Delhi District Court
Cbi vs 1. Accused Gurbux Bhiryani S/O Sh. on 9 February, 2012
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No. 71 (A)/04
CBI Vs 1. Accused Gurbux Bhiryani s/o Sh.
Anand Ram Bhiryani, r/o 502 Exotique,
17th Road,, Khar, Bombay. (expired on
25.1.2010 and proceedings stands abated
against him vide order dt. 2.2.2012)
2. Sh. Ashok Kumar Puri s/o Sh. K Puri, r/o
51/2, old Rajinder Nagar,
New Delhi.
3. O.P Dabas s/o Randhir Singh, Sales Tax
Inspector, Vikas Bhawan, IP Estate, New
Delhi, r/o CP/23, Maurya Enclave, Pitam
Pura, New Delhi
4. Dr. Jolly Bansal s/o Sh. P C Bansal, r/o
E277, GKI, New Delhi.
5. Sh. Sushil Kumar s/o Sh. Pitambar Dass,
Nursing Orderly, LNJP Hospital, r/o J339,
Nand Nagri, Delhi.
R. C No. 1(A)/91ACU(II)/CBI/N.Delhi
Under Section 120B r/w Secs. 417, 468, 471 IPC
and U/s. 5(1)(d) r/w 5(2) of PC Act, 1947
Date of Institution of 24.12.92
C C No.71(A)/04 1/76
2
Case
Arguments concluded 23.1.2012
on
Date of Order 7.2.2012
Judgment
Facts of the case
During July/August, 1988, Gurbux Biryani was detained under COFEPOSAA and lodged in central Jail, Tihar. He was also facing trial for offences under the NDPS Act and Customs Act. 2 It is also alleged that accused persons entered into a criminal conspiracy in pursuance of the said criminal conspiracy, accused Gurbux Biryani conspired with some officials and doctors of LNJP Hospital and G B Pant Hospital in order to secure admission in the Nursing Home of G B Pant Hospital. In furtherance of the aforesaid conspiracy, accused fraudulently and dishonestly induced the hospital authorities to provide him nursing home facilities in G B Pant Hospital from 28th July, 1988 to 7th August, 1988. 3 Accused Gurbux Biryani complained to the A C M M, New Delhi that he was having serious ailment for which he was not getting proper treatment in the jail hospital. On the basis of the C C No.71(A)/04 2/76 3 complaint of accused Gurbux Biryani, A C M M, New Delhi passed order dated 5th August, 1988 directing Superintendent, Central Jail to get accused Gurbux Biryani medically examined. Dr. S Jaiswani, the then M.O., Central Jail, advised that the accused be sent to the L N J P.Hospital for check up. Accused Gurbux Biryani was sent to L N J P.Hospital for check up and returned to Central Jail, Tihar on 15th July, 1988. He was advised for further medical check up in O P D. Gurbux Biryani was again brought from Tihar Jail to L N J P.Hospital on 28th July, 1988.
4 On 28th July, 1988, in pursuance of the said criminal conspiracy between the accused persons, accused Gurbux Biryani was admitted to the Nursing Home of G B Pant Hospital without following the prescribed procedures for such admission. In order to secure admission of Gurbux Biryani, the accused used forged transfer summary allegedly issued from the unit of Dr. S N A Rizvi. Accused Gurbux Biryani was allotted room No.13 in ward No.11 which did not have the facility of attached bath room. On 29 th July, 1988, accused O P Dabas unauthorisedly changed the room of C C No.71(A)/04 3/76 4 accused and shifted him to room No.221 of Ward No.12 which was having better facilities of attached bath room and toilet, without the permission of the competent authority. It is alleged that accused Gurbux Biryani was examined by Dr. Rizvi on 3rd August, 1988 and 4th August, 1988 and it was found that he was not having any ailment. Dr. Rizvi recommended the discharge of accused Gurbux Biryani. Discharge Slip was prepared by Dr. Devesh Gupta. Accused Gurbux Biryani was discharged from G B Pant Hospital on 4.8.1988. He was shown was discharged from G B Pant Hospital by accused O P Dabas on 5.8.1988. He was again admitted to G B Pant Hospital on 5.8.1988 on the basis of false transfer summary allegedly issued by Dr. B. Ram of L N J P.Hospital. The accused was readmitted to G B Pant Hospital and shifted to room No.19 of Ward No.10 by accused O P Dabas.
5 According to prosecution Dr. Jolly Bansal and Ashok Kumar Puri, who is the brother in law of Gurbux Biryani, had approached accused O P Dabas and it was at their instance that accused O P Dabas had admitted accused Gurbux Biryani to G B Pant Hospital on both these occasions. Accused Sushil Kumar had C C No.71(A)/04 4/76 5 been working in L N J P. Hospital and was posted at the Reception of the Emergency Ward. He was maintaining the Central Admission Register and made entries about the admission of accused Gurbux Biryani in the Central Admission Register mentioning false address of the accused, though the accused had come from Central Jail. Accused Sushil Kumar had mentioned address of accused Gurbux Biryani as '502, Exotique, 17th Road, Khar, Bombay' but when he was admitted to G B Pant Hospital by O P Dabas accused, his address was mentioned as '51/1, Old Rajinder Nagar, New Delhi'. None of the accused gave the address of central Jail, Tihar from where accused Gurbux Biryani had been brought to the hospital. Accused A K Puri had filled up the preadmission form at G B Pant Hospital giving the address of Rajinder Nagar which was his own address.
6 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 14.12.1998 charge had been framed against all the accused for the offence punishable U/s 120B r/w Section 417, 471 of IPC & Section 5 (1) (d) r/w Sec. 5 (2) of P C Act, Charge for substantive offences U/s 417, 471 of IPC C C No.71(A)/04 5/76 6 against all the accused and u/s 5 (1) (d) r/w Sec. 5 (2) of P C Act against accused Sushil Kumar, O P Dabas and Dr. Jolly Bansal were also framed. All the accused pleaded not guilty to the charge and claimed trial, hence, this trial.
PROSECUTION EVEIDENCE.
7 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Smt. Yamini Sharma has proved Admission Register Ex PW1/A. PW2 Sh. Thankamma Joy has proved Attendance Register Ex PW2/A and his attendance entry of 5.8.888 Ex PW2/B. PW3 Mrs. Vidya Rawat has proved Admission Register of Emergency Ward Ex PW3/A. PW4 Sh. O P Jain has proved Admission Summary Ex PW4/A, Discharge Summary Ex PW4/B, No Due Slip dt. 5.8.88 Ex PW4/C, Recommendation/Checking Report Ex PW4/D and Admission Summary of Gurbux Biryani ExPW4E.
PW5 Sh. Subhash Chander has proved Register Ex PW5/1, entries at serial No. 9812198124 Ex PW5/2 and entry at serial No. C C No.71(A)/04 6/76 7 98119 Ex PW5/3.
PW6 Sh. Ram Phal has proved entry at serial No. 98278 Ex PW6/A. PW7 Sh. Ramesh Chander has proved photo copy of enquiry report dt.26.9.88 in two parts Ex PW7/A and Ex PW7/B. account opening form Ex.PW7/A, withdrawal form for Rs. 5000/ Ex.PW3/A, withdrawal form for Rs. 75000/ Ex.PW3/A3, credit vouchers Ex.PW7/B and Ex.PW7/C, debit voucher Ex.PW7/D. PW8 Sh. R.B Vashiusht has proved the ledger register of G B Pant Hospital Ex PW8/A, its page No. 203 Ex PW8/B, the T R No. 2017 Ex PW8/C, page No.236 Ex PW8/D and T R No. 2054 Ex PW8/E. PW9 Constable Ashok Kumar has proved duty chart Ex.PW9/A, Chitha Register Ex PW9/B and his statement Ex PW9/C. PW10 Sh. S K Aggarwal has proved his statement Ex.PW10/A. PW11 Sh. Devesh Gupta has proved case sheet of Gurbux Biryani Ex PW11/A and his report Ex PW11/B. C C No.71(A)/04 7/76 8 PW12Sh. B K Ram has proved his report Ex.PW12/A and his advise Ex PW12/B. PW13 Mrs. Aliamma George ha proved report book of ward No.10 of G B Pant Hospital Ex PW13/A, evening report dt. 5.8.88 Ex PW13/B, Dr. Call Book of Ward No.10 of G B Pant Hospital Ex PW13/C and its second page Ex PW13/D. PW14 Mrs. S. Sonkar has proved admission register of Ward No.12 of G B Pant Hospital Ex PW14/A. PW15 Dr. B M Makkar has proved abscond report Ex.PW15/A and his statement Ex PW15/B. PW16 Dr. S N A Rizvi has proved documents already proved by other witnesses.
PW17 Mrs. Neeru Gupta has proved Attendance Registerof July, 1988 Ex.PW17/A, his attendance of 5.8.88 Ex PW17/B and entries made at 11.20 A M Cr No. 463965 Ex PW17/C. PW18 Mrs. Ratya Khan has proved his attendance for dated 5.8.88 Ex PW18/A, entry at serial No.30 in the name of Gurbux Biryani Ex PW18/B and duplicate admission summary Ex PW18/C. PW19 Sh.Chander Prakash has proved OPD Register Ex C C No.71(A)/04 8/76 9 PW19/A and entries from serial No. 58818 to 60260 in OPD Register Ex PW19/B and entries from serial No. 63032 to 63490 in OPD Register Ex PW19/C. PW20 Sh. Sanjay Gupta has proved the documents already proved by other witness.
PW21 Dr. Balram Mishra has proved the documents already proved by other witness.
PW22Dr. S.Jeswani has deposed orally and has not proved any document.
PW23 Sh.Thakur Dass has deposed orally and has not proved any document.
PW24 Sh. Brijesh Kumar has proved Charge Register of LNJP Hospital Ex PW24/A and also proved the documents already proved by other witness.
PW25 Mrs. Sadhna Arora has proved attendance register Ex PW25/A, admission register Ex PW25/B and treatment book of ward No.11 of G B Pant Hospital Ex PW25/C. PW26 Brig. B N Kapur has proved seizure memo Ex PW26/A, photo copy of OPD Ex PW26/B, admission summary Ex C C No.71(A)/04 9/76 10 PW26/C and discharge slip of Army Hospital Ex PW26/D. PW27 Sh. Vijay Singh has proved file bearing No. F21(157)/Vig./JPJ/88 Ex PW27/A and his enquiry report Ex PW27/A1.
PW28 Sh. D K Mishra has proved sanction order Ex PW28/A. PW29Constable Raj Rattan has proved register Ex PW29/A, entry dt. 28.7.88 Ex PW29A1, Roznamacha Register Ex PW29/B, entry No.13 dt. 28.7.88 Ex PW29/B1, entry No.19 dt. 28.7.88 Ex PW29/B2, Inspection/Checking Register ex PW29/C, entry dt. 30.7.88 and 3.8.88 Ex PW29/C1 and C2, his statement Ex PW29D and duty register Ex PW29/E. PW30 Dr. Kishore Rajurkar has proved register of casualty Ex PW30/A, casualty card related to Gurbux Biryani Ex PW30/B and odd number casualty register of LNJP Hospital Ex PW30/C. PW31 Dr. Purshottam Lal has proved the documents already proved by other witnesses.
PW32 Dr. Mohd. Khalil Ullah has proved the documents already proved by other witnesses.
C C No.71(A)/04 10/76 11
PW33 dr. S D Choudhary has proved transfer summary dt. 28.7.88 Ex PW33/A. PW34 Sh. Krishan Mohan Sahni has proved sanction order Ex PW34/A. PW35Mrs. V. Micah has proved admission register of ward No.12 of G B Pant Hospital Ex PW35/A, Nurse Roll Call Book Ex PW35/2, , entries in point A Ex PW35/X and writing of Suman Ahuja Ex PW35/X1 and X2.
PW36 Sh.Kuldeep Singh has deposed orally and has not proved any document.
PW37 Mrs. Sheela Singh Yadav has proved Receipt Memo Ex PW37/A and also proved the documents already proved by the other witnesses.
PW38 Dr. Kailash Raizada has proved letter dt 14.12.89 Ex PW38/A, and his statement mark 38?B and also proved the documents already proved by the other witnesses.
PW39 Dr. Bipin Kumar Gupta has proved the documents already proved by the other witnesses.
PW40 Dr. Preeti Mehta has proved the documents already C C No.71(A)/04 11/76 12 proved by other witnesses.
PW41 Parshotam Lal has proved FIR E xPW41/A, seizure memo dt. 24.8.92 Ex PW41/B, seven documents Ex PW41/C and charge sheet Ex PW41/D. PW42 Dr. Prem Kumar Kakkar has proved letter dt. 29.11.88 Ex PW42/A and report book Ex PW42/B and also proved the document already proved by the other witness.
PW43 Sh. Jadunandan Prasad has proved receipt dt. 22.3.91 Ex PW43/A, receipt dt. 22.4.91 Ex PW43/B, and receipt memos Ex PW43/Cto Ex PW43/P2.
PW44 Smt. Teresa Chacko has proved entry Ex.PW44/A and also proved the documents already proved by the other witnesses.
PW45 ASI Mahesh Singh has proved roznamacha Ex.PW45/A and also proved the documents already proved by the other witnesses.
PW46 Sh. Rajinder Singh has proved the document already proved by the other witness.
PW47 Sh. Kanwar Pal Singh has proved the document already proved by the other witness.
C C No.71(A)/04 12/76 13
PW48 Sh. Chander Pal Singh has proved Register No.2, Station Daily Diary relating to book No. 8280 from 25.6.88 to 10.7.88 Ex.PW48/A, Station Daily Diary relating to book No. 8278 from 26.7.88 to 11.8.88 Ex.PW48/B, Station Daily Diary relating to book No. 8272 from 11.7.88 to 26.7.88 Ex.PW48/C and also proved the documents already proved by the other witnesses.
PW49 Sh.Sarmukh Singh Dhillon has proved the documents already proved by the other witnesses.
PW50 Dr. Anil Gurtoo has proved the document already proved by the other witness.
PW51 Sh. V.J.Anand has proved the documents already proved by the other witness.
PW52 Sh. Ranjeet Singh has proved his statement Ex.PW52/A. PW53 HC Rajbir Singh has proved the documents already proved by the other witness.
PW54 Dr. Komal Singh has proved the documents already proved by the other witness.
PW55 HC Umed Singh has proved the documents already C C No.71(A)/04 13/76 14 proved by the other witness.
DEFENCE OF ACCUSED AND DEFENCE EVIDENCE 8 Statements of all the accused U/s 313 Cr PC recorded wherein they have denied all the allegations made against them and evidence produced by the prosecution. They have stated that they are innocent & have been falsely implicated in this case. 9 Accused Sushil Kumar has stated that this case is in respect of Gurbax Biryani but the admission is in the name of Gurbax Singh. Both are the different persons. He never remained posted in Casualty of LNJP Hospital. He is innocent and has been falsely implicated in this case.
10 Dr. Jolly Bansal has stated that he was never posted as intern in Dr.B.K. Ram Unit. Moreover during that period he was intern in LNJP Hospital and they had no relation with GB Pant Hospital. He had never examined the patient Gurbux Biryani during his internship or at any point of time and he had never been posted in Dr.Rizvi's Unit. He had never taken the patient Gurbux Biryani to C C No.71(A)/04 14/76 15 GB Pant Hospital. No witness had confirmed the same or said about his presence at GB Pant Hospital's reception with the patient Gurbux Biryani. It is a matter of record that the mobile phone was first introduced in India on 31/07/1995 and before this there were no mobile phones in existence. He is innocent and has been falsely implicated in this case.
11 In their defence accused persons have examined DW1 L D Nirman and DW2 Sh. Anup Kumar who have deposed orally and have not proved any document.
PROSECUTION ARGUMENTS 12 Ld. Prosecutor Sh. Brajesh Shukla argued that prosecution has examined 55 witnesses in supports of its case. PW28 Sh.D K Mishra has proved the sanction for prosecution of accused Sushil Kumar Ex PW28/A. PW34 Sh. Kishan Mohan Sahni has proved sanction for the prosecution of accused O P Dabas Ex PW34/A. 13 For establishing the fact that Accused Gurbux Biryani was detained under COFEPOSA and lodged in Central Jail Tihar has been proved by PW45 ASI Mahesh Singh. He was sent to LNJP C C No.71(A)/04 15/76 16 Hospital on 14.7.88 and 28.7.88 has been proved by PW22 Dr. S Jeswani.
14 PW30 Dr. Kishore Rajurkar has proved casualty register Ex PW30/A according to which casualty card Ex PW30/B was issued to Gurbux Singh. According to the statement of PW40Dr. Preeti Mehra and PW42 Dr Prem Kumar Kakkar when the patient goes to OPD at first, OPD card is prepared, his name is mentioned in OPD register then he is examined either by House Surgeon or by a consultant. In case his admission is required, the patient is either sent to emergency or in the concerned ward. But in any case his name is entered in the Central Admission Register and admission form is issued mentioning the CR No. therein. Casualty register has been proved as Ex PW 30/C. 15 PW19 Sh. Chander Prakash and PW53 H C Sh. Rajveer Singh have stated that no entry in the name of Accused Gurbux Biryani has been made in OPD register on 5.8.88 and 28.7.88, however PW53 Raj Singh has taken accused Gurbux Biryani to OPD in LNJP Hospital, where a doctor who was quite young and having a small beard of medium height was approached by him and said C C No.71(A)/04 16/76 17 doctor examined Gurbux Biryani in the presence of PW53 Sh. J N Prashad PW43, IO of the case has unveiled, even by identifying, the fact that the doctor who was quite young and having small beard of medium height was doctor Jolly Bansal which remained unrebutted/uncracked as no defence witness was produced by accused on this issue. Since Dr. Jolly Bansal was not a public servant at the time of taking cognizance, hence no sanction order as per requirement of Section 19 of P C Act was needed. PW43 has fixed accused Jolly Bansal very emphatically as during investigation he contacted all most all the doctors of his Unit for unearthing the truth. He found that Dr. Jolly Bansal was instrumental in getting the transfer summary prepared falsely showing his transfer from LNJP Hospital to G B Pant Hospital and he also took him to G B Pant Hospital though it was not his duty.
16 Entry dt. 28.7.88 and 5.8.88 in Ex PW 24/A i.e. charge register of LNJP Hospital contains unauthorised signature of Sushil Kumar who was working in the reception counter as the incharge of the unit was supposed to sign the transfer summary. During relevant time PW16 Dr. S N A. Rizvi was the incharge of the Unit where C C No.71(A)/04 17/76 18 Gurbux Biryani was admitted and he has very categorically stated that transfer summary of LNJP Hospital was neither prepared by him nor signed by him.
17 According to PW11 Dr.Devesh Gupta, patient Gurbux Biryani was in normal condition and PW10 Sh.SK Aggarwal has deposed that on 28.7.88 Gurbux Biryani was not given any medicine. PW4 Dr. O P Jain, PW24 Sh. Brijesh Kumar, PW18Mrs. Ratya Khan and PW26 Sh. B N Kapoor have supported the prosecution case to the extent that accused Gurbux Biryani was extended exemplary illegal support on 5.8.88 and 28.7.88, having active connivance of accused Sushil Kumar and Dr. Jolly Bansal. PW15 B M Makkar, PW13 Mrs. Aliamma George , PW47 Sh. Kunwar Pal Singh and PW9 constable Ashok Kumar have also deposed in favour of prosecution connecting the element of offence committed by Gurbux Biryani which was practically not possible without the assistance of his associates coaccused persons. DEFENCE ARGUMETNS 18 Ld Defence counsel have addressed their oral arguments in short and have also filed detailed written submissions. C C No.71(A)/04 18/76 19 In nutshell it is argued on behalf of all the accused that they are innocent . They have been falsely implicated in this case. There is no evidence against them on the record . Prosecution has utterly failed to prove any conspiracy hatched by the accused in connivance with each other .
19 All the accused have filed their detailed written submission which are on the file hence on account of brevity I am not incorporating their arguments in this judgment . SANCTION AND PUBLIC SERVANT:
20 It is undisputed fact that accused Sushil Kumar was working as Nursing Orderly, LNJP Hospital and O P Dabas was working as Reception Assistant in G B Pant Hospital during the year 1988 i.e. at the relevant time, therefore they were public servants. Even this fact has not been disputed on their behalf during the trial and at the time of addressing final arguments, thus it is proved beyond reasonable doubt on the file that at the relevant time both these accused were public servants.
21 PW28 Sh D K Mishra who had accorded sanction for the prosecution of accused Sushil Kumar appeared in the witness box C C No.71(A)/04 19/76 20 as PW 28. He has deposed that in the year 1992 he was posted as Dy, Medical Superintendent (Admn.)/Vigilance Officer in LNJP Hospital, New Delhi and was competent to remove Nursing Orderly being Dy. Medical Superintendent (Admn.). He had accorded sanction for the prosecution of accused Sushil Kumar vide sanction order Ex PW28/A, after carefully examining the material produced before him with regard to the sanction.
22 This witness has been cross examined on behalf of accused Sushil Kumar wherein he has stated that he had examined the CBI investigation report, evidence as well as registers and documents, however he could not specifically tell about the registers which he had perused. After examining the record he found forging of the documents of Central Administration Register of LNJP Hospital. He denied that sanction order was not prepared on his dictation or that it was verbatim copy of the draft proforma sent by CBI.
23 From the above quoted cross examination of PW 28 it is clear that nothing such has come out in his cross examination to disbelieve his statement. I have also gone through Ex. PW28/A the C C No.71(A)/04 20/76 21 sanction order, for the prosecution of accused Sushil Kumar which is running in four sheets. It is a detailed order having all material particulars of the case.
24 PW34 Sh. Krishan Mohan Sahni has deposed that in the year 1992 he was working as Commissioner, Sales Tax, Delhi Administration, New Delhi. Being Commissioner, Sales Tax he was competent to remove the official at the level of Assistant. The file of the present case alongwith the relevant documents was received by him from the CBI for according sanction for prosecution of accused O P Dabas who was working as an Assistant in Sales Tax Department in the year 1992. He examined the material on record, applied his mind and granted sanction for prosecution of accused O P Dabas vide sanction order Ex PW34/A. 25 This witness has been cross examined on behalf of accused O P Dabas wherein he had stated that he is personally not familiar with the procedure of transfer of patients from LNJP Hospital to GB Pant Hospital. While he was working as Commissioner, Sales Tax, LNJP and GB Pant Hospital were not C C No.71(A)/04 21/76 22 under his control. He did not recollect if he had any discussion with any staff member of above stated two hospitals before according the sanction because it was an old matter. He could not give the details of the documents produced before him by the CBI. He has denied that the sanction has been given by him mechanically without application of mind. He denied that he was not competent to accord the sanction.
26 From the above quoted cross examination of PW 34 it is clear that nothing such has come out in his cross examination to disbelieve his statement. I have also gone through Ex. PW34/A the sanction order, for the prosecution of accused O P Dabas which is running in four sheets. It is a detailed order having all material particulars of the case.
27 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 C C No.71(A)/04 22/76 23 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
28 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Primafacie, C C No.71(A)/04 23/76 24 the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
29 In view of above discussion, this Court is of opinion that prosecution has proved valid sanction for the prosecution of accused Sushil Kumar and O P Dabas.
ROLE OF EACH ACCUSED ACCORDING TO PROSECUTION GURBUX BIRYANI 30 During July/August, 1988, Gurbax Biryani was detained under COFEPOSA and lodged in Central Jail, Tihar. On the direction of ACMM New Delhi Accused Gurbax Biryani was sent to LNJP Hospital on 14.7.88 and 28.7.88 . According to prosecution accused Gurbax Biryani conspired with A2 Ashok Kumar Puri @ Billa, A3, O.P. Dabas, Receptionist of GB Pant Hospital, Dr. Jolly Bansal and Sushil Kumar in order to secure admission in the Nursing Home of G.B. Pant Hospital illegally.
C C No.71(A)/04 24/76 25 31 During trial when prosecution evidence was being recorded, accused Gurbux Biryani expired on 25.1.2010 and after his death verification by CBI, proceedings against him stand abated vide order dt. 2.2.2012.
O P DABAS 32 Accused O P Dabas was working as Reception Assistant in GB Pant Hospital during the year 1988 . As assistant, on the reception counter, it was his duty, to make booking of patient in the book register maintained by him. He neither verified the genuineness of transfer summary nor looked in the permission of the Director but fraudulently / dishonestly admitted Gurbux Biryani in nursing home of G B Pant hospital and allotted him room No.19 in Ward No.11 on the basis of forged transfer summary unauthorizedly. O P Dabas inspite of the fact that large number of patients with various serious ailment were waiting for their admission, choose to admit Gurbux Biryani unauthorizedly . He shifted him from Room No.19 Ward No 11 to Room No 221 Ward No. 12 having better facilities of attached bathroom and toilet on 29.7.88 without proper order of competent authority. Dr Rizvi on 4.8.88 remarked that Gurbux Biryani was a C C No.71(A)/04 25/76 26 malinger and fit to discharge but O P Dabas has not discharged Mr Biryani on 4.8.88 . O P Dabas had showed him discharged on 5.8.88 in the afternoon in the official record and issue no due certificate. He had unauthorizedly permitted him to retain the room till 3.00 O'clock on 5.8.88. Accused O P Dabas had not verified the genuineness of the signatures on the transfer summary dt. 5.8.88 purported to have been issued by the unit of Dr. B K Ram of LNJP Hospital inspite of the instructions given to him by Dr. Rizvi. He dishonestly and fraudulently informed the then M. S Dr. O P Jain who was on casual leave on 5.8.88 at his residence on telephone that a serious patient was to be admitted in the Nursing Home who had been brought by a doctor of LNJP Hospital Thus, he had fraudulently obtained oral permission of Dr. O P Jain and admitted Gurbux Biryani again in the Nursing Home of G B Pant Hospital and allotted room No.19 in ward No.10. Gurbux Biryani did not leave the Nursing Home of G B Pant Hospital on 5.8.88 rather accused O P Dabas transferred him to room No.19 ward No.10. Accused O P Dabas fraudulently and dishonestly entered the name of one Brig. B N Kapoor in the admission register showing him as admitted in room C C No.71(A)/04 26/76 27 no. 221, ward no.12 at 1.10 PM in order to make it appear as if Sh. Gurbux Biryani had already left that room but in fact Brig. Kapoor was never admitted in that room at all.
SUSHIL KUMAR 33 Accused Sushil Kumar was working as Nursing Orderly during the year 1988 in LNJP Hospital. While working as Nursing Orderly he was assigned duties of making entries in Central Admission Register for admission of patients in LNJP Hospital. On 28.7.88 accused Sushil Kumar was on his duty at LNJP Hospital for making entries in Central Admission Register. On that day accused Gurbux Biryani , who was a COFEPOSA detenue was brought from Tihar Jail to LNJP Hospital for his treatment by escort party. There was no entry either in the register of OPD or in the register of emergency ward about his treatment or any advice of his admission by any concerned doctor but Shri Sushil Kumar dishonestly and fraudulently made an entry in the Central Admission Register about the admission of Sh. Gurbux Biryani without any prescription. According to prosecution name of Gurbux Biryani falsely mentioned in the Central Admission Register of LNJP Hospital at Cr C C No.71(A)/04 27/76 28 No. 463965 by Sh. Sushil Kumar on 28.7.88. On the basis of above referred false entry in the Central Admission Register a forged transfer summary dt. 28.7.88 was prepared showing the admission of Gurbux Biryani in LNJP Hospital in the Unit of Dr. S N A Rizvi for getting him transferred to G B Pant Nursing Home. Dr. S N A Rizvi attended Gurbux Biryani on 3.8.88 and 4.8.88 and observed that transfer summary has forged signatures and patient was not suffering from any disease and is malingering. He had advised to discharge the patient from Nursing Home and instructed O P Dabas not to admit any patient without confirming the signatures on the transfer summary. Gurbux Biryani was shown discharged on 5.8.88. 34 According to prosecution accused Sushil Kumar fraudulently and dishonestly again made an entry in Central Admission Register vide CRNo. 465910 on 5.8.88 at 11.30 A M showing admission of Gurbux Biryani in LNJP Hospital in the unit of Dr. B K Ram. On the basis of above referred false entry in the Central Admission Register made by Sh. Sushil Kumar another forged transfer summary dt. 5.8.88 was prepared and got counter signed from Additional M S Dr. Sheela Munzani showing transfer of C C No.71(A)/04 28/76 29 Gurbux Biryani from LNJP Hospital to G B Pant Hospital. Dr. B M Makkar visited G B Pant Nursing Home room No.19 ward No.10 at 7.10 PM on 5.8.88 and found the patient missing from the room. He also found the transfer summary on the basis of which he was admitted, a forged one and did not bear genuine signature of Dr. B K Ram and reported the matter to Dr. B K Ram who visited Nursing Home on 6.8.88 at 10.15 AM and examined the patient Gurbux Biryani . Dr. B K Ram also observed that Gurbux Biryani was not suffering from any medical problem, therefore, recommended his immediate discharge, accordingly Gurbux Biryani was discharged on 7.8.88.
ASHOK PURI @ BILLA 35 Ashok Puri @ Billa s/o Sh. K Puri, r/o 51/2, Old Rajinder Nagar, New Delhi was brother in law of accused Gurbux Biryani . According to prosecution Ashok Puri in connivance with Dr. Jolly Bansal and O P Dabas and Sh. Sushil Kumar got Gurbux Biryani admitted illegally twice, when Gurbux Biryani was actually not suffering from any ailment. According to prosecution Ashok Puri firstly in connivance with Dr. Jolly Bansal, O P Dabas and Sh. Sushil C C No.71(A)/04 29/76 30 Kumar got Gurbux Biryani admitted in G B Pant Nursing Home , room No.13, Ward No.11 on the basis of forged transfer summary dt. 28.7.88 who was his brother in law. Secondly, Ashok Puri in connivance with Dr. Jolly Bansal, O P Dabas and Sh. Sushil Kumar got Gurbux Biryani admitted in G B Pant Nursing Home , room No. 19, Ward No.10 on the basis of forged transfer summary dt. 5.8.88. He had also given his address at the time of alleged admission of Gurbux Biryani .
DR. JOLLY BANSAL 36 According to prosecution Dr. Jolly Bansal was working as Interant after completing his MBBS in LNJP Hospital. He in connivance and conspiracy with Ashok Puri, O P Dabas and Sh. Sushil Kumar got prepared false/ forged transfer summary dt. 28.7.88 and 5.8.88 and got admitted accused Gurbux Biryani , the then a COFEPOSA Detenue in Nursing Home of G B Pant Hospital twice on 28.7.88 and 5.8.88.
PROCEDURE FOR ADMISSION IN LNJP HOSPITAL 37 PW40 Dr. Preeti Mehra and PW42 Dr. Prem Kakkar has deposed about the procedure of admission of patient in LNJP C C No.71(A)/04 30/76 31 Hospital According to them procedure for admission of a patient through the casualty ward is as under:
(A) When a patient comes to the hospital and is taken to the Casualty ward, he is examined by the Casualty MO. (CMO) who authorizes to admit the patient. Name of the patient is recorded in the Casualty Register by the CMO, after which, he is sent to the ward of the concerned faculty or the Emergency Ward.
(B)The name of the patient is entered in the Central Admission Register and admission form is issued mentioning the serial number of the Central Admission Register Known as C.R. No. The other way of getting admission of a patient is through OPD by following procedure as detailed below: A When the patient goes to the OPD he gets himself registered in the OPD and is issued an OPD card. His name etc. is mentioned in the OPD Register.
B. The patient is examined in the OPD either by the House Surgeon or an intern or a consultant.
C If admission is required, the patient is sent either to the Emergency or the concerned ward. In any case, his name is entered in the Central Admission Register and an admission form is issued mentioning thereon the C.R. No. C C No.71(A)/04 31/76 32 EVIDENCE AGAINST ACCUSED O P DABAS 38 PW 5 Shri Subhash Chander who was working in the Reception counter in G.B. Pant Hospital in July, 1988 has proved that accused O P Dabas was Incharge of Reception Counter in July, 1988. Relevant portion of his statement is as under:
" During my working period Mr. O.P. Dabas accused present in Court was incharge of the Reception counter who subsequently was posted to Sales tax department."
39 PW1 Smt. Yamini Sharma relying upon the Admission Register Ex PW1/A has proved that accused Gurbux Biryani was admitted in the Nursing Home of G B Pant Hospital on 28.7.88 at 12 noon. Relevant portion of her statement in this regard is as under:
" That register is Ex PW1/A which contains the entries of admission made on 28.7.88 in the Nursing Home of G B Pant Hospital. As per this register one patient by the name of Gurbax Biryani was admitted in our Nursing Home at 12 Noon on 28.7.88. Entry to that effect is at serial No. 98110. In this entry name of the doctor on whose recommendation Gurbax Biryani was admitted is not mentioned."
40 Accused Ashok Puri @ Billa was in touch with accused C C No.71(A)/04 32/76 33 O P Dabas even prior to the admission of Gurbux Biryani in the Nursing Home of G B Pant Hospital on 28.7.88, has been proved by PW36 Shri Kuldeep Singh . Relevant portion of his statement as under:
"I got my daughter admitted on26.4.88. She was admitted in room No. 207 ward No.12. She remained admitted till 27.8.88. I used to deposit room charges at Reception Office. As my child remained admitted for about four months I got acquainted with the patients admitted in nearby rooms, however, I cannot tell their names now as it is an old matter. One patient who was admitted in room No. 218 was titled Malhotra. As he used to come to his child he also talked with my child and me . On reception one person named Puri met me alongwith Mr. Malhotra. Mr. Malhotra had told that he want to get Mr. Puri's relative admitted in the Hospital. Mr. Malhotra met me twice or three on the reception. "
41 In his cross examination this witness has deposed as follows;
"I met Mr. Dabas at the Reception, however I cannot identify him as it is an old matter."
42 PW4 Dr. O P Jain, the then Medical Superintendent has deposed that accused O P Dabas was working as Reception Assistant in GB Pant Hospital on 28.7.88 . He has deposed about the procedure of allotment of room in the Nursing Home of G B Pant C C No.71(A)/04 33/76 34 Hospital and identified handwriting and signature of accused Om Prakash Dabas. He has also deposed that readmission of a patient once discharged was not possible unless the case was serious. He has also deposed that on 5.8.88 he was on leave when he received a telephonic call at his residence from O P Dabas Receptionist who told him that doctors from LNJP Hospital are forcing him to admit a patient in the hospital as his condition was very serious. Relevant portion of his statement is as under:
"Rooms are allotted on the orders of the director and in his absence M S allots the rooms. The patients who transfer from LNJP Hospital brought with him the case sheets and duly forwarded by Addl. Medical Superintendent, LNJP Hospital . One patient Gurbux Biryani was admitted on 28.7.88 by admission summary Ex PW 4/A in which I had signed at point A. The signature at point B of Ex PW 4/A is of the then Receptionist Shri Om Parkash Dabas and the handwriting at point C is also of Om Parkash Dabas. I do not remember that on whose order the room was shifted. The facilities in ward No.12 are good in comparison to ward No.11. The patient was discharge on 5.8.88. The discharge summary dated 3.8.88 bears signature of Dr Divesh Gupta at point A of Ex PW4/B. No due slip dated 5.8.88 which is Ex PW4/C bears the signatures of receptionist assistant G B Pant Hospital Shri Om Parkash Dabas. The patient was C C No.71(A)/04 34/76 35 discharged on the recommendation of the doctor under whose unit the treatment is undergone. The report Ex PW4/D is recommendation/ checking report of Dr S N Rizvi dated 3.8.1988 and at point B the report of Dr S N Rizvi is of dated 4.8.88. After perusal of these medical records and as per the report of Dr Rizvi I can say that the patient was malinger. The document Ex PW4/E is admission summary of patient Gurbux Biryani who was admitted on 5.8.88 and discharged on 7.8.88. The second admission was made on the recommendation of Dr. V K Ram Unit of LNJP hospital . Normally it is not possible that a patient who is discharged from the hospital is again being admitted to on the same day but in serious cases it is possible that he may be admitted again on the same day. I was on leave and I received a telephone at my house from the reception of G .B Pant hospital and namely this telephone was made by Shri Om Parkash Dabas then Receptionist . The Receptionist Shri O P Dabas told me that some of the doctors from LNJP hospital are collected at reception and they are forcing him to admit the patient in the hospital as his condition is very serious. I know Shri O P Dabas who is present in the Court and correctly identify by the witness. Ex PW1/A is the admission register of G B Pant Hospital and vide entry No.98119 patient Gurbux Biryani was admitted on 28.7.88 and again vide entry No.98278 Shri Gurbux Biryani was admitted on 5.8.88."
43 In his cross examination he has deposed as follows:
" I cannot say who has recommended the admission of C C No.71(A)/04 35/76 36 Gurbux Biryani as admission summary Ex PW4/E and Ex PW4/A do not clarify about the recommendation by whom it was done."
44 Actually accused Gurbux Biryani was not suffering from any such disease which requires his admission in the Nursing Home of G B Pant Hospital . He was not given any medicine. In this regard, PW 10 Shri S.K. Aggarwal who was medical officer in G.B. Pant Hospital has deposed as follows:
"Gurbax Biryani was admitted on 28.7.88 and after seeing the patient record Ex. PW 4/D, I say that no medicine was given to patient."
45 PW11 Dr. Devesh Gupta has also confirmed this fact that accused Gurbux Biryani actually was not suffering from any disease actually which requires his admission in Nursing Home of G B Pant Hospital . In this regard, PW11 Dr. Devesh Gupta, who was posted as CMO in G.B. Pant Hospital has deposed as follows:
" After seeing the case sheet of Gurbax Biryani which is Ex. PW 11/A which bears my signature at point A and report is at point B of dated 30.7.88. According to my report which is at Ex. PW 11/A the condition of patient Gurbax Biryani was normal. I used to visit patient Gurbax Biryani for his check up. I also examined the patient Gurbax Biryani on 3.8.88 and my report is Ex. PW 11/B. which bears my signature at point A. Accordingly to this report Ex.C C No.71(A)/04 36/76 37
PW 11/B the condition of patient was normal. A call was sent to Dr. S.N.A Rizvi on 3.8.88, as per my report at point B of Ex. PW 11/B. The request was noted by Dr. Rizvi. I identify his signatures which are at point C of Ex PW 11/B. My report dt. 4.8.88 at point D of Ex PW 11/B which also bears my signatures. I have mentioned in my report that the patient was advised by Dr. Rizvi to discharge him on 3.8.88 while patient Gurbax Biryani is not willing to leave the hospital/Nursing Home and complaining the chest pain and again called for the opinion of Dr. Rizvi. Dr. Rizvi came on 4.8.88 and examined the patient and given his report which is at point B of Ex. PW 4/D and after advise of Dr. Rizvi dated 3.8.88, I prepared discharge summary regarding patient of Gurbax Biryani which is Ex. PW 4/B."
46 Dr. S N A Rizvi, Incharge of the Unit has also confirmed that Gurbux Biryani was a malinger . PW 16 Dr. S.N.A. Rizvi Incharge of Unit from which A1 transferred to G.B. Hospital has deposed as follows:
"I received a call on 3.8.88 from G.B. Pant Hospital for check up of patient who was admitted as per Ex. PW 4/A. On receiving call I visited G B Pant Hospital and checked p;atient Gurbux Biryani and made the endorsement which is Ex PW 4/D. It bears my signature at point F. No medicine was prescribed except Dapsodiaz as a drug for cicatrice Problem and there was no medical problem noticed by me in the patient and so I had advised him discharge also.C C No.71(A)/04 37/76 38
Next day I again received a call from G.B. pant Hospital for examining same patient by the name of Gurbax Biryani...I then again went to G B Pant Hospital and examined that patient and my endorsement is at point B on Ex PW 4/D. I advised discharge of the patient. I can identify that patient. The witness has correctly identified Gurbux Biryani present in court.."
47 In his cross examination he has further deposed as follows:
"I had come to know during my visit to G B Pant Hospital that Gurbux Biryani has been referred from jail. Normally patient's case history is received from the jail doctor by the Addl. Medical Superintendent or Deputy Medical Superintendent. I did not make any enquiry if any case history of Gurbux Biryani from the jail doctor was received when he was referred or not."
48 In his cross examination he has further deposed as follows:
"I had examined Gurbux Biryani clinically thoroughly and then found that there was no medical problem with him. "
49 Dr. S N A Rizvi on Ex PW 4/D on 4.8.88 has also given a note that patient Gurbux Biryani is a malinger. Relevant note dt. 4.8.88 on Ex PW 4/D is as under;
"Patient is malinger. He is fit to be discharged. Ask the jail authority to take the patient back to jail."C C No.71(A)/04 38/76 39
50 There is evidence on the file of several witnesses who had gone to attend accused Gurbux Biryani for obtaining sample of blood urine etc. that he was not available in his room. PW 14 Mrs. S. Sonkar, in this regard has deposed as follows:
" Gurbux Biryani was walking here and there even outside of room. He was also receiving telephone calls. I also received one call from Bombay from his wife who told me to call Gurbax Biryani as she had an urgent work. I called the patient on telephone and patient talked with his wife. When this patient was staying in our hospital one lady was also staying with him."
51 Gurbax Biryani was not discharged on 4.8.88 and falsely shown as discharged on 5.8.88 by Shri O.P. Dabas who received payment from A.K. Puri (A2) who used to come to G.B. Pant Hospital to meet A1 Gurbax Biryani. A3 Dabas also issued No due certificate on 5.8.88 but unauthorisedly mentioned therein stay permission upto 3, 0 clock. A1 Gurbax Biryani was shown discharged from G.B. Pant Hospital on 5.8.88 afternoon by Shri O.P. Dabas (A3) but immediately after his discharge from nursing home Shri Gurbax Biryani again fraudulently managed a false/forged transfer summary dated 5.8.88 on the C C No.71(A)/04 39/76 40 basis of false/forged entry dated 5.8.88 at 11.30 AM in the Central Admission Register of LNJP Hospital. On the basis of the said forged transfer summary dated 5.8.88 he got himself readmitted in G.B. Pant Nursing Home at 12.50 PM on 5.8.88 and was shifted to room No. 19 of ward No. 10 at 2.10 Pm Shri O.P. Dabas falsely made entry in G.B. pant Nursing home register showing admission of Brig. B.N. Kapoor in Room No. 221 of ward No. 12 at 1.10 PM on 5.8.88 whereas this room was never given to Brig. Kapoor by Shri Dabas.
52 PW18 Mrs. Riyat Khan has proved the C R entry No. 465910 at 11.30 AM dt. 5.8.88 with regard to admission of accused Gurbux s/o Anand Ram in emergency of LNJP Hospital which is in her own handwriting. Relevant portion of her statement is as under:
"My attendance for date 5.8.88 is marked as per Ex PW 18/A. Ex PW 3/A is the ward Admission Register of Emergency of LNJP Hospital. The entry at serialno.30 in the name of Gurbux s/o Anand Ram is in my handwriting and the same is Ex PW 18/B. This entry is shown to be entered at 11.30 AM and the CR No. 465910. The admission summary which is shown to me today. It is in duplicate C C No.71(A)/04 40/76 41 and bears the CR No. 465910 which is in the name of Gurbux in case original admission summary is misplaced or is taken by patient then a duplicate admission summary is prepared. The duplicate admission summary is Ex PW 18/C."
53 On 5.8.88 accused Gurbux Biryani was readmitted in LNJP Hospital vide entry No.98278 dt. 5.8.88 Ex PW 6/1 in Admission Register at 12.50 PM. This entry has been made by PW6 Ram Phal on the direction of accused O P Dabas. PW 6 Shri Ram Phal who was working as Information Assistant in the G.B. Pant Hospital from 7.11.83 August 1990 has deposed as follows:
"I have seen resister Ex. PW 5/1 and entry No. 98278 dated 5.8.88. This entry is in my hand which I identify and the same is Ex. PW 6/1. This entry was made by me on the direction of O.P. Dabas accused present in court."
54 In his cross examination he has stated as follows:
"Without seeing the transfer summary I cannot say who out of these three had signed the transfer entry regarding the patient at serial No.98278. There is no entry made in the register to the effect that I had made the entry on the instructions of accused O P Dabas at serial No.98278. At this stage transfer summary in respect of patient Gurbux Biryani is shown to the witness and on seeing the same he says that it is signed by the Medical Superintendent of LNJP Hospital at point A and Medical Superintendent of G B Pant Hospital at point B. The transfer summary is Ex PW 6/P1. At point C on this document signature of accused O P Dabas C C No.71(A)/04 41/76 42 appear."
55 Accused O P Dabas vide his noting on Transfer summary Ex PW 6/P1 under his signatures at point C has transferred the patient Gurbux Biryani to ward No.10, room No.19 on the pretext "on permission M/S". His noting is as under;
"This patient is transferred to G B Pant Hospital Nursing Home, ward No.10, room No.19.
On Permission M/S Sd/ O P Dabas 5.8.88"
56 Infact, no permission of M. S. for transferring the patient to Ward No.10, room No.19 is available. 57 Prosecution has produced Brig. B N Kapoor in the witness box as PW26. Relevant portion of his statement is as under:
"I retired from Army in 1986. During 1988 in the month of May, I had Angina problem. I was referred by the Military hospital to G B Pant Hospital for Angiography. i was referred to Dr. K K Sethi. I met Dr. K K Sethi and I was given date of 5th August for Angiography . I handed over certain documents to CBI vide seizure memo Ex PW 26/A which is signed by me at point A. i have brought the original OPD. Photo copy of the same is Ex PW 26/B, which I had given to the CBI. (Original seen & returned). I have also brought the original Admission Summary. Photo copy of the same is Ex PW 26/C.(Original seen & returned). I have also C C No.71(A)/04 42/76 43 brought the original Discharge Slip. Photo copy of the same is Ex PW 26/D.(Original seen & returned).
My Angiography was done on 5th August. ; I requested for a room. Dr. Sethi recommended for allotment of a room for rest and recuperation, as catheters had been placed in my artery for taking the photograph. I sent my daughter to the reception for getting the allotment of the room. However, she could not get any room and was told there were other emergency patients. We then contacted Army Hospital from where an ambulance was sent and I was shifted to Army Hospital in the evening of 5th August. I was discharged from Army Hospital on 6th August."
58 PW 3 Mrs. Vidya Rawat after perusal of Admission register (Ex PW 3/A) of Emergency Ward of LNJP Hospital has deposed as follows:
"As per this admission register on 5.8.88 one patient by the name of Gurbax Biryani was admitted in the emergency ward and entry to that effect was made in the said register and the same entry is at Serial No. 377 and this entry is marked X. As per this entry Gurbax Biryani was admitted at 11.30 AM on the advise of Dr. B.K. Ram. PW 18 Mrs. Ratya Khan, Staff Nurse, LNJP Hospital deposed that "Ex. PW 3/A is the ward Admission register of emergency of LNJP Hospital . The entry at serial No. 30 in the name of Gurbax s/o Anand Ram is in my handwriting and the same is Ex. PW 18/B. This entry is shown to be entered at 11.30 AM and the Cr. No. 465910." She has also deposed that none of the accused present in court today were admitted in the C C No.71(A)/04 43/76 44 Emergency ward on 5.8.88.
59 PW 15 Dr. B.M. Makkar has deposed as follows:
" Ex. PW 6/C is shown to me. This transfer summary belongs to the unit of Shri B.K. Ram. The CR. No. is 465910. This transfer summary is regarding the admission of patient Gurbax Biryani. This transfer summary is not signed by me. It is also not in my handwriting. This also does not bear the signature of D.r B.K. Ram the then our unit incharge. This transfer summary is also not prepared or signed by any doctor posted at that time with me under the unit of Dr. B.K. Ram.
I received a call from G.B.Pant Hospital for the checkup of a patient Gurbax Biryani on 5.8.88 in evening. I visited G.B. Pant Hospital to check up the patient Shri Gurbax Biryani but the patient was not in his room at that time. I remained about ten minutes in the room but the patient did not turn up. I confirmed about the patient from the sister concern who told me that he was gone down stairs. I made my endorsement of Ex. PW 12/A at point A, which is signed by me. On the next morning I alongwith unit incharge Dr. B.K. Ram visited the patient in G.B. Pant Hospital. I made the endorsement which is at point B of Ex. PW 12/A. we checked up the position of the patient who was normal and accordingly advise for his discharge.
I came back in LNJP Hospital and checked up with the Centre Admission Counter and from there came to know that one patient by the name of Gurbax Biryani had been shown to have been admitted in Emergency Medical Ward. Then I came to Emergency Medical ward and came to know that one patient C C No.71(A)/04 44/76 45 was shown to have been admitted by the name of Gurbax Biryani but no patient by that name was found in the Emergency ward. Some doctor filled up abscond form. That form is Ex 15/A."
60 Prosecution has produced Dr. B K Ram in the witness box as PW12 who has specifically deposed that transfer summary does not bear his signatures. Relevant portion of his statement is as under:
"The admission in G B Pant Hospital used to be done on the transfer summary which were prepared by the Residents of the Unit of LNJP itself. The transfer summary prepared by ;the Senior Resident of the Unit and normally it was brought to Unit Incharge for his signature and then it was to be counter signed by M S or Addl. M S., Document transfer summary Ex PW 6/P is shown to me and after seeing that I say that this document does not bear my signature. I cannot say if the transfer summary Ex PW 6/P belongs to my Unit or not because my signature do not appear on this document.
The report Ex PW 12/A was dictated by me and under my dictation it was written by Dr. Makkar who was Senior Resident with me. This report is in the handwriting of Dr. Makkar whose handwriting I identify. After examination the patient Gurbux Biryani who was admitted with chest pain a day before the emergency ;was found as per my clinical judgment and EDG evidence at that time to have acute cornery. However, he has given C C No.71(A)/04 45/76 46 history of having diabetes and hypertension. Therefore, he was discharged as he was not leading acute care in the hospital with an advise to attend Cardiology OPD of G B Pant Hospital which was held on Monday and Friday. Advise given by me dt. 6.8.88 ws written by Dr. Makkar in his handwriting and under his signature on my dictation which is Ex PW 12/B. In normal course the patient who has been advised to be discharged is discharged on the same day after completion of routine administrative formalities."
61 In his cross examination he has deposed as follows:
"As the document Ex PW 6/P is a photocopy I cannot say whether it is genuine or forged but my signature are not there."
62 PW 13 Mrs. Aliamma George who was staff Nurse has deposed as follows:
" Patient Gurbax Biryani was admitted in Room No. 19 of ward No. 10 under the Cr No. 98278, I visited this patient room No. 19 of ward No. 10 for checking the sample of urine. The room was bolted and it was opened on my knowing. One Lady opened the door. The I discussed the patient, who was in normal condition."
63 PW 45 ASI Mahesh Singh who was the then working as Head Constable in Armed Police ( DAP IIIrd Battalion ) has deposed that at the relevant time his duty was in LNJP hospital to supervise the general checking of the duty of constable attached with C C No.71(A)/04 46/76 47 the admitted patient coming from Tihar Jail. He has further deposed as follows during his examination in chief dated 17.5.2010:
" I have seen entry dated 28.7.88 to 7.8.88 of duty register Ex PW9/B wherein the entries in respect of Gurbux Biryani are entered and he was shown admitted in ward No.11 of GB Pant Hospital on 28.7.88 and 29.7.88 and from 30.7.88 to 4.8.88. He was shifted to Ward No.12 of GB Pant Hospital. Similarly from 5.8.88 to 7.8.88 he was shown admitted in ward No.10, vide entry at Sl No. 3 on each date. The entries in the register are made by Munshi of Camp Office and it is also contain my signatures encircled in red at point A on respective pages which I identify. I used to assign the duties of constables as per their respective turn/shift. I do not know any Billa and I have instructed my Guard not to allow any one to meet the accused without permission of the Court. I had some discussion with Billa who came to see Gurbax."
64 He has further deposed in his examination in chief dated 18.5.2010 as follows:
" Sh Raj Rattan was on duty from 10.00 to 2.00 pm on 29.7.88 and during his duty Sh Biryani was shifted from Ward No.11 to Ward No.12 and accordingly Sh Mir Singh constable was sent to ward No.12 for his escort duty with Gurbax Biryani. During the said period I along with Kanwar Pal Constable ( Munshi) had gone for conducting checking of my staff and prisoner in the night and I had not found Gurbux Biryani in the room and duty C C No.71(A)/04 47/76 48 constable was also not found in the room. After checking when I came down I had found Gurbux Biryani near the telephone booth on the ground floor near the gate. Thereafter I made a DD entry , the photocopy of which is present in the Magistrate inquiry file Ex PW7/A. I had mentioned the fact of absence of Gurbux Biryani and the duty Constable in the room vide DD entry No.37 reflects the absence of Gurbux Biryani alongwith Constable in the room and was found using telephone call at 8.45 pm in the night, which I confirmed. I instructed constable Ranjeet who was on duty not to take admitted prisoner of Tihar Jail outside his room. On 4.8.88 constable Mir Singh had come to camp office and had informed me that Gurbux Biryani was discharged and the Doctor had advised him to take him immediately .
I have seen photocopy of DD entry No.30 of Ex PW7/A according to which Gurbux Biryani was discharged on 4.8.88 by the Doctor however he could not be taken back buy the Duty Constable as he could not deposit the Nursing dues of hospital and as such Doctor advised him to get him discharged on 5.8.88. I also came to know that discharge slip will be issued only after Gurbux Biryani will clear his nursing dues as disclosed by Doctor on duty.
"Billa (A2) was seen on 28.7.88 near Camp office and found him inquiring about the arrival of van from the Jail. I had seen him in the hospital area while going for checking when Biryani had come for treatment."
65 PW 47 Shri Kunwar pal Singh has deposed as under:
" After recalling my memory I can say that Gurbux C C No.71(A)/04 48/76 49 Biryani was not taken out from hospital on 5.8.88 and he was again admitted in ward No.10. Gurbux Biryani was again discharged on 7.8.88 and he was brought to the Guard camp office."
66 PW9 Constable Ashok Kumar who was on Escort duty of accused Gurbux Biryani proved beyond reasonable doubt that he remained admitted in Nursing Home of G B Pant Hospital till 7.8.88. Relevant portion of his statement is as under;
"My duty was in the month of JulyAugust, 1988. I was on escort duty of accused Gurbux Biryani in G B Pant Hospital . Today a hand written duty chart shown to me which is Ex PW 9/A. One chitha register of LNJP Guard w.e.f. 27.4.88 to 1.1188 is shown to me which is Ex PW 9/B. According to Chitha register Ex PW 9/B I was on escort duty of accused Gurbux Biryani from 31.7.88 to 7.8.88. I identify Sh. Gurbux Biryani accused who is present in the court. Shri Gurbux Biryani was admitted in room No.221 Ward No. 12 of G B Pant Hospital and from 5.8.88 to 7.8.88 he remained in room No.19 of ward No.10 of the same hospital. One nurse came to us on 5.8.88 and asked to shift Gurbux Biryani to another room No. 19 of ward No.10. One enquiry was conducted by SDM Punjabi Bagh which is Ex PW 7/A. During the SDM enquiry my statement was recorded which is Ex PW 9/C. The gist mentioned in my statement Ex PW 9/C was given by me. "
67 In his cross examination he has deposed as follows:
"I did not escort the accused Gurbux Biryani at LNJP C C No.71(A)/04 49/76 50 Hospital . During my escort duty with accused Gurbux Biryani no doctor met me and given any instruction to take the accused from ward or for something else."
EVIDENCE AGAINST ACCUSED ASHOK KUMAR PURI @ BILLA 68 A2, Ashok Kumar Puri was brother in law of, A1, Gurbax Biryani, which is proved from the admission summary Ex PW4/A of Gurbux Biryani. The address mentioned in Ex PW 4/A is 51/2 Old Rajinder Nagar, New Delhi 60. This address is the address of Ashok Puri. It also proves that Ashok Puri was with Gurbux Biryani at the time of his admission in G B Pant Hospital on 28.7.88. 69 PW23 Sh. Thakur Dass who was the then working as driver with Kamla Puri, mother of Ashok Puri has deposed that Ashok Puri was also known as Billa. Relevant portion of the statement of PW23 Thakur Dass is as under;
"In 1988 I was engaged as a driver by Smt. Kamal Puri. I know the son of Smt. Kamal Puri whose name is Ashok Kumar Puri @ Billa who is present in court today as an accused."
70 It is also proved on the judicial file that Ashok Kumar Puri was making efforts for securing the admission of Gurbux Biryani in G.B Pant Hospital which is clear from the statement of C C No.71(A)/04 50/76 51 PW36 Kuldeep Singh. Relevant portion of statement of PW36, in this regard, is as under:
"I got my daughter admitted on 26.4.88. she was admitted in room No.217 ward No.12. She remained admitted till 28.7.88. I used to deposit room charges at the reception office. As my child remained admitted for about four months I got acquainted with the patients admitted in the nearby rooms, however, I cannot tell their names now as it is an old matter. one patient who was admitted in room No.218 was titled Malhotra. As he used to come to his child he also talked with my child and me. On reception one person named Puri met me alongwith Mr. Malhotra. Mr. Malhotra had told that he want to get Mr. Puri's relative admitted in the hospital. Mr. Malhotra had met me twice or thrice on the reception."
71 PW 45 ASI Mahesh Singh who was concerned with the escort duty of Gurbax Biryani deposed on 18.5.2010 as under:
"I had done escort duty with Gurbux Biryani about 2/3 times to take Sh. Biryani from Tihar Jail to Patiala House Courts during 198889. Gurbux Biryani had once told me that Billa was his relative. I had occasioned to see Billa present in patiala House Court near lock up."
72 He has further deposed in his examination in chief as follows:
" I do not know any Billa and I have instructed my guard not C C No.71(A)/04 51/76 52 to allow any one to meet the accused without permission of the court. I had some discussion with Billa who came to see Gurbax."....
......"Billa (A2) was seen on 28.7.88 near Camp office and found him inquiring about the arrival of van from the Jail. I had seen him in the hospital area while going for checking when Biryani had come for treatment."
73 On 18.5.2010, PW45 has deposed as follows:
"I During my checking on some occasion I had seen one person who was later came to be known as Billa as disclosed by Gurbux Biryani . I had given instruction to constable on duty not to allow outsider to sit with Biryani.
When I had gone for checking on 4.8.88 in the evening I had discussed with Gurbux Biryani and he told me that he was not having money to clear dues and will seek extension. Billa was seen on 28.7.88 near Camp Office and found him inquiring about the arrival of van from the jail. I had seen him in the hospital area while going for checking when Biryani had come for treatment."
74 In his cross examination he has deposed as follows;
" This patient had not make payment on 4.8.88 hence he was not discharged on 4.8.88 and discharged on 5.8.88. I have not seen anybody making payment on behalf of Gurbux Biryani . I had seen relative of Gurbux Biryani talking to him. I had seen the relative of Gurbux Biryani talking to him near lock up. I do not know the procedure regarding the admission of accused/patient."C C No.71(A)/04 52/76 53
75 It is proved beyond reasonable doubts on the judicial file that accused Gurbux Biryani was having a case in the court of ACMM Patiala House who had directed for his medical treatment in Hospital outside the jail. From the above quoted deposition of PW45 it is proved beyond reasonable doubts on the file that accused Ashok Puri @ Billa who was close relative (brother in law) of accused Gurbux Biryani used to pursue the cause /case of Biryani . Ashok Puri @ Billa was meeting Biryani in Patiala House Courts. He had also followed him to LNJP Hospital. He had given his address for the admission of Gurbux Biryani in the hospital. He used to come to him to meet. Gurbux Biryani was produced from Tihar Jail wherein he was lodged, thus he cannot have money with him. PW45 has specifically deposed that Biryani had not made payment on 4.8.88 hence he was not discharged on 4.8.88 but discharged on 5.8.88. It is also in evidence that payment on his behalf was made. Thus, from the circumstances it is proved that the payment was made by none else but by Ashok Puri @ Billa who had also made all the arrangements of his admission in the Hospital/Nursing Home illegally in connivance and conspiracy with O P Dabas. C C No.71(A)/04 53/76 54 76 PW 52 Shri Ranjeet Singh who was working as constable in Delhi Police and deputed at Admitted Prisoners for guard duty in G.B. Pant Hospital deposed that "During my duty with Mr.Biryani I had noticed that two persons , having sound built personality one gent and one lady used to come to visit Mr. Biryani. When I was told that the person who had come to visit Mr. Biryani for the purpose of providing food to him, they told that they had got permission from court to visit were having telephone and from verandah I had seen them talking with some one." 77 PW 52 Shri Ranjeet Singh deposed that "No girl was staying with Mr. Biryani, however one lady and one gent were having visiting terms with Mr. Biryani."
EVIDENCE AGAINST SUSHIL KUMAR 78 It is argued by Ld. Sr. PP that Sushil Kumar (A5) was working as Nursing orderly in LNJP Reception which is proved by PW 24. The relevant portion of his statement, in this regard, is as under: "Register shown to me is charge register of LNJP Hospital which is Ex. PW 24/A. This register was maintained by person who performed duties at the Reception Counter. Entry dated 28.7.88 and C C No.71(A)/04 54/76 55 5.8.88 in the said register regarding admission of Gurbax Biryani. Entry dated 28.7.88 made at 2.30 PM bears signatures of Sushil Kumar at point B. The entry dated 5.8.88 made at 2 PM also appears to have been signed at point 'C'"
79 Ld. Sr. PP further argued that PW24 has given the procedure with regard to the treatment of the patients brought from Tihar Jail and also deposed about the entries dt. 28.7.88 and 5.8.88 with regard to Gurbux Biryani. The relevant portion of his statement, in this regard, is as under: "After a patient was forwarded from the Tihar Jail for treatment, the patient approached Reception Counter and then he was sent to the concerned OPD by the Receptionist. In OPD, The Regn. Clerk prepared the parchi/slip and made entry in the OPD Register. Then the doctor examined the patient. After examination, doctor used to make note on the OPD card for admission of the patient, if necessary. Then the patient approached the Admission Counter. The Admission Register Ex. PW 3/A is the Central Admission Register of LNJP Hospital. I have seen entry dated 28.7.88 and 5.8.88 in the said register regarding admission of Gurbax Biryani."
80 Ld. Sr. PP argued that Issuing CR No. for any patient admitted in LNJP is sine qua non for each eligible member to be admitted in LNJP. Incharge of Central Admission Register during relevant period was Sushil Kumar. In the case in hand without C C No.71(A)/04 55/76 56 admission in OPD or Causality accused Gurbax Biryani was issued CR No. with the help of other coaccused doctor Jolly Bansal & A.K. Puri @ Billa. To prove it Ld.Sr. PP placed reliance on the following portion of statement of PW40 and PW42.
81 PW 40 Dr. Preeti Mehta deposed that " If a patient is admitted in the LNJP Hospital by Sr. Doctor. An admission slip will be made from the admission Counter with a Central registration number which is also called C.R. Number. Then the patient will go to concern ward. Similarly the procedure was adopted in the emergency ward. In both the case the name of patient will have to entered in Central Admission Register and admission form is issued to the patient. Except to these course mentioned above, there was no any other mention for the admission of patient." 82 PW 42 Dr. Prem Kumar Kakar deposed as under:
" One the doctor admits the patient his attendant is required to visit Central Admission counter from where his name is entered in the Central Admission Register. Thereafter, the patient will come to the emergency ward or general ward where against his name will be entered in the emergency ward register or ward register by the staff nurse."
83 Ld. Sr. PP argued that it is clear from above depositions that any patient admitted in LJNP Hospital should have to visit Reception counter in order to get the admission slip with Central Registration number which is also called C.R. Number which is C C No.71(A)/04 56/76 57 made by Admission Counter. In this case it is proved that A1 Gurbax Biryani has not entered his name in the OPD register/Casualty register. He met directly to Dr. Jolly Bansal who has identified by IO during investigation.
84 Ld. Sr. PP had also relied upon the following portion of deposition of PW53 HC Shri Rajbir Singh "I had taken Gurbax Biryani in OPD in LNJP Hospital where we approached a doctor who was quite young and have small beard of medium height. Shri Gurbax Biryani sat on a stool, the said doctor examined him in my presence and discussed the matter with Shri Biryani and thereafter after discussing his disease with other doctor Shri Biryani was admitted in the Hospital. Subsequently Shri Biryani was transferred to G.B. Pant Hospital."
85 Ld. Sr. PP on the basis of above referred witnesses argued that Sushil Kumar dishonestly made entry in the name of Gurbax Biryani and issued CR. No. Accordingly the same CR. No. was adopted by Emergency Ward and made entry. On the basis of these CR. No. a forged transfer summary was also prepared on both the dates and accordingly A1 Gurbax Biryani was admitted in G.B. Pant Hospital.
86 Ex PW 4/A is the Charge Register of LNJP Hospital C C No.71(A)/04 57/76 58 covering the dates of 28.7.88 and 5.8.88. PW24 has identified the signatures of Sh. Sushil Kumar at point B in Ex PW 24/A at 2.30 PM with regard to his handing over of the charge/Charge register to his successor after completing his duty. PW24 has vaguely deposed about the signatures of Sh. Sushil Kumar at point C with regard to entry dt. 5.8.88 at 2 PM. Relevant portion of his statement in this regard dt. 26.10.2004 is as under:
"Entry dt. ;28.7.08 made at 2.30 PM bears signatures of Sh. Sushil Kumar at point B. The entry dt. 5.8.88 made at 2 PM also appears to have been signed at point C. Sh.Wadhwa also made his signatures at point D. Sh. Wadhwa was working as Nursing Orderly. Sh. Sushil Kumar was also working as Nursing Orderly. Sh. Sushil Kumar is present in the court (correctly identified) Admission Summery is prepared by the Admission Clerk who performs duties at the Admission Counter. The duplicate admission summary shown to me is regarding the admission of Gurbux Singh s/o Dalpat Ram. It is Ex PW18/C. The Receptionist who was working at that time alongwith me had not prepared e..18/C; and it is also not in my handwriting. This admission summary is dt. 5.8.88."
87 This witness has deposed in his cross examination as under:
" I cannot say if Ex PW 18/C is a forged document. I cannot C C No.71(A)/04 58/76 59 identify signatures of Sh. Sushil Kumar at point C in register Ex PW 24/A dt. 5.8.88. The entry dt. 26.7.88 and 5.8.88 in Ex PW 24/A are not in my hand. It is incorrect to suggest that it is not the Admission Register. it is correct that the entry Ex PW 18/B is not in my handwriting. My statement was recorded by CBI officer. I do not know his name. I never met Gurbux Biryani. I had never dealt with his case."
88 From the above quoted portion of statement of PW24 it is clear that he had not identified signatures of Sh. Sushil Kumar at point C and on Ex PW 18/C. Prosecution has not proved the entries dt. 28.7.88 and 5.8.88 in Central Admission Register of LNJP Hospital Ex PW 3/A are in the handwriting of accused Sushil Kumar. Prosecution has also not proved that forged transfer summaries/admission summaries are in the handwriting of accused Sushil Kumar. Prosecution has not produced any witness who had identified handwriting or signatures of accused Sushil Kumar on any of the document other than the charged register referred above. Prosecution has also not produced any evidence to prove that accused Sushil Kumar prepared the forged transfer summary/admission summary of accused Gurbux Biryani for his admission in LNJP Hospital/Nursing Home G B Pant Hospital. C C No.71(A)/04 59/76 60 Prosecution has also not produced any evidence to prove the writing/signatures of accused Sushil Kumar on any other register/record.
89 PW43 Sh. Jadunandan Prashad, IO of the case, in his cross examination has admitted that he had taken the specimen handwriting of Dr. Jolly Bansal and Sh. Sushil Kumar and sent the same for comparison and opinion for the Handwriting Expert. Relevant portion of his cross examination, in this regard, dt. 31.5.2011, is as under:
"I had obtained specimen handwriting of Dr. Jolly Bansal after great problems and also of Sh. Sushil Kumar . I had sent the same for comparison and opinion to the Handwriting Expert. I was transferred before the opinion had to come."
90 No report of Handwriting Expert has been filed in this court alongwith the charge sheet. Neither Handwriting Expert has been cited as a witness in the list of witnesses nor prosecution has produced any Handwriting Expert in this case to prove his opinion. EVIDENCE AGAINST DR. JOLLY BANSAL 91 Only the following evidence is available on the judicial C C No.71(A)/04 60/76 61 file against accused Dr. Jolly Bansal . PW 53 HC Shri Rajbir Singh has deposed on 28.7.1988 as follows:
"I had taken Gurbax Biryani in OPD in LNJP Hospital where we approached a doctor who was quite young and have small beard of medium height. Shri Gurbax Biryani sat on a stool, the said doctor examined him in my presence and discussed the matter with Shri Biryani and thereafter after discussing his disease with other doctor Shri Biryani was admitted in the Hospital. Subsequently Shri Biryani was transferred to G.B. Pant Hospital."
92 PW 43 Shri J.N. Prasad,IO of the case has deposed as follows:
"During investigation it became crystal clear that a Doctor who was quite young and have small beard of medium height was Dr. Jolly Bansal. I can identify him (Personal exemption of accused is allowed on an application moved on his behalf by his counsel where identity of accused is not disputed). It is Dr. Jolly Bansal who had examined Gurbax Biryani in OPD of LNJP Hospital Police personnel had told that a doctor having small beard in unit of Dr. S.N. Rizvi initially examined Shri Gurbux Biryani subsequently I contacted almost all the doctors of his unit and subsequently I could identify that it was Dr. Jolly Bansal who had examined him and he was also instrumental and getting the transfer summary prepared showing his transfer from LNJP Hospital to G.B. Pant Hospital and he also took him to G.B. Pant Hospital though it was not his duty. The witnesses of G.B. Pant Hospital had confirmed the presence of Dr. Jolly Bansal with Gurbux Biryani in reception Counter."C C No.71(A)/04 61/76 62
93 PW53 H C Rajbir Singh has simply stated that he alongwith accused Gurbux Biryani had approached a quite young doctor having small beard of medium height who had examined Biryani and admitted him in hospital. Subsequently Biryani was transferred to G B Pant Hospital. Neither this witness named that the doctor having small beard of medium height was Dr. Jolly Bansal nor this witness identified accused Jolly Bansal as the same doctor before whom he had produced the accused Gurbux Biryani and that doctor examined him and admitted him in hospital and subsequently transferred him to G B Pant Hospital. In these circumstances the evidence of this witness is of no help to the prosecution to nail accused Jolly Bansal in this case.
94 PW43 Sh. Jadunandan Prashad, IO of the case, in his cross examination has admitted that he had taken the specimen handwriting of Dr. Jolly Bansal and Sh. Sushil Kumar and sent the same for comparison and opinion for the Handwriting Expert. Relevant portion of his cross examination, in this regard, dt. 31.5.2011, is as under:
"I had obtained specimen handwriting of Dr. Jolly Bansal after great problems and also of Sh. Sushil Kumar . I had sent the same C C No.71(A)/04 62/76 63 for comparison and opinion to the Handwriting Expert. I was transferred before the opinion had to come."
95 No report of Handwriting Expert has been filed in this court alongwith the charge sheet. Neither Handwriting Expert has been cited as a witness in the list of witnesses nor prosecution has produced any Handwriting Expert in this case to prove his opinion. 96 In these circumstances it is argued by Ld. Defence Counsels that prosecution malafidely and deliberately concealed the Handwriting Expert Report because the same was against the prosecution and in favour of accused. It is submitted by Ld. Defence Counsels that in these circumstances adverse inference may be drawn against prosecution that the writings/signatures alleged to be written by accused Sh. Sushil Kumar and Dr. Jolly Bansal are not in their handwriting/signatures.
97 Prosecution has not assigned any reason as to why the report of handwriting expert has not been filed in this court alongwith the charge sheet. In these circumstances this court has left with no option but to draw an adverse inference against the prosecution.
98 IO in his above deposition has stated that the doctor who C C No.71(A)/04 63/76 64 was quite young and having small beard and of medium height was Dr. Jolly Bansal who had examined Gurbux Biryani in OPD of LNJP Hospital. He has also deposed that he contacted almost all the doctors of the Unit of S N Rizvi and subsequently he identified (reached to the conclusion) that accused Dr. Jolly Bansal had examined Gurbux Biryani and was instrumental in getting the transfer summary prepared.
99 IO has not cited the alleged "almost all the doctors of the Unit of S N Rizvi" whom he had contacted to identify accused Dr. Jolly Bansal as the doctor who had examined Gurbux Biryani in OPD of LNJP Hospital. Neither IO has cited all such doctor as witness nor he has recorded their statements U/s 161 Cr PC. At the most it may be the inference drawn by the IO on the basis of investigation made by him. This inference/observation of IO is not admissible even under res gesta Section 6 of Evidence Act. In these circumstances this inference of IO cannot be relied upon to convict the accused Dr. Jolly Bansal without having any corroboration from other evidence.
100 My Ld. Predecessor has framed a charge for the C C No.71(A)/04 64/76 65 substantive offence punishable U/s 5 (1) (d) of P C Act, 1947 against Dr. Jolly Bansal however, neither prosecution has proved sanction for the prosecution of accused Dr. Jolly Bansal nor any reason is given in the charge sheet as to why the sanction for his prosecution is not required. PW43, IO of this case has also not given any explanation for not producing sanction for his prosecution. 101 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 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 C C No.71(A)/04 65/76 66 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.
102 It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The entire agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place in each and every act done in pursuance of a conspiracy. 103 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 C C No.71(A)/04 66/76 67 unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. 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. 104 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 prove agreement to commit conspiracy. 105 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:
" Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end C C No.71(A)/04 67/76 68 or they have come together to the pursuit of the unlawful object.
The former does not render them conspirators, but the later does.
It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
Conspiracy can be proved by circumstances and other material."
106 In a case of criminal conspiracy any evidence available against any of the accused is admissible against all the accused. Once a conspiracy is proved among the accused, act of one conspirator become act of all other conspirators also. In this regard Ld. SPP placed reliance on Shiv Narain Laxmi Narain Joshi Vs State of Maharashtra, (1980 ) 2 Supreme Court Cases 465 has held as follows:
" Penal Code, 1860 Section 120B - Since it is impossible to adduce direct evidence of conspiracy, the offence can only be C C No.71(A)/04 68/76 69 proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design Once such a conspiracy is proved, act of one conspirator becomes act of the other A coconspirator, who joins subsequently and commits overt acts in furtherance of the conspiracy, held is also liable Evidence Act, 1987 Section 10."
107 Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 Supreme Court Cases 596 has held as follows:
"Conspiracy is not only a substantive crime but on the basis of it a conspirator can also be held liable for the crimes committed by conspirators in furtherance of the objectives of the conspiracy Conspiracy can be established on the basis circumstances evidence As regards admissibility of evidence strict standards are not necessary inasmuch as any declaration made by a conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each co C C No.71(A)/04 69/76 70 conspirator On facts held, Supreme Court's interference with concurrent finding that criminal conspiracy proved and on the basis offence of murder also made out not called for."
108 Hon'ble Supreme Court in Ram Naryan Popli Vs. CBI AIR 2003, SC 2748 has held as follows:
"The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub Section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary."C C No.71(A)/04 70/76 71
109 Hon'ble Supreme Court in P K Narayan Vs. State of Kerala, All India Criminal Law Reporter 1994 (3) 785, has held as follows:
"Penal Code, 1860, Section 120B Evidence Act, 1872, Section 3 - Criminal Conspiracy Essence of Criminal conspiracy -
It is an agreement to do an illegal act - Agreement can be proved either by direct evidence or by circumstantial evidence or by both - Complicity of the accused - Circumstances proved before, during and after the occurrence required to be considered to decide about the complicity of the accused But if the circumstances are compatible with the innocence of the accused persons then it could not be held that the prosecution had successfully established its case."
110 Hon'ble Supreme Court in S. Swamirathnam, Appellant Vs. State of Madras, Respondent, (s) AIR 1957 S.C. 340 in this regard has held as follows:
"If a specific instance of cheating was proved beyond doubt against any of the accused that would furnish the best corroboration of the offence of conspiracy because conspiracy was the root and the C C No.71(A)/04 71/76 72 specific instances were the fruit."
111 Agreement to do an illegal act an be proved either by direct evidence or by substantial evidence. Circumstances proved before, during and after the occurrence is to be considered to decide about the complicity of the accused in the criminal conspiracy. In this case meeting of mind between the accused can be inferred from the following circumstances raising presumption of a common concerted plan to carry out the unlawful design to commit the criminal conspiracy.
112 From the above discussion it is proved beyond reasonable doubts that O.P. Dabas who was working as Reception Assistant in G.B.Pant Hospital without verifying the genuineness of Transfer summary received from LNJP Hospital allotted Room No. 13 in ward No. 11 at 12 Noon , G.B Pant Hospital, only after 40 minutes from the entry of LNJP Hospital. He had shifted A1 to Room No. 221 of Ward No. 12,which was having better facilities on 29.7.1988 with out the approval of Director G.B. Pant Hospital. It is also proved that A1 was not suffering from any disease. Dr. S N C C No.71(A)/04 72/76 73 Rizvi has specifically opined that Gurbux Biryani was malingering . He was not discharged on 4.8.88 inspite of the specific direction by Dr. S N Rizvi and falsely shown discharged on 5.8.88 by Shri O.P. Dabas after receiving payment from A.K. Puri who used to come to G.B. Pant Hospital to meet Gurbax Biryani, O P Dabas had also issued No due certificate on 5.8.88 but unauthorisedly granted him permission to stay upto 3 O'Clock.
113 Gurbax Biryani was shown discharged from G.B. Pant Hospital on 5.8.88 afternoon by accused O.P. Dabas but immediately after his discharge from nursing home, Gurbax Biryani was again admitted on the basis of a false/forged transfer summary dated 5.8.88 on the basis of false/forged entry dated 5.8.88 at 11.30 AM in the Central Admission Register of LNJP Hospital . Accused O P Dabas fraudulently obtained telephonic permission from the then MS of G B Pant Hospital Sh. O P Jain falsely representing that some doctors from LNJP Hospital collected at reception and forcing him to admit the patient in the hospital as his condition is very serious, actually concealing the true facts that patient Gurbux Biryani was directed to be discharged by Dr. S N Rizvi on the ground that he is C C No.71(A)/04 73/76 74 not suffering from any disease and was malingering.,readmitted in G.B. Pant Nursing Home at 12.50 PM on 5.8.88 and was shifted to room No. 19 of ward No. 10 at 2.10 Pm. It is also proved on the file that accused Gurbux Biryani had been shown admitted in LNJP Hospital as Gurbux s/o Anand Ram at 11.30 AM on 5.8.88 and on the basis of forged transfer summary dt. 5.8.88 he was re admitted in G B Pant Hospital at 12.50 on 5.8.88 and shifted to room No. 19 Ward No.10 at 2.10 PM by O P Dabas. Shri O.P. Dabas falsely made entry in G.B. pant Nursing home register showing admission of Brig. B.N. Kapoor in Room No. 221 of ward No. 12 at 1.10 PM on 5.8.88 whereas this room was never given to Brig. Kapoor by Shri Dabas. The fact that accused O P Dabas himself allowed Gurbux Biryani to stay till 3 PM on 5.8.88 inspite of the direction of Dr. S N A Rizvi dt. 4.8.88 to discharge him immediately being a malinger and he shown him readmitted at 12.50 on 5.8.88 and shifted to room No.19 Ward No.10 at 2.10 PM proves beyond reasonable doubt that he was deeply involved in this conspiracy.
114 From the above discussion it is also proved beyond reasonable doubts that Ashok Puri @ Billa was brother in law of C C No.71(A)/04 74/76 75 Gurbux Biryani who was a COFEPOSA Detenue and was also facing a criminal case under Narcotic Drugs Act. in the court of ACMM, Patiala House, New Delhi. Prosecution from the evidence of PW45 has also proved beyond reasonable doubts that Ashok Puri @ Billa was pursuing the cause/case of Gurbux Biryani in Patiala House Court and following him to LNJP / G B Pant Hospital. He was in touch with accused O P Dabas from 27.8.88. He was regularly visiting accused Gurbux Biryani and has also deposited his hospital dues. Ashok Puri in connivance and conspiracy with O P Dabas had got Gurbux Biryani illegally admitted in LNJP Hospital and managed false and forged admission summary /transfer summary on the basis of which in furtherance of his criminal conspiracy alongwith O P Dabas got Gurbux Biryani admitted in G B Pant Hospital on 28.7.88 and 5.8.88.
115 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubt against accused O P Dabas and Ashok puri @ Billa for the commission of offences punishable U/s 120B, r/w 417 and 471/468 IPC and Section 5(2) r/w 5 (1 ) (d) of P C Act, 1947. Prosecution has also C C No.71(A)/04 75/76 76 proved its case beyond reasonable doubts against accused O P Dabas for the substantive offence punishable U/s 417 & 471 r/w 468 IPC and 5(2) r/w 5(1) ( d ) of P C Act, 1947. Prosecution has also proved its case beyond reasonable doubts against accused Ashok Puri @ Billa for the substantive offence punishable U/s 417, 471 r/w 468 IPC. Hence, both these accused are convicted accordingly. 116 Prosecution has failed to produce sufficient evidence to prove its case beyond reasonable doubts against accused Sushil Kumar and Dr. Jolly Bansal, hence they are entitled for benefit of doubt. Accordingly they are acquitted of the charged offences.
Announced: (V K MAHESHWARI )
Dt. 7.2.2012 SPECIAL JUDGE: DELHI
C C No.71(A)/04 76/76
77
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI: DELHI
Corruption Case No. 71 (A)/04
CBI Vs Accused Gurbux Bhiryani
ORDER ON SENTENCE:
Vide my detailed judgment dated 7.2.2012 I hold guilty
accused O P Dabas and Ashok puri @ Billa for the commission of offences punishable U/s 120B, r/w 417 and 471/468 IPC and Section 5(2) r/w 5 (1 ) (d) of P C Act, 1947.
Accused O P Dabas was also convicted for the substantive offence punishable U/s 417 & 471 r/w 468 IPC and 5(2) r/w 5(1) ( d) of P C Act, 1947. Accused Ashok Puri @ Billa was also convicted for the substantive offence punishable U/s 417, 471 r/w 468 IPC.
C C No.71(A)/04 77/76 78 2 Arguments on sentence heard. It is argued on behalf of convict OP Dabas that he is a Government servant. He is not a previous convict. He is regularly attending this Court since 1991. He is sole bread earner of his family consisting of old parent of 85 and 82 years , wife and two sons who are students of B. Tech and 12th class respectively, hence lenient view may be taken against him. 3 It is argued on behalf of accused Ashok Kumar Puri that he is 60 years and facing the mental and physical agony of this trial since 1991. He is Diabetic and heart patient. He is the sole bread earner of his family consisting his ailing wife and three sons, one is married and living separately, one son is student and other son is unemployed, hence lenient view may be taken against him. 4 It is argued by Ld Sr PP for CBI that keeping in view the deterrent theory of punishment a strict view may be taken against them . Accused have committed serious offence, no leniency C C No.71(A)/04 78/76 79 be shown to them. They may be awarded maximum imprisonment and consecutive sentence .
5 Corruption is a scourge that not only severally affects 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 C C No.71(A)/04 79/76 80 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.
6 In this case Ashok Puri @ Billa was brother in law of Gurbux Biryani who was a COFEPOSA Detenue and was also facing a criminal case under Narcotic Drugs Act. He was pursuing the cause/case of Gurbux Biryani in Patiala House Court and following him to LNJP / G B Pant Hospital. He was in touch with accused O P Dabas from 27.8.88. Ashok Puri in league with O P Dabas managed false and forged admission summary /transfer summary on the basis of which, in furtherance of their criminal conspiracy illegally got Gurbux Biryani admitted in G B Pant Hospital on 28.7.88 and 5.8.88.
C C No.71(A)/04 80/76 81 7 I have carefully considered all the arguments raised before me and have gone through the record. After considering all the facts and circumstances of this case, and arguments raised in the Court , I consider it proper to award One years RI along with a fine of 30,000/ each (Thirty Thousand) I D three months U/s 120B, r/w 417 and 471/468 IPC and Section 5(2) r/w 5 (1 ) (d) of P C Act, 1947 to both the convicts .
8 Convict O.P Dabas is also sentenced to undergo One years RI alongwith a fine of Rs.30,000/ ( Rs. Thirty thousand only) I D three months S I for the substantive offence punishable U/s 417 IPC .
9 He is further sentenced to undergo One years RI alongwith a fine of Rs.30,000/ ( Rs. Thirty thousand only) I D three months S I for the substantive offence punishable U/s 471 r/w C C No.71(A)/04 81/76 82 468 IPC 10 He is also sentenced to undergo One years RI alongwith a fine of Rs.30,000/ ( Rs. Thirty thousand only) I D three months S I for the substantive offence punishable U/s 5(2) r/w 5(1) ( d) of P C Act, 1947.
11 Accused Ashok Kumar Puri is sentenced to undergo One years RI alongwith a fine of Rs.30,000/ ( Rs. Thirty thousand only) I D three months S I for the substantive offence punishable U/s 417 IPC .
12 He is also sentenced to undergo One years RI alongwith a fine of Rs.30,000/ ( Rs. Thirty thousand only) I D three months S I for the substantive offence punishable U/s 471 r/w 468 IPC 13 All the sentences will run concurrently. A copy of judgment and this order on sentence be given to both the accused C C No.71(A)/04 82/76 83 free of costs. Benefit of Section 428 Cr P C is given to both the accused.
Ordered accordingly.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 09.02.2012 SPECIAL JUDGE: CBI
C C No.71(A)/04 83/76