Delhi District Court
Cbi vs Rajender Prasad Bishnoi on 12 October, 2010
1
IN THE COURT OF V.K. MAHESHWARI
SPECIAL JUDGE: TIS HAZARI: DELHI
Corruption Case No. 03/09
CBI Vs Rajender Prasad Bishnoi
S/O Surja Ram
Peon-cum-Cleaner,
Guru Gobind Singh
Indraprastha University,
Kashmere Gate, Dehi
2 Smt Ravinder Kaur
D/O S. Hira Singh
Accountant, Guru Nanak
College of Education,
Road No.75, Punjabi Bagh
New Delhi.
Date of Institution 31.12.2008
RC No. RC-DAI-2008-A-0032
Under Section U/s 120-B IPC R/W Sec 13
(2) 13 (1) (d) of PC Act,1988
Arguments concluded on 29.9.2010
Date of Order 1.10.2010
JUDGMENT:
C C No.03/09 1/61
2
FACTS OF THE CASE 1 According to prosecution this case was registered after due verification on the basis of a written complaint dated 07.07.2008 filed by Shri Avtar Singh Gill S/O Sh Gurbachan Singh R/O 204, Four Storey, Tagore Garden Extension, Delhi alleging therein that the complainant Sh Avtar Singh Gill met with Smt Ravinder Kaur in connection with the admission of his daughter and niece in B Ed Course in an affiliated college of IP University . At that time Smt Ravinder Kaur was working in Guru Nanak College of Education, Punjabi Bagh, Delhi and she gave assurance to Sh Avtar Singh Gill that she would help in getting admission of his daughter and niece in lieu of some money. The daughter and niece of Sh Avtar Singh got admission on the basis of merit and this fact, somehow, came into the knowledge of Smt Ravinder Kaur and she asked Sh Avtar Singh Gill to contact Sh Rajinder Kumar who has posted in the IP University. The daughter and niece of Sh Avtar Singh Gill met with Sh Rajinder Kumar and he deposited the bank drafts of the wards of complainant but did not give receipt. Thereafter Smt Ravinder Kaur and Sh Rajinder Kumar contacted on the mobile phone of the wards of Sh Avtar Singh Gill and threatened that if Rs.60,000/- was not paid, their admission in the B Ed course in an affiliated college of IP University would be obstructed. Thereafter Sh Avtar Singh Gill contacted Ravinder Kar and Sh Rajinder Kumar and they reiterated C C No.03/09 2/61 3 their demand. Sh Rajinder Singh told that atleast Rs.10,000/- would have to pay otherwise the admission slips would not be provided.
2 Complaint of Shri Avtar Singh Gill was assigned to Shri Alok Kumar Inspector to verify allegations made in complaint . A team was constituted under the leadership of Sh Alok Kumar , independent witness Sh Shanker Miglani, AMI, office of Central Zone., Health Department, Lapat Nagar, Delhi and CBI official. The witness and the trap team members were briefed about the complaint of Sh Avtar Singh and were given the written complaint dt 0.07.2008 to go through who satisfied themselves by asking some question from the complainant. Thereafter on the directions of Sh Alok Kumar, Inspector /TLO complainant contacted from his mobile No. 981800918 with Rajinder Kumar on his mobile No. 9868944729 at about 12:05 PM and the conversation between the complainant and Sh Rajinder Kumar was recorded with the help of Digital Voice Recorder after recording the introductory voice of independent witness. The said conversation was simultaneously heard by all present and recorded through the in-built speaker of the mobile phone of the complainant which confirmed that the said Rajinder was demanding the bribe money and directed the complainant Sh Avtar Singh to meet him today i e on 07.07.2008 at IP University, Kashmere Gate , Delhi . The recording from the Digital Recorder was then transferred into two normal Audio Cassettes.
C C No.03/09 3/61 43 A verification Memo was prepared in connection with the verification of demand in presence of complainant, independent witness Sh Shanker Miglani and the CBI trap team members who signed it as token of correctness of its content.
4 After due verification of the allegations made in the complaint, case was registered against Sh Rajender Kumar and entrusted to Sh Alok Kumar Inspector for investigation. The Duty Officer was directed to arrange for more witnesses for lying a trap. Accordingly Sh Ravi Shanker Saini , Inspector from Service Tax Department reported to Inspector Alok Kumar and he was introduced with the complainant Sh Avtar Singh, the other witness Sh Shanker Miglani as well as other members of the trap party. The complaint was shown to Sh Ravi Shanker Saini who satisfied himself about the genuineness of the complaint by asking some question to the complainant. Sh Avtar Singh further informed that he had arranged Rs.5000/- which he produced in the denomination of Rs.500/- each.
5 A leather bag was arranged containing empty clean glass bottles, tumblers, sodium carbonate powder, CBI seal, sealing material, Phenolphthalein Powder was also arranged from the CBI Malkhana. Then on the directions of Sh Alok Kumar TLO Sh Pankaj Vatas SI treated the GC notes with phenolphthalein powder and independent witness Sh Ravi Shanker Saini was asked to touch the C C No.03/09 4/61 5 tainted notes with his right hand fingers and wash them in the colourless solution of sodium carbonate. On doing so by him, the colourless solution turned pink and this pink colour solution was thrown away after explaining the significance of the reaction. All the members washed their hands with . Personal search of complainant was conducted by Sh Manoj Kumar S I and the complainant was not allowed to keep anything incriminating on his person except his mobile phone. The bribe amount of Rs.5000/- were kept in his left side pant pocket and he was directed to hand over the tainted bribe amount to Sh Rajinder Kumar on his specific demand .
6 A digital voice recorder was arranged alongwith compact cassette recorder with few blank audio cassette and transfer cords. The digital cassette recorder was played and it was confirmed that it did not contain any pre-recorded voice. The formal voice of both the independent witnesses were recorded in the said digital recorder and it was decided by Sh Alok Kumar it would be handed over to the complainant after reaching at the spot. The functional part of the said Digital Recorder was explained to all concerned.
7 Sh Shanker Miglani was directed to act as a shadow witness and accompany the complainant and try to see the transaction and overhear the conversation between complainant and accused Rajender Kumar . Independent witness Sh Shanker Miglani was C C No.03/09 5/61 6 directed to give signal by way of scratching their heads with hands on completion of transaction of bribe. Complainant was also directed to give signal by giving a miss call over CBI mobile Phone No 9968081433 carried by Sh Alok Kumar on completion of bribe transaction. The other witness Sh Ravi Shanker was directed to remain with the trap party to witness the trap proceedings.
8 All the members except the complainant searched each other to ensure that they did not carry any incriminating documents/ articles except their I/D cards.
9 A Handing over Memo was prepared in this regard which was read over and explained to all present and it was signed by all as token of correctness of its contents . The proceedings started at about 02.00 PM and completed at about 03.10 PM. 10 Thereafter all the team alongwith complainant and witnesses reached near the gate of Guru Govind Singh Indraprastha University, Kashmere Gate and the complainant was asked to contact Sh Rajender Kumar on his mobile phone No. 9868944729 from his mobile phone No.9818009108. The conversation was recorded with the help of digital voice recorder and the said conversation was simultaneously heard by the independent witnesses and other team members through in built speaker of mobile phone of the complainant which revealed that Shri Rajinder was to come out side the main gate of the University to meet the complainant. Then the C C No.03/09 6/61 7 recording instrument was handed over to the complainant with " on"
position and he was directed to proceeds towards the main gate alongwith shadow witness Sh Shanker Miglani. The other team members including another independent witness also followed them discreetly. At about 4.00 PM one person was found talking to complainant. After 2-3 minutes the complainant as well as shadow witness gave the pre- decided signal by way of scratching their heads with both hands. All the team members rushed towards the accused. The shadow witness on being asked informed that after initial talk, the complainant enquired about the fee receipts and handed over the bribe amount to Rajender Bishnoi who accepted the same from his right hand and after counting it from both hands kept in his right side pant pocket . Sh Rajender Bishnoi was challenged for having demanded and accepted a bribe of Rs.5000/- from the complainant. Sh Rajender Bishnoi accepted having received Rs.5000/- given by the complainant. As the crowd was started gathering so it was decided to complete the rest of the proceedings in some room inside the University . The crowd members were given opportunity to join the proceedings but no body volunteered. Sh C S Rai, HODA/ Admission Officer who was heading the counseling going on in the University was requested to provide a room and to depute someone from the university to witness the proceedings. Accordingly Sh C S Rai deputed Sh Deepak Garg, Lecturer, University School of Chemical Technology to join the proceedings.C C No.03/09 7/61 8
11 Then the right hand fingers of accused Sh Rajender Bishnoi was dipped in colourless solution of sodium carbonate which turned pink in colour and it was poured into a clean glass bottle. The left hand fingers of the accused was also dipped into another colourless solution of sodium carbonate which turned pink in colour and it was poured into a clean glass bottle. The bottles were marked as "RHW" and "LHW" and sealed and signed by both the independent witnesses as well as witness Sh Deepak Garg.
12 Sh Ravi Shanker Saini recovered the bribe amount from the right side front pant pocket of Sh Rajinder Bishnoi and the same were tallied with the numbers already noted in handing over memo prepared in CBI office and were found to be same as mentioned in the Handing over memo.
13 The pant pocket wash of accused was also taken in colourless solution of sodium carbonate which turned pink in colour and it was poured into a clean glass bottle. The bottles were marked as "RHPPW" and sealed and signed by both the independent witnesses as well as witness Sh Deepak Garg.
14 The digital voice recorded which was given to complainant was replayed which confirmed the transaction of bribe . A rough site plan showing place of bribe transaction was prepared .
C C No.03/09 8/61 9Accused Rajender Bishnoi was arrested vide separate arrest-cum- personal search memo which was signed by all concerned.
15 On 9.7.2008, accused Rajender Prasad Bishnoi was asked about his dealing with Smt Ravinder Kaur working in Guru Nanak B Ed College, Punabi Bagh , N Delhi . He has stated that Smt Ravinder Kaur had asked him to provide help in securing the minority certificate ( Sikh) and accordingly admission to the complainant's children for which she promised to give 50% to Rajinder Bishnoi of the demanded amount of Rs.60,000/-. Sh Rajinder Bishnoi, on being further asked , volunteered to make call to Smt Ravinder Kaur on her mobile No.9999490485 from his mobile No. 9868944729 in the presence of independent witnesses and the conversation between them was recorded. The conversation so recorded revealed that Smt Ravinder Kaur was also a part of this conspiracy as during conversation she was annoyed for giving the admission slips to the complainant by Sh Rajinder Bishnoi without her consent and she further talked about new problems that shall arise in this issue. In the presence of both the independent witnesses the specimen voice samples of Sh Rajinder Bishnoi was taken.
16 During investigation the specimen voice of Ravinder Kaur was also taken with whom the accused Sh Rajinder Bishnoi talked on 8.7.2008. in the presence of two independent witnesses.
C C No.03/09 9/61 1017 Chemistry Division of CFSL , New Delhi gave positive opinion for the presence of phenolphthalein and sodium carbonate in Exhibits marked as RHW, LHW, and RHPPW containing the right hand wash, left hand wash and right hand pant pocket wash of accused Rajender Prasad Bishnoi. The report of chemistry division proves that the accused handled the money and thereby accepted the same.
18 The CFSL vide its report no. CFSL-2008/P-0784 dated 24.12.2008 has given positive opinion regarding matching of the voice of accused Sh Rajender Prasad Bishnoi in the recorded conversation marked as A,B and C with the specimen voice marked as S-1. The report has also given the positive opinion regarding matching of the voice of accused Ravinder Kaur in the recorded conversation marked as C with her specimen voice marked as S-2.
19 The mobile No 9818009108 was allotted by Bharti Airtel Limited to Sh Avtar Singh complainant and mobile No. 9868944729 was allotted by MTNL to Sh Rajender Prasad Bishnoi. The call details of accused's mobile and the complainant's mobile have been matched and it has revealed that calls were made and received according to the pre trap and post trap memos.
20 The mobile No. 9999490485 and mobile No. C C No.03/09 10/61 11 9999855465 were allotted by Vodafone Essar Mobile Services to one Sh Jasvinder and one Sh Inderjeet Singh. The call details of mobile No. 9999490485 have revealed that Smt Ravinder Kaur had made calls from this mobile number to the complainant and his children on the dates and time as stated by the complainant and his children in their statements. Further Smt Ravinder Kaur had also made a call to the complainant from mobile No. 9999855465 on 9.7.2008 as stated by the complainant in his statement.
21 The mobile No.9210382666 was allotted by Tata Tele services Ltd to one Sh Bhoj Pal which was being used by the children of complainant Sh Avtar Singh. The call details of this mobile Number has revealed the contact among the children , accused Rajinder Bishnoi and Smt Ravinder Kaur on the relevant dates and time as stated by the children of the complainant in their statements. CHARGE 22 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 15.4.2009 a charge for the offence punishable U/s 13 (1) ( d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 has been framed against accused Rajender Bishnoi . A charge for the offence punishable U/S 120-B r/w 13 (1) (d) r/w 13 (2) as defined U/S 3 (1) (d) of Prevention of Corruption Act 1988 has been framed against accused Ravinder C C No.03/09 11/61 12 Kaur. Both the accused pleaded not guilty to the charges and claimed trial, hence this trial.
PROSECUTION EVIDENCE 23 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Sh D K Bandyo Padhaya, has proved sanction order as Ex. PW1/A. PW2 Dr Rajinder Singh, Principal Scientific Officer has proved his report Ex PW2/A. PW3 Sh Shanker Miglani has proved verification Memo Ex PW3/A, handing over memo Ex PW3/B, recovery memo Ex PW3/C , arrest cum personal search memo Ex PW3/D, rough site plan Ex PW3/E, conversation recorded memo Ex PW3/F, specimen voice recording memo of accused Rajinder Prasad Bishnoi Ex PW3/G, voice identification memo Ex PW3/J. PW4 Sh M N Vijayan Nodal Officer Tata Teleservices Ltd has proved the call details of mobile No. 9210382666 in the name of Bhojpal,Ex PW4/A. PW5 Sh Ravi Shanker Saini has also proved verification C C No.03/09 12/61 13 memo Ex PW3/A, handing over memo Ex PW3/B, recovery memo Ex PW3/C, arrest-cum- personal search memo Ex PW3/D , site plan Ex PW3/E, Conversation recording memo Ex PW3/F, specimen voice recording memo Ex PW3/G, transcription cum voice identification memo Ex PW5/B, transcription Ex PW5/C , transcription cum voice identification memo Ex PW 5 /D and PW5/E. PW6 Captain Rakesh Bakshi has proved the call details of mobile No. 9918009108, issued in the name of Avtar Singh wef 20.6.2008 to 10.7.2008 Ex PW6/B. PW7 Sh Deepak Garg has also proved the recovery memo Ex PW3/C. PW8 Sh A K Arun, in whose presence specimen voice of Ravinder Kaur was recorded, has proved voice recording proceeding vide Ex PW3/H. PW9 Dr N M Hashmi has proved chemical analysis report EX PW 9/B. PW10 Ram Hari Singh has proved customer agreement form and call details of Mobile No. 9868944729 allotted to Rajinder Prasad Ex PW10/A and PW10/B. PW11 Shilpa Kaur Gill, is the daughter of complainant C C No.03/09 13/61 14 Sh Avtar Singh Gill.
PW12 Sh V K Verma has proved Admission Slip of Miss Shilpa Gill and Poonam Gill Ex PW12/A, Letter of Minority certificates Ex 12/B-1 and B-2. He has proved certified copies of Deployment of staff of counciling/ admission for academic sessions 2008-2009, Guidelines for admission officer , Schedule of first and second counciling for B. Ed Programme Ex PW12/B-3 to Ex PW12/B-6.
PW13 Dr Abha Vermani has proved Admission Slip of Shilpa Gill and Poonam Gill Ex PW13/A and PW13/B. PW14 Sh. Avtar Singh , has proved complaint Ex. PW-5/A , Verification memo Ex PW3/A, recovery memo Ex PW3/C, rough site plan Ex PW3/E, arrest cum personal search memo Ex PW3/D, Transcription of his voice and accused Rajinder Bishnoi Ex PW14/A, Transcription cum voice identification memo Ex PW3/J. PW15 Sh Sushil Kumar Verma has also proved Admission Slip of Shilpa Gill and Poonam , already Ex PW13/A and PW13/B. PW16 Inspector Alok Kumar has also proved C C No.03/09 14/61 15 documents already proved by PW3 and PW5 as Ex PW 5/A, Ex PW3/A, PW3/B, PW3/C, PW3/D, Ex PW3/F, Ex PW3/G He has proved FIR as Ex PW16/A, letter address Registrar of IP University Ex PW16/B. PW17 Sh Yogesh Kumar has also proved documents already proved by PW2 PW 3 and PW5 as Ex PW 3/H, Ex PW2/A Ex PW2/B, PW2/C, Ex PW3/J , Ex PW5/B, Ex PW5/D, Ex PW6/A , Ex PW4/A and Ex PW4/B. He has proved letter dt 1.12.2008 Ex PW 17/A and Ex PW PW12/B. PW18 Sh Israr Babu has proved the customer agreement form and call details in respect of mobile Phone No. 9999490485 and 9999855465 in the name of Jasvinder and Inderjit Singh Ex PW18/A, Ex PW18.B-1 to B-8 and Ex PW18/C-1 to 25.
DEFENCE OF ACCUSED AND DEFENCE EVIDENCE.
24 Statement of both the accused U/s 313 Cr PC recorded . Accused Rajender Bishnoi has denied the entire story of the prosecution. He has stated that he is innocent . He has no relation with co-accused Ravinder Kaur . He has refuted all the evidence produced by the prosecution against him and stated that he has been falsely implicated in this case.
C C No.03/09 15/61 1625 Accused Ravinder Kaur has also denied the entire story of prosecution . She has stated that there is no evidence against her . She has refuted the evidence produced by the prosecution against her. She has stated that she is innocent and has been falsely implicated in this case.
26 Both the accused not produced any evidence in their defence.
PROSECUTION ARGUMENTS 27 Sh Brajesh Shukla Ld. Sr. PP for CBI assisted by Sh S N Pathak PP for CBI argued that prosecution has proved its case that accused Rajender Bishnoi was working as Peon in GGSIP University Kashmere Gate. He in criminal conspiracy with co- accused Smt. Ravinder Kaur had demanded illegal gratification from complainant Avtar Singh for the admission of his children in B Ed course. In furtherance of the demand of illegal gratification on 7.7.2008 he had obtained Rs.5000/- from complainant Avtar Singh which was also recovered from his conscious possession. It is argued that according to evidence produced by prosecution accused Rajender Bishnoi was having in his possession the admission files of the children of complainant as he was the member of admission counsel. It is argued on behalf of CBI that after the counselling for admission was over accused Rajender Bishnoi was having access to the admission files of the children of complainant. It is argued that C C No.03/09 16/61 17 accused Rajender Bishnoi had deposited a draft of Rs.38,000/- at the counter of University but has not given the receipt to the daughter and niece of the complainant. He in conspiracy with his co-accused Ravinder Kaur was harassing and threatening the complainant that in case bribe will not paid then admission of the children of complainant will be cancelled or the children will not be allowed to study in the college.
28 It is argued on behalf of CBI that accused Ravinder Kaur had telephonically contacted complainant and his children and demanded an amount of Rs.60,000/- and threatened them to obstruct the process of admission of the children. It is argued that prosecution has produced as many as 18 witnesses to prove its case including complainant, shadow witness and recovery witness besides the TLO and IO and other official witnesses. Complainant, recovery witness and shadow witness have fully supported the case of prosecution. Their evidence has also been corroborated by TLO and IO and other official witnesses. It is argued that prosecution has also proved cassette of recorded conversation and transcription of the same. It is argued that accused may be convicted.
DEFENCE ARGUMENTS 29 It is argued by Ld counsel Sh L D Moul for accused No.1 that his client was working as Peon in GGSIP University Kashmere Gate. His job was only to call the names of the person or C C No.03/09 17/61 18 to serve water etc to the staff. Neither he can admit any student nor he can deny admission to anyone. He was not the custodian of admission record. Being a peon he was not having access to the admission record. Admissions slips were not recovered from his possession. He has never demanded any bribe from complainant for the admission of his children in the B. Ed Course . He has been falsely implicated in this case by the CBI officer by applying phenolphthalein powder in his hand forcibly. Actually no recovery of tainted amount was affected from him . Transcription of the recorded conversation has not been proved as per law, therefore it cannot be relied upon against the accused. Accused is innocent. He has been falsely implicated in this case. He may be acquitted.
30 It is argued on behalf of accused Ravinder Kaur by Ld Defence counsel Sh Bal Kishan Sewak that she is not a public servant . No recovery of tainted amount has been made from her . She had neither demanded nor accepted any illegal gratification from complainant. She was not in admission counsel, hence neither she can admit the children of complainant in B. Ed course nor she can deny the admission to them. There is no evidence on the file against her. Prosecution has failed to connect her with the co-accused. Co- accused Rajender has also stated in his statement U/S 313 Cr P C that he does not know Ravinder Kaur .
C C No.03/09 18/61 1931 It is argued by ld Defnece counsel that prosecution has failed to prove that recorded voice in the cassette was of her. It is argued that transcription of the recorded conversation has not been prepared correctly. It is argued that prosecution has failed to prove that cassette of recorded conversation contains the voice of accused Ravinder Kaur. It is argued that accused is innocent she has been falsely implicated . She may be acquitted.
PUBLIC SERVANT AND SANCTION:
32 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
33 It is undisputed that accused Rajender Kumar Bishnoi was working as Peon in Guru Govind Singh IP University Kashmere Gate Delhi, thus he is a public servant. Even this fact has not been disputed during the course of argument on behalf of accused. PW1 C C No.03/09 19/61 20 DK Bandyo Padhya VC of GGS IP University, Kashmere Gate Delhi has stated that he was working as Vice Chancellor of GGS IP University in December 2008. He was competent to appoint and remove accused Rajender Bishnoi from his post . He had granted sanction for the prosecution of accused Rajender Bishnoi in this case after going through documents , statement of witnesses and other reports and after applying his mind to the same. He has proved sanction order Ex PW1/A accorded by him for the prosecution of accused in this case. He has not been cross examined on behalf of accused insptie of opportunity granted. There is no other reason on the file to disbelieve his statement. In these circumstances,this Court is of opinion that prosecution has proved a valid sanction for the prosecution of accused Rajender Bishnoi in this case.
DEMAND ACCEPTANCE AND RECOVERY OF BRIBE AMOUNT.
34 Complainant Avtar Singh in his complaint dated 7.7.08 Ex PW5/A has specifically written that he met Smt Ravinder Kaur about 2/3 months ago who had informed him that she can help in the admission of his daughter and niece in B Ed college on payment of money. She referred him to Rajender Kumar . His daughter and niece got admission on merits . They handed over DD of Rs.38,000/- for depositing in the university to Rajender, who had deposited the same on the counter but had not given the receipt / admission slip and C C No.03/09 20/61 21 thereafter Rajender and Ravinder Kaur started calling him on telephone for payment of a bribe of Rs.60,000/- and also threatened him that in case of no payment they will create hindrance in the admission.
35 With regard to payment of bribe amount to Rajender and acceptance of the same by him and the recovery of bribe money from Rajender . PW 14 complainant Avtar Singh has stated as follows:
"After reaching at the gate of I P University I contacted Rajinder Bishnoi on mobile phone. Thereafter he had come to main gate. He demanded bribe amount of Rs. 5,000/-. Thereafter I had given Rs.5,000/- on his specific demand to him. He kept the bribe amount in his pant pocket. Independent witness who was alongwith me was witnessing the transaction of bribe money."
" The signal regarding the completion of transaction of bribe money was given by me as well as the witness Shanker Miglani. After the demand and acceptance of bribe money of Rs.5000/- by accused Rajinder Bishnoi he was challenged by the CBI officer regarding the same, upon which the accused Rajinder Bishnoi accepted that he had received Rs.5000/- as bribe money from me. Another independent witness may be Ravi Shanker recovered the bribe amount of Rs.5000/- from the right side pant pocket of accused C C No.03/09 21/61 22 Rajinder Bishnoi . Both the independent witnesses were asked to count and compare the numbers of recovered GC notes which were mentioned in the handing over memo. Both the independent witnesses confirmed the number of recovered GC notes of Rs.5000/- as mentioned in the handed over memo."
36 In this regard shadow witness PW 3 Shanker Miglani has stated as follows:
" During the conversation Rajinder Bishnoi demanded bribe amount of Rs.10,000/- to which the complainant Avtar Singh replied that he could not arrange 10,000/- he only had 5000/- . Rajinder Bishnoi asked the complainant to bring 5000/- and meet at the gate of IP University at Kashmere Gate after 2/3 hours. The recorded conversation was replayed and the contents were transferred in the audio cassette . The cassette were sealed and I signed on the same. I signed on the paper slip as well as on the cloth wrapper."
" We reached I P University at about 3.45 pm .
Thereafter the complainant was directed by Inspector Alok Kr to contact the accused on mobile phone. During telephonic conversation Rajinder Bishnoi was asked by the complainant that he had reached at the gate of university on which Rajinder Bishnoi told that he will come after a short while at the gate . This telephonic conversation C C No.03/09 22/61 23 was also recorded and simultaneously heard by me as well as others through inbuilt speakers. The Digital recorder was given to Avtar Singh in an on condition and Inspector Alok Kr directed me and the complainant to go towards the gate of University. We reached at the main gate and waited for some time thereafter accused Rajinder Bishnoi approached complainant Avtar Singh and they started talking each other and upon the demand of accused Rajinder Bishnoi Avtar Singh handed over the bribe amount of Rs.5000/- to him. The bribe amount of Rs.5000/- was kept by accused in his front right side pant pocket. I was watching as well as hearing the whole conversation as I was standing near to them. Thereafter I gave pre appointed signal by scratching my head with hands and Sh Avtar Singh gave pre appointed signal by giving mis call to inspector Alok Kr . Thereafter all the trap team members who were also watching the proceedings rushed towards the accused and disclose their identity. The accused was caught hold by the wrist by the CBI officer and was challenged for having demanded bring money from Avtar Singh. The witness has correctly identify the accused. The accused was taken inside the IP University and one official of IP University' was informed that Rajinder Bishnoi has been caught red handed while demanding bribe amount.
" At the directions of CBI officer another C C No.03/09 23/61 24 independent witness Ravi Shanker Saini recovered the bribe amount of Rs.5000/- from the right side pant pocket of accused Rajinder Bishnoi. The recovered notes were counted and the numbers were tallied with the numbers mentioned in the handing over memo by me as well as Ravi Shanker Saini."
37 In this regard recovery witness PW 5 Sh Ravi Shanker Saini stated as follows:
" We reached IP University at about 3.45 pm. Thereafter the complainant was directed by Inspector Alok Kr to contact the accused on mobile phone. During telephonic conversation Rajinder Bishnoi was asked by the complainant that he had reached at the gate of university on which Rajinder Bishnoi told that he will come after a short while at the gate. This telephonic conversation was also recorded and simultaneously heard by me as well as others through inbuilt speakers. The Digital recorder was given to Avtar Singh in an on condition and he along with shadow witness Shanker Miglani proceeded towards the gate of University. They reached at the main gate and waited for some time thereafter accused Rajinder Bishnoi approached complainant Avtar Singh and they started talking each other and upon the demand of accused Rajinder Bishnoi Avtar Singh handed over the bribe amount of Rs.5000/- to him. The bribe amount of Rs.5000/- was kept by accused in his C C No.03/09 24/61 25 front right side pant pocket. I was along with other trap team members and we were very close to the gate where the complainant, shadow witness and accused person were talking . I could clearly see the entire transaction."
" At the directions of CBI officer Sh Alok Kumar I recovered the bribe amount of Rs.5000/- from the right side pant pocket of accused Rajinder Bishnoi. The recovered notes were counted and the number were tallied with the numbers mentioned in the handing over memo by me as well as by Shanker Miglani. Thereafter a fresh colourless solution was prepared in which the wash of right side pant pocket was taken which turned pink in colour. The pink colour solution was transferred into a glass bottle separately."
38 In this regard PW16 Inspector Alok Kumar Trap laying Officer has stated as follows:
CBI team reached near the University at about 3.45 pm . The complainant was asked to contact accused Rajender Kr on his mobile and the conversation between the two got recorded with the help of digital recorder. Accused Rajender Kr told complainant to come at the gate of the university, accordingly the complainant was C C No.03/09 25/61 26 handed over the recorder in "on " position and he alongwith shadow witness were directed to go towards the gate whereas the other team members followed them discretely. At about 4.00 pm the complainant was found talking to a person later identified as accused Rajender Kr and it was seen that complainant was handing over tainted bribe amount to the accused. Meanwhile the shadow witness and the complainant gave the pre appointed signal and the CBI team rushed towards the accused and complainant . When complainant confirmed that accused Rajender Kr has accepted the bribe; after disclosing my identify I challenged accused for having demanded and accepted illegal gratification of Rs.5000/- from complainant . For a moment the accused kept mum but later accepted of having accepted the bribe.
39 PW7 Deepak Garg, Lecturer in University School of Technology IP University Kashmere Gate in this regard has stated as follows:
" One of the person who was alongwith CBI asked by the CBI officer to recover the money from the pant pocket of the accused who recovered the same. The hands of the accused were also washed change in colour was observed which turned into pink."
40 From the following suggestion given to complainant on behalf of accused it appears that even accused does dispute the C C No.03/09 26/61 27 recovery of amount of Rs.5000/- from his conscious possession.
" It is wrong to suggest that my daughter and niece told accused Rajinder that they were short of Rs.10,000/- to secure admission. It is wrong to suggest that Rajinder Bishnoi had given Rs. 10,000/- on humanitarian ground to my daughter and niece for obtaining admission. On the first day my niece and daughter had not taken money hence the question of taking Rs. 10,000/- from Rajinder Bishnoi does not arise. It is wrong to suggest that my daughter and niece were having short of Rs.10,000/- that is why they had not taken the money on the first day."
"It is wrong to suggest that as I did not want to return Rs.10,000/- to Rajinder Bishnoi hence I started recorded the telephonic calls/conversation of accused Rajinder Bishnoi with the intention to falsely implicate in this case and to terrorise him not to demand his money back from me."
From the above discussion it is clear that accused Rajender Kumar had demanded the bribe and voluntarily and consciously accepted Rs.5000/- from complainant as bribe which was also recovered from him conscious possession.
41 Complainant Avtar Singh, Shadow witness Shanker C C No.03/09 27/61 28 Miglani and recovery witness Ravi Shanker Saini, PW Deepak Garg TLO Inspector Alok have stated that hand washes of accused and wash of inner lining of his right side front pant pocket was taken which had turned pink in colour .
42 PW9 N M Hashmi Senior Scientific officer CFSL who had chemically examined the washes of both the hands of accused and inner lining of the right side front pant pocket of the accused has stated that after chemical analysis of all the washes he found presence of phenolphthalein and sodium carbonate in all the sample of the washes. Thus the presence of phenolphthalein powder on both the hands of accused and in his pant pocket has been proved.
43 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes C C No.03/09 28/61 29 emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science- oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
44 In Raghbir Singh Vs State of Punjab (1976) 1 SCC C C No.03/09 29/61 30 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows:-
" We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for tte purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
45 Accused has taken a contradictory stand in his defence in this regard. Following suggestion has been given to shadow witness PW 3 in his regard.
" It is incorrect to suggest that hand wash of accused Rajender was taken in his office after forcibly applying phenolphthalein powder."
46 Following suggestion has been given on behalf of accused to recovery witness Ravi Shanker Saini :
C C No.03/09 30/61 31" It is incorrect to suggest that handwash of Rajender was not turned pink. It is also incorrect that CBI officer had himself prepared the pink wash and preserved the same on account of Rajender Bishnoi's handwash."
47 Following suggestion has been given on behalf of accused Rajender Bishnoi to complainant Avtar Singh :
" It is incorrect to suggest that CBI officials had forcibly taken wash of the hands of accused. No hand wash of recovery witness was taken by CBI."
48 No suggestion has been given in this regard to other witnesses. Accused has not given any explanation with regard to presence of phenolphthalein powder on his both the hands and inner lining of his pant pocket.
49 Hon'ble Supreme Court in Roop Singh Vs. State of Punjab , AIR 1991 Supreme Court 1125, in this regard, has held as follows:
"Prevention of Corruption Act (2 of 1947), S.5 - Offence of accepting bribe - Nothing to doubt testimony of prosecution witnesses - Defence by accused that he was victim of conspiracy - Not supported by evidence on record - Failure of accused to explain presence of phenolphthalein powder on his hand - Held, evidence of prosecution witnesses was sufficient to prove offence against accused
- Conviction of accused was proper."C C No.03/09 31/61 32
50 PW 16 Inspector Alok Kumar TLO of this case has specifically stated that when he challenged the accused that he had accepted the bribe for the movement he kept mum but later on he has admitted that he has accepted the bribe. Relevant statement in this regard is as under:
" When complainant confirmed that accused Rajender Kumar has accepted the bribe , after disclosing my identity I challenged accused for having demanded and accepted illegal gratification of Rs.5000/- from complainant."
51 In the prosecution for offence of bribery the conduct of accused is relevant U/S 8 of Evidence Act. When the accused was challenged regarding acceptance of bribe amount he kept mum and had not given any explanation.
52 Hon'ble Supreme Court in Parkash Chand Vs Delhi Admn AIR 1979 SC 400 in para No.8 has observed as follows:
" It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh Hingh Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra
271). We do not agree with the submissions of Sh. Anthony. There is C C No.03/09 32/61 33 a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code.
What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter,that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975 53 From the above discussion it is proved that accused Rajender accepted Rs.5000/- as bribe voluntarily and consciously which was also recovered from his conscious possession.
ABUSE OF OFFICIAL POSITION BY ACCUSED RAJENDER C C No.03/09 33/61 34 BISHNOI:
54 PW 13 Dr Abha Virmani has stated that admission slips of Miss Shilpa Gill and Poonam Gill dated 21.6.2008 were in the custody of Raj ender Bishnoi . Relevant portion of her statement in this regard is as under:
" I have seen original admission slip of Shilpa Gill and Poonam Gill, I identify my initial / signatures at point A on both the slips. Both the slips are Ex PW13/A and PW13/B. As per the procedure admission slips are prepared in triplicate. One remains with us, second copy given to the bank and third is to be given to concerned student who has to report to the concerned college alongwith this slip. An announcement is also made regarding the collection of admission slip. Both these students not contacted me for the non receipt of their admission slip. Rajender Bishnoi was the custodian of all the files in B. Ed course along with admission slips. Rajinder Bishnoi was given the responsibility to give admission slip tot he concerned student."
55 In this cross examination this witness in this regard as stated as follows:
" Rajinder Bishnoi was only a peon . As Rajinder C C No.03/09 34/61 35 Bishnoi being a Peon in Academic Branch was keeping record for the last 7/8 years according to the practice hence the admission record pertaining to this case was also kept by him during the session 2008-2009"
56 In this regard PW 15 SH Sushil Kr Verma in his cross examination has stated as follows:
" In this case accused Bishnoi who is also concerned with Academic Branch was given the file after counselings by the concerned person."
57 He has further stated in his cross examination as follows:
" According to Ex PW13/A and B admission of both these girls was done on 21.6.2008 and admission slip was also simultaneously prepared. I was not aware where the admission slip was remained during 2.6.2008 to 6.7.2008 but it was presumed that it must have been issued to candidate, which was not done in this case. As per the process both these candidates should have received the admission slip on the same date i e 21.6.08. Accused Rajender Bishnoi is a group D employee. In the process of admission Accused Rajender Bishnoi was involved in the admission process. Being a part of admission team accused Raj ender Bishnoi was having access to the admission file."C C No.03/09 35/61 36
58 A five Judges Bench of Hon'ble Supreme Court in Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:
Misconduct by public servant need not be in connection with his own official duty.
" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1)
(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."
59 It is in evidence that both the children of complainant had given their drafts of fees to Rajender Bishnoi who has deposited the same in the counter and obtained the receipt. From the above discussion is also proved that accused Rajender Bishnoi was not C C No.03/09 36/61 37 giving admission slips and receipts of both the children of complainant and demanded and accepted bribe of Rs.5000/- from complainant Avtar Singh. Thus it is proved beyond reasonable doubt that he has abused his official position.
LEGAL AND FACTUAL ANALYSIS OF DEFENCE ARGUMENS OF ACCUSED Raj ender BISHNOI 60 Ld. Defence Counsel for accused Rajinder Bishnoi
argued that he was working as a peon in the University. He was not in a position to allow or disallow admission of any student in the University, therefore, no question arises of his demanding of bribe for the admission of daughter and niece of complainant. He has argued that in these circumstances entire prosecution story proves to be false and concocted.
61 To constitute an offence under this Section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, " with any other public servant" and the giver, gives the gratification under that belief. It is not the requirement of law that public servant who has accepted money must be in position to do the official act, favour or service at the time of demand or receipt of illegal gratification.
C C No.03/09 37/61 3862 Hon'ble High Court of Madras in P. Sabbaraj Vs The State 1995 CRI L J 3440 in this regard has held as follows :
" Prevention of Corruption Act (2 of 1947), S. 5(1) (d) - Bribery- Proof - Acts of accused, a public servant is taking illegal gratification from complainant for securing him job in some other department - Falls under the mischief of Section 5(1) (d) and Section 161, Penal Code- Such acts of accused need not be proved to be done in discharge of his official duties."
63 Hon'ble High Court of Bombay in Indur Dayadas Advani Vs The State of Bombay in this regard has held as follows :
" The section does not require that the public servant must himself have the power or must himself be in a position to perform the act or show favour or disfavor for doing or showing which the bribe has been paid to him . From the last explanation to this section it is clear that it is not necessary in order to constitute an offence under Section 161 that they act for doing which the bribe is given should actually be performed. It is sufficient if a represention is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation will be guilty of the offence punishable under this Section, even if he had or has no intention to perform and has not performed or does not C C No.03/09 38/61 39 actually performed that act. A presentation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act."
64 Hon'ble Supreme Court in Shiv Raj Singh Vs Delhi Administration AIR 1968 SC 1419 in this regard has held as follows :
" When a public servant is charged u/s 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, it not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to such an act. Thus although the concealment of the birth of an illegitimate child is not an offence under the Penal code or any other criminal statue, if a public servant obtains money from anybody on that ground he is guilty of grossly abusing his position as a public servant within the meaning of Section 5 (I) (d) of the P C Act and thereby obtain for himself a valuable thing or pecuniary advantage and he can be charge under this section."
65 Hon'ble Supreme Court in Chaturdas Bhagwandas Patel Vs The State of Gujrat (1976) SCC-46 this regard has held as follows :
C C No.03/09 39/61 40" Section 161 does not require that public servant must, infact , be in a position to do the official act, favour or service at the time of demand or receipt of gratification . To constitute an offence under this section it is enough if the public servant who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "
with any other public servant " and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearances which he holds himself out as capable of doing .This is clear by the last explanation appended to section 161 and illustration"
66 Our Hon'ble Supreme Court in Mahesh Prasad Vs. state of UP 1955 AIR (SC) 70 has held as follows:
"Indian Penal Code, 1860, Section 161, Explanation 4 - Public Servants - Motive or reward for doing to assist another Government Servant - Whether the accused could or could not do the same, but was aware of heating - Held guilty of offence under Section 161 of the Code."
In these circumstance, there is no merit in this argument of Ld Defence counsel.
C C No.03/09 40/61 41FACTUAL AND LEGAL ANALYSIS OF DEFENCE ARGUMENTS OF ACCUSED RAVINDER KAUR.
67 Ld Defence Counsel argued that there is no acceptance and recovery of bribed amount from accused Ravinder Kaur . There is no evidence on the file that she had ever demanded bribe from complainant . She is not a public servant . There is no evidence that she is involved in any conspiracy with co-accused Raj ender Bishnoi in demanding or accepting bribe from complainant. There is no voice of her in alleged tape recorded conversation. The tape recorded conversation and transcription of the same are tempered one.
68 Complainant Avtar Singh with regard to demand of bribe made by Ravinder Kaur has stated as follows in his statement :
"I met Ravinder Kaur in Guru Nanak College, Punjabi Bagh. I talked to him regarding the admission of my daughter Shilpa Gill and Poonam who was my niece. Ravinder Kaur assured about the admission of my daughter and niece and asked me to contact Rajinder Bishnoi who was in I P University. Rajinder demanded bribe amount of Rs. 10,000/-. I remember my phone no. The same was 9818009108. I talked to Rajinder Bishnoi and Ravinder Kaur on telephone regarding admission in I P College and demand of bribe was made. It was Rajinder Bishnoi C C No.03/09 41/61 42 who contacted me and used to demand bribe. I asked my daughter and niece to contact Rajinder Bishnoi and hand over demand draft of fees to him and take the receipt. However, he did not handed over the receipts to my daughter and niece. I talked to Rajinder Bishnoi on phone and asked him to give the receipt but he demanded the bribe for the same. I did not want to give bribe money I contacted some persons they told me to make a complaint to CBI in this regard hence I made a complaint to CBI. I have seen complaint Ex PW5/A."
69 Complainant has also clearly mentioned with regard to demand of bribe by accused Smt Ravinder Kaur form him for the admission of his children. Relevant portion of his complaint EX PW5/A in this regard is as under :
C C No.03/09 42/61 4369A Complainant in his statement in this Court has specially stated that he has lodged his complaint Ex PW5/A with CBI which bears his signatures and is correct. In these circumstances, there is no reason to disbelieve contents of complaint in this regard.
70 PW 3 Shanker Miglani in this regard has stated as follows:
I reached on 8.7.2008 and reported to Inspector Alok Kumar. In my presence and in the presence of another witness the accused Rajinder Bishnoi was asked to contact Ravinder Kaur and the conversation between both of them was recorded in a digital recorder. The digital recorder was arranged initially and was played to ensure its blankness and the formal voice of mine and of another witness was recorded at the beginning of the cassette. The recorded C C No.03/09 43/61 44 conversation was transferred in an another normal cassette and same was sealed and signed by me and anther independent witness. I have seen D-10 conversation recorded memo recorded between Rajinder Bishnoi and Ravinder Kaur which bears my signatures at point A and of Rajinder Prasad at point B as he signed in my presence, the same is Ex PW4/F. During the conversation it was confirmed that Ravinder Kaur was having the knowledge of the subject matter of the complaint the specimen voice of accused Rajinder Bishnoi was also taken on 8.7.2008."
71 PW16 Alok Kumar, TLO of this case, in this regard, has stated as follows:
" On 08.07.2008 the accused was asked to contact to Ms. Ravindra Kaur on her mobile with the mobile of the accused. The mobile of the accused Rajender Bishnoi was temporarily given to him for the said purpose from the possession of the police. The said conversation was got recorded with the help of digital voice recorder and the recording was transferred on a new blank cassette and the same was got duly sealed with the help of cloth wrapper. Both the Independent witnesses signed over the label on cassette and the cloth wrapper in my presence. The Cassette was marked as Mark C. The conversation recording memo (D-10) already Ex. PW3/F was prepared in my presence under my signature at point D and all the C C No.03/09 44/61 45 signatories of Ex.PW3/F signed before me. The conversation confirmed monetary dealings between the accused Rajender Bishnoi and Ms. Ravindra Kaur regarding the admission of the complainant's daughter and niece in the University for B.Ed course"
72 Demand of illegal gratification made by accused Ravinder Kaur from complainant is also established from tape recorded conversation between complainant Avtar Singh and accused Rajinder Bishnoi on the spot on 7.7.2008, transcription of which is Ex PW5/C. Demand of gratification by accused Ravinder Kaur is also established from recorded conversation dt. 8.7.2008 between accused Rajinder Bishnoi and Mrs. Ravinder Kaur, transcription of which is Ex PW 5/E. 73 It is argued on behalf of accused Ravinder Kaur that voice in cassette of allegedly recorded conversation was not of her. I have carefully considered this argument. Both the independent witnesses PW 3 Shanker Miglani and PW5 Sh. Ravi Shanker Saini have stated that sample voice of accused Rajinder Bishnoi was taken in their presence during the investigation. Accused Rajinder Bishnoi has given his sample voice voluntarily, without any force or coercion.
C C No.03/09 45/61 4674 Accused Ravinder Kaur has also given her sample voice to the IO voluntarily during the course of investigation in presence of PW 8 Sh. A K Arun, who has stated as follows in this regard:
"I was called by CBI officers on 28.11.2008 to be an independent witness for taking sample voice of Ravinder Kaur. In CBI office the sample voice of Ravinder Kaur was taken in a digital recorder in my presence, in the presence of other independent witness Mr. Shanker........."
........... "Smt. Ravinder Kaur has given the sample voice out of her free will without any pressure from CBI official or any other person."
75 IO of this case, PW17 SI Yogesh Kumar has stated that he has sent sample voice of both the accused and questioned voice of both the accused to the CFSL for comparison.
76 PW3 Dr. Rajinder Singh Sr. Scientific Officer, Head of Physics and Forensic Voice identification Division, CFSL, New Delhi, has compared the questioned voice in recorded conversation with the sample voice of both the accused and confirmed that sample voices of both the accused tallied with the questioned voices in recorded conversation. He has proved his report Ex PW 2/A. Relevant portion of his statement, in this regard is as under:
C C No.03/09 46/61 47"I examined the question voice recording of Sh. Rajinder Bishnoi which is marked by and exhibit Q-1 (A), Q-2 and Q-3 (B) with respect to his specimen voice which is marked by me as Ex. S-1 (A) by auditory and voice spectrographic technique and I found that question voice recording of Sh. Rajinder Bishnoi marked Ex Q-1 (A) Q-2 (A) and Q-3 (B) tallied with his specimen voice which is marked by me as Ex. S-1 (A) in respect of their linguistic phonetic and voice spectrographic parameter. I also examined the question voice of Smt. Ravinder Kaur which is marked by me as Ex. Q-3 (A) with respect to her specimen voice which is marked by me as Ex. S-2 (A) in respect of their linguistic phonetic and voice spectrographic parameter by auditory and voice spectrographic technique and I found that question voice recording of Ravinder Kaur marked Ex Q-3 (A) tallied with her specimen voice which is marked by me as Ex. S-21 (A)."
77 This witness has been cross examined on behalf of accused Ravinder Kaur in detail, however nothing has such come out in his cross examination to disbelieve his statement. There is no reason on the record to disbelieve his report.
78 Voice of accused Rajinder Bishnoi in the recorded conversation has not been disputed by him which is clear from the following portion of the cross examination of TLO, Inspector Alok C C No.03/09 47/61 48 Kumar on his behalf.
" It is incorrect to suggest that the alleged conversation between the complainant and the accused persons was forcibly done while sitting in my office. It is incorrect to suggest that we got the forced conversation from the accused while siting in the office suited to the case."....
...... " It is incorrect to suggest that the alleged conversation between accused and Ravinder Kaur was forcibly taken by me in my office."
79 PW4 S. M N Vijayan, Nodal Officer, Tata Tele Services Ltd. has stated that on the request of CBI he had given the records of mobile no. 9210382666 which is in the name of Mr. Bhojpal according to the record of company. He has also proved the call details in respect of this number w.e.f. 20.6.2008 to 8.7.2008 which is collectively exhibited as Ex PW 4/B. 80 PW6 Captain Rakesh Bakshi , Bharti Airtel Ltd. has stated that on the request of CBI officer he had given the call detail of mobile phone no. 9918009108 in the name of Avtar Singh w.e.f. 20.6.2008 to 10.7.2008 which is Ex PW 6/A. 81 PW10 Ram Hari Singh Sub Divisional Engineer, MTNL C C No.03/09 48/61 49 office has stated that on the request of CBI officer he had given the call detail of mobile phone no. 9868944729 in the name of Rajinder Parshad which is Ex PW 10/B. 82 PW18 Ishrar Babu Executive Nodal Team, Voda Phone, ESSAR, Mobile Service Ltd. has stated that he had given the call detail of mobile phone no. 9999490485 and 9999845465 in the name of Jashminder and Inderjeet Singh. He has proved call details of mobile phone No. 9999845465w.e.f. 8.7.2008 to 11.7.2008 which is Ex PW 18/B1 to Ex PW 18/B8 and call details of mobile phone No. 9999490485 w.e.f. 19.6.2008 to 11.7.2008 which is Ex PW 18/C1 to Ex PW 18/C-25.
83 With regard to preparation of Transcription of recorded conversations between accused Rajinder Kumar and complainant Avtar Singh, during pre trap proceedings, on the spot and accused Rajinder Kumar and Ravinder Kaur , PW17 SI Yogesh Kumar, IO of this case, has deposed as follows:
"I have seen Transcription cum voice identification memo dated 7.10.2008 (pre Trap Verification) already Ex.PW3/J which was prepared in presence of independent witness and complainant and the same bears my signatures which I identify. The independent witness signed in my presence.
I have seen transcription cum voice identification memo dated 7.10.2008 (Conversation on the spot) already Ex. PW5/B which was C C No.03/09 49/61 50 prepared in presence of independent witness and complainant and the same bears my signatures at Point D which I identify. The independent witness signed in my presence.
I have seen Transcription cum voice identification memo dated 7.10.2008 (Conversation between Rajinder Bishnoi and Smt.Ravinder Kaur) already Ex.PW5/D which was prepared in presence of independent witness and the same bears my signatures at point C which I identify. The independent witness signed in my presence. I collected Call details in respect of mobile No. 9818009108 in the name of Sh. Avtar Singh from Nodal Officer of Bharti Airtel Ltd. vide Ex.PW6/A, customer application form Ex.PW6/B along with call details and call details in respect of mobile No. 9210382666 in the name of Mr.Bhoj Pal, the same was being used by the daughter of complainant Sh. Avtar Singh from Nodal Officer TATA Teleservices vide Ex.PW4/A, customer application form Ex.PW4/B alongwith call details. I also collected customer application as well as call details of mobile No. 9868944728 in the name of Rajinder Bishnoi vide Ex.PW10/A. I also collected customer application as well as call details of mobile No. 9999490485 and 9999855465 in the name of Jasvider Singh and Inderjit Singh respectively that was used by Ravinder Kaur in conversation with complainant, his daughters and Sh. Rajinder Bishnoi."C C No.03/09 50/61 51
84 Independent witness PW5 Ravi Shankar Saini with regard to preparation of transcription has stated as follows:
" I have seen transcription dt 7.1.08 . I identify my signatures at point A and that of Sh Avtar Singh at point B on all the 9 pages, as he signed in my presence when the transcription was prepared. This transaction is Ex PW5/C . The transaction of conversation recorded between accused Rajinder Bishnoi and Ravinder Kaur on mobile phone was also prepared in my presence and in the presence of other independent witness Shanker Miglani. I have seen D-20. This is a transcription cum voice identification memo dated 7.10.08. I identify my signature at point A and the same is now Ex PW5/D. I have also seen the transaction. I identify my signature at point A on all the eight pages of transcription and said transcription is now exhibited as Ex PW5/E."
85 With regard to preparation of transcription of recorded conversation complainant PW14 Avtar Singh has stated as follows:
" After 7.7.08 I was called by CBI officers in the CBI office. The pre trap cassette was played before me and in the presence of independent witness Shanker Miglani. I have seen Transcription dt. 7.10.08. This transcription was prepared after I identify the voice of Rajinder Kumar Bishnoi and that of my voice. My voice and voice of Rajinder Kumar Bishnoi has been marked as C C No.03/09 51/61 52 C And D in the Transcription. Transcription is now Ex PW14/A. I identify my signatures at point B on all the six pages. I have also seen the transcription cum voice Identification memo Ex PW3/J. I identify my signature at point B."
86 From the above discussion it is proved from judicial file that transcription of pre trap conversation between complainant Avtar Singh and accused Rajinder Singh dated 7.07.2008 Ex.PW14/A. Transcription of on the spot conversation between Avtar Singh and accused Rajinder Singh dated 7.07.2008 Ex.PW5/C, and transcription of conversation between accused Rajinder Bishnoi and Ms Ravinder Kaur dated 08.07.2008 Ex.PW5/E have been correctly prepared.
87 From the following portion of transcription Ex.PW14/A it is clear that accused Ravinder Kaur was harassing and threatening the complainant for the money:
C C No.03/09 52/61 53 C C No.03/09 53/61 5488 From the following portion of transcription of recorded conversation Ex.PW5/C it is proved that accused Ravinder Kaur was harassing and demanding Rs.60,000/- and threatening the complainant:
C C No.03/09 54/61 55 C C No.03/09 55/61 5689 From the following portion of transcription of recorded conversation Ex.PW5/E between accused Rajinder Bishnoi and accused Ravinder Kaur it is proved that accused Ravinder Kaur was demanding money from the complainant:
C C No.03/09 56/61 57 C C No.03/09 57/61 5890 It is correct that accused Ravinder Kaur is not a public servant. According to prosecution accused Ravinder Kaur , in conspiracy and connivance with accused Rajinder Bishnoi, who is a public servant, was demanding illegal gratification from complainant for the admission of his children in B Ed Course and was harassing and threatening him. In these circumstances, her prosecution in this case, alongwith public servant is legal.
91 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most C C No.03/09 58/61 59 impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section.
92 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. So again it is not necessary that all should have joined in the scheme from the first point; those who come in at a later stage are equally guilty.
93 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to C C No.03/09 59/61 60 prove agreement to commit conspiracy.
94 The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted plan to carryout an unlawful design / act . Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence.
95 In a case of criminal conspiracy any evidence available against any of the accused is admissible against all the accused.
96 In view of above discussion it is well proved from the evidence produced by the prosecution that accused Rajender Bishnoi who was working as Peon in GGSIP University Kashmere gate, by abusing his official position as a public servant, had obtained Rs.5000/- as illegal gratification from complainant Avtar Singh in connivance and conspiracy with his co-accused Smt Ravinder Kaur, as a pecuniary gain, which was also recovered from his conscious possession . Prosecution has also proved its case against accused Ravinder Kaur that she had demand and threatened the complainant that in case money will not be paid then admission of his children will be obstructed and they will be harassed, thus terrorized him in furtherance of criminal conspiracy with her co accused to pay the illegal gratification to her co-accused Rajender Bishnoi. In these C C No.03/09 60/61 61 circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against both the accused. Accused Rajender Bishnoi is convicted for the offence punishable U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and Ravinder Kaur is convicted for the offence punishable U/S 120-B IPC r/w Sec 13 (2) r/w 13 (1 (d) of P C Act, 1988 announced in open court on ( V. K. Maheshwari) this 1st day of October, 2010 SPECIAL JUDGE: DELHI C C No.03/09 61/61 62 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)-03 CBI) DELHI Case No. 03/09 RC No. RC-DAI-2008-A-0032 CBI Vs Rajender Bishnoi & Ors.
CBI Vs Rajender Prasad Bishnoi
S/O Surja Ram
Peon-cum-Cleaner,
Guru Gobind Singh
Indraprastha University,
Kashmere Gate, Dehi
2 Smt Ravinder Kaur
D/O S. Hira Singh
Accountant, Guru Nanak
College of Education,
Road No.75, Punjabi Bagh
New Delhi.
ORDER ON SENTENCE:
Vide my separate judgment dated 1.10.2010 Accused Rajender Bishnoi was convicted for the offence punishable U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and Ravinder Kaur was convicted for the offence punishable U/S 120-B IPC r/w Sec 13 (2) r/w 13 (1
(d) of P C Act, 1988 Arguments on sentence heard. It is argued on behalf of C C No.03/09 62/61 63 convict Rajender Bishnoi that he is a young man. He is not a previous convict. He is facing this trial since 2008. He is the sole bread earner of his family. Both, convict and wife are handicapped. He is having two school going daughters. He is having no other case against him except the present one. It is argued that in these circumstances, lenient view may be taken against him.
It is argued on behalf of convict Ravinder Kaur that she is a lady having one female child of two years only. She is not a previous convict. She is facing this trial since 2008. She is having no other case against her except the present one. She is a student of MBA and doing private service. She is chronic patient of asthma. It is argued that lenient view may be taken against her .
It is argued by Ld Sr PP for CBI that convicts are involved in a serious corruption case inspite of being a public servant. Convict No.1 is working as Peon in GGSIP University Kashmere gate. He had obtained Rs.5000/- as illegal gratification from complainant Avtar Singh in connivance and conspiracy with his co-accused Smt Ravinder Kaur, as a pecuniary gain, which was also recovered from his conscious possession. Both the convicts should be awarded severe punishment and heavy fine may also be imposed on them.
Corruption is a scourge that not only severally affects C C No.03/09 63/61 64 progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
Our Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana, (1997) 4 S.C.C. 14, has observed that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds C C No.03/09 64/61 65 around the conduct of the officer and gain notoriety much faster than the smoke.
Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ram Singh 2000 Crl. L.J. 1401 while dealing with the case of a Sub- Inspector, Excise & District Excise Officer, involved in a case under Section 13(1) (e) of the Act, inter-alia observed as follows:-
" Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."
Aforesaid sentiments expressed by the Apex court clearly shows that acts of corruption by " Public servants " deserve to be dealt with an iron hand and such public servants do not deserve any sympathy.
C C No.03/09 65/61 66After considering all the arguments raised before me, Convict Rajender Prasad Bishnoi is sentenced to undergo Four years RI along with a fine of Rs. 10,000/- (Rs. Ten Thousand ) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988.
Convict Ravinder Kaur is sentenced to undergo Three years RI along with a fine of Rs. 20,000/- (Rs.Twenty Thousand.) I D three months S I U/S 120-B IPC r/w Sec 13 (2) r/w 13 (1 (d) of P C Act, 1988 .
Benefit of Section 428 Cr P C be also given to accused Rajender Bishnoi, who remained in custody after his arrest in this case. A copy of judgment and this order on sentence be given to convicts free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 12th OCT. 2010 SPECIAL JUDGE: DELHI C C No.03/09 66/61