Delhi District Court
Cc No.36/11, Rc No.9(A)/07 - Cbi vs . Mishri Lal Page 1 Of 22 on 20 April, 2012
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
RC No. : 9(A)/07
CC No. : 36/11
PS : CBI/ACB/ND
Unique ID No. 02401R1333462007
U/s 7 and 13(1)(d) r/w 13(2) of PC Act, 1988
CBI
Versus
Mishri Lal
S/o Late Shri Tilak Ram
R/o 34/80, Maulana Azad Medical College,
New Delhi - 110 002
Permanent r/o
Post & Village-Madhapur,
Distt. Unnao, P. S. Fetehpur,
Chaurasi, U.P.
Date of FIR : 06.02.2007
Date of Institution : 31.12.2007
Arguments heard on : 20.04.2012
Date of Judgement : 20.04.2012
JUDGEMENT
Facts in brief
1.As per case of prosecution, accused Mishri Lal (Nursing Orderly and General Secretary, LNJP Hospital Employees Union, New Delhi) CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 1 of 22 demanded illegal gratification of Rs.3.00 lakhs from complainant Rajiv Kumar Arora (PW-9) for showing favour in respect of case registered with Anti Corruption Branch, GNCT Delhi on the complaint of Mishri Lal against M/s Medicare Textiles (which was represented by Shri Pankaj Kumar, brother of the complainant Shri Rajiv Kumar Arora).
As per averments made in written complaint Ex.PW9/A by Rajiv Kumar Arora dated 06.02.2007, accused Mishri Lal lodged a false complaint with ACB, GNCT Delhi (Ex.PW5/C) on the basis of which, a case had been registered on 07.11.2006 against M/s Medicare Textiles, a proprietorship company belonging to brother of complainant which supplied surgical apparatus, dressing material etc. in different government hospitals. It was further alleged by the complainant that since he was looking after the work of the company at LNJP Hospital, he had met Mishri Lal who disclosed that the complaint had been made at instance of Dr. Vikas Rampal, In-Charge, Sushruti Trauma Centre, Jindal House, Near ISBT and further demanded a bribe of Rs.3.00 lakhs for himself and Dr. Vikas Rampal failing which a complaint shall be made with respect to other items supplied by the company. It was further alleged that since the complainant showed his inability to pay the bribe amount, accused Mishri Lal demanded the first installment of Rs.1.00 lakh to be paid on 06.02.2007 out of which the substantial part was to be paid to Dr. Vikas Rampal.
Investigation was commenced by CBI on the basis of aforesaid complaint and PW-11 Inspector C. K. Sharma (trap laying officer) secured presence of two independent witnesses, namely, PW-2 Shri Arbind Narayan (Development Officer) and PW-6 Manu Dev Rajput from United India Insurance Co. Ltd. after the case was registered u/s 7 of PC Act, 1988 and 120-B IPC against Mishri Lal and Dr. Vikas Rampal. PW-11 further organised a team of CBI officials for laying a trap. During CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 2 of 22 pre-trap proceedings, the complainant produced a sum of Rs.1.00 lakh in denomination of Rs.1,000/- (50 notes) and denomination of Rs.500/- (100 notes). The bribe amount of Rs.1.00 lakh duly treated with phenolphthalein powder was kept in the right side kurta pocket of the complainant and further he was directed to handover the tainted bribe amount to the accused on specific demand.
Thereafter, about 1:10 p.m. complainant contacted from his mobile number 9891200001 to accused Mishri Lal on his mobile number 9873296450 which got disconnected after some conversation. Complainant again contacted the accused on his mobile and thereafter disclosed that accused Mishri Lal had directed him to come near Pant Hospital by 3-3:30 p.m. Complainant also confirmed from accused Mishri Lal as to whether he has spoken to Doctor Sahab. Upon which the accused Mishri Lal assured "haan, haan". The aforesaid conversations were recorded in digital recorder and further transferred from the digital recorder through an audio cassette recorder to a new audio cassette and same was duly sealed and marked as Q1. A handing over memo (Ex.PW2/A) containing the details of pre-trap proceedings and GC notes was prepared.
Thereafter the CBI team including both the independent witnesses (PW-2 and PW-6) left the CBI office in government vehicles at about 3:00 p.m. for GB Pant Hospital. Complainant proceeded alone in his own vehicle. Digital recorder was also handed over to the complainant with directions to switch it on before approaching Mishri Lal. The team members reached vicinity of GB Pant Hospital main gate about 3:25 p.m and after about 10 minutes it was seen that accused Mishri Lal entered in the car of the complainant and sat on the front seat besides him. Complainant alongwith accused Mishri Lal proceeded for Sushruta Trauma Centre and were followed by the CBI trap team. Complainant CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 3 of 22 parked his vehicle inside the premises of Trauma Centre and all the CBI members took suitable positions in a discreet manner. It was seen that both the complainant and Mishri Lal alighted from the car of the complainant and started moving towards the right corner of the main gate of the Trauma Centre, wherein Mishri Lal indicated the complainant to wait by making a gesture with his right hand. Mishri Lal further moved ahead behind a parked ambulance. After some time it was observed that Mishri Lal was coming alongwith one more person from the back side of the ambulance towards the main gate of the Trauma Centre. Thereafter, Mishri Lal again indicated the complainant with his right hand gesture to come outside the main entrance gate and the other person later identified as Dr. Vikas Rampal was seen entering the Trauma Centre. Further, CBI team followed the complainant and Mishri Lal and it was seen that both of them were talking to each other. In the meanwhile the complainant gave pre-appointed signal by scratching his head on which the team members rushed towards the accused. Upon seeing the team members coming towards him accused Mishri Lal started running towards outer Ring Road through service lane and also threw away the GC notes while running. However, Mishri Lal was caught at distance of 100 mtrs. from the main gate of the Trauma Centre and the scattered GC notes amounting to Rs.17,000/- in denomination of Rs.500/- were directed to be collected by witness Shri Arbind Narayan (PW-2).
Complainant on being inquired about the transaction, informed that as soon as they reached inside the Trauma Centre and he parked his car, accused Mishri Lal demanded bribe amount of Rs.1.00 lakh and accepted the same with his right hand and kept in left side kurta pocket with his left hand. Further, Mishri Lal after coming out of the Trauma Centre informed him that he had handed over major part of bribe money to Dr. Vikas Rampal and had kept a small amount with him.
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 4 of 22It is further alleged that thereafter Mishri Lal was brought inside the Trauma Centre wherein complainant as well as Mishri Lal indicated towards a person standing in front of reception counter as Dr. Vikas Rampal. On being questioned, Dr. Vikas Rampal denied having demanded or accepted any bribe money from Mishri Lal. The washes of right hand fingers, left hand fingers and left pocket of kurta of accused Mishri Lal were taken in separate colourless solution of sodium carbonate which turned pink in colour and the same were sealed in separate glass bottles with mark RHW, LHW and LHSPW of Mishri Lal. Also the washes of right hand fingers, left hand fingers of Dr. Vikas Rampal were taken in separate colourless solution of sodium carbonate and both the solutions remained colourless and were sealed in separate glass bottles with mark RHW and LHW of Dr. Vikas Rampal. Efforts were made to trace the remaining bribe amount of Rs.83,000/- from the room and vehicle of Dr. Vikas Rampal but the same remained unsuccessful.
It is further the case of the prosecution that recorded conversation of digital voice recorder was transferred to a new audio cassette and was sealed with seal of CBI and marked as Q2. During course of investigation, the five sealed bottles containing washes were sent to CFSL and as per expert opinion (Ex.PW8/A) presence of phenolphthalein and sodium carbonate was confirmed in all the five sealed bottles containing the washes. The specimen voice of Mishri Lal in sealed cassette S1 and questioned voices on cassettes Q1 and Q2 was also forwarded to CFSL for examination and as per the opinion of the expert (Ex.PW8/A), the voice of accused Mishri Lal in all the three cassettes was confirmed.
2. It may be appropriate to refer at this stage that as per charge-
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 5 of 22sheet, investigation further disclosed that Dr. Vikas Rampal neither met the complainant or Mishri Lal with regard to the case of complainant in ACB, GNCT of Delhi registered vide FIR No. 78/06 (i.e. against Medicare Textiles) nor demanded or accepted the bribe money. It was revealed that Mishri Lal was having a grudge against Dr. Vikas Rampal as he had lodged an FIR (531/97) against Mishri Lal and others in respect of assault on him (Dr. Vikas Rampal) and was to depose in Court against Mishri Lal. It was also observed that Dr. Vikas Rampal was indirectly associated with seizure of "gauge than" supplied by Medicare Textiles as he was posted at Sushruta Trauma Centre during the raid conducted by ACB, Delhi Government at the hospital premises and thereby the complainant may have been keeping the grudge against him. In the facts and circumstances, the prosecution did not find any direct evidence to link Dr. Vikas Rampal with demand or acceptance of bribe and as such, a prayer was made in the charge-sheet for discharging Dr. Vikas Rampal.
It may further be noticed that during course of proceedings after filing of charge-sheet, a protest petition was filed by the complainant Rajiv Kumar Arora since Dr. Vikas Rampal was not challaned in the charge-sheet. The same was dismissed vide order dated 18.02.2008 by Shri S. P. Garg, Special Judge, CBI (as his lordship was then posted). Thereafter, an application u/s 319 Cr.P.C. filed on behalf of complainant Rajiv Kumar Arora seeking summoning of Dr. Vikas Rampal as an accused was dismissed vide a detailed order dated 14.05.2011 by this Court with costs.
3. Charge was framed against accused Mishri Lal for offence u/s 7 and Section 13(1)(d) r/w Section 13(2) of the Prevention of CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 6 of 22 Corruption Act, 1988. Accused pleaded not guilty to the same and claimed trial.
4. In support of its case, prosecution examined 13 witnesses, namely, PW-1 Dr. N. M. Hasmi (Sr. Scientific Officer-II, CFSL), Expert CFSL; PW-2 Shri Arbind Narayan (Development Officer, United India Insurance Company Ltd., independent witness to trap proceedings); PW-3 Shri Pawan Singh (Nodal Officer, Idea Celluar Ltd. to prove call details);
PW-4 Shri G. G. Barapatre (Director Administration, LNJP Hospital) to prove Sanction order u/s 19 of POC Act;
PW-5 Dr. M. S. Chopra PW-6 Shri Manu Dev Rajput (Administrative Officer, United India Insurance Company Ltd., independent witness to trap proceedings) PW-7 Shri Surjit Singh (ACP Anti Corruption Branch) PW-8 Dr. Rajender Singh (Director, CFSL) (Expert CFSL) PW-9 Shri Rajiv Kumar Arora (Complainant) PW-10 Inspector Alok Kumar PW-11 Inspector C. K. Sharma PW-12 Inspector Shyam Prakash PW-13 Shri Israr Babu (Official Essar Mobiles to prove call details)
5.PW-1 Dr. N. M. Hashmi, Expert, CFSL proved the report Ex.PW1/B with respect to exhibits received in CFSL vide letter dated 28.02.2007 (Ex.PW1/A) for analysis. He stated that in Ex.1,2,3,4 &5 gave positive test for the presence of phenolphthalein and sodium carbonate.
PW-3 Shri Pawan Singh, Nodal Officer, Idea Cellular Ltd. proved letter Ex.PW3/A whereby the call details in respect of Mobile no.
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 7 of 229891200001 in the name of Rajiv Kumar for the period 01.12.2006 to 06.02.2007 were forwarded.
PW-4 Shri G. G. Barapatre, Director (Administration), Lok Nayak Hospital proved the sanction order Ex.PW4/A accorded for the prosecution of Mishri Lal under Section 19 of POC Act, 1988.
PW-5 Dr. M. S. Chopra proved letter no. 7628 dated 28.09.2007 signed by him alongwith letter no. 741 dated 20.09.2007 bearing signature of then M.S. Dr. S. Batra (Ex.PW5/B) and attested copy of complaint dated 06.11.2006 addressed to Joint Commissioner of Police bearing signature of Mishri Lal (Ex.PW5/C).
PW-7 Shri Surjeet Singh, ACP, Anti Corruption Branch, GNCT Delhi stated that FIR No. 78/06 was registered on complaint of Mishri Lal, General Secretary, Employee Union, LNJP Hospital regarding corruption in supply of cotton gauge by M/s Medicare Textile in LNJP Hospital and other related issues. He further stated that during investigation he had made search at LNJP Hospital, Trauma Centre and Deen Dayal Hospital but during the searches, Dr. Rampal was not made as a witness. He further deposed that attested copy of FIR and complaint of Mishri Lal were handed over as per seizure memo Ex.PW7/A. He further proved the attested photocopy of the complaint Ex.PW5/C and copy of FIR No. 78/06 as Ex.PW7/B. PW-8 Dr. Rajender Singh, Director, CFSL stated that he had examined the parcel Q1 containing normal audio cassette pertaining to voice of Mishri Lal (Q1)(A), parcel Q2 containing questioned voice of Mishri Lal (Q2)(A) and further proved his report Ex.PW8/A. PW-10 Shri Alok Kumar stated that during the month of February, he was entrusted the investigation of this case from Inspector C. K. Sharma and had recorded statements of witnesses and also got the transcription of conversation prepared vide recorded transcription memo CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 8 of 22 Ex.PW2/G. He also proved the rough transcription prepared in his hand Ex.PW2/A and Ex.PW2/F. He further stated that he had collected the documents vide seizure memo Ex.PW7/A from ACB and also collected documents from LNJP Hospital which are Ex.W5/A and Ex.PW5/B. The collected mobile phone records vide letter dated 08.10.2007 were further proved as Ex.PW10/A alongwith customer application form, employer ID, declaration for outstation customer, call details of mobile number 9873296450 as Ex.PW10/A1 to A4. He also stated that the sealed cassettes Q1, Q2 and S1 were sent to CFSL vide letter dated 28.02.2007 (Ex.PW10/B) alongwith specimen seal impression of CBI used during course of investigation (Ex.PW2/J1 and J2). He further stated that he had received the expert opinion Ex.PW8/A and also obtained the sanction order Ex.PW4/A during course of investigation.
PW-13 Shri Israr Babu, ESSAR Mobile Service proved letter dated 08.10.2007 (Ex.PW10/A) bearing signatures of Jyotish Moharana and stated that customer application form of Mishri Lal having mobile no. 9873296450 bore the official stamp of Vodafone Essar Mobile. He further proved the form Ex.PW10/A1 alongwith ID proof Ex.PW10/A2 and customer declaration form Ex.PW10/A3. He further stated that computer generated call details of phone no. 9873296450 were handed over to the IO vide letter Ex.PW10/A. PW-2 Shri Arbind Narayan, PW-6 Shri M. D. Rajput (independent witnesses), PW-9 Shri Rajiv Kumar Arora (complainant), PW-11 Inspector C. K. Sharma, PW-12 Inspector Shyam Prakash were the members of the trap team and their testimony is dealt with and assessed in the subsequent paras.
6. Accused Mishri Lal in his statement u/s 313 Cr.P.C. denied the case of the prosecution and stated that he had been falsely implicated as CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 9 of 22 a complaint had been made by the Employees union of LJNP Hospital against the inferior quality of goods supplied by a firm of which Rajiv Kumar Arora (Complainant) and his brother Pankaj Kumar were the suppliers. He further claimed that he was the General Secretary of the LNJP employees' union at aforesaid time. He also took a stand that on the alleged date of trap, he had been informed by 3-4 persons to reach Sushruta Trauma Centre at MAMC Campus and had reached there about 4:30 p.m. and thereafter falsely implicated in this case. The alleged demand and the recovery of the tainted money was also denied by him.
Accused further examined four witnesses in defence, namely, DW-1 Anita Bangodra, Deputy Medical Superintendent, LNJP Hospital, DW-2 Smt. Anita Bararia, Ahlmad, DW-3 Shri Tikam Singh, employee LNJP Hospital and DW-4 Dr. Richa Diwan, MS, LNJP Hospital.
DW-1 Dr. Anita Bangodra proved the attendance register for 06.02.2007 which was signed by Mishri Lal at serial no. 49 (Ex.DW1/A) alongwith attendance of Shri Tikam Singh as per attendance register (Ex.DW1/B).
DW-2 Smt. Anita Bararia (Ahlmad) produced the records of case FIR No. 531/97, State vs. Mishri Lal & Others pending in the Court of Ms. Neha Paliwal, MM. The said case was stated to be at the stage of evidence and listed for further cross-examination of Dr. Vikas Rampal. The said case pertained to assault of Dr. Vikas Rampal while discharging his duty on 07.10.1997 and the FIR was registered against accused Mishri Lal and other persons.
DW-3 Shri Tikam Singh (employee LNJP Hospital) stated that on 06.02.2007 he had seen Mishri Lal in OPD from 8:30 am to 4:00 p.m. and accused had signed the attendance register in his presence.
DW-4 Dr. Richa Diwan stated that Director (Administration) at Lok CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 10 of 22 Nayak Hospital is the appointing authority and authority to impose penalty including removal of service in respect of group D staff. She further proved the relevant letter whereby Director (Administration) was to act as Head of Office (Ex.DW4/A).
7. I have heard ld. PP for CBI, counsel for accused at length and given considered thought to the contentions raised. Counsel for accused assailed the case of prosecution on the ground that no conspiracy could be established between accused Mishri Lal and Dr. Vikas Rampal and even Dr. Vikas Rampal was not chargesheeted. It was further contended that accused has been falsely implicated since he was the General Secretary of the LNJP Employees Union and a complaint had been made by the Union against the inferior supplies made by M/s Medicare Textile on which an FIR was registered by ACB, GNCT of Delhi. It was further contended that there was no specific evidence of demand by accused Mishri Lal or passing of illegal gratification to him and even the amount of Rs.83,000/- alleged to have been handed by the accused Mishri Lal to Dr. Vikas Rampal could not be traced despite police custody remand of accused Mishri Lal as well as Dr. Vikas Rampal . It was further urged that testimony of the prosecution witnesses is unreliable and untrustworthy and the version propounded by the complainant in witness box was full of infirmities. It was also contended that the case is peculiar on its own facts as the demand by accused Mishri Lal and passing of gratification to him is not corroborated by any witness and the demand does not even find a categorical reference in the alleged recording relied by prosecution Counsel further took a stand that accused Mishri Lal was on duty in the OPD from 8:30 am to 4:00 pm and had been subsequently falsely implicated in the case at the instance of complainant who wanted to seek vengeance. Counsel for accused CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 11 of 22 also relied upon 2007 Crl.L.J. 754, 2003 Crl.L.J. 4286, 2008 Crl.L.J. 2827, I(2007) CCR 49 and 2008 Crl.L.J. 2893 in support of the contentions.
8. On the other hand, ld. PP for CBI vehemently opposed the contentions raised on behalf of the accused and contended that the contradictions in the testimony of witnesses were of minor nature and did not discredit the statement of the witnesses in entirety.
9. At the outset it may be noticed that the trap proceedings were laid on the assumption of conspiracy between accused Mishri Lal and Dr. Vikas Rampal though no categorical evidence as to demand of illegal gratification by Dr. Vikas Rampal was available with investigating agency and the same was not specifically verified during pre trap proceedings. The nexus between Dr. Vikas Rampal and Mishri Lal also appears to be remote as accused Mishri Lal was arrayed as accused in FIR No. 531/97 on basis of complaint of assault on Dr. Rampal in 1997. The said case is still pending at stage of evidence and Dr. Rampal was to be examined in said case and meeting of accused Mishri Lal with Dr. Rampal in connection with said case is plausible. However, no concrete evidence was available with investigating agency to confirm any demand of illegal gratification by Dr. Vikas Rampal in connivance with accused Mishri Lal.
Sufficient efforts were not made by investigating agency to confirm the demand or sharing of illegal gratification by Dr. Vikas Rampal with accused Mishri Lal and trap proceedings were commenced merely on allegation of complainant. It has not even been shown as to how Dr. Rampal could have helped the complainant with resolving the case registered against inferior quality supply made by M/s Medicare Textiles CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 12 of 22 since he was neither a material witness to the said case nor intricately connected with the same. A mere allegation that more complaints would be filed unless illegal gratification was paid inherently smacks of suspicion as Mishri Lal was a petty class D employee and not even working under Dr. Vikas Rampal. In the light of the fact that Dr. Vikas Rampal was not connected in any substantive manner in case against M/s Medicare Textiles and could not have purportedly helped the complainant, the motive for demand by him remains unexplained and doubtful.
It may be relevant to reiterate at this stage that even prosecution did not chargesheet Dr. Vikas Rampal since no evidence of conspiracy could be established between accused Mishri Lal and Dr. Vikas Rampal. It was also disclosed during investigation that Dr. Vikas Rampal had not met the complainant or Mishri Lal with respect to the case of complainant Rajiv Kumar Arora in ACB, GNCT of Delhi registered vide FIR no. 78/06. It was also noticed that accused Mishri Lal was having a grudge against Dr. Vikas Rampal since he had lodged an FIR against Mishri Lal and others and was to depose in court against Mishri Lal.
It also needs to be emphasized at this stage itself that out of the bribe amount of Rs.1.00 lakh allegedly paid to the accused Mishri Lal only Rs.17,000/- could be recovered while the balance amount of Rs. 83,000/- alleged to have been handed to Dr. Vikas Rampal could not be found despite custodial remand of the accused Mishri Lal and Dr. Rampal, which was sought during course of investigation.
10. In the aforesaid background, now the testimony of witnesses examined by prosecution may be analysed. It may be noticed that there is no categorical demand by Mishri Lal from the complainant (in the recording relied by prosecution) for resolving the case registered CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 13 of 22 against M/s Medicare Textiles or the support to be extended by Dr. Vikas Rampal for said purpose. Except for a reference by complainant, there is no recording as to the direct demand by accused Mishri Lal during the trap proceedings. It is also not disputed by the prosecution that none of the independent witnesses including the raiding team members had seen the complainant handing over the amount of Rs1.00 lakh to Mishri Lal and even there is no recoding as referred in the transcription to the extent of handing over of the amount of Rs.1.00 lakh by complainant to accused Mishri Lal on his demand. The only reference in the entire transcription prior to meeting of the complainant with the accused on 06.02.2007 as per telephonic conversation is to the effect "abhi ek hi hai uske baad nahi dunga. Papa ne kaha hai uske baad nahi dunga, chawanni bhi mai, ek rupaya bhi nahi dunga. Ek lakh rupaye ke alawa. Theek hai". However, there is no reference in case the demand is with respect of settling of the issue of the complaint filed against M/s Medicare Textiles or the demand made by Dr. Vikas Rampal. The said words have also been uttered by the complainant and there is no categorical demand or acceptance by the accused when the entire trap proceedings are considered in continuity. In the facts and circumstances the alleged handing of the notes by complainant to accused Mishri Lal appears to be doubtful, more so for the reason that the entire amount of Rs.1.00 lakh could not be recovered.
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 14 of 2211. The detailed facts of the transaction may be further analysed to see the inherent contradictions in the prosecution version as unfolded on trial. The case of prosecution as revealed in testimony of PW-11 Shri C. K. Sharma was that independent witness Manu Dev Rajput (PW-6) was to remain with the complainant and to see the transaction at spot while PW-2 Arbind Narayan (independent witness) was to remain with the trap party. Also Manu Dev Rajput (shadow witness) and complainant Rajiv Kumar Arora were directed to give signal after completion of transaction of bribe by scratching their head with both their hands. However, as the complainant objected to the same on the ground that it may create doubt, the complainant was directed to proceed alone. The trap proceedings, as such, commenced without PW-6 Manu Dev Rajput acting as an effective shadow witness since the complainant was permitted to proceed alone. It needs to be noticed that what actually transpired during the course of trap proceedings after the complainant alongwith accused Mishri Lal reached at Sushruta Trauma Centre is based on testimony of PW-9 Shri Rajiv Kumar Arora (complainant) or the recordings.
12. As per testimony of PW-9 Rajiv Kumar Arora (complainant), he alongwith accused Mishri Lal started from GB Pant Hospital after about 10 minutes from 3:20-3:25 p.m. in the Santro car driven by him and from there they started for Sushruta Trauma Centre. After coming out the car at Trauma Centre Mishri Lal asked him for the money which he handed over and thereafter he went behind an ambulance parked over there. He further stated that Dr. Vikas Rampal came over from behind the ambulance and Mishri Lal then took out few notes from the bundle and kept them in his own pocket and handed over the rest to Dr. Vikas CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 15 of 22 Rampal. He further stated that he had accompanied Mishri Lal to the spot behind the ambulance and further as soon as he emerged to signal, Mishri Lal started running in the direction of Ring Road and was caught. Further, on being enquired about the bribe amount, he pointed towards Dr. Vikas Rampal upon which Dr. Rampal also started running in the direction of Trauma Centre and one of the witnesses and CBI Inspector caught hold of Dr. Rampal.
On the point of recovery, he further stated that sum of Rs.17,000/- was recovered from the pocket of Mishri Lal by witness Arbind Narayan and rest of the money could not be traced.
13. A bare perusal of testimony of PW-9 Rajiv Kumar Arora would reveal that the same is full of infirmities and contrary to the version of the prosecution as deposed by PW-11 Inspector C. K. Sharma and PW-12 Inspector Shyam Prakash. As per testimony of PW-11 Inspector C. K. Sharma and the prosecution case, after alighting from the car at Trauma Centre, Mishri Lal asked the complainant by gesture to stop there and went behind the ambulance wherein Mishri Lal was seen talking to some other person who was later on identified as Dr. Vikas Rampal. Further, after some time both Dr. Vikas Rampal and Mishri Lal came out behind the ambulance and Dr. Vikas Rampal went inside the Trauma Centre and Mishri Lal came out on road of the main gate of Trauma Centre. Further, Mishri Lal by gesture directed the complainant to come out of the main gate and both were seen by the trap party members talking to each other and after some time complainant gave pre-appointed signal on which the team members rushed towards them. It was further stated that Mishri Lal while running was throwing the money on road. Further on interrogation the complainant disclosed that Mishri Lal told him that big share of bribe had been given to Dr. Vikas Rampal. It was further CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 16 of 22 stated by PW-11 C. K. Sharma that thereafter they reached inside the Trauma Centre wherein the identity was disclosed to Dr. Vikas Rampal and as he started to run, he was apprehended.
The prosecution version given by PW-11 and PW-9 complainant are contrary to each other and clearly point out the discrepancies on the point of apprehension of Dr. Vikas Rampal and place of recovery of the tainted amount which go to the root of prosecution case and throw doubt on the testimony of complainant. There is a clear deviation by PW-9 from the stand of prosecution and it remains doubtful whether the amount of Rs.17,000/- was recovered after it was thrown by Mishri Lal or if the same was recovered by PW-2 from possession of accused Mishri Lal as deposed by PW-9. It needs to be noticed that the prosecution did not cross-examine PW-9 (complainant) on the aforesaid discrepancy as revealed in his examination-in-chief itself.
14. It further appears that PW-9 Rajiv Kumar Arora (complainant) was more obsessed for securing summoning of Dr. Vikas Rampal as he further went to the extent of stating that during search of briefcase of Dr. Rampal a challan pertaining to the goods supplied by them was recovered though, Dr. Rampal had no concern with the working of Dr. Hedgewar Hospital wherein the goods supplied by him were rejected. The testimony to aforesaid extent stands discredited as the same is neither the case of the prosecution in the charge-sheet nor the said fact was corroborated by any other witness.
It may also be mentioned that PW-9 Rajiv Kumar Arora during his cross-examination further disclosed that Mishri Lal had informed him that Dr. Vikas Rampal had taken letterhead of Employees union and used for making complaint and also further allegations were levelled against Dr. Vikas Rampal which need not be adverted to in detail as the aforesaid CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 17 of 22 allegations were not even disclosed in the complaint filed with CBI by complainant. The testimony of PW-9 is discrepant on material points and does not appear to be creditworthy.
The testimony of PW-9 (complainant) on the place of meeting Dr. Viaks Rampal at the Trauma Centre is also at variance with the prosecution version as he stated during cross-examination that he had seen Dr. Vikas Rampal at Trauma Centre where he was standing with 4-5 other doctors and Mishri Lal got out from the car and approached him. He further stated that Dr. Vikas Rampal left his group and came near Mishri Lal and the CBI officials had also witnessed him meeting Dr. Vikas Rampal. This witness also remained evasive to some questions as to his location in Trauma Centre as he failed to point out the location of his own car or that of the CBI in the site plan. The testimony of PW-9 who is the star witness of prosecution also remains doubtful as to passing of illegal gratification of Rs.1.00 lakh to accused Mishri Lal as already observed above and as such is unworthy of any credence.
15. The testimony of PW-2 Arbind Narayan (independent witness) as to the sequence of events at Trauma Centre also appears to be discrepant to the prosecution version and the testimony of PW-9 Rajiv Kumar Arora (complainant). PW-2 stated that complainant went inside the Trauma Centre with accused Mishri Lal and after about 30 minutes both the complainant and accused Mishri Lal came out of the Trauma Centre. He further stated that one doctor was also with them whose name was perhaps Ram and after coming out of the Trauma Centre, the complainant uttered the words "ho gaya, ho gaya". He further stated that thereafter CBI officials chased Mishri Lal who had started running from the spot towards right side gate of the Trauma Centre and was caught at some distance.
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 18 of 22A bare perusal of the testimony of PW-2 reveals that this witness deviated from the prosecution version on material aspects. According to PW-2, the complainant had uttered the words "ho gaya, ho gaya" and both Mishri Lal and Dr. Rampal were together at aforesaid time which is contrary to prosecution story. The sequence and events as propounded in the testimony of PW-2 is discrepant on the point of presence and apprehension of Dr. Rampal. Further, during cross-examination, PW-2 took different stand as to the place of recovery of tainted money of Rs. 17,000/-. He stated that recovery was effected from the jacket and kurta of accused while according to prosecution version the money was thrown by accused Mishri Lal while running from Trauma Centre. This witness even faulted during cross-examination on the amount of recovery made and did not appear to be sure whether the amount recovered was Rs.80,000/- or Rs.20,000/- or as to what was the precise amount.
16. There does not appears to be any probable reason as to why the complainant did not make any indication as to passing of bribe amount to Mishri Lal and simply further waited for passing of the amount by Mishri Lal to Dr. Vikas Rampal. Neither any indication was made to CBI at aforesaid time nor any arrangement was made during trap proceedings to see if the amount was passed by Mishri Lal to Dr. Vikas Rampal as Mishri Lal went alone inside the Trauma Centre.
17. Counsel for accused also assailed testimony of PW6 M. D. Rajput on various grounds. It was pointed out that though the complaint was in Hindi language, PW-6 during his cross-examination stated that the complaint was in English language which he had seen for the first time on 06.02.2007. Further, according to PW-6 he had not seen the CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 19 of 22 cassette or heard it after 06.02.2007 though as per the prosecution case the transcription was prepared on 07.02.2007 and the same has been signed by PW-6. This witness even went to the extent of stating that he had heard the cassette before proceeding to the raid as well as at the Trauma Centre which appears to be contrary to the prosecution version. On the point of signing of documents, PW-6 further stated that he did not know whether the documents were typed or handwritten or as to who had prepared them. According to PW-6 when the raiding team left the CBI office only complainant himself and one CBI officer were present in the car while according to prosecution version the complainant had left alone in his car. The witness also contradicted on the point whether he was present within the campus or outside the campus at the time of trap proceedings. PW-6 also remained evasive during cross-examination to specify in case the document Ex.PW2/A to Ex.PW2/F were prepared in his presence which includes handing over memo, recovery memo, rough site plan and transcription of recording dated 06.02.2007. He was further unable to specify the position of the vehicle or the witnesses or accused with reference to the site plan.
In nutshell, the testimony of PW-6 remains discrepant on several aspects. The testimony of official witnesses to the trap proceedings also appears to be unreliable and doubtful on the point of demand and acceptance by accused Mishri Lal and on the passing of amount of Rs. 1.00 lakh by complainant to Mishri Lal since the said aspect has neither been proved in recordings nor beyond reasonable doubt in testimony of PW-9.
The payment of Rs.1.00 lakh to accused Mishri Lal also remains doubtful as an amount of Rs.83,000/- out of Rs.1.00 lakh could not be recovered despite custodial remand of accused.
CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 20 of 2218. In the facts and circumstances, accused cannot be convicted merely on the evidence that the sodium carbonate solution turned pink on the hand washes of accused Mishri Lal. The fact remains that the demand and acceptance of illegal gratification by the accused has not been proved beyond reasonable doubt. It may also be taken note of that the sodium carbonate solution on hand washes of Dr. Vikas Rampal remained colourless. There is no explanation by the prosecution as to why the solution remained colourless if the tainted money of Rs.83,000/- had been passed by accused Mishri Lal to Dr. Vikas Rampal. The contradictions and infirmities pointed out above go to the root of prosecution version and render the testimony of prosecution witnesses unreliable and untrustworthy.
19. It is also matter of concern that in the present case, Dr. Vikas Rampal had to undergo detention in custody and face ignominy during the investigation though subsequently neither any incriminating evidence could be found against him to connect him to any alleged demand nor any nexus was established with Mishri Lal. The facts and circumstances read alongwith testimony of PW-9 (Rajiv Kumar Arora) reflect that the complainant was more anxious to ensure that Dr. Vikas Rampal faces the trial. The protest petition as well as application u/s 319 Cr.P.C. filed by the complainant were dismissed by this Court as already observed in preceeding paragraphs.. It needs to be emphasized that the corruption cases need to be taken up severely but at the same time a cautious approach is needed where an honest or strict government official may be falsely implicated by a vindictive person for refusal by government servant to show favour or to yield to the pressure. In such circumstances, the investigating agency CC No.36/11, RC No.9(A)/07 - CBI vs. Mishri Lal Page 21 of 22 needs to be careful and circumspect right from the stage of pre-trap proceedings and at least reasonably verify the demand of illegal gratification by such government servant during pre-trap proceedings to ensure that the investigation proceeds fairly. This may also avoid harassment or ignominy to the honest officials.
For the foregoing reasons, the prosecution has failed to bring home the charge against the accused beyond reasonable doubt. Accordingly accused Mishri Lal is acquitted of the charge u/s 7 and 13(1)(d) r/w 13(2) of PC Act, 1988.
Announced in the (Anoop Kumar Mendiratta)
open Court on 20th April, 2012 Special Judge (PC Act)
CBI-08, Central District,
Tis Hazari Courts, Delhi.
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