. In fact PW-31 and PW-56 had not even suggested in cross-
examination by Sanjiv Kumar (A-3) that they had such a conversation with
Daryao Singh, which casts serious suspicion on the veracity of the evidence
of this witness. It is not the case that Sanjiv Kumar (A-3) was not aware of
the existence of Daryao Singh at the time of cross-examination of these
witnesses as his name has figured in questioning therein. Sanjiv Kumar (A-
3) has thus not laid the foundation of his defence evidence at the earliest
opportunity which materially detracts its credibility. A-3/DW-1 Daryao
Singh deposed that Balram Yadav (PW-58) had also visited Prerna Guest
House to assist PW-31 and PW-56. However, curiously, he later volunteered
that he had inquired from PW-31 and PW-56, and they informed that Balram
Yadav did not visit the Prerna Guest House as he was not required. A-3/DW-
1 Daryao Singh further deposed that in pursuance of the request of PW-31
and PW-56, he provided them one room along with the keys of the room and
its almirah. Per contra, A-3/DW-2 Ramji Tiwari has struck a discordant note
and has deposed that he had permitted PW-31 and PW-56 to do their
assigned work by providing space in corner of the hall which was being used
for their workshop. It is submitted that the said contradiction goes to the root
and is, therefore, fatal to the version sought to be projected by Sanjiv Kumar
(A-3). Again no suggestion was given to PW-31 and PW-56 during their
cross-examination that they had informed Ramji Tiwari that they were proof
reading HARTRON lists. It also assumes significance that A-3/DW-2 Ramji
Tiwari was employed on contractual basis and his contract was renewed by
Sanjiv Kumar (A-3). It is, therefore, submitted that Ramji Tiwari is a pliable
witness for the defence but not a reliable witness for the Court.
66. It is thus evident that the explanation coined by Sanjiv Kumar (A-3)
and sought to be corroborated by the defence-witnesses that HARTRON lists
were being compared with the application forms at Prerna Guest House by
PW-31 and PW-56, is fatuous and negatived by the positive documentary
evidence led at trial.
67. It has been contended that the prosecution has failed to prove with
exactitude when, how and by whom the seal of almirah was broken open and
in absence of same. Apropos the contention raised on behalf of Sanjiv
Kumar (A-3), it would be suffice to state that since Sanjiv Kumar (A-3) was
the custodian of the said almirah which was lying in his room behind a
wooden screen, it is virtually impossible and unrealistic for the prosecution
to adduce direct evidence on such terms as these facts lie within the
exclusive knowledge of the accused. In view of the unequivocal mandate of
Section 106 of the Indian Evidence Act, the facts evidently lie within his
special knowledge and the onus shifts upon him to tender explanation as to
how and under what circumstances the fake/fresh award lists have been
implemented. However, the prosecution, as highlighted earlier in the
preceding paragraphs, has successfully proved at Trial that the original
award lists (Supreme Court Lists) which were supposed to be lying sealed in
the almirah, were in fact handed over to PW-31 and PW-56 by Sanjiv Kumar
(A-3) himself in the second or third week of August. In view thereof, no
further evidence is required to be adduced by the prosecution to prove that
the original award lists were removed from the almirah much before 16-09-
2000.
68. Call records evidencing telephonic exchange between him and Ajay
Chautala (A-5) on 27.07.2000 and 30.08.2000. The said evidence has not
been denied by Sanjiv Kumar (A-3)[Part 8/D-80-161/D-93-Call records from
Delhi and Part 8/D-80-161/D-94-Call records from Chandigarh].
69. Furthermore, Sanjiv Kumar (A-3) has himself deposed in his
testimony when he entered the witness-box that he spoke to Ajay Chautala
(A-5) on 01.09.2000.
70. That it is proved by own admission of Sanjiv Kumar (A-3) in his
deposition u/s 315 Cr.P.C. that he attended the meetings at Punjab Guest
House, Chandigarh and Haryana Bhawan, Delhi, where several members of
the various District Level Selection Committees were also called for creation
of new award lists.
71. Numerous accused persons (A-6, A-7, A-8 and A-59) in their
statements recorded under Section 313 Cr.P.C. state that they attended the
meeting at Punjab Guest House. The TA details of Prem Behl- DPEO
Ambala (A-6) indicate that she travelled to Chandigarh on 30.08.2000 [Part
8/D-37-D-66/D-65/Page 3]. PW-49 and PW-56 also depose with regard to a
meeting held at the Punjab Guest House wherein several committee
members of various districts had been called for preparation of fresh award
lists and the photocopies of the original list were offered to them for the said
purpose.
72. Depositions of D.D.Verma (A-50) and Sher Singh (A-23) in terms of
section 21 of P.C.Act/Section 315 of Cr.P.C. to the effect that they were
being pressurized by Sanjiv Kumar (A-3) at Haryana Bhawan to create new
award list.
73. Testimony of PW-31 and PW-56 affix the presence of Sanjiv Kumar
(A-3) at Haryana Bhawan, Delhi on 01.09.2000 and also highlight the
prominent role played by him in the said meeting, wherein he addressed the
members of the selection committees on the issue of award of marks in the
interviews for appointment of JBT teachers. Sanjiv Kumar (A-3) is also
stated to have announced that the original award lists were available and the
members of the District Level Selection Committee could get the same
photocopied, if they did not already have the copy of the same.
74. Overwhelming evidence available on record to the effect that many
members of various District Level Selection Committees attended the
meeting at Haryana Bhawan-Delhi on 01.09.2000. Testimony of PW-2 and
PW-5 sheds light in this regard and is also corroborated by clinching
documentary evidence in form of notings in the Telephone Register-
Jind[Part 8/D-99/Page 4] about the communication received from the Office
of the Chief Minister on 30.08.2000 that a meeting at Haryana Bhawan-
Delhi must be attended by DPEO-Jind on 01.09.2000 and entry in the
vehicle log-book in this regard[Part 8/D-101/Page 58]. Various District
Selection Committee members admit to their presence at Haryana Bhawan in
their statements under Section 313 Cr.P.C.
[A-9,A-13,A-16, A-17, A-18,A-20,A-24, A-26, A-27, A-28, A-46, A-
47, A-48, A-50, A-51, A-52 and A-56].
75. PW-56 has deposed that after the meeting at Haryana Bhawan, Delhi
on 01.09.2000 some DPEO's were also called at the Office of the Director of
Primary Education for preparation of fresh award lists and the photocopies of
the original list were offered to them for the said purpose.
76. The Chairperson of District Selection Committee-Bhiwani [A-9] and
Karnal [A-29] during their statements under Section 313 Cr.P.C have
indicated that they visited the office of Sanjiv Kumar (A-3) on 04.09.2000
with regard to the preparation of fresh award lists.
77. Member of District Selection Committee-Kaithal [A-35] has stated
during his statement under Section 313 Cr.P.C. that he visited office of
Sanjiv Kumar (A-3) on 06.09.2000 with regard to the preparation of fresh
award lists.
78. Substitution of the original award lists (Supreme Court Lists) by
newly created award lists (Directorate Lists) which were prepared in the year
2000 (end of August and early September).
79. Addressing the argument on proving of lists only by the authors i.e.
the committee members, Mr. Khanna points out that the decision in Om
Prakash Berlia (Supra) pertains to a civil suit pending adjudication before
the Bombay High Court, wherein the question arose -―If the truth of the
contents of an extract of annual returns certified to be true by the Registrar
under Section 10 of the Companies Act, 1956 is prime facie established by it
being exhibited as evidence.‖
80. After noticing various provisions of the Evidence Act, 1872 and
judgments rendered by various Courts on the subject, it was observed as
under:
―6. Secondly, Ss. 61 and 62 read together show that the
contents of a document must, primarily, be proved by the
production of the document itself for the inspection of the
Court. It is obvious that the truth of the contents of the
documents, even prima facie, cannot be proved by merely
producing the document for the inspection of the Court.
What it states can be so established.
7. Thirdly, it is laid down that the writer of a document must
depose to the truth of its contents. ...
12. The Act requires, first the production of the original
document. It the original document is not available,
secondary evidence may be given. This is to prove what the
document states. Upon this the document becomes
admissible, except where it is signed or handwritten, wholly
or in part. In such a case the second requirement is, under S.
67, that the signature and handwriting must be proved.
Further, where the party tendering the document finds it
necessary to prove the truth of its contents, that is the truth
of what it states, he must do so in the manner he would
prove a relevant fact.As the cases of BishwanathRai (AIR
1971 SC 1949); MadholalSindhu (AIR 1954 Bom 305); and
Mr. D. (AIR 1968 Bom 112) indicate, this is generally done
by calling the author of the document.
13. ... Secondary evidence of a public document so led only
proves what the document states, no more. In other words,
he who seeks to prove a public document is relieved of the
obligation to produce the original. He can produce instead a
certified copy. All other requirements he must still comply
with.
14. ... A consideration of the relevant provision of the
Evidence Act clearly showed the Court that the only
difference which the Act made between public and private
documents was in regard to the form of secondary evidence
which is admissible viz. a certified copy, and in regard to
the presumption of the genuineness of the certified copy; in
all other respects, no distinction was drawn by the Act
between public and private documents.‖
81. In view of the law laid hereinabove, the Bombay High Court was
pleased to repel the contention that a certified copy of a public document
proved prime facie the truth of its contents. However, in view of the mandate
of Sections 159 and 164 of the Companies Act, 1956, the Bombay High
Court was pleased to hold that prime facie the truth of contents was
established.
82. Mr. Khanna contends that the Om Prakash Berlia judgment (Supra) is
of no avail and has no applicability to the present case wherein the gravamen
of charge against the accused is commission of forgery of the lists. It is a
settled proposition of law that the gist of the offence of forgery pertains to
falsity of execution and not the falsity of the contents/ recitals of the said
document. Reliance is placed upon the luminous observations comprised in
the judgment of the Andhra Pradesh High Court The Public Prosecutor v.
ThallGangadharudu reported as (1956) ALT 678.
83. The said position of law is similar in foreign jurisdictions as well and
it has been eloquently observed by Court of Appeals for the Tenth Circuit,
United States of Americain Wayne S. Marteney v. United States of
America, [216 F.2d 760]:
―...As used in criminal statutes, the words "falsely made"
and "forged" are homogeneous, partaking of each other.
They have always been synonymously construed to describe
a spurious or fictitious making as distinguished from a false
or fraudulent statement. The words relate to genuineness of
execution and not falsity of content."
84. The said observations have been cited with approval by the United
States Supreme Court in R. Milo Gilbert v. United States [370 U.S. 650
(1962)].
85. It would also be apposite to draw attention of this Hon'ble Court to the
view of the eminent author- Dr. Hari Singh Gour expressed in his celebrated
treatise - Penal Law of India, 11th Edition, 2013. The views expressed by the
said author in the above mentioned treatise on various nuances of law have
been cited with approval by the Supreme Court and other Courts.
86. At page nos. 4449-4450; Volume IV, the author has opined that the
mere fact that a document contains false recitals or statements would not
make it an offence of forgery within the meaning of Section 463 IPC.
87. At page no. 4471; Volume IV, the author has opined that the mere
making of the document, some recitals whereof are at variance with the
reality, does not constitute an offence of forgery.
88. Therefore, it is established beyond pale of controversy that in a
prosecution for the offence of forgery, as in the present case, the truthfulness
or the falsity of the contents/recitals of the forged document is irrelevant and
the prosecution is not obliged to labour on the said aspect. The prosecution is
required to prove that the ‗Directorate Lists' were not contemporaneously
prepared in December, 1999 when the interviews were conducted by the
District Level Selection Committees, but much later, and the original lists
were substituted.In the present case, the date/timing of preparation of the
‗Directorate Lists' is the fact-in-issue. The observations of the Bombay High
Court are applicable in cases where a litigant desires or is required under law
to establish the truthfulness of the contents of the document and in such a
situation, the said fact must be proved in the manner prescribed by law,
which is generally done by summoning the author of the document.
89. Furthermore, even the judgment of the Bombay High Court in Om
Prakash Berlia's case (Supra) clearly permits that the contents of a
document-‗What it says' can be read in evidence upon the production of its
original for the inspection of the Court. However, it imposes an embargo that
if a litigant is required to establish the truth of such contents, then the mere
production of the said document for inspection of the Court would not
suffice.
90. Interestingly, even otherwise, the inherent fallacy of the said argument
canvassed on behalf of Sanjiv Kumar (A-3) can also be evidenced by the fact
that if the same is accepted to be correct, then in no case an author of a
forged document could be convicted for the offence of forgery, as the
prosecution would be mandatorily required to make him step in the witness-
box as a witness to testify for his own misdeeds. Article 20(3) of the
Constitution of India mandates that no person shall be compelled to be a
witness against himself. Such a situation would be a ‗theoretical absurdity
and practical impossibility' and the same is rightly not countenanced by the
makers of Section 464 IPC; who in their wisdom did not choose to telescope
‗falsity of content' of a document as an ingredient of the offence of forgery.
The said argument, therefore, is ex-facie misconceived, frivolous and is
liable to be rejected.
91. With reference to the facade of de-sealing of almirah before the
members of the result compilation committee, it is argued that the same was
done on 16.09.2000. The memorandum (Part 8/D-42-D-53/D-42/Page 23)
prepared to this effect was vague and did not even exhibit the minimal
degree of specificity, which was expected to be present in genuine
proceedings. Mr. Khanna argues that curiously, the memorandum does not
even describe the nature of sealing (use of One Rupee Coin and white cloth)
and there is no reference of any sealing panchnama to have been shown to
the members of the result compilation committee; who could have thereafter
been in a position to ascertain the fact that the original seals were intact.
92. Furthermore, the opinion of the GEQD [Part 8/D-42-D-53/D-53/Page
104] scientifically establishes beyond pale of controversy that factum of
videography has been added to the memorandum dated 16.09.2000 later and
interestingly, the documentary record in form of bills highlighted by A-3 to
lend credence to his false claim of videography of de-sealing proceedings
infact pertains to a three day event and the memo is dated 25.08.2000 (much
before 16.09.2000). The said bill of S.K. Studio was cleared later and was
wittingly depicted in the file noting [D-80-D-161/D-105/Pages3-4] to have
pertained to videography of JBT proceedings.
93. PW-19, Santosh Kumari Sharma, owner of S.K.Studio has clearly
deposed that their studio conducted no videography on 16.09.2000, however,
some job for the department was done earlier. She also deposed that in
March, 2004, one person namely - Sushant Swain contacted her
telephonically and told her to make a statement that videography was done
by her firm on 16.09.2000, however, she refused to make such a statement. It
would be worthwhile to highlight that the said Sushant Swain has also
stepped as a defence witness [A-3/DW-3] for Sanjiv Kumar (A-3).
94. It also assumes significance that during cross-examination of the
Investigating Officer- R.N Azad (PW-63), Sanjiv Kumar (A-3) put a leading
question recorded at foot of Page 324, which continues at Page 325 [Part
2(II)] wherein the factum of videography being conducted in the
proceedings dated 16.09.2000 was not even put by him to the witness. In
response, the Investigating Officer- R.N Azad (PW-63) refuted the sanctity
of the proceedings dated 16.09.2000 and also stated that no videography was
done. Thereupon, Sanjiv Kumar (A-3) gave a quiet burial to the issue and did
not put it to PW-63 that he is lying or has wrongfully withheld/destroyed the
videography.
95. A-4 praising A-3 on 18.09.2000 at a function when the task assigned
to Sanjiv Kumar (A-3) was successfully executed. The factum of such
praises has been deposed to by Sanjiv Kumar (A-3) himself in his deposition
in terms of section 21 of P.C. Act / Section 315 of Cr.P.C.
96. False and misleading stand taken by Sanjiv Kumar (A-3) before the
Supreme Court and Trial Court which snowballs as an additional
circumstance in the chain of evidence against him. Therefore, the falsity of
the defence plea adds as an additional link in chain of evidence against
Sanjiv Kumar (A-3).
ARGUMENTS ADVANCED ON BEHALF OF A-4
LEGAL ARGUMENTS
97. Learned Senior Advocate Mr. R.S. Cheema appearing on behalf of A-
4 and A-5 has cantered his legal arguments on two vital aspects:
i) Admissibility of statement of A-3, given under Section 315
Cr.P.C., to prove incriminating evidence against the appellants A-4
and A-5
ii) The effect of such incriminating evidence
In terms of the extent of reliance that can be placed on
evidence of such witness and,
In default of the same not being put to the appellants for
their explanation under Section 313 Cr.P.C.
98. Factually, in the present case, 6 appellants (A-3, A-23, A-50, A-60, A-
61 and A-62) have stepped into the witness box, on their own application,
and given evidence on oath under Section 315 Cr.P.C. The prosecution is
relying on such evidence of the Committee members as incriminating
evidence against A-3 and the evidence given by A-3 in his statement under
Section 315 Cr.P.C. is being relied upon to as incriminating evidence against
A-4.
Admissibility
99. Learned Senior Counsel Mr. Cheema has vehemently argued that
Section 315 Cr.P.C. permits an accused to appear as a witness with the
object of giving evidence to either defend himself or his co-accused. This
provision does not envisage a situation where an accused assumes the role of
a complainant or whistle blower and starts giving evidence to prove the
charge against a co-accused. The deposition of an accused on such lines is
diametrically opposed to the spirit of the provision besides being in conflict
with the purpose for which such permission is granted.
100. Learned Counsel relies on the case reported as Yusufbhai alias
Isubbhai Umarbhai Mallek v. State of Gujarat and Anr., 2009 Cri L J
4015, wherein the scope of Section 315 Cr.P.C. has been discussed
elaborately. The relevant portions of the judgment are reproduced below:
―18. It further appears that after recording of the statements
of all the accused under Section 313 of the CrPC, A-1 wanted
him to be examined as the witness for defence and the
learned Sessions Judge has permitted so under Section 315 of
Cr.P.C. In the deposition of A-1 he has deposited in
confirmity with the confessional statements made before the
learned Magistrate dated 18-11-1998. Section 315(1) of CrPC
Reads as under:
315. Accused person to be competent witness.- (1) Any
person accused of an offence before a Criminal Court
shall be a competent witness for the defence and may
give evidence on oath in disproof of the charges made
against him or any person charged together with him at
the same trial;
Provided that-
(a) he shall not be called as a witness except on his own
request in writing;
(b) his failure to give evidence shall not be made the
subject of any comment by any of the parties or the
Court or give rise to any presumption against himself
or any person charged together with him at the same
trial.
19. The aforesaid provisions show that what is required for
availing the benefits as per the provisions as contained in the
Section is; (1) that there must be a trial in the criminal Court;
(2) person applying to be examined under the provisions of
the said provisions would be necessarily an accused; (3)
when the stage of invoking the provisions of the said Act has
reached i.e. to say after conclusion of record of evidence of
the prosecution followed by the explanations/submissions of
the accused as required under Section 313 of CrPC., is over;
(4) the evidence as such accused may adduce will be on oath
as a witness and lastly; (5) such evidence must be in
disproving of the charges made against him or any person
charged together with him at the trial. Therefore, if the
evidence is given by accused after the examination under
Section 313 of Cr. P.C., and under Section 315 of CrPC., it is
required to be considered in light of the aforesaid provisions
of Section 315 of Cr.P.C. The pertinent aspect is that such
evidence must be in disproving of the charges made against
him or any person charged together with him at the same
trial. Therefore, the nature of evidence cannot be for
strengthening the case of the prosecution to prove guilt of any
of the accused, but must be in disproving of the charges made
against him. The evidence of A-1 as recorded by the learned
Sessions Judge shows that the same is not in disproving of
the charges made against him or in disproving of the charges
made against any person together with him at the trial, but is
to prove the guilt of A-1 himself and/or other co-accused
namely; A-2 and/or A-3. Therefore, such evidence so far as it
relates to not in disproving of the charges, could be said as
beyond the scope of Section 315(1) of CrPC for the purpose
of deciding the case before the learned Sessions Judge. It is
an admitted position that the learned Sessions Judge has not
considered the said aspects and if this Court is to examine the
said aspects, the deposition of A-1 under Section 315, so far
as it relates to involvement of A-1 himself and other co-
accused namely; A-2 and A-3, since is not in disproving of
the charges, cannot be considered since the same would be
outside the scope of Section 315(1) of CrPC.
20. If the confessional statements of A-1 is found as, as
observed earlier, non-trustworthy and if the deposition of A-1
under Section 315 is excluded, since the same is not in
disproving of the charges made against him or other co-
accused, the whole premise or the basis of the case of the
prosecution would fall to ground and the very substratum of
the case of the prosecution would be lost. The reason being
that the whole case of the prosecution is based on
circumstantial evidence and the basis of the prosecution is the
confessional statements of A-1, which itself is found as non-
trustworthy by this Court as referred to herein-above. The
second basis, if any, could be the deposition of A-1 under
Section 315, but as observed hereinabove, since the same is
not in disproving of the charges and, therefore, beyond scope
of Section 315(1) of CrPC., and, therefore, excluded, the
effect would be that the second basis of the case of the
prosecution would also not available. The pertinent aspect is
that A-1 was initially cited as the witness by the prosecution
and thereafter has been dropped as the witness by the
prosecution. Therefore, even otherwise also for proving the
case, the prosecution could not legitimately rely upon the
evidence of A-1, whatever may be the legal value to be
attached to the same.‖
101. Learned Counsel strongly relies on the test of admissibility laid
down in Yusufbhai (supra) to contend that the statement of a co-accused
under Section 315 Cr.P.C. is limited in its application towards ‗disproof' of
charges against either the concerned accused himself or a co-accused. The
test of admissibility being whether the witness is stepping into the witness
box to fulfill the objective stipulated in the provision and not with a view
to pass on the buck and implicate others.
102. Learned Counsel illustrates the distinct difference between
establishing innocence of oneself through evidence and testifying on oath
with the sole object of implicating others through evidence of their guilt. In
a case of possession of narcotics, a person sitting beside the owner as well
as the driver of the car may be permitted to take the stand that though they
were present at the time of seizure yet the container did not belong to them.
In the present case, the statement of the co-accused (A-3) is not in disproof
of charges against him rather it is being used by the prosecution to ascribe
and prove guilt of A-4 which is not contemplated by the provision of
Section 315 Cr.P.C.
Reliability of accomplice evidence
103. An accomplice is one who knowingly, voluntarily and with common
intent unites with others for commission of a crime. Accomplice evidence
anyway suffers from a memorable taint and, therefore, needs to satisfy the
requirement of self incrimination in order to lend credence to itself.
Learned Counsel argues that A-3 being an accomplice in crime, his
evidence has to be considered on those parameters.
104. It is argued that in the instant case, A-3 has been least worthy of
credence. He claimed to be a whistle blower and misdirected the
investigation as well as the Supreme Court from the very inception in order
save his own skin. His statement under Section 315 is wholly exculpatory
and he has not proved to be a truthful witness. Other co- accused have
admitted their presence at the relevant meetings while truthfully deposing
the involvement of A-3 and the pressure exerted by him on them.
Therefore, the weight of his evidence has to be seen in this light to decide
whether is worthy of reliance.
105. Learned Counsel next traces the guiding principles evolved by the
Supreme Court in order to appreciate the evidence of such witness.
Reliance is placed on Kashmira Singh v. State of Madhya Pradesh, AIR
1952 SC 159 to urge that even in case of confession, where the statement is
required to be inculpatory, the approach of Court is to weigh the testimony
independent of the confession. Relevant para is extracted below:
―11. Translating these observations into concrete terms they
come to this. The proper way to approach a case of this kind
is, first, to marshal the evidence against the accused
excluding the confession altogether from consideration and
see whether, if it is believed, a conviction could safely be
based on it. If it is capable of belief independently of the
confession, then of course it is not necessary to call the
confession in aid. But cases may arise where the judge is not
prepared to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain a
conviction. In such an event the judge may call in aid the
confession and use it to lend assurance to the other evidence
and thus fortify himself in believing what without the aid of
the confession he would not be prepared to accept.‖
106. Elaborating on the requirement of reliability of approver's evidence,
the case reported as Sarwan Singh v. State of Punjab, AIR 1957 SC 637
is cited. Relevant paras are extracted below:
―7. On behalf of Harbans Singh, it has been urged before us
by Mr. Kohli that the judgment of the High Court of Punjab
suffers from a serious infirmity in that, in dealing with the
evidence of the approver, the learned Judges do not appear to
have addressed themselves to the preliminary question as to
whether the approver is a reliable witness or not. The
problem posed by the evidence given by an approver has
been considered by the Privy Council and courts in India on
several occasions.
It is hardly necessary to deal at length with the true legal
position in this matter. An accomplice is undoubtedly a
competent witness under the Indian Evidence Act. There can
be, however, no doubt that the very fact that he has
participated in the commission of the offence introduces a
serious stain in his evidence and courts are naturally reluctant
to act on such tainted evidence unless it is corroborated in
material particulars by other independent evidence.
It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story
or even all the material particulars. If such a view is adopted
it would render the evidence of the accomplice wholly
superfluous. On the other hand, it would not be safe to act
upon such evidence merely because it is corroborated in
minor particulars or incidental details because, in such a case,
corroboration does not afford the necessary assurance that the
main story disclosed by the approver can be reasonably and
safely accepted as true.
But it must never be forgotten that before the court reaches
the stage of considering the question of corroboration and its
adequacy or otherwise, the first initial and essential question
to consider is whether even as an accomplice the approver is
a reliable witness. If the answer to this question is against the
approver then there is an end of the matter, and no question
as to whether his evidence is corroborated or not falls to be
considered.
In other words, the appreciation of an approver's evidence has
to satisfy a double test. His evidence must show that he is a
reliable witness and that is a test which is common to all
witnesses. If this test is satisfied the second test which still
remains to be applied is that the approver's evidence must
receive sufficient corroboration. This test is special to the
cases of weak or tainted evidence like that of the approver.‖
107. Learned Counsel relies on Tribhuvan Nath v. State of
Maharashtra, (1972) 3 SCC 511 to urge that even in Tribhuvan (supra)
the Supreme Court has emphasized the importance of double test in case of
approver's evidence. Relevant paras are extracted below:
―30. As aforesaid, the evidence of Puransingh, Elavia and
Mosin Burmawalla was held by the Trial Judge as
accomplice evidence in that each of them had in one way or
the other helped the accused in furthering their objectives. In
such a case the duty of the court apprising the evidence
clearly is to apply the double test as laid down in Sarwan
Singh v. State (1902) 1 K.B. 882. The court, therefore, has
first to see whether the evidence of an accomplice is reliable,
and secondly, even if it is so, whether it is corroborated in
material particulars by other independent evidence, direct or
circumstantial. An Sarwan Singh's case 1957CriLJ1014
points out, the test of reliability is the same as the one applied
to all witnesses. Therefore, it does not mean that an
accomplice's evidence cannot be relied upon unless it is
totally and absolutely blemishless. In majority of cases such
is not the case and inspite of some discrepancies and other
such infirmities, courts have often found it safe to act on the
evidence of such witness. A case illustrating this proposition
is to be found in Sarvanabohavan v. Madras 1966CriLJ949
where the evidence of the approver contained certain
discrepancies and was also contradicted by the testimony of
another witness and yet that evidence was held to pass the
test of being credible and was accepted as it was also
corroborated by other evidence. Regarding the second test,
that is, of the necessity of corroboration, such corroboration
need not, on the one hand, be of every particular given by an
accomplice, and on the other hand, of only minor particulars.
The corroboration must be adequate enough to afford the
necessary assurance that the main story testified by the
accomplice can be reasonable and safely accepted as true.
Ramanlal v. The State, AIR 1960 SC 961.
108. Learned Counsel has relied on K. Hashim v. State of Tamilnadu,
AIR 2005 SC 128, State of Maharashtra v. Abu Salem, 2010 (10) SCC
179, Suresh v. State, 1991 Cri L J 859, Ranjeet Singh v. State of
Rajasthan, AIR 1988 SC 672, Abdul Sattar v. Union Territory,
Chandigarh, AIR 1986 SC 1438, Chonampara Chellappan v. State of
Kerala, AIR 1979 SC 1761, Lal Chand v. State of Haryana, AIR 1984
SC 226, to urge the argument of corroboration.
109. The second limb of this legal argument is that assuming but not
conceding admissibility of such evidence, what can be the value thereof in
absence of the same not being put to the concerned accused for his
examination under Section 313 Cr.P.C. The mandate of Section 313
Cr.P.C. is a derivative of the maxim audi alteram partem, an epitome of the
principles of natural justice considered constitutionally sacred for the
benefit of the accused. Perfunctory examination under the provision,
resultantly depriving the accused of explaining his version on incriminating
evidence against him defeats the very purpose of such examination
reducing it to an empty formality.
110. It is submitted that while right to cross examine a witness is a
valuable right, the right to lead defence evidence is a separate and
independent right. When the accused was allowed to lead defence
evidence, he merely had to meet the case of the prosecution and any other
additional evidence led by a co-accused was not within the zone of
consideration at the time. After additional, highly incriminating evidence
has come forth, the accused has a right to further meet such evidence
through his own defence evidence and that right cannot be washed down
merely because he was given the right to cross examine such co-accused.
The Court is under a legal obligation to record a supplementary statement
under Section 313 Cr.P.C. in order to consider the explanation given by the
accused to such additional evidence.
111. It is further submitted that in the instant case, incriminating evidence
that has come forth by way of statement of a co-accused under Section 315
Cr.P.C. has additionally been used as a material circumstance to prove
guilt of the appellant A-4. Therefore, such omission on the part of the Trial
Judge leads to the indubitable conclusion that such circumstances that were
not put to the appellant could not be taken into account against him and
had to be ruled out of consideration.
112. Learned Counsel supports this contention through various judgments
reported as Akhtar Mohammad v. Emperor, AIR1927LAh720, Ibrahim
v. Emperor, AIR 1933 Sindh 49, Hooghly Chinsura Municipality v.
Keshab Chandra Pal, AIR 1933 Cal 347, Channu Lal v. Rex, AIR 1949
All 692, Bhiari Singh Madho v. State of Bihar, AIR1954SC692, Hans
Raj & Anr v. State, AIR 1966 HP 52, Balwant Kaur v. Union Territory of
Chandigarh, 1988 (1) SCC 1, Jagannath Sah v. State of Assam, 1993 Cri
L J 3704, Lallu Manjhi v. State of Jharkhand, 2003 (2) SCC 401, Kuldip
Singh v. State of Delhi, 2004 (12) SCC 528 and Ashraf Ali v. State of
Assam, 2008 (16) SCC 328.
FACTUAL ARGUMENTS
113. At the very outset is it urged by Counsel for the appellant that none
of the prosecution witnesses have implicated the appellant directly. The
circumstances pressed into service by the prosecution to prove the element
of conspiracy as emerging from the official record are as under:
i) Taking the selection of JBT Teachers out of the purview of
Haryana Staff Selection Commission and entrusting it to the
District Level Selection Committees under the Directorate of
Primary Education.
ii) The transfers and appointment to the post of Director, Primary
Education.
iii) Enhancement of marks for the interviews/viva voice from
12.5% to 20%.
iv) The passing of message to DPEO Jind on 30.08.2000 from the
office of the Chief Minister instructing the Committee
Members and others to reach Haryana Bhawan, New Delhi
along with the record on 01.09.2000.
Cabinet Decision
114. It is urged that the note Ex.PW-38/DE enlisting the proceedings of
the meeting of the Council of Ministers would show that that issue of
shortage of JBT Teachers was taken up by the then Education Minister as
opposed to the then Chief Minister A-4. The Education Minister suggested
the need to fill the existing vacancies through special selection by
authorized Departmental Committees by taking these posts out of the
purview of the Haryana Staff Selection Committee. It is pointed out from
the note that the Council of Ministers after deliberations approved the
proposal and it was a collective decision of the Cabinet. It is further
clarified that the permission of the Chief Minister was only required to take
up the item in the said meeting as the same was not in the agenda. It is,
therefore, argued that merely the fact of the Chief Minister's permission
cannot be seen as a fortuitous circumstance to show malice or evidence of
conspiracy. This argument is fortified with the fact that the CBI did not
examine any other Cabinet Minister who was part of this Cabinet decision.
115. Learned Counsel draws support from the testimony of PW-16 to
depict the factual state of affairs and the reasoning behind the Cabinet
decision. PW-16 has deposed that there were thousands of vacancies of
JBT teachers in the State of Haryana and that Primary Education at that
time was in a state of utter neglect. He states that attrition was on account
of superannuation/casualty which is around 3% annually and if teachers are
not recruited then the vacancies keep getting accumulated. He admits that
recruitment of JBT teachers is the duty of the Staff Selection Commission
but there had been some failure somewhere which led to this situation. He
admits the suggestion that the decision of the Cabinet on 08.09.1999 to
take out posts of JBT teachers from the purview of the Staff Selection
Commission was in view of the existing circumstances i.e. immediate
filling of the large number of JBT teachers. He also states that in his
opinion, this was the best course for expediting the process of selection.
116. PW-38 and PW-62 have also deposed to the effect that the
recruitment was entrusted to DOP as the HSSC process was too lengthy
and time consuming. It was also stated that there was huge shortage of
teachers and whenever selection of particular staff is required urgently, the
Government takes steps to take out the selection of the same from HSSC in
order to make selections expeditiously.
117. It is, therefore, stressed that the Cabinet decision was taken in
accordance with the settled procedure by a competent authority and as per
the Rules of Business. There has been no allegation of pressure or of any
special interest taken by A-4 from any person in the Cabinet and in view of
the consistent testimony depicting the sordid state of affairs in primary
education it was indeed a requirement to entrust the selection process with
DOP.
118. Another complementary argument is that the said decision was taken
in the year 1999 and a new government took office under A-4 in March
2000. If the object was to manipulate the selection process, it would have
been easier to do so by scrapping the previous decision and enlarging the
size of the Haryana Staff Selection Commission. It is argued that it is
simpler to manoeuvre selection in a small centralized body than in a large
decentralized body of more than 50 persons spread over 18 districts of the
State. Therefore, the allegation does not seem plausible of logical human
conduct.
Transfer of R.P. Chander
119. It is alleged by the prosecution that the transfers of R.P. Chander and
subsequently Ms. Rajni Sekhri Sibal were in furtherance of the conspiracy
and with a view to appoint a person favorable to the main conspirators.
Learned Counsel relies on the statement of PW-38 himself to meet this
allegation. PW-38 admitted that on 24.04.2000, he had recorded a note
mentioning that the work for the declaration of the result may be assigned
to HARTRON and marked the file to FCEL and on 27.04.2000 FCEL
recorded his note on the said file. On being questioned regarding his
transfer on 26.04.2000 being as soon as he sent the note for declaration of
results, he admitted that he had sent the note on 24.04.2000, however he
did not think his transfer had anything to do with the note.
120. Learned Counsel submits that a new government essentially re
arranges the bureaucratic set up leading to routine transfers, which was
essentially the case here. There is no evidence to show that there existed
any enmity between A-4 and PW-38 or that he had defied the instructions
of the former in any manner. It is also submitted that PW-63, the
Investigating Officer was put a specific question regarding the motive
behind transfer of PW-38 to which he replied that he did not make any
enquiry into the same.
Transfer of Rajni Sekhri Sibal
121. Prosecution relies on the transfer of PW-23 to evidence the fact that
since she was not cooperating in effecting the conspiracy, therefore, she
was transferred.
122. Learned Counsel submits that PW-23 through her own admission
had requested for her transfer a day after the sealing of the almirah.
Though she was unable to conclusively affix the date for this request,
however, it has been established that the sealing took place on 20.06.2000.
Therefore, as per her own version she made a request for transfer on
21.06.2000. It is pointed out that her order of transfer was finally issued on
11.07.2000, nearly 3 weeks after the request. The factum of her transfer
being at her own request is further corroborated by the deposition of
Vishnu Bhagwan A5/DW1 to whom she had made the request. No
suggestion was put to either witness that PW-23 had not approached
Vishnu Bhagwan with such a request.
123. The second limb of the argument is that A-3 was in no manner the
chosen official showing favour towards either A-4 or A-5. Vishnu
Bhagwan in his cross examination is specifically put a suggestion that it
was the then CM and not him who had suggested the name of A-3 to take
over the charge as Director Primary Education. Denying the suggestion he
has stated that he suggested A-3 as he already had the experience of
working in that department as Incharge of DPEP.
Enhancement of interview marks
124. It has been alleged by the prosecution that in order to achieve the
purpose of tinkering with the selection process and to ensure selection of
favored candidates, a meeting was held on 10.11.1999 under the
chairmanship of A-4 wherein besides the fixing of norms of selection by
DLSCs, the marks for interview were enhanced from 12.5% to 20%. For
this purpose, the prosecution relies on a note Ex.PW-38/E which notes that
a meeting chaired by the Chief Minister and attended by the Finance
Minister, Minister of State for Education, the Advocate General, the PS-
CM, the Secretary Finance, Finance Secretary Education and others was
held on 10.11.1999. The break-up of marks for each category towards
selection were enlisted and the marks allotted for interview were
mentioned 20 out of 100. This note is signed by PW-16, PW-38 and others.
125. Learned counsel submits that the instant note does not bear the
signature of A-4 and his presence at any such meeting is not conclusively
established. Even otherwise, enhancement of marks would not constitute
any incriminating evidence in furtherance of conspiracy.
Note instructing DPEO Jind to reach Haryana Bhawan on 01.09.2000
126. Prosecution has alleged that Dhup Singh, DPEO Jind had received a
telephonic message recorded in the telephone register (D-99) on
30.08.2000 from PW-9, Shadilal Kapoor, P.A to PW-1 Sanjeev Kaushal,
Addl. Principal Secretary-II to the then Chief Minister (A-4) to instruct
DPEO Jind and A-26 Ajit Sangwan and other members of JBT Selection
Committee, Jind to reach Haryana Bhawan, New Delhi along with records
on 01.09.2000. A-26, Ajit Sangwan had endorsed it ―Seen and Signed‖.
PW-1 Sanjeev Kaushal Addl PS-II to Chief Minister had communicated
this message to PW-9 Shadi Lal Kapoor on instructions received from the
office of Chief Minister, A-4.
127. Learned Counsel has strongly challenged this allegation in wake of
the testimony of PW-1 who deposed that he does not remember having
passed any such message dated 30.08.2000 to PW-9. Having been declared
hostile, he was cross examined by the Prosecutor and he clarified not
remembering any such message particularly because he did not ever handle
the education department.
128. Coming to the testimony of PW-9, he states that he did remember
sending a message to DPEO Jind on 30.08.2000 as directed by PW-1,
however, he did not remember the contents of the message. Learned
Counsel urges there is, therefore, insufficient evidence to establish this
allegation.
Testimony of A-3 Sanjeev Kumar
129. Sanjeev Kumar A-3, has testified in his examination under Section
315 Cr.P.C. that he met A-4 on 10.07.2000 at 9:00 a.m. over breakfast and
A-4 Om Prakash Chautala, the then Chief Minister Haryana, asked him
that second set of lists was to be prepared afresh at the earliest because his
Government has got the clear majority of his own and there was no
necessity to oblige the MLAs of the parties. Vidya Dhar (A-1) told him
that mandate for DPEOs is that fresh lists were to be prepared according to
the list, which he (Vidya Dhar) would give to him, and the role of Sanjiv
Kumar was to replace the list kept in the sealed almirah and declare the
results as per the second set of award lists.
130. Learned Counsel has vehemently challenged the inherent worthiness
of the testimony of A-3 on grounds of admissibility and reliability.
Assuming arguendo even if his testimony were to be admissible, the
credibility attached to the same is highly devalued in light of the following
proven circumstances:
i) He was admittedly the sole custodian of the original award
lists which were kept in a sealed almirah in his office. It is,
therefore, impossible for anyone to undertake any substitution
or replacement of the lists except with the leading and active
participation of A-3.
ii) Prosecution witnesses PW-31 Sardara Singh, PW-56 Mohan
Lal Gupta and PW-58 Balram Yadav being officials deputed
in the office of A-3 have deposed that in the middle/end of
August, 2000, despite the almirah being officially sealed, the
award lists had been taken out. A-3 had directed these
officials to scan and examine the record to work out the
possibility of minimizing the number of reserved category
candidates entering the selection process. It is, therefore, writ
large that the record had already been obtained and an effort
was being made to carry on an in depth analysis to tamper
with the selection process.
iii) Other prosecution witnesses being PW-2 Ravi Dutt, PW-5
Milap Singh, PW-14 Dhoop Singh and PW-17 Brij Mohan
have also deposed that the preparation of fake award lists was
under the direction and control of A-3.
iv) The Directorate lists that were implemented and on the basis
of which appointments were made have been declared to be
fake and in view of A-3 stand in trial that Directorate lists
were genuine, it is the most cogent stark evidence of his guilt.
v) He has been consistently inconsistent on material aspects.
131. In addition, learned counsel has repeatedly pointed out that the
factum of the alleged breakfast meeting was not put to A-4 in his
examination under Section 313 Cr.P.C. and at the same time has been used
by the Trial Judge as the most incriminating evidence to prove guilt of A-4
which is impermissible under the mandate of Section 313 Cr.P.C.
Evidence of Conspiracy
132. Learned Counsel has elaborated the judicial principles evolved on
principles of appreciation of evidence in a case of conspiracy. It is argued
that when factum of conspiracy is sought to be inferred from
circumstances, the same must give rise to a conclusive or irresistible
inference of an agreement between two or more persons to commit the
offence. At the same time, concurrence cannot be inferred by a group of
irrelevant facts artfully arranged so as to give an appearance of coherence.
133. Learned Counsel relies on following circumstances to render the
allegation of conspiracy highly improbable:
i) The execution of a conspiracy of this scale required a person
to be handpicked to the post of DPE to act as an engine of the
conspiracy. In the instant case, there is no evidence to show
that either R P Chandra or Rajni Sekhri Sibal or Sanjeev
Kumar were appointed by prior agreement with A-4. There is
no allegation that R P Chander was shifted from the said post
on instruction from A-4. It is also nobody's case that Rajni
Sekhri Sibal was brought in with a prior meeting of minds to
execute the nefarious designs. The circumstances in which
Sanjeev Kumar had taken over rule out any interest having
been shown by A-4 in his posting
ii) Learned Counsel has urged that the period of conspiracy
needs to be properly demarcated in order to take benefit of
Section 10 Indian Evidence Act. The report under Section 173
Cr.P.C. vaguely mentions the period of conspiracy to be 1999-
2000. Learned Counsel however, relies on testimony of PW-
63 the Investigating Officer who has deposed that conspiracies
being hatched in darkness, it is difficult to state as to when the
conspiracy started but the factum of asking Rajni Sekhri Sibal
to change the lists is the foundation of the entire conspiracy. It
is submitted that this testimony establishes that no conspiracy
can be inferred prior to the taking over of Rajni Sibal vide her
transfer orders on 27.04.2000. This is further strengthened by
the fact that PW-63 had collected the call detail records only
w.e.f 01.03.2000. Therefore, all decisions prior to this must
logically be divorced from consideration being regular
administrative decisions without a taint of criminality.
iii) Learned Counsel argues that had there been an ulterior
motive, A-4 would have put pressure to ensure that the
selections take place before the election in order to reap the
electoral harvest. Therefore, the probabilities strongly militate
against the existence of conspiracy overarching over two
periods of the government i.e prior to elections and after
induction of new Cabinet
iv) It is also argued that had A-3 been acting according to dictates
of A-4, their relations would be intimate having obliged the
Chief Minister by committing serious crimes. It is, therefore, a
moot question as to why and when they had a fall out. A
number of FIRs were registered against A-3. It not the case of
CBI that these FIRs were false or motivated.
v) It is argued that A-4 had won a fresh mandate with secured
majority in the year 2000 which was to last till March, 2005.
Hence, there was no reason for A-4 or his political
companions to take any desperate measures for the selection
of their chosen ones. The government could have dropped the
tedious process undertaken and got fresh selections held on
ground of delay
ARGUMENTS ADVANCED BY CBI
LEGAL ARGUMENTS
134. The legal arguments raised by Learned Senior Counsel Mr. Cheema
have been addressed by the prosecution in the first instance:
135. The first attack on the testimony of A-3 is on grounds of
admissibility in view of the fact that he is a co-accused. At the outset it was
highlighted that no provision in the law of evidence governing the field
was cited to buttress the claim of inadmissibility of such statements. It is
submitted that there is no prohibition encompassed in the language of
Section 315 Cr.P.C. or law of evidence in India to warrant exclusion of
such statements as inadmissible. It has been held since time immemorial
and there exists profusion of authorities to evince that the test of
admissibility lies in relevancy and evidence is admissible as long as it is
relevant to the cause, subject to any expressed provision engrafted under
law. For instance the contents of a statement tendered by an accused in
custody of a police officer may seem to be relevant for the cause; however,
Section 25 of the evidence imposes a ban on proof of such statements and
treats them as inadmissible.
136. Relience is placed on the decision of the Supreme Court in the case
of Tribhuvan Nath (supra), wherein it has been held that an accused may
step into the witness box and choose to implicate his co-accused, such
evidence would be admissible against the co-accused as long as an
opportunity for cross examination was granted. The Supreme Court cited
with approval the law in England in this regard, which has remained
unchanged ever since that such evidence is admissible as long as an
opportunity is given to the co-accused to cross-examine such accused who
has implicated him. It is submitted that the very emphasis on securing this
right to conduct cross-examination stems from the underlying principle that
such evidence is admissible, otherwise there would have been no necessity
to labour on providing an opportunity to conduct cross-examination if such
evidence was ipso facto inadmissible.
137. The decision of the Supreme Court in Tribhuvan case (Supra) has
been followed by the Bombay High Court in Hiten Prasan Dalai and
Others v. Abhay Dharmasi Narottam and Another, (1998) 5 Bom CR 822
and Central Bureau Of Investigation, Bank Securities And Fraud Cell v.
Mulangi Krishnaswamy Ashok Kumar and Others, (1999) 3 Bom CR
189.
138. It is argued that the judgement of Gujarat High Court rendered in
Yusufbhai case (supra) is in teeth with the law laid down in by Supreme
Court in Tribhuvan case (supra) and is, therefore, not a good law. It may
be highlighted that in fact the decision of the Gujarat High Court does not
even notice the decision of the Supreme Court in Tribhuvan case (supra).
139. It is reiterated that the Apex Court has always sounded a note of
caution that judicial discipline obliges the High Courts of the land to
follow the judgments of the Supreme Court and the fact that a particular
argument was not considered or a provision was not cited, cannot denude
the judgment of Supreme Court of its precedential value.
140. The Supreme Court of India in the case of Ambika Prasad Mishra v.
State of U.P., (1980) 3 SCC 719 observed that every new discovery or
argumentative novelty cannot undo or compel reconsideration of a binding
precedent.
141. Reliance is also placed upon Section 21 of the Prevention of
Corruption Act, 1988 to evidence the fact that a statement made by an
accused against the interest of a co-accused is admissible and subject to
cross-examination. The said section is pari materia Section 7 of the
Prevention of Corruption Act, 1947. It would be beneficial to extract the
contents of Section 21 herein below: -
―21. Accused person to be a competent witness.--Any
person charged with an offence punishable under this Act,
shall be a competent witness for the defence and may give
evidence on oath in disproof of the charges made against him
or any person charged together with him at the same trial:
Provided that--
(a) he shall not be called as a witness except at his own
request;
(b) his failure to give evidence shall not be made the
subject of any comment by the prosecution or give rise
to any presumption against himself or any person
charged together with him at the same trial;
(c) he shall not be asked, and if asked shall not be required
to answer, any question tending to show that he has
committed or been convicted of any offence other than
the offence with which he is charged, or is of bad
character, unless--
(i) the proof that he has committed or been convicted of
such offence is admissible evidence to show that he
is guilty of the offence with which he is charged, or
(ii) he has personally or by his pleader asked any
question of any witness for the prosecution with a
view to establish his own good character, or has
given evidence of his good character, or the nature
or conduct of the defence is such as to involve
imputations on the character of the prosecutor or of
any witness for the prosecution, or
(iii) he has given evidence against any other person
charged with the same offence.‖
142. Bare reading of proviso (c) sub-clause (iii) of the above extracted
provision laments that when an accused person tenders evidence against
his co-accused he may be questioned during his cross-examination about
his previous convictions or bad character (which is otherwise
impermissible under law in view of Section 54 of Indian Evidence Act,
1872). Therefore, proviso (c) sub-clause (iii) expressly contemplates
reception of evidence by an accused against the co-accused, however in
such cases the co-accused enjoys the right to expose the bad character of an
accused who implicates him. The Prevention of Corruption Act, 1988 is a
special act, later in time, and it overrides the provisions of the general law
viz. the Code of Criminal Procedure and, therefore, section 21 of
Prevention of Corruption Act, 1988 would prevail over Section 315 of
Cr.P.C., 1973.
143. At any rate, it is argued that even Section 315 of Cr.P.C., 1973 does
not prohibit the use of such evidence tendered by the accused against the
interest of the co-accused as held in Tribhuvan case (supra) and there is no
dichotomy as such between section 21 of the Prevention of Corruption Act,
1988 and the Cr.P.C., 1973, though the language of Section 21 is clearly
more express in this regard.
Admissibility of deposition of an accused against the co-accused when
such deposition is not self-incriminatory but exculpatory
144. The second legal objection canvassed by Counsels appearing on
behalf of the appellants to the reception of evidence tendered by the
accused against the interest of his co-accused at trial, is that such evidence
must also necessarily implicate/inculpate the accused himself, failing
which, the evidence of such accused would be inadmissible qua the co-
accused.
145. It is submitted that there is no jurisprudential hiatus for such a
submission as no such requirement has been engrafted by the legislature
either in Section 21 of the Prevention of Corruption Act, 1988 Section 315
of Cr.P.C., 1973 or Section 133 of the Indian Evidence Act, 1872 which
deals with the admissibility of the evidence tendered by accomplice. As a
matter of fact, the prosecution has cited the decision of the Supreme Court
of India in Subramania Goundan v. State of Madras, AIR 1958 SC 66,
and the decision of the Privy Council in Mahadeo v. The King, (1936) 44
L.W 253, wherein it has been held that an accomplice who completely
exculpates himself may require corroboration and the court did not treat
such evidence inadmissible per se. Reliance was also placed upon Para 31,
inter alia, in the decision of the Supreme Court in Tribhuvan case (supra),
wherein the Supreme Court was pleased to observe that the accused 3 was
claiming his acts to be innocent and yet the Court while rejecting his claim
of innocence, used his statements that incriminated the co-accused.
146. The concept of self incrimination emerges as a necessary pre-
requisite for statements of the accused which fall within the ambit of
Section 30 of the Indian Evidence Act.
147. At the outset, it is highlighted that evidence contemplated as
admissible under Section 30 of the Indian Evidence Act is materially
different in its nature and quality from the evidence of an accomplice
which is admissible under Section 133 of the Indian Evidence Act. The
judgment of the Supreme Court in Tribhuvan case (supra) clearly
prescribes the applicability of Section 133 of the Indian Evidence Act to
the testimony of an accused who steps in the witness box and deposes
against the co-accused.
148. The confessional statements made by an accused under Section 30
may not necessarily be on oath, such statements are made behind the back
of an accused and not in his presence, and significantly cannot be subjected
to cross-examination by the accused against whose interest they may be
made. The Apex Court has in fact held that such statements of accused
falling within Section 30 of the Evidence Act are not even strictly speaking
―evidence‖ qua the co-accused for the purpose of Section 3 of the Evidence
Act and is a mere material which can be taken into consideration by the
Court after marshalling the other evidence against the accused. The reason
is obvious, as it would be hazardous to use such statements of an accused
as evidence against a co-accused; who does not even get an opportunity to
cross examine the maker of such statement. The rationale/sanction for the
limited use of such statements of an accused against the co-accused in
terms of Section 30 of the Indian Evidence Act lies in the fact that the
accused incriminates himself as well which affords some assurance of
truth. Reliance is placed upon the observations in this regard comprised in
the treatise of the eminent authors- Sir John Woodroffe and Syed Amir Ali-
Law of Evidence, Lexis Nexis Butterworths Wadhwa-Nagpur in Volume 2,
Chapter 5 at Pages 1558-1559.
149. In view of the above described sublime philosophy, the Apex Court
has held that evidence under section 133 of the Indian Evidence Act is of
superior quality and higher pedestal then evidence/ material under Section
30 of the Indian Evidence Act. [Haricharan Kurmi v. State Of Bihar, AIR
1964 SC 1184 and Haroon Haji Abdulla v. State Of Maharashtra, AIR
1968 SC 832].
150. Therefore, it is urged that self incrimination is not a condition
precedent for admissibility of evidence of an accomplice against his co-
accused. No such requirement has been engrafted in any statutory
provision dealing with the evidence of accomplices. Rather insistence of
self incrimination would militate against the very object of introducing
Section 315 Cr.P.C. wherein an accused steps into the witness box in
disproof of charges against him and he, therefore, cannot be expected /
compelled by a convoluted interpretation of law to admit charges against
him. Such insistence of self incrimination by an accused to render evidence
admissible against the co-accused would also fall foul of Article 20 (3) of
the Constitution of India.
The degree of corroboration required to act upon accomplice evidence.
151. Since time immemorial the Apex Court of our land has reiterated the
principles which need to be kept in mind while appreciating the probative
value of the evidence adduced by accomplices; who are in fact participant
criminis and may themselves be culpable partners in the crime along with
their confederates. Needless to say, that since such evidence does not
spring from pious sources, the courts, as a matter of practice (rule of
prudence) seek corroboration from independent sources before acting upon
the evidence of such a witness. The said rule of caution stands embodied in
illustration (b) appended with Section 114 of the Indian Evidence Act,
1872 and it suggests that a Court may draw a presumption that an
accomplice is unworthy of credit and requires corroboration in material
particulars.
152. A bare reading of the said provision, brings to fore two striking
features. Firstly, the use of the term ‗may' suggests that such presumption
is not automatic and is not required to be mandatorily drawn as a ‗rule of
law'. As a matter of fact, Section 133 of the said act laments that an
accomplice is a competent witness and a conviction proceeding solely on
the edifice of such uncorroborated evidence would not be illegal.
Secondly, even when the Court chooses to draw such a presumption having
regard the factual contours of the case, corroboration is required only in
material particulars as distinct from every particular.
153. Significantly, the Supreme Court while considering the said issue
has pertinently held that corroboration is not required even on every
material particular because if independent evidence was required to
corroborate the evidence tendered by an accomplice on every aspect, it
would render the evidence of such accomplice superfluous and mere
surplus age. The independent evidence must be such that it would be
reasonably safe to believe the witness's story that the accused was amongst
those, who committed the offence. It has been held that the corroboration
need not be of a kind which proves the offence against the accused. It is
sufficient that it connects the accused with the crime. Furthermore, such
corroboration need not necessarily be furnished by direct evidence and the
same may be provided in form of circumstantial evidence.
154. The Learned Counsels for various appellants have laboured before
this Court to submit that since the co-accused; who stepped into the
witness-box in disproof of charges levelled against them, have themselves
been held blameworthy by the prosecution and the Trial Court, it would
ipso facto be impermissible to rely on their statements as they are
inherently devoid of trustworthiness and the question of seeking
corroboration would not even arise for consideration.
155. It is contended that said argument is liable to be repelled in view of
decision of the Apex Court in the Tribhuvan's case (supra), which is a self
contained code to the law in this regard and a complete answer to the
submission of the appellant. Even in Tribhuvan's case (supra), the Court
was pleased to place reliance upon the portion of the testimony of an
accused that incriminated the co-accused and the residual portion
(canvassing his own innocence) was rejected, consequently resulting in
conviction of the said accused as well. Therefore, the fact that such an
accused is himself convicted and that his version is not held believable in
its entirety by the Court, is no ground to detract the court from culling out
the ‗nuggets of truth', if they are found to exist, and acting upon the same.
It is a settled tenet of criminal jurisprudence in India that the doctrine of
falsus in uno, falsus in omnibus (false in one particular, false in every
particular) is not applicable in our country. The Court is under a bounden
duty to make an endeavour to separate the grain from the chaff i.e.
disengage truth from falsehood. It has been held in the Tribhuvans case
(supra) that once an accused steps in the witness-box, he is like an
‗ordinary-witness'. However, in view of the fact that he is a participant in
the crime, while attaching testimonial-worth, the safeguards of
appreciating evidence of accomplices apply to such evidence.
156. Therefore, the mere fact that an accused is blameworthy in crime
and stands convicted himself, does not imply that owing to such stigma his
evidence tendered against the co-accused must be thrown out from
consideration lock, stock and barrel.
EXAMINATION UNDER SECTION 313
157. Learned ASG submits that the mere omission on part of the Trial
Court to put certain incriminatory circumstances in form of questions during
the examination of the accused in terms of section 313 Cr.P.C. does not
vitiate the trial as unfair and offensive of Article 21 of Constitution of India.
Furthermore, such omission would also not necessarily lead to the exclusion
of such evidence from consideration against the accused persons.
158. It is pointed out that most such incriminatory circumstances which
were not put to the accused during their examination in terms of Section 313
Cr.P.C., as highlighted by the appellants before this Court, infact emerged
during the course of defence evidence, particularly when some accused
persons examined themselves as witnesses in their own defence under
Section 21 of the Prevention of Corruption Act, 1988/Section 315 Cr.P.C.
and shed valuable light on the misdeeds of their confederates in crime.
159. Relevant portion of Section 313 Cr.P.C. herein below:-
―313. Power to examine the accused.--(1) In every inquiry or
trial, for the purpose of enabling the accused personally to
explain any circumstances appearing in the evidence against
him, the Court--
(a) may at any stage, without previously warning the
accused put such questions to him as the Court considers
necessary;
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence,
question him generally on the case:...‖
160. Perusal of the said provision reveals that sub-clause (b) of Clause (1)
of Section 313 Cr.P.C. is couched in mandatory terms as the legislature has
employed the phrase ―shall‖ as distinguished from the term ―may‖ used in
sub-clause (a) preceding the same. Therefore, it seems the trial court
conducted the examination of the accused after the culmination of
prosecution evidence as obligated under sub-clause (b) but did not conduct
any such examination thereafter.
161. It is also pointed out that at no stage any of the appellants-accused
raised the issue of insufficient examination before the Trial Court, which was
in the best position to conduct such additional examination, if desired
necessary by the accused; who were represented by a battery of competent
legal professionals. As a matter of fact the additional evidence which was led
at the stage of defence evidence was subjected to gruelling cross-
examination at the hands of the Learned Counsels for the effected accused
persons and it was not the case that they were unaware about the introduction
of such evidence against them and were taken by surprise at the time of
pronouncement of judgment, so as to result in miscarriage of justice.
162. The Supreme Court has held since time immemorial that mere
omission to question the accused with regard to certain incriminatory
circumstances would not result in automatic exclusion of such evidence and
the accused must demonstrate prejudice. It has also been held that when such
an objection is not raised before the trial court which could have easily cured
the defect, and such objection is belatedly raised for the first time before the
appellant court, that itself demonstrates that the appellants did not feel any
prejudice.
163. It is submitted that the appellants before this Court have not even
pleaded much less proved/ substantiated any prejudice and have only
highlighted the alleged omission and claimed its exclusion from
consideration against them. No appellant has even attempted to demonstrate
how he was misled in his defence or taken by surprise by introduction of
such evidence, which in fact he arduously subjected to cross-examination
and addressed its credibility extensively at the stage of final arguments
before the Learned Trial Court. Furthermore, the Apex Court has also held
that all which an accused is entitled to in such cases is that his explanation, if
any, be considered by the Appellate Court while evaluating the prosecution
evidence and no more. As highlighted earlier, the appellants have not
projected any such explanation which they desired to tender with regard to
the circumstances upon which they claim they were not questioned by the
Learned Trial Court.
FACTUAL ARGUMENTS
164. Learned ASG submits that A-4 chaired the Cabinet meeting dated
08.09.1999 and with his permission the issue of appointment of JBT
teachers was taken up for consideration as it was not an item on the
agenda. It was decided to take the appointment of JBT teachers out of the
purview of Haryana Staff Selection Committee (HSSC) - a statutory body
and bring the same under the control of Directorate of Primary Education.
It would be relevant to highlight that at the said time he was holding the
portfolio of Education Minister as well. A meeting dated 10.11.1999 was
chaired by the then Chief Minister- O.P.Chautala (A-4). It is in the said
meeting, the vital decision of increasing the weightage of interview marks
from 12.5 % to 20 % was taken in furtherance to the cabinet decision dated
08.09.1999 by which the JBT teachers appointment was taken out of the
purview of the Haryana Staff Selection Committee (HSSC), which is a
statutory body. The said meeting was also attended by his close aides -
Vidya Dhar (A-1) and Sher Singh Badshami (A-2); who were occupying
the post of his OSD and his political advisor respectively. Interestingly,
O.P Chautala (A-4) had approved the ―chayan‖ formula only a fortnight
earlier i.e. on 12.10.1999 itself, wherein 12.5 % was the weightage
prescribed for interview.
165. It is submitted that positive acts of A-4 and others, subsequent in
time, would reveal that the said decision of taking the appointments out
from the purview of HSSC and increasing the weightage to be accorded to
interview marks substantially was not innocuous or a sheer co-incidence.
As a matter of fact these two ostensibly innocuous decisions formed the
very edifice upon which the conspiracy to effect this employment scam of
vast magnitude rested as it could not have been given effect to without
these enabling policy decisions.
166. Addressing the contention that the period of conspiracy has been
deposed by the Investigating-Officer (PW-63) to commence upon the
demand of substituting the award lists being made to PW-23 and, therefore,
the circumstances of removing JBT appointments from the purview of
HSSC and increasing the weightage of interview marks pale into
insignificance, it is pointed out that the IO has categorically deposed that-
―The conspiracy in this case started when the then Chief Minister Sh. Om
Prakash Chautala took a decision to withdraw the vacancies of the J.B.T
Teacher from the purview of Staff Selection Commission and the
conspiracy ended on appointment of undeserving candidates on the basis of
directorate lists...‖ [Part 2(II)/Page 277]
167. Furthermore, if it was the case of the prosecution since the inception
that the circumstances highlighted above were NOT an integral
manifestation of conspiracy, the prosecution would not have labored and
examined relevant witnesses to prove the said facts at trial. Reliance is
placed upon the observations of Supreme Court in the case of State (NCT
of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600. The
Court observed that it is difficult to spell out with exactitude the details
relating to the starting point of conspiracy and reiterated the view taken by
it earlier in its decision in Esher Singh v. State of A.P., (2004) 11 SCC
585 wherein it was held that it is not always possible to give affirmative
evidence about the date of the formation of the Criminal Conspiracy.
168. It is also mentioned that a similar view has been echoed by the
Supreme Court in Navjot Sandhu case (supra) wherein it was observed
that agreement between the conspirators can be inferred by necessary
implication.
169. It is argued that the conspiracy in the present case had commenced
much before the induction of Sanjiv Kumar (A-3). The first overt
manifestation of the conspiracy is found when the recruitment process was
taken away from the purview of Haryana Staff Selection Committee
(HSSC) and entrusted to Directorate of Primary Education vide a Cabinet
decision dated 08.09.1999, when such issue was not even comprised in the
agenda prepared for the meeting. Sanjiv Kumar (A-3) joined the
conspiracy around 10.07.2000, when he met O.P.Chautala (A-4) at his
residence over breakfast meeting.
170. The prosecution has enumerated and explained the gist of
incriminating evidence against A-4 as under:
i) Transfer of PW-38, R.P.Chandra - Director Primary Education
within two days of his initiating the note dated 24.04.2000 for
compilation of the result through HARTRON [Part 8/D-37-D-
66/D-40 (I)/Page 57].
ii) Deposition of PW-16 Prem Prashant to the effect that someone
from the Office of the Chief Minister had informed him to attend
the said meetings at Haryana Niwas and at residence of Vidya
Dhar (A-1); who was as a matter of fact much junior to them.
iii) Pressure being exercised by his close aides- Vidya Dhar (A-1)
and Sher Singh Badshami (A-2) in presence of his son- Ajay
Chautala (A-5) upon PW-23 Rajni Sekhri Sibbal for substitution
of fresh award lists in place of the original award list lying in her
custody as Director Primary Education.
iv) Unjustifiably sitting - over the proposal for constitution of
Results Compilation Committee till 16.07.2000, which had been
initiated by PW-23 Smt Rajni Sekhri Sibal on 20.06.2000 and
had reached the Office of the Chief Minister on 22.06.2000 itself
[Part 8/D-37-D-66/D-40 (I) /Page 72-73], although the JBT
teachers appointment was purportedly taken out of the purview
of HSSC on the pretext that there was acute shortage of such
teachers and making appointments through HSSC would
consume more time. It is argued that had the approval been
granted by O.P.Chautala (A-4) during the tenure of PW-23, he
would not have been successful in his illegal designs of getting
the original award lists replaced as PW-23 had clearly conveyed
her unwillingness to his representatives during the two meetings
and she would have ensured that the original award lists be
expeditiously handed over to representatives of HARTRON in
front of the other members of the Result Compilation
Committee. It is, therefore, only on 16.07.2000 that A-4 gave his
nod to the proposal for declaration of results, once the new
incumbent of his choice had been given additional charge as
Director Primary Education on 11.07.2000 in place of PW-23, on
the basis of informal orders conveyed after the breakfast meeting
with Sanjiv Kumar (A-3) on 10.07.2000. It assumes significance
that the attending circumstances in which PW-23 was herself
compelled to seek transfer included- pressure/repeated demands
in the two meetings by the aides of O.P Chautala (A-4) to
substitute the new award lists that were to be created in place of
the original award lists lying in her custody, anonymous phone
calls offering threats and bribe, theft at her residence etc.
v) Deposition of Sanjiv Kumar (A-3) in terms of Section 21 of
P.C.Act / Section 315 Cr.P.C. highlighting a breakfast meeting
dated 10.07.2000 with O.P.Chautala (A-4), wherein A-4 asked
him to change the original award lists. The factum of such a
meeting was also averred in the writ petition filed by Sanjiv
Kumar (A-3) in the year 2003 and not that this version sprung
for the first time during trial. [Part 8/D-37-D-66/D-64/Pages 25-
53 at Page 31]. It has also been deposed by Sanjiv Kumar (A-3)
that a suggestion had been made by O.P Chautala (A-4) that the
almirah be broken open from its back side using a blow-torch
and then re-welded thereafter.
vi) Message emanating from the Office of the Chief Minister
requiring the DPEO's to attend meeting at Haryana Bhawan on
01.09.2000. Conjoint reading of the testimony of PW-1, PW-9
and PW-14 unequivocally evince the said fact.
vii) Presence of Sher Singh Badshami (A-2)-Political Advisor of O.P
Chautala (A-4), amongst others, at Haryana Bhawan, Delhi on
01.09.2000 and at Punjab Guest House along with Vidya Dhar
(A-1), and pressurizing various District Selection Committee
Members to prepare fresh award lists. Section 10 of the Indian
Evidence Act, 1872 envisages a concept of ‗vicarious liability' in
cases of conspiracy and act(s) of one co-conspirator bind the
other and, therefore, the evidence emerging against one co-
conspirator is to be read as evidence against the other conspirator
as well.
viii) Despite the fact that O.P.Chautala (A-4) was not holding the
portfolio of the Education Minister, the file relating to JBT
teachers appointment was reaching his office for approval of
almost every decision made during the process, such as change
of Result Compilation Committee Members [Part 8/D-37-D-
66/D-40(I)/Page 80, 86] and even declaration of result.
According to the rules of business in vogue [Part 8/S.No.7-
Miscellaneous Documents exhibited by the prosecution/Page 5-
25] primarily the minister in charge was competent to take the
final decision on a matter, however, the domain of the Chief
Minister has been expressly carved out [Rule 6, 18 and Rule 28].
It is argued that from the positive evidence available in form of
departmental file notings, it can be safely inferred that at any
rate, O.P.Chautala (A-4) was in complete stock of things and the
file of JBT teachers appointment was reaching his office,
warrantedly or unwarrantedly, for his approval on the matters
comprised therein.
ix) Per Contra, curiously, O.P.Chautala (A-4) in his examination
under Section 313 Cr.P.C. has feigned ignorance about the
process of appointment of JBT Teachers after the Cabinet
decision dated 08.09.1999. The file movement and notings as
evidenced from the bare perusal of D-40 (I) clearly belie the
stand projected by O.P.Chautala (A-4) in his statement under
Section 313 Cr.P.C. and such false plea adds as an additional
link in the chain of evidence against him. The Apex Court has
held that such false plea can supply the missing link to the chain
of circumstantial evidence against the accused. (caselaws to be
added)
x) Praising Sanjiv Kumar (A-3) on 18.09.2000 at a function when
the task assigned to Sanjiv Kumar (A-3) was successfully
executed. The factum of such praise has been deposed to by
Sanjiv Kumar (A-3) in his deposition in terms of section 21 of
P.C. Act / Section 315 of Cr.P.C. He has also got exhibited a
DVD (Ext. A3/DW-9/D-1) containing the videography of the
said function. This portion of his testimony has gone
unchallenged in cross-examination.
171. Learned ASG submits that it would be too much for A-4 to feign
blissful ignorance about the events which were transpiring around him and
it cannot be termed as an innocuous coincidence that the key aides of O.P.
Chautala (A-4) and his son were getting enforced such a scam of vast
magnitude spanning over 18 districts of Haryana and that messages for the
said purpose were even rallied through his Office by his staff
unauthorisedly without his approval/directions/consent. Furthermore, the
key policy decisions which gave impetus to the conspiracy were taken
under his aegis. The period also saw successive transfer of two Directors of
Primary Education who refused to toe the line dictated by the aides and son
of O.P. Chautala (A-4). The file travelled to O.P. Chautala (A-4) for
approval of almost every decision in the matter relating to JBT
appointments and it was being cleared expeditiously, however, curiously
when PW-23 initiated the proposal for declaration of result, the wheels of
bureaucratic machinery jammed for no perceivable reason whatsoever and
moved only when the new incumbent; who was a newly joined co-
conspirator had been inducted to achieve the ends of conspiracy that had
been delayed/thwarted by PW-23. Fortunately for the society, a
confederate of crime- Sanjiv Kumar (A-3) also furnished direct-evidence
during trial, in addition to the overwhelming circumstantial evidence
already adduced by the prosecution, about his breakfast meeting with O.P
Chautala (A-4) and the mandate of changing the award lists which had
been voiced by him at the said meeting.
172. It is argued that the version of the said accomplice has received
ample corroboration from the circumstantial evidence led by the
prosecution at trial and it is not the case that there exists no evidence
otherwise to link O.P. Chautala (A-4) with the crime and the case against
him hinges solely on the substratum of this breakfast meeting, which
would make it unsafe to act upon the testimony of the accomplice. It is a
settled proposition of law that corroboration need not extend to every
circumstance deposed to by the accomplice as that would in fact render
such accomplice evidence wholly superfluous. It is also settled proposition
of law since time immemorial that corroboration can be received even
through circumstantial evidence, as in the present case, and not necessarily
by direct evidence. It has been often cited with approval by the Apex Court
that ―witnesses may lie but circumstances do not lie‖. (caselaws to be
added)
173. It is contended that even otherwise it would be unrealistic to expect
direct evidence against the Chief-Minister: O.P. Chautala (A-4) from any
person, other than an accomplice like-Sanjiv Kumar (A-3) in the present
case, as O.P. Chautala (A-4) was the kingpin/author of the conspiracy,
occupying his position at the pinnacle and was getting the same enforced
through his son and aides. Thus, the submission on behalf of O.P. Chautala
(A-4) that no member of the District Selection Committee or the three IAS
officers have deposed against him and this fact is indicative of his
innocence, is specious and liable to be rejected.
ARGUMENTS ADVANCED ON BEHALF OF A-5
Role of investigating agency
174. At the very outset Learned Counsel has sought to highlight the role of
the investigating agency in desperately attempting to falsely implicate A-5 in
the present case. It is demonstrated that the original statement of PW-16
under Section 161 Cr.P.C. was subjected to fabrication with a view to make
out a case against A-5. The statement of PW-16, Ex.PW-16/DA is contained
in a total of 7 pages out of which page 4 and 5 are in a font different from the
remaining pages. Similar is the case with the statement of PW-26, Ex.
PW.26/DA wherein page 3 and 4 has a different font. It is also pointed out
that pages 4 and 5 of Ex.PW-16/DA and pages 3 and 4 of Ex.PW-26/DA are
in the same font. The relevance of these allegedly substituted pages is that
these pages contain the details of the two meetings wherein the presence of
A-5 is sought to be established by the prosecution.
175. Learned Counsel seeks to invigorate this argument by mentioning that
these observations were put to PW-16 in his cross examination, however, he
evaded the answer by saying that he was not an expert on this subject. PW-
26 explained that the computer, on which his statement was being recorded,
was so bad and defective that it was constantly being retyped which could
have caused a difference in fonts.
176. It is further pointed out through the testimonies of PW-16, PW-23 and
PW-26 that they were provided copies of their statement to refresh their
memories prior to their deposition in court. It is submitted that the CBI was
at pains to strengthen the evidence at trial to escape the consequences of
illegal acts of fabrication. Learned counsel relies on the cases of Zahiruddin
v. Emperor, AIR(34) 1947 Privy Council, 75 and Ranbir Yadav v. State of
Bihar, (1995) 4 SCC 392 to bring home the point
177. Learned Counsel has invited my attention to portions of the testimony
of PW-16, PW-23 and PW-26 to demonstrate the manner in which leading
questions were put to this witness to show involvement of A-5 in the entire
conspiracy.
178. It is, therefore, strenuously argued that the entire trial particularly with
regard to the meetings stands vitiated beyond redemption by the unethical
tactics adopted by the prosecution. Learned Counsel relies on the case of
Varkey Joseph v. State of Kerala, reported as 1993 Suppl(3) SCC 745 in
this regard.
Testimony of PW-16
179. Learned Counsel seeks to challenge the credibility of PW-16 in view
of the fact that he was the immediate superior officer of the Director Primary
Education, Director Secondary Education and the Director of Higher
Education. With a full fledged circus running right under his nose, it is rather
strange that it all happened without his knowledge. He seems to have
escaped being arrayed as an accused based on his self serving statement that
he had objected to the suggestion for change of award lists. PW-26 did not
corroborate any such suggestion and in fact squarely accused PW-16 for the
situation created by way of meetings. Regarding the first meeting PW-16 has
deposed that it was an informal meeting and he did not recollect other items
which might have been discussed there. With regard to the meeting held at
the residence of Vidya Dhar A-1, he states that he did not know the source
from which the message had come for the meeting. It is urged that the
testimony of PW-16 paints the picture of a person being blamed by PW-23
and PW-26 for having dragged them to some meeting. He was questioned as
to with what authority and on whose direction was the meeting called.
Having been put on the defensive, he gave evasive answers.
Testimony of PW-26
180. Learned Counsel submits that the testimony of PW-26 is highly vague
and suffers from tutored improvements at the behest of the Prosecutor
intended at implicating A-5. His testimony has not been in sync with the case
of the prosecution regarding the sequence of the meetings as he places the
meeting at Haryana Niwas to be the second meeting wherein the issue of
changing award lists was discussed by A-2
181. It is also argued that this witness has not given any specific details
about the meetings
Testimony of PW-23
182. With regard to the testimony of PW-23 it is submitted that at no stage
in the course of preliminary enquiry or the investigation did she name A-5 as
the person who was present in either of the meetings. She mentions a person
as ‗Bhaisaab'. Considering the fact that A-5 was a sitting Member of
Parliament at the relevant time, it is highly unlikely for a senior bureaucrat to
not know him in a small State like Haryana. It is, therefore, a very significant
highly belated improvement in her statement to have named A-5 in court. A
few other improvements have been pointed out regarding details of who had
contacted her were not stated by her to CBI. She did not state in her previous
statements that PW-16 had taken her by saying that these meetings had been
convened by A-4. She also did not mention in her statement that on the
following morning of the wrongful suggestion to her, she had met Vishnu
Bhagwan and told him what had happened and requested for her transfer
183. It is also pointed out that PW-23 did not disclose these facts before the
Supreme Court at the time when A-3 had filed the writ CWP No. 93 of 2003
and she was requested by the government vide letter Ex.PW-42/DA to give
her version by way of an affidavit to which she gave a perfunctory reply
merely stating the period of her tenure. This creates serious doubt on the
extent of exaggeration in her deposition in court.
184. Coming to the aspect of her inability to remember the exact dates of
the meetings, it is suggested that it is rather ironic for her to boast of having
an iconic memory and yet not remember the exact dates when the alleged
meetings took place. In her examination in chief and even through the cross
examination by A-39 she maintained that the first meeting took place on
02.05.2000 at Haryana Niwas. During cross examination by A-38 when she
was confronted with a note dated 25.05.2000 (Ex.PW-16/G) wherein she had
written in her handwriting that it should be ensured that the record is sealed
in the almirah, she still maintained that she had sealed the almirah on
02.05.2000, however, there being no record on file to say that this process
had been undertaken, it was the first opportunity for her to place this fact on
file. Interestingly, on further cross examination by A-1, she regained her
iconic memory and corrected her sequence to be in order by stating that she
had sealed the almirah on 25.05.2000 as per record and that is when the first
meeting took place thereby belying her previous explanation to the note.
185. Learned Counsel now relies on the testimonies of subordinate officials
in the office of PW-23 to establish that the sealing had in fact taken place on
20.06.2000. PW-13, Bhim Singh, clerk who had purchased the cloth vide
cash memo Ex.PW-11/A dated 20.06.2000 had claimed to be reimbursed for
the same vide note dated 22.06.2000 bearing his signature. He has deposed
that the cloth was purchased on the date when the cash memo was prepared.
PW-11, Ajay Singh, Assistant has identified the signature of PW-13 on the
note. It is therefore, submitted that any illegal suggestion to change the
change award lists was made on 20.06.2000 and by her own showing PW-23
had asked for her transfer on 21.06.2000 and as per the record, she was
transferred on 11.07.2000. It is submitted that this falsifies all claims of her
having been under constant undue pressure and defies her credibility
completely as a witness.
186. With reference to the conduct of PW-23, it is also argued that had she
been an honest officer repulsed by the thought of the illegal suggestions
allegedly made by A-2 and A-5 then she should have made a formal protest
to that effect. My attention was brought to Rules 3 (ii) and (iv) of the CCS
(Conduct) Rules, 1964, which provide that a government servant when
acting under the directions of his/her official superior is required to obtain
such direction in writing, wherever practicable, and where it is not
practicable to obtain written direction, he/she shall obtain written
confirmation as soon thereafter as possible. It light of this, it is submitted
that the conduct of PW-23 was not becoming of an honest officer upon
whom pressure had been exerted.
Conspiracy
187. Learned Counsel seeks to address the allegation of conspiracy by
stating that A-5 was not part of the government in any manner even though
he was a member of Lok Sabha from Bhiwani constituency from 1999 to
2004. He was, therefore, not in a position to take any decision or pass any
order. The prosecution relies on 3 circumstances to prove conspiracy
i) The two meetings discussed hereinabove wherein A-5 was
allegedly present
ii) Call record details between A-3 and A-5
iii) Disproportionately large number of people being selected from
Bhiwani constituency
Call records
188. At the very outset Learned Counsel has urged that the prosecution has
failed to prove the call detail records in accordance with the mandatory
provision contained in Section 65B Indian Evidence Act and are, therefore,
inadmissible. The witness PW-65/1 Chief Accounts Officer, MTNL
examined by the prosecution stated that no certificate under Section 65B was
obtained and also that that the call records Ex.PW-65/1/B did not bear the
date and time when they were printed. Even otherwise, A-5 in his statement
under Section 313 Cr.P.C. has explained that his residence at 18, Janpath
was being used as an office of the INLD Party which was accessible by all
party workers and secretarial staff. Therefore, merely evidence of call
records does not prove that A-5 was in fact in touch with A-3 in absence of
evidence to prove the content of these calls.
189. Learned Counsel further fortifies this argument by stating that A-3 has
deposed that A-5 had called him to discuss about recommending candidates
for contractual teachers in DPEP, which are wholly unconnected with the
present case.
Bhiwani Constituency
190. Learned Counsel points out that Bhiwani district and Bhiwani
Parliamentary Constituency are not the same. There were 19 districts in the
State of Haryana at the relevant time and 10 Lok Sabha Constituencies,
therefore, each Parliamentary Constituency was spread over more than one
or even two districts. It is, therefore, deceptive to suggest that the number of
candidates selected from Bhiwani were equivalent to the number of
candidates selected within the Bhiwani Lok Sabha Constituency.
ARGUMENTS BY CBI
191. With reference to his presence, it is submitted that the same has been
deposed by PW-23 for having attended a meeting at Haryana Niwas and by
PW-16, PW-23 and PW-26 for having attended a meeting at the residence of
Vidya Dhar (A-1), wherein at both the meetings the issue of change of award
lists was discussed. The said witnesses are senior IAS officers and have no
animus or ill-will to falsely implicate the accused.
192. Call records evidencing telephonic exchange between him and Sanjiv
Kumar (A-3) on 27.07.2000 and 30.08.2000.
193. Learned ASG submits that A-5 was a Member of Parliament from
Bhiwani and Sanjiv Kumar was an IAS officer who was holding additional
charge of Director Primary Education-Haryana. Ajay Singh Chautala (A-5)
was unable to tender any satisfactory account of what necessitated such
telephonic exchange and rather baldly denies having had any conversation
with Sanjiv Kumar (A-3) and stating that 18, Janpath-New Delhi was being
primarily used as an office of INLD. No defence evidence whatsoever (any
party-worker, screen-shot from the website of the political party, any letter-
head or printed literature of the political party depicting its official address as
18, Janpath-New Delhi) was led at trial to substantiate such a plea that at the
relevant time it was essentially used as an office of INLD or that which
person repeatedly made and received calls from Chandigarh on the said days.
194. It also assumes significance that on 30.08.2000, message was also
transmitted from the Office of the Chief Minister to various DPEO's for
attending a meeting to be held at Haryana Bhawan on 01.09.2000.
195. The Supreme Court in its decision in the case of Sidhartha Vashisht
@ Manu Sharma v. State (NCT) of Delhi, (2010) 6 SCC 1has held that such
exchange of calls unerringly point towards the close-proximity of accused
persons and it is not the right approach of appreciation of evidence to
trivialize such circumstance by holding that in absence of proof of what
transpired during the calls or its contents, such evidence would be value-less.
196. Referring to the contention that has been urged on behalf of the
Appellant-Ajay Chautala (A-5) that the Prosecutor during Trial himself gave
a suggestion ―with his eyes wide open‖ to Sanjiv Kumar (A-3) that he got
calls from Abhay Chautala from the residence of Ajay Chautala and this
militates against the case sought to be projected by the prosecution otherwise
[Part 4/Page 64]. It is argued that the said suggestion does not whittle down
the consistent case of the prosecution that A-5 was in telephonic
communication with A-3, as the said questioning of Sanjiv Kumar (A-3) was
merely being conducted by the Learned Prosecutor in terms of Section 145
of the Indian Evidence Act, 1872 by confronting/contradicting the witness
vis-à-vis his previous statement dated 19.07.2005 recorded under Section
161 Cr.P.C [Part 8/S.no. 12-Misc Exhibits- Misc Defence Exhibits/Page
80-99 @ Page 89-90], wherein he had made a statement to such effect
before the Investigation Agency. The said manner of questioning is also
evidenced from the last question asked by the Learned Prosecutor on the
very next page i.e. Page 65 wherein express reference to the statement of
Sanjiv Kumar (A-3) dated 19.07.2005 before the Investigating Officer is
made.
197. Telephonic conversation between A-5 and Sanjiv Kumar (A-3) on
01.09.2000 (date of the crucial meeting at Haryana Bhawan, Delhi), as
deposed to by Sanjiv Kumar (A-3) before the Trial Court. The said fact was
not specifically controverted in cross-examination of Sanjiv Kumar (A-3).
198. A-5 was Member of Parliament from Bhiwani and 312 candidates
were selected from District- Bhiwani (which is comprised in the
Parliamentary Constituency of Bhiwani) as against the 60 advertised
vacancies arising therein which further goes on to show that this particular
district was favoured as part of the conspiracy.
ARGUMENTS ADVANCED ON BEHALF OF A-1
199. It is the case of the prosecution that A-1, was present at the meeting at
Haryana Niwas as also the second meeting which was allegedly held at his
residence, wherein the suggestion to change the award lists was made.
Prosecution has alleged that the presence of A-1, the Officer on Special Duty
to the Chief Minister, at such meetings was a reminder and affirmation of the
involvement of A-4 in this conspiracy. The convening of the meeting at his
residence wherein officials much higher in rank than him were called and the
issue of changing lists was discussed, speaks volumes of his involvement in
the conspiracy.
200. Presence of A-1 at the third meeting held at Punjab Guest House has
been brought out by the evidence of A-3.
Meeting at Haryana Niwas
201. It is argued that PW-26 does not state that A-1 was present in first
meeting held at Haryana Niwas. Similarly, PW-23 has not stated that A-1 was
present in the first meeting held at Haryana Niwas, Chandigarh. Therefore, it
is argued that testimony of PW-16 that A-1 was present in the meeting at
Haryana Niwas should be disbelieved. It is pointed out that on showing PW-
16 his statement under Section 161 Cr.P.C., he has admitted that in his
statement, the name of A-1 does not appear with respect to first meeting.
The Trial Judge has also accepted the plea that A-1 was not present in the
first meeting
Meeting at residence of A-1
202. With reference to the venue of this meeting, it is urged that only PW-
16 has categorically mentioned that it took place at the residence of A-1.
PW-23 and PW-26 have only mentioned that they were taken to a house in
Sector-7, Chandigarh. In the absence of corroboration of testimony of PW-
16, it cannot be conclusively held that the meeting in fact took place in the
residence of A-1.
Meeting at Punjab Guest House
203. At the outset it is pointed out that A-1 was not charged with the
occurrence of this meeting and it has only come up by way of testimony of
A-3. It is pertinent that the third meeting with respect to A-1 did not find
mention in the charge sheet or the order on charge. It was not put to A-1 in
his examination under Section 313 Cr.P.C. and consequently cannot be
considered against him.
204. It is also argued that contrary to evidence, the Trial Judge has
erroneously arrived at a finding that the Punjab Guest House and Water
Supply & Sanitation Department, Punjab are the same, which is another
material discrepancy that the prosecution has not been able to explain.
205. The next attack is on the corroborating testimony of PW-56 with
regard to this meeting. It is alleged that A-3 and PW-56 are talking about
different meetings held in different time periods with different participants.
The following discrepancies are pointed out:
Event A-3/DW-9 PW-56 Inconsistencies
Timing He was called in He states that 4-5 As per A-3/DW-9
Punjab Guest days after he the meeting was held
House, sometime in returned from Delhi in last week of
last week of August (referring to meeting August but PW-56
and on the 1st of at Haryana Bhawan states that the
Septemeber 2000 in on 01.09.00), he was meeting was held in
Haryana Bhawan, directed to reach at first week of
New Delhi (part IV, Water Supply Guest September.
Pg 36) House, 1257, Sec- As per A-3/DW-9
18, Chandigarh (Part the meeting held at
2 Vol 2 Pg 96) Punjab Guest House
was prior to meeting
held at Haryana
Bhawan while PW-
56 states that the
meeting held in
Water Supply Guest
House was held after
the meeting in
Haryana Bhawan
Participants He states that the The meeting was PW-56 does not talk
meeting was attended by PW-56, about presence of A-
attended by A-1, A- A-3/DW-9 and some 1 in the meeting
2, Jagtar Singh DPEO's (part 2 Vol
Sandhu and 2 Pgs 96,97)
Dharamveer (Part
IV, Pg 41)
Purpose The meeting was Meeting was By no stretch of
convened to know attended by those imagination with
the procedure for DPEOs who could such varied purpose
appointment of JBT not reach Haryana can the two
teachers and to seek Bhawan, Delhi for witnesses be
his explanation that making/signing of speaking of the same
why the almirah the award list (Part meeting
cannot be opened 2, Vol 2, Pg 96)
by blow torch (Part
IV, Pg 41)
206. Learned counsel reiterates the inconsistencies in the statements of
PW-16, PW-23 and PW-26 as pointed out by Mr. Cheema, as also the
arguments on admissibility and worthiness of evidence of A-3.
PW-23 RAJNI SEKHRI SIBAL
WHETHER A GENUINE WITNESS OF ―IKONIC MEMORY‖?
EVENT EXAMINATION-IN-CHIEF CROSS-EXAMINATION
First Meeting Held on 02.05.2000 (Pg. 170) She states that the first
Haryana Niwas (Pg.170) meeting at Haryana Niwas
PW-16, PW-26, A-2 and took place after a gap of
gentleman called Bhai Saheb 4-5 days after she took
was present in the meeting over charge. (pg. 179)
which I know is A-5 (Pg. 170) (she took over charge on
27.04.2000)
Reaffirms that the first
meeting took place
02.05.2000 (pg. 184, 187)
Again states that the first
meeting took place on
02.05.2000 (pg. 191)
Changes her version and
says that first meeting
took place on 25.05.2000,
i.e. the day on which the
almirah was settled. (pg.
192)
After having explained
that the first meeting took
place on 02.05.2000, she
then states that the said
date was stated by her
inadvertently (pg. 196)
Second Meeting The meeting was possibly There was death in family
held on 26/27/28.06.2000 a on 29.06.2000. Second
house in Sector -7, meeting took place a day
Chandigarh (Pg. 170) or two before that i.e how
I conclude that the
PW-16, PW-23, PW-26, A-1, meeting was held between
Bhai Saheb and two more 26.06.2000 - 28.06.2000.
person attended the meeting at (Pg. 169 & 192)
a House in Sector-7 (pg. 170
& 171)
Sealing of Almirah Probably the almirah was On 02.05.2000, I came
sealed on 02.05.2000 and was back from the first
placed in her office on the meeting and sealed back
same day at about 7:30 PM the almirah. (pg. 184, 185)
(Pg. 168) The almirah was sealed on
Sealed the almirah on 02.05.2000 evening.
02.05.2000 after coming back 25.05.2000 was the first
from the first meeting. (pg. opportunity for her to
171, 176) place the fact of sealing of
Sealed the almirah after the almirah on file. (Pg. 187)
first meeting and next In complete contradiction
morning went to A-5/DW-1, she states that the almirah
told him the incidents and was sealed on 25.05.2000
sought transfer (Pg. 171) (Pg. 192)
207. Although in her entire testimony she has been changing and improving
upon her version, she is consistent only on one thing that the sealing of the
almirah was done on the same day of first meeting. The evidence on the
record of this case clearly proves beyond all reasonable doubt that the
sealing of almirah was done on 20.06.2000.
208. It is next argued by Counsel for A-1 that arguendo, if the meeting did
take place at residence of A-1 and his presence is accepted, the prosecution
witnesses have not ascribed any specific role to him. It is merely his
presence that is noted at these meetings, him being a silent spectator in them.
It is trite law that mere knowledge or discussion of a plan per se is not
enough to bring home the charge of criminal conspiracy against a non-
participant accused.
ARGUMENTS ADVANCED BY CBI
209. Prosecution has alleged that documentary evidence available on record
(Part 8/D-37-D-66/D-40 (I)/ Pages 25-26), demonstrates that A-1 was
present at the meeting dated 10.11.1999 chaired by the then Chief Minister-
O.P.Chautala (A-4) in capacity of his OSD. It is in the said meeting, the vital
decision of increasing the weightage of the interview marks from 12.5 % to
20 % was taken in furtherance to the cabinet decision dated 08.09.1999 [Part
8/D-37-D-66/D-42-D-53/D-50/Pages 88-94] by which the JBT teachers
appointment was taken out of the purview of the Haryana Staff Selection
Committee (HSSC), which is a statutory body. Interestingly, O.P Chautala
(A-4) had approved the ―chayan‖ formula only a fortnight earlier i.e. on
12.10.1999 itself, wherein 12.5 % was the weightage prescribed for
interview [Part 8/D-37-66/D-40 (II)/Pages 107-109].
210. It is submitted that positive acts of A-1 and others, subsequent in time,
would reveal that the said decision of taking the appointments out from the
purview of HSSC and increasing the weightage to be accorded to interview
marks substantially was not innocuous or a sheer co-incidence. As a matter
of fact these two ostensibly innocuous decisions formed the very edifice
upon which the conspiracy to effect this employment scam of vast magnitude
rested as it could not have been given effect to without these enabling policy
decisions.
211. It is pointed out that PW-16 Prem Prashant, has deposed about the
presence of A-1 in the first meeting at Haryana Niwas, wherein the issue of
changing the award lists was discussed. However, the Trial Court as a mark
of abundant caution jettisoned from consideration his testimony in this
regard as there was no mention of such fact in his statement made during
investigation in terms on Section 161 Cr.P.C. and even the other witnesses -
PW-23 and PW-26 have not deposed to such effect.
212. With reference to his presence in the second meeting, it has been
consistently deposed to by PW-16, PW-23 and PW-26 which was organized
at his own residence at Sector-7 Chandigarh [House No. 78, Sector-7
Chandigarh]. In this meeting as well PW-23 was being persuaded to change
the award list.
213. Learned ASG highlights that according to the said witnesses, PW-16
had informed them that the said meeting was being convened as per the
instructions of the then Chief Minister - O.P. Chautala (A-4). PW-16 during
his deposition states that someone from the Office of the Chief Minister had
informed him about the meeting.
214. Learned ASG argues that no animus or ill-will can be attributed to the
said witnesses; who are senior IAS officials and have deposed consistently in
unison against him, amongst others. It has been held by the Supreme Court
of India in its decision in The State of Punjab v. Jagir Singh reported as
(1974) 3 SCC 277 that in arriving at a conclusion about the guilt of the
accused charged with the commission of crime, the court has to judge
evidence by the yardstick of probabilities, its intrinsic worth and the animus
of witnesses. The fact that the witnesses are not able to recollect the dates of
the said meetings or have confused themselves at certain junctures on the
sequence of events is not unnatural but rather a hallmark of truth as they
made their statements before the investigation agency after a period of four
years and tendered their evidence before the Trial Court after nearly a
decade. It would be apposite to state that Oscar Wilde has aptly remarked
that ―memory is the weakest companion of a human being‖. In catena of
decisions the Apex Court while appreciating the evidence tendered by
witnesses has consistently taken account the factum of fading away of
human memory with the efflux of time.
215. It is submitted that due regard must also be had to the fact that the
witnesses were summoned before the Court to depose against political big-
wigs and on the first day of examination of PW-23 before the Trial Court i.e.
14.09.2011, whilst opposing the request of the defence counsels for deferring
her cross-examination she informed the Court that she had received a
threatening call owing to which she was under lot of pressure and requested
that her cross-examination be completed as soon as possible. The said fact
stands duly recorded in the order sheet dated 14.09.2011 and 26.09.2011
[Part 1/Vol 1A/Pages 182-183 & 193-195]. Therefore, their evidence is
required to be appreciated in this light. It is not the case that the witnesses
have projected an incompatible and a wholly different version at the Trial
when juxtaposed with their statements made during investigation [Sunil
Kumar v. State Government of NCT of Delhi, (2003) 11 SCC 367].
216. Reliance is placed on the erudite observations of the Supreme Court in
its decision in Inder Singh And Another v. The State (Delhi
Administration) reported as (1978) 4 SCC 161 wherein it was observed:
―Credibility of testimony, oral and circumstantial, depends
considerably on a judicial evaluation of the totality, not isolated
scrutiny. While it is necessary that proof beyond reasonable doubt
should be adduced in all criminal cases, it is not necessary that it
should be perfect. If a case is proved too perfectly, it is argued that
it is artificial; if a case has some flaws, inevitable because human
beings are prone to err, it is argued that it is too imperfect. One
wonders whether in the meticulous hypersensitivity to eliminate a
rare innocent from being punished, many guilty men must
callously be allowed to escape. Proof beyond reasonable doubt is a
guideline, not a fetish and guilty man cannot get away with it
because truth suffers some infirmity when projected through
human processes. Judicial quest for perfect proof often accounts
for police presentation of fool-proof concoction. Why fake up?
Because the courts asks for manufacture to make truth look true?
No, we must be realistic.‖
217. Addressing the contention of various Appellants that certain pages in
the statements of PW-16 and PW-26 recorded under Section 161 Cr.P.C.
have been changed as reflected from different font and colour of the pages,
which makes them ‗stand out as a sore thumb' [Part 7 (II)/Page 156-159 @
Pages 158-159 and Part 7 (II)/Page 160-166 @ Pages 163-164], it was
submitted at the outset that it assumes significance that during trial the
witnesses have supported their statements recorded under Section 161
Cr.P.C. and have refuted the suggestions of interpolation etc. Furthermore, it
is highlighted that had there been any extraneous/oblique motive, the name
of Ajay Chautala (A-5) could have been expressly interposed in the said
statement of PW-26 recorded under Section 161 of Cr.P.C. [Part 7 (II)/Page
156-159 @ Pages 158-159]. The investigation agency has conducted fair and
impartial investigation and it is not the case that every family member of the
Chautala family has been indiscriminately implicated. There were statements
of Sanjiv Kumar (A-3) made during investigation which point towards the
role of Abhay Chautala in the present case, however, the investigation-
agency did not array him as an accused. If there was a political
prosecution/persecution, as canvassed by the appellants, then the
investigation agency would not have spared this golden opportunity to
ensnare Abhay Chautala and other family members of the Chautala family.
218. With regard to the argument that the witnesses had read-over their
statements made during investigation, it is submitted that the witnesses have
themselves truthfully disclosed the said fact and it is not the case that they
attempted to conceal the said fact and the accused exposed their lies through
independent evidence. The said witnesses are senior IAS officers and it
militates against probabilities that they would depose under the pressure of
police officials and toe the dotted lines dictated by them. It has not emerged
in evidence that the witnesses have deposed before the Court by reading out
from their previous statements in the witness-box and, therefore, nothing
turns on this circumstance.
219. Coming to the argument that even according to Prosecution Witnesses,
Vidya Dhar (A-1) and Ajay Chautala (A-5) remained silent in the meetings
and, therefore, it cannot be construed that they were conspirators in the
crime, it is argued that the said argument is rather tenuous as it is not the case
of the prosecution that these accused persons were mere passer-by or mute
spectators to a crime committed at a public place. The repeated illegal
demands for the substitution of the original award lists by the new award
lists and the pressure exerted on PW-23 in this regard, transpired at Haryana
Niwas and the residence of Vidya Dhar (A-1); where these accused persons
were in attendance and were personally privy to such demands/discussion by
Sher Singh Badshami (A-2). It is not the case that they protested/objected to
such demands or left the meeting. Rather to the contrary, they were
integrally involved at almost every preceding and succeeding step in the
conspiracy. As a matter of fact the complicity of Vidya Dhar (A-1) can also
be gauged from the fact that the second meeting was conducted at his
residence itself and IAS officer's much senior to him were required to attend
the said meeting. Since Sher Singh Badshami (A-2) was voicing the
demands repeatedly in the two meetings, it was not necessary for Vidya Dhar
(A-1) and Ajay Chautala (A-5) to repeat the same. Their consistent presence
with each other at the two meetings, inter alia, manifested their
unity/consensus of object. Remarking on the weight of evidence
demonstrating his presence, it is stated that ―Silence can be as potent as
words‖.
220. Coming to the evidence of A-3, Sanjiv Kumar during his deposition as
his own defence witness in terms of Section 21 of P.C. Act/ Section 315 of
Cr.P.C. it is highlighted that the same reiterates the presence of Vidya Dhar
(A-1) along with Sher Singh Badshami (A-2) at the meeting convened at
Punjab Guest House, Chandigarh (House No. 1257, Sector 18-C,
Chandigarh) where several members of the various District Level Selection
Committees were also called for creation of new award lists. Numerous
accused persons (A-6, A-7, A-8 and A-59) in their statements recorded under
Section 313 Cr.P.C. state that they attended the meeting at Punjab Guest
House. The TA details of Smt. Prem Behl- DPEO Ambala (A-6) indicate
that she travelled to Chandigarh on 30.08.2000 [Part 8/D-37-D-66/D-
65/Page 3]. PW-49 and PW-56 also depose with regard to a meeting held at
the Punjab Guest House wherein several committee members of various
districts had been called for preparation of fresh award lists and the
photocopies of the original list were offered to them for the said purpose.
221. Learned ASG points out that in the Writ-Petition [Part 8/ D-37-D-
66/D-64/Page 25-53 @ Pg 26, 27, 31 & 49] filed by Sanjiv Kumar (A-3)
before the Supreme Court and the rejoinder affidavit [Part 8/ D-37-D-66/D-
64/Page 5-24 @ Pg 7] filed by him therein, Vidya Dhar (A-1) has been
expressly named as an active participant in the conspiracy with O.P.
Chautala (A-4) and it is not for the first time in his deposition before the
Trial Court that he names him.
222. Addressing the contention that relatives of A-1 were not selected and
appointed, it is submitted that the mere fact that certain distant relations of
Vidya Dhar (A-1) were not selected would not militate against his
involvement in the crime as he was a mere enforcer acting on the commands
of O.P. Chautala (A-4); who had conceived and authored the conspiracy. It is
not necessary that O.P. Chautala (A-4) would have shown latitude to
accommodate the candidates recommended by his subordinate- Vidya Dhar
(A-1). Furthermore, it is also questionable whether Vidya Dhar (A-1) would
himself be inclined to help his distant relations in village without any fruitful
consideration. It also assumes significance that such evidence has surfaced at
a belated stage and such fact was not stated by Vidya Dhar (A-1) in his
statement under Section 313 Cr.P.C. or his written statement filed before the
Trial Court in terms of Section 313(5) Cr.P.C., where he extensively speaks
of his righteousness, unblemished career and principled character. No
suggestion was given by Vidya Dhar (A-1) to any prosecution witness,
including the Investigating Officer about his refusal to even help his relations
in the matter of JBT teacher's appointment.
ARGUMENTS ON BEHALF OF A-2
223. It is the case of the prosecution that A-2 had attended four meetings
wherein he pressurized various persons concerned with the selection process
to change the award lists in furtherance of the criminal conspiracy as a
representative of the Chief Minister. The four alleged meetings in which A-2
allegedly was a participant in are:
i) Meeting at Haryana Niwas
ii) Meeting at residence of Vidya Dhar
iii) Meeting at Guest House of Water Supply and Sanitation
Department, Punjab (Punjab Guest House)
iv) Meeting at Haryana Bhawan
224. Prosecution relies on PW-16, PW-23 and PW-26 to prove that A-2 had
in fact made the suggestion of changing the award lists in the first two
meetings.
225. Learned Counsel appearing on behalf of A-2 has adopted the
submissions advanced on behalf of A-5 with reference to the legal and
factual arguments made regarding admissibility and reliability of evidence of
A-3.
226. With reference to the first two meetings it is submitted that the
presence of A-2 is based on a hypothesis that has culminated from a conjoint
reading of the testimonies of PW-16, PW-23 and PW-26. There is no
corroborative evidence to prove the factum of these meetings or the presence
of A-2 in them. Learned Counsel seeks to impeach the veracity of these three
witnesses on the grounds echoed by counsel for A-5.
227. In addition it is pointed out that the essence of these meetings, as is the
case of the prosecution, is that A-2 made an illegal suggestion to change the
award lists. A logical corollary to this hypothesis would be that A-2 was
aware of the results of the Selection Committees prior to the month of May,
2000. This is completely nullified with the fact that the original lists were
removed by A-3 in August, 2000. In absence of evidence to the effect that A-
2 was aware of the results prior to May, 2000, it was impossible for A-2 to
have made any such suggestion. The testimony of PW-16, PW-23 and PW-
26, therefore, stands falsified to this effect.
228. Coming to the alleged meeting at Punjab Guest House, it is argued
that PW-49 and PW-56 are the only two eye witnesses to this meeting and
their deposition does not even mention A-2
229. It is the case of the prosecution that the meeting at Haryana Bhawan
took place on 01.09.2000 and a suite was booked in the name of A-2 on
31.08.2000 which was vacated the next day. The Visitors Register (D-132)
contains an entry Ex.PW-45/A to this effect. In this meeting some
Chairpersons and members were called and pressurized by A-2 to prepare a
second set of award lists.
230. Learned Counsel submits that amongst the people who attended the
meeting, PW-2, PW-5, PW-31 and PW-56 have not identified A-2 as having
attended this meeting.
231. PW-25, Krishan Chand was the clerk posted in Haryana Bhawan at the
time and has admitted the suggestion that a room can be booked in the name
of a person while another person may be occupying the same.
232. A-3 in his examination has deposed that he had gone to Haryana
Bhawan on 01.09.2000 to meet A-2 where he saw officials of the Primary
Education Department. A-2 gave him a sheaf of papers relating to
appointment of various JBT teachers to the posts under DPEP particularly
from district Bhiwani. He interrogated him as to why written
recommendations sent by Ajay Chautala were not considered despite the
requisite qualifications. To this A-3 explained that qualifications to the post
of JBT teachers under DPEP were not the same as that of the State
Government.
233. Learned Counsel argues that A-3 has, therefore, only confirmed the
presence of A-2 at this meeting. He has in fact explained that the content of
their conversation was no where related to the present allegation
234. Learned Counsel now attacks the testimony of A-50, who appeared as
a witness under Section 315 Cr.P.C. to show that A-2 could not have
pressurized any one. A-50 has deposed that he arrived at around 2 pm and
most of the Chairpersons/members of Selection Committees had already left
by then but some were still present. It is argued that A-50 having arrived at a
time when the meeting was anyway concluded cannot give evidence of A-2
having pressurized any other official. It is also argued that A-50 never knew
A-2 from before and identified him in court for the first time after a period of
nearly 10 years, therefore, it cannot be conclusively established through this
evidence that A-2 was indeed present in the alleged meeting.
235. Needless to state, learned counsel has repeated his arguments on
accomplice evidence to impress upon this Court that evidence of A-50 and
A-3 cannot be considered against A-2.
236. Learned Counsel has argued that the entry made in the Visitors
Register is inadmissible in evidence as it has not been proved by the person
who saw A-2 making such entry or by a person who can identify the
signatures of A-2. Learned Counsel relies upon a case reported as Pawan
Kumar v. State of Haryana, (2003) 11 SCC 2412 on this aspect. In the same
breath it is also argued that amongst all the accused herein, A-2 is the only
one whose signatures were not sent for forensic examination and, therefore,
it cannot be conclusively established that the signatures were in fact of A-2
and consequently have to be excluded from consideration.
ARGUMENTS ADVANCED BY CBI
237. The argument regarding presence of A-1 at the meeting dated
10.11.1999 is reiterated in case of A-2, Sher Singh Badshami. He had also
attended this meeting wherein the decision of increasing the weightage of
interview marks was taken in furtherance to the cabinet decision. Subsequent
acts will demonstrate the worth of this seemingly innocuous evidence.
238. It is argued that the testimony of PW-16, PW-23 and PW-26
unequivocally establish his presence at the first meeting at Haryana Niwas
and the second meeting at the residence of Vidya Dhar (A-1) wherein he
played a prominent role in discussing the issue of changing the award lists.
No animus or ill-will can be attributed to the said witnesses who are senior
IAS officials and have deposed consistently in unison against him, amongst
others.
239. Reliance is also placed on testimony of A-3, Sanjiv Kumar who has
deposed regarding the presence of Sher Singh Badshami (A-2) along with
Vidya Dhar (A-1) at the meeting convened at Punjab Guest House,
Chandigarh, where several members of the various District Level Selection
Committees were also called for creation of new award lists.
240. It is submitted that numerous accused persons (A-6, A-7, A-8 and A-
59) in their statements recorded under Section 313 Cr.P.C. state that they
attended the meeting at Punjab Guest House. The T.A. details of Smt. Prem
Behl- DPEO Ambala (A-6) indicate that she travelled to Chandigarh on
30.08.2000 [Part 8/D-37-D-66/D-65/Page 3]. PW-49 and PW-56 also depose
with regard to a meeting held at the Punjab Guest House wherein several
committee members of various districts had been called for preparation of
fresh award lists and the photocopies of the original list were offered to them
for the said purpose.
241. Addressing the evidence of A-50, D.D.Verma it is highlighted that he
has categorically deposed about the presence of Sher Singh Badshami (A-2)
along with Sanjiv Kumar (A-3) at Haryana Bhawan on 01.09.2000 at Delhi,
wherein he was pressurized by them to create new award list. In this context,
it is pointed out that no animus has been suggested by Sher Singh Badshami
(A-2) as to why D.D Verma (A-50) would falsely ensnare him and level such
serious allegations.
242. Learned ASG submits that various District Selection Committee
members admit of their presence at Haryana Bhawan in their statements
under Section 313 Cr.P.C. [A-9,A-13,A-16, A-17, A-18,A-20,A-24, A-26,
A-27, A-28, A-46, A-47, A-48, A-50, A-51, A-52 and A-56]. Testimony of
PW-2 and PW-5 sheds light in this regard and is also corroborated by
clinching documentary evidence in form of notings in the register [Part 8/D-
99/Page 4] about the communication received from the Office of the Chief
Minister on 30.08.2000 that a meeting at Haryana Bhawan-Delhi must be
attended by DPEO-Jind and entry in the vehicle log-book in this regard [Part
8/D-101/Page 58].
243. Reliance is also placed on testimony of A-3 who has deposed about
the presence of Sher Singh Badshami (A-2) at Haryana Bhawan on
01.09.2000 at Delhi.
244. Learned ASG argues that cogent documentary evidence in form of the
Old Wing Room Occupancy Register maintained at Haryana Bhawan (Part
8/D-153 (I)/Page 37), further corroborates the presence of Sher Singh
Badshami (A-2) at Haryana Bhawan between 31.08.2000 and 01.09.2000. It
is highlighted that the signatures of Sher Singh Badshami (A-2) found on the
entry register at Serial No. 231 dated 31.08.2000, when juxtaposed and
compared with his signatures appended on his statement before the Court
under Section 313 Cr.P.C., bring to fore unmistakable and glaring similarity
in the letter ―S‖ which is found in the two signatures.
ARGUMENTS ADVANCED ON BEHALF OF COMMITTEE
MEMBERS AND CHAIRPERSONS
245. Before going into the submissions of the Committee Members and
Chairpersons, it would be appropriate to enumerate the various categories of
appellants.
CATEGORIES OF APPELLANTS (A6-62)
i) Those who signed on both lists.
ii) Those who signed only on one list (Directorate list, claim it is
genuine) and CBI could recover only one list qua them. (Panipat
District Members and Chairperson, A-27 Madan Lal Kalra,
Kurukshetra).
iii) Those who have denied their signatures on both lists ( Members
and Chairman of District Mahendergarh).
iv) Those who did not put their signatures on Directorate list. (A-49
Sudha Sachdeva).
v) Those who had attended meetings in Chandigarh or Delhi.
vi) Those claiming mistake of fact regarding signing of second list.
(were told they were signing duplicate copy of first list)
vii) Those who claim they were never a member of any committee
(Bani Singh A-39-Mahendergarh and Raksha Jindal A-45
whose defense is that she was never a member, was misled into
signing both lists on account of having calculated the marks).
viii) Those who had only appended signature on alleged fake list
without knowledge about contents of same under duress.
246. Since majority of the appellants (A6-62) fall in the category of having
signed both lists, common arguments have been raised on their behalf and
are recorded in the succeeding paras.
COMMON ARGUMENTS ON BEHALF OF COMMITTEE
MEMBERS AND CHAIRPERSONS
Sanction under Section 197 CrPC and Section 19 PC Act
247. Sanction orders under Section 19 PC Act were obtained on behalf of
A-1, A-3, A-13, A-24, A-28, A-36, A-39, A-54 and A-59. Rest of the
accused persons had retired and, therefore, sanction was not obtained with
respect to them.
248. It is argued that being public servants the requirement of sanction
under Section 197 is mandatory even if the accused persons had retired
because their act of commission or omission is directly related with their
official duty. Reliance is placed on Section 465 Cr.P.C. to show that
objection regarding sanction being raised at the trial stage as well and having
been rejected has occasioned grave failure of justice.
Offence of Forgery under Section 467 and 471 IPC
249. At the outset it is submitted that merely exhibiting of a document does
not lead to the conclusion that it has been proved. The compilation of
Directorate lists and the Supreme Court lists has been exhibited as a
complete document, contents whereof have not been proved in accordance
with Section 67 Indian Evidence Act.
250. It is argued that if a person signs in his or her own name and admits to
the same, it does not amount to forgery as an essential element of
impersonation is missing in completing the offence of forgery. Reliance is
placed on Explanation 1 to Section 464- Making a false document and the
illustration (a) thereof. Elaborating this argument it is submitted that
Explanation 1 has to be understood in terms of illustration (a). A person's
own signature may amount to forgery only when it is done intending that it
may be believed that the signature was scribed by another person of the same
name.
251. It is also argued that Section 467 is further not made out on the ground
that the result declared on the basis of which appointments were made is not
a valuable security. It has been held time and again that figuring of a
person's name in the selection list does not create an indefeasible right of
employment in favour of such person. Since the list on the basis of which the
result was declared does not create any legal right, it cannot be called a
valuable security.
Offence of Cheating under Section 418 IPC
252. It is submitted on behalf of the appellants that the present appellants
were charged for the offence under Section 468 IPC as well however, at the
stage of conviction the offence was not made out and was accordingly
dropped. It is argued that in a given case when the offence under Section 468
is not made out consequently, the offence under Section 418 cannot be
proved.
253. The argument advanced for the offence under Section 418 is that in
the instant case there is no wrongful gain caused to any person. The
prosecution has not alleged that there was any pecuniary advantage derived
and consequently no evidence has been led in this behalf. The committee
members were unaware that results would be declared on basis of which list.
254. It is argued that the requisite intention to deceive cannot be imputed
towards the members as they were acting under duress and threat towards
their near and dear ones.
Offence of Conspiracy
255. The appellants have consistently stated that they acted under pressure.
The Investigating Officer has also recognized this and deposed to the effect.
The Trial Judge has also mentioned that all the committee members were
compelled to sign on the fake lists. It is argued that such concurrent finding
completely absolves any kind of mens rea that can be attributed to the
committee members. In absence of criminal intention, the committee
members cannot be called conspirators.
256. It is further argued that there is no evidence of any monetary
consideration nor any favor to relatives of committee members is alleged by
the prosecution.
257. Some committee members have claimed TA/DA because they were
under the impression that the meetings in Haryana Bhawan and Prerna Guest
House were part of their official duty. It is argued that this evidence goes to
show that there was no agreement between the members and chairpersons on
the one hand and their political bosses on the other.
Parity with Brij Mohan PW-17
258. The argument advanced on behalf of the appellants is that the
appellants were under severe pressure from their political bosses to sign on
the second award list and did not have any intention to cause any wrongful
loss or consequent wrongful gain for any particular person. There is
admittedly no pecuniary advantage derived by any appellant to conspire to
change the first award list of selected candidates. The Investigating Officer
PW-63 has deposed to the effect that the appellants were under pressure.
259. In order to show that pressure exerted upon the appellants was active it
is submitted that the present appellants were residents of the State of
Haryana and could not have sought transfer.
260. It has been vehemently argued that the grant of discharge of Brij
Mohan is opposed and contrary to scheme of law. The procedure
contemplated by law is that the accused may be granted pardon on making a
full and true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every other person concerned.
Therefore, unfair advantage was given to this accused despite being similarly
situated with the remaining appellants.
261. The phrase ―UP‖ is not a recognized abbreviation and does not mean
anything. PW-17 retired soon after signing the list. The Trial Judge fell in
error in discharging Brij Mohan on ground of proof of pressure in as much as
similarly situated accused were under the same pressure. Other committee
members were equally under duress just because it ―clicked‖ the mind of
PW-17 and not others it is not a fortuitous circumstance to show lack of
duress with respect to other committee members.
262. Apart from the above, it is argued that compliance of Section 313
Cr.P.C. was done in a routine manner much opposed to the spirit of the
provision owing to the fact that the same set of questions were mechanically
put to all the appellants, most of which were unconnected with the case of
the particular appellant.
263. It is also pointed out on aspect of sentencing that the appellants who
have admitted their signatures on the fake list have been awarded 4 years
whereas appellants who have not admitted to the same have been awarded 10
years imprisonment. It is argued that an admission by the accused in
examination under Section 313 Cr.P.C. cannot be used against him.
Members who have signed only one list and claim that it is the genuine
list
264. A-32, A-40 and A-41 have signed only one list i.e. the Directorate list
and claim that it is the genuine list and, therefore, cannot be convicted of the
charged offences.
265. In order to appreciate submissions of aforementioned appellants, some
facts need to be stated at this point. A-32, Madan Lal Kalra was the
Chairman of District Selection Committee- Kurukshetra. District
Kurukshetra has two set of lists, D-16 Part I for General candidates and D-16
Part II for B.A B.Ed candidates who were interviewed pursuant to an order
of the Punjab and Haryana High Court. These two lists are the Directorate
lists and the result was declared on the basis of these lists. A-3 on the other
hand has only filed an equivalent of the D-16 Part II list which is the
Supreme Court list D-36.
266. The Trial Judge has arrived at a finding that the Directorate list of
Kurukshetra is fake and A-32 having signed on the fake list is guilty of the
offence of forgery, cheating, conspiracy and misconduct.
267. Mr. Vikas Pahwa, appearing on behalf of A-32 submits that there is no
evidence on record, primary or secondary, to suggest that there was ever any
fake list prepared of the interviews conducted in December, 1999. It is
argued that if two views are possible, the one in favour of the accused has to
be taken. Therefore, if there did not exist a fake list for Kurukshetra, the
alternate cannot be presumed in favour of prosecution simply because the
Directorate lists of other districts were found to be fake. Such presumption is
unfounded and impermissible in law. Additionally, A-32 has not attended
either of the meetings on 21.08.1999 and 01.09.2000 and there being no
meeting of minds, the offense of conspiracy cannot be made out.
268. A-40, Daya Saini was the Chairperson of Panipat District Level
Selection Committee. A-3 has not filed any list of Panipat district and,
therefore, there is only one list of the District Panipat.
269. Ms Rebecca John appears on behalf of A-40 and in addition to the
arguments of Mr. Pahwa, submits that since the finding that the Directorate
lists are fake is based on an analysis of the marking pattern in both the lists,
the same would be inapplicable in the case of Panipat. There needs to be
some evidence to prove that the available Directorate list, Panipat is fake. It
is further submitted that the IO PW-63 has admitted that there is no evidence
to show the manner in which this list i.e. the Directorate list Panipat was
prepared. There is no evidence to show that A-40 attended either of the
meetings. She was neither the Regular Chairperson of DLSC Panipat nor
posted at Panipat. She was deputed from Headquarter, Chandigarh only to
conduct interviews on account of retirement of Mrs. Ramesh Jain on
30.11.1999 without giving her the additional charge of DPEO, Panipat and,
therefore, A-40 could not have been involved in the conspiracy to create fake
list.
270. It is argued that relying upon the marking formula, the Trial Judge has
concluded that the Directorate list is false, however, his opinion which was
substituted as evidence cannot be used against A-40 as she was neither
afforded the opportunity to cross examine on this aspect nor was it put to her
in her examination under Section 313 Cr.P.C. The marking pattern is a fact
in issue and has to be proved beyond all reasonable doubt by way of positive
evidence.
271. Prosecution witnesses PW-16 and PW-23 have made a passing
reference as to which list is fake and they have pointed at the Directorate list.
It is submitted that they are not experts and their opinion on the matter
cannot clinch the issue. A3/DW4 on the other hand is an expert and his
opinion can be looked into
272. A-41 Ram Singh is represented by Mr. Vikas Pahwa and has made
similar arguments as A-40.
Members who have denied their signature on both lists
273. A-37, Pushkar Mal Verma, the Chairman of DLSC- Mahendergarh
(Narnaul) and its members Durga Dutt Pradhan (A-38) and Bani Singh (A-
39) have denied having signed both the lists. A-39 has in fact denied being a
member of the DLSC and having conducted interviews.
274. There are some common arguments raised on behalf of the
aforementioned category of appellants and then some. Let us examine the
common arguments first.
275. PW-48, O.P. Sharma, a clerk in the office of DPEO Narnaul, has
deposed that A-37 was the Chairman of DLSC Narnaul, however, he could
not tell if A-38 and A-39 were its members. He could also not identify their
signatures on either list. The prosecution is, therefore, relying on the report
of the handwriting expert PW-64 to prove their signatures on the two sets of
lists.
276. Mr. Manohar Lal appearing on behalf of A-37 submits that the
appellant's presence at either meeting is not proved neither was any TA/DA
claimed by him.
277. It is argued that as per the Clause 10 of the instructions issued by the
department, every interviewer was required to prepare a separate list( 3
member Committee, therefore, had 3 lists) and the Selection Committee was
required to prepared one merit list of each district based on the 3 lists. He
goes on to argue that the Supreme Court list and Directorate list are not the
merit list as they are not in descending order. The authorship of any list is
not proved in absence of each separate list of every interviewer not being on
record.
278. Coming to the aspect of the specimen signatures, it is submitted that
the opinion of the handwriting expert would be inadmissible in view of the
blatant disregard for the procedure prescribed by law in procuring them by
the Investigating Officer. It is admitted that the specimen signatures of all the
appellants were not taken in compliance with Section 311A Cr.P.C. Reliance
is placed on a Full Bench judgment of this Court reported as Sapan Haldar
v. State, 191 (2012) DLT 225 wherein it was observed:
"30. We answer the reference as follows:
(i) Handwriting and signature are not measurements as defined
under clause (a) of Section 2 of The Identification of Prisoners
Act, 1920. Therefore, Section 4 and Section 5 of The Identification
of Prisoners Act, 1920 will not apply to a handwriting sample or a
sample signature. Thus, an investigating officer, during
investigation, cannot obtain a handwriting sample or a signature
sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified,
inter-alia, inserting Section 311A in the Code of Criminal
Procedure, 1973, even a Magistrate could not direct a person
accused to give specimen signatures or handwriting samples. In
cases where Magistrates have directed so, the evidence was held to
be inadmissible as per the decision of the Supreme Court in Ram
Babu Mishra's case (supra). According to Section 73 of the Indian
Evidence Act, 1872, only the Court concerned can direct a person
appearing before it to submit samples of his handwriting and/or
signature for purposes of comparison.‖
279. The specimen signatures having been taken prior to 2006, they were
required to confirm to the mandate prescribed under Section 73 Indian
Evidence Act. As Sapan Haldar (supra) rightly points out, any such
specimen signatures taken even after so directed by the Magistrate would be
inadmissible except when in accordance with Section 73.
280. The supportive argument on behalf of A-37 is that the Investigating
Officer who had allegedly taken the specimen signatures could not state
where he had taken those signatures, in fact he could not even identify the
appellant in court. The authenticity of the specimen signatures is further
attacked by pointing out that the document Ex.PW-64/E is supposedly
executed in Office of DPEO, District Mahendergarh situated at Narnaul
whereas the witnesses in whose presence the specimen signature were
allegedly taken, an assistant and clerk, belong to the SDEO Mahendergarh
Office which is situated at Mahendergarh, 30kms away from Narnaul. The
witnesses to the document could have been examined by the prosecution in
order to make the situation clear but they were deliberately not examined.
281. It is, therefore, urged that a conjoint reading of the aforementioned
circumstances coupled with the fact that there is no corroborative evidence to
support the sole opinion of the handwriting expert, it would be highly unsafe
to rely on the same to conclude that the appellant had indeed signed both
lists.
282. Learned Counsel has also assailed the conclusion arrived by the Trial
Judge on having compared the signature of the appellant in his examination
under Section 313 Cr.P.C., as also done in case of other appellants who have
denied their signature, with the signature of the Directorate and Supreme
Court lists and consequently arrived at a finding that the two signatures are
in fact of the appellant. The signature appearing on the lists is a short
signature whereas the one appearing in Section 313 examination is a full
signature. It is submitted that inter-se comparison of full and short signatures
is not feasible. Reliance is placed on a judgment of Madras High Court
reported as Sivanandha Steel Ltd., R.P. Krishnamurthi, Executive Director
and P. Venkatesan, Managing Director both of Sivanandha Steels Ltd. v.
Upasana Finance Ltd. rep. by Ragupathy, 2010-1-LW (CRL) 1165
wherein it was observed:
―8. A perusal of the impugned orders reveals that the learned
Magistrate dismissed the petitions mainly stating that the
petitions were filed at the defence stage and at the time of
arguments and the signatures can be compared by the Court
itself. This Court is of the view that it is not safe to compare
the signatures of the accused by the Court itself as the Court
cannot play the role of an expert.
9. The Hon'ble Apex Court in State of Maharashtra v.
Sukhdeo Singh reported in 1992 SC 2100, has held as
hereunder:
Court should be slow to compare disputed document with
admitted document for comparison although Section 73
empowers the Court to compare disputed writings with
the specimen/admitted documents shown to be genuine.
Prudence demands that Court should be extremely slow
in venturing an opinion on the basis of mere comparison,
more so, when the quality of evidence in respect of
specimen/admitted writings is not of high standard.
10. The Hon'ble Apex Court in Ajit v. State reported in AIR
1997 SC 3255 has held that,
Therefore, despite no legal bar to Judge using his eyes, the
Judge should hesitate to base his findings with regard to
identity of handwriting solely on comparison made by
himself.
11. Therefore, in view of the settled principle of law laid
down by the Hon'ble Apex Court in the decisions cited supra,
it is not safe and desirable for the Court to compare the
signature of the accused with the admitted signature on its
own and to base its findings and as such, the reason assigned
by the learned Magistrate in dismissing the petitions is
unacceptable and unreasonable.‖
283. A-39, Bani Singh has denied having signed either of the lists as also
having been a member of the Selection Committee. Needless to state,
arguments on aspect of admissibility of specimen signatures are echoed by
Counsel on behalf of A-39. Reliance is placed on Ex.PW-31/DN, a note
mentioning the names of the Chairpersons and members of District Selection
Committees. In the said note the name of Pushkar Mal Verma has been
mentioned as the Chairperson whereas the names of Durga Dutt Pradhan and
Jai Dayal have been written as members.
284. The prosecution has relied on a document Ex.PW-31/DO to show that
A-39 was in fact a member of the Selection Committee. It is argued that this
document is a computer generated copy, neither signed nor stamped and no
evidence has come forth as to when this document was created, who typed it,
for what purpose and for whom. The credibility is further attacked on the
ground that this document was not recovered from the office of Directorate
of Primary Education, Haryana Chandigarh or from DPEO Narnaul, rather it
was collected by the investigating agency from the office of DPEO, Jhajjar.
The apparent contradiction of these two documents was put to the witness
PW-31 and he has not put forth any explanation to the same. There being no
supporting evidence to show that A-39 participated in the interview process,
it cannot be established merely on the basis of this sole document that A-39
was a member of the Selection Committee, Narnaul. It is also pointed out
that this material circumstance was not put to A-39 during his Section 313
examination and, therefore, cannot be used against him.
285. A-38, Durga Dutt Pradhan has denied his signatures on both lists and
has put forth the following arguments:
Recording of FIR is fundamentally vitiated inasmuch it has
been registered in name of a fictitious person, i.e. Mr. J.C.
Rawat, the Registrar of the Supreme Court who has neither been
examined as a witness in the present case nor any evidence has
been put forth to authenticate that he was the Registrar of the
SC on the relevant date. This tantamounts to violation of
Section 154 Cr.P.C. It is further urge that as per the direction of
the Supreme Court the complaint/FIR ought to have been
registered on the statement of Sanjiv Kumar (A-3) only if it
disclosed commission of an offence.
Alleges violation of the CBI Manual, Rule 10.12 which requires
mentioning of the name of the accused in the FIR. A-38 not
named in the FIR and, therefore, could not have been
prosecuted.
Inordinate delay in recording of the FIR.
No contemporaneous DD Entry made with respect to the FIR
Statement an accused cannot be taken under Section 161
Cr.P.C. as he cannot be a witness as prescribed under Section
161.
Material evidence is fabricated as PW-63 RN Azad in his
statement on oath @ Page 351 does not state that the
investigation initiated on the writ petition filed by A-3 in the
SC.
D-99 @ Part 8, Volume 6 which provides details of telephone
register of DPEO, Jind in which incoming calls are mentioned is
a fabricated document in as much only nine pages of the said
register are exhibited and the entire register has not be proved or
placed on record.
The charges framed against A-38 cannot be sustained as no
evidence has been put forth to establish that A-38 was a
member of the District Level Selection Committee.
The Handwriting expert's opinion Ex.PW-64/A @ Part 8, Serial
No. 6, D-150 is not substantive piece of evidence and can be
used only for corroborative purposes. In fact the said report is
not a report but only a letter which holds no evidentiary value. It
is further contended that specimen signatures present on the said
report were not admitted by A-38 at any stage though the same
have been compared with the questioned signatures.
As per A-38 in his statement under Section 313 Cr.P.C. in
answer to question No. 292 @ Part 3(12), Page 123 which
pertained to Ex.PW-64/A, he had already stated the said report
is wrong, false and baseless.
Ex.P.W.64/A was a surprise document which was not given to
A-38 at the time of investigation and the same was produced for
the first time at trial and, therefore, the same cannot be relied
upon as evidence in trial. It is relevant note that vide order dated
15.01.2010 (Part 1(a), Page 92), it is recorded that the necessary
documents asked by A-38 were supplied to him and there is no
appeal from the said order.
The specimen signatures were not obtained by PW-64 and he
admitted the same in his cross examination by A-38 (PAGE
394). Also, PW-67 Mr. N.N. Asthana, the inspector who
assigned the job of collection of various specimen signatures
stated in cross examination that he did not remember whether
A-38 was the same person from he collected the specimen
signatures. This points out that no specimen signatures were
collected from A-38 and their no evidence on record to show
that any specimen signatures were collected from A-38.
Even if it is believed that A-38 signed the list, he claims to have
done it on blank sheets where no marks were filled and there is
no report of a hand writing expert regarding the marks.
There was no meeting of mind as far as the charge of
conspiracy is concerned.
Member who did not sign the Directorate list
286. A-49, Sudha Sachdeva did not sign the Directorate list, which she
claims is the fake list and as a consequence thereof she was placed under
suspension. She has, therefore, not been convicted of the substantive offence
of forgery, however, she stands convicted of criminal misconduct and
conspiracy.
287. It is the case of prosecution that A-50, Darshan Dayal Verma was the
Chairman of DPEO Rewari for the first three days of interviews after which
he was transferred and A-49 took over the post. Saroj Sharma (A-51) and
Tulsi Ram Bihagra (A-52) were its members. The Supreme Court list bears
the signatures of A-49 as well as all the other members. The Directorate list
however, does not bear the signatures of A-49 but it is duly signed by other
members.
288. Mr. S.C. Chawla appears on behalf of A-49 and argues that the only
evidence against A-49 is the statement of A-50 in his defense. Apart from
the line of arguments regarding defense evidence, it is argued that there is
absolutely no evidence put forth by the prosecution to corroborate the story
canvassed by A-50 and, therefore, merely on evidence of co-accused, in
absence of any other incriminating evidence the conviction under conspiracy
cannot be maintainable. Reliance is placed on a case reported as S. Arul
Raja v. State of Tamil Nadu, 2010 8 SCC 233 wherein the Supreme Court
has observed:
―56. Furthermore, we find that the statement made by A1 is
insufficient to implicate the appellant in the said conspiracy
as the same is hit by Section 10 of the Evidence Act. Section
10 refers to the statement of a fellow conspirator that pertains
to the common intention behind the act, and such a statement
can be used against the other conspirators. In the present
case, we have found and held that the prosecution has failed
to substantiate the allegation of conspiracy against the
appellant and therefore, he could not be under any
circumstance be called a co-conspirator so as to attract the
provisions of Section 10 of the Evidence Act. Furthermore,
this Court in Mohd. Khalid v. State of West Bengal reported
in (2002) 7 SCC 334 and State of Gujarat v. Mohd. Atik and
Ors. reported in (1998) 4 SCC 351 has held that a post-arrest
statement would not fall within the ambit of Section 10 of the
Evidence Act. Therefore, the statement made by Al in police
custody cannot be used to implicate the appellant in the
conspiracy to murder Aladi Aruna.
Members who deny being a member of any Committee
289. A-45, Raksha Jindal and A- 39 fall within this category. Arguments on
behalf of A-39 have been recorded above.
290. A-45, Raksha Jindal has taken the defense that she was never
appointed as member of the DLSC-Panchkula. However, she was misled by
Rekha Sharma (A-44) who is another member of the committee and she
signed the two award lists only as a token of having calculated the marks
given in both the lists. In her Section 313 statements she states that PW-42,
Savitri Wadhawan was the member of the committee and had conducted the
interviews.
291. At the outset, Mr. Pahwa appearing on behalf of A-45 submits that the
appellant had retired from service on 31.08.2000 i.e. before the fake lists
were prepared and, therefore, could not have been tried for substantive
offences under the Prevention of Corruption Act.
292. Reliance is placed on a document Ex.PW-42/DC enlisting the names
of various members of the selection committees in each district. This
document demonstrates Savitri Wadhawan as a member in the district
Panchkula and has no mention of Raksha Jindal. In addition my attention
was drawn to another document Ex.PW-63/045/DA which is the Attendance
Register of Teachers of G.H. Sr. Secondary School for the month of
December, 1999 and it shows that Savitri Wadhawan, the Headmistress was
on leave on the 20th day of the month. Learned counsel submits that the
appellant has explained in her statement that it was Savitri Wadhawan who
had conducted the interviews, however she went on leave on 20th December,
1999 which is why the appellant was asked to sign the interview marks on
the pretext of calculating the interview marks, she being a mathematics
teacher. This argument is further fortified by the fact that it was Savitri
Wadhawan who was called to sign the affidavit of having made the fake list
due to pressure from Sanjeev Kumar now exhibited as Ex.PW-42/DB. A-45
has not signed any such affidavit.
293. Learned counsel addresses the document Ex.PW-31/DN allotting the
Roll Nos. to various districts along with the designated members by pointing
out that the mention of Raksha Jindal as a member is handwritten as opposed
to the rest of the members and chairpersons. It is explained that this is a
tampered document to show Raksha Jindal as a member by applying fluid
and replacing her name with the actual member.
ARGUMENTS ADVANCED BY CBI
294. In the first instance, the arguments raised on legal aspects by the
appellants have been addressed by the prosecution:
Sanction
295. Addressing the argument that the omission to obtain sanction with
respect to public servants under section 197 of the Code of Criminal
Procedure, 1973 for the offences punishable under the Indian Penal Code
vitiates the trial, it is explained that the Supreme Court has since time
immemorial held that merely because the office held by the public servant
furnished the opportunity to commit the crime, the same cannot be said to
have a nexus with discharge or purported discharge of official duty. Even
otherwise, Section 19(3)(a) of the Prevention of Corruption Act, 1988
mandates in unequivocal terms that: -
―no finding, sentence or order passed by a special Judge shall
be reversed or altered by a court in appeal, confirmation or
revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-
section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby.‖
296. Corresponding provision in the Code of Criminal Procedure, 1973
akin to the above highlighted provision comprised in the Prevention of
Corruption Act, 1988 is enunciated hitherto-fore :-
"465. Finding or sentence when reversible by reason of error,
omission or irregularity.--
(1) Subject to the provisions hereinbefore contained, no
finding,sentence or order passed by a Court of competent
jurisdiction shall be reversedor altered by a Court of appeal,
confirmation or revision on account of any error, omission or
irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before or
during trial or in any inquiry or other proceedings under this
Code, or any error, or irregularity in any sanction for the
prosecution, unless in the opinion of that Court, a failure of
justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in
any proceeding under this Code, or any error, or irregularity
in any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier
stage in the proceedings."
297. A conjoint reading of the above extracted provisions would reveal that
a finding of guilt rendered by the Trial Court cannot be upset by the
Appellate Court solely on the premise of absence or irregularity of sanction
unless it is of the view that failure of justice has been occasioned thereby. It
is argued that none of the appellants have been able to shed an iota of light
on the crucial aspect as to how failure of justice has occasioned in the
present case. Interpreting the above extracted provisions of law the Supreme
Court has held that benefit from any irregularity in sanction is not automatic
in nature and the accused must demonstrate the failure of justice stemming
from such irregularity.
Forgery
298. Attention is invited to section 464 IPC along with illustration (h)
appended thereto and explanation 1 coupled with illustration (d) and
(e)reveals beyond pale of controversy that the acts as proved to have been
committed in the present case fall within the purview of making a false
document.
299. Learned ASG submits that as proved by cogent evidence led at trial by
the prosecution, the original award lists were illegally taken out of the sealed
almirah and fresh award lists were created later in time with drastically
different contents to achieve the ends of conspiracy and the said lists which
were fraudulently created, were substituted in place of the genuine award
lists. The present case is not of mere innocuous ante-dating of a document by
its authorized maker as projected by the appellants but of fraudulent creation
of a document giving an impression that it was created much earlier in time
than it was actually created and having drastically different contents than the
documents for which it was substituted. The fact that such document created
later in time had drastically different contents than the original document
signifies the fraudulent purpose for its creation.
300. It is contended that explanation 1 appended with Section 464 IPC
unequivocally evinces that a man's signature of his own name may amount
to forgery. Therefore, the argument that the accused had not tinkered with or
executed the signatures of some other person without his lawful authority is
of no avail and is liable to be rejected. It is a trite proposition of law that the
explanation and illustrations appended with the main provision are to be
harmoniously read together in interpreting the compass and scope of the
main statutory provision.
Valuable Security
301. Reliance is placed on a Constitution Bench judgment of the Supreme
Court in the case of Shankarsan Dash v. U.O.I reported as (1991) 3 SCC
47 wherein it was held that although successful candidates do not acquire an
indefeasible right to be appointed and the same can be legitimately denied,
however, it does not mean that the State has the license of acting in an
arbitrary manner. The decision not to fill up the vacancies has to be taken
bona fide for appropriate reasons. If the vacancies or any of them are filled
up, the State is bound to respect the comparative merit of the candidates, as
reflected at the recruitment test, and no discrimination can be permitted. The
Supreme Court has expressly recognized the rights of such candidates but
qualified/subjected those rights to an overriding will of the State not to give
effect to such appointments for diverse policy considerations which must be
legitimate. The fact that the Supreme Court has employed the phraseology-
―... successful candidates do not acquire an indefeasible right to be
appointed..."itself is indicative of the fact that such candidates do enjoy a
right, however the same may not be absolute and can be defeated by the will
of the State manifested through its policy decision not to go through the
appointment for legitimate reasons that it would need to justify.
302. It has been further held that such persons enjoy a right to be
considered for appointment and the appointing authority cannot ignore the
select panel or decline to make an appointment on its whims [A.P Aggarwal
v. Govt. of N.C.T of Delhi and Another, (2000) 1 SCC 600].
303. The facts of the present case pertinently reveal that the appointments
were not scraped by any policy decision of the Haryana Government, but
rather the award lists prepared by the District Level Selection Committees
were illegally substituted in furtherance of a well orchestrated conspiracy by
fake/altered award lists prepared much later in time. Therefore, it cannot be
urged that the select persons had no legal right in eyes of law. Significantly,
at no point of time the government exercised its overriding will recognized
under law to eclipse or negate the rights of such candidates but rather
criminal efforts were directed towards substitution of lists. Thus, it is
submitted that since the ―award lists‖ lead to the accrual of legal rights in
favour of persons, such ―award lists‖ fall within purview of the term
―valuable-security‖ envisaged under Section 30 of the Indian Penal Code,
forgery whereof is punishable under Section 467 of the Code as its
aggravated form.
Handwriting and signature specimens
304. It is highlighted that in the present case the handwriting exemplars
(specimens) of various accused persons were sent for forensic examination
vide letter of request dated 08.05.06. Significantly, the said period is
evidently prior in time to the date of effect of Section 311-A Cr.P.C. viz. 23-
06-2006. It is submitted, that since Section 311-A Cr.P.C. was not operative
at the relevant time when the investigation agency obtained the handwriting
exemplars from the accused persons, there existed no provision under the
law for the time being in force prescribing a duty or a procedure to approach
the magistrate for obtaining such exemplars.
305. The Supreme Court in its recent judgment in the case of Rabindra
Kumar Pal alias Dara Singh v. Republic of India reported as (2011) 2
SCC 490, negatived the contention of the appellant-accused that his
exemplars were required to be obtained before the Magistrate and in its
absence such evidence was liable to be jettisoned from consideration.
Reliance is also placed upon Navjot Sandhu case (Supra) wherein such an
argument was repelled by the Hon'ble Supreme Court in the following
terms:-
―In this context, a contention was raised before the High
Court that in view of Section 27 of POTA, specimen
signature should not have been obtained without the
permission of the Court. In reply to this contention urged
before the High Court, Mr. Gopal Subramanium, the learned
senior counsel for the State clarified that on the relevant date,
when the specimen signatures of Afzal were obtained, the
investigation was not done under the POTA provisions and
de hors the provisions of POTA, there was no legal bar
against obtaining the handwriting samples. The learned
counsel relied upon by the 11 Judge Bench decision of this
Court in State of Bombay v. Kattikalu Oghad : 1961CriLJ856
in support of his contention that Article 23 of the Constitution
was not infringed by taking the specimen handwriting or
signature of a person in custody. Reference has also drawn to
the decision of this Court in State of U.P. v. Boota Singh :
[1979]1SCR298. We find considerable force in this
contention advanced by Mr. Gopal Subramanium. In fact this
aspect was not seriously debated before us‖
306. Thus, it is not open for the appellants to canvass the said argument
before this Court. It has been repeatedly held by the Apex Court that judicial
discipline obliges the High Courts of the land to follow the judgments of the
Supreme Court and the mere fact that a particular provision or argument was
not considered by the Supreme Court while deciding a case would not
denude its precedential value.
307. Strong reliance is placed on a judgment of a Three-Judge Bench of
this High Court in Sapan Haldar (supra). As a matter of fact the judgment
in Sapan Haldar case (supra) rightly recognizes the fact that the Magistrate
could not have been approached by the investigating agency in terms of
Section 5 of the Identification of Prisoners Act, 1920 for obtaining
handwriting exemplars. The Court rightly opined in Para 31(i) that
handwriting and signatures are not ―measurements‖ and, therefore, do not
fall within the ambit of the Identification of the Prisoners Act, 1920.
However, it is submitted that in Para 19, it was erroneously concluded that
the police officer during investigation could not have obtained such
signatures on his own. It would be pertinent to highlight that the said
conclusion is sans any reasoning or discussion whatsoever.
308. The High Court in Sapan Haldar's case (supra) did not advert its
precious consideration to the definition of the term ―investigation‖
prescribed under Section 2(h) of Cr.P.C. which has also been subject matter
of interpretation in catena of judgments of the Supreme Court which have
held it to have a broad and inclusive connotation. The High Court lost sight
of the fact that the Supreme Court in its judgment in the case of Selvi v. State
of Karnataka reported as (2010) 7 SCC 263 has held that the term
―investigation‖ includes steps which are not exhaustively and expressly
enumerated.
309. Learned counsel submits that the lawmakers never intended to
expressly and exhaustively lay down in a statute such as the Code of
Criminal Procedure, 1973 what ―investigation‖ would mean and include. The
legislature in its wisdom only provided an inclusive definition as has been
recognized by the Apex Court. Therefore, the prosecution it is empowered to
obtain the handwriting exemplars of the accused itself while exercising its
wholesome powers of investigation (power coupled with duty) as inclusively
defined under Section 2(h) of Cr.P.C. to be an act for the purpose of
collection of evidence. Section 311-A Cr.P.C. introduced with effect from
23.06.2006 only regulates the procedure for obtaining such handwriting
exemplars and was enacted in furtherance of the observations of the
Supreme Court of India in its judgment in the case of State of U.P v. Ram
Babu Misra, reported as (1980) 2 SCC 343. The said provision cannot be
construed to be a provision which provides the source of power for obtaining
handwriting exemplars but only a procedural safeguard introduced by the
legislature for future to regulate the otherwise uncanalised power which pre-
existed before enactment of the said provision.
310. In the alternative, it is also argued that even if handwriting exemplars
have been obtained in violation of the procedure prescribed under law, such
evidence obtained would not be rendered inadmissible. It has been held by
the Apex Court that the law in this country as following suite from the law in
England is that the test of admissibility lies in relevancy and an evidence
cannot be excluded from judicial consideration merely because it was
obtained in violation of procedure prescribed under law as long as there
exists no such prohibition under the law of evidence governing the field.
Cheating
311. At the outset it is highlighted that the Trial Court has returned a
finding of guilt for the offence punishable in terms of Section 418 of the
IPC, amongst other offences. The provision is extracted herein below:-
―418. Cheating with knowledge that wrongful loss may
ensue to person whose interest offender is bound to
protect.--Whoever cheats with the knowledge that he is
likely thereby to cause wrongful loss to a person whose
interest in the transaction to which the cheating relates, he
was bound, either by law, or by a legal contract, to protect,
shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or
with both.‖
312. It is submitted that a bare perusal of the said provision would
unequivocally evince that the said section contemplates the mere likelihood
of wrongful loss as a sufficient ingredient of the offence and the prosecution
is not obliged to prove actual wrongful loss, contrary to the submissions that
have been canvassed on behalf of the appellants ipse dixit de hors any
jurisprudential basis. The term ―cheating‖ is defined under Section 415 of
the IPC and the contents of the same are also extracted hitherto-fore
―415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to consent that any
person shall retain any property, or intentionallyinduces the
person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to
that person in body, mind, reputation orproperty, is said to
―cheat‖.‖
313. It is evident from the language employed by the legislature while
penning the above extracted provision, that the prosecution may endeavour
to pitch its casethrough either of the two limbs contemplated under the said
provision i.e. either by proving fraudulent intent on part of the accused or a
dishonest intent. The law, opposed to common parlance, carves a careful
distinction between the term ―dishonestly‖ as defined under Section 24 of
IPC and ―fraudulently‖ as defined under Section 25 of IPC.
―24. ―Dishonestly‖.--Whoever does anything with the
intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing ―dishonestly‖‖
―25. ―Fraudulently‖.--A person is said to do a thing
fraudulently if he does that thing with intent to defraud but
not otherwise.‖
314. The Apex Court has held that perusal of section 24 laments the fact
that it is sufficient for the prosecution to prove that the act was done either
with the intention of causing wrongful gain or wrongful loss and it is not
necessary to prove both. The courts across the land while interpreting the
term fraudulently as defined under the IPC have consistently held that there
exists a distinction between an act done dishonestly and an act done
fraudulently. If the deceitful act willfully exposes anyone to the risk of loss,
there is fraud. Thus, the prosecution is not obligated to prove actual wrongful
loss but even risk of loss brings the act within the purview of the term
―fraudulently‖. This is also in consonance with the ingredients of section 418
IPC, wherein as highlighted earlier, the likelihood of wrongful loss is
sufficient to constitute the said offence.
315. In the facts of the present case it is pointed out that the prosecution
was handicapped from leading evidence of actual wrongful loss or actual
wrongful gain, as Sanjiv Kumar (A-3) withheld the original award lists of
few districts in consequence of which a joint merit list of the genuine award
lists could not be created during investigation to demonstrate which
candidates actually deserved to have been selected if order of merit was
followed.As a matter of fact, Sanjiv Kumar (A-3) clearly admitted in his writ
petition [Part 8/ D-37-D-66/D-64/Page 25-53 @ Pg 32 & 35] that he was in
possession of the award lists for all the districts of Haryana, yet he wittingly
did not hand over all the lists before the Supreme Court of India or the CBI
during investigation. Upon being duly cross-examined by the Learned
Prosecutor on this aspect, Sanjiv Kumar (A-3) was evasive and did not
tender any plausible explanation whatsoever. However, as highlighted above,
it is not the requirement of law for the prosecution to prove the actual
wrongful loss and mere likelihood or risk of loss is sufficient to bring the
acts of the accused within the four corners of Section 418 of IPC.
316. Even otherwise, it is highlighted that the prosecution examined two
candidates (PW-51 and 53) from district Faridabad who had participated in
the interview for the JBT teachers appointment held in December 1999 and
the marks secured in the interview were substantially reduced in the
Directorate List as compared to those secured in the Supreme Court List.
317. In conclusion, it is submitted that the Haryana Government was,
therefore, induced by the fraudulent acts of the accused, to deliver
‗property'-appointment letters in favour of persons. The Apex Court has held
that the connotation ―property‖ includes any document having value in the
hands of its holder and may not necessarily possess pecuniary worth.
Appointment Letter would unquestionably be a species of such documents
which may be termed as ‗property' for the purpose of Section 415 of the
IPC.
Discharge of Brij Mohan
318. Pithily stated, the Trial Court was of the considered view that by
scribing ‗UP' under his signatures, Brij Mohan had clearly disassociated
himself from the conspiracy at the very inception and was, therefore, not
liable to be charged.
319. It is highlighted that the said order attained the imprimatur of the High
Court of Delhi in collateral proceedings; wherein the inherent jurisdiction of
this Court was invoked by a co-accused- Pushkar Mal Verma seeking parity
with Brij Mohan and praying for discharge. The petition was dismissed vide
order dated 01.06.2012 [Vol- 1A/Pages 9-15] and the order dated 23.07.2011
passed by the Learned Trial Court was affirmed by this Court.
320. It is submitted that the appellants before this Court (A-6 to A-62) are
not entitled to benefit of acquittal on the ground of parity with Brij Mohan
on two counts, enunciated hitherto-fore :-
Firstly, there is no shred of evidence whatsoever to indicate that the
said appellants despite their appending signatures on the new award
lists, did not subscribe with the intention of the other co-conspirators
to commit crime and in that sense there was no ‗agreement' as
envisaged under Section 120-B IPC.
The plea canvassed by some of the appellants that they were under
pressure at the time of commission of crime (execution of signatures
on the second award list) has been sought to be essentially
substantiated by self-serving statements uttered in Section 313 and
suggestions tendered during cross-examination to prosecution-
witnesses which is not evidence in eyes of law- State v. Md. Misir Ali,
AIR 1963 Assam 151 (few appellant-accused examined defence
witnesses to substantiate their defence of pressure). Furthermore, the
pressure/threats pleaded by such appellants are not of such nature and
quality, as required under our legislative policy manifested under
Section 94 of the IPC -an anticipated harm of instant death, to
immunize them from the consequences of their crimes. Therefore,
arguendo, even if the assertions of various appellants that they were
pressurized to append their signatures on the second award lists is
accepted to be true, but even in such eventuality, defence of pressure
cannot be successfully availed as the pressure pleaded to have been
exerted was not of the hilt/degree as contemplated under Section 94 of
the Indian Penal Code.
Learned ASG also points out that during the course of arguments in
the present batch of appeals before this Court, some appellants have
for the first time sought to claim the benefit under Section 90 of the
Indian Penal Code. Section 90 of the IPC merely laments that consent
is not a valid consent under the penal code, if the same is given under
fear of injury or misconception of fact. It is respectfully submitted that
the said provision is ex-facie inapplicable to the offences comprised in
the present case and would only be applicable to those provisions
(offences) of the Indian Penal Code, wherein ―consent‖ is an integral
ingredient thereof, such as Section 313- Causing miscarriage without
woman's consent, Section 375-Rape etc.
Secondly, even if this Court were to hold that the order of discharge
dated 23.07.11 passed by the Trial Court qua Brij Mohan is
improper/illegal in the eyes of law, in as much as the Trial Court erred
in not applying the test of Section 94 IPC to Brij Mohan; who was also
not facing pressure of instant death like other co-accused/appellants,
no consequent benefit can flow to the co-accused/appellants as Article
14 of the Constitution of India envisages equality as a positive concept
and does not embody its negative connotation. It has been held by the
Apex Court and various High Courts that advantage of an erroneous
acquittal of a co-accused would not accrue to an accused. The same
principle applies with full force to the facts of the present case.
Recently the Supreme Court in its judgment delivered on 17.09.13 in
Ajoy Acharya v. State Bureau of Investigation, Criminal Appeal No.
1454 of 2013 pertinently observed that ―Parity in law can be claimed
only in respect of action rightfully executed and not otherwise.‖
321. It is also pointed out that there exist profusion of authorities and
consensus of judicial opinion that the evidence of a person, who could have
been arrayed as an accused or who has been improperly/illegally discharged,
is admissible in evidence at trial. Therefore, the fact that Brij Mohan was not
tendered pardon by the prosecution in accordance with the procedure
established under the Code or even if the discharge of Brij Mohan is held to
be illegal, his evidence tendered at trial as PW-17 would remain admissible.
[Sital Singh v. Emperor-(1919) ILR 46 Cal 700 ; Banu Singh v. Emperor,
(1906) ILR 33 Cal 1353; Laxmipat Choraria and Others v. State of
Maharashtra, AIR 1968 SC 938; Chandran v. State of Kerala, (2011) 5
SCC 161; Prithipal Singh v. State of Punjab, (2012) 1 SCC 10.]
OBSERVATIONS ON LEGAL ARGUMENTS
322. I have heard rival submissions advanced on behalf of each appellant at
painstaking length and considered the issues with reference to the evidence
on record and the applicable law in conscientious detail. Since certain
arguments on behalf of A-1, A-2, A-4 and A-5 raise common questions, they
are being dealt with at the beginning. Broadly examined, three main issues
arise for consideration:
(i) Admissibility and intrinsic worth of testimony of A-3
inculpating other appellants under Section 315 CrPC,
(ii) Perfunctory examination of all appellants under Section
313 Cr.P.C. and
(iii) Credibility of testimonies of PW-16, PW-23 and PW-26
in light of the discrepancies pointed out.
323. At the first instance, it was argued that the statement made pursuant to
Section 315 Cr.P.C. is only admissible to the extent that it is in disproof of
the charges against the maker of that statement. Portions of such statement
that are incriminating a co-accused are to be expunged from consideration.
324. Section 315Cr.P.C. is reproduced below
―Section 315 - Accused person to be competent witness
i) Any person accused of an offence before a Criminal Court
shall be a competent witness for the defence and may give
evidence on oath in disproof of the charges made against him or
any person charged together with him at the same trial:
Provided that--
(a) he shall not be called as a witness except on his own request
in writing;
(b) his failure to give evidence shall not be made the subject of
any comment by any of the parties or the Court or give rise
to any presumption against himself or any person charged
together with him at the same trial.
ii) Any person against whom proceedings are instituted in any
Criminal Court under section 98, or section 107, or section 108,
or section 109, or section 110, or under Chapter IX or under
Part B, Part C or Part D of Chapter X, may offer himself as
a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or
section 110, the failure of such person to give evidence shall not
be made the subject or any comment by any of the parties or the
Court or give rise to any presumption against him or any
other person proceeded against together with him at the same
inquiry.‖
325. Section 315 Cr.P.C., 1973 traces its historical roots to Section 342-A
of Cr.P.C., 1898 which is pari materia similar except addition of a clause
under Section 315 Cr.P.C., 1973 which does not assume relevance for the
purpose of controversy at hand.
326. A careful and meaningful reading of the said provision brings to fore
two relevant facts - firstly, there is no bar comprised in the said provision for
use of statements made by an accused against a co-accused and secondly, the
predominant object of the provision is to enable the accused to step into the
witness box in disproof of charges against him or his co-accused and
therefore, it is not incumbent upon him mandatorily to attempt to save the
co-accused, although he is permitted to do so. The use of the word ‗or'
employed by the legislature at this juncture assumes significance. It must
also be born in mind that facts of a case may be such that an accused in order
to disprove the charges leveled against him by the prosecution and to
demonstrate his innocence in the matter, may be required to throw light upon
the acts or omissions of the co-accused at trial; who according to him may be
the real culprits. It would be unreasonable to contemplate a ‗testimonial
compulsion' in law warranting an accused to always depose in favour of his
co-accused.
327. This view is further fortified by the observations of the Supreme Court
in Tribhuvan Nath (supra). Paras 29, 30 and 31 throw some light on the
issue and are reproduced as under:
―29. The first question is, whether the trial Judge was right in
using the evidence given by accused 3 which he gave as a
witness in his defence the position with regard to such
evidence is that when a person, accused along with others,
voluntarily steps in the witness box as a witness in defence,
he is in the same position as an ordinary witness, see Peoples
Insurance co. Ltd. v. Sardar Sardul Singh Caveeshar AIR
1962 PUNJ 101 and Jibachh Shuh v. The State
AIR1965Pat331 and is there-fore, subject to cross-
examination by the prosecution counsel & evidence brought
out in such cross-examination can be used against his co-
accused, (see The King v. James Paul (1920) 2 K.B 183.
(such a witness incriminates his co-accused, the other
accused, jointly tried with him, has the right to cross-examine
him if he wants so to do. (Rex. v. Hadwen (1902) 1 K.B. 882.
This has been the position in England after 1898 when
accused persons were made competent witness. The same
consequences must also flow after accused persons have been
made competent witness for the defence Under Section 342A
of the Cr. PC As counsel for the appellant informed us. since
accused 3 volunteered to enter the witness box as a witness in
his defence, he was in fact cross-examined not only by the
prosecution but also by counsel for the other accused. Of-
course, an accused person cannot be compelled to give
evidence on "in disproof of the charges" in Section 342A. But
once his evidence as a witness for the defence is on record,
under Section 10 of the Evidence Act, 1872, evidence, as to
the communications between one conspirator and the other
during the time that the conspiracy is going on and relating to
implementing that conspiracy, is relevant evidence. The
statements by one accused to another and the evidence as to
the acts done by him disclosing participation by the other
accused in the conspiracy are also relevant. As to whether
they merit reliance or not is another question depending upon
their credibility.
30. As aforesaid, the evidence of Puransingh, Elavia and
Mosin Burmawalla was held by the Trial Judge as
accomplice evidence in that each of them had in one way or
the other helped the accused in furthering their objectives. In
such a case the duty of the court apprising the evidence
clearly is to apply the double test as laid down in Sarwan
Singh v. State (1902) 1 K.B. 882. The court, therefore, has
first to see whether the evidence of an accomplice is reliable,
and secondly, even if it is so, whether it is corroborated in
material particulars by other independent evidence, direct or
circumstantial. As Sarwan Singh's case 1957CriLJ1014
points out, the test of reliability is the same as the one applied
to all witnesses. Therefore, it does not mean that an
accomplice's evidence cannot be relied upon unless it is
totally and absolutely blemishless. In majority of cases such
is not the case and inspite of some discrepancies and other
such infirmities, courts have often found it safe to act on the
evidence of such witness. A case illustrating this proposition
is to be found in Sarvanabohavan v. Madras 1966CriLJ949
where the evidence of the approver contained certain
discrepancies and was also contradicted by the testimony of
another witness and yet that evidence was held to pass the
test of being credible and was accepted as it was also
corroborated by other evidence. Regarding the second test,
that is, of the necessity of corroboration, such corroboration
need not, on the one hand, be of every particular given by an
accomplice, and on the other hand, of only minor particulars.
The corroboration must be adequate enough to afford the
necessary assurance that the main story testified by the
accomplice can be reasonable and safely accepted as true.
Ramanlal v. The State AIR1960SC961 .
31. Reading the evidence given by these witnesses, as also
the evidence of accused 3, there were undoubtedly not only
discrepancies in their evidence but each one of them was
trying to make out that his acts were innocent and without the
knowledge that he was furthering the culpable objects of the
accused. A perusal of the very elaborate judgement of the
Trial Judge shows, however, that he had kept in the forefront
of his mind this fact and then had considered as an initial step
the question whether their evidence notwithstanding the
aforesaid infirmities, was credible in the sense that the things
which they had deposed were true. It is impossible, for
instance, to discard their version about the drafts and cheques
having been illegally intercepted during their postal
transmission, the opening of fraudulent bank accounts on the
strength of forged introduction forms deceiving the bank
employees into opening false accounts by false impersonation
and ultimately obtaining cash proceeds under the said stolen
negotiable instruments. There is also no doubt that this
version found sufficient corroboration not only in the
evidence of the payees to whom their constituents had sent
those instruments and who never received them, but also in
the evidence of the managers and agents of the different
banks who were deceived by one or the other accused. In
these circumstances, it is not possible to say that the Trial
Judge acted on the accomplice without applying the double
test laid down in Sarvan Singh's case.‖
328. It, therefore, clearly emerges that firstly, there is no bar on
admissibility of evidence of an accused against his co-accused. The
worthiness of such evidence is to be seen through the prism of corroboration.
Secondly, once an accused steps into the witness box and gives evidence on
oath, he is to be treated as an ordinary witness. All legal principles governing
the credibility of a witness shall necessarily follow, including the test of
veracity through cross examination. An accused deposing against a co-
accused under Section 315 has to endure dual cross examination. Once by
the prosecution which may bring forth discrepancies in a case where his
statement is exculpatory qua him and then by a co-accused against whom he
deposes giving inculpating evidence.
329. Much stress was laid on the term ‗disproof' to demonstrate the
purposive intent of legislature in enacting Section 315. Black's Law
Dictionary defines ‗disprove' as follows:
Disprove- To refute; to prove to be false or erroneous; not
necessarily by mere denial, but by affirmative evidence to the
contrary
330. This definition further highlights that evidence in disproof of a charge
includes affirmative evidence to the contrary. Such affirmative evidence may
or may not incriminate a co-accused. To put things in perspective, as
illustrated by Mr. Cheema, in a case of narcotics possession, the driver of a
car being a co-accused is permitted to say that he is merely a permissive user
of the vehicle. Now in order to establish this, he will obviously have to point
out to whom the vehicle belongs to and who is the actual owner of the
contents found in that vehicle. As rightly pointed out by learned Counsel Mr.
Khanna, if such evidence were inadmissible there would be no need to
labour on conducting cross examination of such witness by a co-accused.
Cross examination being the most powerful tool to illicit the truth, the very
purpose of such cross examination is to provide a fair opportunity to a co-
accused to destroy the credibility of such accused.
331. The ratio in Yusufbhai (supra) is opposed to the binding precedent
laid down in Tribhuvan Nath and in ignorance of the principles laid down in
Tribhuvan. Therefore, it cannot support the argument of the appellants.
332. Testimony of A-3 is then attacked on the ground the evidence of A-3
being in the nature of accomplice evidence has to confirm to the test of
inculpating himself, failing which his evidence cannot be used against a co-
accused.
333. It is factually correct that A-3's evidence is exculpatory qua the
offences for which he was charged. Learned ASG for CBI has however
urged that there is no requirement engrafted by the legislature either in
Section 21 of the Prevention of Corruption Act, 1988 Section 315 of Cr.P.C.,
1973 or Section 133 of the Indian Evidence Act, 1872 which deals with the
admissibility of the evidence tendered by accomplice.
334. As a matter of fact, the prosecution has cited the decision of the
Supreme Court reported as Subramania Goundan v. State of Madras, AIR
1958 SC 66 and the decision of the Privy Council reported as Mahadeo v.
The King,(1936) 44 L.W 253, wherein it has been held that an accomplice
who completely exculpates himself may require corroboration and the court
did not treat such evidence inadmissible per se.
335. A conjoint reading of these two cases along with Para 31 of Tribhuvan
(supra) clearly establishes that a statement cannot be inadmissible on the
ground that it is wholly exculpatory.
336. It also assumes significance that the Learned Counsels for appellants
could not cite any authority in support of their submission in this regard and
Mr. R.S.Cheema, Learned Senior Counsel appearing in rebuttals in his
fairness, admitted before the Court through a note dated 20.12.2013, that on
first principle there may be no pre requisite of self incrimination for
admissibility of statements made by an accused against the co-accused and
no decision of any court in support of such a proposition which was
canvassed by them earlier could be found.
337. I agree with the submission that the concept of self incrimination
emerges as a necessary pre-requisite for statements of the accused which fall
within the ambit of Section 30 of the Indian Evidence Act. The evidence
contemplated as admissible under Section 30 of the Indian Evidence Act is
materially different in its nature and quality from the evidence of an
accomplice which is admissible under Section 133 of the Indian Evidence
Act. The two cannot be adjudged on an equal footing. Tribhuvan case
(Supra) clearly prescribes the applicability of Section 133 of the Indian
Evidence Act to the testimony of an accused who steps in the witness box
and deposes against the co-accused.
338. It can, therefore, be observed that the confessional statements made by
an accused under Section 30 are not subject to cross-examination by the
accused against whose interest they may be made. Such statements would
put a co-accused at a disadvantaged position as he would not even get an
opportunity to cross examine the maker of such statement. The purpose for
the limited use of such statements of an accused against the co-accused in
terms of Section 30 of the Indian Evidence Act lies in the fact that the
accused incriminates himself as well which affords some assurance of truth.
339. In view of the above described sublime philosophy, the Apex Court
has held that evidence under section 133 of the Indian Evidence Act is of
superior quality and higher pedestal then evidence/ material under Section 30
of the Indian Evidence Act. [Haricharan Kurmi v. State Of Bihar, AIR
1964 SC 1184 and Haroon Haji Abdulla v. State of Maharashtra, AIR
1968 SC 832]
340. Therefore, in ultimate analysis, self incrimination is not a condition
precedent for admissibility of evidence of an accomplice against his co-
accused. No such requirement has been engrafted in any statutory provision
dealing with the evidence of accomplices. Rather insistence of self
incrimination would militate against the very object of introducing Section
315 Cr.P.C. wherein an accused steps into the witness box in disproof of
charges against him and he, therefore, cannot be expected /compelled by a
convoluted interpretation of law to admit charges against him.
341. Appellants (A-1 to A-62) have unanimously taken issue on the aspect
of perfunctory examination under Section 313 Cr.P.C. on two broad grounds.
One group of appellants are aggrieved by the fact that incriminating evidence
that has come forth by way of testimony of co-accused under Section 315
has not been put to them for their explanation under Section 313 Cr.P.C.
The other group has made a general grievance regarding the manner in
which the learned Judge has drafted common set of questions for all
appellants who are committee members and questions unconnected with
their case have been put to them. As a consequent effect, it is urged that
evidence not put to the appellants for their explanation should not be
considered.
342. Section 313 Cr.P.C. reads as under:
Section 313 - Power to examine the accused
i) In every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing in
the evidence against him, the Court--
(a) may at any stage, without previously warning the accused
put such questions to him as the Court considers
necessary;
(b) shall after the witnesses for the prosecution have been
examined and before he is called on for his defence
question him generally on the case:
Provided that in a summons-case where the Court has
dispensed with the personal attendance of the accused, it
may also dispense with his examination under clause (b).
ii) No oath shall be administered to the accused when he is
examined under subsection (1).
iii) The accused shall not render himself liable to punishment
by refusing to answer such question, or by giving false
answers to them.
iv) The answers given by the accused may be
taken into consideration in suchinquiry or trial, and put in
evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to
show he had committed.
v) The Court may take help of Prosecutor and Defence
Counsel in preparing relevant questions which are to be
put to the accused and the Court may permit filing of
written statement by the accused as sufficient compliance
of this section.
343. The sublime philosophy behind Section 313 is to ensure that the
accused has opportunity to explain the evidence in support of the charge
against him at trial. The court is under a legal obligation to put the
incriminating circumstances before the accused and solicit his response. The
Supreme Court in the case reported as Jai Dev v. The State of Punjab AIR
1963 SC 612 has elaborated on the test of this procedural compliance:
―21. In support of his contention that the failure to put the
relevant point against the appellant Hari Singh would affect
the final conclusion of the High Court, Mr. Anthony has
relied on a decision of this Court in Hate Sigh Bhagat Singh
v. State of Madhya Bharat AIR1953SC468 . In that case, this
Court has no doubt referred to the fact that it was important
to put to the accused each material fact which is intended to
be used against him and to afford him a chance of explaining
it if he can. But these observations must be read in the light
of the other conclusions reached by this Court in that case. It
would, we think, be incorrect to suggest that these
observations are intended to lay down a general and
inexorable rule that wherever it is found that one of the point
used against the accused person has not been put to him,
either the trial in vitiated or his conviction is rendered bad.
The examination of the accused person under s. 342 is
undoubtedly intended to give him an opportunity to explain
any circumstances appearing in the evidence against him. In
exercising its powers under s. 342, the Court must take care
to put all relevant circumstances appearing in the evidence to
the accused person. It would not be enough to put a few
general and broad questions to the accused, for by adopting
such a course the accused may not get opportunity of
explaining all the relevant circumstances. On the other hand,
it would not be fair or right that the Court should put to the
accused person detailed questions which may amount to his
cross-examination. The ultimate test in determining whether
or not the accused has been fairly examined under s. 342
would be to enquire whether, having regard to all the
questions put to him, he did get an opportunity to say what he
wanted to say in respect of prosecution case against him. If it
appears that the examination of the accused person was
defective and thereby a prejudice has been caused to him, that
would no doubt be a serious infirmity. It is obvious that no
general rule can be laid down in regard to the manner in
which the accused person should be examined under s. 342.
Broadly stated, however, the true position appears to be that
passion for brevity which may be content with asking a few
omnibus general questions is as much inconsistent with the
requirements of s. 342 as anxiety for thoroughness which
may dictate and unduly detailed and large number of
questions which may amount to the cross-examination of the
accused person. Besides, in the present case, as we have
already shown, failure to put the specific point of distance is
really not very material.‖
344. It bears no reiteration that any omission on the part of the trial judge to
put all incriminating evidence to the accused would not ipso facto vitiate the
trial. The omission, if any, has to be judged through the scale of
corresponding prejudice caused that results in miscarriage of justice.
Observations of the Supreme Court in the case reported as Satyavir Singh
Rathi v. State through C.B.I., AIR 2011 SC 1748/(2011) 6 SCC 1 assume
significance. Relevant paras have been reproduced:
―30. It must be highlighted that the judgment in this case was
rendered in the background that in the absence of any
provision in law to enable an accused to give his part of the
story in court, the statement under Section 342 (now 313)
was of the utmost important. The aforesaid observations have
now been somewhat whittled down in the light of the fact that
Section 315 of the Code of Criminal Procedure now makes
an accused a competent witness in his defence. In Vikramjit
Singh's case (supra), this Court again dwelt on the importance
of the 313 statement but we see from the judgment that it was
primarily based on an overall appreciation of the evidence
and the acquittal was not confined only to the fact that the
statement of the accused had been defectively recorded. In
Ranvir Yadav's case (supra) this Court has undoubtedly
observed that even after the incorporation of Section 315 in
the Code of Criminal Procedure, the position remains the
same, (in so far as the statements under Section 313 are
concerned) but we find that the judgment was one of acquittal
by the Trial Court and a reversal by the High Court and this
was a factor which had weighed with this Court while
rendering its judgment. In any case the latest position in law
appears to be that prejudice must be shown by an accused
before it can be held that he was entitled to acquittal over a
defective and perfunctory statement under Section 313. In
Shivaji's case (supra), a judgment rendered by three Hon'ble
Judges, it has been observed in paragraph 16 as under:
―It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the
basic fairness of a criminal trial and failures in this area
may gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed.
However, where such an omission has occurred it does
not ipso facto vitiate the proceedings and prejudice
occasioned by such defect must be established by the
accused. In the event of an evidentiary material not
being put to the accused, the court must ordinarily
eschew such material from consideration. It is also open
to the appellate court to call upon the counsel for the
accused to show what explanation the accused has as
regards the circumstances established against him but
not put to him and if the accused is unable to offer the
appellate court any plausible or reasonable explanation
of such circumstances, the court may assume that no
acceptable answer exists and that even if the accused
had been questioned at the proper time in the trial court
he would not have been able to furnish any good ground
to get out of the circumstances on which the trial court
had relied for its conviction. In such a case, the court
proceeds on the footing that though a grave irregularity
has occurred as regards compliance with Section 342,
Code of Criminal Procedure, the omission has not been
shown to have caused prejudice to the accused.‖
31. The judgment in Santosh Kumar Singh's case (supra) is to
the same effect and is based on a large number of judgments
of this Court.
32. It is clear from the record herein that the Appellants, all
police officers, had been represented by a battery of
extremely competent counsel and in the course of the
evidence, the entire prosecution story with regard to the
circumstances including those of conspiracy and common
intention had been brought out and the witnesses had been
subjected to gruelling and detailed cross-examinations. It also
bears reiteration that the incident has been admitted, although
the defence has sought to say that it happened in different
circumstances. It is also signally important that all the
accused had filed their detailed written statements in the
matter. All these facts become even more significant in the
background that no objection had been raised with regard to
the defective 313 statements in the trial court. In Shobhit
Chamar's case (supra) this Court observed:
―We have perused all these reported decisions relied
upon by the learned advocates for the parties and we see
no hesitation in concluding that the challenge to the
conviction based on non-compliance of
Section 313 Code of Criminal Procedure first time in this
appeal cannot be entertained unless the Appellants
demonstrate that the prejudice has been caused to them.
In the present case, as indicated earlier, the prosecution
strongly relied upon the ocular evidence of the eye
witnesses and relevant questions with reference to this
evidence were put to the Appellants. If the evidence of
these witnesses is found acceptable, the conviction can
be sustained unless it is shown by the Appellants that a
prejudice has been caused to them. No such prejudice
was demonstrated before us and, therefore, we are
unable to accept the contention raised on behalf of the
Appellants.‖
33. These observations proceed on the principle that if an
objection as to the 313 statement is taken at the earliest stage, the
court can make good the defect and record an additional
statement as that would be in the interest of all but if the matter is
allowed to linger on and the objections are taken belatedly it
would be a difficult situation for the prosecution as well as the
accused. In the case before us, as already indicated, the objection
as to the defective 313 statements had not been raised in the trial
court. We must assume therefore that no prejudice had been felt
by the Appellants even assuming that some incriminating
circumstances in the prosecution story had been left out. We also
accept that most of the 15 questions that have been put before us
by Mr. Sharan, are inferences drawn by the trial court on the
evidence. The challenge on this aspect made by the learned
Counsel for the Appellants, is also repelled.‖
345. Counsel for the appellants have argued that an additional examination
should have been done when incriminating evidence cropped up after
statement of co-accused. It is a factual position that objection to defective
examination has only been raised at the appellate stage. I agree with the
submission that if any accused would have felt prejudiced, the objection
should have been raised at trial in order to cure the defect and failure to do so
evidences the fact that the appellants were not prejudiced. In this regard, I
would also say that having perused the 313 statements of appellants that
were pointed out during the course of arguments, as well as the evidence that
has come up by way of defence evidence. It is my view that none of the
appellants have been able to demonstrate exactly how they were prejudiced.
Whether it is through omission to put a question or through putting of
questions unconnected with the case of a particular appellant, I am not
convinced that any material irregularity has occasioned causing miscarriage
of justice.
346. In addition, the appellants have been adequately represented and those
appellants who have given evidence under Section 315 have been
extensively cross examined by the appellants they have deposed against.
Therefore, the argument of perfunctory examination under Section 313
Cr.P.C. based on the aforementioned two grounds stands rejected.
APPEAL OF A-3
347. A-3 has put forth his defense on two broad aspects:
i) That the Supreme Court lists are fake and the result was
declared on the basis of original lists i.e. Directorate lists
ii) Pointing out of evidence to show that he was not a conspirator
and in fact was the only one who tried to prevent the conspiracy
from execution and subsequently became the whistle blower.
Regarding the lists
348. Learned Senior Counsel Mr. Nigam has taken me through both lists of
each district to support his case. I have considered rival submissions district
wise as under:
I. Faridabad
i) Learned ASG Mr. Khanna has pointed out two features in the
Directorate list of this district that are most striking. The first
being presence of the date of ―09.12.2000‖ on page 39 of the
Directorate list and the second is the scribing of ―UP‖ on the
first few pages by a member of the Selection Committee, Brij
Mohan (PW-17). The date ―09.12.2000‖ mentioned on the
Directorate list is handwritten and is reflective of the fact that
this particular list was created in late 2000 and not in 1999
which leads to the irresistible conclusion that it is the fake
list.
ii) Much stress has been laid on the question whether the alleged
―UP‖ actually exists on the Directorate list and the testimony
of PW-17 has been attacked on many counts. I will start with
my impression of the ―UP‖. Visually, I have examined the
―UP‖ through a magnified lens and the ―UP‖ is seemingly
present on pages 6 and 8 and is very clearly present on pages
3,5,9 as well as on pages 11 and 13. PW-17 has deposed that
as evidence of protest, he had scribed ―UP‖ on a few of the
pages while signing the fake lists, however he could not do so
on all the pages without inviting attention and, therefore, it is
not present on all pages. This explanation is reasonable
considering the fact that these lists were signed under
pressure and it is not possible to leave evidence of protest that
is very distinctive and eye catching in the presence of those
very persons who were putting pressure to commit an illegal
act. The testimony of PW-17 is also inconsonance with the
―UP‖ that is present from pages 1 to 9 in D-4 which is the
Directorate list of district Faridabad.
iii) It has also been urged on behalf of Sanjiv Kumar (A-3) that
the forensic report does not evidence the existence of words
―UP‖ and on its strength it is sought to be submitted that no
such words have been scribed by Brij Mohan. Factually, the
forensic report is silent on aspect of ―UP‖. On behalf of CBI
it is argued that Brij Mohan was not cross-examined by
Sanjiv Kumar (A-3) and his version has gone uncontroverted
in evidence. Therefore, it is not open for him to belatedly
dispute the said fact. I have perused the said list with a
magnifying glass and it clearly evidences the existence of
words ―UP‖ under signatures of Brij Mohan on the first
thirteen pages. This argument is, therefore, rejected.
iv) Next is the attack on the testimony of PW-17. A-3 has argued
that the final report filed by the CBI is silent about the
existence of ―UP‖ on the Directorate list of this district. As
pointed out by Mr. Khanna, this argument loses value in view
of the fact that the statement of Brij Mohan under Section 161
Cr.P.C. mentions the existence of ‗UP' under his signatures
on the fake list and the said fact has also been taken note of
by the trial Judge at the time of order on charge. Therefore, it
cannot be said that the words ‗UP' have been belatedly
added. Furthermore, at the stage of submission of Final-
Report, Brij Mohan was treated as an accused and not as a
prosecution witness; therefore, his statement could not have
been in the Final-Report.
v) It has also been submitted on behalf of Sanjiv Kumar (A-3)
that the ‗UP' does not find mention in the affidavit dated
26.07.2003 filed by Brij Mohan. With respect to the affidavits
signed by all members, I am in agreement with the
observation of the trial judge. These affidavits were signed
by all members and chairperson of the Selection Committee
of all districts and were ‗stereo-type'. The deponents were
merely made to sign on the dotted line under pressure. In
view thereof, it cannot be expected that Brij Mohan would be
in a position to get further facts inserted in the same. These
facts clearly flow from the deposition of PW-17 Brij Mohan.
vi) It was pointed out on behalf of A-3 that Brij Mohan (PW-17)
has appended his signatures on three lists, however he
deposes about appending his signatures only on two lists. At
the outset it was argued that Sanjiv Kumar (A-3) has not
chosen to cross-examine the witness and is, therefore,
disentitled at this stage from impeaching his testimony on this
count. Counsel for CBI explains that the third list of District
Faridabad [D-61] is akin to the Directorate List of District-
Faridabad and may have been got signed from Brij Mohan
along with the Directorate List; who being under immense
pressure may have not observed that two lists were being got
signed from him. The veracity of this explanation cannot be
tested at this stage. PW-17 may have been able to explain the
third list if he were questioned in this regard. The fact
remains that D-4 is the Directorate list of this district and the
result was declared on the basis of interview marks awarded
in this list. This list contains the signatures of PW-17 along
with evidence of protest. Whether there is a third list which is
a copy of D-4 also containing signatures of PW-17 does not
create a doubt regarding the implementation of a list that he
was made to sign. Neither is there any argument put forth in
this regard by any appellant suggesting an alternate story or
explanation that would doubt the correctness of the statement
that the result was declared based on a list that contains
evidence of protest by PW-17. I, therefore, do not see how
this argument is directed at proving the genuineness or falsity
of either list.
vii) It has also been argued that the signatures of R.S Kukreja (A-
17) are not present on those pages of the Supreme Court List
which reflect the interview marks for the first two days when
he was the Chairperson of the Selection Committee before his
transfer whereas they are present on the Directorate list and,
therefore, this goes on to show that the Directorate list is the
genuine list and the Supreme Court list is the fake one. I have
examined all three documents. As noticed by the trial judge,
D-61 is in two parts, pages 1-28 containing a list that is
identical to the Directorate list in terms of formatting and the
marks awarded with the exception that it does not contain the
signatures of R. S. Kukreja and pages 29-68 is a photocopy of
the Supreme Court list obtained by placing a blank page on
the portion where the interview and grand total marks were
awarded. Mr. Khanna argues that R.S Kukreja (A-17) was an
accused at trial and since Brij Mohan was also the member of
the selection committee, he could have been in a position to
explain under what attending circumstances R.S Kukreja
omitted to append his signatures on the Supreme Court list,
however he was not cross-examined in this regard. Therefore,
it is submitted that an inadvertent omission of R.S Kukreja to
append his signatures on the Supreme Court list before being
transferred cannot tilt the balance in favour of the accused,
especially in absence of cross-examination of the relevant
witness in this regard. It assumes significance that the
members of District Selection Committees conducted these
interviews for the first time as the JBT teachers appointments
were earlier within the purview of HSSC and, therefore, some
inadvertent mistakes are bound to occur. I am inclined to
agree with this explanation. Part 2 of the document D-61
(pages 29-68) is clearly a photocopy of the Supreme Court
list that is obtained by covering the interview and grand total
marks. This is akin to the manner in which the fake lists were
prepared from the original lists. Again said, at this point we
can not speculate about the reason why R. S. Kukreja's
signatures are not appearing on the Supreme Court list.
Perhaps Brij Mohan could have shed some light on the matter
but he was not cross examined in this regard. However, this
by itself does not justify an implication that the Supreme
Court list is the fake one. I say so especially in view of the
two striking features of the Directorate list that have been
pointed out i.e. the date of ―09.12.2000‖ and presence of
―UP‖.
viii) On behalf of Sanjiv Kumar (A-3) it has been vehemently
contended that the discharge of Brij Mohan on the ground of
appending his signatures on the second award list under
pressure impelled the other accused to coin a similar defence
and falsely implicate Sanjiv Kumar for securing parity with
Brij Mohan. Mr. Khanna explains that even at the stage of
investigation many accused persons claimed that they were
under pressure from various quarters to create the second
award lists in the year 2000. For instance, the statement of
Ajit Singh Sangwan (A-26) dated 24-03-2006 recorded
during investigation in terms of Section 164, and statement of
Dilbagh Singh (A-35) dated 19-04-2006 highlights at the
earliest opportunity that he was under pressure of Sanjiv
Kumar (A-3). This submission is fallacious as it is premised
on incorrect facts and is accordingly rejected.
ix) It is also submitted on behalf of Sanjiv Kumar (A-3) that non-
examination of Suresh Giridhar by the prosecution casts
suspicion since in his presence Brij Mohan claims to have
scribed ―UP‖ under his signatures. I do not see how that
inference can be drawn. Brij Mohan has deposed that while
signing the second list he was apprehensive that Suresh
Girdhar may notice that he was scribing ‗UP' beneath his
signatures and thus he stopped scribing the same after few
pages when Suresh Giridhar got up from his seat. Therefore,
Suresh Girdhar obviously did not see him write the ―UP‖,
question of examining Suresh Giridhar to prove the existence
of ―UP‖ does not arise. Even otherwise, it has been held that
in cases of non-examination of a person as a witness, the
Investigating-Officer must be questioned to illicit the reasons
and in absence thereof, such an argument would not be
entertained. The Supreme Court has reiterated this principle
in a long line of decisions namely Jagdishprasad
Kashiprasad and Ors. v. The State of Maharashtra, AIR
1970 Bom 166; Dahari and Ors. v. State of Uttar Pradesh,
(2012) 10 SCC 256; Onkar and Another v. State of Uttar
Pradesh, (2012) 2 SCC 273; Manjit Singh v. State of
Punjab, Criminal Appeal No. 2042 of 2010 decided by the
Supreme Court on 13-09-2013. In the present case the
Investigating Officer has not been subjected to questioning in
this regard. Even otherwise, non-examination of an
additional-witness in support of the case of the prosecution is
only a question of corroboration. Corroboration ought not to
be demanded as a ritualistic formula. It is a settled
proposition that Courts seek quality of evidence and not its
quantity. The prosecution is not required to examine each and
every witness on every minor point. The law in this regard is
clearly enunciated in Sarwan Singh and Others v. State of
Punjab, (1976) 4 SCC 369; Veer Singh v. State of U.P,
Criminal Appeal Nos. 256-257 of 2009 decided by the
Hon'ble Supreme Court of India on 10-12-20143; Ramjee
Rai and Others v. State of Bihar, (2006) 13 SCC 229;
Chittar Lal v. State of Rajasthan, (2003) 6 SCC 397; Sunil
Kumar v. State Government of NCT of Delhi, (2003) 11
SCC 367; Namdeo v. State of Maharashtra, (2007) 14 SCC
150; Bipin Kumar Mondal v. State of West Bengal, (2010)
12 SCC 91.
x) Much emphasis has been laid on the fact that the prosecution
has suppressed one Brij Mohan s/o Late Ram Singh; who was
proposed to be examined as a prosecution witness as
evidenced from the List of Witnesses appended along with
the Final-Report and rather the prosecution surreptitiously
examined at trial accused-Brij Mohan s/o Sh. Ram as PW- 17.
The said submission is ex facie misconceived as PW-17 was
examined as a witness in furtherance of the order of his
discharge passed by the Trial Court and the observations
passed by the Court therein that he would serve as an
important witness. Brij Mohan s/o Late Ram Singh was a
mere formal witness-Superintendent in HSSC, Chandigarh;
who was not examined before the Trial Court as was not
deemed necessary by the prosecution. There is no link
whatsoever between the two and I am unable to appreciate the
relevancy of this argument. In any case, no question or
suggestion in this regard was ever put to the Investigating
Officer (PW-63).
II. Jind
i) The prosecution in relying on the testimonies of PW-14, PW-
5 and PW-2 to prove the falsity of the Directorate list of this
district.
ii) Learned Counsel on behalf of A-3 attacks the testimony of
PW-14 Dhup Singh on the ground that he was not a member
of the Selection Committee and as such presence of his
signatures on either list cannot be used as evidence of
genuineness or falsity of either list. According to this witness,
he did not sign the fake list, however, no explanation has
been put forth to explain why he did not sign it. Whether he
did not sign it on moral grounds or was it because he had no
authority to sign it in the first place, is very unclear. It has
emerged from the evidence of PW-5 that PW-14 did not sign
the fake list as he was on leave that particular day. A-3 cannot
be permitted to discredit the testimony of this witness on this
ground. The reason why did not sign the fake list pales into
insignificance as his testimony is being examined to establish
the genuineness and falsity of both lists. It is immaterial
whether he had authority to sign or not. The Directorate List
of District Jind which has been implemented and claimed by
Sanjiv Kumar (A-3) to be genuine also bears the signatures of
PW-2 Ravi Dutt and PW-5 Milap Singh; who were not the
members of the District Selection Committee. Thus, the
argument canvassed on behalf of Sanjiv Kumar (A-3) is self
defeating. Even otherwise, it has been explained by PW-14
during his deposition that he had appended his signatures on
the Supreme Court list as a token of preparing various
columns.
iii) The next argument on behalf of A-3 is aimed at establishing
that the copies of the original award lists were already
available with the District Selection Committee-Jind.
Therefore, it was not required that the original award list of
District Jind be supplied to Ajit Singh Sangwan (A-26) at
instance of Sanjiv Kumar (A-3) for getting the same
photocopied. A-3 seeks support from Subhash Chander (A-
3/DW-11) who was examined in his defense to purport a
claim that the fake award list for District Jind were dispatched
in a sealed envelope by Ajit Singh Sangwan (A-26) through
the said Subhash Chander on the first Saturday of September
2000 and he delivered the said envelope to Vidya Dhar (A-1)
at his residence. According to Sanjiv Kumar (A-3), the said
envelope was handed over as it is by Vidya Dhar (A-1) to
Sanjiv Kumar (A-3) and Sanjiv Kumar (A-3) without opening
the said envelope submitted the same before the Supreme
Court. The Investigating Officer had taken into custody the
said sealed envelope from the registry of the Supreme Court.
A-3 has argued that although he had opened all the fake lists
thrusted upon him for implementation before presenting the
same in the Supreme Court, but, he had deliberately kept the
envelope received from Jind, duly sealed and it was opened in
the Supreme Court. It is argued by A-3 that this proves that
sealed envelope containing the fake Jind list opened in the
Supreme Court, is the same list which Subhash Chander
delivered to Vidya Dhar. Subhash Chander has also identified
his writing on the Jind envelope Ex.PW-43/DA-1. It is
contended that the Trial Court being empowered in this
regard, did not make an attempt to compare the handwriting
of this witness with the one on the sealed envelope.
iv) I have perused the testimony of A-3/DW.11 and I agree with
the reasoning put forth by the CBI, the said witness had no
reason to oblige Ajit Singh Sangwan (A-26) by carrying his
confidential documents to Chandigarh as he was of his own
admission not subordinate to the DPEO. Additionally, it is
also rather unusual that A-26 would trust a total stranger with
documents of such a sensitive nature.
v) This witness has deposed that he delivered the fake lists to
Chandigarh on 1st Saturday of September, 2000. This version
is at variance with the dates stated by PW-14, PW-5 and PW-
2. It is also highly improbable that A-1 would not check the
list and have it remained sealed. There is another reason to
disbelieve the version projected by this witness. The story
about finding A-3 in Delhi to narrate his version is most
suspicious. A-3 being the prime accused, would have made
an attempt to forward the statement of this witness to the CBI.
If he did it, he did not make any suggestion to the IO
regarding withholding of this information. If he did not do it,
then the story of this witness seems a much belated version.
It also assumes significance that A-3 makes no mention of
any meeting with this witness in his statement under Section
315 Cr.P.C.
vi) The trial judge has also noticed that the photocopy of his
typed statement, purportedly faxed by his son, was in fact
sent through a fax machine from a residence in Vasant Kunj
i.e. near to the residence of A-3.
vii) This witness is also evasive in giving his specimen
handwriting for comparison. For the foregoing reasons, I do
not think this witness to be reliable in the least.
III. Panchkula
i) Both lists of this district are computerized. The prosecution is
relying on the testimony of PW-20 Hitesh Bansal, PW-18
Pradeep Kumar, PW-63 R.N. Azad and the scientific
evidence adduced by PW-65 U. Ramamohan- Computer
Forensic Expert, APFSL to show that a part of the Supreme
Court List of this district (D-21) was created on the computer
of Hitesh Bansal on 17.12.1999 at the instance of Rekha
Sharma (A-44), Member of District Selection Committee,
Panchkula. A printout of the award list from the seized
computer of Hitesh Bansal shows that the list was prepared
on 17.12.1999 and it tallies with the Supreme Court list.
Learned Counsel Mr. Khanna highlights that the HARTRON
list is also found appended with the Directorate List of
District Panchkula from Pages 13-19 which also creates
suspicion and lends credence to the fact that it is the fake list.
ii) A-3 has pointed out testimony of PW-65 who has deposed
that the MS Word software in the computer of PW-20 was
updated to the 2000. This is pointed out to prove that a
computer having the 2000 version of MS Word could not
have printed a list that was made in the year 1999 and that the
CBI has created false evidence to support their case. It is
pointed out that PW-65 has deposed in his cross examination
that it is possible to alter the clock in the system thereby
fortifying the argument that the CBI has tampered with
evidence. It is argued that the print out Ex.PW-20/C tallies
with the Supreme Court list and was in fact created in the
year 2000 and is, therefore, the fake list. It is argued on behalf
of A-3 that the hard disk of the computer belonging to PW-20
should have been seized which would have given correct
information regarding the dates on which documents are
created through chronological stamping. This was
deliberately avoided with a view to bury important evidence
regarding genuineness of the list.
iii) Merely on account of an updated version of MS Word in PW-
20 computer, it is not possible to conclude that a printout duly
examined by a forensic expert is a fabricated piece of
evidence. An updated 2000 version does not mean that the
documents created earlier in time could not be viewed or
were not recoverable. It is my understanding and I am in
agreement with the observation of the trial judge that there is
a difference between upgrading to a 2000 version and
updating to the 2000 version. Perhaps the expert PW-65 could
have explained how a document created on 17.12.1999 exists
in a computer that has an updated version of 2000 MS Word;
however, he was not questioned in this regard. Neither was
any suggestion of tampering given to PW-20 or PW-63. In
view of the law laid down by the Supreme Court in this
regard, the accused is disentitled from raising such an
argument belatedly as the witness is no longer available to
tender explanation. Therefore, merely eliciting from PW-65
that it is theoretically possible to alter the system clock is of
no avail. The Supreme Court has observed in Navjot Sandhu
case (supra) that the testimony of an expert witness on
hypothetical aspects cannot dent the positive evidence led in
the case. Even the United States Court of Appeals, Ninth
Circuit, in United States of America v. Daniel Bruce
Bonallo, (858 F.2d 1427) observed the fact that it is possible
to alter data contained in a computer is plainly insufficient to
establish untrustworthiness.
iv) A-3 has also pointed out that it has emerged in cross-
examination of PW-65 that the date of last access of the
computer of PW-20 is up to November 2004. Mr. Khanna
explains that the report of the said expert was prepared on
05.10.2004 and his statement on this aspect is evidently
inaccurate owing to inadvertence. No date of last access is
mentioned in the report by the expert. In my view it assumes
significance that the witness has not been questioned on the
aspect as to how the date of last access could be after the
preparation of his report. No suggestion of fabrication or
tampering was given to the relevant witnesses, including him,
and even otherwise it has been pertinently held by the Apex
Court in its recent judgment delivered on 12.11.2013
Sukhwinder Singh v. State of Punjab, Criminal Appeal
No. 1023 of 2008 that "...it is too much to presume that the
doctor and the Chemical Analyser would conspire and
fabricate a false report". The Supreme Court has also held
that it is an archaic notion to appreciate the evidence of
police-officers with inherent distrust. There is no presumption
that evidence of police witnesses is always tainted, especially
when no evidence is brought on record to suggest that they
bore a grudge against the accused. The presumption under
Section 114 illustration (e) that all judicial and official acts
are performed regularly equally applies to the police officers.
[Sushil Sharma v. State (N.C.T of Delhi), Criminal Appeal
No. 693 of 2007 decided by the Supreme Court on 08-10-
2013; Devender Pal Singh v. State of N.C.T of Delhi and
Anr., (2002) 5 SCC 234]. Therefore, the argument on the
last date of access is of no avail and is accordingly rejected.
IV. Rewari
i) The prosecution is relying on a conjoint reading of the
testimonies of PW-39 and PW-40 as well as A-50 who has
got examined himself in defense to prove its version. Om
Prakash (PW-39) was a teacher who had worked with
Darshan Dayal Verma (A50), Chairperson for three
days, Sudha Sachdeva (A49), subsequent Chairperson as
well as with Saroj Sharma (A-51) & Tulsi Ram Bihagra
(A52) who were members of the committee. PW-39 has
deposed that he had prepared the Supreme Court list
Ex.PW-39/A in his own handwriting except the last
three columns under the instructions of dealing hand
Krishan Kumar and Phool Singh during the period
01.12.1999 to 17.12.1999 when the interviews were
conducted by the members of the interview committee in
district Rewari. He also testified that another award list
Ex.PW-15/B of district Rewari (i.e. the Directorate list)
was also prepared by him in September, 2000 when he
was asked to prepare this list again as it was stated by the
dealing clerk and Superintendent that the earlier list was not
proper. PW-40 Subhash Chand is another teacher of district
Rewari. He testified that page no. 14, 30, 31 & 32 of the
Directorate list have been written by him except last three
columns.
ii) On behalf of A-3, two factual aspects are pointed out. The
Directorate list is signed by all the members except A-49,
therefore, it is argued that the list which contains the
signatures of all members should be the fake list owing to the
fact that the then government was ruthless and no person
employed in its service had the audacity to refuse a direction
that had authoritative sanctity of the government. The other
factual aspect of the Supreme Court list is that Darshan Dayal
Verma (A-50) has signed as "Ex DPEO" on first 12 pages of
the award list and thereafter, Sudha Sachdeva has signed as
the chairperson. Since Darshan Dayal Verma (A-50) would
have signed for first three days as DPEO and not as Ex
DPEO, this is another circumstance to establish the falsity of
the Supreme Court list. Reliance is placed on the affidavit (D
-58) of Sudha Sachdeva which mentions that she had signed
the second list, therefore, the list which bears the signatures
of Sudha Sachdeva should be the fake list.
iii) Both witnesses PW-39 and PW-40 have deposed in detail
regarding preparation of both lists and their contribution to
it. I see no reason to doubt their testimony and agree with
the view taken by the trial judge about their truthfulness.
Coming to the two factual observations made by A-3,
suffice it is say that the appellant is trying to belatedly create
his defense by pointing minor gaps in evidence he very well
chose not to question at the stage of trial. I say so especially
in view of the cross examination of A-50 by A-3. The
question asked was:
―Q- Accordingly, you have appended your signatures
on the award lists made in December 1999 for three
days only in your capacity as DPEO-Rewari?
A- It is correct."
There is no mention of why you have signed as ―Ex DPEO‖.
Mr. Khanna points out that it is highly probable that he
signed the Supreme Court List after having received the
transfer orders and, therefore, chose to write Ex DPEO.
Whatever be the explanation, the Supreme Court List cannot
be termed as the fake list on this count in view of the
evidence given by PW-39 and PW-40.
V. Bhiwani
i) The prosecution in relying on the testimony of PW-30 Tara
Chand, who was the Deputy Superintendent in the office of
District Primary Education Officer, Bhiwani. This witness
has deposed that he had signed the original list as a token of
having checked the academic particulars of all candidates on
all pages. His signatures appear on the Supreme Court list and
are absent on the Directorate list.
ii) A-3 has sought to impeach testimony of this witness by
pointing out an inconsistency in his version. According to
PW-30, the advertisement was issued on 15.11.1999 and the
applications started coming in which continued up to
28.11.1999 and he had started typing the list category wise
from 26.11.1999. On behalf of A-3 it is pointed out that the
administrative instructions clearly show that the applications
were to be submitted only on one single day i.e. 28.11.1999
and the original certificates of candidates were to be checked
and returned back to them the very same day after 4 p.m.
iii) As rightly pointed out by Mr. Khanna, A-3 did not cross
examine this witness on this aspect, he was not confronted
with the said administrative instructions and at this stage he
cannot be permitted to challenge his testimony on this
ground.
VI. Rohtak
i) The Supreme Court list of this district is a carbon copy in
which the columns containing interview and grand total
marks have been left blank. The directorate list is complete
and duly signed by all members of the Selection Committee.
The focus of argument on behalf of A-3 is that the Supreme
Court list of this district cannot possibly be the original list,
therefore, as a consequent deduction the Directorate list is the
original one. Here lies the basic fallacy in A-3's defense. It is
admittedly the prosecution version that firstly, the Directorate
lists are the fake ones created in furtherance of conspiracy
and secondly, the Supreme Court lists are the original set of
lists that were sought to be replaced. However, proving fact
two to be false does not automatically conclude proof of fact
one. In other words, pointing out evidence demonstrating
descripancies in a Supreme Court list and consequently
proving that the same could not have existed in an original
list does not lead to a corollary that the corresponding
Directorate List is the original. It has to be borne in mind that
the Supreme Court lists adduced in evidence have been
obtained from the custody of A-3 himself. Pointing out
discrepancies in the Supreme Court list of a particular district,
it cannot be concluded that the Directorate list of that district
is necessarily the original one. In essence, the prosecution
seeks to establish that the set of lists on the basis of which
appointments were made was a fraudulent one. This can be
done through the testimonies of various witnesses who have
identified either list to be original or fake and by examining
certain features that are common to a set of lists. For instance,
the prosecution is additionally relying on a specific marking
pattern that exists in the fake lists to prove their falsity. As
rightly held by the trial judge, the original list of this district
is missing as the Supreme Court list is an incomplete carbon
copy of the original one. The prosecution is relying on the
marking pattern in interview marks to support its case. I will
discuss the marking pattern towards the end, however, it is
noticed that the interview marks awarded in the Directorate
list are in the extremes.
ii) On behalf of the CBI is it contended that Sanjiv Kumar (A-3)
has alleged that the bunch of Supreme Court Lists were
handed over to him by Vidya Dhar (A-1) for substituting
them in place of the original award lists. It is submitted that
Om Prakash Chautala (A-4) and others would not be in a
position to fulfill their sinister motives by handing over a list
to Sanjiv Kumar (A-3) for implementation which does not
carry the interview and grand total marks. Therefore, the
Supreme Court List cannot be the fake award list as sought to
be canvassed by Sanjiv Kumar (A-3).
iii) As highlighted by Mr. Khanna, A-3 has not placed the award
lists of all the eighteen (18) districts of Haryana before the
Supreme Court and has selectively withheld some lists, even
though he has unequivocally averred in his Writ Petition that
VidyaDhar (A-1) handed over to him a bundle of fresh award
lists of all the districts of Haryana[Part 8/ D-37-D-66/D-
64/Page 25-53 @ Pg 32 & 35]. PW-63 R.N Azad deposed
that despite repeated requests A-3 did not hand over the
remaining lists during investigation [Part 2(II)/PW-63/Page
237]. The said portion of his testimony has not been
challenged by A-3 in cross-examination.
iv) Therefore, in my view it is evident that the original award list
of District Rohtak containing the interview and grand total
marks has been wittingly withheld by A-3 and has not been
placed before the Supreme Court, along with many other lists,
even though he was admittedly in possession of the award
lists of all the districts of Haryana.
v) Perhaps the reason for the existence of such a list which does
not carry the interview and grand total marks, surfaces from
the explanation tendered by accused- Jeet Ram Khokhar (A-
46), Nirmal Devi (A-47) and Amar Singh (A-48) under
Section 313 Cr.P.C that they had separately sent such an
award list (carbon copy) without marks in the interview
column, in addition to the award list which duly carried
marks in the interview and grand total column.
VII. Kurukshetra
i) The Directorate list of this district is in two parts, the first
being the general list and the second being the award list of
B.Ed candidates exhibited as Ex.PW-15/D. The Supreme
Court list of this district is a part list and an equivalent of the
list carrying interview marks of the B. Ed candidates.
ii) The challenge to authenticity of the Supreme Court list is
premised on an observation that the stationary/sheets used in
preparation of the Supreme Court list is the same as that of
the lists of Yamunanagar. Reliance is placed on the Section
313 statement of A-59, DPEO Kurukshetra, wherein he states
that in the second week of Sept. 2000 he signed an award list
of B.Ed. candidates in the office of DPEO Kurukshetra.
iii) Learned Counsel Mr. Khanna submits that factually the
interviews of the B.Ed candidates were conducted at
Kurukshetra by the DPEO Yamunanagar. Therefore, the fact
that the said list appears in the same format or handwriting
does not cast any suspicion and is in fact natural. I agree that
this sufficiently explains the similar formatting in both lists.
iv) It is submitted on behalf of A-3 that the award lists for B. Ed
candidates were received after the almirah containing the
original lists was sealed by PW-23. A-59, in his statement
under Section 313 has said that he had deposited the sealed
award lists by hand on 01.08.2000 to Om Prakash Kundu.
PW-31 has deposed that Mr. Kundu was a clerk in his branch
and was deputed to collect the award lists of B. Ed candidates
from Kurukshetra and deliver them to M.L. Gupta. The
original lists were in the possession of M.L. Gupta and A-3
took charge of Directorate of Primary Education on
11.07.2000. If A-3 was part of the conspiracy, then he would
not need to call for the original list. Instead he could have got
fresh list made of B. Ed candidates based on the new formula.
v) I agree with the submission made by Mr. Khanna that Sanjiv
Kumar (A-3) is not so juvenile to foist the fake lists without
even calling for the original award lists from Kurukshetra.
This would have left him substantially exposed as the
Committee would have known that the result was declared on
the basis of a fraudulent list since the original was not even
called for. This circumstance is immaterial is absolving A-3
of his role in the conspiracy.
vi) Additionally, Mr. Khanna points out that it has been
established by testimony of PW-56 M.L. Gupta that the
members of the Result Compilation Committee were handed
over the list of B.Ed candidates interviewed at Kurukshetra
along with award lists of other districts on 16-09-2000.
Significantly, it was deposed that the said list of B.Ed
candidates was lying in the drawer of Sanjiv Kumar (A-3)
and it was collected from there whilst being handed over to
the members of the Result Compilation Committee on
16.09.2000. Yet again, the said portion of his evidence has
not been challenged by Sanjiv Kumar (A-3) in cross-
examination.
VIII. Karnal
i) It has been urged on behalf of A-3 that the Directorate List of
District Karnal (D-9) is in consonance with the description
testified by PW-28 Dheeraj Kumar; who deposed that the members
of the selection committee used to sign the last page of the
interview list on each date of the interview and, therefore, the
Directorate List is genuine.
ii) This is factually incorrect as the Directorate List bears the
signatures of the Dy. DPEO at every single page, rather, the
Supreme Court List of District Karnal (D-27) answers to the
description deposed by PW-28 Dheeraj Kumar.
iii) As pointed out by Mr. Khanna the Supreme Court List of District
Karnal (D-27) at Page 43 indicates that interviews of JBT
candidates Roll No. 35151 to 35194 have been taken in presence
of the Committee member on 04.12.1999 except Roll Nos. 35158,
35163 and 35194. Per contra, the Directorate List of District
Karnal (D-9) does not contain any such certificate. Rather at Page
52, the result of a candidate bearing Roll No. 35163- Julie Chhabra
is comprised.
iv) The existence of a certificate by the members of the District Level
Selection Committee that the interview of certain candidates has
not been conducted, lends an assurance of contemporaneity.
However, the absence of such a certificate is a tell-tale mark of
fabrication done at a later stage. It militates against natural human
conduct that a forgeror while fabricating a document would add
superfluous details in the forged document that were non-existent
in the original. Whereas, owing to inadvertence he may always
omit to incorporate a trivial detail in the forged document which
was present in the original.
IX. Yamuna Nagar
i) It has been contended on behalf of Sanjiv Kumar (A-3) that
prosecution failed to explain how signatures of A-61 Urmil
Sharma and A-62 JoginderLal from District Yamunanagar
appear together on the Supreme Court List (D-29), despite the
fact that A-62 JoginderLal was only a reserve member who took
the place of A-61 Urmil Sharma during her absence.
ii) Both A-61 Urmil Sharma and A-62 JoginderLal stepped into the
witness-box in terms of Section 315 Cr.P.C. A-62 JoginderLal
was not subjected to cross-examination altogether by Sanjiv
Kumar (A-3), even though he identifies the Directorate List of
District Yamunanagar (D-11) as the fake list prepared
subsequently, and A-61 Urmil Sharma, though cross-examined
by Sanjiv Kumar (A-3), was not questioned on the said aspect.
The said witnesses were in the best position to explain under
what circumstances their signatures appeared together on the
Supreme Court List of District Yamunanagar (D-29). However,
in absence of cross-examination on this aspect, despite
opportunity, no benefit can accrue to A-3.
X. Gurgaon
i) A-3 points out the marking pattern in the Supreme Court list to
show that academic and interview marks have been awarded in
decimals thereby leading to an inference that such marks cannot
be the basis of fair interviewing and, therefore, the Supreme
Court list of this district is the fake one.
ii) The CBI is relying on the marking pattern in the Directorate list
of this district.
iii) In my view, the sole premise of interview marks being in
decimals is not indicative of the same being a fake list. No
rules of business have been putforth to show a policy
prohibiting the same. This circumstance does not show any
determinative certainty in proving that the Supreme Court List
is fake. In any case, no suggestion has been made to the
Investigating Officer regarding this fact and the same can not be
belatedly pressed.
XI. Panipat
The CBI is relying on the marking pattern. There is no
Supreme Court list of this district.
XII. Remaining Districts (Fatehabad, Mahendergarh, Ambala,
Jhajjar, Sirsa, Sonepat, Kaithal and Panipat)
i) The CBI is solely relying on marking pattern in the Directorate
list of these districts.
ii) Arguments advanced on behalf of A-3 with regard to these
districts were incomprehensible and did not disclose any
material that could displace the prosecution version on the
falsity and genuineness of the two lists.
ARGUMENTS ON CONSPIRACY
349. In essence, the prosecution is relying on two broad theories to support
its case. The marking pattern that is evident from the Directorate lists of all
districts demonstrates an apparent bunching of marks in the extremes. I have
perused all the lists and I am in agreement with the observation of the trial
judge regarding the marking pattern evident in the Directorate lists. There
exists a stark/unnatural feature of bunching of marks running as an
‗omnipresent' thread across all the Directorate Lists, which leads to an
irresistible conclusion that all these lists are fake. Per Contra, the pattern of
marks awarded to the candidates in the Supreme Court Lists is more evenly
spread which is a hallmark of truth.
350. The second theory canvassed by Mr. Khanna is that if the prosecution
has been able to prove that the Directorate list of even one district is fake i.e.
created in August-September, 2000 (fruit of the poison tree) and not
prepared in December 1999, it would be legitimate to draw a presumption
that the entire set of Directorate Lists which were handed over by Sanjiv
Kumar (A-3) to representative of HARTRON on 16.09.2000 is fake and
created in August-September 2000. This theory is based on the admitted case
of Sanjiv Kumar (A-3) as emerging in his writ petition and deposed to before
the trial court that a bundle of lists for all districts of Haryana were handed
over to him by Vidya Dhar (A-1) at the instance of O.P. Chautala (A-4) for
being substituted in place of the original award list that were lying sealed in
the almirah under his custody as Director Primary Education. Discussion
with regard to the same also took place with O.P. Chautala (A-4) on
10.07.2000 during a breakfast meeting at his residence.
351. When such an offer/direction was given to Sanjiv Kumar (A-3) to
become party to the conspiracy by implementing the mandate of O.P.
Chautala (A-4) by substituting the award lists, natural probabilities of human
behaviour dictate that either Sanjiv Kumar (A-3) would have substituted the
entire bunch of award lists in place of the original award lists and complied
with the mandate of O.P.Chautala (A-4) or he would have righteously
abstained from committing the crime and not substituted any list whatsoever.
If in the view of the Court, the prosecution has been able to prove by
clinching evidence that even one particular Directorate List is fake (created
in August-September, 2000), it would be legitimate to presume that the
entire bunch of Directorate-Lists that have been implemented is fake as no
person in the position of Sanjiv Kumar (A-3) would after acceding to
commit the crime, substitute only one fake/subsequently created award list
and not substitute the others and, therefore, only partially comply with the
mandate.
352. Learned Counsel Mr. Khanna argues that Section 114 of the Indian
Evidence Act, 1872 permits the Court to draw presumption of fact which it
thinks likely to have happened, regard being had to the common course of
natural events, human conduct and public and private business, in their
relation to the facts of the particular case. [T.Shankar Prasad v. State of
A.P, (2004) 3 SCC 753]
353. I would agree. This means that the fake set was kept together. Given
that the Court is convinced by positive evidence of the falsity of the
Directorate Lists regarding districts of Faridabad, Jind, Panchkula, Bhiwani,
Rewari, Rohtak and Kurukshetra, a legitimate presumption can be drawn
under Section 114 of the Indian Evidence Act that the Directorate Lists of
the remaining districts are also fake.
354. Arguendo, if the version projected by Sanjiv Kumar (A-3) is accepted
to be true and the lists submitted by him before the Supreme Court which he
claims to have righteously not implemented and, therefore, victimized by the
wrath unleashed by O.P. Chautala (A-4), it would reveal that marks of
approximately 5,500 persons were increased and that the marks of
approximately 1,000 persons were decreased by the conspirators. The said
acts do not stand to logic and strike a discordant note. It militates against
rudimentary sense of prudence that marks of 5,500 odd candidates are
increased although the total number of vacancies are 3206 only. Rather the
reverse scenario (case of the prosecution), is in line of natural probabilities
that during preparation of fake award lists i.e. the Directorate Lists which
were implemented, marks of around 1,000 odd candidates were increased
and marks of approximately 5,500 candidates were reduced for
accommodating the favoured candidates in the 3206 vacancies. I am in
agreement with this explanation and it corroborates the already established
version by the prosecution regarding falsity of the Directorate Lists. Tabular
analysis of two lists of 18 districts is reproduced below:
NAME OF NO. OF NO OF NO OF CANDID TOTAL NO OF NO. OF JBT
DISTRICT AND CANDIDA CANDIDA CANDIDA ATES NUMB VACANCIES TEACHERS
ROLL NOS. TES TES TES WHO WHOSE ER OF ADVERTISED RECRUITE
ALLOTTED TO WHOSE WHOSE WERE MARKS CANDI D
THAT MARKS MARKS INELIGIL NOT DATES
DISTRICT WERE WERE BLE CHANG
INCREAS DECREAS ED
ED ED
(Roll Nos 0001 to
5000)
(Roll Nos 5001 to
10000)
(Roll Nos 10001 to
15000)
(Roll Nos 15001
to 20000)
GURGAON THE PHOTOCOPY OF DL IS NOT VISIBLE HENCE NO 210 171
(Roll Nos 20001 ANALYSIS IS POSSIBLE
to 25000)
(Roll Nos 25001 to
30000)
(Roll Nos 30001 to
35000)
(Roll Nos 35001 to 1 candidate
40000) was given
marks in
DL, who
was not
interviewed
(51+1= 52)
KURUKSHETH ONLY PART SUPREME COURT LIST IS AVAILABLE 304 163
RA HENCE ANALYSIS IS NOT POSSBILE
(Roll Nos 40001 to
45000)
(Roll Nos 45001 to
50000)
(Roll Nos 50001 to
55000)
PANIPAT SUPREME COURT LIST IS NOT AVAILABLE 97 47
(Roll Nos 55001 to
60000)
ROHTAK SC LIST DOES NOT CONTAIN INTERVIEW AND GT 15 29
(Roll Nos 60001 to MARKS HENCE ANALYSIS NOT POSSIBLE
65000)
(Roll Nos 65001 to
70000)
(Roll Nos 70001
to 75000)
(Roll Nos 75001 to
80000)
R 1 candidate
(Roll Nos 80001 to given
85000) marks in
DL list but
not given
any marks
in SL List
(25+1=26)
(Roll Nos 85001 to
90000)
TOTAL 861 5237 124 88 6400 3206 3032
355. None of the appellants have putforth any argument disputing the
above mentioned tabular representations. It is, therefore, established that the
Directorate lists were in fact the fake lists and the appointments were made
on the basis of these fake lists.
356. I will now deal with the evidence pointed out by A-3 to absolve him of
any role in conspiring to replace these lists. In order to probablise the
defence of A-3 that the application forms were being compared with
HARTRON Lists at Prerna Guest House, reliance has been placed upon the
response of PW-55 Mukesh Bajaj; a representative from HARTRON during
cross-examination by A-3 to evidence the fact that the application forms had
been taken out from HARTRON by S.S.Tanwar and Balram.
357. It would be relevant to extract the series of questions posed by A-3 on
this aspect during cross-examination of this witness and his response
thereon.
―Q. Is it correct that the gate pass has been shown to
have been issued in the name of one Sh. Sardara Singh and
one Sh. BalramYadav on the 25th August of 2000? I draw
your attention to the gate pass in the name of S. S. Tanwar
of Directorate of Primary Education dated 25.8.2000, (now
exhibited as Ex. PW55/DA) and gate pass in the name of
Balram (Assistant) of DPE, also dated 25.8.2000 (now
exhibited as Ex. PW55/DB) in D-59.
A. I have seen these gate passes. Ex. PW55/DA shows
district wise descending list of JBT, T records 8192 and Ex.
PW55/DB shows thatascending list of JBT, T records 8192.
―T‖ written in these gate passes stands for ―total‖.
Q. Is it correct that the aforementioned lists mentioned in
gate passes Ex. PW55/DB and Ex. PW55/DA relate to the
date entry of academic records, which had been completed
by HARTRON on 4th August 2000.
A. I do not recollect as to what was the documents as
mentioned in the aforementioned gate passes since it was
not issued by me. However it is correct that these two
persons from DPE office came to HARTRON for purpose
of proof reading as well as taking away all the application
forms of the individual candidates sent from the district.
Q. Do you recall as to how these documents were carried by
these two staff members of DPE office from HARTRON on
25th August 2000? I suggest it to you that the said
documents were carried by those staff members in two black
leather bags.
A. I do not recollect.‖
358. It can be seen that PW-55 Mukesh Bajaj himself candidly admits in
his cross-examination that he is not aware of the documents mentioned in the
gate passes as the same were not issued by him. The witness also expresses
ignorance on the aspect if the said documents were carried away in two black
leather bags, as suggested by A-3. The witness merely states that two
persons from DPE office had visited HARTRON for the purpose of proof
reading and to take away the application forms. However, pertinently, this
witness does not state that the said application forms were actually taken
away from HARTRON by the said persons on 25.08.2000 and admittedly he
is not privy to the events which transpired on the said date. At the time of
cross-examination in the year 2012 (twelve years since the relevant event),
PW-55 Mukesh Bajaj did not even remember if the said lists were in district
wise ascending/descending with total marks of JBT candidates. The said
witness also claimed ignorance whether these lists were category wise,
although he was incharge of the said assignment [Part 2 (II)/ PW-55/ Page
83]. Thus, a stray remark by PW-55 Mukesh Bajaj that two persons from
Directorate of Primary Education had come to take away the applications
forms is of not much importance. Furthermore, as pointed out by Mr.
Khanna, the said fact also does not find mention in his statement recorded
before the Central Bureau of Investigation in terms of Section 161 of Cr.P.C.
recorded at the stage of investigation, when the events were still fresh in his
mind [Part 7 (1)/ Page 47-55 @ Page 54]. It assumes significance that
neither does the gate-pass dated 25.08.2000 support the fact that the
application forms were taken away from the premises of HARTRON.
Therefore, no assistance can be derived by A-3 from the testimony of PW-55
Mukesh Bajaj to probabalise his defence.
359. No suggestion has been given by A-3 to PW-31 Sardar Singh and PW-
56 Mohan Lal Gupta, that the application forms were also taken out of
HARTRON on 25.08.2000 and the same were being compared with the
ascending/ descending list of 8192 JBT candidates compiled by HARTRON.
Rather, PW-56 Mohan Lal Gupta during cross-examination by A-3 was
questioned if he was aware that it was Sardar Singh and Balram Yadav, who
had taken out the computerized lists from HARTRON on 25.08.2000 [Part 2
(II)/ PW-56/ Page 105, 107]. Similar question has been put to PW-63 R.N
Azad [Part 2 (II)/ PW-63/ Page 336]. From the said line of questioning, it is
demonstrated that it was never the case of A-3 that the application forms
were also taken out from the premises of HARTRON on 25.08.2000. It is
evident that the said case was belatedly set up at the stage of examining
defence witnesses. During the prosecution evidence, A-3 was merely
attempting to suggest that the computerized lists received from HARTRON
on 25.08.2000 were being checked at Prerna Guest House and not the
original award lists that were supposedly lying in the sealed almirah under
his custody.
360. The prosecution has established by means of positive evidence led at
trial in the form of testimonies of PW-31, PW-56 and PW-58 that the
original award list which were supposed to be lying sealed in the almirah
were infact taken out by A-3 and were handed over to PW-31 and PW-56 for
the purpose of being taken to Prerna Guest House, Panchkula, in the second-
third week of August of 2000. It was mandated by A-3 that the said lists be
checked for ascertaining the number of candidates from the reserved
category who would encroach upon the seats of the General Category.
361. It has been strenuously urged on behalf of A-3 that the said exercise
was a sheer impossibility without the availability of a Joint Merit List and,
therefore, the version of prosecution that A-3 mandated such an exercise is
clearly facile.
362. Mr. Khanna submits that the various prosecution witnesses in their
depositions before the trial Court have highlighted the fact that since they
were unable to successfully comply with the directions of A-3, the task was
aborted. Therefore, the fact that the task mandated by A-3 could not be
successfully performed in absence of a Joint Merit List does not detract from
the fact that an attempt in that direction was made at his instance.
363. It also assumes significance that if a legitimate exercise was sought to
have been conducted at the instance of A-3 the same could have been
conducted within the office premises itself. Perhaps, with a view to avoid
unnecessary exposure and gaze of entire staff, the trusted men were specially
sent to Prerna Guest House to execute the assignment. It has emerged in
evidence of PW-31 Sardar Singh that A-3 was infuriated when he came to
know that without his permission PW-58 BalramYadav had also been
associated in the task assigned by him to PW-31 Sardar Singh and PW-56
M.L. Gupta.
364. I would agree. The credibility of these witnesses is not dented simply
because they were assigned a task that was subsequently shown to be
impossible. The cumulative effect of their testimonies clearly demonstrates
that an attempt was made to check how many reserved category candidates
were encroaching upon the general category.
365. In this connection, it has also been contended on behalf of Sanjiv
Kumar (A-3) that no specific question was put to him during his examination
in terms of Section 313 of Cr.P.C. to the effect that the application forms
were received from HARTRON on 03.10.2000 along with the result.
366. It is not the case of the prosecution that the application forms were
being compared with the computerized HARTRON lists at Prerna Guest
House in August 2000. The said version has been propounded only by A-3 in
his defence. Therefore, the fact that the said application forms were made
available much later in October,2000 need not be put to the accused. The
said circumstance is in the nature of the fact which merely improbabilises the
defence of the accused, being inconsistent thereto, and the accused need not
be specifically questioned on the said aspect.
367. It has also been urged on behalf of A-3 that the testimony of
Prosecution Witnesses such as- PW-2 Ravi Dutt, PW-5 Milap Singh, PW-14
Dhoop Singh and PW-30 Tara Chand is liable to be discarded as they were
not the authorized members of the District Level Selection Committee's and
the fact that their signatures are found on the Supreme Court Lists evidences
the fact that the said lists are fake.
368. Mr. Khanna has addressed this argument and points out that the said
witnesses have clearly testified that they have appended their signatures on
the award list in token of verifying/checking the particulars filled in the said
award lists. Therefore, the factum of their signatures appearing on the
various ‗Supreme Court Lists' is not a tell-tale mark of fabrication, as such
by A-3. Rather the said argument is self-defeating as many ‗Directorate
Lists'- District such as that of District Jind; which are claimed by A-3 to be
genuine, themselves bear the signatures of such persons who are not the
member(s) of the Direct Level Selection Committees.
369. It has also been urged on behalf of A-3 that the version/explanation of
several accused person(s) on various facets of the episode, as unraveled in
their Statements in terms of Section 313 Cr.P.C, strikes a discordant note
with the evidence led by the prosecution at Trial and, therefore, such
variances detract the credibility of the case of the prosecution.
370. It is difficult to appreciate such a contention. It is a fundamental tenet
of jurisprudence that the case of the prosecution suffers from infirmities, if it
is unable to crease-out the contradictions emerging in its own evidence.
However, the case of the prosecution is not weakened by the stand adopted
by accused persons, which is bound to be not in consonance with the
testimonies of the prosecution witnesses.
371. It has been argued on behalf of A-3 that prosecution has not led any
direct evidence when the seal of the almirah was actually broken open by A-
3. I agree with the submission that A-3 being the custodian of the almirah it
was upon him to explain as to how and under what circumstances the
fake/fresh award lists have been implemented. Also it is unrealistic to expect
direct evidence on this issue. In view of the fact that this Court has accepted
that the Directorate lists were the fake lists, it is a fact in his special
knowledge and he is liable to explain how the lists were substituted.
372. It has been strenuously contended on behalf of Sanjiv Kumar (A-3)
that the site plans [Part 8/D-88]prepared by the Central Bureau of
Investigation do not evidence the presence of any wooden screen and,
therefore, the said version of the prosecution about the presence of a wooden
screen in the Office of the Director Primary Education behind which the
sealed almirah was placed is false. Mr. Khanna has drawn my attention to the
site-plan prepared upon the pointing out of PW-23 [Part 8/D-88/Pages 2-3]
and it clearly indicates the presence of a wooden screen in the room of the
Director Primary Education. With regard to the other site-plans wherein no
wooden screen has been depicted, suffice would it be to state that every
person possesses a different level of recollection and may attach varying
degree of importance to a fact, in consequence of which he may not disclose
the same owing to his perception that it is trivial/irrelevant for the purpose of
inquiry. The quality of response elicited from a witness at the stage of
investigation also considerably depends upon the questions posed to him and
the skill of the investigator. Furthermore, the said submission clearly
overlooks the fact that the site plan was prepared by the Central Bureau of
Investigation after an elapse of four years from the relevant point of time.
373. PW-31 Sardar Singh in his response to a question to this effect by A-3
has thrown light on this aspect of the matter and stated that when the site
plan was prepared, the Directorate had been shifted from that place and so
was the almirah [Part 2(I)/PW-31/Pages 316-317].
374. Reliance has also been placed on behalf of A-3 upon the
Whistleblowers Protection Act, 2011 and the resolution of the Ministry of
Personnel, Public Grievances and Pensions-Department of Personnel and
Training dated 21-04-2004 to contend that he is a ‗Whistleblower' and
miscarriage of justice has occasioned by arraying him as an accused.
375. Mr. Khanna submits that the commission of the present offence
pertains to the year 2000 and it was admittedly brought to light in the year
2003 by A-3; who preferred W.P (Crl.) 93/2003 before the Supreme Court
and unraveled the scam by painting a distorted picture exculpating himself.
Vide Order dated 25.11.2003, the Supreme Court was pleased to direct
investigation into the allegations by the Central Bureau of Investigation. In
respectful compliance thereof, the Central Bureau of Investigation registered
a Preliminary Enquiry [PE 1(A)/2003/ACU-IX] on 12.12.2003 and criminal
justice machinery was set into motion.
376. Suffice it is to state that neither the Whistleblowers Protection Act,
2011 (assented to by the President on 09.05.2014) nor the resolution of the
Ministry of Personnel, Public Grievances and Pensions-Department of
Personnel and Training dated 21.04.2004 was in operation at the said point
of time. Furthermore, the Central Bureau of Investigation complied with the
directions passed by the Supreme Court in accordance with law and
prevalent procedures. Investigation revealed that the picture painted by A-3
in his Writ-Petition was distorted and he was infact a confederate in crime
along with others in successful execution of the scam. Since the Supreme
Court was monitoring the investigation of the said case vide order dated
13.05.2005 Sanjiv Kumar v. Om PrakashChautala and Another, (2005) 5
SCC 510 the Supreme Court after perusing the material available on record
was pleased to vacate its Order dated 21.02.2005 whereby it had been
directed that A-3 would not be arrested and no proceedings against him be
filed by CBI except by the leave of the Court. It assumes significance that
while monitoring the case no illegality was found by the Supreme Court in
the procedure adopted by the CBI to initiate its investigation.
377. Even otherwise, no such objection was ever taken A-3 either during
investigation or before the trial Court which unequivocally evidences the fact
that no prejudice was felt or suffered by him.
378. It is also pointed out that the Writ Petition filed by A-3 comprised
allegations of rampant criminal misconduct by the Chief Minister of Haryana
and his aides in collusion with employees of Haryana Government, whereas
bare perusal of the resolution dated 21.04.2004 reveals that it is applicable to
cases wherein there are allegations of corruption or misuse of office by an
employee of the Central Government and not State Government.
379. The Supreme Court of India in its decision reported as (2003) 6 SCC
195, Union of India v. Prakash P. Hinduja has held that any error or
illegality in investigation would not vitiate the cognizance and the trial
thereupon. In the said case, the court observed that even assuming for the
sake of argument that CBI committed an error or irregularity in submitting
the chargesheet without the approval of CVC, the cognizance taken by the
trial Judge on the basis of such a chargesheet could not be set aside nor could
further proceedings in pursuance thereof be quashed.
380. Even though as highlighted above, the consideration of the provisions
of the Whistleblowers Protection Act, 2011 and the resolution dated 21-04-
2014 does not arise in the present case, however it may be noticed that even
the provisions comprised therein do not contemplate a concept of ‗automatic
pardon' or a carte-blanche immunity to an informant who is himself found to
be ―in-pari delicto‖ and a ―participant criminis‖, masquerading in the guise
of a public spirited ‗Whistleblower'.
381. A-3 has argued that the discharge of Brij Mohan and imposing liberal
sentences on those who pleaded pressure, served as an ‗inducement' to take
recourse to the ‗pressure-theory' and thus falsely implicate A-3. As already
noted above, I do not agree with this submission. At the stage of recording
statements in terms of Section 313/315 Cr.P.C, the co-accused could have no
premonition that the trial Judge would impose lesser sentences on those who
would admit their signatures and plead the circumstance of acting under
pressure. With regard to the submission that discharge of co-accused A-19
Brij Mohan gave impetus to testify against Sanjiv Kumar (A-3), suffice
would it be to state that from the very inception i.e. the stage of investigation
innumerable accused persons stated that they were subjected to immense
pressure to co-operate in the creation of fresh/fake award lists. In this regard
reliance is placed upon the statement of Ajit Singh Sangwan (A-26) dated
24.03.2006 recorded during investigation in terms of Section 164, which is
available on record [Part 8/D 135/Page 13-17] and statement of Dilbagh
Singh (A-35) dated 19.04.2006[Part 7(II)/Page 28-34] unequivocally
highlights such a stand at the earliest opportunity that they were under
pressure of A-3. Thus, the said contention canvassed on behalf of A-3 is
liable to be negatived.
382. It has also been canvassed on behalf of A-3 that the approval from the
Office of the Chief Minister- O.P. Chautala (A-4) was not forthwith granted
to the proposal for the constitution of the Result Compilation Committee
initiated by PW-23 Rajni Sekhri Sibal vide file noting dated 20.06.2000 as
the result of a candidate from District-Karnal (Julie Chhabra) was received
by the Directorate of Primary Education only on 13.09.2000 because her
interview was conducted in compliance of the directions passed by the
Hon'ble Punjab and Haryana High Court in CWP 16220/1999 vide Order
dated 19.07.2000.
383. As explained by Mr. Khanna, the said submission is of no avail as in
any case A-4 did not accord his approval to the constitution of the Result
Compilation Committee after 13-09-2000 viz. when the result of Julie
Chhabra was received at the Directorate of Primary Education. Rather the
approval was conveyed by A-4 vide noting dated 16-07-2000, when A-3
assumed the additional charge of Director Primary Education after the
breakfast meeting which had taken place between them on 10-07-2000.
Interestingly, the said approval was conveyed by A-4 even before the
directions of the Punjab and Haryana High Court in CWP 16220/1999 were
passed. Therefore, the delay in granting approval to the proposal for
constitution of Result Compilation Committee has no connection whatsoever
with the case of Julie Chhabra.
384. It has been contended on behalf of Sanjiv Kumar (A-3) that the
prosecution has not been able to establish the circumstances under which list
of B.Ed candidates interviewed at Kurukshetra was substituted by Sanjiv
Kumar (A-3) as the said list was received by the Directorate of Primary
Education only after the sealing of the almirah containing other award lists
and was in possession of PW-56 M.L. Gupta.
385. It has now been established through the testimony of PW-56 M.L
Gupta that the members of the Result Compilation Committee were handed
over the list of B.Ed candidates interviewed at Kurukshetra along with award
lists of other districts on 16.09.2000. Significantly, it was deposed that the
said list of B.Ed candidates was lying in the drawer of Sanjiv Kumar (A-3)
and it was collected from there whilst being handed over to the members of
the Result Compilation Committee on 16.09.2000.[Part 2(II)/PW-56/Page
151]. The said portion of his evidence has not been challenged by Sanjiv
Kumar (A-3) in cross-examination.
386. I agree with the submission that A-4 would have never handed over
the additional charge of Director Primary Education to A-3 on the basis of
oral/informal orders dated 11.07.2000 which were confirmed/approved later
on 17.07.2000, unless he would have expressed his whole-hearted agreement
to subscribe to the object of the conspiracy at the breakfast meeting held on
10.07.2000 at the residence of the Chief Minister. This assumes significance
specially in light of the fact that the previous incumbent had proved to be an
impediment in the execution of their illegal designs.
387. Mr. Khanna has pointed out the response of A-3 during his cross-
examination by the Public Prosecutor, wherein he admits the suggestion that
the only reason for him to have been endowed additional charge as Director
Primary Education was for substitution of the original award list. [Part 4/ A-
3/DW9/Page 66]
388. Even otherwise, it militates against natural human conduct that if A-3
never intended to be part of the conspiracy and substitute the fake award lists
in place of the original award lists, he would accept the bundle of fake award
lists from A-1 in the first place, as stated by him in his Writ-Petition before
the Supreme Court and his deposition before the Trial Court.
389. Another circumstance demonstrating guilt of A-3 stems from the fact
that de hors the statements of innumerable co-accused as recorded in terms
of Section 313 Cr.P.C., the depositions of co-accused (A-50 D.D. Verma and
A-23 Sher Singh) ; who stepped in the witness-box as envisaged under
Section 315 Cr.P.C. have clearly testified about the pressure exerted by A-3
in creation of the fake award lists. Their depositions are corroborated by the
chain of circumstances emerging in evidence against A-3
390. The complicity of A-3 in the process of preparation of fresh/fake
award lists can also be gathered by perusing the contents of Billing Print-
Outs[Part 8/D-94/Page 7],wherein at Serial No.s 294, 295, 298 and 300
various fax messages and calls are evidenced to have been made from the
Office of Directorate of Primary Education to D.C. Panipat and DPEO
Jhajjar on 31.08.2000. The said fact has been deposed by PW-63 R.N Azad
[Part 2(II)/PW-63/Pages 309-310] and the said portion of his testimony has
not been challenged by Sanjiv Kumar (A-3) in cross-examination.
391. After consideration of all the aspects pointed out by Learned Counsel
Mr. Nigam and the arguments and explanations put forth by the Learned
ASG Mr. Khanna, I am convinced that A-3 had a very prominent role in
execution of the entire conspiracy. In fact he was the main executor and was
explicitly involved in carrying out the instructions of A-4 by pressurizing the
committee members to commit illegal acts. His consistent false stand taken
at every opportunity during the trial is an additional circumstance that proves
his guilt and his role in the conspiracy. I am, therefore, of the opinion that
the over whelming evidence that has emerged against A-3 competes the
chain of circumstances pointing towards the guilt of A-3.
DISCUSSION ON APPEAL OF A-4
392. The incriminating circumstantial evidence pressed into service by the
prosecution to prove A-4, Om Prakash Chautala as amongst the prime
conspirators is as follows:
i) The Cabinet meeting wherein the selection of JBT teachers
was taken out of the purview of HSSC and entrusted with
the DLSC under the Directorate of Primary Education;
ii) Enhancement of marks allotted towards the interview from
12.5% to 20%;
iii) Transfer of PW-38 R.P.Chandra - Director Primary
Education within two days of his initiating the note dated
24.04.2000 for compilation of the result through
HARTRON;
iv) Pressure being exercised by his close aides- A-1 and A-2 in
presence of his son- A-5 upon PW-23 for substitution of
fresh award lists in place of the original award list lying in
her custody.
v) Unjustifiably sitting over the proposal for constitution of
Results Compilation Committee till 16.07.2000;
vi) Message emanating from the Office of the Chief Minister
requiring the DPEO's to attend meeting at Haryana Bhawan
on 01.09.2000;
vii) Presence of A-2 -Political Advisor of A-4, amongst others,
at Haryana Bhawan, Delhi on 01.09.2000 and at Punjab
Guest House along with Vidya Dhar A-1, and pressurizing
various District Selection Committee Members to prepare
fresh award lists;
viii) The breakfast meeting at the residence of A-4 wherein the
issue of replacing lists was discussed with the prime
executor, A-3;
ix) A-4 in his examination under Section 313 Cr.P.C. has
feigned ignorance about the process of appointment of JBT
Teachers after the Cabinet decision dated 08.09.1999.The
file movement and notings as evidenced from D-40 (I)
clearly belie the stand projected by A-4 and such false plea
adds as an additional link in the chain of evidence against
him.
393. At the outset, I would like to begin discussion on this appellant by
stating that every circumstance, seemingly incriminating against appellant,
when viewed independently and divorced from each other might not
conclusively point towards his guilt. However, when viewed as a whole, the
evidence is conclusive and unerringly points towards his conscious
involvement in the entire conspiracy.
394. I have heard rival submissions regarding the Cabinet meeting marking
the beginning of the period of conspiracy. The prosecution seeks to rely on
this circumstance to demonstrate that this decision was taken with the
oblique motive of furthering the conspiracy. The personal involvement of A-
4 is reflected from the fact that the issue of appointment of JBT teachers was
taken up for consideration with the permission of A-4 as it was not an item
on the agenda. Counsel for the appellant has argued that the Cabinet meeting
and any decision taken therein is perfectly within the realm of permitted
rights and responsibilities of a Chief Minister and unless every other person
who attended that meeting and approved the said decision is arrayed as an
accused, the said decision cannot be used as incriminating evidence against
the appellant. Portions of testimony of PW-16 and PW-38 have been pointed
out to explain that the said decision was on account of major deficit in
recruitment of teachers and on grounds of urgency the JBT Selection was
entrusted with the Directorate of Primary Education, the process of
appointment through HSSC being a lengthy one.
395. I will have to admit, at the first blush the argument regarding the
Cabinet decision being a perfectly legal one seemed most logical. Nothing
illegal can be found with a Chief Minister introducing an item as an agenda
in a Cabinet Meeting without prior notice. More so when he holds the
portfolio of the Education Minister as well. Even the decision to take JBT
selection out of purview of HSSC and entrusting to Directorate of Primary
Education has been explained and justified. However, after much analysis
and examining of evidence that has come forth in this case, I am convinced
that execution of this entire employment scam required certain crucial policy
decisions that could be effected only with the approval of A-4. Entrusting the
appointment process with Directorate of Primary Education was one such
vital decision. Enhancing the interview marks from 12.5% to 20% was the
other. Enhancement of marks stands out as additionally incriminating owing
to the fact that on 12.10.1999, less than a month from when this decision was
taken, A-4 had approved the ―chayan‖ (selection) formula where 12.5%
marks were allotted towards the interview. The sudden change in policy
lends credence to the theory that the appellant and his co-conspirators
required more control in the selection process and since the interview marks
is the only variable factor in their hands, it was crucial that they have
increased proportionate control.
396. Counsel for the appellant has also argued that the prosecution has not
specifically demarcated the period of conspiracy. The Investigating Officer,
PW-63 has deposed that perhaps the conspiracy commenced when PW-23
was asked to replace the original award lists and, therefore, no conspiracy
can be inferred prior to the taking over of Rajni Sibal vide her transfer orders
on 27.04.2000. I have carefully perused the testimony of PW-63 and as
rightly pointed by the CBI, PW-63 has deposed:
―The conspiracy in this case started when the then Chief
Minister Sh. Om Prakash Chautala took a decision to
withdraw the vacancies of the J.B.T Teacher from the
purview of Staff Selection Commission and the conspiracy
ended on appointment of undeserving candidates on the basis
of directorate lists...‖[Part 2(II)/Page 277]
397. Even otherwise, on the aspect of period of conspiracy, it has been held
time and again by the Supreme Court that conspiracies being hatched in
utmost secrecy it is not always possible to give affirmative evidence of the
date of its commencement. Reliance is placed on the observations made in
Navjot Sandhu's case (supra) in which the Court reiterated the view taken
by it earlier in its decision in Esher Singh's case (supra). The Court in case
of Navjot Sandhu (supra) observed as under:
―Dr. Sri Hari Singh Gour in his well known 'Commentary on
Penal Law of India', (Vol.2, 11th Edn. page 1138) summed up
the legal position in the following words:
"In order to constitute a single general conspiracy there
must be a common design. Each conspirator plays his
separate part in one integrated and united effort to
achieve the common purpose. Each one is aware that he
has a part to play in a general conspiracy though he may
not know all its secrets or the means by which the
common purpose is to be accomplished. The evil
scheme may be promoted by a few, some may drop out
and some may join at a later stage, but the conspiracy
continues until it is broken up. The conspiracy may
develop in successive stages. There may be general plan
to accomplish the common design by such means as
may from time to time be found expedient.‖
(emphasis supplied)
398. Observations of Coleridge, J. in R. v. Murphy, 173 E.R. 502, have
been cited with approval since time immemorial by the Supreme Court.
―...I am bound to tell you, that although the common design is
the root of the charge, it is not necessary to prove that these
two parties came together and actually agreed in terms to
have this common design and to pursue it by common means,
and so to carry it into execution. This is not necessary,
because in many cases of the most clearly established
conspiracies there are no means of proving any such thing
and neither law nor common sense requires that it should be
proved. If you find that these two persons pursued by their
acts the same object, often by the same means, one
performing one part of an act, so as to complete it, with a
view to the attainment of the object which they were
pursuing, you will be at liberty to draw the conclusion that
they have been engaged in a conspiracy to effect that object.
The question you have to ask yourselves is, 'Had they this
common design, and did they pursue it by these common
means - the design being unlawful?‖
(emphasis supplied)
399. The first overt manifestation of the conspiracy is found when the
recruitment process was taken away from the purview of Haryana Staff
Selection Committee (HSSC) and entrusted to Directorate of Primary
Education on 08.09.1999. This was followed by the enhancement of
interview marks. Then came the transfer of PW-38, which was done two
days after he moved the proposal to declare the results through HARTRON.
PW-23 was the next appointee to the office of Director of Primary Education
and has deposed in detail about the meetings that took place wherein she was
being convinced to enforce the conspiracy by de sealing the almirah and
changing the award lists. It is noteworthy that the circumstances in which
PW-23 was compelled to seek transfer included repeated demands in the two
meetings by the aides of A-4 to substitute the new award lists that were to be
created in place of the original award lists lying in her custody, anonymous
phone calls offering threats and bribe, theft at her residence etc. Once she
made her stand clear, she was also transferred in order to bring in someone
more susceptible to their demands.
400. Another circumstance is the delay caused in approval for compiling
the result. PW-23 had initiated the proposal for preparation of results through
the Results Compilation Committee on 20.06.2000 and this proposal had
reached the office of A-4 on 22.06.2000. However, the approval of this
proposal was granted only on 16.07.2000 after the person of his choice i.e.
A-3 was appointed on the basis of oral orders. This completely belies the
reasoning behind taking out the appointments from the purview of HSSC.
The decision to do so has been explained on ground of urgency in
appointments and the long drawn procedure under HSSC. The delay was
clearly being caused when circumstances were not supportive.
401. Mr. Khanna has also drawn my attention to the file notings
demonstrating that A-4 was promptly receiving all updates regarding the
appointments and was not unaware of the same as stated in his Section 313
statement. Despite the fact that O.P. Chautala (A-4) was not holding the
portfolio of the Education Minister, the file relating to JBT teachers
appointment was reaching his office for approval of almost every decision
made during the process, such as change of Result Compilation Committee
Members [Part 8/D-37-D-66/D-40(I)/Page 80, 86] and even declaration of
result. According to the rules of business in vogue [Part 8/S.no.7-
Miscellaneous Documents exhibited by the prosecution/Page 5-25] primarily
the minister in charge was competent to take the final decision on a matter,
however, the domain of the Chief Minister has been expressly carved out
[Rule 6, 18 and Rule 28]. Therefore, a false defence under Section 313
examination affords an additional link in the chain of circumstantial
evidence against A-4.
402. A-3 has examined himself in defence and deposed about a breakfast
meeting that took place between him and A-4, at the residence of A-4. I have
already discussed on the admissibility of testimony of A-3 giving evidence
of guilt of his co-accused. The worth of his evidence and the extent of
reliance that can be placed on it is the most crucial aspect. A-3 has stated in
his cross examination that sometime in July 2000, he had attended a
breakfast meeting with A-4 wherein he was told that a new set of lists had to
be implemented and A-3 was required to foresee the process of preparation
and execute the new set of lists. This was perhaps due to the fact that INLD
had got a clear majority in the mid-term elections in 2000 and the new set of
lists should be reflective of the preferences of the ruling government as
opposed to the original lists which were prepared when the coalition
government was ruling. A-3 has subsequently deposed about the meetings at
Haryana Bhawan and Punjab Guest House wherein the Chairman and
members of the Selection Committee of various districts were called and
instructed on their respective roles.
403. The law laid down by the Supreme Court in Tribhuvan Nath (supra)
unequivocally declares that an accused who examines himself under Section
315 in defense is to be treated as an ordinary witness. This means that all
legal principles governing appreciation of evidence of an ordinary witness
shall follow. The fundamental consideration as law laid down by the
Supreme Court regarding appreciation of ocular testimony assumes
significance and relevant paragraph is reproduced as under:
―14. In view of these considerations, we have no hesitation in
holding that the contention that in a murder case, the court
should insist upon plurality of witnesses, is much too broadly
stated. Section 134 of the Indian Evidence Act has
categorically laid it down that "no particular number of
witnesses shall in any case be required for the proof of any
fact." The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that
it shall not be necessary for proof or disproof of a fact, to call
any particular number of witnesses. In England, both before
and after the passing of the Indian Evidence Act, 1872, there
have been a number of statutes as set out in Sarkar's 'Law of
Evidence' - 9th Edition, at pp. 1100 and 1101, forbidding
convictions on the testimony of a single witness. The Indian
Legislature has not insisted on laying down any such
exceptions to the general rule recognized in s. 134 quoted
above. The section enshrines the well recognized maxim that
"Evidence has to be weighed and not counted". Our
Legislature had given statutory recognition to the fact that
administration of justice may be hampered if a particular
number of witnesses were to be insisted upon. It is not
seldom that a crime had been committed in the presence of
only one witness, leaving aside those cases which are not of
uncommon occurrence, where determination of guilt depends
entirely on circumstantial evidence. If the Legislature were to
insist upon plurality of witnesses, cases where the testimony
of a single witness only could be available in proof of the
crime, would go unpunished. It is here that the discretion of
the presiding judge comes into play. The matter thus must
depend upon the circumstances of each case and the quality
of the evidence of the single witness whose testimony has to
be either accepted or rejected. If such a testimony is found by
the court to be entirely reliable, there is no legal impediment
to the conviction of the accused person on such proof. Even
as the guilt of an accused person may be proved by the
testimony of a single witness, the innocence of an accused
person may be established on the testimony of a single
witness, even though a considerable number of witnesses
may be forthcoming to testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a sound and well-
established rule of law that the court is concerned with the
quality and not with the quantity of the evidence necessary
for proving or disproving a fact. Generally speaking, oral
testimony in this context may be classified into three
categories, namely :
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
15. In the first category of proof, the court should have no
difficulty in coming to its conclusion either way - it may
convict or may acquit on the testimony of a single witness, if
it is found to be above reproach or suspicion of
interestedness, incompetence or subornation. In the second
category, the court, equally has no difficulty in coming to its
conclusion. It is in the third category of cases, that the court
has to be circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial. There is another danger in insisting on
plurality of witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist on
plurality of witnesses in proof of any fact, they will be
indirectly encouraging subornation of witnesses. Situations
may arise and do arise where only a single person is available
to give evidence in support of a disputed fact. The court
naturally has to weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony open to suspicion, it
becomes its duty to act upon such testimony. The law reports
contain many precedents where the court had to depend and
act upon the testimony of a single witness in support of the
prosecution. There are exceptions to this rule, for example, in
cases of sexual offences or of the testimony of an approver;
both these are cases in which the oral testimony is, by its very
nature, suspect, being that of a participator in crime. But,
where there are no such exceptional reasons operating, it
becomes the duty of the court to convict, if it is satisfied that
the testimony of a single witness is entirely reliable. We
have, therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only reliable
evidence in support of the prosecution.‖
404. A-3 is undoubtedly a witness of the third category. He is neither
wholly reliable nor wholly unreliable. He has gone to lengths to prove that
the lists that were implemented were the original lists and he had no part to
play in the conspiracy thereby absolving him of all blame. This has been
proven to be a false theory and amongst other things, A-3 is not a reliable
witness in as much as he deposes about the implementation of the fake lists.
In so far as his testimony relates to the breakfast meeting with A-4, I am
convinced the same to be a true account of the events that transpired leading
to the execution of the conspiracy. It is not the case that the breakfast
meeting is the sole circumstance connecting A-4 to the conspiracy. The
involvement of A-4 is traceable from the time the Cabinet decision was
taken. Subsequent events read in conjunction with these decisions paint a
picture of a person, having knowledge of the conspiracy in the very least.
The evidence of breakfast meeting is the material evidence that directly
shows involvement of A-4. Therefore, the preceding events are reinforced
with the evidence of the breakfast meeting and afford the necessary
corroboration. Needless to state, A-3 was withstood lengthy cross
examination on the aspect of this meeting. The factum of the breakfast
meeting was also averred in the writ petition filed by A-3 in the year 2003
and it is not that this version sprung for the first time during trial.
405. Mr. Khanna has pointed out that Section 10 of the Indian Evidence
Act, 1872 envisages a concept of ‗vicarious liability' in cases of conspiracy
and act(s) of one co-conspirator bind the other and, therefore, the evidence
emerging against one co-conspirator is to be read as evidence against the
other conspirator as well. The role of A-1 Vidya Dhar and A-2 Sher Singh
Badshami and their respective involvement in the conspiracy stands proved.
Therefore, I agree that their conduct would also be read in evidence pointing
towards the guilt of A-4.
406. Again said, all the aforementioned circumstances when viewed
independent of each other may seem innocuous, however, on careful
consideration of the sequence of events and the accompanying conduct of A-
4 and those close to him, I am convinced that A-4 was actively involved in
the conspiracy and chain of circumstantial evidence pointing to his guilt is
complete. I find it difficult to believe that A-4 was in complete ignorance
about the events which were transpiring around him and it was a sheer
innocuous coincidence that his key aides A-1, A-2 as well as his son A-5
were getting enforced a scam of such vast magnitude spanning over 18
districts of Haryana and that messages for the said purpose were even rallied
through his Office by his staff unauthorisedly without his
approval/directions/consent. Furthermore, the key policy decisions which
gave impetus to the conspiracy were taken under his aegis. The period also
saw successive transfer of two Directors of Primary Education who refused
to toe the line dictated by the aides and son of A-4. The file travelled to A-4
for approval of almost every decision in the matter relating to JBT
appointments and it was being cleared expeditiously, however, curiously
when PW-23 initiated the proposal for declaration of result, the wheels of
bureaucratic machinery jammed for no perceivable reason whatsoever and
moved only when the new incumbent; who was a newly joined co-
conspirator had been inducted to achieve the ends of conspiracy that had
been delayed/thwarted by PW-23. Fortunately for the society, a confederate
of crime, A-3 also furnished direct-evidence during trial about his breakfast
meeting with A-4 and the mandate of changing the award lists which had
been voiced by him at the said meeting.
407. It is not the case that there exists no evidence otherwise to link A-4
with the crime and the case against him hinges solely on the substratum of
this breakfast meeting, which would make it unsafe to act upon the
testimony of the accomplice. It is a settled proposition of law that
corroboration need not extend to every circumstance deposed to by the
accomplice as that would in fact render such accomplice evidence wholly
superfluous. It is also settled proposition of law since time immemorial that
corroboration can be received even through circumstantial evidence, as in the
present case, and not necessarily by direct evidence.
408. Direct evidence in a scam of this magnitude is very difficult to obtain.
Only a co-conspirator can give evidence explaining the role of his
accomplices. It would also be apposite to cite the luminous observations of
the Supreme Court in its judgment dated 07.10.2013 reported as Gulam
Sarbar v. State of Bihar, Criminal Appeal No. 1316 of 2012 wherein it has
held that:
―The High Court rightly observed that normally the
perpetrator of crime in a case of conspiracy does not take
part in the execution rather such conspirator hires some
criminal directly or indirectly to execute the evil design
planned by him. There may be circumstances where the
conspirator remains vigilant to conceal his identity and
would not disclose the actual motive behind the
conspiracy.‖
409. Therefore, in my view there exists clinching, clear, cogent, credible
and legally admissible evidence available on record to demonstrate beyond
reasonable doubt the complicity of O.P. Chautala (A-4) in this crime.
410. Reliance was placed on Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116 to urge that the facts in a criminal trial
require to be so established so as to be consistent only with the hypothesis of
guilt of the accused and the chain of evidence must be so complete so as to
not leave any reasonable ground for the conclusion consistent with the
innocence of accused. Many of the circumstance pressed into service by the
prosecution have alternate explanations and, therefore, A-4 should get the
benefit thereof. There are profusion of authorities wherein the Supreme
Court has observed that the connotation ‗benefit of doubt' signifies a
reasonable doubt entertained by a conscientious judicial mind and not a
vacillating human mind swayed by idle skepticism. Benefit of doubt is not a
legal dosage to be administered at every segment of evidence, but an
advantage that is to be afforded to the accused at the final end after
consideration of the entire evidence, if the Judge conscientiously and
reasonable entertains doubt regarding the guilt of the accused. It is nearly
impossible in any criminal trial to prove all the elements with scientific
precision. Evidence need not be so strong as to exclude even a remote
possibility that the accused could not have committed the crime. The utopia
of absolute proof is a myth. The evidence act does not insist on absolute
proof for the simple reason that perfect proof in this imperfect world is
seldom to be found. Prof. Brett felicitously puts it ―all exactness is a fake‖.
Modern thinking is in favour of the view that proof beyond reasonable doubt
is the same as proof which affords moral certainty to the Judge. [State of
Haryana v. Bhagirath and Others, (1999) 5 SCC 96; M.G Agarwal v. State
of Maharashtra, AIR 1963 SC 200; Himachal Pradesh Administration v.
Shri Om Prakash, (1972) 1 SCC 249; State of Maharashtra v. Mohd.
Yakub and others, (1980) 3 SCC 57; Lal Singh v. State of Gujarat and
Another, (2001) 3 SCC 221.
DISCUSSION ON APPEAL OF A-5
411. The incriminating evidence sought to be used with respect to A-5,
Ajay Chautala is as follows:
i) A-5 has been identified by PW-23 at the first meeting in
Haryana Niwas wherein the subject of replacing the original
lists was initiated. He has also been identified by PW-16, PW-
23 and PW-26, for being present in the second meeting which
was held in the residence of A-1, Vidya Dhar,
ii) Call records demonstrating that A-5 was in touch with A-3
during the time the conspiracy to replace the lists was in motion
and
iii) The disproportionate number of candidates being selected from
Bhiwani over and above the no. of vacancies that were advised
in order to appease the people of Bhiwani, that being A-5's
constituency.
412. I have closely examined the testimony of PW-23, PW-26 and PW-16.
I will discuss their testimonies individually. PW-23, it seems has given the
most detailed and incriminating account of the events that transpired
sometime around May and June, 2000. PW-23 categorically identifies
presence of a certain ―Bhaisaab‖ at the meeting in Haryana Niwas wherein
the subject of replacing the award lists was initiated and then again at the
second meeting. She specifically names A-5, Ajay Chautala for the first time
in Court. It was argued on behalf of A-5, that being a senior bureaucrat in the
State of Haryana, it is most unlikely that she did not know who exactly Ajay
Chautala was. I do not agree. PW-23 was surely a senior bureaucrat in
Haryana at the time but was not required to report to A-5 for official work on
a daily basis. It is quite possible that she had no interaction with him earlier.
Also the defense has not forth evidence to contradict this aspect of her
testimony and in absence thereof, I do not see this instance as capable of
discrediting her version. Much has been said about the ikonic memory of
PW-23. Appellants have argued that she has made major lapses in the
sequence of events and in view of her assertion of having such a sterling
memory; it should be used to discredit her version. I do not agree. Apart
from the obvious fact that she was deposing after a considerable period of
time and certain discripancies are bound to creep in, her deposition when
viewed as a whole leads to the most plausible version of the events regarding
which she has deposed. Her objectivity and truthfulness is evidenced when
she very categorically deposes that the Chief Minister was not present at
either of the two meetings, neither did he ever contact her or instruct her to
change any list. She also does not claim to have been threatened directly by
A-5 during the meetings. She truthfully states what was suggested to her and
makes her best effort in tracing the dates on which the illegal directions to
change the lists were being made. Therefore, in my view PW-23 is a credible
and reliable witness who has truthfuly deposed in Court.
413. PW-16 and PW-26 also endorse PW-23's version on presence of A-5
at the second meeting. Both officials clearly state that A-5 was present at the
meeting where the issue was again discussed by A-2.
414. They are senior bureaucrats who have unanimously deposed about the
presence of A-5 at the aforementioned two meetings. The issue regarding
replacing of lists was discussed at length in these meetings. It was argued on
behalf of the appellant that mere presence at the meetings affords no
evidence of guilt. It is true that none of the three witnesses have deposed
regarding being threatened by A-5 or even having spoken to him. The picture
painted by these witnesses is limited to his presence at these meetings.
However, in my opinion, that is the most incriminating evidence of guilt in
itself. A-5 was not only a Member of Parliament from Haryana, he was also
the son of the sitting Chief Minister. A discussion on committing of an
illegal act that screams corruption of the highest order takes place in his
presence and he stays mute. The political advisor to his father repeatedly
suggests that interview marks of certain candidates should be changed and he
says nothing. Senior bureaucrats present at these meetings explain that these
suggestions cannot be considered to be executed as they do not want to be
involved in illegal activities and he still doesn't say anything at all. It is not
the case that A-2 made these illegal suggestions and A-5 threatened to
apprise his father of the same or he even protested or objected to the
execution of the conspiracy. Also since A-2 was already discussing the issue
of changing the lists, it was not required of A-5 to replicate the same. I am
of the view that his presence and subsequent silence at these meetings is
reflective of his unequivocal involvement and evidence of being one of the
prime conspirators in the conspiracy.
415. Learned Counsel Mr. Cheema has pointed out two instances that
reflect a biased role played by the investigating agency in order to include
the name of A-5 in the conspiracy. I was made to go through the Section 161
statements of PW-16 and PW-26 to show that certain pages are in a different
font and appear to be in a different colour than the rest of the stack. It is
these pages in which the presence of A-5 has been highlighted. The other
instance is the fact that the witnesses have admitted to having seen their
Section 161 statements and refreshed their memory prior to testifying in
Court.
416. A statement made by a witness under Section 161 can be used to
contradict his/her testimony in Court. When a witness confirms the story
elaborated in the previous statement, it lends credibility to his/her testimony.
I agree with the observation of the trial Judge that if the change in font or
colour of the pages were a result of interpolation by the CBI then a more
colourful picture could be painted regarding role of A-5. Specific words and
a specific role could be ascribed to him. These witnesses have deposed in
Court regarding the two meetings and denied suggestions of interpolation in
cross examination. On the other aspect of refreshing memory prior to
deposition, suffice it is to say that the witnesses have themselves truthfully
disclosed this fact and it is not the case that they attempted to conceal the
said fact and the accused exposed their lies through independent evidence.
The said witnesses are senior IAS officers and it militates against
probabilities that they would depose under the pressure of police officials
and toe the dotted lines dictated by them. It has not emerged in evidence that
the witnesses have deposed before the Court by reading out from their
previous statements in the witness-box and, therefore, nothing turns on this
circumstance.
417. Call records between A-3 and A-5 during the relevant period have
been pressed into service to demonstrate that A-5 was regularly in touch with
A-3, taking updates on the preparation of the new award lists. Without
getting into the numerous authorities cited by both, the appellant as well as
the CBI, the law has been clearly enunciated by the Supreme Court in Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 in the following terms:
―20. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru, (2005) 11 SCC 600, a two-Judge Bench of this Court
had an occasion to consider an issue on production of
electronic record as evidence. While considering the
printouts of the computerized records of the calls pertaining
to the cell phones, it was held at Paragraph-150 as follows:
150. According to Section 63, secondary evidence
means and includes, among other things, "copies made
from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies
compared with such copies". Section 65 enables
secondary evidence of the contents of a document to
be adduced if the original is of such a nature as not to
be easily movable. It is not in dispute that the
information contained in the call records is stored in
huge servers which cannot be easily moved and
produced in the court. That is what the High Court has
also observed at para 276. Hence, printouts taken from
the computers/servers by mechanical process and
certified by a responsible official of the service-
providing company can be led in evidence through a
witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based
on his personal knowledge. Irrespective of the
compliance with the requirements of Section 65-B,
which is a provision dealing with admissibility of
electronic records, there is no bar to adducing
secondary evidence under the other provisions of the
Evidence Act, namely, Sections 63 and 65. It may be
that the certificate containing the details in Sub-section
(4) of Section 65-B is not filed in the instant case, but
that does not mean that secondary evidence cannot be
given even if the law permits such evidence to be
given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65.
21. It may be seen that it was a case where a responsible
official had duly certified the document at the time of
production itself. The signatures in the certificate were also
identified. That is apparently in compliance with the
procedure prescribed Under Section 65B of the Evidence
Act. However, it was held that irrespective of the
compliance with the requirements of Section 65B, which is
a special provision dealing with admissibility of the
electronic record, there is no bar in adducing secondary
evidence, Under Sections 63 and 65, of an electronic record.
22. The evidence relating to electronic record, as noted
herein before, being a special provision, the general law on
secondary evidence Under Section 63 read with Section 65
of the Evidence Act shall yield to the same. Generalia
special bus non derogant, special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65A dealing with the admissibility
of electronic record. Sections 63 and 65 have no application
in the case of secondary evidence by way of electronic
record; the same is wholly governed by Sections 65A and
65B. To that extent, the statement of law on admissibility of
secondary evidence pertaining to electronic record, as stated
by this Court in Navjot Sandhu case (supra), does not lay
down the correct legal position. It requires to be overruled
and we do so. An electronic record by way of secondary
evidence shall not be admitted in evidence unless the
requirements Under Section 65B are satisfied. Thus, in the
case of CD, VCD, chip, etc., the same shall be accompanied
by the certificate in terms of Section 65B obtained at the
time of taking the document, without which, the secondary
evidence pertaining to that electronic record, is
inadmissible.‖
418. The decision in Anwar P.V. (supra) was delivered on 18.09.2014 after
these appeals were reserved on 11.07.2014 and, therefore, could not be taken
up at the argument stage. However, it has been taken into consideration
thereafter. Admittedly, the certificate requirement under Section 65B Indian
Evidence Act was not complied with. In absence thereof, the same is clearly
inadmissible and is, therefore, eschewed from consideration.
419. The other circumstance found incriminating against A-5 is the
disproportionate number of candidates being selected from Bhiwani in the
Directorate lists. Bhiwani being the constituency of A-5 at the relevant time
and the selection of candidates exceeding the vacancies advertised, the
prosecution has alleged that this evidences the fact that A-5 wanted to
appease his people and thus corroborates his involvement in the conspiracy.
A-5 was Member of Parliament from Bhiwani and 312 candidates were
selected from District- Bhiwani, which is comprised in the Parliamentary
Constituency of Bhiwani, as against the 60 advertised vacancies arising
therein. I have already observed in preceding paragraphs that the Directorate
lists were the fake lists. The disproportionate selection lends credence to the
theory that this conspiracy was staged in order to gain political mileage and
further political prospects.
420. It is, therefore, proved by positive evidence that A-5 was indeed
amongst the prime conspirators and had the maximum to gain on execution
of the conspiracy.
DISCUSSION ON APPEAL OF A-1
421. The prosecution seeks to trace the involvement of A-1 from
10.11.1999 wherein the decision to increase the interview marks first took
place pursuant to the cabinet decision. I have already discussed regarding the
period of conspiracy while deaing with case of A-4. It is pointed out that
A-1 was present at the meeting that took place on 10.11.1999.
422. With reference to the first meeting held at Haryana Niwas, it is argued
that it is only PW-16 who has deposed to the presence of A-1. PW-23 and
PW-26 have been categorically asked and they have answered that infact A-1
was not present in this meeting. The trial judge has also not considered his
presence as proved at this meeting, in view of the fact that this fact was not
mentioned in the S.161 statement of PW-16. I agree with the finding of the
learned trial judge on this aspect.
423. Coming now to the meeting that purportedly took place at the
residence of A-1, it is argued that it only through the categorical assertion
made by PW-16 that the venue of this meeting is being attributed as the
residence of A-1. PW-23 and PW-26 do not corroborate this assertion and
only mention that they were taken to a house in Sector-7 Chandigarh. The
testimony of PW-16 is also attacked on the ground that this assertion is not
supported by any explanation on the time gap between the two meetings, the
date and time of the second meeting. It is also argued that PW-23 has faulted
on certain material dates and the sequence of events leading up to this
incident and it would be unfair to rely solely on the testimony of PW-16 to
conclude that the second meeting took place at his residence.
424. Learned ASG has argued that no animus or ill-will can be attributed to
the said witnesses; who are senior IAS officials and have deposed
consistently against A-1. It has been held by the Supreme Court in its
decision reported as The State of Punjab v. Jagir Singh, (1974) 3 SCC 277
that in arriving at a conclusion about the guilt of the accused charged with
the commission of crime, the court has to judge evidence by the yardstick of
probabilities, its intrinsic worth and the animus of witnesses. The fact that
the witnesses are not able to recollect the dates of the said meetings or have
confused themselves at certain junctures on the sequence of events is not
unnatural but rather a hallmark of truth as they made their statements before
the investigation agency after a period of four years and tendered their
evidence before the Trial Court after nearly a decade.
425. Observations of the Supreme Court in its decision reported as Inder
Singh And Another v. The State (Delhi Administration), (1978) 4 SCC 161
are noteworthy:
―Credibility of testimony, oral and circumstantial, depends
considerably on a judicial evaluation of the totality, not
isolated scrutiny. While it is necessary that proof beyond
reasonable doubt should be adduced in all criminal cases, it is
not necessary that it should be perfect. If a case is proved too
perfectly, it is argued that it is artificial; if a case has some
flaws, inevitable because human beings are prone to err, it is
argued that it is too imperfect. One wonders whether in the
meticulous hypersensitivity to eliminate a rare innocent from
being punished, many guilty men must callously be allowed
to escape. Proof beyond reasonable doubt is a guideline, not a
fetish and guilty man cannot get away with it because truth
suffers some infirmity when projected through human
processes. Judicial quest for perfect proof often accounts for
police presentation of fool-proof concoction. Why fake up?
Because the courts asks for manufacture to make truth look
true? No, we must be realistic.‖
426. I would also like to state that this argument focusing on the venue of
the second meeting is misguided in as much as it is the fact that A-1 was
present at such a meeting where officials much senior to him were present
and were directed to commit a crime is of most relevance. Whether or not
such a meeting took place at his residence is a secondary issue. All three
witnesses have spoken in unison of the fact that A-1 was present at this
meeting was privy to events that transpired therein. Even otherwise I would
agree that the discrepancies pointed out are minor and do not affect the
collective value of statement of these three witnesses who have categorically
deposed against A-1. In view of the considerable time gap between these
meetings to the time that these witnesses have deposed in court, some minor
variations are justifiably present and do not cast doubt on the genuineness of
their testimony.
427. With regard to the meeting at Punjab Guest House, the prosecution
largely relies on the testimony of A-3 as a witness in his defence. A-3 has
deposed that A-1 was present in a separate room at this meeting along with
A-2 and Jagtar Singh Sandhu and the discussion on change of lists was
discussed. PW-56 has deposed regarding this meeting and stated that he was
called to this meeting as were some other DPEOs who had not come to
Haryana Bhawan and were told that they can collect copy of award lists in
case they did not have one. In order to be briefed about their job they were
called to a room where some other persons were also present. Therefore,
PW-56 though does not specifically state that A-1 was present in this
meeting, he corroborates the presence of A-3.
428. The question now remains whether the testimony of A-3 regarding
presence of A-1 at this meeting can be believed. A-3 has mentioned A-1 as
an active participant in the conspiracy to change the award lists in the writ
petition and the additional affidavit filed by him in the Supreme Court. It is
not that the name of A-1 figures for the first time through the testimony of
A-3. Even in his testimony, A-3 does not ascribe any express words that
were stated by A-1 in furtherance of the conspiracy. He simply says that A-1
was present at this meeting. I, therefore, agree with the finding of the trial
judge that presence of A-1 at Punjab Guest House can be believed on a
conjoint reading of testimony of A-3 and PW-56.
429. Counsel for the appellant has argued that even if presence of A-1 is
proved at these meetings, he was a silent spectator and no role has been
ascribed to him. I disagree. It is not a case where a person is being roped in
and accused of a crime merely because he was found at the crime scene.
Consistent presence of A-1 at all the meetings is symbolic of the fact that he
is not a person unaware and unconnected with the conspiracy at hand. His
presence at all these crucial meetings stands established. In the absence of
any disapproval or objection regarding the conspiracy, his presence indicates
that he was a willing participant. I agree with the submission of CBI that
when the political advisor and the son of the Chief Minister (A-2 and A-5)
were expressly discussing the issue of change of award lists, it was not
essential that A-1 also duplicate their words. He has not pleaded that he was
under any pressure from any other person to be present at these meetings. I,
therefore, hold that A-1 was a willing participant to the conspiracy and was
actively involved in ensuring execution of the same.
430. It has been argued that had A-1 been a conspirator in this scam, his
relatives who were candidates in the recruitment process would have gained
positively, however, the interview marks of his relatives have been decreased
in the Directorate List thereby evidencing that he had nothing to gain by
being involved in the conspiracy. I do not agree. Just because his relatives
were not favoured in the process of conspiracy does not absolve him of
involvement in it. As pointed out by Mr. Khanna, we don't know if A-1 was
at all interested in helping his relatives. Especially in view of the fact that
this fact was never mentioned in his statement under Section 313 Cr.P.C. I
do not find merit in this argument, it is accordingly rejected.
DISCUSSION ON APPEAL OF A-2
431. So far as the involvement of A-2 in the first two meetings is
concerned, the same has been unequivocally proved through the testimonies
of PW-16, PW-23 and PW-26. I have carefully gone through the tabular
representation depicting the inconsistencies in the version of the three
witnesses. The inconsistencies pointed out by Counsel for the appellant are
minor and justifiable by the time gap after which the witnesses have deposed
regarding their particulars. I have already adverted two testimonies of all
these three witnesses in preceding paragraphs. PW-16 has very specifically
pointed out that it was A-2 who initiated the subject of changing the award
lists in both meetings. PW-23 and PW-26 corroborate this version and have
withstood the test of cross examination. I see no justifiable reason to reject
their testimony.
432. With regard to the third meeting, the testimony of A-3 is crucial. He
had mentioned in the writ petition that sometime in August/September a
meeting had taken place wherein all the members of selection committees
were called and the conspiracy to replace the lists was explained to the
members. So it is not the case that A-3 has deposed regarding this meeting
and presence of A-2 in it for the first time at trial. PW-56 has also deposed
regarding this meeting. While it is true he does not mention the presence of
A-2, he corroborates the testimony of A-3 to the extent that such a meeting
indeed took place at the Water Supply Guest House, wherein DPEOs were
briefed and some other persons were also present. I see no reason to
disbelieve this portion of his testimony.
433. Documentary evidence to prove the meeting at Haryana Bhawan is in
the form of the visitors register containing the signature of A-2. An entry is
made on 31.08.2000 in the name of A-2 containing his signature. The
witness examined by A-2 in his defense Mr. Mukesh Kumar has deposed
that he had stayed in Haryana Bhawan on the said date and had signed in the
name of A-2. This witness does not help the case of A-2 because he testifies
in cross examination that he had left Haryana Bhawan on 01.09.2000 at 8:30
a.m. The entry in the visitor register shows that A-2 stayed in Haryana
Bhawan on 01.09.2000. I have perused the entry in the register and I agree
with the observation of trial Jude that the signature of A-2 as appears on his
statement under Section 313 is similar to the one in the register.
434. The other witness who has testified regarding presence of A-2 at
Haryana Bhawan is A-50. He clearly states that he went to Haryana Bhawan
on 01.09.2000 and arrived around 2:00 p.m. and met A-3 who informed him
that he was late and that necessary instructions had been given. On
displaying hesitation to prepare the fake lists, he was taken into a room
where A-2 was also present and threatened about the consequences of
refusal.
435. I find the account of A-50 to be truthful and see no reason as to why
he would depose against A-2. A-3 on one hand confirms the presence of A-2
at Haryana Bhawan but conveniently takes no blame upon him. A-50
corroborates the version of A-3 regarding presence of A-2 in Haryana
Bhawan and in addition also explains the reason for his presence. In order to
properly execute this conspiracy, the presence of A-2 at all these meetings
was an affirmation to all the committee members that instructions regarding
the creation of fake lists are stemming directly from the Chief Minister.
436. The cumulative effect of all the evidence is that A-2 first tried to
pressure PW-23 in a meeting held in Haryana Niwas, Chandigarh to change
the award lists. A second attempt was made by him at the residence of A-1
by pressurizing PW-23 in the presence of PW-16 and PW-26. Testimony of
A-3 proves that A-2 was present along with A-l and A-3 in the guest house
of Water Supply and Sanitation Department of Punjab at Chandigarh, where
as per M.L. Gupta (PW-56) some Chairpersons and the members were asked
to take the copy of award lists. A-2 actively pressurized and threatened the
other chairpersons and the members of the District Level Selection
Committees on 01.09.2000 in Haryana Bhawan. Therefore, a complete chain
of evidence is available on record about him being an active participant in
the entire conspiracy from beginning to the end.
LEGAL SUBMISSIONS - COMMITTEE MEMBERS
Sanction
437. The remaining accused, i.e. A-6 to A-62 are committee members and
Chairpersons that have been convicted under Sections 418, 467 and 471 of
The Indian Penal Code as well as under Section 13 of The Prevention of
Corruption Act. Factually, sanction orders under Section 19 of The
Prevention of Corruption Act, 1988 have only been obtained with respect to
A-1, A-3, A-13, A-24, A-28, A-36, A-39, A-54 and A-59. Rest of the
accused persons had retired and, therefore, sanction was not obtained with
respect to them.
438. It is argued across the board on behalf of all accused (barring A-2, as
he was not a public servant) that that being public servants the requirement
of sanction under Section 197 Cr.P.C. is mandatory even if the accused
persons had retired because their act of commission or omission is directly
related with their official duty. Reliance is placed on the case reported as
State of Madhya Pradesh v. Sheetla Sahai and Ors., (2009) 8 SCC 47
Relevant paragraphs are reproduced as under:
―60. This leaves us with the question as to whether an order
of sanction was required to be obtained. There exists a
distinction between a sanction for prosecution under
Section 19 of the Act and Section 197of the Code of
Criminal Procedure. Whereas in terms of Section 19, it
would not be necessary to obtain sanction in respect of those
who had ceased to be a public servant, Section 197 of the
Code of Criminal Procedure requires sanction both for those
who were or are public servants.
61. Strong reliance has been placed by Mr. Tulsi on a
judgment of this Court in Centre for Public Interest
Litigation and Anr. v. Union of India and Anr. : (2005) 8
SCC 202. In that case, it was held:
9. The protection given under Section 197 is to protect
responsible public servants against the institution of
possibly vexatious criminal proceedings for offences
alleged to have been committed by them while they are
acting or purporting to act as public servants. The
policy of the legislature is to afford adequate protection
to public servants to ensure that they are not prosecuted
for anything done by them in the discharge of their
official duties without reasonable cause, and if sanction
is granted, to confer on the Government, if they choose
to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when
the alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is
not merely a cloak for doing the objectionable act. If in
doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act
and the performance of the official duty, the excess
will not be a sufficient ground to deprive the public
servant from the protection. The question is not as to
the nature of the offence such as whether the alleged
offence contained an element necessarily dependent
upon the offender being a public servant, but whether it
was committed by a public servant acting or purporting
to act as such in the discharge of his official capacity.
Before Section 197 can be invoked, it must be shown
that the official concerned was accused of an offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duties.
It is not the duty which requires examination so much
as the act, because the official act can be performed
both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and
range of the official duties of the public servant
concerned. It is the quality of the act which is
important and the protection of this section is available
if the act falls within the scope and range of his official
duty. There cannot be any universal rule to determine
whether there is a reasonable connection between the
act done and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in this
regard would be to consider if the omission or neglect
on the part of the public servant to commit the act
complained of could have made him answerable for a
charge of dereliction of his official duty. If the answer
to this question is in the affirmative, it may be said that
such act was committed by the public servant while
acting in the discharge of his official duty and there
was every connection with the act complained of and
the official duty of the public servant. This aspect
makes it clear that the concept of Section 197 does not
get immediately attracted on institution of the
complaint case.
10. Use of the expression "official duty" implies that
the act or omission must have been done by the public
servant in the course of his service and that it should
have been in discharge of his duty. The section does
not extend its protective cover to every act or omission
done by a public servant in service but restricts its
scope of operation to only those acts or omissions
which are done by a public servant in discharge of
official duty.
11. If on facts, therefore, it is prima facie found that the
act or omission for which the accused was charged had
reasonable connection with discharge of his duty then
it must be held to be official to which applicability of
Section 197 of the Code cannot be disputed.
62. Were the respondent Nos. 1 to 7 required to act in the
matter as a part of official duty?
Indisputably, they were required to do so. Be he an
Executive Engineer, Superintending Engineer, Chief
Engineer, Engineer-in-Chief, Secretary or Deputy Secretary,
matters were placed before them by their subordinate
officers. They were required to take action thereupon. They
were required to apply their own mind. A decision on their
part was required to be taken so as to enable them to oversee
supervision and completion of a government project. The
Minister having regard to the provisions of the Rules of
Executive Business was required to take a decision for and
on behalf of the State. Some of the respondents, as noticed
hereinbefore, were required to render their individual
opinion required by their superiors. They were members of
the Committee constituted by the authorities, viz., the
Minister or the Secretary. At that stage, it was not possible
for them to refuse to be a Member of the Committee and/or
not to render any opinion at all when they were asked to
perform their duties. They were required to do the same and,
thus, there cannot be any doubt whatsoever that each one of
the respondent Nos. 1 to 7 was performing his official
duties.
63. For the purpose of attracting the provisions of
Section 197 of the Code of Criminal Procedure, it is not
necessary that they must act in their official capacity but
even where a public servant purports to act in their official
capacity, the same would attract the provisions of
Section 197 of the Code of Criminal Procedure. It was so
held by this Court in Sankaran Moitra v. Sadhna Das and
Anr. (2006) 4 SCC 584.‖
439. My attention is invited towards Section 465 Cr.P.C. to show that
objection regarding sanction being raised at the trial stage as well and having
been rejected has occasioned grave failure of justice.
440. Mr. Khanna argues that the Supreme Court has since time immemorial
held that merely because the office held by the public servant furnished the
opportunity to commit the crime, the same cannot be said to have a nexus
with discharge or purported discharge of official duty. A finding of guilt
rendered by the Trial Court cannot be upset by the Appellate Court solely on
the premise of absence or irregularity of sanction unless it is of the view that
failure of justice has been occasioned thereby. It is argued that none of the
appellants have been able to shed an iota of light on the crucial aspect as to
how failure of justice has occasioned in the present case. Interpreting the
above extracted provisions of law the Supreme Court has held that benefit
from any irregularity in sanction is not automatic in nature and the accused
must demonstrate the failure of justice stemming from such irregularity.
441. Let us examine the relevant provisions:
"197. Prosecution of Judges and public servants.-- (1)
When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with
the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the
previous sanction 4[save as otherwise provided in the
Lokpal and Lokayuktas Act, 2013]--
(a) in the case of person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of
the Central Government;
(b) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a
State, of the State Government:
[Provided that where the alleged offence was committed
by a person referred to in clause (b) during the period
while a Proclamation issued under clause (1) of Article
356 of the Constitution was in force in a State, clause (b)
will apply as if for the expression ―State Government‖
occurring therein, the expression ―Central Government‖
were substituted.]
[Explanation.--For the removal of doubts it is hereby
declared that no sanction shall be required in case of a
public servant accused of any offence alleged to have
been committed under Section 166-A, Section 166-B,
Section 354, Section 354-A, Section 354-B, Section 354-
C, Section 354-D, Section 370, Section 375, Section 376,
Section 376-A, Section 376-C, Section 376-D or Section
509 of the Indian Penal Code (45 of 1860).]
(2) No Court shall take cognizance of any offence alleged to
have been committed by any member of the Armed Forces
of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous
sanction of the Central Government.
(3) The State Government may, by notification, direct that
the provisions of sub-section (2) shall apply to such class or
category of the members of the Forces charged with the
maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions
of that sub-section will apply as if for the expression
―Central Government‖ occurring therein, the expression
―State Government‖ were substituted.
[(3-A) Notwithstanding anything contained in sub-section
(3), no court shall take cognizance of any offence, alleged to
have been committed by any member of the Forces charged
with the maintenance of public order in a State while acting
or purporting to act in the discharge of his official duty
during the period while a Proclamation issued under clause
(1) of Article 356 of the Constitution was in force therein,
except with the previous sanction of the Central
Government.
(3-B) Notwithstanding anything to the contrary contained in
this Code or any other law, it is hereby declared that any
sanction accorded by the State Government or any
cognizance taken by a court upon such sanction, during the
period commencing on the 20th day of August, 1991 and
ending with the date immediately preceding the date on
which the Code of Criminal Procedure (Amendment) Act,
1991, receives the assent of the President, with respect to an
offence alleged to have been committed during the period
while a Proclamation issued under clause (1) of Article 356
of the Constitution was in force in the State, shall be invalid
and it shall be competent for the Central Government in
such matter to accord sanction and for the court to take
cognizance thereon.]
(4) The Central Government or the State Government, as the
case may be, may determine the person by whom, the
manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to
be conducted, and may specify the Court before which the
trial is to be held.
Section 19(3) (a) of the Prevention of Corruption Act, 1988 reads
as under:
....―no finding, sentence or order passed by a special Judge
shall be reversed or altered by a court in appeal, confirmation
or revision on the ground of the absence of, or any error,
omission or irregularity in, the sanction required under sub-
section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby."
442. Corresponding provision in the Code of Criminal Procedure, reads as
under:
―465. Finding or sentence when reversible by reason of error,
omission or irregularity.--
(1) Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent jurisdiction
shall be reversed or altered by a Court of appeal, confirmation
or revision on account of any error, omission or irregularity in
the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or in any
inquiry or other proceedings under this Code, or any error, or
irregularity in any sanction for the prosecution, unless in the
opinion of that Court, a failure of justice has in fact been
occasioned thereby.
(2) In determining whether any error, omission or irregularity in
any proceeding under this Code, or any error, or irregularity
in any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier
stage in the proceedings.‖
443. A conjoint reading of the above extracted provisions would reveal that
a finding of guilt rendered by the trial Court cannot be upset by the Appellate
Court solely on the premise of absence or irregularity of sanction unless it is
of the view that failure of justice has been occasioned thereby. I would agree
that none of the appellants have been able to convincingly demonstrate any
failure of justice in omission to obtain sanction. The very nature of the acts
for which the accused persons have been charged under various provisions of
the Indian Penal Code (Section 467 IPC, Section 420 IPC, and Section 120-
B IPC) are such that by no stretch of imagination they can be said to have an
organic nexus with the discharge of official duty, so as to bring the present
case within the protective umbrella of Section 197 Cr.P.C. The sordid facts
of the present case demonstrate total anarchy in the governance of the State
of Haryana, wherein more than 50 senior and seasoned public servants
posted across various districts in the department of education consciously
indulged in commission of act of forgery at the behest of their superiors who
all were integrally part of the well designed conspiracy to give effect to this
employment scam of vast magnitude. The second set of award lists were
consciously created in the year 2000 (end of August and early September)
and were substituted for the original award lists after breaking open the
sealed almirah. The acts highlighted above exhibit contrivance and brazen
criminal misconduct, committed consciously to execute the ends of
conspiracy. The argument on omission to obtain sanction is, therefore,
rejected.
Handwriting and Signature specimens
444. Strong resistance has come on behalf of appellants with regard to
admissibility of the report of the handwriting expert. It was argued that the
handwriting and signature specimens were obtained in blatant disregard of
all prescribed procedure and the same has to be eschewed from
consideration. Reliance is placed primarily on the Full Bench judgment of
this Court in Sapan Haldar (supra).
445. Learned trial judge has taken note of the Supreme Court decision in
Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2 SCC
490, wherein the argument on admissibility of report of handwriting expert
was urged and the Court observed that the same would be admissible despite
having obtained the specimen handwriting and signature without permission
of Court.
446. I have meticulously gone through the case laws cited at the Bar. The
decision of the Supreme Court in Navjot Sandhu (supra) and reiterated in
Dara Singh (supra) is quite clear. Expert evidence in the form of report on
handwriting and signature specimens is not barred from consideration on the
ground that they were obtained without permission of Court. The law on
obtaining handwriting specimen is now specifically incorporated under
Section 311A Cr.P.C. which came in to effect on 23.06.2006. The specimens
were taken prior to this date and, therefore, the procedure prescribed by the
section could not be adhered to. The decision in Ram Babu Mishra (supra)
was based on the question whether the Magistrate is empowered to direct an
accused to give his specimen writing and signature under Section 73 of the
Evidence Act for the purpose of enabling the Court to ―compare" such
writings with writings alleged to have been written by such person. The
Court in Ram Babu Mishra interpreted the purport of Section 73 and held
that the words "for the purpose of enabling the Court to compare" assume
continuance of some proceeding before the Court in which or as a
consequence of which it might be necessary for the Court to compare such
writings. The direction is to be given for the purpose of 'enabling the Court
to compare'. If the case is still under investigation there is no present
proceeding before the Court in which or as a consequence of which it might
be necessary to compare the writings. It was observed that the language of
Section 73 does not permit a Court to give a direction to the accused to give
specimen writings for anticipated necessity for comparison in a proceeding
which may later be instituted in the Court. The ratio of this case was,
therefore, limited to observing that Section 73 Indian Evidence Act is not an
enabling provision for the Magistrate to give any such direction to an
accused in a matter that is pending investigation. However, it cannot be said
that as a necessary corollary to this principle, the specimen handwriting and
signature is not obtainable at all during investigation. The investigating
officer in a criminal case is empowered under Section 2(h) Cr.P.C to collect
evidence and undertake various steps in that endeavor. The Supreme Court
in Selvi v. State of Karnataka, (2010) 7 SCC 263 has endorsed this view and
held that the term ―investigation‖ includes steps which are not exhaustively
and expressly enumerated. Even otherwise, experience suggests that every
crime requires its own tailor made investigation which may be peculiar to the
circumstances of the case. It would not be prudent and neither possible to
exhaustively catalogue such steps taken during investigation in a code like
Cr.P.C. Thus absence of a specific provision enabling a particular step under
investigation does not imply that the investigation agency is disabled from
taking that step under its power/duty (power coupled with duty) to conduct
investigation. For e.g. the police during investigation of a murder case
prepares the site plan, collects/seizes the blood stained earth, seizes various
articles lying on the spot, seizes the weapon used during commission of
crime, seizes the clothes of the victim and the accused etc. However, there is
no such express provision in the Cr.P.C. or other statute to enable the police
to undertake such acts for collection of evidence during investigation.
447. In this context I am reminded of the observations of Lord Halsbury in
Quinn v. Leathem, (1901) A.C. 495 at p. 506, quoted with approval by a
Constitution Bench of this Court in State of Orissa v. Sudhansu Sekhar
Misra; (1970) ILLJ 662 SC and again in Orient Paper and Industries Ltd.
and Anr. v. State of Orissa and Ors.; [1991] Supp. 1 SCC 81, at page 96:
―Now, before discussing the case of Allen v. Flood and what
was decided therein, there are two observations of a general
character which I wish to make, and one is to repeat what I have
very often said before, that every judgment must be read as
applicable to the particular facts proved, or assumed to be
proved, since the generality of the expressions which may be
found there are not intended to be expositions of the whole law,
but governed and qualified by the particular facts of the case in
which such expressions are to be found. The other is that a case
is only an authority for what it actually decides. I entirely deny
that it can be quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning assumes that the
law is necessarily a logical code, whereas every lawyer must
acknowledge that the law is not always logical at all.‖
448. The decision in Sapan Haldar (supra) again has considered the
question whether handwriting and signature specimens are obtainable under
Section 4 and 5 of the Identification of Prisioners Act, 1920 and the Court
observed that since both handwriting and signature of a person are not a
mark of identification, the same cannot be ―measurement‖ as defined under
Section 2(a) of the Identification of Prisoners Act. However, the very next
line which declares that an investigating officer, during investigation, cannot
obtain a handwriting sample or a signature sample from a person accused of
having committed an offence is in teeth with the view adopted by the
Supreme Court in Navjot Sandhu (supra) and Dara Singh (supra).
449. In view of the aforesaid discussion, I am of the opinion that the report
of the expert and analysis of handwriting and signature specimens of the
accused persons cannot be rendered inadmissible on the ground that it was
obtained in violation of prescribed procedure.
Forgery
450. Factually, there are two sets of lists, both containing the signatures of
relevant committee members. I have already observed in the preceding
paragraphs that the Directorate lists, on the basis of which the results were
declared and appointments were made, are the fake lists. The trial Court has
returned a finding of guilt under Sections 467 and 471 IPC with regard to the
committee members.
451. It is argued on behalf of CBI that the act of fraudulent substitution of
the original selection lists by a new set of ante-dated lists actually prepared
later in time and having different contents amounts to making a ‗false
document' in terms of section 464 IPC. The Sections are reproduced as
under:
Section 463 - Forgery
[Whoever makes any false documents or false electronic
record or part of a document or electronic record with intent
to cause damage or injury], to the public or to any person, or
to support any claim or title, or to cause any person to part
with property, or to enter into any express or implied contract,
or with intent to commit fraud or that fraud may be
committed, commits forgery.
Section 464 - Making a false document
[A person is said to make a false document or electronic
record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a
document;
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or
the authenticity of the [electronic signature],
with the intention of causing it to be believed that such
document or pan of document, electronic record or[electronic
signature] was made, signed, scaled executed, transmitted or
affixed by or by the authority of a person by whom or by
whose authority he knows that it was not made, singed,
sealed, executed or affixed; or
Secondly.--Who without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document
or an electronic record in any material part thereof, after it has
been made, executed or affixed with [electronic signature]
either by himself or by any other person, whether such person
be living or dead at the time of such alteration; or
Thirdly.--Who dishonestly or fraudulently causes any person
to sign, seal, execute or alter a document or an electronic
record or to affix his [electronic signature] on any electronic
record knowing that such person by reason of unsoundness of
mind or intoxication cannot, or that by reason of deception
practised upon him, he does not know the contents of the
document or electronic record or the nature of the alteration.]
452. The present case is not of mere innocuous ante-dating of a document
by its authorized maker but of fraudulent creation of a document giving an
impression that it was created much earlier in time than it was actually
created and having drastically different contents than the documents for
which it was substituted. The fact that such document created later in time
had drastically different contents than the original document signifies the
fraudulent purpose for its creation.
453. Learned Counsel Mr. Khanna cites the decision in the case reported as
Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh; AIR
1954 SC 322 to support the argument on antedating of document. It was
observed as under:
―21. All these circumstances go to show that far from these
documents coming into existence on the respective dates
which hey bore they were in fact brought into existence on
the afternoon of 11th April, 1949 at the Constitution House
as alleged by the prosecution and were ante-dated to 1st
April, 1949 and 2nd April, 1949 respectively with a view to
show that the resumption order had already been granted by
Appellant 1 to the Syndicate at Rewa on 2nd April, 1949.
The evidence of Nagindas and Pannalal thus in resect of the
forgery of these documents bears the stamp of truth and
deserves to be accepted.‖
454. My attention is also invited to the observations in the case reported as
Dharmendra Nath Shastri vs. Rex through Sheoraj Singh; AIR 1949 ALL.
Relevant paras are reproduced as under:
―15. The first point argued was that no charge of forgery could
be made out under S. 463, Penal Code, as the writing Ex. A
which is the subject of the charge was not a ―document‖, as
defined in S. 29, Penal Code. That definition runs as follows:
―The word ‗document' denotes any matter expressed
or described upon any substance by means of letters,
figures or marks or by more than one of those means
intended to be used or which may be used as
evidence of that matter.‖
16. Mr. Pathak, appearing for the accused, contended that as
the writing, Ex. A could not by itself be evidence of the truth of
its contents, it could not be a ‗document' within the meaning of
S. 29, Penal Code. The word ‗evidence' occurring in this section
precedes the words ―of that matter‖ and the word ―matter‖ as
occurring in the opening portion of the section is qualified by the
words ―expressed or described upon any substance by means of
letters,‖ etc. This means that the matter contemplated by this
section is what is expressed or described upon any substance, and
the question is whether such a matter can be evidence of its
existence. It is obvious that the matter expressed or described
upon any substance would certainly be the evidence of the fact
that matter exists, though it may not by itself be a proof of the
truth of the contents of that matter. The contention raised by the
learned counsel for the accused is evidently based on a confusion
of thought, inasmuch as it assumes that the word ―evidence‖ in S.
29, Penal Code, implies evidence of the truth of the matter
expressed and not merely of its existence. The word ―evidence‖
or the word ―evident‖ only means ―that which can be seen with
the naked eye‖. It is not necessarily synonymous with the word
―proof‖. When the question is whether a certain writing was filed
in certain proceedings, the production of the writing was
obviously the evidence of the fact of that writing having been
produced, though it may not be any evidence of the truth of the
contents of that writing. In Madapusi Srinivasa
Ayyangar v.Queen, 4 Mad. 393 at p. 395, it was remarked that:
―The term ‗evidence' in its ordinary sense signifies
that which makes apparent the truth of a matter in
question. It is no doubt more frequently applied to
proof by a judicial tribunal, but it is not necessarily
confined to this sense.‖
17. The actual meaning of the word ‗evidence' would depend
on the question as to what is the matter of which evidence is in
question. Is it the existence of a writing, if the question has arisen
in connection with that, or is it the truth of the subject of the
writing? In the present case the question obviously comes within
the former and not within the latter, that question being what was
in fact the writing which the accused had filed before the House
Controller on 31st January 1946. There is no question as to
whether the contents of that writing were true or false and on the
question as to what that writing was, the production of the
writing would certainly be evidence within the meaning of S. 29,
Penal Code. We, therefore, hold that the contention that the
writing Ex. A, which is the subject of the charge, is not a
‗document' within this section or within section 463 is incorrect.
18. The next point argued was that the charge levelled by the
prosecution being one only of a substitution of a fresh writing in
place of the writing originally existing it did not come within the
offence charged, such a case not being one of an alteration of a
document within cl. (2) of S. 464, Penal Code. While this may be
true, it is also true that the case set up by the complainant would
be clearly covered by cl. (1) of S. 464, which, along with the
opening words of the section, reads as follows:
―A person is said to make a false document who
dishonestly or fraudulently makes ... a document...
with the intention of causing it to be believed that
such document... was made ... at a time at which he
knows that it was not made ...‖
19. If, therefore, the writing, Ex. A was not in existence on
31st January 1946, on which date the accused filed his written
statement, but had come into existence later and was shoved into
the file of the House Controller, as if it had been there since 31st
January 1946 and was really the written statement originally filed
by him it would be obviously covered by the said clause of S.
464. We, therefore, reject this contention also.‖
455. On behalf of the appellants the challenge to applicability of this
Section is centered on the contention that a man's own signature may
amount to forgery only when he intends that it may be believed that the
document on which he has signed was drawn by another person of the same
name. In effect, it is basically urged that a person's signature cannot be said
to be forged unless there is an element of impersonation involved. This is
quite an absurd explanation of Explanation 1 to the section. Explanation 1
says that a man's own signature may amount to forgery. Illustration (a)
describes a situation where a person's signature may amount to forgery even
when he signs in his own name. Illustration (h) to the Section describes
another situation where a person's own signature will amount to forgery.
Under illustration (h), creating a false conveyance deed by ante dating the
same, A intended to defraud Z and, therefore, signing on such conveyance
deed in his own name, he is not impersonating a third person rather the
intention is to defraud through creation of an ante dated document. The
underlying purpose of both illustrations is the intent to deceive, whether it is
by signing an antedated document or by signing one's own name on a
document knowing fully well that the authorized person having the same
name the document is likely to cause deception of having been signed by the
authorized signatory. The position of law emerging on a conjoint reading of
the decisions in Rao Shiv Bahadur (supra) and Dharmender Nath Shastri
(supra) further clarifies that it is the intent to defraud through creation of an
antedated document that is of the essence. This can also be done by signing a
document in one's own name, as has been done in the present case. The
contention is, therefore, rejected.
456. On behalf of the appellants the challenge to applicability of this
Section is centered on the contention that a man's own signature may
amount to forgery only when he intends that it may be believed that the
document on which he has signed was drawn by another person of the same
name. In effect, it is basically urged that a person's signature cannot be said
to be forged unless there is an element of impersonation involved. This is
quite an absurd interpretation of Explanation 1 to the section. Explanation 1
says that a man's own signature may amount to forgery. Illustration (a)
describes a situation where a person's signature may amount to forgery even
when he signs in his own name. Illustration (h) to the Section describes
another situation where a person's own signature will amount to forgery.
Under illustration (h), creating a false conveyance deed by ante dating the
same, A intended to defraud Z and, therefore, signing on such conveyance
deed in his own name, he is not impersonating a third person rather the
intention is to defraud through creation of an ante dated document. The
underlying purpose of both illustrations is the intent to deceive, whether it is
by signing an antedated document or by signing one's own name on a
document knowing fully well that the authorized person having the same
name the document is likely to cause deception of having been signed by the
authorized signatory. The contention is, therefore, rejected.
457. The next attack on invoking of Section 467 on the ground that the
award lists cannot be termed as ―valuable security‖. There being no right to
appointment emanating from the selection lists, the same are not valuable
security.
Section 467 - Forgery of valuable security, will, etc
Whoever forges a document which purports to be a valuable
security or a will, or an authority to adopt a son, or which
purports to give authority to any person to make or transfer
any valuable security, or to receive the principal, interest or
dividends thereon, or to receive or deliver any money,
movable property, or valuable security, or any document
purporting to be an acquaintance or receipt acknowledging
the payment of money, or an acquaintance or receipt for the
delivery of any movable property or valuable security, shall
be punished with1[imprisonment for life], or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Section 30 - "Valuable security"
The words "valuable security" denote a document which is, or
purports to be, a document whereby any legal right is created,
extended, transferred, restricted, extinguished or released, or
where by any person acknowledges that he lies under legal
liability, or has not a certain legal right.
458. I do not agree. The selection lists do not create a legal right of
appointment most definitely; however, they do create a valid legal right to be
considered for appointment. In the present case, appointments were
subsequently made on the basis of these fake award lists that were
implemented. The Constitution Bench decision in Shankarsan Dash v.
U.O.I, 1991 (3) SCC 47 has acquiesced the proposition that though
successful candidates do not acquire an indefeasible right to be appointed,
however, the right to be considered cannot be arbitrarily denied. It was held
in the following terms:
―1. This appeal was earlier Heard by a Division Bench and
was referred to a Constitution Bench for examining the
question whether a candidate whose name appears in the
merit list on the basis of a competitive examination, acquires
indefeasible right of appointment as a Government servant if
a vacancy exists. Reference was made to the decision in State
of Haryana v. Subhash Chander Marwaha and Ors.
(1973)IILLJ266SC ; Miss Neelima Shangla, Ph. D. v. State
of Haryana and Ors. [1986]3SCR785 and Jitendra Kumar and
Ors. v. State of Punjab and Ors. [1985] 1 SCR 899. .......
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates
are found fit, the successful candidates acquire an
indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely
amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any
right to the post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any
of the vacancies. However, it does not mean that the State has
the licence of acting in an arbitrary manner. The decision not
to fill up the vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or any of them are
filled up, the State is bound to respect the comparative merit
of the candidates, as reflected at the recruitment test, and no
discrimination can be permitted. This correct position has
been consistently followed by this Court, and we do not find
any discordant note in the decisions in State of Haryana v.
Subhash Chander Marwaha and Ors.: (1973)IILLJ266SC ;
Miss Neelima Shangla v. State of Haryana and Ors.
[1986]3SCR785 and Jitendra Kumar and Ors. v. State of
Punjab and Ors. [1985] 1 SCR 899.
8. In State of Haryana v. Subhash Chander Marwaha and
Ors., (supra) 15 vacancies of Subordinate Judges were
advertised, and out of the selection list only 7, who had
secured more than 55% marks, were appointed, although
under the relevant rules the eligibility condition required only
45% marks. Since the High Court had recommended earlier,
to the Punjab Government that only the candidates securing
55% marks or more should be appointed as Subordinate
Judges, the other candidates included in the select list were
not appointed. They filed a writ petition before the High
Court claiming a right of being appointed on the ground that
vacancies existed and they were qualified and were found
suitable. The writ application was allowed. While reversing
the decision of the High Court, it was observed by this Court
that it was open to the Government to decide how many
appointments should be made and although the High Court
had appreciated the position correctly, it had "somehow
persuaded itself to spell out a right in the candidates because
in fact there were 15 vacancies". It was expressly ruled that
the existence of vacancies does not give a legal right to a
selected candidate. Similarly, the claim of some of the
candidates selected for appointment, who were petitioners in
Jitendra Kumar and Ors. v. State of Punjab and Ors., was
turned down holding that it was open to the Government to
decide how many appointments would be made. The plea of
arbitrariness was rejected in view of the facts of the case and
it was held that the candidates did not acquire any right
merely by applying for selection or even after selection. It is
true that the claim of the petitioner in the case of Miss
Neelima Shangla v. State of Haryana, was allowed by this
Court but, not on the ground that she had acquired any right
by her selection and existence of vacancies. The fact was that
the matter had been referred to the Public Service
Commission which sent to the Government only the names of
17 candidates belonging to the general category on the
assumption that only 17 posts were to be filled up. The
Government accordingly made only 17 appointments and
stated before the Court that they were unable to select and
appoint more candidates as the Commission had not
recommended any other candidate. In this background it was
observed that it is, of course, open to the Government not to
fill up all the vacancies for a valid reason, but the selection
cannot be arbitrarily restricted to a few candidates
notwithstanding the number of vacancies and the availability
of qualified candidates; and, there must be a conscious
application of mind by the Government and the High Court
before the number of persons selected for appointment is
restricted. The fact that it was not for the Public Service
Commission to take a decision in this regard was emphasised
in this judgment. None of these decisions, therefore, supports
the appellant.‖
459. Similar observations were made by the Supreme Court in case of A.P
Aggarwal v. Govt. of N.C.T of Delhi and Another, (2000) 1 SCC 600
wherein the Court reiterated the principle laid down in R.S Mittal v. Union
of India , 1995 Supp(2) SCC 230. Relevant portions are reproduced below:
―14. In R.S. Mittal v. Union of India 1995(2)SCALE433 the question
arose with regard to selection of candidates to the post of Judicial
Member, income-tax Appellate Tribunal. The selection was made by a
Selection Board consisting of a sitting Judge of this Court. The
Selection Board prepared a panel of selected candidates which
included the name of the appellant before this Court and sent its
recommendations. The candidates who were at numbers 1 and 2 in the
panel did not accept the appointment. The Bench observed that though
a person on the select panel has no vested right to be appointed to the
post for which he has been selected has a right to be considered for
appointment and at the same time the appointing authority cannot
ignore the select panel or decline to make an appointment on its
whims. The Court said that when a person has been selected by the
Selection Board and there is a vacancy which can be offered to him,
keeping in view his merit position, ordinarily there is no justification
to ignore him for appointment and that there has to be a justifiable
reason to decline to appoint a person who is on the select panel.
However, on the facts of the case the Bench did not give any relief to
the appellant as he was only No. 4 and no information was available
about the stand of the person who was at No. 3 of the select panel.
While reversing the findings given by the Central Administrative
Tribunal to the extent indicated in the judgment the Bench dismissed
the appeal but directed the Government to pay cost of the proceedings
to the appellant which was quantified at Rs. 30,000.‖
460. Observations of N. Krishnaswamy Reddy, J in Daniel Hailey Walcott
& Anr. v. State, AIR 1968 Mad 349 regarding the jural concept of a legal
right are noteworthy:
―21. Legal right is a difficult concept. It is not defined. It is,
therefore, necessary to note carefully what the eminent jurists
have said about this concept of legal right. Roscoe Pound in his
Jurisprudence (Vol. IV, Chap. 21, p. 70) stated as follows-:-
..................by the end of the last century a legal right had
come to be defined as a secured interest, or as a capacity
of asserting a secured interest, or as a claim that could
be asserted in the Courts.
Roscoe Pound prefers to follow the English analytical jurists and
thinks of legal right lies in the capacity of assertion rather than of
an assertable claim. In the same page, it is stated:
The capacities of asserting it (legal right) before Courts and
administrative agencies by which the interest is given
efficacy are some At pp. 70 and 71, it is stated:
"The capacities of creating, divesting and altering legal
rights in the stricter sense or of creating liabilities, as
means of securing recognised interests (legal powers) are
some conferred and some recognised............The
exemption on certain occasions from liability for what
would otherwise be infringements of legal rights, are
sometimes conferred, as in case of emergency
privileges.....in all of these juristic conceptions through
which recognised and delimited interests are secured,
there is a capacity of asserting them before Courts and
administrative agencies.
At pp. 74 and 75, Roscoe Pound again says:
I should put the juristic conceptions by which legally
recognised and delimited interests are secured as legal
rights (in the stricter sense), powers, liberties, privileges,
duties and liabilities.
Salmond on Jurisprudence (12th Edn. at p. 224) states that a legal
right in the generic sense may be defined as any advantage or
benefit conferred upon a person by a rule of law. Again at p. 233,
under the headnote "The kinds of legal rights", it is stated:
A perfect right is one which corresponds to a perfect
duty; and a perfect duty is one which is not merely
recognised by the law, but enforced...............In all
ordinary cases, if the law will recognise a right at all, it
will enforce it. In all fully developed legal system,
however, there are rights and duties which, though
undoubtedly recognised by the law, yet fall short of this
typical and perfect form............Examples of such
imperfect legal rights are............claims against foreign
states or sovereigns, as for instance due on foreign
bonds.................No action will lie for their maintenance;
yet they are, for all that legal rights and legal duties, for
they receive recognition from the law.
W. Panton in his Text-book of Jurisprudence, 3rd Edn. at p. 250
states as follows:--
..............The characteristics mark of a legal right is its
recognition by a legal system................ Enforceability by
legal process has, therefore, sometimes been said to be
the sine qua non of a legal right............There are certain
rights sometimes called imperfect rights, which the law
recognises but will not enforce directly.
At p. 251, he again says:
.........................in some systems Courts of justice do not
control an adequate machinery for enforcement. Thus in
international law there is no power in the Court to
enforce its decree. Hence, ultimately, the answer to the
question whether the essence of a legal right lies in its
enforceability will depend on our definition of law. Dicey
distinguished between constitutional conventions and
laws, the test of the latter being that they will be
enforced by the Courts, whereas the conventions will
not. Many constitutional lawyers point out, however,
that if we apply rigorously the test of enforcement in a
Court of law, we are left with too narrow a view of
constitutional law......................Because of the difficulties
which sometimes arise in the enforcement of particular
rights, it is better to define a legal right in terms of
recognition and protection by the legal order. This does
not unduly narrow the meaning of legal right. Thus an
international Court would recognise any rights granted
by international law and would protect them so far as it
cold, even although there was no machinery for direct
enforcement. The element of enforceability is important
in questions of jurisdiction and private international
law.
From the statements made by the jurists noted above, the
following principles can be deduced broadly to understand what
a 'legal right' is: (1) Legal right in its strict sense is one which is
an assertable claim, enforceable before Courts and administrative
agencies; (2) In its wider sense, a legal right has to be understood
as any advantage or benefit conferred upon a person by a rule of
law; (3) There are legal rights which are not enforceable, though
recognised by the law; (4) There are rights recognised by the
International Court, granted by international law; but not
enforceable; and (5) A legal right is a capacity of asserting a
secured interest rather than a claim that could be asserted in the
Courts.
22. It is, therefore, clear that the test of enforceability, though it
may be a normal one, is not the only test for determining a legal
right. A legal right may be one recognised by rule of law, either
by Municipal law or International law, without the capacity of
being enforced. A legal right may be asserted even before
administrative agencies. It includes the liberty of freedom from
penalty. In short, it can be said that a legal right is one which is
either enforceable or recognised.‖
461. A legal right may or may not be enforceable. A valid legal right to be
considered was created in favour of the candidates when their names figured
on the fake selection lists. They were also appointed on the basis of these
lists. It is also a fact that such appointments are in challenge in separate
proceedings. Whatever may be the fate of these appointments eventually, the
selection list that was implemented gave rise to a legal right to be considered
for appointment of all selected candidates. I, therefore, do not find merit in
the contention that the selection lists were not a valuable security so as to be
denuded from the purport of Section 467 IPC.
462. In view of the aforesaid discussion, I am of the opinion that the
offence under Sections 467 and 471 IPC have been duly proved by the
prosecution.
Cheating and Pecuniary advantage
463. The trial Judge has returned a finding of guilt for the offence
punishable in terms of Section 418 IPC. The Section is reproduced for ready
reference:
―Section 418 - Cheating with knowledge that wrongful loss
may ensue to person whose interest offender is bound to
protect
Whoever cheats with the knowledge that he is likely thereby
to cause wrongful loss to a person whose interest in the
transaction to which the cheating relates, he was bound,
either by law, or by a legal contract, to protect, shall be
punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.‖
464. It is contended on behalf of the appellants that cheating necessarily
implies dishonest intent to cause wrongful loss to one and wrongful gain to
another. There being no evidence of any pecuniary advantage derived by any
committee member, they cannot be said to have wrongfully gained from this
conspiracy to attract the offence of cheating.
465. Section 415 IPC is reproduced below:
―Section 415 - Cheating
Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property,
or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property, is said to "cheat".
Explanation,--A dishonest concealment of facts is a deception
within the meaning of this section.
Section 24 - "Dishonestly"
Whoever does anything with the intention of causing wrongful
gain to one person or wrongful loss to another person, is said to
do that thing "dishonestly".
Section 25 - "Fraudulently"
A person is said to do a thing fraudulently if he does that thing
with intent to defraud but not otherwise.‖
466. Mr. Khanna argues that it is evident from the language employed by
the legislature while penning the above extracted provision, that the
prosecution may endeavour to pitch its case through either of the two limbs
contemplated under the said provision i.e. either by proving fraudulent intent
on part of the accused or a dishonest intent. The law, opposed to common
parlance, carves a careful distinction between the term ―dishonestly‖ as
defined under Section 24 of IPC and ―fraudulently‖ as defined under Section
25 of IPC.
467. The Apex Court has held that perusal of section 24 laments the fact
that it is sufficient for the prosecution to prove that the act was done either
with the intention of causing wrongful gain or wrongful loss andit is not
necessary to prove both. The courts across the land while interpreting the
term fraudulently as defined under the IPC have consistently held that there
exists a distinction between an act done dishonestly and an act done
fraudulently. If the deceitful act willfully exposes anyone to the risk of loss,
there is fraud (A Veeraiah v. State, AIR 1957 A.P 663). Thus, the
prosecution is not obligated to prove actual wrongful loss but even risk of
loss brings the act within the purview of the term ―fraudulently‖. This is also
in consonance with the ingredients of section 418 IPC, wherein the
likelihood of wrongful loss is sufficient to constitute the said offence.
468. It is submitted that the prosecution was handicapped in the present
case from leading evidence of actual wrongful loss or actual wrongful gain,
as Sanjiv Kumar (A-3) withheld the original award lists of few districts in
consequence of which a joint merit list of the genuine award lists could not
be created during investigation to demonstrate which candidates actually
deserved to have been selected if order of merit was followed. Sanjiv Kumar
(A-3) clearly admitted in his writ petition [Part 8/ D-37-D-66/D-64/Page
25-53 @ Pg 32 & 35] that he was in possession of the award lists for all the
districts of Haryana, yet he willingly did not hand over all the lists before the
Supreme Court or the CBI during investigation. Upon being cross-examined
by the Prosecutor on this aspect, he was evasive and did not tender any
plausible explanation whatsoever.
469. I agree with the contention that it is not the requirement of law for the
prosecution to prove the actual wrongful loss and mere likelihood or risk of
loss is sufficient to bring the acts of the accused within the four corners of
Section 418 of IPC. The language of the Section is clear; the act of cheating
can be proved through either dishonest or fraudulent intention (Tulsi Ram v.
State of Uttar Pradesh, AIR 1963 SC 666). Dishonest intention also implies
either wrongful gain to one or wrongful loss to another. These meanings are
further circumscribed in Section 418 wherein only the likelihood of wrongful
loss needs to be proved. In the present case, the Haryana Government was
induced by the dishonest acts of the appellants, to deliver ‗property'-
appointment letters in favour of persons that were not entitled to receive the
same. The Supreme Court has held that the connotation ―property‖ includes
any document having value in the hands of its holder and may not
necessarily possess pecuniary worth. Appointment Letter would
unquestionably be a species of such documents which may be termed as
‗property' for the purpose of Section 415 IPC. Therefore, the challenge to
invoking of Section 418 IPC against the appellants stands rejected.
470. With reference to the offence under Section 13 (1)(d) P.C. Act, suffice
it is to say that the Committee Members being public servants and having
committed offences of forgery and cheating and conspiring with the main
conspirators in breach of their solemn duties are guilty of the offence of
criminal misconduct. I am in agreement with the findings of the Trial Judge
after considering the case of Rakesh Kumar Chhabra vs. State of H.P.,
2012 Crl.L.J. 354 in this regard.
Parity with Brij Mohan PW-17
471. Committee members have urged that in terms of circumstances, they
were similarly placed as Brij Mohan PW-17 and since he was discharged by
the trial Court on grounds that he was under pressure to have signed the fake
lists, they ought to be given the same benefit. It was argued that merely
because PW-17 had the wisdom to scribe a ―UP‖ under his signature and the
others having encountered the same pressure did not think of doing the same,
they cannot be proven to have a guilty intent. As a supplementary argument
it was argued that even if Brij Mohan had to be given benefit of the ―UP‖, it
should have been through proper procedure. He should have faced trial and
granted pardon subsequently as opposed to a complete discharge.
472. The trial Court discharged Brij Mohan, who was cited as an accused
during arguments on charge vide order dated 23.07.2011. This order was
challenged in the High Court and the findings of the trial Judge were
confirmed vide order dated 01.06.2012.
473. Mr. Khanna submits that the appellants are not entitled to benefit of
acquittal on the ground of parity with Brij Mohan on two counts. Firstly,
there is no evidence whatsoever to indicate that the said appellants despite
appending their signatures on the fake award lists, did not subscribe with the
intention of the other co-conspirators to commit crime and in that sense there
was no ‗agreement' as envisaged under Section 120-B IPC. The plea
canvassed by some of the appellants that they were under pressure at the
time of commission of crime (execution of signatures on the second award
list) has been sought to be essentially substantiated by self-serving
statements uttered in Section 313 and suggestions tendered during cross-
examination to prosecution-witnesses which is not evidence in eyes of law
State v. Md. Misir Ali, AIR 1963 Assam 151, few appellants examined
defence witnesses to substantiate their defence of pressure). Furthermore, the
pressure/threats pleaded by such appellants are not of such nature and
quality, as required under our legislative policy manifested under Section 94
of the IPC - an anticipated harm of instant death, to immunize them from the
consequences of their crimes. Therefore, arguendo, even if the assertions of
various appellants that they were pressurized to append their signatures on
the second award lists is accepted to be true, even in such eventuality,
defence of pressure cannot be successfully availed as the pressure pleaded to
have been exerted was not of the hilt/degree as contemplated under Section
94 of the Indian Penal Code.
474. Secondly, even if this Court were to hold that the order of discharge
passed by the trial Court qua Brij Mohan is improper/illegal in the eyes of
law, in as much as the test of Section 94 IPC was not applied to Brij Mohan;
who was also not facing pressure of instant death like other appellants, no
consequent benefit can flow to the appellants as Article 14 of the
Constitution of India envisages equality as a positive concept and does not
embody its negative connotation. It has been held by the Apex Court and
various High Courts that advantage of an erroneous acquittal of a co-accused
would not accrue to an accused. The same principle applies with full force to
the facts of the present case. The Supreme Court in a recent case Ajoy
Acharya v. State Bureau of Investigation, 2013 Cri LJ 4763 pertinently
observed that ―parity in law can be claimed only in respect of action
rightfully executed and not otherwise.‖
475. I have given considerable thought to this proposition. The
Investigating Officer has also opined that the committee members were
under pressure. While it is true that nearly all appellants have pleaded
pressure from their seniors to sign the lists and stated the threats they
received regarding their transfer to remote places on refusal to sign, there is
fundamental difference between them and Brij Mohan. Brij Mohan has given
positive evidence of the fact that he was under pressure. I agree with the
observation of the trial Judge that it may be possible that some committee
members were in sync with the main conspirators while others may have
been genuinely threatened. However, there is no evidence distinguishing the
two. Bald assertions in the Section 313 statement are not sufficient to
absolve them of a guilty intent.
476. It would also be relevant to highlight that during the course of
arguments, some appellants have for the first time sought to claim the benefit
under Section 90 of the Indian Penal Code. Section 90 of the IPC merely
laments that a consent is not a valid consent under the penal code, if the
same is given under fear of injury or misconception of fact. To that extent
the said provision is ex-facie inapplicable to the offences comprised in the
present case and would only be applicable to those provisions (offences) of
the Indian Penal Code, wherein ―consent‖ is an integral ingredient thereof,
such as Section 313- Causing miscarriage without woman's consent, Section
375-Rape etc.
477. There exist profusion of authorities and consensus of judicial opinion
that the evidence of a person, who could have been arrayed as an accused or
who has been improperly/illegally discharged, is admissible in evidence at
trial. Therefore, the fact that Brij Mohan was not tendered pardon by the
prosecution in accordance with the procedure established under the Code or
even if the discharge of Brij Mohan is held to be illegal, his evidence
tendered at trial as PW-17 would remain admissible. [Sital Singh v.
Emperor, (1919) ILR 46 Cal 700; Banu Singh v. Emperor, (1906) ILR 33
Cal 1353; Laxmipat Choraria and Others v. State of Maharashtra, AIR
1968 SC 938; Chandran v. State of Kerala, (2011) 5 SCC 161; Prithipal
Singh v. State of Punjab, (2012) 1 SCC 10. This contention is, therefore,
rejected.
478. While most appellants have restricted their challenge to this appeal
through the common arguments advanced in preceding paragraphs, there are
some unique facts with regard to certain individual appeals.
I. Members who signed both lists
Members and Chairperson of Selection Committees who have signed
both lists are further categorized. One category admits their signature
on the lists and claim pressure was exerted on them, therefore, there
was no agreement or ‗meeting of minds' as such to justify their
conviction. There are other categories as well, some who deny their
signature and some who deny being a member. These categories of
appellants have been dealt with in succeeding paragraphs.
With regard to appellants whose signatures appear on both lists, the
prosecution has examined witnesses from every district to prove the
signatures of the concerned appellants. Observations of the trial Judge
are accepted in this regard. These appellants have addressed legal
arguments that have been dealt with in the preceding paragraphs.
II. Members who have signed only one list
i) Three appellants/members (A-32, A-40 and A-41) have signed
only one list, the Directorate list, and claim that it is the genuine
list. A-32 is the Chairman of Selection Committee, Kurukshetra
and the general category Supreme Court list of this district was
not filed by A-3. It is argued on behalf of this appellant that
there being no evidence to show that he attended either meeting;
it cannot be held that he committed the charged offences solely
on the basis of his signatures on the Directorate list.
ii) I have already observed in preceding paragraphs that the
Directorate lists were the fake lists. The appellant's signatures
appear on the fake list. the offences of cheating, forgery and
criminal misconduct stand proved. There does not need to be
evidence of every member of selection committee having
attended the meetings. The purpose of the meeting was to
facilitate a conspiracy to change. Once there is evidence of that
conspiracy being executed by way of appellant's signature on
the fake list, there can be a reasonable presumption drawn by
the Court under Section 114 Indian Evidence Act, that the
appellant was in fact part of the conspiracy.
iii) It is argued on behalf of A-40; Daya Saini that there is no
Supreme Court list of district Panipat and the CBI is relying on
the marking pattern to prove falsity of Directorate list. There
being no occasion to compare the two lists, the Directorate list
cannot be proved as the fake list. I disagree with this argument
for two reasons. First, the CBI is not solely relying on the
marking pattern to prove falsity of lists. There are other
circumstances like bunching of marks and a presumption that all
fake lists were put together. Therefore, it is not only on the basis
of a comparative analysis between the two lists that this Court
has arrived at a finding regarding falsity of Directorate lists.
Second, even if the Supreme Court list is not available, what
matters in the circumstances is that the appellant's signature
appears on the list that has been declared fake by the Court. As
mentioned earlier, it is the signature on the fake list that is best
evidence of guilt. Even otherwise, the Directorate list of Panipat
clearly shows a pattern of bunching of marks in both extremes
which is on consonance with the theory of Directorate list being
fake.
III. Members who denied their signatures on both lists
i) Committee members of district Mahendergarh- Narnaul (A-37,
A-38 and A-39) have collected denied their signatures on both
lists. The prosecution has not been able to put forth any witness
identifying the signatures of these appellants. The prosecution
is, therefore, relying solely on the report of the forensic expert
to prove their signatures.
ii) I have observed in preceding paragraphs that the report of the
handwriting expert is admissible. I have perused the report and
the expert has opined that the signatures match the specimen
signatures obtained from the appellants. The argument that the
opinion of a handwriting expert is not substantive evidence and
can only be used for corroborative purpose is also rejected in
view of the two judgments cited by the trial Judge; Murari Lal
v. State of M.P., AIR 1980 SC 531 and Jaipal v. State, 2011
Cri LJ 4444 wherein the view of the Supreme Court is
reiterated observing that there is no rule of law nor any rule of
prudence that the evidence of handwriting expert must not be
acted upon, unless substantially corroborated. As rightly
observed by the trial Judge, when a piece of evidence directly
connects a person with the offence, it becomes substantial piece
of evidence. The presence of appellants' signatures on the fake
list is evidence of their guilt and clearly demonstrates that they
were part of the conspiracy. As abundant caution, the signatures
of all three appellants have been further compared by the trial
judge from their statements under Section 313 Cr.P.C.
iii) A-39, Bani Singh has denied being a member of the selection
committee. Reliance is placed on a document exhibited as
Ex.PW-31/DN, a note mentioning the names of committee
members, wherein the name of A-39 does not find mention. It is
argued that the prosecution has not been able to prove that A-39
was in fact a member and in absence thereof, the signature
evidence loses significance. The trial Judge has observed that
during the interviews many member and chairpersons were
transferred and the note mentioning the designated members
and chairpersons was not strictly adhered to. This observation is
supported by the fact that transfers were made in Panipat (Daya
Saini was appointed prior to interviews), Rewari (D.D. Verma)
and Kurukshetra (M.L. Kalra). I has also been observed that
PW-31, Sardar Singh was cross examined by the appellant on
the aspect of the note Ex.PW-31/DN and he specifically points
at page 19 of D106 (Ext.PW.31/DO) wherein Bani Singh is
shown as a member. No suggestion being put to this witness
regarding interpolation or manipulation of this document
assumes significance and the fact that a suggestion was made
that Bani Singh was pressurized to be member of the selection
committee has been taken into account to conclude that he was
in fact a member of the selection committee. I agree with these
observations, A-39 has baldly suggested to PW-48 (clerk in
office of district- Mahendergarh) that A-37 and PW-48 have
forged the signatures of A-39. In absence of any suggestion
being put to the I.O. nothing turns on this unsubstantiated
suggestion. The signature of A-39 is duly proved; he has put
forth no explanation as to why his signatures appear on the
Directorate list. I, therefore, conclude that A-39 was a member
of the selection committee Mahendergarh and he signed the
Directorate list pursuant to conspiracy to change the award lists.
iv) Relevant arguments on behalf of Durga Dutt pradhan are
essentially centered around the evidence of handwriting expert.
In view of the fact that the report of handwriting expert clearly
opines that the signatures on the Directorate list were that of A-
38, his involvement in conspiracy stands proved.
Members who have not signed the Directorate list
i) A-49, Sudha Sachdeva was the Chairperson of the selection committee
Rewari and had taken charge after a period of three days from the date
of interviews. Her signatures do not appear on the Directorate list. It is
argued on behalf of A-49 that the only evidence being that of A-50, as
a witness in his defence, there is no corrobartion by any independent
evidence so as to point towards her complicity in the conspiracy.
ii) I have perused the testimony of A-50, who has got himself examined
under Section 315 Cr.P.C. He states that he was called sometime in
September, 2000 to prepare the fake lists under pressure from A-2 and
A-3. In compliance with a telephonic message he went to Rewari
where Sudha Sachdeva was present and she had dictated the interview
and grand total marks to him. He got the same signed by the other two
members and signed himself for the first three days that he had
conducted the interviews. The trial Judge has held this witness to be a
reliable one for two reasons. First because his testimony has gone
unimpeached despite lengthy cross examination by A-49 and secondly
because he did not absolve himself of all blame and only testify
against A-49. He honestly states on oath that he did the needful in
preparing the fake lists and signed on the same. I agree with the
observations of the trial Judge in this regard. A-49 was involved in the
conspiracy and did her part. She was wise enough to avoid signing on
the fake list without being detected as A-50 had already signed on the
first few pages of the lists when he had conducted the interviews. This
saved her from the substantive offence of forgery, however, she did
conspire to get the fake lists prepared and would, therefore, be guilty
of conspiracy and criminal misconduct.
Members who deny being a member of any Committee
i) The case of A-39, Bani Singh has been dealt with under the
preceeding head. A-45, Raksha Jindal has denied being a member of
any committee rather it is her case that she merely signed the lists as a
token of having calculated the marks. Her signatures appear on both
the Directorate and the Supreme Court lists of district Panchkula.
ii) I do not find this explanation to be a reasonable one. The witness PW-
42 has testified that she was a headmistress and junior in rank to the
then BEO and, therefore, could not have been a member of the
selection committee. The document Ex.PW-31/DN clearly memtions
A-45 as a member of the selection committee and the fact cannot be
doubted merely because her name is handwritten. Even otherwise it is
illogical for a person who is not authorised to be a member to sign the
award lists merely on the pretext of having calculated the total marks.
The argument is, therefore, rejected and A-45 is held guilty of Section
13(2) P.C. Act and Sections 418, 467, 471 and Section 120-B IPC r/w
Section 418/467/471 IPC rw Section 13(2) P.C. Act.
479. On consideration of the entire volume of evidence that has emereged
in the instant case, in my view the prosecution has convincingly
demonstrated how the conspiracy unfolded, the methodology adopted in
execution thereof and the specific role played by every appellant. As rightly
described by Mr. Khanna, there are three categories of appellants in this
case. The authors of the conspiracy, A-4 and A-5, who conceived the idea
and were in a position to get the same executed. A-1, A-2 and A-3, the
enforcers who actively pursued and pushed for the execution of the
conspiracy and the executors, A-6 to A-62 who were required to give life to
the entire conspiracy.
480. In view of the detailed discussion, the prosecution has conclusively
established the offence of conspiracy under Section 120-B IPC r/w Section
418/467/471 IPC rw Section 13(2) PCAct with regard to appellants A-1, A-2
and A-5.
481. Appellants A-3 and A-4 stand convicted of offences u/s 13(2) rw
13(1)(d) of Prevention of Corruption Act in addition to the offence of
conspiracy under 120-B IPC r/w Section 418/467/471 IPC r/w Section 13(2)
PC Act.
482. Appellants A-6 to A-62, with the exceptions of A-23, A-35, A-41 and
A-62 as they had retired when the second set of award lists was prepared and
except A-14, A-18, A-34, A-42, A-53 & A-58 who have already expired and
except A-19 who had already been discharged, stand convicted under
Section 13(2) rw 13(1)(d) of Prevention of Corruption Act.
483. Appellants A-6 to A-62 (except who died or were discharged) also
stand convicted u/s 418 IPC. Appellants A-6 to A-62 (except A-49 and those
who died or were discharged) also stand convicted u/s 467/471 IPC.
484. In addition all appellants i.e. A-6 to A-62 (except those who have
expired or discharged) stand convicted u/s 120-B IPC r/w Section
418/467/471 IPC r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of
Corruption Act, 1988.
SENTENCING
485. On the aspect of sentencing, it is argued on behalf of the committee
members that these are aged people who have faced trial towards the end of
their career for offences that they were pressurized into committing. The
sentence of four years is unduly harsh and lenient view may be taken in view
of the circumstances under which they were made to create the second set of
lists.
486. Mr. Khanna, learned ASG and Ms. Rajdipa Behura, learned SPP
support the sentence awarded by the trial Judge and submit that the judicial
discretion exercised towards the District Selection Committee members has
not been exercised arbitrarily and is edificed on rational reasoning. Those
members of the Selection Committee; who raised the plea of pressure at the
time of commission of offence and which was accepted by the trial Court,
were awarded a liberal sentence (Four years imprisonment). The factum of
committing the crime under pressure of high functionaries of state
machinery, with the motive of insulating oneself from unpleasant
consequences that may ensue in future, was treated as a mitigating
circumstance by the trial Court while awarding sentence, although under the
existing scheme of law it could not serve as a complete defence for the crime
in view of the mandate of Section 94 of the Indian Penal Code.
487. Those accused who never even pleaded pressure and much less were
able to prove the same, were visited with a greater penal consequences (Ten
years imprisonment).
488. The Supreme Court in its decision reported as (2013) 11 SCC 401,
Jasvir Kaur v. State of Punjab expressed concern on the absence of a
sentencing policy in the country and, therefore cautioned the Courts to
callibrate the punishment with due care and upon taking into account the
relevant attending circumstances. The Supreme Court quoted with approval
the luminous observations of English Judge Henry Alfred McCardie which
are reproduced hitherto-fore:
―...Trying a man is easy, as easy as falling off a log,
compared with deciding what to do with him when he has
been found guilty.‖
489. Chapter 19 of the Delhi High Court Rules deals with sentencing of
offenders and throws insights on this aspect.
"1. The award of suitable sentence depends on a variety
of considerations--The determination of appropriate
punishment after the conviction of an offender is often a
question of great difficulty and always requires careful
consideration. The law prescribes the nature and the limit of
the punishment permissible for an offence, but the Court has
to determine in each case a sentence suited to the offence
and the offender. The maximum punishment prescribed by
the law for any offence is intended for the gravest of its kind
and it is rarely necessary in practice to go up to the
maximum. The measure of punishment in any particular
instance depends upon a variety of considerations such as
the motive for the crime, its gravity, the character of the
offender, his age, antecedents and other extenuating or
aggravating circumstances, such as sudden temptation,
previous convictions, and so forth, which have all to be
carefully weighed by the Court in passing the sentence. ‖
490. The facts of the present case as unfurled by the overwhelming
evidence led by the prosecution at trial reveal a shocking and spine-chilling
state of affairs prevalent in our country. An ingenious employment scam
spanning across eighteen (18) districts of State of Haryana was given effect
to by persons at the helm of power and the entire bureacratic machinery fell
prey to its satanic influence. Laudably, few individuals who were examined
at the trial were forthright in the hour of adversity and did not succumb to the
pressures exerted upon them from all quarters. Some individuals, such as
PW-14 Dhup Singh, were not even high ranking officers of the Civil
Services, but mustered courage to successfully repel the pressure exerted
upon them.
491. It is submitted that the authors of the present crime were essentially
public servants; who were duty bound to preserve and uphold the dignity of
law. Some had even been administered ‗oath' in terms of the Constitution of
India. Yet they chose to flagrantly violate the law, betraying the trust reposed
in them by the citizens and the Constitution. The very nature of the present
crime, its magnitude, ramifications, designed manner of execution and the
deleterious impact on the society at large, warrants a strict view, lest, justice
be rendered sterile.
492. Very recently the Supreme Court in its decision pronounced on
06.05.2014 in the case of Dr. Subramanian Swamy v. Director, Central
Bureau of Investigation and Another, (2014) 8 SCC 682 while holding
section 6A of the Delhi Special Police Establishment Act, 1946 to be ultra-
vires took serious note of malaise of corruption in our country and
pertinently observed:-
―77. This Court in Shobha Suresh Jumani, took judicial
notice ofthe fact that because of the mad race of
becoming rich and acquiringproperties overnight or
because of the ostentatious or vulgar show ofwealth by
a few or because of change of environment in the
society byadoption of materialistic approach, there is
cancerous growth of corruptionwhich has affected the
moral standards of the people and all forms
ofgovernmental administration.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
80. ...In the supplementing judgment, A.K. Ganguly,
J. while concurring with the main judgment delivered by
G.S. Singhvi, J. observed:
―Today, corruption in our country not only poses a grave
danger to the concept of constitutional governance, it
also threatens the very foundation of the Indian
democracy and the Rule of Law. The magnitudeof
corruption in our public life is incompatible with the
concept of a socialist secular democratic republic. It
cannot be disputed thatwhere corruption begins all
rights end. Corruption devalues humanrights, chokes
development and undermines justice, liberty, equality,
fraternity which are the core values in our
Preambular vision.Therefore, the duty of the court is
that any anti-corruption law hasto be interpreted and
worked out in such a fashion as to strengthen the fight
against corruption...‖
81. In Balakrishna Dattatrya Kumbhar, this Court
observed thatcorruption was not only a punishable offence
but also, ―undermines humanrights, indirectly violating
them, and systematic corruption, is a humanrights'
violation in itself, as it leads to systematic economic
crimes‖.
82. In R.A. Mehta, the two-Judge Bench of this
Court made the following observations about corruption in
the society:
―Corruption in a society is required to be detected and
eradicated atthe earliest as it shakes ―the socio-
economic-political system in anotherwise healthy,
wealthy, effective and vibrating society‖. Libertycannot
last long unless the State is able to eradicate corruption
from public life. Corruption is a bigger threat than
external threat to thecivil society as it corrodes the vitals
of our polity and society.Corruption is instrumental
in not proper implementation andenforcement of
policies adopted by the Government. Thus, it is not
merely a fringe issue but a subject-matter of grave
concern andrequires to be decisively dealt with.‖
83. ... It was observed:
―Abuse of public office for private gain has grown in
scope and scale and hit the nation badly. Corruption
reduces revenue; it slows downeconomic activity and
holds back economic growth. The biggest lossthat may
occur to the nation due to corruption is loss of
confidence in the democracy and weakening of the rule
of law.‖...‖
493. In the celebrated words of Martin Luther King, Jr.- ―Morality cannot
be legislated, but behavior can be regulated. Judicial decrees may not
change the heart, but they can restrain the heartless.‖
494. With regard to the District Selection Committee Members, I am of the
opinion that being public servants they have a bounden duty to uphold the
law and fiercely protect the confidence bestowed upon them on taking
charge of their office. In the instant case, these appellants were entrusted
with the task of judging merit of prospective junior teachers and awarding
them with appointments. They however, were pressurized by their bosses to
aid and assist in preparation of another list devoid of any merit. They
succumbed to the pressure and resultantly this scam was able to have far
reaching effect in all 18 districts in Haryana. As fate would have it, the scam
was unearthed and the guilty have been convicted.
495. I am conscious of the fact that these appellants (A-6 to A-62) were
under immense pressure to commit these crimes. The investigating officer
has deposed regarding the same and the trial Judge has also mentioned his
observations in this regard. I am in agreement with the same. However, I
disagree with his observations with regard to appellants A-32, A-37, A-38,
A-39, A-40 and A-41. Barring A-37, Pushkar Mal Verma they have not
pleaded that they were under pressure owing to the fact that their defense
was that they have not abetted in creating the second set of lists. This defense
has been proven to be false but I am of the opinion that they cannot be
penalized for taking a false defense as regards sentencing. The false defense
has been used as an additional circumstance to prove their guilt, however, I
feel they were similarly situated as the remaining teachers in the preparation
of these lists.
496. L.N. Rangarajan in his book "Kautilya-The Arthashastra" has
indicated the obligations which are placed upon a Ruler. It would be apt to
quote what stands reproduced in Part VIII Law and Justice (Penguin Edition,
first published in the year 1992)
―It is the power of punishment alone, when exercised
impartially in proportion to the guilt, and irrespective
of whether the person punished is the King's son or an
enemy, that protects this world and the next.‖
497. Accordingly, I sentence appellants A-6 to A-62 (except A-49 and
those who expired or were discharged) to rigorous imprisonment for a period
of two years and a fine in the sum of Rs.1,000/- each for the offence under
Section 13(2) of Prevention of Corruption Act. In default of payment of fine,
they shall undergo simple imprisonment for six months each.
498. I sentence A-6 to A-62 (except A-49 and those who expired or were
discharged) to rigorous imprisonment for a period of two years and a fine in
the sum of Rs. 100/- each under Section 120-B IPC r/w Section 418/467/471
IPC rw Section 13(2) of Prevention of Corruption Act. In default of payment
of fine, they shall undergo simple imprisonment for one month each.
499. I sentence A-6 to A-62 (except A-49 and those who expired or were
discharged) to rigorous imprisonment for a period of one year under Section
418 IPC and rigorous imprisonment for two years under Section 467 IPC
with fine of Rs.100/- each. In default of payment of fine, they shall undergo
simple imprisonment for one month each. I further sentence them to rigorous
imprisonment for two years under Section 471 IPC and fine in the sum of
Rs. 100/- each. In default of payment of fine, they shall undergo simple
imprisonment for one month each.
500. A-49, Sudha Sachdeva is sentenced to rigorous imprisonment for a
period of two years and a fine in the sum of Rs.1,000/- for the offence under
Section 13(2) of Prevention of Corruption Act. In default of payment of fine,
she shall undergo simple imprisonment for six months each.
501. She is sentenced to rigorous imprisonment for a period of two years
and a fine in the sum of Rs.100/- under Section 120-B IPC r/w Section
418/467/471 IPC r/w Section 13(2) of Prevention of Corruption Act. In
default of payment of fine, she shall undergo simple imprisonment for one
month each.
502. With regard to the sentence imposed upon appellants A-1 to A-5, I am
in agreement with the findings of the Trial Judge. Education is a tool, which
can be skilfully used by competent teachers to model the youth (our most
precious human resource) in their formative years, to enable them to become
productive citizens in future and herald India to epitome of success. Yet the
instant case demonstrates how the process of appointing competent teachers
was also vilified and not spared from the malaise of corruption. Such scams
not only result in dissemination of poor quality education to the millions of
children; who are bound to suffer, but also unfairly deprive the competent
participants in such selection processes an opportunity to gain public
employment and meaningfully serve the country. Public confidence is bound
to get shaken, resulting in frustration/anxiety amongst the youth; who
eagerly await the scarce employment opportunities, giving further impetus to
the culture of corruption.
503. The modern state has moved far away from its concept as the
'Leviathan' with its traditional role symbolised by the two swords it wielded-
one of war and the other of justice. The modern, pluralist, social-welfare
state with its ever-expanding social and economic roles as wide-ranging as
that of an Economic-Regulator, Industrial Producer and Manager, Arbitrator,
Educationist, Provider of Health and Social-Welfare services etc., has
become a colossal service-corporation. The bureaucracy, through which the
executive organ of the state gives itself expression, cannot escape both the
excitement and the responsibility of this immense social commitment of the
Welfare-State. Today the bureaucracy in this country carries with it, in a
measure never before dreamt of, the privilege and the burden of participation
in a great social and economic transformation, in tune with the ethos and
promise of the Constitution for the emergence of a new egalitarian and
eclectic social and economic order-a national commitment which a sensitive,
devoted and professionally competent administrative set-up alone can
undertake. A cadre comprised of men inducted through patronage, nepotism
and corruption cannot, morally, be higher than the methods that produced it
and be free from the sins of its own origin. Wrong methods have never
produced right results. Nepotism and corruption are gnawing at the vitals of
our country.
504. The common thread between appellants A-1, A-2, A-3, A-4 and A-5 is
the flagrant disregard towards the system. Each one of them played a role in
disrupting the established process to achieve their object. Not only did they
offend every duty they had to the office they were holding but in the process,
they also challenged the ethical standard of every other public servant and
compelled them to abandon their otherwise perfect career records. It may be
argued that A-4 being an aged person, towards the tail end of his political
career should be shown some mercy. It is for this very reason that I do not
agree with this submission. The man was the Chief Minister of Haryana,
capable of much hope and an inspiration to the youth of the State. Cheating
them of their future deserves punishment of the highest kind. The appellant
committee members also are all mostly senior citizens, respectable teachers
either retired from government service or nearing retirement. A-4 has played
a role in sharing their guilt as well. The sentence of A-1 to A-5, therefore,
remains unchanged. The sentences imposed on all the appellants above
shall run concurrently.
505. All the appeals stand dismissed. All pending applications also stand
disposed of. The conviction of all appellants is upheld. The sentences
imposed are modified as above. All bail bonds stand cancelled, sureties
discharged accordingly. The appellants shall surrender forthwith to undergo
the remaining portion of their respective sentences.
506. A copy of this judgment be sent to the Superintendent, Central Jail,
Tihar by Express Messenger for necessary information and compliance.
SIDDHARTH MRIDUL
(JUDGE)
MARCH 05, 2015
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