Delhi District Court
Cbi vs . 1)Rajesh Kumar Bhardwaj on 28 July, 2016
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IN THE COURT OF SH. PITAMBER DUTT, SPECIAL
JUDGE (PC ACT) CBI-02 CENTRAL, TIS HAZARI
COURTS, DELHI
CC NO. 532365/2016 (11/09)
RC NO. 9(A)/2008
CBI/ACB, New Delhi
UNIQUE ID NO. 02401R0582532009
CBI VS. 1)Rajesh Kumar Bhardwaj
S/o Sh. Bhim Singh
Bhardwaj, Care Taker,
AGCR Building, New Delhi,
R/o Quarter No.2, AGCR
Building, ITO, New Delhi,
also R/o H.No. 1015, Panna
Poposian, PS Narela,
Delhi - 110040.
2)Dinkar Joshi S/o Sh. Data
Ram Joshi, Accountant in
the Office of AG (A&E),
Uttarakhand, Dehradun,
R/o Jyoti Vihar, Opposite
Galaxy International
School, Azadpur, Danda,
Dehradun.
3)Bhagwan Singh Azad
S/o Sh. Gordhan Azad,
Steno Grade - I, Office of
DG Audit, New Delhi,
R/o NA, 1991, Vishnu
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Garden, New Delhi, also
R/o Village Rajokari
(Pahari), New Delhi - 38.
4)Mukul Gambhir,
S/o Late Sh. Madan Mohan
Gambhir, Senior Auditor,
Office of DG Audit, Central
Revenue, AGCR Building,
New Delhi,
R/o Flat No. 402, Shree
Ganesh Apartment,
Plot No. 12-B, Sector - 7,
Dwarka, New Delhi.
5)Pukar Mahto S/o Late Sh.
Mohan Mahto, Daftary in
the office of CAG of India,
R/o C-1/149, New Kondali,
Delhi.
6)Umeed Singh, S/o Late Sh.
Padam Singh, Senior
Auditor, Office of CAG of
India, New Delhi,
R/o DG-3/175, Vikas Puri,
New Delhi.
Date of institution : 22.12.2009
Date of decision reserved on : 19.07.2016
Date of decision : 27.07.2016
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JUDGMENT
1. Vide this judgment, I shall decide the case RC-
DAI-2008(A)-0009 which has been registered on 05.03.2008 on the basis of a written complaint bearing no. 1131-A.AR.G(P)/2008 dated 29.02.2008 of Sh. R. Naresh, Assistant Comptroller and Auditor General (P), Office of CAG of India, New Delhi against accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad, Mukul Gambhir, Pukar Mehto and Umeed Singh u/s 120B IPC r/w section 380, 420, 468, 471 IPC and 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988. The brief facts necessitated for registration of the present case as per the prosecution are given as under:-
2. The prosecution has alleged that during the year 2007 the Office of Comptroller and Auditor General of India had conducted Section Officer Grade Examination CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 3 of 147 4 (SOGE) for group C employees of Indian Audit and Accounts Department. The Exams were conducted at 47 centres across the country and about 5,000/- candidates appeared in the said exam.
3. The Prosecution further alleged that the answer scripts from various centres in India were received in Delhi which were kept in almirah under the lock and key of the said almirah used to be with Sh. Devender Singh Chadha, Section Officer, during office hour and same used to be handed over to Sh. Rajender Prasad, Senior Administrative Officer, during night time after sealing the examination hall. On the next morning, Examination Hall used to be de-sealed in the presence of officials of Exam Section, and keys used to be handed over to Sh.
Devender Singh Chadha by Sh. Rajender Prasad. All the bundles of the answer scripts received from various centres across the India were tallied by the officials with Form 'A', and same were found in order, and after CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 4 of 147 5 checking, bundles were kept in the same almirah.
4. The Prosecution has further alleged that during sorting of subject wise answer scripts, answer scripts pertaining to index number of accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir were found in duplicate and seven answer scripts were found missing. These double and missing answer scripts were related to only two centres i.e. Dehradun and Delhi. The answer scripts of Dehradun centres were checked by Ms. Sutapa Sarkar and answer scripts of Delhi centre were checked by Smt. D. Shanti Shree, AAO. Both these officials stated that when answer scripts of Delhi and Dehradoon Centre were tallied with Form A, same were found in order.
5. The Prosecution has further alleged that accused Rajesh Kumar Bhardwaj having Roll No. 13421065 had appeared in SOGE 2007, he was working as Caretaker in the office of Accountant General, Central Revenues CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 5 of 147 6 Building. Accused Rajesh Kumar Bhardwaj knew one Surender Kumar Chopra who retired from the Office of Comptroller and Auditor General of India, New Delhi in November 2004. When Sh. Surender Kumar Chopra visited the house of accused Rajesh Kumar Bhardwaj, he requested him to help him in passing the exam. Sh. Surender Kumar Chopra contacted accused Pukar Mahto who handed over 4 blank answer sheets to Sh. Surender Kumar Chopra and demanded Rs.20,000/-.
6. The prosecution has further alleged that accused Pukar Mahto stated that blank answer sheets were provided to him by accused Umeed Singh and the solved answer scripts alongwith Rs.20,000/- would be given to accused Umeed Singh for replacing them with the original. Sh. Surender Kumar Chopra handed over the blank answer sheet to accused Rajesh Kumar Bhardwaj and he was also apprised about demand of money. After 2 days, accused Rajesh Kumar Bhardwaj returned the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 6 of 147 7 solved answer scripts alongwith Rs.20,000/- to Sh. Surender Kumar Chopra, who handed over those answer sheets alongwith Rs.8,000/- to accused Pukar Mahto.
7. The Prosecution has further alleged that accused Dinkar Joshi, Accountant, AG (A&E), Shimla appeared in SOGE-2007 Examination from Dehradun Centre and his double answer scripts of Public Works Account Theory (SOE-7) were found. Accused Dinkar Joshi stated that he managed to change his answer sheets with the help of Sh. Rakesh Bhatt posted in the office of AG Uttarakhand. Accused Dinkar Joshi identified accused Pukar Mahto through photograph and stated that blank answer sheets were provided to him by accused Pukar Mahto in a Hotel in Delhi. Accused Dinkar Joshi admitted his role in commission of the crime and accepted to have paid Rs.10,000/- to accused Pukar Mahto.
8. The Prosecution further alleged that accused Bhagwan Singh Azad, who was working as Steno Grade - CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 7 of 147 8 I in the office of the Director General of Audit, Central Revenues, New Delhi also appeared in SOGE Examination . He got blank answer sheets with the help of Sh. Vinod Kumar Dasmana, Section Officer in the office of Director General of Audit, Central Revenues, New Delhi through one Vinod Kumar, Peon working in the CAG Office. Sh. Vinod Kumar, had also received blank answer sheets from accused Pukar Mahto.
9. The Prosecution has further alleged that accused Mukul Gambhir having Index No. 23221035 attempted paper of Statistics (SOE-31), of which two answer sheets were recovered. It was revealed that accused Mukul Gambhir contacted Sh. Vinod Kumar, Peon through Sh. Brij Lal, Section Officer, Sh. Vinod Kumar, Peon demanded Rs.8,000 - 9,000/- for replacing the paper. An advance of Rs.1,000/- per paper was agreed by both of them. Sh. Brij Lal received four blank answer sheets from Sh. Vinod Kumar and handed them over to CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 8 of 147 9 accused Mukul Gambhir, and the amount of Rs.4,000/- received from accused Mukul Gambhir was given to Sh. Vinod Kumar, Peon alongwith the solved answer sheet.
10. The Prosecution has further alleged that during investigation it was revealed that accused Umeed Singh, Senior Auditor, in the Office of Comptroller and Auditor General of India, New Delhi was supplying blank answer sheets to accused Pukar Mahto, and same were given to the candidates. Accused Umed Singh had received solved answer sheets and money from the candidates through accused Pukar Mahto for replacing them.
11. After completion of investigation, charge sheet has been filed u/s 120B IPC r/w section 380, 511, 465, IPC and 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988 and substantive offences thereof after taking appropriate sanction from the Competent Authority as required u/s 19 of the Prevention of Corruption Act, 1988 against accused persons. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 9 of 147 10
12. Ld. Predecessor of this Court after completing all the preliminary proceedings, heard the arguments on charge and vide order dated 19.09.2014 framed the charges against all the accused persons u/s 120B IPC r/w section 380, 420, 468, 471 IPC and 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988 and substantive offences thereof.
13. In order to substantiate charges against accused persons, prosecution has examined 41 witnesses.
❏ PW-1 is Sh. R.Naresh, the then Assistant Auditor General (P) in the office of Comptroller and Auditor General of India, New Delhi, complainant of this case, who proved his complaint dated 29.02.2008 as Ex. PW-1/A. ❏ PW-2 is Ms. Kavitha Suresh, Senior Auditor, Examination Section, Office of the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 10 of 147 11 Comptroller and Auditor General of India, New Delhi.
❏ PW-3 is Sh. Devender Kumar Gupta, the then Director, Office of the Comptroller and Auditor General of India, New Delhi having additional charge of Director (Exam). He exhibited the document containing list of officials working in examination section deputed for segregation of answer sheets paper wise/subject wise as Ex. PW-3/1, Production cum Seizure Memo dated 07.03.2008 as Ex. PW-3/2, Production cum Seizure Memo dated 13.03.2008 as Ex. PW-3/3, File no.1 in respect to accused Rajesh Kumar Bhardwaj, I no. 13421065 as Ex. PW-3/4, File no.2 in respect to accused Bhagwan Singh Azad, I no.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 11 of 147 12 23221008 as Ex. PW-3/5, File no.4 in respect to accused Mukul Gambhir, I no. 23221035 as Ex. PW-3/6, File no.8 in respect to accused Dinkar Joshi, I no. 20720079 as Ex. PW-3/7, two copies of answer sheets of candidate's Index no. 13421065 as Ex. PW-3/8 and Ex. PW-3/9, two copies of answer sheets of candidate's Index no. 23221008 as Ex. PW-3/10 and Ex. PW-3/11, two copies of answer sheets of candidate's Index no. 20720079 as Ex. PW-3/12 and Ex. PW-3/13, two copies of answer sheets of candidate's Index no. 23221035 as Ex. PW-3/14 and Ex. PW-
3/15. He also exhibited the statement made by accused Dinkar Joshi as PW3/1R. ❏ PW-4 is Sh. Rajender Prashad, Senior CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 12 of 147 13 Administrative Officer, Office of the Comptroller and Auditor General of India, New Delhi. He exhibited order dated 30.11.2007 as Ex. PW-4/1, production cum seizure memo dated 25.07.2008 as Ex. PW-4/2, report regarding verification of stock of blank answer sheets as Ex. PW- 4/3, statement of stock verification as Ex. PW-4/4, stock verification of blank answer scripts as Ex. PW-4/5, document containing statement of leave availed by staff during January 2008 as Ex. PW-4/6, document containing statement of leave availed by staff during November 2007 as Ex. PW-4/7, document containing statement of leave availed by staff during December 2007 as Ex. PW-4/8 and copy of attendance roll of examination section for CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 13 of 147 14 the months of November and December 2007 as Ex. PW-4/9 (colly.).
❏ PW-5 is Mrs. Prarna Kaul who was posted as Senior Auditor in the Office of the Comptroller and Auditor General of India, New Delhi w.e.f. July 1990 to February 2012.
❏ PW-6 is Ms. Sandhya R. Nair, Assistant Administrative Officer, Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-7 is Sh. Jairaj, Assistant Audit Officer, Office of the Director General of Audit, Central Receipt, New Delhi. He is one of the candidate whose answer sheet was found missing.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 14 of 147 15 ❏ PW-8 is Sh. Ajay Kumar Dogra, Senior Auditor in the office of Principal Accountant General (Audit), Delhi. He is one of the candidate whose answer sheet was found missing.
❏ PW-9 is Ms. Sutapa Sarkar, Senior Auditor, Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-10 is Sh. Vikram D. Murugraj, the then Director (Personnel), in the Office of the Comptroller and Auditor General of India, New Delhi who accorded sanction for prosecution of accused Umeed Singh vide sanction order dated 20.11.2009 Ex. PW- 10/1.
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❏ PW-11 is Sh M.C. Gupta, Senior
Administrative Officer (Establishment) in the Office of the Comptroller and Auditor General of India, New Delhi who accorded sanction for prosecution of accused Pukar Mahto vide sanction order dated 22.10.2009 Ex. PW-11/1.
❏ PW-12 is Sh. Raj Pal Singh, Data Entry Operator in the Office of the Comptroller and Auditor General of India, New Delhi. ❏ PW-13 is Ms. D. Shanti Sree, Assistant Administrative Officer in the Office of the Comptroller and Auditor General of India, New Delhi.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 16 of 147 17 ❏ PW-14 is Sh. P.V. Satyanarayana, Auditor, Office of the Comptroller and Auditor General of India, New Delhi. He exhibited attendance sheet of Delhi Centre dated 28.11.2007 pertaining go paper i.e. Government Audit as Ex. PW-14/1.
❏ PW-15 is Sh. Ajay Giri, Auditor, Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-16 is Sh. H. Pradeep Rao, the then Director General of Audit, Central Expenditure, AGCR Building, New Delhi who accorded sanction for prosecution of accused Bhagwan Singh Azad vide sanction order dated 26.10.2009 Ex. PW- 16/1.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 17 of 147 18 ❏ PW-17 is Sh. J.P.N. Singh, the then Director (Administration), in the office of Principal Director of Audit (ESM), Government of India who accorded sanction for prosecution of accused Rajesh Kumar Bhardwaj vide sanction order dated 22.10.2009 Ex. PW-17/1.
❏ PW-18 is Sh. Ved Prakash, Senior Auditor in the Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-19 is Sh. Raj Kumar, peon in the Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-20 is Sh. Rambir Singh who was CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 18 of 147 19 posted as Account Officer (Administration) in the office of Accountant General (A&E) Uttarakhand. He exhibited the document in which list of three mobile numbers along with names was mentioned as Ex. PW-
20/1.
❏ PW-21 is Sh. Rajender Singh Negi, Account Officer, Pay & Account Office of the AG, Dehradun, Uttarakhand. PW-21 has exhibited the document regarding details of leave availed by P.R. Chauhan, accused Dinkar Joshi and Rakesh Bhatt as Ex. PW-21/1.
❏ PW-22 is Sh. Shiv Singh Palyal, Senior Account Officer, Office of the Accountant General (A&E), Dehradun, Uttarakhand. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 19 of 147 20 He exhibited the answer sheets in the handwriting of accused Dinkar Joshi as Ex. PW-22/1 to Ex. PW-22/2.
❏ PW-23 is Sh. Brij Lal, Assistant Audit Officer, in the office of Principal Accountant General (Audit), Delhi. He exhibited his statement recorded u/s. 164 Cr.P.C. by the then Ld. MM as Ex. PW-23/1.
❏ PW-24 is Sh. Vinod Kumar, Peon, in the Office of the Comptroller and Auditor General of India, New Delhi. He exhibited his statement recorded u/s. 164 Cr.P.C. by the then Ld. MM as Ex. PW-24/1.
❏ PW-25 is Sh. Hemant Arora S/o Sh. N.K. Arora, owner of Hotel Dewan Palace, CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 20 of 147 21 Paharganj, New Delhi. PW-25 brought on record the Hotel Entry Register commencing from 25.09.2007 ending on 23.03.2008. He exhibited the copy of page no. 69 and 70 of the Hotel Entry Register containing entries regarding the persons coming and staying in his hotel between dates 30.11.2007 to 02.12.2007 as Ex. PW-25/1.
❏ PW-26 is Ms. Atoorva Sinha, Director General Audit (Central Revenue), AGCR, New Delhi. He exhibited the photocopies of two answer sheets of candidate index no. 13420165 related to subject 'Service Regulations' as Ex. PW-26/1 and Ex. PW- 26/2.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 21 of 147 22 ❏ PW-27 is Sh. Debasish Guha, Statistical Advisor in the Office of the Comptroller and Auditor General of India, New Delhi. He exhibited photocopies of two answer sheets of candidate index no. 23221035 related to subject Statistics & Statistical Sampling (Theory) as Ex. PW-27/1 (D-21) and Ex. PW-27/2 (D-22) and photocopies of two answer sheets of candidate index no. 23221008 related to subject Statistics & Statistical Sampling (Theory) as Ex. PW- 27/3 (D-23) and Ex. PW-27/4 (D-24).
❏ PW-28 is Sh. Ramesh Lal Sharma, the then Senior Deputy Accountant General in the office of Accountant General (A&E) who accorded sanction for prosecution of accused Dinkar Joshi vide sanction order CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 22 of 147 23 dated 11.11.2009 Ex. PW-28/1.
❏ PW-29 is Sh. Ramesh Kumar Sharma, Senior Auditor in the Office of the Comptroller and Auditor General of India, New Delhi.
❏ PW-30 is Sh. Vinod Kumar Dhasmana, in the office of Director General of Audit, Central Expenditure, I.P.Estate, New Delhi. He exhibited his statement recorded u/s 164 Cr.P.C. before the then Ld.MM as Ex. PW-30/1.
❏ PW-31 is Sh. K.L. Tuteja S/o Sh. Ram Lal Tuteja. He exhibited specimen signatures / writings (S-76 to S-109) as Ex. PW-31/1 (colly.) (D-15), specimen signatures / CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 23 of 147 24 writings (S-110 to S-168) as Ex. PW-31/2 (colly.) (D-16), specimen signatures / writings (S-1 to S-40) as Ex. PW-31/3 (colly.) (D-38).
❏ PW-32 is Dr. S. Ahmed , AGEQD / Scientist-B, CFSL, Bhopal, M.P who has exhibited report no. CX-163/2008 dated 22.12.2008 as Ex. PW-32/1 (D-14) and reasons accompanying the report as Ex. PW-32/2 (Part of D-14).
❏ PW-33 is Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. He exhibited the call detail record pertaining to mobile no.
9818279058 as Ex. PW-33/1 (D-12), Subscriber Application Form and address proof of the subscriber as Ex. PW-33/2 CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 24 of 147 25 (colly.) and certificate u/s 65 B of Indian Evidence Act regarding call detail of mobile no. 9818279058 as Ex. PW-33/3.
❏ PW-34 is Sh. C.K. Sharma, retired Inspector, CBI. IO who investigated this case. He exhibited the FIR as Ex. PW-34/1 (D-1), specimen handwriting / signature of accused Rajesh Kumar Bhardwaj (S-41 to S-75) as Ex. PW-34/2 (colly.) (D-39), specimen writing / signature of accused Dinkar Joshi (S-148 to S-168) as Ex. PW- 34/3 (colly.), letter dated 06.06.2008 as Ex. PW-34/4 (D-7).
❏ PW-35 is Sh. Shailender Malik, the then Ld. MM, Tis Hazari Courts, Delhi. He exhibited application dated 18.11.2008 as CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 25 of 147 26 Ex. PW-35/1, statement of Surender Kumar Chopra recorded by him u/s. 164 Cr.P.C. as Ex. PW-35/2, another application dated 18.11.2008 as Ex. PW- 35/3, another application dated 18.11.2008 as Ex. PW-35/4, hand written statement of Vinod Kumar u/s 164 Cr.P.C., recorded by his steno on his dictation as Ex. PW-35/5. ❏ PW-36 is Sh. K. Ganesh, Senior Audit Officer in the office of Director General of Audit, Central Expenditure, New Delhi. PW-36 has exhibited the sanction order passed by Sh. Satish Sethi, the then Director of Administration who accorded sanction for prosecution of accused Mukul Gambhir vide sanction order Ex.PW-36/1. PW-36 has also exhibited the sanction file CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 26 of 147 27 processed by him as Ex. PW-36/2 and the process note dated 26.1.2009 in the said file as Ex. PW-36/3.
❏ PW-37 is Sh. Chander Mohan, the then Principal Director of Audit, in the office of Comptroller and Auditor General of India, New Delhi. He exhibited the photocopies of two answer sheets pertaining to roll no. 20720079 (D-19 & D-20) evaluated by him as Ex. PW-37/1 and Ex. PW-37/2 (respectively.).
❏ PW-38 is Sh. S.P. Singh S/o Late Sh.
Molak Ram in whose presence specimen writing of accused Dinkar Joshi was taken on specimen writing sheets (S-148 to S-
168) already Ex. PW-34/3 (colly.).
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 27 of 147 28 ❏ PW-39 is Sh. Virender Kumar Sonekar S/o Late Sh. Ram Sonekar in whose presence specimen writing of accused Dinkar Joshi was taken on specimen writing sheets (S- 148 to S-168) already Ex. PW-34/3 (colly.). ❏ PW-40 is Sh. P.K. Srivastava, DSP, CBI/ACB, Lucknow, IO of this case who has conducted remaining investigation in this case after transfer of the previous IO Inspector C.K. Sharma.
❏ PW-41 is Sh. Gaurav Rao, Ld. Senior Civil Judge cum Rent Controller, South East District, Saket Courts, New Delhi. He exhibited statement of Brij Lal recorded u/s. 164 Cr.P.C. as Ex. PW-41/1 and copy CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 28 of 147 29 given to the IO as Ex. PW-41/2.
14. After completion of prosecution evidence, statement of all the accused persons under section 313 Cr. P. C has been recorded. All the accused persons have denied their involvement in the commission of offence and stated that they have been falsely implicated in this case. Accused persons have not led any evidence in their defence.
15. Sh. Mohd. Shakeel, Ld. Senior PP for CBI has contended that prosecution has proved on record that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad, Mukul Gambhir, Pukar Mahto and Umed Singh had entered into a criminal conspiracy for doing an illegal act. He further contended that prosecution has led sufficient evidence on record to prove that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir had written duplicate answer sheet of the same subject and got the same planted in CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 29 of 147 30 the record with the help of their co-accused Pukar Mahto for getting themselves selected in the Section Officer Grade Examination. He further contended that the handwriting expert has given a positive opinion to the effect that duplicate answer sheets bear the handwriting of accused persons which clearly shows that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad, Mukul Gambhir have committed cheating and forgery in the Section Officer Grade Examination. He further contended that prosecution has led sufficient material on record to prove the charges framed against each accused persons.
16. Per contra, Chaudhary Ram Kishan, Ld. Counsel for accused Rajesh Kumar Bhardwaj and Umed Singh has contended that prosecution has not led any evidence on record to prove that accused Rajesh Kumar Bhardwaj was a part of the criminal conspiracy. He further contended that none of the prosecution witnesses have CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 30 of 147 31 stated that examination sheet of accused Rajesh Kumar Bhardwaj was recovered in duplicate on 26.12.2007 nor any witness has stated that he took out the papers from almirah on 26.12.2007. He further contended that prosecution has not led any evidence to prove that in whose custody the duplicate papers remained since the date of recovery of duplicate answer sheets till the filing of the complaint dated 07.03.2008. He further contended that section 13 (1) (d) of the Prevention of Corruption Act, 1988 is not applicable as the act attributed against accused Rajesh Kumar Bhardwaj is his private act and has nothing to do with his official duty. He further contended that accused Umed Singh has been charged u/s 380 IPC but prosecution has not led any evidence to prove that accused Umed Singh had committed any theft in any manner.
17. Sh. Pradeep Mahajan, Ld. Counsel for accused Dinkar Joshi has contended that prosecution has not led CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 31 of 147 32 any evidence against accused Dinkar Joshi to prove that he was a part of criminal conspiracy or has committed any offence u/s 13 (1) (d) of the Prevention of Corruption Act, 1988.
18. Sh. A.P. Jain, Ld. Counsel for accused Bhagwan Singh Azad has contended that prosecution has not led any evidence on record to connect the duplicate answer sheet with accused Bhagwan Singh Azad. He further contended that handwriting expert has not expressed any opinion regarding writing of duplicate answer sheet. He further contended that prosecution has failed to bring any evidence on record to prove that accused Bhagwan Singh Azad had entered into a criminal conspiracy.
19. Dr. Sushil Gupta, Ld. Counsel for accused Mukul Gambhir has contended that prosecution has not led any evidence to connect accused Mukul Gambhir with witness Vinod Kumar. He further contended that the act alleged against accused Mukul Gambhir was not in due CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 32 of 147 33 discharge of his public duties, therefore, he could not be held liable for committing any offence under Prevention of Corruption Act, 1988. He further contended that prosecution has not sought proper sanction to prosecute accused Mukul Gambhir nor prosecution has examined the Sanctioning Authority. He further contended that the prosecution has not led any evidence that duplicate answer sheet found during scrutiny was written by accused Mukul Gambhir. He further contended that handwriting expert has not expressed any opinion regarding duplicate answer sheet. In support of his plea, Ld. Counsel for accused Mukul Gambhir has relied upon Judgments titled "CBI Vs. Ashok Kumar" reported as 2014 CLJ 940.
20. Sh. S.A. Khan, Ld. Counsel for accused Pukar Mahto has contended that prosecution has not placed any evidence on record to prove that accused Pukar Mahto was part of criminal conspiracy. He further CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 33 of 147 34 contended that prosecution has not led any evidence to prove the guilt of accused Pukar Mahto. All the counsels for accused persons prayed that accused persons may be acquitted.
21. I have heard Ld. Senior PP for CBI and Ld. defence counsels on behalf of accused persons. I have also perused the charge sheet, statements of witnesses recorded in the court, documents and other material placed on record. A perusal of the above shows that accused public servants have been charged for entering into criminal conspiracy to do an illegal act of cheating and forgery for securing promotion in Section Officer Grade Examination for the year 2007 by writing second set of answer sheets and getting the same inserted in the bundle of answer sheets with the help of other co- accused.
22. The first point for consideration is as to whether proper sanction for prosecution was accorded before CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 34 of 147 35 initiation of prosecution against accused public servants or not, as required u/s 19 of the Prevention of Corruption Act, 1988 which reads as under:-
"Section 19. Previous Sanction necessary for prosecution:- (1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction.-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 35 of 147 36 removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
23. Ld. Counsels for the accused persons have contended that act complained against accused persons was not done by them in discharge of their official duties and same was their private act, therefore, they can not be held liable for any offence punishable under any of the provisions of Prevention of Corruption Act, 1988. They further contended that proper sanction u/s 19 of Prevention of Corruption Act, 1988 has not been sought by the prosecution for prosecution of accused persons.
24. The contention that act complained against accused persons was their private act and was not related to discharge of their official duties, is not tenable CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 36 of 147 37 for the simple reason that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir were working as public servants at the relevant time. The Comptroller and Auditor General of India had conducted Section Officer Grade Examination in the year 2007 from 20.11.2007 to 07.12.2007 at 47 centres across India.
25. The said examination was conducted only for departmental promotion. In the said examination, candidates, who were already in government job, were allowed to appear. Accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir could take that exam only because they were working as public servants. Had they not been working as public servants, they would not have been competent to take the said exam. Any mischief committed by public servant during examination which was meant for departmental promotion, can by no stretch of imagination be called as CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 37 of 147 38 their private act.
26. The accused persons were became eligible for participating in Section Officer Grade Examination, 2007 only because they were working as public servants and not otherwise, therefore, the act complained against them was part of their official duties and can not be termed as their private act.
27. Accused persons have not disputed that they were working as public servants during the relevant time. The prosecution has placed on record Sanction Order passed by Sh. J.P.N. Singh against accused Rajesh Kumar Bhardwaj Ex. PW-17/1, Sanction Order passed by Sh. R.L. Sharma, Senior Deputy Accountant General against accused Dinkar Joshi Ex. PW-28/1, Sanction Order passed by Sh. H. Pradeep Rao, Director General of Audit, Central Expenditure against accused Bhagwan Singh Azad Ex. PW-16/1, Sanction Order passed by Sh. Satish Sethi, Director Administration Ex. PW-36/1 against CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 38 of 147 39 accused Mukul Gambhir, Sanction Order passed by Sh. M.C. Gupta, Administrative Officer in the Office of Comptroller and Auditor General of India, New Delhi Ex. PW-11/1 against accused Pukar Mahto, Sanction Order passed by Sh. Vikram D. Murugraj, Director (Personnel) in the office of CAG of India, New Delhi Ex. PW-10/1 against accused Umed Singh.
28. The prosecution has examined PW-17 Sh. J.P.N. Singh, PW-28 Sh. Ramesh Lal Sharma, PW-11 Sh. M.C. Gupta, PW-10 Sh. Vikram D. Murugraj, PW-16 Sh. H. Pradeep Rao who accorded sanction to prosecute accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad, Mukul Gambhir, Pukar Mahto and Umed Singh. Prosecution has also examined PW-36 Sh. K. Ganesh who proved the sanction order passed by Sh. Satish Sethi to prosecute accused Mukul Gambhir.
29. An examination of the testimonies of abovenamed witnesses shows that the officer concerned who accorded CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 39 of 147 40 sanction to prosecute accused persons were competent to remove these accused persons from their services and being competent authority, they passed the sanction order. None of the accused persons have claimed that the officials who accorded sanction to prosecute them were not competent to pass such order or to remove them from their services.
30. Ld. Counsel for accused persons have argued that prosecution had not placed entire relevant material before the competent authority for seeking sanction against accused persons. They relied upon judgment titled "CBI Vs Ashok Kumar Aggarwal" (Supra).
31. The Hon'ble Supreme Court of India in "CBI Vs Ashok Kumar Aggarwal" (Supra) has held that:-
"Sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 40 of 147 41 affords protection to the Government servant against frivolous prosecution. Further it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent though not a shield for the guilty. There is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The prosecution must therefore send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statement of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 41 of 147 42 may refuse sanction. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 42 of 147 43 entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
32. The Hon'ble Supreme Court of India in "C.S. Krishnamurthy Vs. State of Karnataka" reported as (2005) 4 SCC 81 has held that "When sanction order is itself eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind. In the presence case, Ld. Additional Session Judge took a very narrow view that all the papers were not placed before the Court to show CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 43 of 147 44 that there was proper application of mind by the Sanctioning Authority. The view taken by Ld. Special Judge was not correct and the Ld. Single Judge correctly set aside the order. In this connection, we may refer three Judge Bench decision of this Court "Indu Bhushan Chatterjee Vs. State of West Bengal" in which a similar argument was raised that the sanctioning authority did not apply his mind to the facts of the case but merely perused the draft prepared by the police and did not investigate the truth of the offence.
The Ld. Judges after perusing the sanction order read with evidence of Mr. Bokil held that there was a valid sanction accorded by a competent person. In this case, the accused was charged u/s 161 of the Indian Penal Code and section 5 (2) of the Prevention of CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 44 of 147 45 Corruption Act. The accused was paid a sum of Rs.100/- in marked currency as illegal gratification at Coffee House for clearing some claims entrusted to him and same was found in his possession.
Sanction for prosecution of the appellant was sought from PW-5.
Mr. Bokil as a competent authority to grant sanction, came in the witness box and he deposed that he accorded sanction for prosecution after proper application of mind. On these facts the Ld. Judges observed that Ex.6 on the face of it disclose a valid sanction for prosecution. In the sanction order it was disclosed that the accused had accepted a bribe of Rs.100/- for clearing claim cases and he was trapped.
Though, the sanctioning authority who came in the witness box could not answer some questions in CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 45 of 147 46 cross-examination, yet this Court held that sanction itself is eloquent read with evidence of the sanctioning authority and same is valid. In the present case, the facts contained in the sanction order read with evidence of the sanctioning authority makes it clear that sanction was properly accorded and is valid.
Para 8:- In this connection, a reference was made to a decision of the Constitution Bench in the case of "R.S. Pandit Vs. State of Bihar" wherein Their Lordship after referring to a decision of the privy council in the case of "Gokulchand Dwarkadas Morarka Vs. R" observed as under:-
"Section 6 of the Act also does not require the sanction to be given in a particular form. The Principle CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 46 of 147 47 expressed by the Privy Council, namely that the sanction should be given in respect of the facts constituting the offence charged equally applies to the sanction under section 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the fact of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction".
Para 9 Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 47 of 147 48 leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness 40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction.
It is not a case that the sanction is lacking in the present case. The CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 48 of 147 49 view taken by the Additional Sessions Judge is not correct and view taken by the Ld. Single Judge of the High Court is justified."
33. The above legal proposition makes it clear that the prosecution is required to show that the investigating agency had produced all the relevant material before the competent Authority qua the case and the competent authority has applied its mind on the material so produced before it and thereafter accorded the sanction.
34. A perusal of Sanction Order Ex. PW-17/1 passed by Sh. J.P.N. Singh, Director (Administration) against accused Rajesh Kumar Bhardwaj, Sanction Order Ex. PW-28/1 passed by Sh. R.L. Sharma, Senior Deputy Accountant General against accused Dinkar Joshi, Sanction Order Ex. PW-PW-16/1 passed by Sh. H. Pradeep Rao, Director General of Audit, Central Expenditure against accused Bhagwan Singh Azad, CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 49 of 147 50 Sanction Order Ex.PW-36/1 passed by Sh. Satish Sethi, Director Administration against accused Mukul Gambhir, Sanction Order Ex.PW-11/1 passed by Sh. M.C. Gupta, Administrative Officer in the Office of Comptroller and Auditor General of India, New Delhi against accused Pukar Mahto and Sanction Order Ex.PW-10/1 passed by Sh. Vikram D. Murugraj, Director (Personnel) in the office of CAG of India, New Delhi against accused Umed Singh shows that before passing the sanction orders Ex. PW- 17/1, Ex. PW-28/1, Ex. PW-16/1, Ex. PW-36/1, Ex. PW- 11/1 and Ex. PW-10/1 the respective Sanctioning Authorities had examined copy of FIR, statement of witnesses, GEQD opinion and statement of the witnesses recorded u/s 164 Cr.P.C. in respect of the allegations leveled against accused persons. The Sanctioning Authorities applied their mind and perused the material placed before them and found that the act complained against accused persons constitutes offenses charged CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 50 of 147 51 against accused persons and thus rightly accorded the sanction to prosecute them.
35. Ld. Counsel for accused Mukul Gambhir has contended that prosecution has not examined the sanctioning authority who accorded sanction to prosecute accused Mukul Gambhir.
36. No doubt that sanction to prosecute accused Mukul Gambhir was accorded by Sh. Satish Sethi who was working as Director (Administration) and he has not been examined by the prosecution. In his place, prosecution has examined PW-36 Sh. K. Ganesh who was posted as Assistant Audit Officer in Personnel Planning Section of CAG, New Delhi and processed the request for according sanction to prosecute accused Mukul Gambhir and prepared his process note Ex. PW- 36/3.
37. As per prosecution Sh. Satish Sethi who accorded sanction to prosecute accused Mukul Gambhir vide CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 51 of 147 52 sanction order Ex. PW-36/1 was not available as he was shifted at some other place and therefore, prosecution has examined Sh. K. Ganesh who was well acquainted with the handwriting of Sh. Satish Sethi who accorded sanction to prosecute accused Mukul Gambhir vide sanction order Ex. PW-36/1.
38. A perusal of sanction order Ex. PW-36/1 clearly shows that before passing sanction order Ex. PW-36/1, Sh. Satish Sethi had examined the facts and circumstances of the case and perused the material i.e. copy of FIR, Statement of witnesses recorded u/s 164 Cr.P.C. and other documents and after having satisfied about the allegation against accused Mukul Gambhir, he being the Competent Authority to remove accused Mukul Gambhir from his services, passed the sanction order dated 26.10.2009 Ex. PW-36/1 which has been proved by PW-36 Sh. K. Ganesh who was acquainted with the handwriting of Sh. Satish Sethi who passed sanction CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 52 of 147 53 order Ex. PW-36/1.
39. Accused Mukul Gambhir has not disputed that Sh. Satish Sethi was competent to remove him from his services. The sanction order Ex. PW-36/1 is a detailed one which shows that the competent authority had gone through the relevant material before according sanction to prosecute accused Mukul Gambhir . Merely that the prosecution has not produced Sh. Satish Sethi before the court as witness, who was not available, would not make the sanction order Ex. PW36/1 improper, which has been proved on record by PW-36 who was acquainted with the hand writing of Sh. Satish Sethi and had also processed the said file.
40. In view of the above facts and circumstances, I am of the considered view that the prosecution has proved on record that proper sanction has been accorded against all the accused persons vide sanction order Ex. PW-17/1, Ex. PW-28/1, Ex. PW-16/1, Ex. PW- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 53 of 147 54 36/1, Ex. PW- 11/1 and Ex. PW-10/1 as required u/s 19 of the Prevention of Corruption Act, 1988.
41. The accused persons have been charged for the offences punishable u/s 120B IPC r/w section 380, 420, 468, 471 IPC and 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988. Section 120A of IPC, defines criminal conspiracy which is reproduced as under:-
"120A. Definition of criminal
conspiracy.- When two or more
persons agree to do, or cause to
be done,-
(1) an illegal act, or
(2) an act which is not illegal by
illegal means, such an agreement
is designated a criminal
conspiracy:
Provided that no agreement except
an agreement to commit an offence
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS
Pg 54 of 147
55
shall amount to a criminal
conspiracy unless some act
besides the agreement s done by
one or more parties to such
agreement in pursuance thereof.".
42. The accused persons have also been charged under section 13(1)(d) of the Prevention of Corruption Act, 1988 which read as under:-
Section 13 - Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -
(a) ..................
(b) ..................
(c) ..................
(d) If he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 55 of 147 56 public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
43. A careful reading of the above provisions makes it absolutely clear that in order to constitute criminal conspiracy as defined u/s 120A IPC, the prosecution is required to prove that two or more persons have agreed to do or cause to be done an illegal act or an act which is not illegal by illegal means. The essence of criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both.
44. To bring home the guilt of accused persons u/s. 13 (1) (d) of the Prevention of Corruption Act, the prosecution is required to establish that the accused public servants by corrupt or illegal means obtained CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 56 of 147 57 pecuniary advantage or valuable thing for themselves or for any other person without any public interest.
45. The plea of the prosecution is that Section Officers Grade Examination 2007 was conducted in 47 Centres all over India. Answer sheets from all the centres were received in Delhi which were compared with Form A and during verification same were found in order. However, subsequently when sorting of answer scripts was done subject wise by the officials of examination cell, they found double answer sheet of paper SOE-5 (Service Regulation Theory) of accused Rajesh Kumar Bhardwaj, double answer sheet of paper SOE-7 (Public Works Accounts Theory) of accused Dinkar Joshi, double answer sheet of paper SOE-31 (Statistics) of Bhagwan Singh Azad and double answer sheet of SOE-31 of accused Mukul Gambhir.
46. To prove the said plea, prosecution has examined PW-9 Ms. Sutapa Sarkar who was working as Senior CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 57 of 147 58 Auditor in the office of Comptroller and Auditor General of India. She was assigned duty to compare the answer sheets of centres I.e. Shillong, Bhopal, Chandigarh, Jaipur, Kapurthala, Dehradun, Jammu and Pune with Form A. As per PW-9 she compared the answer sheets received from above centres with Form A, which contained the name of candidate who appeared in the said exam, and found all the answer sheets in order.
47. The prosecution has also examined PW-13 Ms. D. Shanti Sree who was working as Assistant Administrative Officer in the office of Comptroller and Auditor General of India, New Delhi. She was entrusted the work of checking / verification of answer sheets of Delhi centre by PW-4 Sh. Rajender Prasad, Senior Administrative Officer which work she completed by 20.12.2007 and answer sheets were found in order as per form A.
48. The testimony of PW-9 and PW-13 has not been disputed by Ld. Defence counsels. The prosecution has CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 58 of 147 59 thus proved that all the answer sheets received from various centres across India including centres of Delhi and Dehradun were found in order as per Form A when those answer sheets were received in CAG office, Delhi.
49. The prosecution has also examined PW-6 Smt. Sandhya R. Nair who was working as Section Officer in the CAG at the relevant time. She has briefly deposed in her examination in chief that on 26.12.2007, the almirahs were opened for paper vise scrutiny of answer sheets. Some of the bundles containing answer sheets were found in open condition. Thereafter all the bundles were taken out and it was found that some of the answer sheets were missing as far as she remembered. Certain answer sheets were found double. Thereafter all the answer sheets were again checked. Then the fact of missing of certain answer sheets and double of answer sheets were conveyed to the Director (Exam).
50. During cross-examination she deposed that she CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 59 of 147 60 does not remember the exact time when the double or missing answer sheets were seen but it was in the working hour i.e. after 09.00 AM. She does not know who detected missing answer sheets as well as double answer sheets.
51. The prosecution has also examined PW-13 Ms. D. Shanti Sree who briefly deposed in her examination in chief that on 26.12.2007, when she was on leave Sh. Rajender Prasad alongwith Sandhya Nair, Section Officer and others opened the almirah in which answer scripts of Delhi centre were lying. She further stated that when the answer script of Delhi were taken out from the almirah then they found that certain answer scripts were double in number and certain answer scripts were missing. On 28.12.2007 answer scripts pertaining to all centres of India were segregated subject wise and during that process it was revealed that certain answer scripts of Dehradun centre were in double and certain answer CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 60 of 147 61 scripts were missing apart from answer scripts of Delhi centre. In Delhi centre there were three answer scripts which were double in number and six answer scripts were missing. Whereas in Dehradun Centre one answer script was found double and one was found missing. She further deposed that when they found that certain answer scripts were missing regarding Delhi and Dehradun centres then they checked all the answer sheets with Form A pertaining to that particular centre and found that in Form A the answer scripts were duly ticked which was the confirmation that the answer scripts from those centres were duly received in CAG office but were removed subsequently. Then they reported the above matter to the Director (Examination) on 28.12.2007 itself.
52. During cross-examination PW-13 briefly deposed that she does not know who produced the double answer scripts to the Director (Examination). She volunteered that same must have been produced by Senior CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 61 of 147 62 Administrative Officer. She further stated that they found missing copies of answer scripts from Delhi and Dehradun Centres only. She denied that she had not checked the answer scripts of Delhi Centre uptill 20.12.2007 and has not put tick mark over Form A. She admitted that answer scripts Ex. PW3/12 and Ex. PW- 3/13 were not there in the bundle of answer scripts of Delhi when she checked the said bundle from Form A on 20.12.2007. She also denied that no double answer script or missing answer script was found on 28.12.2007 in her presence.
53. The prosecution has also examined PW-3 Sh. Devender Kumar Gupta who was having additional charge of Director (Exam), CAG of India, New Delhi in May 2007. PW-3 in his examination in chief has briefly deposed that during the year 2007, when the process of scrutiny of answer sheet was going on some of the officials informed him that certain duplicate answer CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 62 of 147 63 sheets were also found of certain subjects and certain answer sheets were found missing from the bundles. So far as he remembers the duplicate answer sheets of candidates of Dehradun centre and Delhi Centre were found. Accordingly, inquiry was conducted by him and for the said purpose he visited Dehradun.
54. Prosecution has also examined PW-4 Sh. Rajender Prasad who was working as Senior Administrative Officer in the Office of Comptroller and Auditor General of India and was incharge of Examination Section. During examination in chief he deposed that vide his order dated 30.11.2007 Ex. PW- 4/1 he nominated seven officials for checking the answer sheet with reference to Form A. He further deposed that at the time of receipt of answer sheets, they tallied the answer sheets with form A and everything was found in order. During the second round on 26.12.2007 when the answer sheets being scrutinized they found double answer sheet CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 63 of 147 64 of same subject with same roll number. Thereafter he reported the matter to Director (Examination), CAG who stated him to check all the answer sheets. During checking under his supervision they found few more copies of double answer sheets and certain answer sheets were found missing. The inquiry was conducted by Director Examination and a report was given to higher authorities and thereafter the said SOG Examination 2007 was canceled. PW-4 has been thoroughly cross- examined but his above testimony has remained uncontroverted.
55. An examination of testimony of PW-6 Smt. Sandhya R. Nair, PW-9 Ms. Sutapa Sarkar, PW-13 Ms. D. Shanti Sree, PW-3 Sh. D.K. Gupta and PW- 4 Sh. Rajender Prashad shows that answer scripts of all the centres of India were received in the Office of Comptroller and Auditor General of India, New Delhi. Those answer sheets particularly answer sheets received from Delhi CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 64 of 147 65 and Dehradun centre were checked by PW-9 Ms. Sutapa Sarkar and PW-13 Ms. D. Shanti Sree with Form A and those answer sheets were found in order. Meaning thereby that answer sheets of each candidate who had taken examination were found in order when same were recived in CAG Office. However, during sorting out of answer sheets which was carried out under the supervision of PW-4 Sh. Rajender Prasad, Senior Administrative Officer on 26.12.2007 and 28.12.2007, 3 answer scripts of Delhi centre and one answer script of Dehradun centre were found duplicate and 7 answer scripts were found missing.
56. The duplicate answer scripts of Delhi Centre which were recovered during sorting out of answer sheet on 26.12.2007 were having Index no. 13421065 of accused Rajesh Kumar Bhardwaj, answer script having Index no. 23221008 of accused Bhagwan Singh Azad, answer script having Index no.23221005 of accused CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 65 of 147 66 Mukul Gambhir. One duplicate answer script having index no. 20720079 pertaining to accused Dinkar Joshi was found from the bundle of answer script of Dehradun centre on 28.12.2007.
57. The sorting out of answer scripts was done by PW- 6 Smt. Sandhya R. Nair and PW-13 Ms. D. Shanti Sree under the supervision of PW-4 Sh. Rajender Prasad and when these duplicate answer scripts were found then the said fact was brought into the knowledge of PW-3 Sh. Devender Kumar Gupta who was posted as Director (Raj Bhasha) in the office of Comptroller and Auditor General of India, New Delhi at the relevant time.
58. The testimony of PW-6 Smt. Sandhya R. Nair, PW-9 Ms. Sutapa Sarkar, PW-13 Ms. D. Shanti Sree, PW-3 Sh. D.K. Gupta and PW- 4 Sh. Rajender Prashad regarding tallying of answer scripts with form A and recovery of duplicate answer scripts from the bundles of answer sheet of Delhi and Dehradun Centre remained CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 66 of 147 67 unshattered despite thorough cross-examination conducted by Ld. Defence counsel.
59. PW-6 Smt. Sandhya Nair and PW-13 Ms. D. Shanti Sree though could not give the name of the person who had found duplicate answer sheet during sorting of answer sheets on 26.12.2007 and 28.12.2007. But they categorically deposed that sorting out of the answer sheets was carried out by them under the supervision of PW-4 Sh. Rajender Prasad, Senior Administrative Officer on 26.12.2007 and 28.12.2007 and during this process, 3 answer scripts of Delhi centre and one answer script of Dehradun centre were found duplicate and 7 answer scripts were found missing.
60. Merely that prosecution witnesses could not give the name of the person who first detected the duplicate answer script in CAG Office, New Delhi on 26.12.2007 and 28.12.2007, the testimony of prosecution witness who were part of the process qua recovery of duplicate CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 67 of 147 68 answer sheets pertaining to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir would not become doubtful.
61. The prosecution has further claimed that the double answer script pertaining to accused Rajesh Kumar Bhardwaj having index no. 13421065, answer script pertaining to accused Bhagwan Singh Azad having Index no. 23221008, answer script pertaining to accused Mukul Gambhir having Index no.23221005 and duplicate answer script having index no. 20720079 pertaining to accused Dinkar Joshi were written in the handwriting of these accused persons respectively.
62. To prove the above plea, prosecution has examined PW-34 Inspector C.K. Sharma, IO of the case who during investigation had taken the specimen handwriting / signature of accused Rajesh Kumar Bhardwaj S-41 to S-75 Ex. PW-34/1 (colly.) specimen handwriting / signature of accused Dinkar Joshi S-148 to CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 68 of 147 69 S-168 Ex. PW-34/3 (colly.) through Inspector Alok Kumar at Dehradun who was assisting him during investigation. He had also taken specimen handwriting / signature of accused Bhagwan Singh Azad S-76 to S-109 Ex. PW- 31/1 (colly.) and specimen handwriting / signature of accused Mukul Gambhir S-1 to S-40 Ex. PW-31/3 (colly.).
63. During cross-examination PW-34 briefly deposed that he had taken specimen handwriting of accused Rajesh Kumar Bhardwaj from the questioned / disputed answer sheets. He admitted that he called accused Dinkar Joshi in Delhi through his colleague Inspector Alok Kumar. He denied that he obtained signature of accused Dinkar Joshi on blank answer sheets when he visited CBI office under threat and pressure. He also denied that he forcibly got written a fresh answer sheet of Public Work Account Theory from accused Dinkar Joshi in CBI office. He also denied that after getting the said copy written from accused Dinkar Joshi he handed over the same to CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 69 of 147 70 D.K. Gupta. He also denied that he subsequently seized the said answer sheet from D.K. Gupta vide manufactured and ante dated seizure memo Ex. PW-3/2.
64. The Prosecution has also examined PW-31 Sh. K.L. Tuteja in whose presence specimen handwriting of accused Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir Ex. PW-31/1 and Ex. PW-31/2 were taken. The said witness has not been cross-examined by Ld. Defence counsel despite opportunity.
65. The prosecution has also examined PW-39 Sh. Virender Kumar Sonekar who is also a witness of specimen handwriting of accused Dinkar Joshi S-148 to S-168 Ex. PW-34/3. The said witness has also not been cross-examined by accused persons despite opportunity.
66. The prosecution has also examined PW-32 handwriting expert Dr. S. Ahmed, AGEQD, CFSL, Bhopal who examined duplicate answer sheets with the specimen handwriting / signature of accused Rajesh CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 70 of 147 71 Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir and submitted his report Ex. PW-32/1 which is supported by reasons Ex. PW-32/2. PW-32 also deposed that the questioned handwriting and signatures were also examined independently by Dr. B.A. Vaid, the then GEQD and he also reached at the same conclusion as mentioned in his report Ex. PW-32/1.
67. During cross-examination PW-32 deposed that he had examined the documents with the sophisticated instruments, lenses of different magnification and microscope and VSC 2000. He further stated that rough notes were prepared at the time of examination of documents which he brought with him. He denied that he had submitted report at the behest of the CBI to oblige them.
68. The Prosecution has also examined PW-22 Sh. Shiv Singh Palyal who was working as Senior Account Officer, Office of the Accountant General (A&E), CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 71 of 147 72 Uttarakhand, Dehradun who deposed in his examination in chief that he was in Dehradun when SOG Exam-2007 taken place. The said exam was also being conducted in Dehradun. PW-22 after seeing answer sheet of PW Accounts (Theory) dated 20.11.2007 already Ex. PW- 3/12 and PW Accounts (Theory) dated 20.11.2007 already Ex. PW-3/13. has stated that the handwriting in these answer sheets are of accused Dinkar Joshi. The answer sheets are exhibited as Ex. PW-22/1 to Ex. PW- 22/3.
69. During cross-examination PW-22 briefly deposed that he had seen both the answer sheets of PW Accounts (Theory), Ex. PW-3/12 and Ex. PW-3/13 (D-31 & 36) but after seeing both the answer sheets he can not tell which one is the original answer sheet. He denied that he cannot identify the handwriting of accused Dinkar Joshi. He also denied that accused Dinkar Joshi had never worked with him and he had not seen him signing and CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 72 of 147 73 writing.
70. The Prosecution has also examined PW-26 Atoorva Sinha who examined photocopy of duplicate answer sheets of accused Rajesh Kumar Bhardwaj. During her examination in chief she briefly deposed that answer sheet of candidate index no. 13421065 related to subjects 'Service Regulations' were evaluated by her and same are Ex. PW-26/1 (D-17) and Ex. Pw-26/2 (D-18) . As per her evaluation, the answer sheet Ex. PW-26/1 has secured 14 marks whereas answer sheet Ex. PW-26/2 has secured 62 marks. Both the answer sheet Ex. PW- 26/1 and Ex. PW-26/2 pertains to same index number that is same candidate. The answer sheet Ex. Pw-26/1 contain only question and some irrelevant text but no answer is given whereas in answer sheet Ex. Pw-26/2 the candidate has given answers that is why there is a difference of marks in both these answer sheets. Though she is not a handwriting expert but both the above CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 73 of 147 74 answer sheets appear to be of the same person.
71. During cross-examination PW-26 briefly deposed that When Mr. A.K. Mishra called her in his office she evaluated both these answer sheets on the same day. It may be correct that she may have written in her statement that she had checked the answer sheets on 16.01.2009. She denied that papers Ex. PW26/D1 were not the part of answer sheet when she evaluated the answer sheet Ex. PW-26/1, she denied that Inspector C.K. Sharma met her on 11.04.2009 and at that time he got her signature over Ex, Pw-26/1 and papers Ex. PW- 26/D1 which is part of Ex. PW-26/1.
72. The prosecution has also examined PW-27 Debashish Guha who evaluated copies of duplicate answer sheets of accused Mukul Gambhir. He briefly deposed in his examination in chief that two answer sheet having candidate Index no. 23221035 related to subject 'Statistics & Statistical Sampling (Theory) Ex. PW-27/1 CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 74 of 147 75 (D-21) & Ex. Pw-27/2 (D-22) were evaluated by him. As per his evaluation, the answer sheet Ex. PW-27/1 has secured aggregate 28 marks whereas answer sheet Ex. Pw-27/2 has secured aggregate 66 marks. Both these answer sheets Ex. PW-27/1 and Ex. Pw-27/2 pertains to same index number that is the same candidate. He further deposed that answer sheet Ex. Pw-27/1 contains wrong answer and only certain objective questions have been done whereas in answer sheet Ex. PW-27/2 the candidate has given answers of objective type questions almost correct except two questions and other sections also he has answered the questions correctly and accordingly marks are given. As per his observations being the evaluator the answer sheet Ex. Pw-27/2 appears to be written in a relax mood with no time limit and not in the examination hall. Though he is not a handwriting expert but both the above answer sheets appear to be of the same person.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 75 of 147 76
73. PW-27 Debashish Guha has further stated that he had also evaluated two answer sheets of candidate index no. 23221008 of accused Bhagwan Singh Azad related to subject 'Statistics & Statistical Sampling' which are Ex. Pw-27/3 and Ex. PW-27/4. As per his evaluation, the answer sheet Ex. PW- 27/3 has secured aggregate 14.5 marks whereas answer sheet Ex. PW-27/4 has secured aggregate 71 marks. Both the answer sheets Ex. Pw-27/3 and Ex. Pw-27/4 pertains to same index number that is the same candidate.
74. During cross-examination PW-27 admitted that answer sheet Ex. Pw-27/1 and Ex. PW-27/2 were not written by the candidate in his presence. He admitted that besides the above answer sheets he had not seen the handwriting of the above said candidate. He admitted that the was not acquainted with the handwriting of the candidate who had written answer sheet Ex. PW-27/1 and Ex. PW-27/2. He further stated that he is not a CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 76 of 147 77 handwriting expert therefore he is not aware haw many characteristics of handwriting are there. He cannot say if answer sheets Ex. Pw-27/1 & Ex. Pw-27/2 have been written by two different persons.
75. The prosecution has also examined PW-37 Sh. Chander Mohan who evaluated photocopy of duplicate answer sheet of accused Dinkar Joshi. In his examination in chief PW-37 deposed that the two answer sheets pertaining to roll no. 20720079 (D-19 & D-20) were evaluated by him on 16.01.2009 on the instructions of Director (Exam) Ex. PW-37/1 and Ex. PW-37/2. He further deposed that he had given marks for each answer after evaluating the said answer sheet and in total he had given 63 marks to the candidate in answer sheet Ex. PW- 37/1 and 51 marks to the candidate in answer sheet Ex. P{W-37/2.
76. During cross-examination PW-37 admitted that he had given marks on photocopies of answer sheets Ex. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 77 of 147 78 PW-37/1 and Ex. PW-37/2. He also admitted that the papers of Public Works Accounts consists in two parts, one part relates to theory of 100 marks and second part relates to practical which is also of 100 marks.
77. The prosecution has also relied upon statement of PW-23 Brij Lal, PW-24 Vinod Kumar and PW-30 Vinod Kumar Dhasmana whose statement were recorded by the Ld. Magistrate u/s. 164 Cr.P.C.
78. PW-23 Brij Lal briefly deposed in his examination in chief that he knows one daftry Vinod who used to bring dak in their department, He also knows accused Mukul Gambhir who was working as Senior Auditor in the same office. He further stated that his statement u/s 164 Cr.P.C. was recorded in the Court of Sh. Gaurav Rao, the then MM (West), Tis Hazari Courts, Delhi Ex. PW-23/1. He further stated that he was in tremendous stress at that time and he could not understand what he had deposed. He stated to Ld. MM in Hindi that he introduced Mukul CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 78 of 147 79 Gambhir to Vinod while he was working as PA during the year 2007.
79. The prosecution sought permission to declare PW-23 hostile and Ld. Senior PP carried out his cross- examination. During cross-examination PW-23 admitted that when he entered into the chamber of Ld.MM, inspector of CBI was sent out of the Chamber. He further stated he also conveyed to the Ld.MM that he was terrified. He denied that he had not conveyed to the Magistrate that he was terrified. He admitted that the Ld.MM had explained him that if his statement disclosed offence then same can be used against him as well. He admitted that he gave his statement after understanding the above warning given by the Ld. MM. He admitted that he stated that he introduced accused Mukul Gambhir with Vinod. He admitted that he was made to understand the content of his statement. He also admitted that he was also asked by the Ld. MM to go through the said CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 79 of 147 80 statement and sign the same. He read over the said statement but he could not understand as his mind was not working. He had not given in writing to any of the official or filed any complaint regarding the fact that he was under tremendous pressure while giving his statement u/s. 164 Cr.P.C. till date. He stated that when C.K. Sharma went to meet Ld. MM, he had handed over him a statement and directed that read over that statement and he has to depose the same before the Ld.MM. He read over the said statement which was totally against him and therefore he was terrified . Inspector C.K. Sharma had taken back the said statement from him when he came back from the chamber of Ld. MM. He did not inform Ld. MM that Inspector C.K. Sharma had handed over him a statement with the directions to depose the facts mentioned in the said statement. He denied that he gave his statement u/s 164 Cr.P.C. freely without any pressure. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 80 of 147 81
80. During cross-examination conducted by Ld defence counsel PW-23 stated that he had not arranged any meeting between Vinod and accused Mukul Gambhir.
81. Prosecution has also examined PW-24 Vinod Kumar who deposed in his examination in chief that his statement u/s 164 Cr.P.C. was recorded in the Court but he do not remember as to who recorded that statement. He further stated that he could read Hindi language and the statement Ex. PW-24/1 is in Hindi. After hearing the entire statement the witness states that he made the said statement to the Ld.MM. He volunteered that Inspector C.K. Sharma had kept him in the CBI office for 3-4 days and beaten him mercilessly. He brought him to Tis Hazari Courts and gave him a handwritten statement and directed him to make the same statement before the Ld. MM otherwise he would be sent to jail. PW-24 Vinod Kumar has been declared hostile and Ld. Senior PP carried out his cross-examination and during cross- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 81 of 147 82 examination, he also deposed in the line of PW-23.
82. During cross-examination conducted by Ld. Defence counsel, PW-24 admitted that he know accused Pukar Mahto as he was working in the CAG office with him. He admitted that he had no other discussion with accused Pukar Mahto except 'Hi' 'Hello'. He knew accused Pukar Mahto since his posting in Examination Section. He admitted that he made statement before the Ld. MM under the pressure of CBI. He admitted that he had no discussion with accused Pukar Mahto regarding replacement of answer sheet and exchange of money. He had made a correct statement before the Court today.
83. Prosecution has also examined PW-30 Vinod Kumar Dhasmana who briefly deposed in his examination in chief that he is working as Senior Auditor in the office of Director General of Audit, Central Expenditure, I.P. Estate, New Delhi. He further stated that he know accused Bhagwan Singh Azad because he is working in CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 82 of 147 83 the same office as Stenographer. There was no discussion between him and accused Bhagwan Singh Azad regarding any Departmental Examination.
84. Prosecution sought permission to declare PW-30 hostile and Ld. Senior PP conducted his cross- examination and during cross-examination PW-30 has also deposed in the line of PW-23 & 24. He denied that he also stated to CBI that Vinod provided one blank answer sheet which he handed over to accused Bhagwan Singh who returned the same after writing the answer sheet afresh to him and he handed over the said written copy to Vinod outside the gate of CAG office.
85. An examination of the material placed on record by the prosecution shows that Section Officers Grade Examination, 2007 was conducted in 47 centres in all over India. The answer scripts from all the centres in India were received in Delhi office which were compared by the officials of CAG upto 20.12.2007 with Form A CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 83 of 147 84 received alongwith bundle of answer sheets from each centre. During verification of answer sheets received from various centres across India, all the answer sheets were found in order.
86. Officials of CAG started sorting out of answer sheets w.e.f. 26.12.2007 and when the answer sheets pertaining to Delhi Centre were sorted out under the supervision of PW-4 Rajender Prasad by other officials of CAG including PW-6 Ms. Sandhya R. Nair, answer sheets of accused Rajesh Kumar Bhardwaj, Bhagwan Singh Azad and Mukul Gambhir were found in duplicate whereas six answer sheets of the candidates were found missing. On 28.12.2007, the answer sheet of Dehradun centre were sorted out by the officials of CAG including PW-9 Ms. D. Shanti Sree and one duplicate answer sheet pertaining to accused Dinkar Joshi was found and one answer sheet was found missing. Thereafter all the answer sheets received from Delhi and Dehradoon CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 84 of 147 85 centres were compared with Form A by PW-9 Ms. D. Shanti Sree and it was revealed that all the answer sheets were in order when same were received in CAG office, which means that duplicate answer sheet pertaining to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir were inserted subsequently in the almirah, where answer sheets of other centres across India were kept.
87. The prosecution has furnished evidence on record to show that the specimen hand writing of accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir were taken in the presence of witnesses who categorically deposed before the Court in that regard.
88. Prosecution has also examined handwriting expert PW-32 Dr. S. Ahmed, AGEQD who examined the specimen handwriting / signature of accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 85 of 147 86 Mukul Gambhir with the handwriting of duplicate answer sheets detected in CAG office and opined that the double answer sheets pertaining to Index no. 13421065 of accused Rajesh Kumar Bhardwaj Ex. PW-3/8 and Ex. PW-3/9 were written by the same person. He also opined that duplicate answer sheet pertaining to Index no. 20720079 of accused Dinkar Joshi Ex. Pw-3/12 and Ex. PW-3/13 were also written by the same person.
89. The handwriting expert, however has not expressed any opinion regarding duplicate answer sheet Ex. PW-3/10 and Ex. PW-3/11 of accused Bhagwan Singh Azad and answer sheet Ex. PW-3/14 of accused Mukul Gambhir.
90. Ld. Counsel for accused Rajesh Kumar Bhardwaj has contended that second answer sheet was got written from accused Rajesh Kumar Bhardwaj by the IO of CBI subsequently in connivance with the CAG officials during inquiry / investigation.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 86 of 147 87
91. The plea taken by Ld. Defence counsel shows that accused Rajesh Kumar Bhardwaj has not disputed that both the answer sheets Ex. PW-3/8 and Ex. PW-3/9 having index no. 13420165 are written by him. The plea of the accused is that one of the answer sheet was got written by the IO from him during inquiry or investigation in connivance with the officials of CAG. However, when officials of CAG appeared as witness, more particularly, PW-3 D.K. Gupta who handed over the duplicate answer sheets pertaining to all accused persons to the IO vide Seizure Memo Ex. PW-3/2 , Ld. Counsel had not given any such suggestion to him that one of the answer sheet between Ex. PW-3/8 and Ex. PW-3/9 were got written by the IO from accused Rajesh Kumar Bhardwaj during inquiry or investigation and subsequently handed over to the officials of CAG which was handed over by PW-3 to the IO vide Seizure Memo Ex. PW-3/2.
92. The said fact clearly shows that defence taken by CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 87 of 147 88 the accused appears to be an after thought. Even otherwise, prosecution has proved on record that duplicate answer sheet having index no. 13420165 of accused Rajesh Kumar Bhardwaj Ex. Pw-3/8 and Ex. PW-3/9 were recovered when the answer sheet of Delhi Centre were sorted out on 26.12.2007 under the supervision of PW-4 Sh. Rajender Prasad by the officials of CAG including PW-6 Ms Sandhya R.Nair.
93. The prosecution has also proved on record that both the answer sheets were written in the handwriting of accused Rajesh Kumar Bhardwaj. The prosecution has also got evaluated both the answer sheets from PW-26 Ms. Atoorva Sinha who clearly deposed in her examination that both the answer sheets Ex. PW-26/1 and Ex. PW-26/2 pertains to same index number that is the same candidate. Ex. PW-26/2 shows that the candidate had attempted the question in a very intelligent manner and has given each and minute details which is CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 88 of 147 89 not normally given by a candidate who appear in such an exam. Thus as per PW-26 answer sheet of Ex. Pw-26/2 appears to be not written in the examination centre.
94. Accused Rajesh Kumar Bhardwaj has not disputed that both the answer sheets Ex. PW-3/8 and Ex. PW-3/9 have been written by him. He has taken a plea that one of the answer sheet was got written from him by the IO during inquiry and investigation and same was got inserted subsequently with the connivance of officials of CAG.
95. The onus to prove the said defence is upon the accused. However, accused Rajesh Kumar Bhardwaj has not led any evidence whatsoever to prove the said defence taken by him. Accused Rajesh Kumar Bhardwaj has not furnished any detail as to when the duplicate answer sheet was got written from him by the IO. He has also not mentioned as to what steps he had taken when IO got written duplicate answer sheet from him. Accused CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 89 of 147 90 Rajesh Kumar Bhardwaj has not led any evidence whatsoever to prove the plea that one of the answer sheet was got written from him subsequently by the IO during inquiry / investigation.
96. The prosecution on the other hand has led sufficient material on record to prove that duplicate answer sheets Ex. PW-3/8 and Ex. PW-3/9 pertaining to accused Rajesh Kumar Bhardwaj were recovered on 26.12.07 when answer sheets pertaining to Delhi Centre were sorted out. The prosecution has also placed sufficient material on record to show that the duplicate answer sheet were not there when answer sheet of Delhi centre were received and compared by PW-13 Ms. D. Shanti Sree from Form A. Meaning thereby that the duplicate answer sheet was inserted subsequently in the almirah where the answer sheet of various other centres across India were lying.
97. The material placed on record by the prosecution CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 90 of 147 91 further shows that duplicate answer sheet pertaining to Index no. 20720079 of accused Dinkar Joshi Ex. PW- 3/12 and Ex. PW-3/13 were also got recovered during sorting out of answer sheets pertaining to Dehradun Centre which was being done under the supervision of PW-4 Sh. Rajender Prasad by the officials of CAG including PW-9 Ms. Sutapa Sarkar which were found in order as per form A. The answer sheets so received from various centres across India were sorted out under the supervision of PW-4 Sh. Rajender Prasad by the official including PW!13 Ms D.Shanti.Sree. The answer sheet pertaining to Dehradun centre were checked on 28.12.2007 and during sorting out of answer sheets, duplicate answer sheet pertaining to Index no. 20720079 pertaining to accused Dinkar Joshi was found. Thereafter, answer sheets were got checked from Form A and it was revealed that answer sheets were in order when same were received from Dehradun Centre as per Form A, CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 91 of 147 92 which means that one of the duplicate answer sheet pertaining to accused Dinkar Joshi was inserted subsequently in the almirah where answer sheets of other centres were lying by the accused or any official of CAG in furtherance of their criminal conspiracy.
98. Ld. Counsel for accused Dinkar Joshi has contended that during investigation, IO of CBI had got written duplicate answer sheet from accused Dinkar Joshi and subsequently seized the same vide ante dated Seizure Memo Ex. PW-3/2.
99. The ramification of the plea taken by Ld. Counsel for accused Dinkar Joshi is that accused has not disputed his own handwriting in duplicate answer sheets Ex.PW3/12 and Pw3/13 rather admitted that duplicate answer sheets Ex. Pw-3/12 and Ex. Pw-3/13 are written in his own handwriting.
100. The duplicate answer sheets were handed over to the CBI by PW-3 D.K. Gupta vide seizure memo Ex. Pw- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 92 of 147 93 3/2 dated 07.03.2008. Accused Dinkar Joshi sought to take a plea that seizure memo Ex. PW-3/2 is ante dated and duplicate answer sheet pertaining to accused Dinkar Joshi was got written by the IO of CBI from him during investigation and subsequently seized the same vide seizure memo Ex. PW-3/2 which is ante dated. However, Ld. Counsel for accused Dinkar Joshi has not carried out any cross-examination of PW-3 D.K. Gupta on this aspect, who handed over the answer script to the IO of CBI vide Seizure Memo Ex. Pw-3/2.
101. The specimen handwriting of accused Dinkar Joshi was taken in the presence of PW-31 K.L. Tuteja and PW-39 Sh. Virender Singh Sonekar who also signed as a witness in the specimen handwriting. However, Ld. Counsel for accused Dinkar Joshi has also not carried out any cross-examination of PW-31 and PW-39 on these aspects.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 93 of 147 94 EXTRA JUDICIAL CONFESSION OF ACCUSED DINKAR JOSHI.
102. The prosecution has also relied upon Extra Judicial confessionof accused Dinkar Joshi Ex. PW-3/1R wherein accused Dinkar Joshi has admitted his guilt in his own handwriting.
103. Ld. counsel for the accused contended that alleged Extra Judicial Confession made by the accused is not admissible. He further contended that Extra Judicial Confession is a weak type of evidence and require independent corroboration and without independent corroboration, no reliance can be placed on Extra Judicial Confession made by accused Dinkar Joshi.
104. Per contra Ld. Senior PP for CBI contended that accused Dinkar Joshi had made admission of his guilt voluntarily before responsible persons of the CAG. He further contended that accused Dinkar Joshi made confession of his guilt when even no case was registered CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 94 of 147 95 against him in any police station. He further contended that accused Dinkar Joshi had voluntarily admitted his guilt therefore confession so made by accused Dinkar Joshi is the best evidence against him besides other evidence led by the prosecution.
105. Admission has been defined in section 17 of the Indian Evidence Ac, 1872 which reads as under:-
Section 17. Admission defined.- "An admission is a statement, [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
106. Section 24 of the Indian Evidence Act talks about the confession which is caused by inducement, threat and promise. Section 24 reads as under:-
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 95 of 147 96 Section 24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
107. A perusal of section 17 and 24 of Indian Evidence CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 96 of 147 97 Act shows that the admission of the guilt is the best evidence against an accused if same is made voluntarily. However, if confession is caused due to inducement, threat or promise having reference of the charge against the accused person then such confession of the accused is required to be ignored.
108. A constitutional bench of Hon'ble Supreme Court of India in "Thimma @ Thimma Raju Vs. State of Mysore" reported as 1971 SC 1871 has held that:-
"An unambiguous confession, if
admissible in evidence, and free
from suspicion suggesting its
falsity, is a valuable piece of
evidence which possesses a high
probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the Court has to be satisfied that, it is voluntary, it does not appear to be CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 97 of 147 98 the result of inducement, threat or promise as contemplated by section 24 of the Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improperly or collateral consideration suggesting that it may not be true. For this purpose, the Court must scrutinize all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words in the case in hand."
109. The above legal propositions makes it absolutely clear that if an Extra Judicial Confession is made by the accused without any inducement, threat or promise to a responsible person then same can be the basis of conviction. However, before acting upon such confession, the Court has to be sure that confession is made voluntarily without any inducement, threat or promise. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 98 of 147 99
110. Accused Dinkar Joshi has made extra judicial confession before PW-3 D.K. Gupta who deposed in his examination in chief that inquiry was conducted by him and for the said purpose he visited Dehradun. During his inquiry, the statement of accused Dinkar Joshi was recorded on 13.02.2008 which was handed over to the IO of the case alongwith other documents vide production cum Seizure Memo dated 07.03.2008 Ex. PW-3/2. He further deposed that he has seen the written statement of accused Dinkar Joshi which was written by him in his presence Ex. PW-3/1R which bears his signature at point A and signature of accused Dinkar Joshi at point B which he has made in his presence.
111. During cross-examination PW-3 admitted that accused Dinkar Joshi had not worked under him. He had not asked the Accountant General of Dehradun or any other official to put his signature as a witness over document Ex. Pw-3/1R. He denied that the letter Ex. Pw- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 99 of 147 100 3/1R was not written by accused Dinkar Joshi nor it bears his signature nor it was written in his presence.
112. An examination of the testimony of PW-3 D.K. Gupta qua Extra Judicial Confession made by accused Dinkar Joshi shows that there is no material inconsistency in his testimony qua extra judicial confession of accused Dinkar Joshi Ex. PW-3/1R. It is pertinent to mention that the statement Ex. PW-3/1R was written by accused Dinkar Joshi in his own handwriting when no case was pending or listed against him. Said confession was made by him on 13.02.2008 whereas complaint Ex. PW-1/A was made by PW-1 R.Naresh on 29.02.2008 pursuant to which regular case was registered by the CBI. The accused was thus not in the custody of the police or CBI at the relevant time when he confessed his guilt by writing letter Ex. PW-3/1R. The extra judicial confession made by the accused is relevant and appears to be an outcome of his own volition and CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 100 of 147 101 without any threat or intimidation.
113. A perusal of statement of accused Dinkar Joshi Ex. PW-3/1R shows that he himself has mentioned as to how he came to know that SOG Examination can be passed with the help of CAG officials. He has also mentioned about his meeting with accused Pukar Mahto in a Hotel in Delhi on 30.12.2007 who handed him over blank answer sheet and taken Rs.10,000/- from him. The said statement also mention how accused Dinkar Joshi wrote the answer sheet and given the same to accused Pukar Mahto.
114. The prosecution has examined PW-25 Hemant Arora, owner of Hotel Diwan Palace, Paharganj who brought the Hotel Entry Register commencing from 25.09.2007 ending on 23.03.2008. He stated that he had seen the entries regarding the persons coming and staying in his hotel between dates 30.11.2007 to 02.12.2007. The entries relates to two pages i.e. page no. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 101 of 147 102 69 and 70 Ex. PW-25/1 (D-8). The relevant entry is entry at point 2009 which is at point X which has been made by his brother namely Himanshu Arora whose handwriting he identify.
115. During cross-examination PW-25 admitted that in either of the entry in the register name and license no. of the hotel is not there. He volunteered that each page of the register bears the stamp. He further stated that they collect identification proof from the customer who resides in their hotel. They also taken such proof from persons who stayed against entry no. 2009 in their hotel. He had not given the said proof to the CBI as same was not demanded. He denied that entry no. 2009 is a fictitious entry. He denied that accused Dinkar Joshi had not signed in the said register at any point of time. He also denied that accused Dinkar Joshi had not stayed in his hotel. He also denied that entry no. 2009 is ante dated.
116. The testimony of PW-25 Hemant Arora who CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 102 of 147 103 proved the entry of his Hotel dated 02.12.2007 Ex. PW- 25/1 shows that accused Dinkar Joshi had visited his Hotel on 02.12.2015. The said fact is also corroborated from the fact of Leave Record of accused Dinkar Joshi Ex. PW-21/1 which shows that accused Dinkar Joshi was on leave on 03.12.2007.
117. The entry Ex. PW-25/1 in the Hotel register has been made in daily discharge of Hotel business. The accused beside a bald suggestion, could not bring any material to show that the said entry is incorrect or that the register has not been maintained in daily discharge of hotel business.
118. Accused Dinkar Joshi in his Extra Judicial Confession Ex. PW-3/1R himself has written that he stayed in a Hotel at Paharganj in Delhi where he met accused Pukar Mahto. No doubt that in Ex. PW-3/1R he wrote that he stayed in Hotel on 30.12.2007 whereas in Hotel Entry Ex. PW-25/1 shows that he came in Delhi on CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 103 of 147 104 02.12.2007. However the date in his statement Ex.PW- 3/1Rappears to have been given wrongly by the accused deliberately so that same may not be get confirmed. But the factum of his visit in Delhi is duly corroborated by Hotel Entry Ex. PW-25/1.
119. Beside Extra Judicial Confession of accused Dinkar Joshi, the prosecution has led sufficient material on record to prove that duplicate answer sheet Ex. PW- 3/12 and Ex. PW-3/13 were written by accused Dinkar Joshi in his own handwriting.
120. The prosecution has examined PW-32 Dr. S. Ahmed handwriting expert, who examined specimen handwriting of accused Dinkar Joshi with the questioned handwriting appearing in duplicate answer sheet Ex. PW- 3/12 and Ex. PW-3/13 and opined that handwriting appearing in answer sheet pertaining to Index no. 20720079 of accused Dinkar Joshi Ex. PW-3/12 and Ex. PW-3/13 have been written by the same person. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 104 of 147 105
121. The Prosecution has also examined PW-22 Sh. Shiv Singh Palyal who was working as Account Officer at Dehradun, Uttarakhand, and was acquainted with the handwriting of accused Dinkar Joshi. PW-22 being acquainted with the hand writing of accused Dinkar Joshi has stated that handwriting appearing in answer sheet Ex. PW-3/12 & Ex. PW-3/13 is of accused Dinkar Joshi.
122. The accused has also not disputed his handwriting in duplicate answer sheet Ex. PW3/12 and PW3/13, but he claimed that one of the answer sheet was got written by the IO from him during investigation. The onus to prove the said plea is upon accused Dinkar Joshi. However, besides taking a bald plea, no material has been placed by accused Dinkar Joshi on record to substantiate his plea that one of the answer sheet was got written from him by the IO during investigation.
123. The Prosecution has placed sufficient material on record to show that answer sheet of Dehradun centre CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 105 of 147 106 were received after examination in Delhi which were compared with Form A by PW-9 Ms. Sutapa Sarkar and same were found in order. The prosecution also placed sufficient material on record that for the second round, answer sheets pertaining to Dehradun Centre were sorted out and one duplicate answer sheet of accused Dinkar Joshi having Index no. 23721008 was recovered. The sorting out was done by the official including PW13 Ms D Shanti Sree under the supervision of PW-4 Rajender Prasad. PW-13 Ms. D. Shanti Sree alongwith other officials compared all the answer sheets with Form A and it was revealed that all the answer sheets of Dehradoon centre were in order when same were received in CAG office . Meaning thereby that duplicate answer sheets of accused Dinkar Joshi was got inserted subsequently.
124. The prosecution has also examined PW-22 Sh. Shiv Singh Palyal who was acquainted with the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 106 of 147 107 handwriting of accused Dinkar Joshi and proved that both answer sheets are in the handwriting of accused Dinkar Joshi. The prosecution also examined handwriting expert PW-32 Dr. S. Ahmed who examined specimen handwriting of accused Dinkar Joshi with the handwriting appearing in duplicate answer sheets Ex. Pw-3/12 and Ex. Pw-3/13 and opined that both the answer sheets have been written by same person. Even otherwise, accused himself has admitted that both the answer sheet are in his handwriting. Though accused Dinkar Joshi has claimed that one of the answer sheet was got written from him subsequently by the IO which fact he has failed to substantiate.
125. The prosecution has also claimed that duplicate answer sheet pertaining to Index no. 23221005 of accused Bhagwan Singh Azad Ex. Pw-3/10 and Ex. PW- 3/11 and answer sheet pertaining to Index no. 23221008 of accused Mukul Gambhir Ex. PW-3/14 and Ex. PW-3/15 CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 107 of 147 108 were also recovered from Delhi centre which was sorted out by PW-6 Ms. Sandhya R. Nair under the supervision of PW-4 Rajender Prasad. As per the prosecution these answer sheets are in the handwriting of accused Bhagwan Singh Azad and Mukul Gambhir.
126. To establish the handwriting of accused Bhagwan Singh Azad and Mukul Gambhi in answer sheet Ex. PW- 3/10 and Ex. PW-3/11 pertaining to index number of accused Bhagwan Singh Azad and Ex. PW-3/14 and Ex. PW-3/15 pertaining to index number of accused Mukul Gambhir, the prosecution has relied upon hand writing report Ex. PW-32/1 submitted by the Handwriting expert. A perusal of the report Ex. PW-32/1 shows that the expert has not expresses any opinion qua the handwriting appearing in one of the answer sheet pertaining to Index number 23221008 of accused Mukul Gambhir Ex. PW- 3/14 as well as qua both the answer sheets pertaining to index number 23221005 of accused Bhagwan Singh CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 108 of 147 109 Azad Ex. PW-3/10 and Ex. PW-3/11.
127. The onus to prove the fact that duplicate answer sheet are written in the hand writing of accused Bhagwan Singh Azad and Mukul Gambhir , is upon the prosecution. However, prosecution has failed to lead any evidence to discharge the said onus. The prosecution has heavily relied upon the opinion expressed by the handwriting expert but the expert has not expressed any opinion regarding the handwriting of duplicate answer sheets pertaining to accused Bhagwan Singh Azad and Mukul Gambhir.
128. The prosecution could have examined any person who is acquainted with the handwriting of accused Bhagwan Singh Azad and Mukul Gambhir to prove the handwriting of duplicate answer sheets. But same has not been done. Prosecution has not led any other evidence to prove that the handwriting appearing in the duplicate answer sheet Ex, PW-3/10 and Ex. Pw-3/11 and Ex. PW- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 109 of 147 110 3/14 are of accused Bhagwan Singh Azad and Mukul Gambhir.
129. The prosecution has not claimed that accused Bhagwan Singh Azad and Mukul Gambhir got written the duplicate answer sheet from some other person . Nor any such evidence has been placed on record. The plea of the prosecution is that the duplicate answer sheet were written by accused Bhagwan Singh Azad and Mukul Gambhir themselves. The Prosecution, however failed to substantiate their plea that accused Bhagwan Singh Azad and Mukul Gambhir were part of the conspiracy and had written duplicate answer sheets Ex. PW-3/10 and Ex. PW-3/11 and Ex. Pw-3/14 .
130. The prosecution has pleaded that accused Pukar Mahto and Umed Singh had removed the blank answer sheets from the office almirah for onward supply to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir for re-writing their CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 110 of 147 111 answer sheets on the assurance of replacing them subsequently with the original answer sheets and for which accused Pukar Mahto and Umed Singh received illegal gratification.
131. The prosecution has thus claimed that accused Umed Singh and Pukar Mahto made arrangements of blank answer sheets for accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Umed Singh for re-writing the answer sheets. They also assured these persons that they would replace the answer sheets from the almirah of CAG and for which purpose accused Umed Singh and Pukar Mahto had received illegal gratification.
132. The prosecution has examined 41 prosecution witnesses to prove the guilt of the accused persons. However, none of the prosecution witnesses has deposed that accused Umed Singh had removed the blank answer sheets from the store room or that he handed over the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 111 of 147 112 same to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir.
133. Accused Umed Singh has been arrayed as an accused in this case only on the ground that he was incharge of blank answer sheets. However, prosecution witnesses have deposed in their testimony that Incharge of blank answer sheets was D.S. Chadha and not accused Umed Singh. Keys of the store room where blank answer sheets were lying used to remain in day time with D.S. Chadha and in night time with Rajender Prasad. Accused Umed Singh was thus not the custodian of the Store Room where blank answer sheet were lying.
134. Accused Umed Singh has been charged for the offence of committing theft as well as for criminal misconduct. Theft, that he dishonestly removed blank answer sheets from the store room and handed over to accused Pukar Mahto.
135. The prosecution however has not led any CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 112 of 147 113 evidence to show that accused Umed Singh had removed any blank answer sheets from the record room. The prosecution has not examined any witness who had seen accused Umed Singh taking any blank answer sheet or giving any blank answer sheet to accused Pukar Mahto or any other person.
136. The prosecution has placed on record verification report of store room Ex. PW-4/3 and Ex. PW-4/5, as per which their was shortage of blank answer sheets in the store room whereas others are in excess. It is mentioned in the verification report that as per available record, the official verification has not been carried out hence reason for excess and shortage could not be explained.
137. The deficiency of answer sheets found in verification conducted in the Store Room cannot be attributed to accused Umed Singh because prior to that no such verification was ever conducted. No material has been placed to show that when accused Umed Singh CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 113 of 147 114 was given charge of store room what were the number of blank answer sheets, even no material has been placed to show that accused Umed Singh was ever given charge of Store Room. Moreover, accused Umed Singh was not joined in the verification conducted by PW-4 Rajender Prasad with the help of other officials of CAG.
138. To bring home the guilt of accused Umed Singh, the prosecution was required to prove that accused Umed Singh had removed the blank answer sheets from the store room dishonestly and gave the same to his co- accused persons. However, prosecution has not led any evidence whatsoever to prove on record that accused Umed Singh had removed any blank answer sheet from the record, therefore, it can not be concluded that prosecution has proved the act attributed against accused Umed Singh for committing theft in the Store Room of CAG.
139. The prosecution has further taken a plea against CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 114 of 147 115 accused Umed Singh that he assured the accused persons to remove answer sheets after getting illegal gratification. However, prosecution has not placed any material to prove that accused Umed Singh provided blank answer sheet to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir with the assurance to replace the same. Prosecution has also not placed any material on record to prove that accused Umed Singh had received any illegal gratification either form accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir or from any other person on their behalf. The prosecution has thus not substantiated the act attributed against accused Umed Singh.
140. The plea against accused Pukar Mahto is that he had committed theft of blank answer sheets and had received illegal gratification for replacing the answers sheets.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 115 of 147 116
141. To prove the said plea, the prosecution has relied upon two sets of evidence. First set of evidence is statement of PW-23 Brij Lal, PW-24 Vinod Kumar and PW-30 Vinod Kumar Dhasmana whose statement u/s. 164 Cr.P.C were recorded by the Ld. MM, in which they stated that accused Pukar Mahto handed over blank answer sheets and taken the answer sheets after writing. The other piece of evidence is the extra judicial confession made by accused Dinkar Joshi qua accused Pukar Mahto.
142. As regard statement u/s 164 Cr.P.C. of PW-23 Brij Lal, PW-24 Vinod Kumar and PW-30 Vinod Kumar Dhasmana are concerned, they themselves appeared as a witness before the Court and have stated that they were compelled to make statement by the IO of CBI before the Ld. MM and because of the fear they deposed before Ld. MM.
143. No doubt that these witnesses have not brought CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 116 of 147 117 the said fact before the Ld. MM, However, fact remained that these witnesses have disputed their statement recorded by the Ld. MM u/s 164 Cr.P.C. and have stated categorically before the Court that they were compelled to make such statement before the Ld. MM. Once the witnesses have not supported their previous statement recorded u/s 164 Cr.P.C. before the Ld. MM and rather resiled from the same, no reliance can be placed on those statements because statement u/s 164 Cr.P.C. is not a substantive piece of evidence and it can only be used for the purpose of corroboration and contradiction.
144. Hon'ble Karnataka High Court in "T. Divakaran Vs. State of Karnataka" reported as 2006 Criminal Law Journal 4830 has held that :-
" Statement of witness recorded u/s 164 Cr.P.C. could not be treated as substantive evidence. On the strength of such statement no CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 117 of 147 118 conviction can be passed, on the most the deponent whose statement is recorded u/s 164 Cr.P.C. turns hostile he / she could be prosecuted for purgery."
145. The Hon'ble Allahabad High Court in "Phool Chand and Etc. Vs. State of U.P." reported as 2004 Crl.J 1904, has held that:-
"The statement of a witness u/s 164 Cr.P.C. is one where the accused have hardly any occasion to cross-examine him and if it is to be treated as a substantive piece of evidence, it should be duly tendered before trial Court and then a witness should be produced by the prosecution for his cross-
examination. In this context the Ld. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 118 of 147 119 Senior Advocate appearing for the appellants has cited the case law of "Brij Bhushan Singh Vs. Emperor", AIR 1946 OC38 (1946 (47) Cri LJ
336) and "Ram Kishan Singh Vs. Harmit Kaur", 1972 Cri LJ 267: (AIR 1972 SC 468). In these cases the Privy Counsel and the Hon'ble Supreme Court have categorically held that the statements recorded under section 164 Cr.P.C. are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the witnesses (PW-1 and PW-2) have themselves did not support their version, their statements earlier recorded under section 164 Cr.P.C. could not be available for the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 119 of 147 120 but that too has not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis."
146. The above legal proposition makes it clear that , statement recorded u/s 164 Cr.P.C. can not be treated as substantive evidence. It can only be used for the purpose of corroboration and contradiction. However, in the instant case, PWs whose statement u/s 164 Cr.P.C. had been recorded by the Ld. MM have stated before the Court that they made the statement at the behest of the CBI as they were intimidated by the IO of the CBI. These witnesses have thus turned hostile and not supported their statement. Therefore their statement so recorded u/s 164 Cr.P.C. can be of no help.
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 120 of 147 121
147. The second set of evidence against accused Pukar Mahto is that accused Dinkar Joshi had made an extra judicial confession before PW-3 D.K. Gupta Ex. PW-3/1R in which accused Dinkar Joshi had stated that he paid Rs.10,000/- to accused Pukar Mahto who brought blank answer sheet for writing and taken the said answer sheet back for replacing the same with the original answer sheet lying in the office almirah of CAG and Rs.20,000/- had to be paid after declaration of result. Accused Dinkar Joshi has also identified a person of CAG from the photograph which is of accused Pukar Mahto.
148. Now the question is whether accused Pukar Mahto can be convicted on the basis of extra judicial confession made by accused Dinkar Joshi?
149. The Hon'ble Supreme Court of India in "Hari Charan Kurmi Vs. State of Bihar", reported as AIR 1964 SC 1184 has held that:-
CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 121 of 147 122 "The question about the part which a confession made by a co-accused person can play in a criminal trial has to be determined in the light of the provision of Section 30 of the Act. Section 30 provides that when more persons are than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such person is proved the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is founded is that if a person makes confession implicating himself that any suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 122 of 147 123 accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made made voluntarily by an accused person can be used against the maker of confession, though as a matter of prudence criminal Courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals.
When section 30 provides that the confession of a co-accused may be taken into consideration, what CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 123 of 147 124 exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in Section 30 is not evidence under section 3 of the Act. Section 3 defines "evidence" as meaning and including.
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) All documents produced for the inspection of the Court;
Such documents are called documentary evidence. Technically construed, this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the Court permits or requires to be made before it and clearly a confession made by an accused CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 124 of 147 125 person is not such a statement; it is not made or permitted to be made before the Court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the Court and a confession cannot be said to fall even under this part.
Even so section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-
accused person, that is to say, though such a confession may not be evidence as strictly defined by section 3 of the Act, it is an element which may be taken into consideration by the criminal Court and in that sense, it may be described as evidence in a non-
technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the Court to take the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 125 of 147 126 confession into account. When evidence as defined by the Act is produced before the Court it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not taken that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because section 30 merely enables the Court to take the confession into account.
As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 126 of 147 127 the prosecution relies upon the confession of one accused person against other accused person, the proper approach to adopt is to consider the other evidence against such an accused person , and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor Vs. Lalit Mohan Chockerburty, ILR 38 Calcutta 559 at P.588 a confession can only be used to "lend assurance to other evidence against a co-accused". In Periyaswami Moopan Vs. Emperor.
ILR 54 Madras 75 at p.77 Reilly, J.,
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Pg 127 of 147
128
observed that the provision of
section 30 goes not further than
this, "where there is evidence
against the co-accused sufficient", "if believed , to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence. "In Bhuboni Sahu Vs. The King, 76 Ind App. 147 at p. 155 the privy counsel has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence"
contained in section 3 of the Evidence Act. It is not required to be give on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 128 of 147 129 the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence."
It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way.
Because whatever is considered by the Court is evidence, circumstances which are consider by the Court as well as probabilities CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 129 of 147 130 do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provision of section 30, the fact remains that is not evidence as defined by section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co-
accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
That, briefly stated, is the effect of the provision contained in section
30. The same view has been CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 130 of 147 131 expressed by this Court in Kashmira Singh Vs. State of Madhya Pradesh, 1952 SCR526 where the decision of the privy counsel in Bhuboni Sahu's case, has been cited with approval."
150. The above legal proposition laid down by the Hon'ble Apex Court of India makes it absolutely clear that confession made by co-accused is not a substantive piece of evidence and no conviction should be based solely on the confession made by the co-accused . Prosecution has to prove the guilt of the accused by placing sufficient material on record and once Court is satisfied on the basis of the evidence as defined u/s 3 of the evidence act qua the guilt of the accused. Then confession made by co-accused can be used for the purpose of re-assuring itself qua the conclusion arrived at by the Court. However, guilt of the accused can not solely be decided on the basis of confession made by the co- CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 131 of 147 132 accused.
151. In the present case, the prosecution has not produced any other evidence to prove the guilt of accused Pukar Mahto except extra judicial confession made by accused Dinkar Joshi as well as statement u/s 164 Cr.P.C. of PW-23 Brij Lal, PW-24 Vinod Kumar and PW-30 Vinod Kumar Dhasmana. Both these piece of evidence are not substantive piece of evidence.
152. The prosecution is required to prove the charge attributed against accused Pukar Mahto by leading cogent evidence as defined u/s 3 of the evidence act. The prosecution however, has not placed any cogent material on record on the basis of which it can be concluded that accused Pukar Mahto had stolen answer sheets from the store room and handed over same to accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir or any other person or received any illegal gratification for doing the said work. Except the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 132 of 147 133 Extra Judicial Confession of accused Dinkar Joshi and retracted statement under section 164 of Cr.P.C. of PW- 28 Brij Lal, PW-24 Vinod Kumar and PW-30 Vinod Kumar Dhasmana. None of the material relied by the prosecution can be treated as substantive piece of evidence to prove the guilt of accused Pukar Mahto.
153. The prosecution has placed material on record which raises grave suspicion against accused Pukar Mahto qua his involvement in commission of the offence, but has not placed any substantive evidence which is sufficient to hold the accused guilty for the offence charged against him. It is a well settled law that the suspicion how so ever grave it may be cannot take place of proof. The guilt of the accused is require to prove by prosecution by leading cogent evidence on record beyond any reasonable doubt. The prosecution however, has failed to do so.
154. Accused Rajesh Kumar Bhardwaj, Dinkar Joshi, CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 133 of 147 134 Bhagwan Singh Azad and Mukul Gambhir have also been charged for the offence of cheating punishable u/s 420 IPC. The term 'cheating' has been defied under section 415 IPC which read as under:-
415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, ad which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
155. A perusal of section 415 IPC shows that cheating CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 134 of 147 135 can be committed in one of the two ways. Deceiving a person is common in both the ways of cheating. A person deceived may be fraudulently or dishonestly induced to deliver any property or consent to the retention of property by any person. The person deceived may also be intentionally induced to do or to omit to do anything which he would not have done if not deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
156. In the instant case, the prosecution has placed sufficient material to show that accused Rajesh Kumar Bhardwaj and Dinkar Joshi fraudulently obtained the answer sheet and written the duplicate answer sheet in their own handwriting for securing promotion in Section Officers Grade Examination, 2007. The purpose of writing duplicate answer sheet was to replace the same with the original which was wrote in the examination hall. However, original answer sheet could not be taken CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 135 of 147 136 out from the record and before they could deceived the officials of CAG for securing promotion, the said cheating was detected when answer sheets were sorted out by the officials of CAG on 26.12.2007 and 28.12.2007. Thus, in this case no wrongful gain or wrongful loss has been caused either to the accused persons or to the Government. Thus offence of cheating as defined u/s 415 IPC is not completed.
157. However accused Rajesh Kumar Bhardwaj and Dinkar Joshi had done whatever they were required to do for commission of offence of cheating. The act done by accused Rajesh Kumar Bhardwaj and Dinkar Joshi tantamount an attempt to commit cheating , which has been defined under section 511 IPC which reads as under:-
511. Punishment For Attempting To Commit Offences Punishable With Imprisonment for Life Or Other Imprisonment.-Whoever attempts to CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 136 of 147 137 commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for the offence], or with such fine as is provided for the offence, or with both.
158. A person commits the offence of attempt to commit that particular offence when (I) he intends to commit that particular offence and (ii) he, having made CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 137 of 147 138 preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
159. The Hon'ble Supreme Court of India in "Abhyananda Mishra Vs. State of Bihar" reported as AIR 1961 SC 1698 has held that:-
"The question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 138 of 147 139 culprit first intends to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit an offence."
160. A similar proposition has been led down by the Hon'ble Supreme Court of India in "Sudhir Kumar Mukherjee Vs. State of West Bengal", reported as 1973 AIR 2655.
161. In the instant case accused Rajesh Kumar CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 139 of 147 140 Bhardwaj and Dinkar Joshi had dishonest intentions for securing promotion in the Departmental examination by replacing their answer sheets with the duplicate answer sheet in furtherance of their criminal conspiracy entered with some unknown persons. Pursuant to the said criminal conspiracy accused Rajesh Kumar Bhardwaj and Dinkar Joshi made preparations by arranging blank answer sheets and writing paper on the said answer sheet. The act of preparation was complete when they arranged the blank answer sheet and written the same. Both the accused persons went further from the stage of preparation and inserted or got inserted the duplicate answer sheet of the paper in the almirah of CAG office in which answer sheet from various centres of India were lying.
162. The act of getting inserted duplicate answer sheet by accused Rajesh Kumar Bhardwaj and Dinkar Joshi was the final act on their part towards the act of cheating. CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 140 of 147 141 However, before the said act could have been completed, the said cheating was detected when the officials of CAG sorted out the answer sheets received from various centres on 26.12.2007 and 28.12.2007. Therefore, accused Rajesh Kumar Bhardwaj and Dinkar Joshi can not be held liable for commission of offence of cheating as prescribed u/s 420 IPC as there is no wrongful gain or wrongful loss to the accused persons or to any other person but surely they have attempted to commit cheating and thus liable for the offence punishable u/s 420 / 511 IPC.
163. Accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir have also been charged for the offence of forgery u/s 468 IPC as well as for using a forged document as genuine punishable u/s 471 IPC. The prosecution has proved on record that accused Rajesh Kumar Bhardwaj and Dinkar Joshi have forged duplicate answer sheets and got them inserted in CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 141 of 147 142 the office of CAG. Thus used the said answer sheets as genuine . The prosecution has thus proved successfully that accused Rajesh Kumar Bhardwaj and Dinkar Joshi have committed the offence punishable u/s 468 and 471 IPC. However, prosecution has failed to prove the charge u/s 420/ 511, 468 and 471 IPC against accused Bhagwan Singh Azad and Mukul Gambhir as prosecution could not connect the duplicate answer sheets with accused Bhagwan Singh Azad and Mukul Gambhir.
164. Accused persons have also been charged for committing offence of criminal misconduct as defined in section 13 (1) (d) which is punishable u/s 13 (2 ) of Prevention of Corruption Act, 1988. Prosecution has proved that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul Gambhir were the public servants at the time of commission of offence. The prosecution has also proved that accused Rajesh Kumar Bhardwaj, Dinkar Joshi, Bhagwan Singh Azad and Mukul CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 142 of 147 143 Gambhir being public servant had taken a departmental examination of Section Officers Grade Examination, 2007 for securing promotion. The prosecution has further proved that accused Rajesh Kumar Bhardwaj and Dinkar Joshi had entered into a criminal conspiracy with unknown persons to do illegal act of cheating for securing promotion on the exclusion of other deserving candidates and for that purpose accused Rajesh Kumar Bhardwaj and Dinkar Joshi obtained blank answer sheets and written the same paper of the said answer sheet and inserted or got inserted the duplicate answer sheet in the record of CAG for deceiving CAG. However, said act of cheating was detected before the ultimate benefit would have been derived by accused Rajesh Kumar Bhardwaj and Dinkar Joshi. The act of accused Rajesh Kumar Bhardwaj and Dinkar Joshi thus tantamount to criminal misconduct by public servants as defined u/s 13 (1) (d) which is punishable u/s 13 (2) of the Prevention of CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 143 of 147 144 Corruption Act, 1988.
165. The prosecution however, could not substantiate the charges against accused Bhagwan Singh Azad and Mukul Gambhir as prosecution could not connect accused Bhagwan Singh Azad and Mukul Gambhir with the duplicate answer sheet beyond reasonable doubt. The prosecution also could not prove the charge against accused Umed Singh and Pukar Mahto beyond reasonable doubt.
166. The aforesaid fact thus clearly shows that prosecution has though proved on record that accused Rajesh Kumar Bhardwaj and Dinkar Joshi had entered into a criminal conspiracy with some unknown persons for securing promotion in Section Officers Grade Examination (SOGE) (Group-C) of the year 2007 and for that purpose they obtained blank answer sheets and in which accused Rajesh Kumar Bhardwaj had written answer sheet of the paper SOE-7 Public Works Accounts CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 144 of 147 145 (Theory) whereas accused Dinkar Joshi had written paper of subject SOE-31 Statistics and Statistical Sampling and got duplicate paper inserted in the Almirah in CAG office where answer scripts from various centres of India were lying which were recovered during the sorting out of answer sheet conducted by officials of CAG on 26.12.2008 and 28.12.2008. The Prosecution has also proved beyond reasonable doubt that duplicate answer sheets Ex. PW-3/8 and Ex. PW-3/9 and answer sheets Ex. PW-3/12 and Ex. PW-3/13 were written in the handwriting of accused Rajesh Kumar Bhardwaj and Dinkar Joshi who inserted or got inserted the duplicate answer sheet in the almirah of CAG which were recovered during sorting out of answer sheets on 26.12.2007 and 28.12.2007. The prosecution however, could not substantiate the charges of criminal conspiracy and substantive offences against accused Bhagwan Singh Azad, Mukul Gambhir, Pukar Mahto and Umed CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 145 of 147 146 Singh beyond reasonable doubt.
167. In view of my above discussion, I am of the considered view that prosecution has succeeded in proving its case beyond reasonable doubt against accused Rajesh Kumar Bhardwaj and accused Dinkar Joshi for the offences punishable u/s 120 B r/w section 420/511, 468, 471 IPC and under section 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988. Hence, they are held guilty and convicted for the same. The prosecution, however could not prove the charge u/s 120B r/w section 380 IPC against accused Rajesh Kumar Bhardwaj and Dinkar Joshi, hence, they are acquitted for the said charge.
168. The prosecution has also succeeded in proving its case beyond reasonable doubt against accused Rajesh Kumar Bhardwaj and Dinkar Joshi for the offences punishable under section 420/511, 468, 471 IPC and under section 13 (2) r/w section 13 (1) (d) of the CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 146 of 147 147 Prevention of Corruption Act, 1988. Hence, they are held guilty and convicted for the same.
169. The prosecution however, has failed to prove its case beyond reasonable doubt against accused Bhagwan Singh Azad, Mukul Gambhir, Pukar Mahto and Umeed Singh for the offences punishable under section 120B r/w section 380, 420, 468, 471 and section 13(2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988 as well as for the substantive offences punishable u/s 380, 468, 471 IPC and section 13 (2) r/w section 13 (1) (d) of the Prevention of Corruption Act, 1988. Hence, all the above named accused persons are acquitted for the said charges levelled against them. (ANNOUNCED IN THE OPEN COURT TODAY I.E ON 27.07.2016) (PITAMBER DUTT) SPECIAL JUDGE (PC ACT)(CBI):02 TIS HAZARI COURTS, DELHI CC No.532365/2016 CBI Vs RAJESH KUMAR BHARDWAJ & OTHERS Pg 147 of 147