Delhi District Court
Cbi vs . Lliu Ram & Others on 30 September, 2013
IN THE COURT OF SHRI RAKESH SYAL, SPECIAL JUDGE,
(P.C. ACT) & (CBI)-03, DWARKA COURTS, NEW DELHI
CBI Case No. 36/12
CBI Vs. Lliu Ram & Others
In re:
Central Bureau of Investigation
Vs.
1. Lilu Ram,
S/o Late Sh. Thakaria,
R/o Mohalla Ghosian,
Ward No. 6,
Jhajjar, Haryana.
2. Shyam Mohan @ Mohan Shyam,
S/oLate Sh. Ganesh Prasad,
R/o J-120-121, Peepalwala Road,
Mohan Garden, Uttam Nagar,
New Delhi.
3. Vinay Prakash Arora,
CBI Case No. 36/12 1 of 85
S/o Sh. Om Prakash Arora,
Prop. of M/s Jay Surya Overseas
Travel Agents and Tour Operator
at 20/17 and 20/18, Moti Nagar,
New Delhi - 15.
4. Rakesh Sharma @ Rakesh Kumar,
S/o Late Sh. Moti Ram,
R/o D-47/2, Arjun Nagar,
Near Safdarjang Enclave,
New Delhi.
Date of Institution of Case : 03-03-2007
Date on which Judgment was reserved : 24-09-2013
Date on which Judgment was delivered : 30-09-2013
JUDGMENT
Facts
1. Complainant Ram Phal, an Ex-Army man, filed complaint, dated 21-07-2006 with the CBI alleging that accused No. 1, Lilu Ram, Sub Inspector, CBI, New Delhi had taken Rs.2.25 Lacs from him for arranging his employment abroad. However, no employment was arranged for him and he had to return to India. The money paid to accused Lilu Ram was also not returned to him. A CBI Case No. 36/12 2 of 85 preliminary inquiry bearing No. 01 (A)/07/ACU-VII was conducted. On finding the allegations to be true, a case No. RC 1(A)/07-ACU-VII was registered on 23-01-2007 and investigation was conducted. During investigation, statements of witnesses were recorded, searches were made and documents were seized.
2. The prosecution case, as can be discerned from the complaint, dated 21-07-2006 and the investigation conducted by CBI, is that complainant, Sh. Ram Phal, a resident of Jhajjar came to know that accused Lilu Ram, a CBI Officer, was capable of sending people abroad for employment. His father had known father of accused Lilu Ram for a long time. After discussion with his father Sh. Sumer Singh, who advised that accused Lilu Ram, being a CBI Officer, will not cheat them, Sh. Ram Phal paid Rs.50, 000/- to accused Lilu Ram, through his father, which were taken by Lilu Ram on the pretext of arranging a job for him at Saudi Arabia on a salary of Rs.10,000/- per month. For about one year, accused Lilu Ram kept Ram Phal in dark. Finally, he told Ram Phal that he has became overage for job in Saudi Arabia. When Ram Phal asked for return of Rs.50,000/-, Lilu Ram told him that he could send him to Brunei for a job for which Rs.2.25 Lacs would have to be paid and since he has already paid Rs.50,000/-, if he pays the remaining amount of Rs.1,75,000/-, he would send him to Brunei. Accused Lilu Ram assured that he had good contacts with big companies and has arranged jobs for many people there. Since Lilu Ram was from the same caste as Ram Phal and was also his neighbor, Ram Phal believed him and in January 2004, paid Lilu Ram Rs.1,75,000/-, after arranging the same from his family members and relatives. At that time, his CBI Case No. 36/12 3 of 85 father Sumer Singh, his sons Pradeep and Dalbeer and his brothers in law Sh. Ramesh and Naresh were also with him. Accused Lilu Ram had handed over money to accused Shyam Mohan near Gate No. 1 of CGO Complex in presence of Ct. Vijay Kumar Sharma.
3. On 10-02-2004, accused Lilu Ram called the complainant thorough his son and showed him Visa stamp dated 10-02-2004 on his passport telling him that his job VISA had been affixed. However, he did not handover the passport to him. Actually it was only a tourist visa wherein it was clearly mentioned that employment was prohibited. Since complainant Ram Phal could not read or write English, he believed accused Lilu Ram about job Visa on his passport.
4. On 19-02-2004, accused Lilu Ram handed over complainant Ram Phal to accused No. 2, Shyam Mohan at IGI Airport. He also handed over a visiting card of accused V.P. Arora, Proprietor of M/s Jai Surya Overseas Travel Agent and Tour Operator to Sh. Ram Phal saying that if immigration official asks him about purpose of his visit, he should show the card of V.P. Arora and tell them that he was going abroad on an assignment of Sh. V.P. Arora and his company. Accused Lilu Ram also handed over a receipt No. 10882, dated 16-02-2004 of US Dollar 1000 which was issued by M/s Sethi Brothers Pvt. Ltd., New Delhi along with US Dollar 1000.
5. On 19-02-2004, Sh. Ram Phal was taken by accused Shyam Mohan, to whom he was handed over by accused Lilu Ram, from IGI Airport, Delhi to CBI Case No. 36/12 4 of 85 Bangkok. Accused Shyam Mohan had been working as a middleman in luring and cheating people on the pretext of providing employment abroad. Complainant Ram Phal reached Bangkok along with accused Shyam Mohan on 19-02-2004 where Shyam Mohan took the visiting card of V.P. Arora and receipt of US Dollar 1000 from Ram Phal.
6. On 24-02-2004, accused Shyam Mohan took complainant Ram Phal to Jakarta (Indonesia), where he was taken over by accused No. 4, Rakesh Sharma. Accused Rakesh Sharma took away 1400 US dollars and passport from him on the pretext of providing employment. Ram Phal stayed there along with certain other unemployed youth of Punjab namely Sh. Sukhchain Singh, Sh. Nirbhay Singh and Sh. Hakam Singh etc. He was kept confined in a room for about six months. He was given potato and rice only once in a day and they were also not allowed to meet anybody. They were treated like animals. He was not given even one rupee for his expenses. Accused Rakesh Sharma used to take the complainant here and there in boats on the pretext of providing employment but no employment was provided. After some time, Rakesh Sharma stopped meeting them. When there was nothing to eat, Ram Phal took shelter in a Sikh Gurudwara Mission namely Yayasan at Jakarta. Somehow, Ram Phal took back his passport from accused Rakesh Sharma and managed to return to India with the help of one Sardar Bhajan Singh on 01-12-2004.
7. After 5-6 days of his return to India, Ram Phal approached accused Lilu Ram, along with his father Sh. Sumer Singh, brothers in law, Sh. Ramesh, Sh.
CBI Case No. 36/12 5 of 85 Naresh and other respected persons namely Sh. Jaswant Singh, Sh. Baljeet Singh of village Birdhana, etc. Accused Lilu Ram promised to return his money after 1-2 months. However, he kept on waiting for 4 months but Lilu Ram kept on delaying the matter on one pretext or the other.
8. Ram Phal again approached Lilu Ram, along with his father Sh. Sumer Singh, Sh. Jaswant Singh, Sh. Baljeet Singh, Sh. Ramchander Sh. Jai Prakash Rathi, Sh. Balbeer Singh Saini, Chaudhary Prahlad Singh and Chaudhary Anoop Singh, etc. Accused Lilu Ram admitted having taken Rs.2.25 Lacs from the complainant for providing employment abroad and stated that he would return the money to Ram Phal after getting it back from the persons to whom he had further given the money.
9. On 16-07-2006, the complainant along with his father and other respected persons namely Sh. Ram Chander Pradhan, Chaudhary Prahlad Singh, Sh. Balbeer Saini, Sh. Jai Prakash Rathi, Chaudhary Raj Bir Singh etc. went to the house of Chaudhary Anoop Singh where accused Lilu Ram was called. Complainant informed having received Rs.80,000/- from accused Shyam Mohan. The panchayat members asked Lilu Ram to return an amount of Rs.1.05 Lacs to the complainant within 5 days but accused Lilu Ram did not agree. The panchayat observed that complainant was free to take further course of action against accused Lilu Ram.
10. In the evening on the same day, accused Lilu Ram, through his son, CBI Case No. 36/12 6 of 85 called the complainant to his house. The complainant along with his brother Naresh went to the house of accused Lilu Ram and held a discussion with Lilu Ram about the return of Rs.2.25 Lacs. Accused Lilu Ram took out a revolver/pistol from his briefcase and threatened the complainant that he should not be seen again at and around his house and that he would not return a single pie to him. Complainant Ram Phal and his brother were also abused by accused Lilu Ram.
11. Investigation thus revealed that accused Lilu Ram, a public servant entered into a criminal conspiracy with accused persons viz. Shyam Mohan, V.P. Arora and Rakesh Sharma and deceived complainant Ram Phal on the pretext of procuring job for him abroad on lucrative salary and thereby cheated him to the tune of Rs.2.25 Lacs and they caused pecuniary gain to themselves. They, thus, committed offences punishable u/s 120-B r/w 420 of Indian Penal Code, 1860 (hereinafter referred to as IPC) and section 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act). In addition, accused No. 1, Lilu Ram also committed substantive offences punishable u/s 420, 506 IPC and Section 13 (2) r/w section 13 (1) (d) of the PC Act.
12. Accused Lilu Ram, Shyam Mohan and V.P. Arora were arrested. However, accused Rakesh Sharma could not be arrested as he was absconding. Sanction for prosecution against accused Lilu Ram was obtained. After completion of investigation, chargesheet u/s 173 of the Code of Criminal CBI Case No. 36/12 7 of 85 Procedure, 1973 (hereinafter referred to as Cr.P.C.) was filed.
13. Cognizance was taken by my Ld. Predecessor and accused persons were summoned. Proceedings u/s 82/83 Cr.P.C. in respect of accused No. 4, Rakesh Sharma were carried out and he was declared a proclaimed offender vide order dated 10-12-2007.
14. Documents were supplied to accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 3, V.P. Arora in terms of Section 207 Cr.P.C.
Charges
15. Vide order dated 14-07-2008 of my Ld. Predecessor, accused No. 3, V.P. Arora was discharged. Accused No. 1, Lilu Ram and accused No. 2, Shyam Mohan were directed to be charged u/s 120-B r/w section 420 of the IPC and for substantive offences u/s 420 & 344 r/w Section 120-B of the IPC. In addition, accused No. 1, Lilu Ram was also directed to be charged u/s 13 (2) r/w section 13 (1) (d) of the PC Act. Charges were accordingly framed against the said accused persons on 14-07-08 to which they pleaded not guilty and claimed trial.
16. Later on, accused No. 4, Rakesh Sharma was arrested and produced in the court. After supply of documents to him, charge was directed to be framed against him u/s 120-B IPC r/w section 420 IPC as well as u/s 420 and 344 IPC r/w section 120-B IPC. Charges were accordingly framed on CBI Case No. 36/12 8 of 85 17-03-2012, to which he pleaded not guilty and claimed trial.
Prosecution Evidence
17. Prosecution has examined 34 witnesses. PW 1 HC Surender Kumar was posted in SIC-II, CBI, also known as Punjab Cell, wherein accused Lilu Ram was posted. PW 2 Sh. Jasbir Singh Sethi is Director of M/s Sethi Brothers Pvt. Ltd., which was doing business in Tourism and Travel. PW 3 Ct. Bijender Singh is the cousin of complainant Ram Phal. PW 4 Ms. Phoolwati is a neighbor of complaint Ram Phal. PW 5 Sh. Naresh Kumar is brother of complainant Ram Phal. PW 6 Sh. Sumer Singh is father of complainant Ram Phal. PW 7 Sh. Kalyan Chaudhary was Crime Assistant in SCR-II, CBI. PW 8 Sh. Vijay Kumar is cousin of complainant Ram Phal. PW 9 SI Satpal was posted as ASI at Police Post Shahar, P.S. Jhajjar, District Jhajjar. PW 10 Sh. Avinash Kumar Sachdeva was working in M/s Jay Surya Overseas, Moti Nagar, New Delhi, of which, Sh. V.P. Arora was the Proprietor. PW 11 Ct. Vijay Kumar Sharma was posted as Constable in Special Crime Region-II in the year 2004. PW 12 Sh. Baljeet Singh was Head Constable in BSF and a native of the village of complainant Ram Phal. PW 13 Sh. Jai Prakash, a resident of Jhajjar, PW 14 Sh. Balbir Singh Saini, also a resident of Jhajjar, PW 15 Chaudhary Anoop Singh, a Jamindar of Jhajjar and PW 16 Sh. Jaswant Singh, an agriculturist of village, Birdhana, District Jhajjar had known both complainant Ram Phal and Lilu Ram. PW 17 Sh. Raj Kumar Jain is the Branch Manager, State Bank of Patiala, where Ms. Phoolpati was having Saving Bank Account. PW 18 Sh. Bikar Singh is an agriculturist and father of Sh. Nirbhay Singh. PW 19 Sh. Ravi Sehgal was CBI Case No. 36/12 9 of 85 posted as AFRRO at R.K. Puram, New Delhi in the year 2006. PW 20 Sh. Ramesh Kumar is brother in law of complainant Ram Phal. PW 21 Sh. Mahender Rai was Field Officer in M/s Jay Surya Overseas. PW 22 Sh. Prahlad Singh is an agriculturist of Jhajjar who knew both, complainant Ram Phal and accused Lilu Ram. PW 23 Sh. Naresh Kumar and PW 24 Sh. Baljeet Singh are both brothers in law of complainant Ram Phal. PW 25 Sh. Hardeep Singh is brother of Swarn Deep Singh @ Sandeep, who was working as Field Executive in M/s Jay Surya Overseas Tour & Travels. PW 26 Sh. Rajbir Singh is a resident of Jhajjar and class-fellow of complaint Ram Phal. PW 27 Sh. Gurpreet Singh has taken tickets through V.P. Arora. PW 28 Sh. Alok Ranjan is DIG, CBI who had granted sanction for prosecution of accused No. 1, Lilu Ram. PW 29 Sh. N.R. Thakur is the IO. PW 30 Sh. V.P.S. Mann, Inspector, CBI and PW 31 Sh. R.K. Sangwan, Inspector, CBI are the part IOs. PW 32 Sh. Sukhchain Singh had also been taken to Bangkok and Indonesia by accused Shyam Mohan. PW 33 Insp. A.K. Mishra had assisted the IO, Insp. N.R. Thakur in the investigation. PW 34 Insp. Dheeraj Khetrapal had also conducted part investigation at the instance of the IO, Insp. N.R. Thakur.
18. After arrest of accused No. 4, Rakesh Sharma and framing of charge against him, as above, he was afforded opportunity to cross-examine the prosecution witness examined till 17-03-2012. Sh. S.C. Malhotra, counsel for accused No. 4, Rakesh Sharma submitted that he wanted to cross-examine PW 8 Sh. Vijay Kumar, PW 14 Sh. Balbir Singh Saini, PW 18 Sh. Bikar Singh, PW 20 Sh. Ramesh Kumar and PW 32 Sh. Sukhchain Singh. It was directed that the CBI Case No. 36/12 10 of 85 statements of the remaining witnesses shall be read against accused No. 4, Rakesh Sharma. The aforesaid 5 witnesses were re-summoned and cross- examined on behalf of accused No. 4, Rakesh Sharma. After 17-03-2012, witnesses were examined in presence of accused No. 4, Rakesh Sharma.
Statements of Accused Persons under Section 313 Cr.P.C.
19. Accused No. 1 Lilu Ram in his statement u/s 313 Cr.P.C has generally denied the incriminating evidence that has come against him and stated that he is innocent and has been falsely implicated in this case. He further stated that he left Delhi for Jammu and attended TADA Court in Jammu on 10-2-2004 in RC 6 (S)/90 SIC-II i.e. H.L. Khera murder case. On 16-2-2004 he left Delhi for Jammu and attended TADA Court in Jammu on 17-2-2004 and 18-2-2004. He returned to Delhi and reached his office at 3.20 p.m. on 19-2-2004. The official weapon issued to him was deposited in Malkhana, CBI, on 14-3-2005 at 10.00 a.m. Thereafter he had never been issued the official weapon till date. He further stated that he was never instrumental in sending Ramphal abroad or arranging foreign exchange for him. He had never taken any money from him for any purpose. He was neither involved in investigation in any foreign company nor had any contact with any foreign company. Neither he, nor any of his family member had passport. He also stated that at the time of registration of case, he was Sub-Inspector in CBI. He has got various awards from CBI. He has done pairvi of various cases of CBI including 18 cases under TADA Act, Jammu. His work record in CBI has been very good. Some of his colleagues were jealous and having departmental rivalry with him. They wanted CBI Case No. 36/12 11 of 85 to implicate him in some case. He also stated that after registration of the case, he came to know that complainant Ramphal was a distant relative of his son-in- law Shri Manoj. Ramphal was having bitter relation with Shri Manoj and his family. Some agent had taken money from Ramphal to send him abroad and he wanted that money to be returned with his help. Ramphal was angry with the family of in-laws of his daughter as they did not help him in getting introduced with him (Lilu Ram) for the purpose of recovering his money from the agent and thus he wanted to take revenge from the family of in laws of his daughter. Further, the witnesses who have deposed against him in this case are either family members, neighbours or friends of Ramphal. Some of the witnesses were also having enmity with him as he had not supported Shri Satvir Singh Rathi and his wife in the Municipal Committee Election.
20. Accused No. 2 Shyam Mohan, in his statement u/s 313 Cr. P.C., while generally denying the incriminating evidence, stated that he has been falsely implicated in this case. The witnesses have deposed against him at the behest of CBI. He further stated that Shri Sandeep Singh, brother of PW 25 Shri Hardeep Singh had advised him to go abroad for a job. He had given his passport and Rs. 1,30,000/- to Shri V.P. Arora which included charges for air ticket, Visa stamping and US Dollars for Rs. 95,000/- and Rs.25,000/- as his fees for arranging a job. No receipt was given. Shri V.P. Arora told him that his representative would meet him at Bangkok and would arrange a job at a salary of Rs.25000/- per month. When he reached Bangkok, nobody came to meet him. He came back to Delhi and asked Shri V.P. Arora for refund of money. He CBI Case No. 36/12 12 of 85 assured him to send him again without charging Rs. 25,000/-. He also asked him that he should hand over 2000 US Dollars to his friend at Bangkok and his representative would arrange a job for him at Bangkok. He again charged Rs. 13,000/- for the air ticket, Rs. 2000/- for the Visa stamping and Rs. 94,000/- for US Dollars. This time also no receipt was given. When he reached IGI Airport New Delhi, while he was filling up immigration form, one person, who introduced himself as Ramphal, came and told him that he had seen him in the office of Shri V.P. Arora and that he was also going to Bangkok. On reaching Bangkok, representative of Shri V.P.Arora came and he was made to stay in a guest house. After 3-4 days, he took photocopy of his passport and 2000 US Dollars. He came back again after 10 days and took his passport. In the evening, he gave him (Shyam Mohan) his passport with a Visa for travel to Indonesia and a letter written in a foreign language. He asked him to purchase a ticket and go to Indonesia and that he would get a salary of Rs. 10000/-. He (Shyam Mohan) rang-up Shri V.P. Arora and refused to go to Indonesia. He came back to India. On his repeatedly asking for refund of money, Shri V.,P. Arora returned the same after one year. With the help of CBI, Shri V.P. Arora has got him implicated in the case.
21. Accused No. 4 Rakesh Sharma has also generally denied the incriminating evidence which has come against him and stated that he does not know as to why this case has been made against him. He does not know any person whose name has been referred. He does not know as to why some of the witnesses have deposed against him. He also stated that in August 2003, he was CBI Case No. 36/12 13 of 85 taken to Indonesia by Shri Dharam Singh and Shri Satpal as they had offered a job in Indonesia in their company, " P.T. Rama and Jaya" which was dealing in export and import of garments and finance. He did the job there. He was told that he would be getting Rs. 30,000/- to Rs. 40,000/- as salary per month. For some time he was paid the above salary. Thereafter, he was not paid the complete salary and at times it was paid late. Therefore, he left the job and started working in a restaurant. His passport was retained by the above company which was returned before expiry of the same. He then went to Malayasia and worked there. In the year 2011, he met with an accident and lost his passport. He was taken to the hospital by Malaysian Police from where he was taken to immigration camp where he was detained for about nine months. With the intervention of UN officials, his family members in India were contacted, who paid for his air ticket from Malaysia to India and he was deported to India on a special pass. On arrival at IGI Airport, New Delhi, he was arrested and implicated in this case for the reasons, unknown to him. He was straightaway taken to CBI office, where he was made to sign on a few papers by the IO Shri N.R. Thakur. Immigration officials at IGI Airport had also obtained his signatures on a few papers. They had also beaten him up and forced him to acknowledge names of certain persons.
Court Witness
22. It is pertinent to mention that Smt. Premwati, wife of complainant, was cited as a prosecution witness. Apparently, she was not summoned as a witness and prosecution closed its evidence. Later, accused Lilu Ram moved an CBI Case No. 36/12 14 of 85 application for summoning of Smt. Premwati in his defence and she was summoned accordingly. However, he also did not examine Smt. Premwati. Later, Smt. Premwati herself moved an application for having her evidence recorded. The said application was allowed vide orders dated 31-05-2013 and she was examined as a Court Witness i.e. CW1. After her examination, supplementary statements of the accused persons were recorded under Section 313 Cr.P.C.
23. In the supplementary statements of the accused persons u/s 313 Cr. P.C, the incriminating evidence that has come against them during testimony of CW 1 Premwati, was denied by them.
Defence Evidence
24. Accused Lilu Ram has examined 5 witnesses in his defence. DW 1 Sh. Mithlesh Kumar Jha was earlier posted as DSP in Punjab Cell, CBI, DW 2 Sh. Mahabir Prasad is Office Supdt., SCR-II, CBI, DW 3 Sh. Rajni Ranjan Sahay was SP/ CPIO, CBI, DW 4 Sh. Virender Kumar was earlier residing at Birdhana who had known both the complainant Ram Phal and accused No. 1, Lilu Ram and DW 5 Sh. Sunil Kumar is Councilor, Ward No. 4, Jhajjar. Accused No. 2, Shyam Mohan has examined DW6 Sh. Om Prakash, his neighbour, besides himself deposing as DW 7 in his defence. Accused No. 4, Rakesh Sharma has deposed as DW 8 in his defence.
Arguments on behalf of CBI
25. Shri Manoj Shukla, Ld. PP has argued that prosecution has proved CBI Case No. 36/12 15 of 85 its case beyond reasonable doubt by way of 34 witnesses examined by it. He submits that, PW 4 Ms. Phoolwati, PW 5 Shri Naresh Kumar, PW 6 Shri Sumer Singh, PW 8 Shri Vijay Kumar, PW 11 Shri Vijay Kumar Sharma, PW 23 Shri Naresh Kumar, PW 24 Shri Baljeet Singh and PW 26 Shri Rajbir Singh have been won over by the accused though they have supported prosecution version in their statements u/s 161 Cr.P.C. However, PW 3 Shri Bijender Singh PW 12 Shri Baljeet Singh, PW 13 Shri Jai Prakash, PW 14 Shri Balbir Singh, PW 15 Choudhary Anoop Singh, PW 16 Shri Jaswant Singh, PW 18 Shri Bikar Singh, PW 20 Shri Ramesh Kumar, PW 22 Shri Prahlad Singh, PW 25 Shri Hardeep Singh, PW 32 Shri Sukh Chain Singh, and CW 1 Ms. Premwati have fully supported the prosecution case. PW 2 Shri Jasbir Singh, PW 7 Shri Kalyan Choudhary, PW 9 Shri Sat Pal, PW 17 Shri Raj Kumar Jain, PW 19 Shri Ravi Sehgal and PW 28 Shri Alok Ranjan are technical witnesses. PW 10 Shri Avinash Kumar Sachdev, PW 21 Shri Mahender Rai and PW 27 Shri Gurpreet Singh are witnesses in respect of accused V.P. Arora, who has already been discharged and PW 29 Shri N.R. Thakur, PW 31 Shri R.K. Sangwan, PW 33 Shri A.K. Mishra and PW 34 Shri Dheeraj Khetrapal are the IOs.
26. He argued that conspiracy is always hatched in secrecy. In the present case, though the complainant Ramphal has died and could not be examined, PW 3 Shri Bijender Singh, PW 12 Shri Baljeet Singh, PW 13 Shri Jai Prakash, PW 14 Shri Balbir Singh, PW 15 Choudhary Anoop Singh, PW 16 Shri Jaswant Singh,PW 22 Sh. Prahlad Singh and CW 1 Ms.Premwati have deposed about accused No. 1 Lilu Ram admitting that he had obtained money from CBI Case No. 36/12 16 of 85 complainant Ramphal. The Ticket Sales Register, Ex. PW 10/A, Passport of Ram Phal, Ex. PW 30/B, Passport of accused No. 2 Shyam Mohan, Ex. PW 2/C, the details provided by AFRRO, Ex. PW 19/A, Letter dt. 21-3-2007, Ex. PW 2/F of M/s Sethi Brothers Pvt. Ltd. and Cash Memos No. 10882 and 10883 dated 16-02-2004 of M/s Sethi Brothers Pvt. Ltd., Ex. PW 2/A and Ex. PW 2/D respectively show that accused No. 2 Shyam Mohan took complainant Ramphal to Thailand and then sent him to Indonesia. In Indonesia, accused No. 4 Rakesh Sharma took his Passport and kept him in confinement. The complaints of Ram Phal, Ex. PW 30/C, Ex. PW 9/A and Ex. PW 9/E were admitted by the said complainant before PW 9 Satpal. He thus argues that a complete chain of circumstances had been brought on record to show that accused persons had meeting of mind and they agreed to cheat complainant Ramphal.
27. Ld. P.P. has relied upon Mohd. Usman Vs. State of Maharashtra, (1981) 2 SCC 443 to argue that prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be by necessary implication. He also adverted to Abdul Kadir Salem Mohd. Vs. State, (1963) SCC 864 (Bom) to contend that criminal conspiracy is a continuing offence and applied to all the members whenever any member acts in furtherance of a common design. He has also referred to Firozuddin, Basheeruddin and others Vs. State of Kerala, (2001) 5 SLT 880 to submit that in a case of criminal conspiracy, all the accused persons need not know each other and that if A knows B and B knows C, all three can be held liable for criminal conspiracy.
CBI Case No. 36/12 17 of 85
28. Ld. P.P. reasoned that in Visa on the Passport of complainant Ramphal, it was clearly mentioned, " Employment Prohibited" , still accused persons assured complainant for a job abroad, which clearly show that they had fraudulent/dishonest intention to deceive complaint Ramphal. The fact that accused persons induced complainant Ramphal to deliver money has been proved by the witnesses who deposed about the two meetings of the Panchayat and admission by accused No. 1 Lilu Ram that he has received money from Ramphal and would return the same.
29. Ld. PP also argued that admittedly accused No. 1 Lilu Ram was holding office as a public servant. Sufficient evidence has come on record to show that while holding office, he obtained Rs.2.25 lakhs from Ramphal by illegal means. Thus, he is guilty of criminal misconduct punishable u/s 13 (2) read with section 13 (1) (d) of the P.C. Act.
30. With regard to charge under section 344 IPC, Ld. PP argues that PW3 Shri Bijender Singh, PW 12 Shri Baljeet Singh, PW 13 Shri Jai Prakash, PW 14 Shri Balbir Singh, PW 15 Choudhary Anoop Singh, PW 16 Shri Jaswant Singh, PW 18 Shri Bikar Singh, PW 20 Shri Ramesh Kumar, PW 22 Shri Prahlad Singh, PW 25 Shri Hardeep Singh, PW 32 Shri Sukh Chain Singh, and CW 1 Ms.Premwati have clearly proved that complainant Ramphal was kept in confinement in Indonesia by accused No. 4, Rakesh Sharma in pursuance of criminal conspiracy by the accused persons.
31. Lastly, it has been contended by Ld. PP that though, direct evidence of complainant Ramphal could not be brought on record as he had expired, CBI Case No. 36/12 18 of 85 evidence of other witnesses, though appearing to be hearsay, would be admissible because the same falls within exceptions to the general rule that hearsay evidence is inadmissible. He contends that telephonic conversation of complainant Ramphal and his statements to witnesses regarding refusal by accused No. 1 to return his money, is part of the same transaction of continuous offence of conspiracy, which is admissible under section 6 of the Indian Evidence Act, 1872. (hereinafter referred to as IEA). Similarly, conduct of accused No. 1 Lilu Ram before PW 3 Shri Bijender Singh and during the Panchayat meetings, after allegations were leveled by complainant Ramphal, would be admissible under section 8 of IEA and his admissions of having received money from Ramphal would be admissible under section 17 of IEA. He has relied upon Narayan Bhagwant Rao Vs. Gopal Vinayak, AIR 1960 SC 100, Vasant Singh Vs Janki, AIR 1967 SC 399, Bharat Singh Vs. Bhagirathi, AIR 1966 SC 405 and DTC Vs. Shyam Lal, (2004) (8) SCC 88 to argue that admission is the best proof of the admitted fact.
Arguments on behalf of accused No. 1, Lilu Ram
32. Ms. Manisha Sharma, counsel for accused No. 1, Lilu Ram argued that out of 34 witnesses, examined by the prosecution, PW 4 Smt. Phoolwati, PW 5 Sh. Naresh Kumar, PW 6 Sh. Sumer Singh, PW 8 Sh. Vijay Kumar, PW 11 Ct. Vijay Kumar Sharma, PW 14 Sh. Balbir Singh, PW 23 Sh. Naresh Kumar, PW 24 Sh. Baljeet Singh, and PW 26 Sh. Rajbir Singh have turned hostile. Further, out of 34 documents, relied by the prosecution, documents D-23 to D-20 are copies only. Ms. Manisha Sharma has argued that there is not an iota of CBI Case No. 36/12 19 of 85 evidence or circumstance to prove inducement, which is the main ingredient of the offence under section 420 IPC, as the best witness of the same i.e. the complainant could not be examined. Thus, the contents of his complaint Ex. PW 30/C and affidavit Ex. PW 30/G could not be proved. She further argued that the family members of the complainant i.e. PW 5 Shri Naresh Kumar (brother), PW 6 Shri Sumer Singh (father), PW 8 Shri Vijay Kumar (cousin), PW 20 Shri Ramesh Kumar (brother-in-law), PW 23 Naresh Kumar (brother-in-law) and PW 24 Shri Baljeet (brother-in-law) have not supported the prosecution/complainant's version. PW 20 Shri Ramesh Kumar, who would have been the best witness about the incident of 19-2-2004, has not stated a word about the presence of accused No. 1 Lilu Ram at the airport on the said date. Rest of his statement is not only hearsay but is also in contradiction to the statements of his real brothers PW 23 Shri Naresh Kumar and PW 24 Shri Baljeet Singh. Still he was not got declared hostile by the prosecution. Further, PW 15 Chaudhary Anoop Singh and PW 16 Shri Jaswant Singh have also not supported the prosecution version.
33. It is also contended that PW 12 Shri Baljeet Singh, PW 13 Shri Jai Prakash Rathi, PW 14 Shri Balbir Saini, PW 15 Chaudhary Anoop Singh, PW 16 Shri Jaswant Singh, PW 22 Shri Prahlad Singh and PW 26 Shri Rajbir Singh have given contradictory statements regarding the time, date, place and the alleged amount discussed in the meeting on 16-7-2006. These witnesses are from the locality of the complainant and have deposed against accused No. 1 Lilu Ram on account of political rivalry as proved by DW 5 Shri Sunil Kumar. It is quite odd that the persons who would have been the best witnesses of the CBI Case No. 36/12 20 of 85 Panchayat meetings, i.e. the family members of complainant Ramphal viz. PW 5 Shri Naresh Kumar, PW 6 Shri Sumer Singh, PW 20 Shri Ramesh Kumar, PW 23 Shri Naresh Kumar and PW 24 Shri Baljit Singh have not stated about the Panchayat meeting or their presence there at.
34. Ld. counsel further argues that the defence witnesses produced by accused No. 1 i.e. DW 1 Sh.M.K. Jha and DW 3 Sh. R.R. Sahai have proved that accused No. 1, Lilu Ram was not present in Delhi on 10-2-2004 and 16-2-2004, the dates on which he allegedly committed the acts in question. These facts have also been proved vide court diary, Ex. DW 1/A , reply to RTI application, DW 3/A, GD entry No. 6 dt. 9-2-2004, Ex. PW 11/DA, GD entry No. 7 dt. 19-2-2004, Ex. PW 11/DD, Railway warrant dated 12-01-2004 from New Delhi to Jammu Tawi, Ex. DW 3/B and Traveling Allowance Bill of accused No. 1, Lilu Ram, Ex. DW 3/M. Further, the complainant's version as contained in the complaint, dated 21-07-2006 and prosecution's version in charge sheet qua these dates are contradictory. On the other hand, the evidence of PW 12 Shri Baljit Singh, PW 13 Shri Jai Prakash, PW 14 Shri Balbit Singh, PW 15 Chaudhary Anoop Singh, PW 16 Shri Jaswant Singh and PW 22 Shri Prahlad Singh, being hearsay is inadmissible.
35. Ms. Manisha Sharma also submitted that the sanction for prosecution granted vide order dt. 23-3-2007, Ex. PW 28/A is invalid since PW 28 Shri Alok Ranjan had not checked the records of his own office regarding presence of the accused on the alleged dates which shows non-application of mind. Further, PW 29 Shri N.R. Thakur has concealed the vital part of CBI Case No. 36/12 21 of 85 investigation regarding presence of accused No. 1, Lilu Ram in Delhi on 10-2-2004, 16-2-2004 and 19-2-2004, although such record was available to him in the CBI office as accused No. 1 Lilu Ram was an employee of CBI. PW 29 Shri N.R. Thakur has also not placed on record the documents seized from the premises of Shri V.P. Arora and has favoured him due to reasons best known to him and tried to plant his visiting card which was recovered from the premises of Shri V.P. Arora. She has further argued that various endorsement on the Passport of complainant Ramphal show his movements, inter-alia, as under :-
a) 19-02-2004-arrival at Bangkok (page-26),
b) 10-3-2004-departure from Bangkok (page-26),
c) 10-3-2004-arrival at Dhaka, Bangladesh (page-8),
d) 2-8-2004- departure from Bangladesh (page-8),
e) 2-8-2004- arrival at Bangkok (page 28),
f) 6-8-2004- Visa issued for Indonesia from Bangkok (page 29),
g) 13-8-2004- departure from Bangkok (page 28),
h) 13-8-2004-arrival at Srilanka (page-8),
i) 12-10-2004- departure from Srilanka (page-8),
j) 12-10-2004- arrival at Indonesia (page-31),
k) 30-11-2004-departure from Indonesia (page-31), and
l) 1-12-2004- arrival in India CBI Case No. 36/12 22 of 85 The above movements show that complainant had been travelling and was not confined to Indonesia as alleged by him in his complaint. Moreover, this court has no jurisdiction to try offence under section 344 IPC committed in Indonesia.
36. Ms. Manisha Sharma thus argues that prosecution has totally failed to prove the offence of conspiracy i.e. agreement between the accused persons i.e. meeting of mind of accused persons, chain of circumstances, period of conspiracy, etc. She also argued that Insp. N.R. Thakur, who has conducted preliminary enquiry and on whose complaint, FIR was registered is himself the IO which is against the principles of natural justice. She has relied upon Alpic Finance Ltd. Vs. P. Sadasivan & Anr., AIR 2001 SC 1226, Hira Lal Hari Lal Bhagwati Vs. CBI, AIR 2003 SC 2545 and the State of Kerala Vs. A. Pareed Pillai & Anr. AIR 1973 SC 326 to contend that in case of offence of cheating, the complaint must disclose the essential ingredients of offence i.e. there was fraudulent or dishonest intention and dishonest inducement on the part of the accused,which is lacking in this case. She has also cited L.K. Advani & Ors. Vs. CBI 1997 JCC 294, CBI Vs. V.C. Shukla, AIR 1998 SC 1406, State of Tamil Nadu Vs. Nalini, 1999 Crl. LJ 3124 and Firozuddin Basheeruddin & Ors.Vs. State of Kerala, V (2001) SLT 880 to submit that in cases of conspiracy, the prosecution must prove the factum of the conspiracy by evidence other than the disputed evidence, that more than one accused persons were party to an agreement to accomplish the unlawful object of conspiracy and that mere knowledge or even discussion of the plan is not, per-se, enough. She also referred to Badri Govind Bhilala Vs. State of M.P., 2004 Crl. LJ 3078 to submit CBI Case No. 36/12 23 of 85 that hearsay evidence is not admissible. She also adverted to Ram Das Vs. State of Maharashtra, (1977) 2 SCC 124 to contend that in case of circumstantial evidence, if two inferences are possible, the Court should accept the one which favours the accused. She also relied upon State of U.P. Vs. Sukhbasi & Ors., 1985 SCC (Cri) 387 and Raj Kumar Singh Vs. State of Rajasthan, 2013 Crl. LJ 3276 to argue that suspicion, however grave, cannot take place of proof. She also referred to Melagiriyappa & Anr. Vs. Tumalappa & Anr., AIR 1996 Karnataka 150, Chikkam Koteswara Rao Vs. Chikkam Subarao & Ors., AIR 1971 SC 1542 and Bhagwan Singh Vs. The State of Rajasthan, AIR 1976 SC 985 to argue that admission must be clear and specific. She finally submits that accused No. 1, Lilu Ram has been falsely implicated on account of political enmity, departmental rivalry and to favour someone else in the case.
Arguments on behalf of accused No. 2, Shyam Mohan
37. Shri Chanderbhan, Ld. Counsel for accused No. 2, Shyam Mohan has argued that the complaint and affidavit of complainant have not been proved as the complainant was not examined in this case. Accused No. 2, Shyam Mohan has not been named in the complaint, dated 21-07-2006 of Ramphal. Accused No. 2 Shyam Mohan was also sent abroad for job by Shri V.P. Arora. He has been made an accused only because his name was found in the books of Shri V.P. Arora. There is no evidence of connection between accused No. 1 Lilu Ram and accused No. 2 Shyam Mohan. PW 2 Sh. Jasbir Singh has not stated against accused No. 2 Shyam Mohan. Rather he stated that he does not CBI Case No. 36/12 24 of 85 know any Shyam Mohan. Statement of PW 3 Shri Bijender Singh is hearsay as he did not state that Rs.85,000/- were given by accused Shyam Mohan to complainant in his presence. According to PW 14 Shri Balbir Singh Saini and PW 22 Shri Prahlad Singh, Ramphal had told them that Rs.80,000/- were returned to him by accused No. 1, Lilu Ram, whereas, according to PW 26 Shri Rajbir Singh, one agent had refunded Rs. 80,000/- to Ramphal. No other witness stated that accused Shyam Mohan had given any amount to the complainant. Their statements are also hearsay. The testimony of PW 21 Mahender Rai is of no use, since he had no personal knowledge of the case and the amount of ticket mentioned in the ticket sale register Ex. PW 10A is also not tallying. Ld. counsel further argues that the evidence of PW 25 Shri Hardeep Singh is hearsay. Accused Shyam Mohan never had any account in ABN AMRO Bank. There is no evidence to show that accused No. 2, Shyam Mohan got Visa for complainant Ramphal or took his Passport or that he took Dollars from anybody.
38. Sh. Chander Bhan further argues that there is no receipt/record of the Hotel at Bangkok to show that accused No. 2 Shyam Mohan had stayed with Ramphal in any Hotel. In the Passport of accused No. 2 Shyam Mohan, there is no endorsement that employment was prohibited. No incriminating document has been recovered from accused No. 2 Shyam Mohan. There is no evidence of accused No. 2 Shyam Mohan having taken money. There is also no evidence that PW 32 Sukhchain Singh went to Bangkok as his VISA for the same is not on record. He has also not stated about giving money to accused Shyam Mohan.
CBI Case No. 36/12 25 of 85 Ld. Counsel also argued that CW 1 Premwati did not state that her husband Ramphal told her about accused No. 2 Shyam Mohan. Accused Shyam Mohan neither induced nor promised any job and has not received even a single paisa from the complainant. The complainant did not state in his complaint that he ever visited accused Shyam Mohan's house with PW 3 Bijender. Ld. Counsel further argued that accused Shyam Mohan neither introduced nor handed over Ram Phal to Rakesh Sharma. He had no relation with accused Rakesh Sharma.
39. Shri Chander Bhan also submitted that in various Panchayat meetings, accused No. 2 Shyam Mohan was neither called nor he was named by the complainant or anybody else. Neither the complainant, nor his wife CW 1 Smt. Premwati nor any of their relatives had stated that it was accused No. 2 Shyam Mohan who had returned Rs. 80,000/- to complaint Ramphal. There are different versions regarding handing over of visiting card of V.P. Arora to Ramphal. It is further argued that accused No. 2, Shyam Mohan returned to Delhi on 15-3-2004, whereas, complainant came back later on 01-12-2004. He had no concern with Ramphal or with accused No. 1 Lilu Ram as he is neither from the same village nor of the same caste. He has been falsely implicated by CBI.
Arguments on behalf of accused No. 4, Rakesh Sharma
40. Shri S.C. Malhotra, Ld. counsel for accused No. 4 Rakesh Sharma submitted that there is no mention of the name of accused No. 4 Rakesh Sharma in the complaint dt. 21-7-2006 filed by complainant Ramphal. The prosecution CBI Case No. 36/12 26 of 85 has examined 34 witnesses including chance witness PW 32 Shri Sukhchain Singh and preferred not to examine the material witnesses including Nirbhay Singh and Hakam Singh, allegedly detained in Indonesia and Sardar Bhajan Singh of Karol Bagh through whom money was sent for return of complainant Ramphal and Sardar Harbhajan Singh who provided Ramphal shelter and food at Yayasna Gurdwara at Indonesia. Eight witnesses i.e. PW 4 Phoolwati, PW 5 Shri Naresh Kumar, PW 6 Shri Sumer Singh, PW 8 Vijay Kumar, PW 11 Shri Vijay Kumar Sharma, PW 23 Shri Naresh Kumar, PW 24 Shri Baljit Singh and PW 26 Shri Rajbir Singh have turned hostile, which indicates that CBI had influenced the witnesses during preliminary investigation to make a concocted story. Ld. Counsel argues that the name of accused No. 4 Rakesh Sharma appears only in the statement of PW 8 Shri Vijay Kumar, PW 18 Shri Bikar Singh, PW 20 Shri Ramesh Kumar, PW 29 Shri N.R. Thakur, PW 32 Shri Sukhchain Singh and CW 1 Smt. Premwati. The statements of PW 8 Shri Vijay Kumar, PW 18 Shri Bikar Singh, PW 20 Shri Ramesh Kumar and CW 1 Smt. Premwati being hearsay, has to be discarded as inadmissible. During cross-examination of PW 29 Shri N.R. Thakur, it has come on record that he has not verified the period and the hotel where Ramphal stayed in Bangkok, he had not collected the phone call details, vide which complainant Ramphal communicated his problems to his relatives/friends in India, he did not investigate the mode, by which Ramphal travelled from Bangkok to Indonesia, no incriminating material was recovered from accused No. 4, Rakesh Sharma and he did not investigate with regard to allegation against accused No. 4 Rakesh Sharma in Thailand. He CBI Case No. 36/12 27 of 85 further contended that no TIP of accused No. 4, Rakesh Sharma was conducted and he has not been identified by any witness.
41. Shri S.C. Malhotra also reasoned that though Passport, Ex. PW 30/B was seized by PW 30 Shri V.P.S Mann, investigation was deliberately not done regarding the journeys undertaken by complainant Ramphal during the period of allegations, as well as the Visas procured by him as the same would have exposed the falsification of the complaint made by Ramphal vis-à-vis his stay at Bangkok and Indonesia and his allegation of confinement at Indonesia by accused No. 4, Rakesh Sharma. Ld. Counsel further pleaded that prosecution has failed to establish any conspiracy between the accused persons in as much as that no witness has deposed about the existence of a prior agreement/meetings of minds of the accused persons to commit the offences. CBI has not collected any evidence regarding the call details of the accused persons to establish that they were in touch or that there was any meeting of mind.
42. Sh. S.C. Malhotra also asserted that PW 32 Sukhchain Singh was not cited as a witness but was brought later on as a substitute for PW Hakam Singh who was dropped as he could not be influenced to toe the line of CBI. Even statement of PW 32 Sukhchain Singh is in contradiction to the statement of complaint Ramphal u/s 161 Cr. P.C. Strangely, though complainant Ramphal was allegedly confined in Indonesia, PW 32 Sukhchain Singh stated that it was complainant Ramphal who was bringing food for them, which indicates that Ramphal was moving around at his free will without any restrain. He also argued CBI Case No. 36/12 28 of 85 that there was no lock on the room in which they were made to stay, indicating that they were not confined. Further, statement of PW 2 Sh. Jasbir Singh Sethi and other documentary evidence produced by prosecution regarding issue of foreign exchange for Ramphal, clearly show that he was in possession of only 1000 US Dollars, which is in contradiction of the allegation that accused No. 4, Rakesh Sharma had taken 1400 US Dollars from him on his arrival at Indonesia. He reasoned that if the prosecution story is taken to be true, complainant Ramphal must have spent a substantial amount out of 1000 US Dollars which he carried from India on his stay at Bangkok and purchase of air ticket/ship journey from Bangkok to Indonesia. Then how he could still handover 1400 US Dollars to accused No. 4, Rakesh Sharma has not been explained. Ld. counsel contended that accused No. 4, Rakesh Sharma has been referred as one Rakesh Sharma by various witnesses whereas, another Rakesh Sharma is on record associated as an independent witness who signed the seizure memo of various record of Shri V.P. Arora, as mentioned in the statement of PW 33 Shri Dheeraj Khetrapal. PW 32 Shri Sukhchain Singh has not identified accused No. 4 Rakesh Sharma. It is quite probable that Rakesh Sharma who has signed as an independent witness and was associated with V.P. Arora, might have met Ramphal during his visit to the office of V.P. Arora for collecting air tickets etc. He thus argues that prosecution has failed to prove its case against accused No. 4 Rakesh Sharma, who is innocent and has been falsely implicated without any basis. Ld. counsel has relied upon Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri & Anr., (2011) 2 SCC 532 to argue that hearsay evidence, on which present case is based is not CBI Case No. 36/12 29 of 85 admissible.
Arguments in rebuttal on behalf of CBI.
43. Ld. P.P., in rebuttal, has argued that various stamps regarding arrival and departure on the Passport of complainant Ramphal, cannot negate his version as the Passport was in custody of accused No. 4 Rakesh Sharma and either he has put fake stamps on the said Passport or somebody else might have travelled on the Passport of complainant Ram Phal. He has pointed out that in the stamps dt. 10-2-2004 and 2-8-2004 on page 8 of the Passport, the spellings of Dhaka have been wrongly written as, " DHAXA" and " CHAKA" which indicates that the said stamps are fabricated. Ld. PP also argued that the complainant in this case was Ram Phal and preliminary enquiry was conducted by PW 29 Shri N.R. Thakur, IO of the case. Thus, complainant himself is not IO in the present case. He further contended that contradictions in the statement of witnesses, who have deposed about the two Panchayat meetings, are minor and natural contradictions. He also argued that even if the offence under section 344 IPC was committed in Indonesia, the accused persons can be tried in India by virtue of section 4 of the IPC.
Points for determination
44. In the instant case, the following points were required to be determined :-
A. Charge u/s 120-B r/w section 420 of the IPC against all the accused persons namely accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan CBI Case No. 36/12 30 of 85 and accused No. 4, Rakesh Sharma.
(i) Whether from the beginning of 2004 till 01-12-2004 at Delhi and other places, all the accused persons namely accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma entered into an agreement?
(ii) If so, whether they had agreed to cheat complainant Ram Phal?
(iii) If so, whether in pursuance of the said agreement, complainant Ram Phal was dishonestly induced to pay a sum of Rs.2.25 lacs to accused No. 1 Lilu Ram for a job to be arranged for him in Jakarta, Indonesia?
(iv) If so, whether the aforesaid amount was accordingly paid by complainant Ram Phal?
B. Charge u/s 420 r/w section 120-B of the IPC against all the accused persons namely accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma
(i) Whether from the beginning of 2004 till 01-12-2004 at Delhi and at other places, all the accused persons namely accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma deceived complainant Ram Phal?
(ii) If so, whether the accused persons induced complainant Ram Phal to deliver Rs.2.25 lacs to accused No. 1 Lilu Ram?
(iii) If so, whether the accused persons had induced complainant Ram Phal as above fraudulently or dishonestly?
CBI Case No. 36/12 31 of 85
(iv) If so, whether complainant Ram Phal has paid Rs.2.25 lacs to accused
No. 1, Lilu Ram?
(v) If so, whether, the accused persons cheated complainant Ram Phal as
aforesaid in pursuance of a criminal conspiracy entered into between them?
C. Charge u/s 344 r/w section 120-B of the IPC against all the accused persons namely accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma
(i) Whether from 19-02-2004 to 01-12-2004 at Jakarta, Indonesia, accused No. 4, Rakesh Sharma wrongfully confined complainant Ram Phal?
(ii) If so, whether the aforesaid was done in pursuance of the conspiracy entered into between all the accused persons?
D. Charge u/s 13 (2) r/w section 13 (1) (d) of the PC Act against accused No. 1, Lilu Ram?,
(i) Whether from the beginning of 2004 till 19-02-2004, accused Lilu Ram was a public servant i.e. Sub Inspector in CBI?,
(ii) If so, whether, while holding office as a public servant, accused Lilu Ram obtained a sum of Rs.2.25 lacs for himself and thereby caused pecuniary advantage to himself to the tune of Rs.2.25 lacs?,
(iii) If so, whether accused No. 1, Lilu Ram has obtained the aforesaid sum by corrupt or illegal means?
Undisputed facts
CBI Case No. 36/12 32 of 85
45. The fact that during the relevant period, accused No. 1, Lilu Ram was a public servant i.e. a Sub Inspector in CBI is not disputed. This fact has not only been proved by PW 1 Sh. Surinder Kumar Panchal, PW 7 Sh. Kalyan Choudhary, PW 11 Sh. Vijay Kumar Sharma, PW 29 Sh. N.R. Thakur, PW 30 Sh. V.P.S. Mann, PW 31 Sh. R.K. Sangwan and PW 34 Sh. Dhiraj Khetrapal, but also admitted by accused No. 1, Lilu Ram in his statement u/s 313 Cr.PC. and through DW1 Sh. Mithilesh Kumar Jha and DW3 Sh. Rajani Ranjan Sahay.
Further, the fact that complainant Ram Phal had travelled from New Delhi to Thailand on 19-02-2004 has been established by his passport Ex.PW30/B which was seized by PW30 Sh. V.P.S. Mann vide seizure memo Ex.PW30/A. The departure of complainant Ram Phal from India on 19-02-2004 by flight No. BG-098 and his arrival to India on 01-12-2004 has also been proved by PW19 Sh. Ravi Sehgal through Ex.PW19/A-1. Similarly the fact that accused No. 2, Shyam Mohan had travelled from New Delhi to Bangkok on 19-02-2004 by flight No. BG-098 has been established by his passport, Ex.PW31/A which was seized by PW31 Sh. R.K. Sangwan and by PW19 Sh. Ravi Sehgal through Ex.PW19/A-1. These facts are not disputed by the accused persons.
Appreciation of Evidence
46. The most important witness of the case i.e. Complainant Ram Phal could not be examined as he had expired. The prosecution has thus tried to build its case on circumstantial evidence. In the evidence led by prosecution, there is lot of admixture of hearsay evidence which requires sifting. Prosecution has also relied upon statements u/s 161 Cr.P.C. of witnesses who have not CBI Case No. 36/12 33 of 85 supported the prosecution case as also evidence regarding statements made by accused No. 1, Lilu Ram, inter-alia, at the two panchayat meetings regarding his having received Rs.2.25 lacs from complainant Ram Phal.
47. It is pertinent to note that statement u/s 161 Cr.P.C. can be used only for the purpose specified in Section 162 Cr.P.C. i.e. to contradict a witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. It is well settled that statement u/s 161 Cr.P.C. is not substantive evidence and is thus inadmissible. In this regard, reference can be made to Kalluri Verma Reddi Vs. Reddi Gaugi Reddi and Others, 1958, Crl.L.J. 1118 and Iqbal Singh Vs. State, 1981 Cri LJ 512.
48. Further, as per Section 60 of the IEA, oral evidence must be direct. The principle of best evidence implicit in the IEA requires that in case of oral evidence, only that person who has actually perceived something by that sense by which it is capable of perception should make the statement about it and no one else. Baltasar Gracian, Spanish Philosopher says, " The ear is the area gate of truth but the front door of lies. The truth is generally seen, rarely heard. Seldom she comes in elemental purity, especially from afar; there is always some admixture of the moods of those through whom she has passed."
Hearsay evidence denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Hearsay evidence is CBI Case No. 36/12 34 of 85 excluded on the ground that it is always desirable in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and expressed if they exists, by way of cross-examination. The reason why hearsay evidence is excluded is that the person giving such evidence does not feel any responsibility. Whereas the law requires all evidence to be given under personal responsibility i.e. every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. Further, truth is diluted and diminished with each repetition. In this regard reference can be made to Judgment of the Hon'ble Supreme Court in Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri & Anr., (2011) 2 SCC 532.
49. However, like every rule, the rule of exclusion of hearsay also has exceptions. Admission/confession is one such exception. Admission is considered to be the best evidence that opposing party can rely upon to perceive the facts admitted. But, to rely upon admission, it must be clear and specific and there should be no doubt or ambiguity. In this regard, reference can be made to Chikkam Koteswara Rao Vs. Chikkam Subarao & Ors., AIR 1971 SC 1542 and Melagiriyappa & Anr. Vs. Tumalappa & Anr., AIR 1996 Karnataka 150. However, admission of any incriminating fact is not always an admission of guilt. If the statement by itself is sufficient to prove the guilt of the maker, it is a confession. If on the other hand, the statement falls short of it, it amounts to an 'admission'. Where there is a direct admission of guilt, it is not possible to treat CBI Case No. 36/12 35 of 85 the statement as an admission. An acknowledgment of a subordinate fact not directly involving guilt would be an admission. So long as the inculpatory statement falls short of being an admission of guilt, it can be treated as an admission. There is distinction between making a statement giving rise to an inference of guilt and a statement which directly admits guilt. Where the admission extends only to the acceptance of a circumstance from which an inference of guilt can be drawn, but which is not conclusive to prove the guilt, it can be treated as an admission. The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to authorize a conviction, then it is an admission. No statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession. The above position is clear from the judgments in Manik Malakar Vs. State of Assam, 1976 Cri LJ 1921, Ram Singh Vs. State, AIR 1959 Allahabad 518, Akal Sahu Vs. Emperor, AIR 1948 Pat 62 and Pakala Narayanaswami Vs. Emperor, AIR 1989 PC 473.
50. It is in light of the above position of law that evidence in the present case is to be appreciated. For the sake of convenience, the evidence led by prosecution on the allegations is being discussed broadly under two categories CBI Case No. 36/12 36 of 85 i.e. a) Evidence regarding payment made by Ramphal to accused No. 1, Lilu Ram before he went to Thailand and efforts made by him for return of his money after his return to India, and b) Evidence relating to his travel to Thailand and Indonesia, and during his stay at Thailand and Indonesia.
Evidence regarding payment made by complainant Ram Phal to accused No. 1, Lilu Ram before he went to Thailand, and efforts made by him for return of his money after his return to India.
Payment of Rs.50,000/- in February 2003 and Rs.1,75,000/- in January 2004 by complainant Ram Phal to accused No. 1, Lilu Ram on the latter's assurance for arranging a job abroad for the former .
51. PW3 Ct. Bijender Singh deposed that complainant Ramphal was his cousin (son of maternal uncle). After retiring from Army, he used to remain in the house and quarrel with his family as he had no job. Ramphal told him that a Sub-Inspector by the name of Lilu Ram was in the CBI and his associates send people abroad. He enquired about Lilu Ram from H.C. Surinder Singh, who told him that there was one Lilu Ram in New Delhi Branch of CBI. However, PW 1 H.C. Surinder, who was earlier working in SIC-II, CBI, also known as Punjab Cell, from Feb. 1996 to Dec. 1997, wherein accused Lilu Ram was also posted, has testified that he know Ct. Bijender Kumar of CBI, who was of his caste but he does not remember if he ever asked Bijender Kumar to meet Lilu Ram. PW 3 Ct. Bijender Singh further deposed that he met Lilu Ram in his office and told him that he belongs to his caste and his maternal uncle lives in Jhajjar. He further stated that he told Lilu Ram that he had come to know from his cousin Ramphal CBI Case No. 36/12 37 of 85 that he was engaged in sending people abroad, that his cousin Ramphal was holding a passport, and asked him if he could arrange for his (Ramphal) going abroad. Lilu Ram told him that one of his relatives sends people abroad and that he can arrange for sending Ramphal abroad through his relatives for job. He told this fact to Ramphal. During his cross-examination on behalf of accused No. 1, Lilu Ram, he stated that no money transaction took place in his presence and that Lilu Ram and Ram Phal never talked in his presence for a job abroad.
52. PW 6 Shri Sumer Singh deposed that his son Ramphal, after retirement from Army, was in search of a job. He knew accused Lilu Ram being son of his friend Thakaria. He alongwith Ramphal went to the house of Lilu Ram and Ramphal gave him Rs. 50000/-, but he does not know for what purpose the said amount was given to Lilu Ram. This part of statement of PW6 Sh. Sumer Singh has gone unrebutted as he was not cross-examined on behalf of accused No. 1, Lilu Ram. However, he has not supported the prosecution version on other aspects including payment of Rs.1,75,000/- to accused No. 1, Lilu Ram, though as per complaint, dated 21-07-2006, he was present at the time of payment of Rs.1,75,000/-. He was thus cross-examined by the Ld. P.P. In his cross- examination, he stated that his statement, Ex.PW6/X was recorded by Inspector N.R. Thakur. He denied the suggestions regarding Lilu Ram saying that he will get Ramphal employed abroad, or that after one year Ramphal took him to the residence of Lilu Ram and asked him to return Rs.50,000/-, or that Lilu Ram offered that he could get Ramphal a job abroad if he is given Rs.1,75,000/- besides Rs.50,000/- or that after arranging Rs.30,000/- from him (PW6 Sh.
CBI Case No. 36/12 38 of 85 Sumer Singh) and remaining amount from his relatives and friends, he along with Ram Phal, Baljeet and Naresh etc. went to the residence of Lilu Ram and on asking of Lilu Ram gave him Rs.1,75,000/- and Lilu Ram promised to send abroad for a good job.
53. PW 20 Sh. Ramesh Kumar, Brother in law of Ram Phal, in whose presence, as per complaint, dated 21-07-2006, Ramphal had paid Rs.1,75,000/- to Lilu Ram deposed that Ramphal visited his house before his visit abroad on 19-02-2003. He told him that he had given Rs.50,000/- to accused Lilu Ram for going abroad for the purpose of job. Ramphal told him that accused Lilu Ram who was working with CBI in Delhi had good acquaintance and had promised to send him abroad for job, to whom, he had already given Rs.50,000/- and that accused Lilu Ram was further demanding Rs.1.75 lacs for the said purpose. Ramphal had disclosed to him that for a good job, he was required to pay Rs. 1.75 lacs to accused Lilu Ram, as desired by him. The above statement of PW20 Sh. Ramesh Kumar is hearsay and thus, cannot be relied upon. He further stated that his brothers Sh. Naresh Kumar and Sh. Baljeet had given Rs. 50,000/- and Rs.30,000/- respectively to Ramphal on his asking. The remaining amount besides Rs.80,000/-, as above, was arranged by Ramphal himself. He never visited house of accused Lilu Ram. He has no knowledge as to how the remaining amount was paid by Ramphal to accused Lilu Ram. During his cross- examination on behalf of accused No. 1, Lilu Ram, he stated that Ramphal never paid any money to Lilu Ram in his presence and no talk between Ramphal and Lilu Ram took place about his (Ramphal) employment in foreign country in his CBI Case No. 36/12 39 of 85 presence.
54. PW 23 Shri Naresh Kumar, brother in law of the complainant testified that during 2004, Ram Phal came to him and told that for job, he wanted to go abroad and asked for some money from him, as he had come back after retirement from Army and was having money of his terminal dues and therefore, he had given Rs. 50,000/- to bear the expenses for his visit abroad and job. Ramphal did not disclose to him as to how he was to go abroad and who will arrange for his travel abroad. This witness was also cross-examined by the Ld. Spl. P.P. During his cross-examination, he stated that he was unable to recollect things properly as his mental state was not good. He stated that he does not remember if he was examined by CBI during investigation of case or whether his statement was recorded by CBI. When confronted with the statement Ex. PW 23/X, he denied having made the same to the IO. He also denied other suggestions given to him by the Sr. P.P. including that he has been won over by the accused persons.
55. PW 24 Shri Baljeet Singh, another brother in law of the complainant, deposed that Ramphal told him that he wanted to go abroad for job. He asked for monetary help and borrowed Rs. 30,000/- from him but did not disclose as to for what purpose he required money. He also did not tell him as to whom he wanted to give this money. This witness was also cross-examined by Ld. PP. During his cross-examination, he stated that a CBI Inspector had made some enquiry from him but he does not know if his statement was recorded. He denied suggestions given by Spl. PP regarding Ramphal telling him that Lilu Ram CBI Case No. 36/12 40 of 85 had demanded Rs. 1.75 lakhs more for arranging a job for Ramphal in foreign country. Nothing in favour of prosecution could be elicited during his cross- examination by Ld. Special P.P. Complainant Ram Phal going to the house of accused No. 1, Lilu Ram for return of his money after his return to India.
56. PW 3 Ct. Bijender Singh further deposed that when Ram Phal returned from abroad, he told him that he was sent abroad by Lilu Ram and he (Lilu Ram) had taken money from him but failed to arrange a job for him. This part of statement of PW3 Ct. Bijender Singh being hearsay is to be excluded. He further stated that he asked Ram Phal to contact Lilu Ram or the person to whom he had given money as he was not having time because of his job. After 3-4 days, he went to the house of Lilu Ram and met him. He asked Lilu Ram to return the money of Ramphal and told Lilu Ram that in the beginning, he had said that no money would be required. Lilu Ram told him that he had given Rs. 2.25 lakhs, taken from Ramphal, to Shyam Mohan. He also testified that Ramphal told him that he had demanded Rs. 2.25 lakhs from Lilu Ram but Lilu Ram told him that he had given the money to one of his relatives. This part of statement is also hearsay. He further stated that Ramphal came to him on a holiday and he went alongwith him to the house of Shyam Mohan, which was found locked. After 4-5 months, accused Shyam Mohan returned Rs. 85,000/- to Ramphal. Lilu Ram failed to return the balance amount, so Ramphal made a complaint. PW 3 Ct. Bijender Singh further testified that thereafter, accused Lilu Ram came to him and asked him to get the matter compromised for Rs. 30,000/-
CBI Case No. 36/12 41 of 85 which he could pay to the complainant. Ramphal refused to compromise and demanded his full money. During his cross-examination on behalf of accused No. 2, Shyam Mohan, he stated that he had met accused No. 2, Shyam Mohan for the first time after his arrest by the CBI and no transaction with accused No. 2, Shyam Mohan took place in his presence. He stated regarding receipt of money as told to him by Lilu Ram and Ramphal.
Complainant Ram Phal, again going to the house of accused No. 1, Lilu Ram, along with other persons, after about 4 months for return of his money, (referred to as first panchayat) and meeting held in the house of Chaudhary Anoop Singh on 16-07-2006, (referred to as second panchayat).
57. Statement of PW 12 Shri Baljit Singh that Ramphal told him that he had given Rs. 2,25,000/- to Lilu Ram for sending him abroad for a job, is hearsay which is to be excluded. He further testified that after nine months Ramphal came back and told him that he was unable to find a job and asked him to arrange a Panchayat for getting his money from Lilu Ram. He alongwith Jaswant, Ramphal, Jagbir, Anoop, one Saini and one Jai Prakash Rathi went to the house of Lilu Ram at Jhajjar. They met Lilu Ram. Ramphal narrated his story to Lilu Ram and asked his money back. Lilu Ram said that he had received the money and told Ramphal that he would pay back the money in 1 ½-2 months. They all came back. During his cross-examination, on behalf of accused No. 1, Lilu Ram, he stated that in his presence no amount was paid by Ramphal to Lilu Ram. He does not remember the exact time when Panchayat took place but it had taken place in June-July 2005. Proceedings of Panchayat CBI Case No. 36/12 42 of 85 were not noted down. He denied that they had not gone to the house of accused No. 1, Lilu Ram or that Lilu Ram had not accepted about taking money from Ramphal.
58. Deposition of PW 13 Shri Jai Prakash about complainant Ramphal coming to him about 5-6 years ago and telling him about giving Rs. 2.25 lakhs for going abroad for a job, his being not sent to the country of his choice, being defrauded by Lilu Ram, being unable to get a job, staying in a Gurdwara, meeting a Sikh gentlemen, narrating his woes to the Sikh gentlemen who helped him in coming back to India, after coming back to India, demanding his money from Lilu Ram and his not returning his money, being hearsay is to be excluded. However, he further testified that Ramphal told him that he wanted to hold a Panchayat as whenever he goes to Lilu Ram for demanding his money, Lilu Ram threatens and says that he has no money. He further stated that he, Anoop Singh, Prahlad Singh, Ram Chander and 2-3 more persons gathered at the house of accused Lilu Ram and enquired from Lilu Ram as to what was the matter. Accused Lilu Ram told them that he had taken the money for sending Ramphal abroad for his job and given to somebody else. He further told that he would return the money as and when he is able to get the money. They asked Lilu Ram whether the money was handed over to him or someone else, Lilu Ram said the money was handed over to him and he had handed over the same to someone else. They told Lilu Ram that since money was given to him, the responsibility is his and he should return the money. Lilu Ram showed his inability to return the money and promised to pay the same as and when he receives. They all got up. During his CBI Case No. 36/12 43 of 85 cross-examination, on behalf of accused No.1, Lilu Ram, he stated that Ramphal had not given any money to Lilu Ram in his presence.
59. PW 13 Shri Jai Prakash also deposed that after some days, Naresh, brother of Ramphal came to him and told him that they were all gathering again and asked him to come to the " Baithak" of Anoop. They all gathered there and accused Lilu Ram also came. Ramphal, his father, his brother were also present there. Anoop, Balbir, Prahlad Singh and 2-3 more persons were present there. They asked Ramphal to truly tell everything. Ram Phal said that he would speak the truth in the Panchayat and said that he had received back Rs. 80,000/-. He asked Lilu Ram (sic Ramphal) whether Rs. 80,000/-were paid by Lilu Ram. He said that Lilu Ram had sent him to one person who gave him Rs. 80,000/- and that person said that he had received only Rs. 80,000/- from Lilu Ram and rest are with Lilu Ram. They asked Lilu Ram to tell his side of the story. Lilu Ram said that he had spent Rs. 10,000/-/Rs. 20,000/- more on sending Ramphal. After hearing version of Lilu Ram and Ramphal, the Panchayat asked whether its decision was acceptable to both the parities. They both said that they would abide by the decision of Panchayat. Thereafter, the members of Panchayat discussed the matters amongst themselves. The Panchayat reached the conclusion that Lilu Ram should pay Rs. 1,05,000/- to Ramphal within five days because Ramphal stated that he had taken the said amount on loan and he had to pay the interest on it. Lilu Ram refused to pay the money in five days as he was not having the money. Panchayat said that they can not force Lilu Ram to pay the money and asked CBI Case No. 36/12 44 of 85 Ramphal to take legal recourse. Thereafter, they all went away. During his cross- examination on behalf of accused No.1, Lilu Ram, he stated that the second meeting took place at about 3-4 p.m. It lasted for about 1-1 ½ hours.
60. Similarly, statement of PW 14 Shri Balbir Singh Saini regarding Ramphal telling him that he had given Rs. 2.25 lakhs to Lilu Ram for a job abroad, his remaining abroad for about 8-10 months but not finding a job, and his coming back to India, is hearsay and thus inadmissible. He further testified that Ramphal asked him that in order to get his money back from Lilu Ram, he has to go to Lilu Ram's house alongwith him and two or three more persons for a compromise and for return of the money. He alongwith Ramphal, Anoop Singh, Prahlad Singh, Jai Prakash, Jaswant, Baljeet Singh and one Kablana went to the house of Lilu Ram at Jhajjar. Lilu Ram met them. They asked Lilu Ram to return money to Ramphal. Lilu Ram said that he does not have money but would return the same within 2-3 months. They came back. During his cross-examination on behalf of accused No. 1 Lilu Ram, he stated that a Panchayat took place for about 1 ½ - 2 hours. Though Lilu Ram had agreed to pay the money but no writing work was done.
61. Regarding the second Panchayat, PW 14 Balbir Singh deposed that after about 8-10 months, one more Panchayat was called at the house of Anoop Singh at Jhajjar. The abovesaid persons (he, Ramphal, Anoop Singh, Prahlad Singh, Jai Prakash, Jaswant, Baljit Singh and one Kablana) were also present in the Panchayat and 5-7 other persons were also there who were not known to him. It was decided there that Lilu Ram should pay the money to Ramphal within CBI Case No. 36/12 45 of 85 five days otherwise Ramphal can take legal recourse. Ramphal told that Lilu Ram had returned Rs. 80,000/- to him and in Panchayat it was decided that Lilu Ram would pay a sum of Rs 90,000/- to Ramphal within five days. Lilu Ram said that he would not be able to make arrangements within five days and asked for three day's time to return the amount. Thereafter they all went to their respective houses. This witness was cross-examined by Ld. Sr. PP, during which he admitted that Ramphal had said that he has got back Rs. 80000/- from an agent. He also admitted that it was decided in the Panchayat that Lilu Ram would pay Rs. 1,05,000/- within five days. During his cross-examination on behalf of accused No. 1, Lilu Ram, he stated that in this Panchayat, there were about 50 persons. The Panchayat started at about 7-8 p.m. and continued for about two hours. In his cross-examination on behalf of accused No. 4, Rakesh Sharma, he stated that during the proceedings of both Panchayats, Ramphal had not taken the name of any Rakesh Sharma.
62. Testimony of PW 15 Chaudhary Anoop Singh to the effect that Ramphal told him that he had paid Rs. 2.25 lakhs to Lilu Ram for going abroad, his being sent to some other country and not to the country where he wanted to go, is again hearsay and is to be excluded. He also testified that Ramphal, after coming back from abroad, asked him to accompany him to the house of Lilu Ram for Panchayat; Around 20-30 persons had gone to the house of Lilu Ram for Panchayat, namely one Kamlana, Jai Prakash, Balbir and family members of Ramphal i.e. Naresh, his brother, and father and Baljit were present. Neighbours of Lilu Ram were also present during the Panchayat. During Panchayat, Lilu CBI Case No. 36/12 46 of 85 Ram accepted payment of Rs. 2.5 lakhs from Ram Phal and said that he had given the money to someone else, he does not have money, he would go to the said person to take the money back and then he would pay the money to Ram Phal. Thereafter, they all came back.
63. PW 15 Chaudhary Anoop Singh also testified that after 4-5 months, Panchayat was held in his Baithak at the instance of Ramphal, his brother and his father. In this Panchayat, he, Prahlad, Jai Prakash, Balbir and one more person were the Panchayaties. There were about 40 persons in the Panchayat. After hearing both the parties, it was settled by the Panchayat that Lilu Ram would pay Rs. 1,05,000/- within five days to Ramphal as Ramphal had already received Rs. 80,000/- and Lilu Ram stated that he had spent Rs. 10-20 thousands extra for sending him abroad. Lilu Ram said that he would only be able to pay, if the person, to whom he had given the money, gives the money back to him. On this Panchayat disbursed.
64. During his cross-examination on behalf of accused No. 1, Lilu Ram, PW15 Chaudhary Anoop Singh stated that in his presence, no talks or money negotiations had ever taken place between Lilu Ram and Ram Phal regarding Ramphal's going abroad. He further stated that Ramphal had alleged that he had to take money from some relative of Lilu Ram and Lilu Ram had assured him that he will pursue his relatives to pay back money of Ramphal. He further stated that Ramphal intended to use influence of Lilu Ram as he was in force for getting back his money. All these proceedings relating to money came to his knowledge only on the day when Panchayat was held at his house. He was not aware of the CBI Case No. 36/12 47 of 85 facts that transpired in the prior meetings or Panchayat between Lilu Ram and Ramphal. He admitted that Sh. Satbir Rathi, Sh. Prahlad, Sh. Jai Prakash Rathi and he were neighbours. He also admitted that wife of Sh. Satbir Rathi had contested Municipality elections in Jhajjar. While campaigning for municipality elections in District Jhajjar, he and his associates had gone to the house of Lilu Ram asking them to vote for wife of Satbir Rathi. He also admitted that he was supporting the said candidate. However, he denied that as Lilu Ram and his family had not voted for wife of Satbir Rathi, therefore, there was ill will on his side against Lilu Ram. He further admitted that Satbir Rathi had also contested elections in the year 2005. He alongwith other associates might have gone to Lilu Ram and his family asking them to vote for Satbir Rathi and Jai Prakash Rathi was also with them during that election campaign. He further admitted that Satbir Rathi had also lost election. However, he denied that he had deposed falsely against Lilu Ram at the instance of Satbir Rathi and Jai Prakash Rathi. He further admitted that during the Panchayat which was held in his house, Ramphal had informed that he had already taken Rs.80,000/- from the person from whom money was due towards Ramphal.
65. Deposition of PW 16 Jaswant Singh about Ramphal telling him that he was sent abroad for a job by Lilu Ram but the job could not be arranged, so after staying for about 8-10 months, he had come back, being hearsay, cannot be considered. PW 16 Shri Jaswant Singh further deposed that Ramphal had gone to village Birdhana to arrange a Panchayat in the house of accused Lilu Ram. He, some persons from Kamlana, Baljit Singh, Jaswant Singh, Jagbir Singh and CBI Case No. 36/12 48 of 85 one or two more persons alongwith Anoop and Saini from Jhajjar, went to the house of accused Lilu Ram at Jhajjar. Lilu Ram was present in his house. They asked Lilu Ram to return the amount of money taken by him from Ramphal. Lilu Ram said that he does not have money which was taken by him from Ramphal as he had given the same to someone and would return the same to Ramphal as and when he gets back the same. During his cross-examination, he stated that he does not remember the day, date and year of the Panchayat ,held in the house of accused Lilu Ram. It had taken place in the afternoon. The said Panchayat was not attended by Anoop and Saini till he remained in the house of Lilu Ram. Ramphal wanted that Lilu Ram, who was employed with CBI, should use his influence for getting his money recovered. He admitted that he and Ramphal are relatives of same village. He was one of the members of Panchayat at village Birdhana. In his presence, Ramphal never talked about any money transaction with Lilu Ram. He also stated that prior to this panchayat which he had attended, Lilu Ram was not known to him.
66. PW 22 Shri Prahlad Singh deposed that during March or April 2005, Ramphal contacted him and told him about Lilu Ram taking an amount of Rs. 2.25 lakhs for sending him to a foreign country for a job, his being cheated by Lilu Ram, his being sent to a foreign country but not settling there and coming back to India with the help of one Sardarji who was running a hotel, his demanding money from Lilu Ram and accused Lilu Ram threatening him. This part of his deposition is hearsay and thus cannot be relied upon. PW 22 Sh. Prahlad Singh further deposed that Ramphal also told him that he wanted to CBI Case No. 36/12 49 of 85 request for meeting in Panchayat and invited him to attend the same. During July, 2005, (later corrected to March/April, 2005), he along with Anoop Singh, Jai Prakash Rathi, Balbir Singh Saini, Ramphal, his brother Naresh, his father Sumer Singh and one or two more persons went to the house of accused Lilu Ram for Panchayat on the issue of refund of money. Panchayat questioned Lilu Ram for the aforesaid amount, accused Lilu Ram said that he had already paid the said amount to somebody else and would refund the money when the other fellow, who was an agent for sending people abroad, comes back. He further stated that Ramphal had also told the Panchayat about the fact that accused Lilu Ram had taken Rs.2.25 lakhs from him for sending him abroad and had got him entangled. The Panchayat asked Lilu Ram to refund Rs. 2.25 lakhs which he had taken from Ramphal. Panchayat had given five day's time to Lilu Ram to refund the said amount of Ramphal. On this, accused Lilu Ram said that he would not be able to refund the money within five days and that he will pay the money, only when the agent, to whom he had paid money, return back. Under such circumstances, the Panchayat had returned back from house of accused Lilu Ram without any result.
67. PW 22 Shri Prahlad Singh also stated that thereafter in the month of July 2005, again Panchayat took place at the residence of Chaudhary Anoop Singh, who is Mukhiya of the village. He also participated in the said Panchayat on the request of Naresh, brother of Ramphal. At the house of Chaudhary Anoop Singh, when they reached there, Jai Prakash Rathi, Balbir Singh and other 20-25 persons from the village had collected. Panchayat heard both the CBI Case No. 36/12 50 of 85 parties. In the Panchayat, Ramphal admitted that he had also received back Rs. 80000/- from Lilu Ram and for the remaining amount, the Panchayat settled that Lilu Ram will pay Rs. 1.05 lakhs within five days towards full and final satisfaction of the claim of Ramphal. To this, accused Lilu Ram said that he had no money and that he will not pay the said amount of Rs. 1.05 lakhs within five days. When Lilu Ram did not obey the decision of Panchayat, they told Ramphal to take legal action and the proceedings of Panchayat concluded. During his cross- examination on behalf of accused No.1, he denied the suggestion that no Panchayat had taken place, either in March-April 2005 or July 2005. He further stated that Jaswant Singh and Baljeet Singh were not present with him in the first Panchayat. He also stated that Sh. Balbir Singh, Sh. Jai Prakash Rathi and Sh. Anoop Singh are residents of his mohalla. He denied that Ramphal used to make fake complaints or that he used to help him.
68. CW1 Smt. Premwati, w/o complainant Ramphal testified that accused Lilu Ram belongs to their " Biradari" . He met her husband. He told her husband that he would arrange a job for him, for which her husband should pay Rs. 50,000/-. After about 10-11 months, he again told her husband that her husband should pay Rs. 1,75,000/- and that he would arrange a good job for him abroad. Her husband initially paid Rs. 50,000/- and thereafter, on demand of Rs. 1,75,000/- he paid the amount of Rs. 1,75,000/- to Lilu Ram. Thereafter her husband was sent abroad i.e. Indonesia by accused Lilu Ram through one Shyam Mohan, who met them at Airport. Her husband told her that in Indonesia, he had met one Rakesh Sharma and that his passport etc. had been taken by CBI Case No. 36/12 51 of 85 the said Rakesh Sharma. He further told that after sometime, her husband took back his passport etc. and went to Gurudwara. No job was arranged for her husband. On advice of certain people, he rung up her brother Ramesh at Sakhol. She went to accused Lilu Ram and asked him that either he should arrange for a job for her husband or he should be sent back to India. Accused Lilu Ram told her that since a job could not be arranged, he can be called back and that on his return to India, he i.e. Lilu Ram would return the money. Her brother spoke to somebody in Karol Bagh and sent money to her husband. Thereafter, her husband bought ticket and came to India. After return of her husband, she alongwith her husband again went to accused Lilu Ram for return of her money. He refused to return the money. He said as to whether they had given money for marriage of his daughter. They again went to accused Lilu Ram along with 5-7 persons. He again said that Panchayat can not do anything to him and he again refused to return the money. He also said that they could do whatever they could. She further stated that she does not remember the month and the year when they had gone to accused Lilu Ram.
69. During her cross-examination on behalf of accused No. 2, Shyam Mohan, she stated that whatever she told to CBI in the Rest House at Jhajjar was voluntary and of her own will. She had not gone to the Airport when her husband went abroad. In her cross-examination on behalf of accused No. 4, Rakesh Sharma, she stated that after return to India, her husband told her that accused Rakesh Sharma had taken his passport etc. Her husband told her about accused Rakesh Sharma only after his return to India. During her cross-
CBI Case No. 36/12 52 of 85 examination on behalf of accused No. 1, Lilu Ram, she stated that she had gone to the house of accused Lilu Ram 2-3 times before return of her husband and two times after return of her husband. She denied the suggestion that she had never gone to the house of Lilu Ram, either before return of her husband or after return of her husband. She further stated that she had not personally given money to Lilu Ram but volunteered to state that her husband had given money to Lilu Ram in her presence. She denied the suggestion that her husband had not paid money to accused Lilu Ram in her presence or that the same was told to her by her husband. She was confronted with her statement dt. 30-1-2007 u/s 161 Cr.P.C., Ex. CW 1/D-1, wherein after the narration of the facts, it is recorded, " Uprokt Sabhi Batein Mere Pati Ne Hi Mujhe Batai thi" . As per her statement u/s 161 Cr.P.C., she has gone only twice to the house of Lilu Ram and has not gone to his house after the second time. She also denied the suggestion that her husband wanted help of accused Lilu Ram to recover the money from the Agent. Other suggestions given to her, were also denied. As per prosecution version, CW1 Smt. Premwati was not present at the time when Ramphal made the payment to Lilu Ram or when Ram Phal went to accused No. 1, Lilu Ram for return of his money. In complaint, dated 21-07-2006 also, there is no mention of Smt. Premwati having accompanied her husband Ramphal either at the time of making payment to accused Lilu Ram or later going to him for return of his money. No other witness has stated about CW1 Smt. Premwati going to the house of Lilu Ram. Her statement to the effect that she went along with her husband to accused No. 1, Lilu Ram for return of money appears to be an CBI Case No. 36/12 53 of 85 afterthought. Further as per her statement u/s 161 Cr.P.C., the facts regarding payment of money by her husband to Lilu Ram for going abroad were told to her by Ramphal. The same, being hearsay, cannot be relied upon.
70. DW 4 Sh. Virender Kumar stated that he had known Ramphal, S/o Sumer Singh, R/o Birdhana. Accused Lilu Ram is father in law of his brother Manoj. Ramphal along with one person came to their house around the year 2006. He told him that their money was held up with one agent in Delhi and that they should help him in recovering the same through accused Lilu Ram. They used to call Lilu Ram as " Mausaji" . They refused to do the same. Ramphal again came with the said person in a drunk condition and threatened that he would see them and their "mausaji". They again refused to intervene in his matter and he left after abusing them. During his cross-examination, he stated that Ramphal came to them in order to get his money recovered by using the pressure of CBI through Lilu Ram. He had come to know about the present case from accused Lilu Ram. He denied the suggestion that he was deposing falsely at the instance of accused Lilu Ram.
71. DW 5 Sh. Sunil Kumar stated that he is a Councilor from Ward No. 4, Jhajjar since 2011. He has fought election for the Councilor three times, i.e. in the years 2005, 2010 and 2011. In the year 2005, his opponents were Sh. Satbir Rathi and Sh. Shishu Pal. Accused Lilu Ram had been his supporter since the year 2005. Shri Jai Prakash Rathi, Shri Prahlad, Shri Balbir Saini @ Balley, Shri Anup Singh and Shri Dilawar Saini were the supporters of Shri Satbir Rathi. During election in the year 2005, the above persons had gone to the " Mohalla" of CBI Case No. 36/12 54 of 85 accused Lilu Ram. He was also present there per-chance. There was a small quarrel between the above persons and the accused Lilu Ram on the question of vote, which Lilu Ram had refused to cast in their favour. On this, the above persons threatened to see accused Lilu Ram at an appropriate time. In the year 2000, Smt. Kalawati, w/o Shri Satbir Rathi had also contested the election for councilor. During that election accused Lilu Ram had supported Tripti Devi, who was opposing Smt. Kalawati. During his cross-examination, he stated that he had not filed any complaint against anybody who had not voted in his favour. He had not filed any complaint against Shri Satbir Rathi or his supporters for quarreling with Lilu Ram on account of his not supporting them in the election till date. He denied the suggestion that he was deposing falsely at behest of Lilu Ram. He also denied that no quarrel between Satbir Rathi or his supporters with Lilu Ram, as stated by him, had taken place.
72. It is pertinent to refer here to Munshi Prasad Vs. State of Bihar, (2002) SCC 351, wherein the Hon'ble Supreme Court held that the evidence tendered by the defence witness can not always be termed to be tainted one by reason of the factum of the witness being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on par with that of the prosecution.
73. From the aforesaid evidence, it can be seen that PW 6 Sh. Sumer Singh only stated about Ramphal giving Rs.50,000/- to Lilu Ram. However, he also stated that he does not know for what purpose, the said amount was given CBI Case No. 36/12 55 of 85 to Lilu Ram. There is no direct evidence of Ramphal giving Rs.1,75,000/- to accused No. 1, Lilu Ram. As per prosecution, at the time of payment of Rs. 1,75,000/- by Ramphal to accused No. 1, Lilu Ram, PW 6 Sh. Sumer Singh, Sh. Pradeep and Sh. Dalbeer, both sons of Ramphal, PW 20 Sh. Ramesh and PW 23 Sh. Naresh, both brothers in law of Ramphal were present. However, Sh. Pradeep and Sh. Dalbeer, who were eye witnesses, have neither been cited nor examined by prosecution. No reason has been given for excluding them. Further PW 6 Sh. Sumer Singh, PW 20 Sh. Ramesh and PW23 Sh. Naresh have not supported the prosecution in this regard. Their statements u/s 161 Cr.P.C., relied upon by the prosecution, not being substantive evidence cannot help the prosecution. Further statements of PW 12 Sh. Baljeet Singh, PW 13 Sh. Jay Prakash, PW 14 Sh. Balbir Singh Saini, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh regarding Ramphal telling them about his paying Rs.1,75,000/- to accused No. 1, Lilu Ram for going abroad for a job and being cheated by accused No. 1, Lilu Ram being hearsay are to be excluded.
74. However, PW 3 Sh. Bijender Singh stated about accused No. 1, Lilu Ram telling him that he had given Rs.2.25 lacs taken from Ramphal to Shyam Mohan. Further, PW12 Sh. Baljeet Singh, PW 13 Sh. Jay Prakash, PW 14 Sh. Balbir Singh Saini, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh have deposed regarding the two meetings/Panchayats, and accused No. 1, Lilu Ram admitting that he has taken Rs.2.25 lacs from complainant Ramphal and given it to somebody and that he CBI Case No. 36/12 56 of 85 would return the money after the other person returns the same. However, cross- examination of PW 15 Chaudhary Anoop Singh and testimony of DW 5 Sh. Sunil Kumar also show that accused No. 1, Lilu Ram had political affiliation opposite to that of PW 15 Chaudhary Anoop Singh, Sh. Jai Prakash Rathi, Sh. Satbir Rathi, Sh. Prahlad, Sh. Balbir Saini and Sh. Dilawar Saini. The possibility of rival political affiliations influencing the depositions of PW 15 Chaudhary Anoop Singh, PW 22 Sh. Prahlad Singh and PW 14 Sh. Balbir Singh cannot be ruled out. There are also contradictions in the testimonies of PW 3 Ct. Bijender Singh, PW 12 Sh. Baljeet Singh, PW 13 Sh. Jai Prakash, PW 14 Sh. Balbir Singh, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh with regard to date and time of the two panchayats and the persons who attended the same, though the same can be attributed to lapse of time and difference in capabilities of different persons to observe, remember, recall and reproduce the facts, before the court. But, even if the testimonies of PW 3 Ct. Bijender Singh, PW 12 Sh. Baljeet Singh, PW 13 Sh. Jai Prakash, PW 14 Sh. Balbir Singh, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh are believed, the same only show admission by accused No. 1, Lilu Ram of monetary transaction between complainant Ramphal and him i.e. his taking Rs.2.25 Lakhs from Ramphal and giving it to accused No. 2, Shyam Mohan or some other person for arranging a job for Ramphal abroad. However, there is no admission of guilt viz. that he conspired with other accused persons to cheat Ramphal or that he obtained Rs.2,25,000/- by corrupt or illegal means, on which he could be held guilty. Further, it is not clear on what terms CBI Case No. 36/12 57 of 85 and conditions the monetary transaction took place or what representations were made by accused No. 1, Lilu Ram to Ram Phal or what was the understanding between them, as complainant Ramphal could not be examined by the prosecution. Further, as per PW 13 Sh. Jai Prakash, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh, accused Lilu Ram has stated that he has given money to someone. CW 1 Smt. Premwati also deposed that accused No. 1, Lilu Ram told her whether they had given money for marriage of his daughter. If their depositions are believed, it is also possible that accused Lilu Ram merely acted as a messenger/carrier and only passed on the money taken from Ramphal to someone else. The statements of the above witnesses when seen in totality of the evidence produced on record, as discussed in succeeding paragraphs, are not sufficient to prove the allegations against the accused persons.
75. As per prosecution, accused No. 1, Lilu Ram had handed over money to accused No. 2, Shyam Mohan near gate No. 1 of CGO Complex in presence of Ct. Vijay Kumar Sharma. However, PW 11 Sh. Vijay Kumar Sharma has denied the same. He stated that nothing happened in his presence, relating to this case. Nothing happened in his presence in relation to this case in the month of Jan. and Feb. 2004. In his presence, no talk of exchange of money took place between accused No. 1 Lilu Ram and other persons.. No exchange of money between anybody took place in his presence. This witness was also cross-examined by the Ld. Sr. PP. However, nothing in favour of the prosecution could be elicited as he stated that his statement was not recorded by the IO and CBI Case No. 36/12 58 of 85 only inquiries were made from him. He denied having made statement, dated 01-02-2007, Mark PW11/X. He also denied various suggestions given by Ld. Sr. P.P. regarding accused No. 1, Lilu Ram handing over packet of currency notes to someone in the month of January/February 2004, outside Gate No. 1 of CGO Complex. There is thus no evidence that accused No. 1, Lilu Ram handed over the money to accused No. 2, Shyam Mohan.
Accused No. 1, Lilu Ram calling the complainant Ram Phal to his house, in the evening of 16-07-2006; and threatening him with revolver/pistol.
76. In this regard, PW 5 Naresh Kumar was the only eye witness besides complainant Ramphal. However, he expressed his ignorance about this case and was thus cross-examined by the Ld. Sr. PP. During cross-examination by Ld. Sr. PP, he only admitted that on 16-7-2006 in the evening, Lilu Ram had called Ramphal to his residence, through his son, and he alongwith Ramphal visited the residence of Lilu Ram. However, he denied other suggestions given by Ld. Sr. PP with regard to his statement, Mark PW 5/X, U/s 161 Cr.P.C., and regarding accused No. 1, Lilu Ram threatening complainant Ramphal with a revolver.
77. On the other hand, DW3 Sh. Rajni Ranjan Sahay testified that he was also the CPIO for an initial period while holding the post of SP in CBI. He has given the reply dated, 13-02-2008, Ex.DW3/A as CPIO to the application moved by accused No. 1, Lilu Ram. He further stated that all the documents i.e. copies of office record, supplied to applicant Lilu Ram vide his reply dated 13-02-2008, Ex.DW3/A were taken from the original record. The prosecution has CBI Case No. 36/12 59 of 85 not disputed the record supplied by this witness vide Ex.DW3/A. He has, inter- alia, proved relevant page of the Weapon Register, Ex.DW3/L according to which accused No. 1, Lilu Ram had on 14-03-2005 returned to the Malkhana Revolver No. 162-01026 with 10 live cartridges. No evidence has been led by prosecution that accused No. 1, Lilu Ram was thereafter issued any service weapon or that he was in possession of any other weapon on 16-07-2006. Thus, there is no evidence that on 16-07-2006, accused No. 1, Lilu Ram had threatened complainant Ramphal with a revolver or otherwise.
B. Evidence regarding travel of complainant Ramphal to Thailand and Indonesia, and during his stay at Thailand & Indonesia.
Accused No. 1, Lilu Ram arranging a Visa for complainant Ram Phal and showing the same to him on 10-02-2004 and presence of accused No. 1, Lilu Ram at IGI Airport on 19-02-2004.
78. In his complaint, dated 21-07-2006, complainant Ram Phal stated that on 10-02-2004, accused Lilu Ram had obtained Visa for him. As per chargesheet, accused No. 1, Lilu Ram called the complainant Ramphal, through his son, on 10-02-2004 and showed him a stamp dated 10-02-2004 on his passport and told that his job VISA had been affixed. However, he did not handover the passport to Ramphal. Further, according to prosecution, accused No. 1, Lilu Ram handed over complainant Ramphal to accused No. 2, Shyam Mohan at IGI Airport, New Delhi on 19-02-2004. He also handed over a visiting card of V.P. Arora, US Dollars 1000 along with a receipt thereof to complainant Ramphal.
CBI Case No. 36/12 60 of 85
79. No evidence has been led by prosecution to show that it was accused No. 1, Lilu Ram who obtained Visa for Ram Phal on 10-02-2004 or that he handed over visiting card of V.P. Arora, a receipt of US Dollars 1000 issued by M/s Sethi Brothers Pvt. Ltd., or US Dollars 1000 to the complainant Ramphal on 19-02-2004.
80. Rather, on this aspect, PW 11 Shri Vijay Kumar Sharma who, in the year 2004, was posted as Constable in Spl. Crime Region-II and was assigned general duty, assisting the Pairvi Officer of TADA cases in Jammu & Kashmir and looking-after service of summons and warrants, stated that accused Lilu Ram was Pairvi Officer in TADA cases which were under trial in Jammu & Kashmir. During his cross-examination on behalf of accused No. 1 Lilu Ram, he stated that, vide GD entry No. 6 dt. 9-2-2004, Ex. PW 11/DA, he had left CBI office alongwith accused Lilu Ram on 9-2-2004 at 1:45 p.m., for going to Jammu Tawi for attending TADA matters. They reached Jammu Tawi early in the morning on 10-2-2004. On 10-2-2004, he alongwith accused Lilu Ram attended TADA Court, Jammu in connection with H.L. Khera murder case. They came back to Delhi on 13-2-2004 vide GD entry No. 6 at 2.35 p.m., Ex. PW 11/DB. His statement to this effect has gone unrebutted.
81. PW 2 Shri Jasbir Singh Sethi, Director of M/s Sethi Brothers Pvt. Ltd., 6/79, WEA, Karol Bagh, New Delhi, which was dealing in ticketing, hotel bookings, Visa services and foreign exchange has testified about the following documents :-
(i) Cash memo, No. 10882 dt. 16-2-2004, Ex. PW 2/A of M/s Sethi Bros. Pvt.
CBI Case No. 36/12 61 of 85 Ltd. vide which 1000 US Dollars have been sold to Ramphal for Rs.46,250/-,
(ii) Entry, Ex. PW 2/B, made on page No. 34 of passport, Ex.PW30/B regarding sale of 1000 US Dollars to Ramphal on 16-02-2004,
(iii) Entry, Ex.PW2/C-2, made on page No. 33 of passport, Ex.PW2/C-1 regarding sale of 2000 US Dollars to accused No. 2, Shyam Mohan on 16-02-2004,
(iv) Cash memo No. 10883, dated 16-02-2004, Ex.PW2/D of M/s Sethi Bros.
Pvt. Ltd. vide which 2000 US Dollars have been sold to Mohan Shyam for a sum of Rs.92,500/- and endorsement regarding receipt of cheque No. 922382 of ABN AMRO Bank for Rs.92,500/-, on Ex.PW2/D,
(v) Cash memo No. 10369, dated 10-12-2003, Ex.PW2/E of M/s Sethi Bros. Pvt. Ltd., vide which 2000 US Dollars have been sold to Mohan Shyam for a sum of Rs.93,000/- and endorsement on the same regarding payment having been received through cheque No. 331095 of ABN AMRO Bank.
He further deposed that for an amount of Rs. 50,000/- or above, they used to take payment by cheque or Bank draft. There is no evidence as to who was the account holder of the account from which cheques No. 922382 and 331095 were issued. The above evidence show that both complainant Ramphal and accused No. 2, Shyam Mohan were sold US Dollars 1000 & 2000 respectively by M/s Sethi Brothers Pvt. Ltd. on 16-02-2004.
82. DW 1 Shri Mithlesh Kumar Jha, who was posted as DSP, SIC-II, (also known as Punjab Cell), CBI, New Delhi from May 1990 to Sept. 1992, CBI Case No. 36/12 62 of 85 testified that he was IO of case bearing FIR No. RC 8/S/90-SIU-V, SIC- II/CBI/New Delhi, known as Mir Wais Maulvi Farooq Murder Case. The trial of the said case took place at Jammu and he was examined as a witness in the said case. The court diary of the case used to be prepared by the prosecuting officer and submitted to the concerned Branch of CBI. The court diary dt. 11-2-2004 and 12-2-2004, Ex. DW 1/A pertaining to the above case had been prepared by Shri M.L. Thusoo, Prosecutor and it bears his signature at point A. He further testified that normally he used to reach Jammu, a day before the date fixed in the court. So long as he was examined in the above case as a witness, accused Lilu Ram was the Pairvi Officer till he retired. He stated that the name of Lilu Ram is mentioned in the court diary Ex. DW 1/A but it was very difficult to remember whether Lilu Ram was physically present in the court on 11-2-2004 and 12-2-2004, since the matter is very old. He used to meet Pairvi Officer on reaching Jammu which used to be one day before the date of hearing. The CBI file used to be with the Pairvi Officer and he used to go through the said file before giving evidence in the court since he had already retired by then. In the above case also he had seen the CBI file, one day prior to the date of hearing. During his cross-examination by the Ld. Spl. PP, he stated that so far as he remembers, in all the cases at Sri Nagar, accused Lilu Ram was the Pairvi Officer. It was possible that there could be more than one Pairvi Officer. In the above case, accused Lilu Ram was the only Pairvi Officer. To the suggestion that Shri Bansi Lal Bhatt was Sr.Spl. PP in the above case, he stated that he does not remember. He denied the suggestion that it was not essential that Pairvi Officer CBI Case No. 36/12 63 of 85 should be present at Jammu, one day before the date of hearing or that he could reach Jammu in the morning of the date fixed in the court. He volunteered to state that accused Lilu Ram used to remain in Jammu for 15-20 days in a month.
83. DW3 Sh. Rajani Ranjan Sahay, who as SP/CPIO, CBI had given reply dated 13-02-2008, Ex.DW3/A to the application under RTI Act, moved by accused No. 1, Lilu Ram, has proved the following documents :-
(i) GD Entry, dated 09-02-2004, Ex.PW11/DA, as per which at 1:45 P.M., accused Lilu Ram proceeded to Jammu Tawi to attend TADA Court in cases RC 6/S/90, 8/S/90 and 3/S/90 along with Sh.Vijay Kumar Sharma,
(ii) GD Entry, dated 13-02-2004, Ex.PW11/DB, according to which accused Lilu Ram and Ct. Vijay Kumar Sharma arrived at 2:35 P.M., from Jammu after attending TADA Court cases in RC 6/S/90, 8/S/90 and 3/S/90,
(iii) GD Entry, dated 16-02-2004, Ex.PW11/DC as per which accused Lilu proceeded at 1:50 P.M. to Jammu Tawi to attend TADA Court in RC 1/S/92 along with Vijay Kumar Sharma,
(iv) GD Entry, dated 19-02-2004, Ex.PW11/DD as per which accused Lilu Ram and Ct. Vijay Kumar Sharma arrived at 3:20 P.M. after attending TADA Court at Jammu in RC 1(S) 92,
(v) Railway warrant No. 821/053, Ex.DW3/B, dated 12-01-2004 issued to SI Lilu Ram for his journey from New Delhi to Jammu Tawi,
(vi) Railway warrant No. 805/090, Ex.DW3/C, dated 29-12-2003 issued to SI Lilu Ram for his journey from Jammu Tawi to New Delhi, CBI Case No. 36/12 64 of 85
(vii) Railway warrant No. 821/054, Ex.DW3/D, dated 12-01-2004 issued to SI Lilu Ram for his journey from New Delhi to Jammu Tawi,
(viii) Railway warrant No. 821/055, Ex.DW3/E, dated 12-01-2004 issued to SI Lilu Ram for his journey from Jammu Tawi to New Delhi,
(ix) Court diary, dated 10-02-2004, Ex.DW3/F, in respect of TADA Court, Jammu, in Branch case No. RC 6 (S) 90, wherein the name of Pairvi Officer is mentioned as SI Lilu Ram,
(x) Court diary, dated 11-02-2004, Ex.DW1/A in respect of TADA Court, Jammu in Branch Case No. RC 8/S/90-SIU V, SIC II CBI, New Delhi wherein the name of Pairvi Officer is mentioned as SI Lilu Ram,
(xi) Court diary, dated 12-02-2004, Ex.DW3/G, in respect of TADA Court, Jammu in Branch Case No. RC 3/S/90 wherein the name of Pairvi Officer is mentioned as SI Lilu Ram,
(xii) Court diary, dated 12-02-2004, Ex.DW3/H, in respect of TADA Court, Jammu in Branch Case No. RC 8(S)/90 wherein the name of Pairvi Officer is mentioned as SI Lilu Ram,
(xiii) Court diary, dated 17-02-2004, Ex.DW3/I in respect of TADA Court, Jammu in Branch Case No. RC 1(S) 92 wherein the name of Pairvi Officer is mentioned as SI Lilu Ram,
(xiv) Weekly diary for the week ending 15-02-2004, Ex.DW3/J of accused Lilu Ram wherein it is, inter-alia, mentioned that he had reached Jammu Tawi at 7:20 A.M. on 10-02-2004 and attended TADA Court, Jammu, on 10-02-2004 in case CBI Case No. 36/12 65 of 85 RC 6/S/90, on 11-02-2004 in RC 8/S/90 and on 12-02-2004 in RC 3/S/90 and 8/S/90 and he reached New Delhi Railway Station on 13-02-2004 at 12:05 P.M.,
(xv) Weekly diary for the week ending 22-02-2004, Ex.DW3/K of accused Lilu Ram wherein it is, inter-alia, mentioned that accused Lilu Ram had reached Jammu Tawi Railway Station at 6:40 A.M. on 17-02-2004 and attended TADA Court, Jammu in RC 1 (S)/92, and on 18-02-2004, he adjusted the case properties of J & K TADA Cases in the court record and left for Headquarter by Jhelum Express. It is further mentioned that on 19-02-2004, he reached New Delhi Railway Station at 10:35 A.M. and attended office at 3:20 P.M., (xvi) TA Bill for the month of February 2004, Ex.DW3/M of accused Lilu Ram wherein he has claimed TA, inter-alia, for his travel from New Delhi to Jammu Tawi on 09/10-02-2004, from Jammu Tawi to New Delhi on 12/13-02-2004, from New Delhi to Jammu Tawi on 16/17-02-2004 and from Jammu Tawi to New Delhi on 18/19-02-2004.
The above official documents have not been disputed by the prosecution. The same have been made in the course of official duties which can be presumed to have been regularly performed, in terms of illustration (e) to Section 114 IEA. The same clearly show that accused No. 1, Lilu Ram was at Jammu on 10-02-2004 and on 19-02-2004, he had returned to New Delhi at 10:35 A.M. and joined his office at 3:20 P.M.
84. From the above, it is clear that accused No. 1, Lilu Ram was not in Jhajjar/Delhi on 10-02-2004 but he was present in Jammu on the said day. The CBI Case No. 36/12 66 of 85 testimony of PW11 Ct. Vijay Kumar Sharma, DW1 Sh. Mithlesh Kumar Jha and DW3 Sh. Rajani Ranjan Sahay prove that accused No. 1, Lilu Ram, along with PW11 Ct. Vijay Kumar Sharma left New Delhi for Jammu Tawi on 09-02-2004, reached Jammu on 10-02-2004 and attended the court proceedings in the case of Mir Wais Maulvi Farooq murder case on 11-02-2004 and 12-02-2004. Thus, there was no occasion for accused No. 1 to call Ramphal and show him VISA on his passport on 10-02-2004. The testimonies of PW 11 Ct. Vijay Kumar Sharma, DW 1 Sh. Mithlesh Kumar Jha and DW 3 Sh. Rajani Ranjan Sahay nullifies the prosecution version that accused No. 1, Lilu Ram had obtained Visa for Ramphal on 10-02-2004 or that he called Ramphal on 10-02-2004 or showed him stamp, dated 10-02-2004 on his passport.
85. There is also no evidence, whatsoever, led by prosecution to the effect that accused No. 1, Lilu Ram was present at the IGI Airport on 19-02-2004 or that he handed over visiting card of V.P. Arora, or receipt of US Dollars 1000 or US Dollars 1000 to complainant Ramphal. Further, PW 11 Shri Vijay Kumar Sharma, during his cross-examination, stated that vide GD entry No. 7 dt. 16-2-2004 at 1.50 p.m., Ex.PW 11/DC, in the handwriting of accused Lilu Ram, he along with accused Lilu Ram had left for Jammu Tawi and that GD entry No. 7, dated 19-02-2004 at 3:20 P.M., which is an original entry is in his handwriting. This statement of PW11 Sh. Vijay Kumar Sharma has gone unrebutted. The said entries made in the normal course of official duty, which can be presumed to have been regularly performed, show that accused No. 1, Lilu Ram had reached New Delhi Railway Station at 10:35 A.M. and attended office at 3:20 P.M., on CBI Case No. 36/12 67 of 85 19-02-2004. Weekly Diary for the week ending 22-02-2004, Ex.DW3/K and TA Bill for the month of February, 2004 Ex.DW3/M in respect of accused No. 1, Lilu Ram proved by DW3 Sh. Rajani Ranjan Sahay also corroborate the above fact. The above evidence goes to show that accused No. 1, Lilu Ram was busy in his official duties with regard to TADA cases at Jammu w.e.f. 16-02-2004 till he returned to New Delhi at 10:35 A.M. on 19-02-2004 and joined his office at 3:20 P.M. on that day.
Complainant Ram Phal and accused No. 2, Shyam Mohan going to Bangkok from IGI Airport, New Delhi, on 19-02-2004.
86. There is no dispute that both the complainant Ramphal and accused No. 2, Shyam Mohan had gone from IGI Airport to Bangkok, Thailand on 19-02-2004 vide flight No. BG-098. PW 21 Shri Mahinder Rai, who has worked as Field Officer in M/s Jaysurya Overseas, from Oct. 94 to July 95, has deposed about the ticket sale register Ex. PW 10/A of M/s Jaysurya Overseas from 1-11-2003 to 31-3-2004. He further stated that vide entry at point A on page No. 72 of Ex. PW 10/A, tickets were sold to Mr. Shyam Mohan and Mr. Ramphal for a gross fare of Rs. 39,460/- and the bills were shown to have been paid by Shyam Mohan vide invoice No. 3996. During his cross-examination on behalf of accused Shyam Mohan, he admitted that the entries in the register Ex. PW 10/A, were not made in his presence as he remained in the field most of the times and he also could not identify as to which employee of the firm had made entries in the register.
87. PW 20 Shri Ramesh Kumar, brother in law of complainant CBI Case No. 36/12 68 of 85 Ramphal, deposed that on 19-2-2004, he had accompanied Ramphal to IGI Airport, where accused Shyam Mohan met them in the parking of the airport and from there accused Shyam Mohan took Ramphal inside the airport. Ramphal disclosed to him that he was going to Bangkok alongwith accused Shyam Mohan.
88. PW 19 Shri Ravi Sehgal, AFRRO, at R.K. Puram, New Delhi during the year 2006, deposed that in response to CBI letter, vide letter Ex. PW 19/A, a photocopy of departure of Shyam Mohan and Ramphal as well as arrival of Shyam Mohan, Mark 19/X and computerized print out in respect of Ramphal, Mark 19/4 were sent. Vide another letter dt. 21-3-2007, Ex. PW 19/A-1 he had provided the requisite information, to the CBI. As per letter, dated 21-03-2007, Ex.PW19/A-1, Ram Phal had departed from India on 19-02-2004 vide flight No. BG-098 and has arrived in India on 01-12-2004 vide flight No. UL-191 and Mohan Shyam had departed from India inter-alia on 19-02-2004 vide flight No. BG-098 and arrived in India on 15-03-2004 vide flight No. BG-097.
89. From the aforesaid evidence, it is clear that accused No. 2, Shyam Mohan and Ramphal had travelled from New Delhi together to Bangkok vide flight No. BG-098 on 19-02-2004. However, in the absence of complainant Ramphal, it is not clear as to whether there was any connection between them and if so, what was the connection/understanding between them when they travelled to Bangkok in the same flight on 19-02-2004.
90. PW 18, Shri Bikar Singh has stated about another instance when accused Shyam Mohan, to whom he was introduced by Smt. Naseeb Kaur and CBI Case No. 36/12 69 of 85 her son Amandeep Singh, has taken his son Nirbhay Singh, his nephew Hakam Singh and one relative Sukhchain Singh, to Thailand for employment on 11-12-2003 and his lodging FIR against Smt. Naseeb Kaur and her son Amandeep Singh at Malerkotla. However, the same is not of use to the prosecution since complainant Ramphal has not been examined to prove the role of accused No. 2 Shyam Mohan in the present case.
Complainant Ram Phal being taken to Jakarta, Indonesia on 24-02-2004 and his stay there till his return to India on 30-11-2004/01-12-2004.
91. The evidence led on this issue has a bearing on the overall prosecution case. There is no direct evidence on this issue since Complainant Ramphal could not be examined. The prosecution has not specified by which mode, Ramphal has gone to Indonesia on 24-02-2004. PW 20 Shri Ramesh Kumar, brother in law of complainant Ramphal, testified that after reaching Bangkok, Ramphal called at his residential phone many times. He used to tell him over phone that he has not been arranged job in Bangkok and there, he was introduced to one Rakesh Sharma who had also kept passport of Ramphal and that he was at the mercy of Gurdwara for food and shelter. Ramphal told over phone that he was not arranged any job and was unemployed. He also told that several other persons like him were also held up there under the pretext of getting a good job and that he was fearing for his life. The above statement of PW 20 Shri Ramesh Kumar, being based on facts told to him by complainant Ramphal, is hearsay and thus inadmissible. However, he further stated that complainant Ramphal requested him to save him and call him back to India.
CBI Case No. 36/12 70 of 85 Ramphal also told him that if he pays Rs.20,000/- to one Sardar Bhajan Singh of Karol Bagh, New Delhi, the money will reach him and he will be able to come to India. Thereupon he paid Rs. 20,000/- to Sardar Bhajan Singh at Gurdwara Road, Karol Bagh, Delhi. Thereafter Ramphal returned to India and met him after 10-11 months.
92. PW 32 Sh. Sukhchain Singh has testified about his travel to Indonesia and Thailand on assurance of one Naseeb Kaur and Amandeep that they will arrange a job for him either in Indonesia or Thailand and his paying a sum of Rs.2,35,000/- to them. He further stated that for getting the papers prepared, Naseeb Kaur brought him to Delhi and introduced him to accused No. 2, Shaym Mohan. He had taken the flight from IGI Airport. Accused No. 2, Shaym Mohan was also with him. Besides him, two other persons namely Hakam Singh and Nirbhay Singh had also been taken. On reaching Bangkok, accused No. 2, Shyam Mohan made them to stay with one Rakesh Kumar. They remained in Bangkok for three and a half months. In Bangkok, he met many persons. One Ramphal also met them who was staying in the same hotel in which they were staying. They used to talk to each other. Ramphal was resident of Haryana and was in armed forces. Thereafter, Rakesh had taken him, Hakam Singh and Nirbhay to Indonesia. No work was made available for them in Indonesia. During their stay in Bangkok or Indonesia, they used to get meal occasionally when the same used to be brought for them by Ramphal. He also deposed about contacting his family members, returning to India and asking Naseeb Kaur for return of money.
CBI Case No. 36/12 71 of 85
93. During his cross-examination on behalf of accused No. 2, Shyam Mohan, he stated that accused No. 2, Shaym Mohan remained with them in Bangkok for 4-5 days. After taking them to Bangkok, accused No. 2, Shaym Mohan made them meet Rakesh Kumar and told them that Rakesh Kumar will get them the job. He admitted that Rakesh Kumar told them that he will get them the job. He has never spoken regarding money or job with Shyam Mohan. During his cross-examination on behalf of accused No. 4 Rakesh Sharma, he stated that Rakesh had taken them to Indonesia from Bangkok who had made arrangement of a room for them and made them stay in that room itself for about 4-5 months. They had stayed in Bangkok for about three and a half months. Rakesh Sharma had taken their passports and told them not to come out of the room where he made them to stay. He had not locked the room. He further stated that as they were not having their passports with them, they did not go to police in Indonesia to lodge any complaint against Rakesh Sharma. After getting their passports back, he had not lodged any complaint against Rakesh Sharma with police in Indonesia. He further stated that they had gone to Indonesia from Bangkok by air. Ramphal had reached Bangkok after about 10-15 days of their arrival in Bangkok and he had stayed with them in the same hotel. Ramphal had gone to Indonesia with them in the same flight. This witness has not identified accused No. 4, Rakesh Sharma as the same Rakesh Sharma who has taken them to Indonesia or made them stay in a room. No other eye witness has been examined who could identify accused No. 4 Rakesh Sharma.
94. Accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma CBI Case No. 36/12 72 of 85 have also appeared as DW 7 & DW 8 respectively and generally deposed on the lines of their statements u/s 313 Cr.P.C.
95. It is pertinent to note that according to PW32 Sh. Sukh Chain Singh, Ramphal had reached after about 10-15 days of their arrival in Bangkok. Further, that they had stayed in Bangkok for about 3½ months and that Ramphal had gone with them in the same flight. If PW 32 Sh. Sukhchain Singh is to be believed, complainant Ramphal has also stayed in Bangkok for about 3 months. However, according to prosecution, complainant had reached Bangkok on 19-02-2004 and left for Indonesia on 24-02-2004. There is also no entry on his Passport, Ex.PW30/B regarding his departure from Bangkok and arrival at Indonesia on 24-02-2004. This creates a doubt regarding the complainant's version.
96. There is no direct evidence that Ramphal was confined by accused No. 4, Rakesh Sharma in Indonesia. No place where complainant Ramphal was wrongfully confined has been specified. As per the prosecution itself, complainant Ramphal used to call his family members in India, which indicates that he was not restrained from communicating with others on telephone. As per PW32 Sh. Sukhchain Singh, Ramphal used to bring meals for them, which also imply that Ramphal was free to move around. However, no complaint was made by Ramphal to the police at Indonesia or to any other authority regarding his confinement.
97. The most important piece of evidence in this regard is the passport, Ex.PW30/B of Ramphal, which reveals the following CBI Case No. 36/12 73 of 85 entries/endorsements :-
1. 20-01-2004 - Tourist VISA of Republic of Honduras (Valid for six months) (Page 25)
2. 10-02-2004 - Tourist VISA, Royal Thai Embassy, New Delhi (Employment Prohibited) (Page 27)
3. 17-02-2004 - Tourist VISA - Bangladesh - six months in Bangladesh-
date of issue - 17-02-2004, date of expiry - 16-09-2004 (Page 9)
4. 19-02-2004 - Departure - Immigration - IGI Airport, Delhi (Page 26)
5. 19-02-2004 - Immigration - Bangkok (Thailand) (Page 26)
6. 10-03-2004 - Departure -Thailand (Page 26)
7. 10-03-2004 - Arrival - Zia Dhaxa - Bangladesh (Page 8)
8. 02-08-2004 - Departure - Zia Chaka - Bangladesh (Page 8)
9. 02-08-2004 - Immigration Bangkok, Thailand (Page 28) (Not fully legible)
10. 02-08-2004 - Visa on Arrival - Bangkok Airport (Employment Prohibited) (Page 28)
11. 06-08-2004 - Visa sticker - Republic of Indonesia - Place of issue - Bangkok (Page 29)
12. 13-08-2004 - Departure - Bangkok, Thailand (Page 28)
13. 13-08-2004 - Permitted to land - Sri Lanka - Immigration (Page 8)
14. 15-08-2004 - used (Page 28) CBI Case No. 36/12 74 of 85
15. 12-10-2004 - Embarked -Sri Lanka - Immigration (Page 8)
16. 12-10-2004 - Visa - Transit - Indonesia (Page 31) (not fully legible)
17. 30-11-2004 Departed - IMICRASI (Indonesia) (Page 31)
18. 01-12-2004 -Arrival - IGI Airport, Delhi (Page 26) According to the defence, complainant Ramphal had been travelling to various countries and was in Indonesia only during the period 12-10-2004 to 30-11-2004, which falsifies his story of wrongful confinement. Ld. P.P. has argued that since the passport was with accused No. 4, Rakesh Sharma, either forged stamps have been put on the passport or somebody else had travelled on the passport of complainant Ramphal. He has also pointed out that in the stamps of Bangladesh at page 8 of passport, Ex.PW30/B of complainant Ramphal, the spellings of "DHAKA" have been wrongly written as "DHAXA" and "CHAKA" which show that these stamps are forged. The contention of Ld. P.P. is of no help since the same is not based on any evidence or material. No investigation appears to have been made from Ramphal or otherwise regarding the same. If the passport, Ex.PW30/B relied upon by the prosecution is to be believed as such, it negates the prosecution version regarding confinement of complainant Ramphal in Indonesia, during the period 24-02-2004 to 30-11-2004.
98. The evidence which has come on record regarding presence of accused No. 1, Lilu Ram at Jammu on 10-02-2004 and endorsements made on passport, Ex.PW30/B of Ramphal regarding travel to various countries belies the prosecution case that on 10-02-2004, accused No. 1, Lilu Ram called Ram Phal CBI Case No. 36/12 75 of 85 and showed him a VISA Stamp on his passport or that Ram Phal was kept in confinement by accused No. 4, Rakesh Sharma in Indonesia. This makes the complaint, dated 21-07-2006, Ex.PW30/C of Ram Phal prone to doubt and thus unsafe to rely upon. Consequently the evidence of PW 12 Sh. Baljeet Singh, PW 13 Sh. Jai Prakash, PW 14 Sh. Balbeer Singh, PW 15 Chaudhary Anoop Singh, PW 16 Sh. Jaswant Singh and PW 22 Sh. Prahlad Singh regarding admission of accused No. 1, Lilu Ram that he took money from Ram Phal, in view of totality of the evidence brought on record, also can not be relied upon.
99. It is also pertinent to note that though the complainant Ramphal had made initial payment of Rs.50,000/- to accused No. 1, Lilu Ram in February 2003, payment of Rs.1.75,000/- in January 2004 and he had returned to India on 01-12-2004, he had filed the complaint on 21-07-2006 i.e. more than one and a half year even after his return to India. In the normal course of human affairs, had he been cheated, after coming to know of such cheating, he would not have waited for such a long time before filing the complaint. This also raises a doubt regarding the credibility of the complaint. In Mewaram Arun Vs. the State, 1989, Cri LJ, 2090, in a case under PC Act, where there was a delay of 2 days in lodging the complaint, the Hon'ble High Court held, "the conduct of the complainant is not compatible with the natural conduct of a person placed in the circumstances of the instant case and hence, implicit reliance cannot be placed on his evidence as a matter of abundant caution."
100. It is also worthwhile to note that the family members of the complainant Ramphal i.e. PW 5 Sh. Naresh Kumar (brother), PW 6 Sh. Sumer CBI Case No. 36/12 76 of 85 Singh (father), PW 20 Sh. Ramesh Kumar (brother in law) PW23 Sh. Naresh Kumar (brother in law), PW 24 Sh. Baljeet Singh (brother in law) and PW 8 Sh. Vijay Kumar (cousin) have not supported the prosecution version on material facts. PW 6 Sh. Sumer Singh had, contrary to the prosecution version, denied his presence in the Panchayat meetings. In the normal course, the father and relatives of a victim would not depose falsely against the interest of their own kin.
101. As per prosecution version, complainant Ramphal was handed over cash memo No. 10882, Ex.PW2/A of Sethi Brothers regarding issuance of US Dollars 1000 along with US Dollars 1000 before proceeding to Thailand. However, as per the chargesheet, accused No. 4, Rakesh Sharma had taken away 1400 dollars and passport from the complainant. As argued by Ld. Counsel for accused No. 4, Rakesh Sharma, prosecution has not been able to explain as to how accused No. 4 Rakesh Sharma took 1400 US dollars when Ram Phal was in possession of only 1000 dollars..
102. Further, according to prosecution, complainant Ramphal was brought back to India with the intervention of one Sardar Bhajan Singh of Karol Bagh, New Delhi, to whom Rs.20,000/- were paid by PW20 Sh. Ramesh Kumar. However, the said Sardar Bhajan Singh, who was an important witness in the chain of circumstances, has neither been examined nor even been cited by the prosecution. No reason has been given by the prosecution as to why he was not examined.
103. It is well settled that in a case of conspiracy, the circumstances in a case when taken together on their face value, should indicate the meeting of the CBI Case No. 36/12 77 of 85 minds between the conspirators for the intended object of committing on illegal act or an act which is not illegal by illegal means. Mere knowledge or discussion is not sufficient. A few bits here and a few bits there on which the prosecution relies can not be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. Such an inference must be premised on sound facts that eloquently exhibit the intended common design and its execution. While appreciating the evidence of the conspiracy, the court has to keep in mind the well known rule governing circumstantial evidence, namely, each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis about guilt is possible. A mere suspicion in the absence of direct or indirect evidence establishing prior meeting of mind, can not be a ground for conviction for offence of criminal conspiracy. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy, but also the agreement. In the charge of conspiracy, the court has to guard itself against the danger of unfairness to the accused. Where there is no direct evidence, for example, through the evidence of an approver, and the case for the prosecution is dependent on circumstantial evidence alone, it is necessary for the prosecution to prove and establish such circumstances as would lead to the only conclusion of existence of a criminal conspiracy and rule out the theory of innocence. In this regard, reference can be made to State (Delhi Admn.) Vs. V.C. Shukla, AIR 1980, SC 1382; Noor Mohd. Vs. State of CBI Case No. 36/12 78 of 85 Maharashtra, AIR 1971, SC 885; State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, (2005) 7 JT1; State (NCT of Delhi) Vs. Ravi @ Munna, (2000) Crl J 1125; T.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142; Sattan @ Satyendra & Others Vs. State, (2001) Cr. LJ 676 (Allahabad); Sudhir Shanti Lal Mehta Vs. CBI, (2009) 8 SCC 1; Baldev Singh Vs. State of Punjab, (2009) 6 SCC 564; D.B. Naik 1982 Cr. LJ 856 (Bom) and Hariram 1992 Cr. LJ 294 (HP).
104. In the present case, no evidence has been led by prosecution, to the effect that accused No. 1, Lilu Ram, accused No. 2, Shyam Mohan and accused No. 4, Rakesh Sharma met at any time or place or spoke to each other on telephone etc., except the statement of PW 3 Ct. Bijender Singh that accused No. 1, Lilu Ram told him that he has given money taken from complainant Ramphal to accused No. 2, Shaym Mohan. If accused had been conspiring to cheat the complainant, they would have met or communicated by some means. However, no such evidence had been brought on record. The sole statement of PW 3 Sh. Bijender Singh, when seen in totality of the evidence led on record, as discussed above, is not sufficient to conclude that accused persons entered into any conspiracy with each other.
105. It is also well settled that in offence of cheating, prosecution is required to prove that accused played deception by fraudulently or dishonestly inducing the person deceived to do or omit to do something or to deliver any property to any person etc. The word "deceive", according to "The New Shorter Oxford English Dictionary" means, " cause to believe what is false" . As per CBI Case No. 36/12 79 of 85 "Chamber's Twentieth Century Dictionary, it means, " to mislead or cause to err" . The word "induce", according to "The New Shorter Oxford English Dictionary"
means, " lead, persuade, influence a person to do something" . In offence of cheating an individual, deception and inducement are practiced upon the mind of the person who has been cheated. It necessarily involves minds of two persons, the person cheating and the person being cheated. Thus to prove a charge of cheating an individual, the evidence of the person who has been cheated is essential, since only that person can depose whether he was deceived or induced by the accused to part with the property.
106. Deception has in it the element of misleading or making a person believe something which is not real. It implies causing of a person to believe as true something It is well settled that Primary ingredient of the offence is deception played by the accused by 'fraudulently' or 'dishonestly' inducing the person so deceived to do or omit to do something or to deliver any property to any person etc. that is false. Fraudulently is defined in section 25 of the IPC as the doing of a thing with intent to defraud. Dishonestly is defined in section 24 of the IPC as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person. After deception has been practiced, the person deceived should get induced to do or omit to do something. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact of a subsequent breach of promise. It is well known that there is a thin line of difference between a case of breach of promise CBI Case No. 36/12 80 of 85 and a case of cheating. Every case of breach of promise cannot be cheating. If the person making the representation believed the representation to be true, there can be no question of cheating.
The above position is supported by judgments in Unnie Menon Vs. Kerala Film Artists, Critics Society, 1986 (3) Crimes 411, P.M. Natarajan v. K.C. Gupta, 1975 Cri LJ 899, Harnarain Sah v. Tribeni Lal, 1973 Cri LJ 140 and Rathindra Nath Sen Vs. The State, AIR 1951 Assam 82.
107. There is no direct or cogent evidence to the effect that accused No. 1, Lilu Ram deceived complainant Ram Phal or misrepresented to him or dishonestly or fraudulently induced him to deliver Rs.2.25 lacs to him. The only witness who could have deposed in this regard was complainant Ram Phal himself who could not be examined. From the evidence brought on record, it cannot be concluded as to whether the complainant was deceived and/or induced or not.
108. As per prosecution version, it was complainant Ramphal who had approached accused No. 1, Lilu Ram for a job abroad. In the normal course, he would have known that accused No. 1, Lilu Ram, being a CBI Officer, was not running any placement or travel agency. Rather, from the circumstances brought on record, it appears probable that complainant Ram Phal was in full knowledge of all the facts and had willingly gone on a Tourist VISA to Bangkok. Even if any accused was associated with Ram Phal ragarding his visit abroad, the same per- se would not entail any criminal liability.
109. To sustain a charge u/s 13 (1) (d) r/w section 13 (2) of the PC Act, the CBI Case No. 36/12 81 of 85 prosecution was required to prove that accused No. 1, Lilu Ram while holding office as a public servant, by corrupt or illegal means, obtained a sum of Rs.2.25 lacs for himself or for any other person. The term, " illegal" as per section 43 of the IPC is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action. According to "The New Shorter Oxford English Dictionary", the word "corrupt" means, "influenced by bribery, destroy, mar". The word "bribe", according to the above dictionary, means, " a sum of money or other reward in order to procure an often illegal or dishonest action or decision in favour of the giver" .
110. In Kanwarjit Singh Kakkar Vs. State of Punjab and Another, (2011) 13 SCC 158, where a Government doctor was indulging in private practice violating bar imposed thereon and was charging professional fee, it was held that it did not amount to a criminal offence though it may amount to misconduct under relevant rules." In Arjun Bajrao Kale Vs. State of Maharashtra, 2009 All MR (Cri) 85, it was held that demand of bribe is a foundation in a case under PC Act. Mere acceptance of money, by itself, would not be sufficient for the purpose of convicting the accused who is charged with an offence punishable under sections 7, 13(1) (d), 13 (2) of the said Act. In Subhash Parbat Sonvane Vs. State of Gujarat, 2002 Cri LJ, 2287, the Honorable Supreme Court held that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1) (d) (i) of the P.C. Act. In A. Subair Vs. State of Kerala, (2009) 6 SCC 587, the Hon'ble Supreme Court held that in the absence of complainant, there was no substantive evidence to CBI Case No. 36/12 82 of 85 prove the factum of demand and hence, accused was liable to be acquitted. In Public Prosecutor Vs. T.K. Viswanathan, 1971, Cri LJ 573, it was held that unless it is established that the public servant obtained loan by corrupt or illegal means, or by dishonestly misusing his position as public servant, the offence under S.5(1) (d) of the Act will not be made out. The essential ingredient for the offence is obtaining valuable money by corrupt or illegal means or dishonestly misusing his position as a public servant. In State of Maharashtra Vs. Jaywant, 1979, Cri LJ 1460, it was held that in the case of public officials doing public duty events may occur when their public office and public duty are not involved and the offence caused to them could be classed as personal or private. Accepting gratification for compounding such personal injuries would clearly be out of the penal mischief contemplated by the corruption law.
111. In the instant case, accused No. 1, Lilu Ram is alleged to have obtained Rs.2.25 lacs from the complainant Ramphal by illegal means. Even if evidence led by prosecution regarding admission by accused No. 1, Lilu Ram that he has taken money from Ramphal is to be believed, it is not clear as to on what terms and conditions or with what mutual understanding between complainant Ramphal and accused No. 1, Lilu Ram, the money transaction had taken place between them, since complainant Ram Phal could not be examined. Even as per prosecution, such payment was not in connection with any official function of accused No. 1, Lilu Ram. It can not be, thus, held that accused No. 1, Lilu Ram has obtained the money in question from complainant Ramphal by corrupt or illegal means.
CBI Case No. 36/12 83 of 85
112. It is also well settled that suspicion, however, grave it may be, cannot take place of proof. In this regard, a reference can be made to Raj Kumar Singh @ Raju Vs. State of Rajasthan, 2013, Cri LJ 3276, wherein the Hon'ble Supreme Court held, "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touch-stone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that CBI Case No. 36/12 84 of 85 is based upon reason and common sense."
113. Another fundamental principle of criminal jurisprudence is that if two inferences or views are possible, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In this regard a reference can be made to Ramdas Vs. State of Maharashtra, (1977) 2 SCC 124 and Kali Ram Vs. State of Himachal Pradesh, Air 1973 Sc 2773. In the instant case, from the evidence adduced , more than one views are possible.
Conclusion
114. In view of the aforesaid discussion, it is considered that the prosecution has not led clear, cogent and unimpeachable evidence to prove the points mentioned at para 44 (A) (i) (ii) (iii) & (iv), (B) (i) (ii) (iii), (iv) & (v), (C) (I) &
(ii) and (D) (ii) & (iii) above. It is accordingly held that the prosecution has not been able to prove its case against any accused beyond a reasonable doubt. Therefore, all the accused persons are acquitted of the Charges leveled against them.
Their bail bonds are cancelled and their sureties are discharged.
Announced in the Open Court today on 30th Day of September, 2013.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
CBI Case No. 36/12 85 of 85