Delhi District Court
Vide My Separate Judgment Dated ... vs . on 31 January, 2013
IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL
JUDGE, CBI05, PATIALA HOUSE COURTS, NEW DELHI.
CC No. : 10/12
FIR no. : RC22(A)/2009
Unique Case ID no. : 02403R0336692010
Title : State (CBI)
Vs.
1. R.K. Dass S/o. Late Sh. Sona Dass,
R/o A27, National Apartment,
Sector3, Plot no. 4, Dwarka,
New Delhi.
2. Shiv Lakhan Mahato, S/o. Sh. Bihari Mahato
R/o. C3/461, Nangli Vihar Extn.,
Najafgarh, New Delhi 43.
U/s : Section 120B IPC & 7, 13(2) r/w 13(1)(d) of P.C. Act 1988
Date of Institution : 30.7.2010
Date of reserving order : 31.01.2013
Date of pronouncement : 31.01.2013
(Appearances)
Sh. Akshay Gautam, Ld. Senior P.P. for CBI.
Sh. Umesh Sinha, Advocate, Ld. Counsel for accused no. 1 R.K.
Dass along with accused.
Sh. Dilip, Advocate, Ld. Counsel for accused no. 2 Shiv Lakhan
Mahato along with accused.
J U D G M E N T
1. Brief facts of the case are that complainant Vipin Kumar
Gupta wanted to get his daughter baby Khushi Gupta
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 1 / 91
admitted in Kendriya Vidyalaya, Sector5, Dwarka, New Delhi
and had filled up a form from the same. However, on
01.5.2009, he had received a call from accused R.K. Dass,
Principal of the school, on his mobile No. 9268789141 from
land line No. 28081328 to meet him if he wanted to get his
daughter admitted in the school. Sh. Vipin Kumar Gupta had
met accused R.K. Dass, who was the Principal of the School
who had demanded Rs. 50,000/ from him for admitting his
daughter in the school. This amount was reduced to Rs.
30,000/ on the request of the complainant.
However, complainant Sh. Vipin Kumar Gupta
did not want to pay the bribe and as such, he had lodged a
complaint with the CBI. On 02.5.2009, the accused had
agreed to accept Rs. 10,000/ as first installment and directed
the complainant to pay the same on 04.5.2009. on
04.5.2009 at about 4:30 PM in the school, accused Shiv
Lakhan Mahato had demanded and accepted the aforesaid
amount of Rs. 10,000/ on behalf of accused R.K. Dass and
was caught red handed. Thereafter, both accuseds were
arrested. Conversation, which took place between the
complainant and the accused persons, was recorded and the
transcription thereof was prepared.
2. Accused persons are public servants and as
such, sanction orders for their prosecution were obtained
from the competent authority. The reports of the CFSL were
collected and on completion of investigation, the Charge
Sheet was filed in the Court.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 2 / 91
3. Both the accuseds had appeared in the Court
and copies of documents, as required by the Section 207
Cr.P.C., were supplied to them, to their satisfaction.
4. The charge against accuseds R.K. Dass and Shiv
Lakhan Mahato under Section 120B IPC read with Section 7
and 13(2) read with 13(1)(d) of Prevention and Corruption
Act, 1988 was framed to which they pleaded not guilty and
claimed trial.
5. Now, the points for determination are :
(i) Whether the accused persons, being a public servant,
demanded and accepted bribe from the complainant in
the discharge of their official duties?
(ii) Whether the bribe amount was recovered from the
accused persons?
(iii) Whether the accused persons obtained the bribe
amount by corrupt or by illegal means or by otherwise
abusing their official position?
6. Section 7 of the P.C. Act provides as under:
"Whoever, being, or
expecting to be a public servant,
accepts or obtains or agrees to
accept or attempts to obtain from
any person, for himself or for any
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 3 / 91
other person, any gratification
whatever, other than legal
remuneration, as a motive or
reward for doing or forbearing to
do any official act or for showing
or forbearing to show, in the
exercise of his official functions,
favour or disfavour to any person
or for rendering or attempting to
render any service or disservice to
any person, with the Central
Government or any State
Government or Parliament or the
Legislature of any State or with
any local authority, corporation
or Government Company referred
in clause (c) of Section 2, or with
any public servant, whether
named or otherwise, shall be
punishable with imprisonment
which shall be not less than six
months but which may extend to
five years and shall also be liable
to fine.....".
7. Section 13 of the P.C. Act provided as under:
(1) A public
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 4 / 91
servant is said to commit the
offence of criminal
misconduct ................................
..................................................
........................................(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages;
or
(ii) by abusing his
position as a 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....."
(2) Any public
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 5 / 91
servant who commits criminal
misconduct shall be punishable
with imprisonment for a term
which shall be not less than one
year but which may extend to
seven years and shall also be
liable to fine."
8. Section 20 of the P.C. Act provides as under:
"Presumption where public servant accepts gratification other than legal remuneration : (1) Where, in any trial of offence punishable under Section 7 or Section 11 or Clause (a) or clause (b) of sub section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 6 / 91 agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 7 / 91 consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub sections (1) and (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption my fairly be drawn."
9. Let me examine the testimony of the material witnesses and the other documents filed before me in light of law and the case law to decide whether charges are proved against both the accuseds or not.
10. CBI in support of their case have examined 16 witnesses.
11. PW1 Sh. Newson Kumar stated that in the year 2010, he was posted as JTO, CDR, Tis Hazari Telephone Exchange, New Delhi. At the request of SI Nikhil Malhotra he had provided call detail record of Mobile Telephone No. 9868586944 and 9868991959. He had also provided the call detail record of both the mobile numbers along with the covering letter. He proved the call detail report of mobile no.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 8 / 91 9868586944 running into three pages Ex. PW1/C and call detail record of mobile phone no. 9868991959 running into two sheets Ex. PW1/D. The CDR pertaining to both the mobile phone numbers were proved as Ex. PW1/C and Ex. PW1/D are pertaining to both the telephone numbers pertaining to the period starting from 1st May, 2009 to 4th May, 2009. He stated that he had generated the call detail record printout Ex. PW1/C and Ex. PW1/D from the computer system of MTNL. He stated that the mobile number 9868586944 was issued in the name of one Sh. Raj Kishore Dass and telephone number 9868991959 was issued in the name of accused Shiv Lakhan Mahato.
On being cross examined by Ld. Counsel for accused R.K. Dass he denied that the CDR record of mobile phone has been manipulated.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he denied that he had generated the CDR record without any instructions from any authority and without receiving any letter from SI Nikhil Malhotra.
12. PW2 Sh. M.N. Vijayan, Nodal Officer, Tata Tele Services has proved call detail records and consumer details in respect of mobile connection no. 9268789141 which was issued in the name of Sh. Vipin Kumar Gupta, S/o Sh. Suresh Chand Gupta. He proved the customer application form Ex. PW2/B. He stated that as per records of CBI he had retrieved the call detail records pertaining to mobile phone no. 9268789141 for the period from 01.5.2009 to 04.5.2009 C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 9 / 91 from the system of Tata Tele Services Ltd. Which is Ex. PW2/E which is running into six pages.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that they maintain current record of call details on their system for a period 18 months. He denied that the call detail records have been manipulated.
13. PW3 Sh. S.S. Rawat, Education Officer, Kendriya Vidyalaya Sangathan stated that in the year 2010, he was posted as Education Officer in Kendriya Vidyalaya Sangathan and was looking after the work in the Vigilance section. He stated that he has seen sanction order dated 24.6.2010 which bears signature of Sh. Avinash Dixit, Commissioner, Kendriya Vidyalaya Sangathan for according sanction for prosecution against accused R.K. Dass Ex. PW3/A. On being cross examined by Ld. Counsel for accused R.K. Dass he sated that he cannot comment upon the contents of the sanction order or relevant material which was placed before him for the passing of the said sanction.
14. PW4 Sh. Ranjan Kishore, Principal, Kendriya Vidyalaya, Vikas Puri, New Delhi stated that in the year 2010 he was working as Principal, Kendriya Vidyalaya School, Vikas Puri, New Delhi. He proved the sanction order accorded against accused Shiv Lakhan Mahato Ex. PW4/A who was working as Group D employee at the time of commission of offence. He stated that at the time of granting C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 10 / 91 sanction for prosecution, accused Shiv Lakhan Mahato was working as Group D employee in Kendriya Vidyalaya School, Vikas Puri, New Delhi. He stated that a copy of FIR, Charge Sheet, CFSL Report and other documents were with him. He stated that after going through the material placed before him mentioned in the sanction order, he had applied independent mind and had accorded sanction to prosecute accused Shiv Lakhan Mahato.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he stated that he has not received any complaint directly from Sh. Vipin Kumar Gupta who is the complainant of the case. He denied that he had accorded sanction mechanically on the asking of CBI without applying his independent mind.
15. PW5 V.B. Ramteke, Senior Scientific Officer, CFSL, New Delhi has proved the CFSL Report Ex. PW5/A. He stated that he has received six sealed bottles sealed with the seal of CBI in CFSL with specimen seal which was intact. The same were received with the request letter Ex. PW5/1. He had personally examined the six bottles separately by conducting chemical analysis. He stated that contents of the bottles were found to contain phenolphthalein during commercial analysis. He stated that he had prepared the report and had forwarded it to CBI through proper channel.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that his assistant had prepared the worksheet under his dictation which was running into three C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 11 / 91 pages marked with red pencil Ex. PW5/X1.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he stated that test conducted in the present case gives 100% results and there is no assumption and presumptions.
16. PW6 Sh. Praveen Kumar, stated that on 04.5.2009 he was posted as Security Guard at the gate of Kendriya Vidyalaya School, Sector5, Dwarka, New Delhi at about 3:30 PM to 4:00 PM. He stated that two persons had come at the gate and had inquired about the Principal R.K. Dass (Accused) present in the Court. He had informed that accused R.K. Dass was not present in the school and they had asked him to provide his mobile phone number. He had told them that he did not have his mobile phone number. He stated that they went inside the guardroom and came after about ten minutes. Thereafter they asked him that they had contacted accused R.K. Dass on his mobile phone and accused R.K. Dass had asked him to deliver the money to him and he will becoming later. He stated that both the persons had given him money. He had counted the same and it was Rs. 10,000/ which he had kept in the pocket of his pant. Thereafter, two persons came from the backside. They had caught his hands and had asked him whether he had received the money. He stated that he had admitted before them that he had received Rs. 10,000/ which were to be delivered to accused R.K. Dass. He also informed that two persons had given the money to deliver the same to accused R.K. Dass.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 12 / 91 Thereafter, both of them had asked as to whether he is Shiv Lakhan Mahato. He had disclosed his name as Praveen Kumar. Thereafter he had asked as to why he had received the money. He had told them that that he was requested by the two persons to receive the money and to deliver the same to accused R.K. Dass. He stated that since he has posted at the gate if something had to be delivered by someone inside the school, it was his duty to receive it and to deliver it to the person concerned. He stated that two officials had thereafter asked him to return money to the person from whom he had received it. He had requested to return Rs. 10,000/ to the two persons who had given it to him. Two officials had inquired, whether he has mobile phone number of accused Shiv Lakhan Mahato and he had told them that he has the mobile phone number of accused Shiv Lakhan Mahato. They told him to give mobile phone number of accused Shiv Lakhan Mahato. Accused Shiv Lakhan Mahato was working as Peon in our school and is known to him. The witness identified accused Shiv Lakhan Mahato present in the Court. Thereafter, both the officials had asked him to speak to accused Shiv Lakhan Mahato on his mobile phone and had asked him that one person Sh. Vipin Kumar Gupta had come with Rs. 10,000/ and what should I say to Sh. Vipin Kumar Gupta. Thereafter, he had spoken to accused Shiv Lakhan Mahato on his mobile phone and told him that one Sh. Vipin Kumar Gupta had come at the school gate to deliver Rs. 10,000/. Shiv Lakhan told him that he was coming at the gate within 10 minutes. He further asked him to request Sh.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 13 / 91 Vipin Kumar Gupta to wait at the school gate. He had met Sh. Vipin Kumar Gupta and he gave Rs. 10,000/ to accused Shiv Lakhan Mahato in his presence. When Sh. Vipin Kumar Gupta and accused Shiv Lakhan Mahato were talking, the team of six persons came there and caught accused Shiv Lakhan Mahato. He stated that he had inquired from accused Shiv Lakhan Mahato whether he had received money from Sh. Vipin Kumar Gupta. He stated that accused Shiv Lakhan Mahato had told them that he had received Rs. 10,000/ from Sh. Vipin Kumar Gupta as he was asked by the Principal accused R.K. Dass to receive the same. Thereafter, CBI officials had started their proceedings.
On being cross examined by Sh. Anuj Sarma Ld. Counsel for accused Shiv Lakhan Mahato he stated that his duty hours were from 7:00 AM to 7:00 PM. On 02.5.2009 he was on duty at the school gate. He stated that he had met Sh. Vipin Kumar Gupta for the first time on 04.5.2009 when he had came at the school gate and gave him Rs. 10,000/ to be delivered to accused R.K. Dass. He stated that when Sh. Vipin Kumar Gupta and another persons came on 04.5.2009, the gate had been closed as per the instructions of accused R.K. Dass. He stated that when they had asked that they wanted to speak to accused R.K. Dass as they had to deliver Rs. 10,000/, he had opened the gate and had allowed them to come inside. The other person who accompanied Sh. Vipin Kumar Gupta had been introduced as his father. He stated that the two officials who had caught him were wearing identity card which showed that they were from CBI.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 14 / 91 Sh. Vipin Kumar Gupta and other persons did not ask him about his name when they had handed over Rs. 10,000/. However, CBI officials had asked his name. He had further stated that he had spoken to accused Shiv Lakhan as per the instructions of CBI officials and the speaker of his phone was on and their conversation was audible to everyone who were present there. When accused Shiv Lakhan Mahato and Sh. Vipin Kumar Gupta were talking outside the school gate, the other persons who accompanied Sh. Vipin Kumar Gupta were also standing near them and he was at a distance of 34 steps from three of them. He stated that when he had spoken to accused Shiv Lakhan Mahato on his phone, 56 CBI officials, Vipin Kumar Gupta and the person accompanied him were standing around him and accused Shiv Lakhan Mahato told him on mobile phone to ask Sh. Vipin Kumar Gupta to wait at the gate and he was coming within ten minutes. Except this nothing had been told by accused Shiv Lakhan on mobile phone. He did not listen to the conversation between Sh. Vipin Kumar Gupta and accused Shiv Lakhan. When accused Shiv Lakhan and Sh. Vipin Kumar Gupta were talking outside the school gate, the other persons who had accompanied Sh. Vipin Kumar Gupta were also standing near and he was at a distance of 56 steps from CBI officials and another person who accompanied Sh. Vipin Kumar Gupta was behind them at a distance of 23 steps. Accused Shiv Lakhan told on the mobile phone to ask Sh. Vipin Kumar Gupta to wait at the gate and he will reach there within 10 minutes. He stated that he did not listen to the conversation between accused C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 15 / 91 Shiv Lakhan Mahato and accused R.K. Dass. Accused Shiv Lakhan Mahato was neither beaten nor threatened by the CBI officials.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that his statement was recorded on the next day of trap by CBI officials in their office. He told about the incidence to CBI but he did not remember exactly what he had told in his statement. He stated that he did not remember whether he had told in his statement that two persons came at the school gate and inquired about the principal or he had told that principal was not available in the school. He stated that he does not remember whether he had told him that they had asked about the phone number of the principal but he told them that he did not have his phone number. He stated that he does not remember whether he had stated to CBI officials that after about 10 minutes two persons came and tole him that they had spoken to the principal and had asked him to take money and to handover the same to principal. He stated that he did not tell CBI officials that two persons went to the guardroom. His hand wash was taken by CBI officials but pant pocket wash was not taken. He denied that he was thrashed by CBI officials when he was caught. He denied that he is deposing falsely.
17. PW7 Sh. Harish Chander who is the independent witness in this case stated that he is working as Vaccinator in Department of Health, MCD on 04.5.2009. on 03.5.2009 he was give a letter by his office and he was C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 16 / 91 instructed to report at CBI office at about 6:00 AM. On 04.5.2009 as per the directions of CBI office he had reached at CBI office. Thereafter he had been instructed by the CBI official at the reception to contact Inspector Dheeraj Khetarpal. Thereafter Inspector Dheeraj Khetarpal had told him that he had called him for some work but he did not tell him the details of the work. After sometime at about 8:30 AM complainant came who was introduced as Sh. Vipin Kumar Gupta. Sh. Vipin Kumar Gupta had told Inspector Dheeraj Khetarpal that his ATM card was blocked, therefore, he could not arrange the tainted amount. He told the inspector that at 10:00 AM he will go to the bank and after arranging the tainted money he will come back. Inspector Dheeraj Khetarpal had asked complainant to inform accused R.K. Dass about the arrangement of money. Thereafter the complainant had contacted accused R.K. Dass and told him that his ATM card is blocked, therefore, he could not arrange the money and will contact him after taking the money from the bank. The telephonic conversation between the complainant and the Principal R.K. Dass was recorded on digital recorder as conversation was audible through speaker phone. The recorded conversation on the cassette of digital recorder was sealed in an envelope and was signed by him. Another independent witnesses had also singed and thereafter the complainant left the office of Inspector Dheeraj Khetarpal and he was asked to sit in the office.
He further stated that at about 12:45 PM the complainant Vipin Kumar Gupta came to the office of CBI. He C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 17 / 91 had given an amount of Rs. 10,000/ to Inspector which was to be used as tainted money which included 19 currency notes of the denomination of Rs. 500/ and 5 currency notes of the denomination of Rs. 100/. The complaint lodged by Sh. Vipin Kumar Gupta with CBI was shown to him in presence of complainant and he had gone through the contents with the same and the complaint pertained to demand of money by principal in respect of admission of a child in the school. He had to accompany him as witness in the proceedings pertaining to the said case. The number of currency notes of Rs. 10,000/ provided by the complainant were noted by the CBI officials. These currency notes were treated with a powder. Thereafter, currency notes were given to the witness Sh. Lalit Mohan and he was asked to touch the currency notes and to dip his hands in water like solution which turned pink. The currency notes were treated with powder by CBI official whose name he did not remember. He stated that currency notes were treated by Inspector Manish Upadhyay. The pink colour solution was sealed in a bottle by one of the officer of CBI. He further stated that Inspector Manish Upadhyay carried out the demonstration in front of him. He further stated that two independent witnesses and complainant were searched and were asked to switch off their mobile phones. The currency notes treated with the powder were given to Sh. Vipin Kumar Gupta who was instructed by the IO to keep it in his pocket. Sh. Vipin Kumar Gupta was instructed that unless he is asked he should not touch the currency notes. The handing over C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 18 / 91 memo was shown to him. He identified the memo Ex. PW7/A. The digital voice recorder was given to Sh. Vipin Kumar Gupta by the IO and he was instructed to switch on the DVR at the spot and not before it. IO had taken all files containing documents. Independent witness Sh. Lalit Mohan was asked to act as a shadow witness and to remain close to the complainant and hear the conversation between the complainant and Principal R.K. Dass. Sh. Lalit Mohan was further instructed that after completion of conversation and transaction between the complainant and the accused, Sh. Lalit Mohan will give signal to the CBI team. He stated that he does not remember what type of signal was given by Sh. Lalit Mohan. IO had also kept empty bottles with him.
At about 4:00 PM, CBI team along with independent witnesses had proceeded for the spot and had reached there within 4560 minutes. At the spot raiding party was divided into two teams. One team had remained in the park adjacent to the school and another team of Sh. Vipin Kumar Gupta and Sh. Lalit Mohan was sent at the school i.e. Kendriya Vidyalaya School, Dwarka, Sector5, New Delhi. After sometime Sh. Lalit Mohan and Sh. Vipin Kumar Gupta came back to park and informed that the principal was not present in the school. The TLO Inspector Dheeraj Khetarpal had asked Sh. Vipin Kumar Gupta to speak to principal on phone and accordingly, Sh. Vipin Kumar Gupta had spoken to the Principal. During this conversation, Principal had asked Sh. Vipin Kumar Gupta to give money to Sh. Shiv Lakhan Mahato at the school gate. Thereafter, Sh. Lalit Mohan and Sh. Vipin C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 19 / 91 Kumar Gupta again went to the school gate and accordingly all of them had also reached there. One person was already caught in the school who was asked by the TLO whether he had received the money. On being asked, the said person told that he is the security guard Praveen Kumar not accused Shiv Lakhan Mahato. Sh. Praveen Kumar told that he was asked by Sh. Vipin Kumar Gupta to give the money to accused Shiv Lakhan Mahato and, therefore, he had received the money from him. Sh. Praveen Kumar was asked to speak to accused Shiv Lakhan Mahato on phone and accordingly, he had spoken to accused Shiv Lakhan Mahato on his mobile phone. After sometime accused Shiv Lakhan Mahato came at the school gate by his bicycle. Sh. Praveen Kumar had handed over the money to accused Shiv Lakhan. Thereafter, accused Shiv Lakhan was caught by CBI team. On being asked, accused Shiv Lakhan told that he was instructed by the principal to receive the money and, therefore, he had received the same. On instructions of TLO, accused Shiv Lakhan had spoken to the principal on mobile phone. The team was instructed to wait in the school ground and to come as and when signal is given. After sometime a car came inside the school gate. Accused Shiv Lakhan had spoken to with the person who came by the car who was the principal of the school. Thereafter, accused R.K. Dass present in the Court was also caught by CBI team. The signal was given to them to come there and accordingly they had reached near the TLO. Thereafter, principal R.K. Dass and accused Shiv Lakhan were taken in school office along with the members C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 20 / 91 of the raiding team.
After the trap, left hand wash and pant pocket wash of Sh. Praveen Kumar were taken and both the washes had turned into pink colour and he had put his signature on bottles of both the washes in which the solution were sealed. Bottle containing pant pocket wash is Ex. P1 and left hand wash of Sh. Praveen Kumar Ex. P2. (Inadvertently in the examination in chief "Word" accused has been mentioned against the name of Sh. Praveen Kumar who is a witness not an accused. It is merely a typographical error). Thereafter, the right hand wash and right side pant pocket wash of accused Shiv Lakhan were taken and were sealed in two bottles on which he had signed. He stated that Ex. PW3 is right hand wash bearing his signatures at point A and PW4 is right side pant pocket wash bearing his signatures at point A. the left hand wash of accused Shiv Lakhan was proved as Ex. P5 and he also prove the signature on the Right side pant pocket of both the accused persons Ex. P7 and Ex. P8. The witness was shown the currency notes consisting of 19 GC notes in the denomination of Rs. 500/ and 5 GC notes in the denomination of Rs. 100/. After going through the handing over memo Ex. PW7/A and after the numbers of the GC notes were tallied the witness states that these are the same which were recovered from accused Shiv Lakhan by him. The GC notes were proved Ex. P9 to Ex. P32. The witness also proved the recovery memo Ex. PW8/F, the specimen voice recording memo Ex. PW7/B, the search memo Ex. PW8/B and Ex. PW8/C, the personal search memo Ex. PW8/D, the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 21 / 91 search list Ex. PW8/E and the transcript Ex. PW10/D and Ex. PW7/E which were prepared in his presence at the school. He stated that accused persons had given their specimen voice in his presence and had given it voluntarily and the names were written in the specimen voice recording memo. Thereafter, the cassette which had been taken out from the sealed envelope was shown to him. The witness identified his signatures on the same.
On being cross examined by Ld. Counsel for accused Shiv Lakhan he stated that he does not remember from where the complainant had withdrawn the tainted amount of Rs. 10,000/. He admitted that on 04.5.2009, the complaint was lodged by the complainant was not read over to him but had been verbally informed about the complaint. He stated that the complainant had produced a sum of Rs. 10,000/ comprising of 19 notes in the denomination of Rs. 500/ and 5 notes in the denomination of Rs. 100/. Before leaving CBI office, the IO had explained that they were going to conduct raid at Central School, Dwarka, where the principal had demanded bribe for giving admission to a child. He stated that the bribe amount was not given in his presence. He stated that he was called after the bribe amount was handed over and was to be recovered. He stated that he was the witness of recovery. He further stated that initially the bribe amount was handed over to security guard Sh. Praveen Kumar thereafter, the security Guard had informed that he had nothing to do with the said amount and the money was taken back from him. Thereafter, he had left the spot and C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 22 / 91 had gone to the park of the school. The security guard had called accused Shiv Lakhan Mahato on the spot and the bribe amount was handed over to accused Shiv Lakhan Mahato. They were called at the spot and the bribe amount was again recovered from the possession of accused Shiv Lakhan Mahato present in the Court. He further stated that before reaching the KVS, Dwarka it was decided that the bribe amount was to be handed over to the security guard. He stated that the complainant had made a telephone call to the principal of the school and the principal of the school might have told the complainant about the person to whom the bribe amount was to be handed over. He stated that he does not know as to whom the principal had told the complainant to hand over the bribe amount. He stated that he had heard the name of accused Shiv Lakhan Mahato for the first time when the guard Sh. Praveen Kumar had called accused Shiv Lakhan Mahato. He stated that he cannot say whether accused Shiv Lakhan Mahato had any role to play in demand of the bribe amount for giving admission to a child or not. He denied that he is deposing falsely.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that on 03.5.2009 he had received information from his office to attend CBI office on 04.5.2009. He stated that he had reached CBI office at about 7:00 AM. Initially, he was made to sit at the reception in CBI office. He stated that the complainant had informed the IO that he will not be able to come to CBI office in time since he could not arrange money due to some problem in his ATM card. The C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 23 / 91 complainant had reached CBI office on 04.5.2009 at around 100:00 noon. The IO of the case had recorded his statement in his presence. He stated that when the conversation between accused R.K. Dass and the complainant was being recorded the conversation was not very clear. He admitted that accused R.K. Dass had not demanded money from the complainant in his presence. There were about 67 members in the trap team. He stated that he does not remember as to what writing work was done in CBI office. He stated that copy of conversation recorded in the DVR was not prepared in his presence. He stated that he does not remember whether the DVR was sealed in his presence or not. He further stated that he does not remember whether the cassette prepared from digital voice recorder was sealed in his presence or not. He stated that video recording of the entire trap proceedings were not conducted by the TLO. He stated that the complaint of the complainant was not written in his presence. The handing over memo was prepared and read over to him in his presence. He stated that all the CBI officials, along with the complainant, shadow witness and independent witness had left CBI office in one vehicle. They had assembled at the gate of the school thereafter, a team was divided into two groups. He stated that he does not remember as to whether the complainant was briefed about the complete functioning of DVR before handing it to the complainant. He stated that the place where he was standing with other CBI officials, he could neither hear or see the transaction that was going on at the school. The complainant C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 24 / 91 was accompanied by one independent witness i.e. Sh. Lalit Mohan. Some other CBI official were also with them. He stated that he cannot say as to what instructions were given to Sh. Lalit Mohan by TLO. The complainant along with the shadow witness entered in the cabin of the school premises. Only one security guard was present at the school gate. He stated that we had initially apprehended Praveen Kumar. The recovery was made from the pant pocket of Praveen Kumar. The Recovery Memo was made not prepared instantly after apprehension of Praveen Kumar. He stated that he does not know whether any admission list was displayed in the school notice board or not. He stated that he came to know that accused R.K. Dass was not present in the school after laying trap of watchman Praveen Kumar. He stated that he does not remember whether the recorded conversation on the DVR between the watchman and the complainant was played before him. He stated that he had heard the entire conversation recorded in the DVR. The witness was confronted with portion A11 to A11 of transaction Ex. PW10/B. The witness stated that the conversation did not take place in his presence. He stated that he cannot say as to whether the watchmen had demanded bribe amount from the complainant in view of which the complainant had given the amount. He stated that he does not remember as to whether accused R.K. Dass had reached school after a call was made by the complainant on the direction of CBI. After apprehension of Praveen Kumar, accused Shiv Lakhan was called on the spot by the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 25 / 91 complainant on the directions of CBI officials. Accused Shiv Lakhan had reached the spot after one hour approximately. He stated that he had taken the same position for trap which he had taken earlier. He admitted that he was not aware as to what conversation was going on between the complainant, shadow witness and the accused Shiv Lakhan. Perhaps the signal for trap had come from either the complainant or the shadow witness. He admitted that the complainant and the shadow witness remained in the cabin of the school. He admitted that his statement has also been recorded in the departmental enquiry against accused R.K. Dass. He stated that he had stated true facts in his statement to CBI in the departmental proceedings and in the Court. He stated that the recovery of the tainted amount was made from the pocket of pant of accused Shiv Lakhan Mahato. He stated that the recorded conversation between accused Shiv Lakhan and the complainant was played in CBI head quarter on the same day. He stated that he does not remember whether he had heard the intercepted conversation, conversation mentioned at portion A to A1 at page 14 of the transcript Ex. PW7/F was heard to him or not. Accused Shiv Lakhan had called the principal at the spot on 04.5.2009. No conversation had taken place between the complainant and the principal in his presence at the spot. He stated that he had reached the spot after 1 one and a half hour after being called by accused Shiv Lakhan. He denied that the place at which he was standing along with other CBI officials, the complainant, the shadow witness and accused Shiv Lakhan C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 26 / 91 Mahato were visible to him. He stated that he does not remember as to whether the complainant, shadow witness and accused Shiv Lakhan Mahato were standing together or not. He stated that he does not remember the exact time when the trap proceedings had concluded. Thereafter, all the trap team members, including the complainant, shadow witness, and other CBI officials had returned back to CBI office situated at CGO Complex. He admitted that after the conclusion of trap proceedings, the DVR was switched off. The office staff was present in the school when the trap proceedings were being conducted. He stated that it was not in his knowledge as to whether the complainant had already met the watchman Praveen Kumar and accused Shiv Lakhan Mahato prior to the incident of Trap. He admitted that Ex. PW9/A to Ex. PW9/E, Ex. PW10/D1 i.e. The admission list was seized in his presence. The recovery memo Ex. PW8/F was prepared in his presence and the contents of the same were read over to them and after reading the same, they had signed the memo. He stated that the transcription was prepared by him as well as the independent witness Sh. Lalit Mohan. He denied that he is deposing falsely.
18. PW8 Sh. Virender Singh, Assistant, Kendriya Vidyalaya Sangathan HQ, 18 Shaheed Jeet Singh Marg, New Delhi stated that on 04.5.2009 he was posted as UDC in Kendriya Vidyalaya, Dwarka Sector5, and was on duty on 2nd shift i.e. From 11:00 AM to 6:00 PM and was present the school itself. He stated that the arrest memo of accused Shiv C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 27 / 91 Lakhan Mahato was prepared in his presence and bears his signatures Ex. PW8/A. He further stated that arrest memo of accused R.K. Dass was also prepared in his presence and bears his signatures Ex. PW8/B. He stated that personal search memo of accused R.K. Dass and accused Shiv Lakhan Mahato were prepared in his presence and bears his signature Ex. PW8/C and Ex. PW8/D. Personal search of both the accused was conducted by IO in his presence and office of accused R.K. Dass was searched in his presence and search memo was prepared in his presence which is Ex. PW8/E. He had also seen recovery memo which was prepared in his presence and bears his signatures at point X on all the six pages Ex. PW8/F. On being cross examined by Ld. Counsel for accused R.K. Dass he stated that he was working on his computer in the office of the school in second shift. He stated that at about 5:00 PM I was asked by the CBI official to remain present in the school till the conclusion of their proceedings and he had remained in the school on that day till 12 AM (Night). He stated that CBI officials were working in accused R.K. Dass's office as well as in his office. He stated that he does not know whether CBI officials had used the computer of accused R.K. Dass's office and he also does not know that on which of the computers the recovery memo, personal search memo, arrest memo and other documents were prepared by the CBI officials. He denied that neither any proceedings were conducted in his presence nor he had been told about the proceedings and he had just singed the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 28 / 91 respective memos as per the instructions of CBI officials.
On being cross examined by Sh. Anuj Sarma, Ld. Counsel for accused Shiv Lakhan Mahato he stated that his duties in the school have nothing to do with the work of admission of students.
19. PW9 Sh. Surender Kumar after seeing the admission list Ex. PW9/A stated that twenty children were nominated for admission as per rules. He stated that he had seen the second list Ex. PW9/B dated 01.4.2009 of class Ist (First Shift). The names of the children were prepared which included total six names of children of all categories as per rules and the list also does not show the name of baby Khushi Gupta. He was shown the list Ex. PW9/C dated 16.4.2009 containing the name of three children which was prepared of all categories as per rules. He stated that as per admission guidelines 200809, the school was permitted to admit twenty more children in class1st so fourth list was prepared. He stated that the name of baby Khushi Gupta is mentioned at Serial No. 6 on the said list Ex. PW9/E and this list was not displayed on the school notice board.
On being cross examined by Ld. Counsel for accused no. 1. He stated that the first preference is given in school admissions of KVS to the children and wards of Central Govt. Employees who have transferred to Delhi from outside Delhi in last seven years which also included the Ex. Servicemen. He admitted that he was Sr. Member InCharge of the Committee constituted for admissions in the school for the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 29 / 91 year 200910. He admitted that the name of baby Khushi Gupta came in the fourth list prepared by the committee.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he admitted that accused Shiv Lakhan Mahato has no role in decision making of admissions.
20. PW10 Sh. Vipin Kumar Gupta who is the complainant himself has proved the complaint lodged by him Ex. PW10/A. He stated that the complaint is in his own handwriting and he had had applied for admission of his daughter in two schools and he was not successful to get her admitted in any of the schools. He stated that one day he had received a telephonic call from accused R.K. Dass, who was correctly identified by the complainant in the Court. He had informed him that his daughter will be admitted in Kendriya Vidyalaya School, Sector5, Dwarka if he was ready to pay him bribe. He had demanded bribe of Rs. 50,000/ and ultimately the matter was settled for Rs. 30,000/. Since he did not want to pay bribe amount he had contacted CBI office and had lodged Ex. PW10/A. He stated that he had written complaint in his own handwriting without any dictation from anyone. On 01.5.2009, he had gone to CBI office and he was asked to contact the principal of the school. He was carrying his voice recorder with him. In that meeting the principal had again repeated his demand of bribe amount of Rs. 30,000/. He stated that he had promised him to pay Rs. 10,000/ after two days. Thereafter, he had come back to CBI office, he was not having money at that time. However, C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 30 / 91 CBI officials had asked him to arrange Rs. 10,000/. thereafter, he has arranged Rs. 10,000/. CBI officials had noted down the numbers of the said currency notes. Thereafter, two independent witnesses were called from Government offices, however, he did not remember their names. The raiding party was constituted by CBI. Thereafter, they had reached Kendriya Vidyalaya School at Dwarka Sector5. One independent witness had been asked to accompany him and he was asked by CBI officer to introduce him as his uncle. When they had reached in the School it was closed. They sat in the park and a phone call was made by him to the Principal who had told him to handover the bribe amount to the gatekeeper. He had reached at the gate of the school, the gatekeeper was not ready to open the gate. He had spoken to principal from his phone and had then allowed them to enter into the school. After entering the school premises, he had handed over the bribe amount of Rs. 10,000/ to the peon accused Shiv Lakhan Mahato, whom the accused had identified correctly. He had handed over the money in the presence of the witnesses who had come with him since the money was given to the peon, the other CBI team was informed about the developments and all of them had rushed towards them. Thereafter, the peon was arrested and he was asked to make a phone call to accused R.K. Dass. After 1015 minutes, accused R.K. Dass had arrived in the school. He was also arrested by CBI. The hand washes of the peon were taken, which had turned into light red colour. Some papers were C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 31 / 91 collected from the Principal's office and typing work was also done there. Proceedings had continued till 2:00 AM of the next day. He stated that he may not be able to identify the currency notes due to lapse of time. Thereafter, the cassette recording the intercepted conversation was produced by CBI from there Malkhana in the sealed parcel which was played in the Court. The witness heard the conversation and he was shown the transcript of the intercepted conversation, the witness stated that the transcript of the intercepted conversation D19 had been prepared in his presence. The same was proved as Ex. PW10/B. The witness identified the voices of the intercepted conversation when the cassette was played in the Court. The witness identified his voice as well as the voice of accused R.K. Dass wherein they ware talking about the meeting. The entire cassette was played. The witness identified the voice as well as confirmed the contents of the conversation which were prepared in his presence Ex. PW10/B. The witness also identified the admission form of his Daughter baby Khushi Gupta Ex. PW9/F in Kendriya Vidyalaya School along with annexures. He also proved the handing over memo Ex. PW7/A. He stated that he had gone to CBI office along with Rs. 10,000/ and details of the currency notes were noted down by CBI official in Ex. PW7/A. The currency notes were treated with some chemical powder and a demonstration was given to the effect of showing that if any person would touch the said treated notes with his hands and would dip his fingers in the solution C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 32 / 91 of sodium carbonate and water the colour of the solution would turn into pink. He also proved the recovery memo, voice identification memo and transcription memo Ex. PW7/B. He also identified the introductory voice of independent witnesses. He also identified the voice of the gatekeeper of the school. The witness was shown the currency notes. Witness stated that he cannot identify the currency notes since they had been taken out from the ATM on the same day. He further stated that the numbers of the currency notes were noted by CBI officers in their office. He stated that the GC notes which are mentioned in the memo were recovered by CBI from accused Shiv Lakhan Mahato. Hand washes of accused Shiv Lakhan Mahato and other accused were taken by CBI officer by preparing colourless solution of sodium carbonate and water in a clean glass of water in the presence of the witnesses and upon doing so the colour of the hand washes had turned into pink. Thereafter, hand washes were transferred into clear glass bottles and the glass bottles were sealed. Thereafter, both the accused persons were arrested. He stated that he had not signed the bottles containing the hand washes which were prepared at the spot.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that he does not remember whether his statement was recorded by the IO or not. He stated that he had accompanied the IO through out the proceedings from filing of case against accused persons. He stated that his separate statement was recorded by IO after the proceedings C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 33 / 91 were over. Further he stated that he has stated the same facts in the Court as he had earlier stated to the IO. He stated that he had visited the school at Dwarka, Sector5 45 times, however, his daughter's name had not figured in the third admission list. He also denied that he had met accused R.K. Dass when his daughter's name had not figured in the third admission list. He denied that he had threatened the accused R.K. Dass to implicate him in a false CBI case. He admitted that he had not seen fourth admission list of the school, therefore, he cannot say whether his daughter name figured in the fourth admission list and he was required to go to school to complete the formalities.
The attention of the witness was drawn to D25(5) and D25(6) Ex. PW9/E and Ex. PE10/D1 and after going through the same he stated that his daughter's name Baby Khushi Gupta has been reflected at serial no. 6 on both the documents. He stated that the watchman of the school gate had not allowed him to enter the school when the principal had called him for the first time. The principal was alone in his room when he had met him for the first time. He denied that the principal had not demanded bribe amount from him. He stated that he had spoken to principal for about 1215 minutes. He stated that he had gone to the principal room himself on the third day when CBI officials were standing outside the school gate. He stated that principal had demanded Rs. 50,000/from him for the admission of his daughter but the matter was settled for Rs. 30,000/. he admitted that sum of Rs. 50,000/ was not C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 34 / 91 mentioned anywhere in the transcription Ex. PW10/B. He stated that he had given a telephonic call from his mobile phone to the mobile phone of principal. He stated that two independent witnesses and 56 CBI officials were there at the time of laying the trap. He stated that CBI officials were scattered outside the school in different groups of two, while he along with other independent witnesses had gone inside the school. He stated that two independent witnesses were associated with him to hear and see the transaction of the bribe amount demanded by accused R.K. Dass. He stated that he had come to know about the name of principal from someone in the school. He stated that the transcript was prepared in his presence. He stated that the person who had met him at the gate of the school on the day of trap was not aware about the purpose of his coming to school. He stated that the bribe amount had not reached accused R.K. Dass, it was handed over to accused Shiv Lakhan Mahato which was recovered from his possession. He admitted that it was decided at the CBI office that the bribe amount was to be handed over to accused R.K. Dass. He denied that he had falsely implicated accused R.K. Dass in this case. He also denied that he had an altercation with the principal in full public view and he had threatened to falsely implicate him in a false case.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he stated that he had seen accused Shiv Lakhan Mahato for the first time when he had visited accused R.K. Dass in his cabin. Accused Shiv Lakhan C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 35 / 91 Mahato had come to the cabin for serving tea. Accused Shiv Lakhan Mahato did not have any role nor he had any discussion with accused Shiv Lakhan Mahato about the admission of his daughter till 7:00 PM to 8:00 PM on 04.5.2009. Accused Shiv Lakhan Mahato had never demanded any amount as bribe from him. He stated that he did not recognize the face of accused Shiv Lakhan Mahato when the trap team had reached the school gate. He had handed over the bribe amount to gate keeper who was found available there. He stated that he had had handed over the bribe amount of the gate keeper assuming that he was accused Shiv Lakhan Mahato. He stated that he cannot say whether accused Shiv Lakhan Mahato has been falsely implicated in this case or not.
21. PW 11 Sh. Manish Kumar Upadhyay stated that he had received a complaint which was marked to him by the then SP for verification. The complaint was from one Sh. Vipin Kumar Gupta who had alleged that accused R.K. Dass was demanding a bribe of Rs. 50,000/ from the complainant for securing admission in Kendriya Vidyalaya School. On 02.5.2009, he himself along with complainant Sh. Vipin Kumar Gupta, and independent witnesses had gone to school of accused R.K. Dass. He stated that he along with independent witness had remained outside the school campus at safe distance. He stated that the complainant stated when he had tried to enter inside the school he was stopped at the gate on which he made a mobile call on the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 36 / 91 phone of accused R.K. Dass. The complainant had put the mobile in speaker mode, so as to record the conversation as the Digital Voice Recorder was already in switch "On" mode. The complainant was allowed to go inside the school by accused R.K. Dass where he met with him. He stated that during the conversation, the Principal agreed to accept Rs. 10,000/ as first installment of the demanded bribe amount of Rs. 30,000/. Accused R.K. Dass had directed the complainant to come on 04.5.2009 as 03.5.2009 was Sunday. Thereafter, the proceedings which had taken place on 02.5.2009 during the verification proceedings, were noted down in a verification memo. The recorded conversations from the digital voice recorder was transferred in a blank audio cassette after playing it through and through and recording the introductory voice of the witness in the beginning. The audio cassette was sealed by CBI. Seal. Thereafter, the complainant and the independent witness were directed to come to CBI office on 04.5.2009 at 6:00 AM. He stated that he had also seen recovery memo Ex. PW8/F which was prepared in his presence.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that he had not verified whether the daughter of the complaint had got admission in the school or not since in a trap case, the proceedings have to be discreet. He had left the CBI office for verification of the complaint on 02.5.2009 in the morning time, however, he does not remember the exact time. He stated that he does not remember whether it was decided that independent C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 37 / 91 witness would accompany the complainant during the verification proceedings when the complainant would engage in any conversation with the accused. It depends upon the circumstances whether the independent witness will accompany the complainant or not. He admitted that when the complainant had come outside the principal office, he had stated to him on his inquiry, that the principal had demanded the bribe amount or Rs. 50,000/ and upon the request of the complainant, accused R.K. Dass agreed to accept Rs. 30,000/. He admitted that the conversation recorded in cassette Q1 Ex. PW11/A was transferred by him from the digital voice recorder. He admitted that he had identified the voice of the principal on the basis of the version given by the complainant. He stated that all the writing work of the verification proceedings was done at CBI office. He stated that he does not know as to whether the DVR was having editing facility or not since he is not a technical expert. He stated that he does not remember as to who had firstly received the money from the complainant. He stated that the money was firstly taken by accused Shiv Lakhan Mahato and thereafter, accused R.K. Dass had arrived at the spot. He admitted that accused R.K. Dass was called at the spot by giving a telephone call. All the posttrap proceedings were concluded in writing at the spot. He denied that he had not examined the motive or purpose for which the money was demanded by accused R.K. Dass from the complainant. He denied that being CBI officer, he had deposed falsely to strengthen the case of prosecution.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 38 / 91 On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he stated that the complainant Sh. Vipin Kumar Gupta and independent witness were mutually introduced to each other and the purpose of assembly was explained. He stated that he had heard the name of accused Shiv Lakhan Mahato for the first time during the verification proceedings itself on 02.5.2009.
22. PW12 Dheeraj Khetarpal stated that he was entrusted the investigation in RC-22(A)/2009/CBI/ ACB/New Delhi. He stated that the said case was registered on the basis of a written complaint filed by Sh. Vipin Kumar Gupta on 01.5.2009 which was addressed to SP, CBI. He stated that it was alleged in the complaint that accused R.K. Dass who was working as Principal in Kendriya Vidyalaya, SectorV, Dwarka, had demanded a bribe of Rs. 50,000/ for the admission of the daughter of the complainant. He stated that the complaint was verified by SI Manish Upadhyay. He stated that after the verification, the case was registered and during the course of the verification, it was arranged between the complainant and the accused R.K. Dass that the first installment of Rs. 10,000/ out of the agreed amount of Rs. 30,000/ would be received on 04.5.2009 at Dwarka by the accused. Based upon these facts the FIR in the present case was registered which bears the signatures of the then SP Sh. Sumit Saran Ex. PW12/A. He stated that the complainant had informed him that he could not bring the demanded amount of Rs. 10,000/ because of blockage of his ATM. He C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 39 / 91 stated that the handing over proceedings were initiated and in the process the tainted bribe amount of Rs. 10,000/ was treated with phenolphthalein powder by SI Manish Upadhyay. He stated that the demonstration had been shown to independent witnesses and in the process, the tainted bribe amount which was treated with phenolphthalein powder was touched by the witness and he was asked to wash his fingers in the freshly prepared solution which turned pink in colour and in the process it was explained that the chemical reaction between phenolphthalein powder and the solution of sodium carbonate brings pink colour which proved the touching of notes by the witness. He stated that the conversation recorded between the complainant and the accused Principal R.K. Dass were marked as Q1 and Q2 were also taken into possession through this handing over memo Ex. PW7/A. He stated that the trap kit was also kept with the team which included the documents prepared so far in this case. He stated that the tainted bribe amount was already kept in the right hand side pocket of the complainant by witness Sh. Lalit Mohan. He stated that the complainant was directed to handover the tainted amount of Rs. 10,000/ to accused R.K. Dass on his specific demand and not otherwise. The witness Sh. Lalit Mohan was also instructed to act as a shadow witness in this case and carefully watch all the transactions which took place between the complainant and the accused R.K. Dass during the trap proceedings. He stated that the shadow witness was also instructed to pass C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 40 / 91 over the signal after transaction of the tainted amount by wiping of his face with his hands or he can also give a missed call to his number conveying the transaction. He stated that the complainant and the shadow witness informed that it was learnt at the school gate that the accused R.K. Dass is not available and has gone out. He stated that the complainant was asked to telephonically contact the accused R.K. Dass and find out as to how the transaction of bribe money can be completed. The complainant, therefore, talked to Principal, and the conversation was simultaneously recorded and it was directed by the Principal to the complainant to hand over the bribe amount to accused Shiv Lakhan Mahato. The complainant along with the DVR and the shadow witness visited the school to hand over the tainted amount. He stated when they reached the school gate, at the identification of the shadow witness and the complainant, he had challenged the person who had accepted the bribe amount. He stated that the said person on interrogation informed that he is the security guard named Praveen Kumar and had accepted the amount for accused R.K. Dass without his knowledge regarding the motive of the transaction. He stated that watchman Sh. Praveen Kumar had informed that accused Shiv Lakhan Mahato, who is the peon is also out of school and is likely to come back soon. He stated that after sometime accused Shiv Lakhan Mahato had reached the school and the complainant had handed over the tainted bribe amount to him. He sated that the shadow witness had given a missed call to his number and all the team members C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 41 / 91 on his direction had rushed towards the spot. The accused Shiv Lakhan Mahato was challenged and the DVR was taken into possession and kept in switched off mode. He stated that accused Shiv Lakhan Mahato was asked to contact the Principal over telephone and informed him about his having received the amount and take further directions from the Principal. He stated that this conversation which was also recorded indicated that the principal was coming to the school to accept the bribe amount from accused Shiv Lakhan Mahato. He stated that after sometime accused R.K. Dass had reached on the spot in his green colour Matiz Car and thereafter, some conversation had taken place between the complainant, accused Shiv Lakhan Mahato and accused R.K. Dass. He stated that the complainant had informed the principal about the transaction of bribe amount to Shiv Lakhan as per instructions and inquired about the admission of his daughter. He stated that the principal had confirmed him about the admission and asked him to come for the same on 05.5.2009. He stated that accused R.K. Dass was challenged by him for having demanded and accepted the bribe amount through accused Shiv Lakhan Mahato for the admission of the daughter of the complainant Sh. Vipin Kumar Gupta. The stated that all the accused persons were taken to the room of the Principal and the events happened so far were drawn in the form of recovery memo. He stated that accused Shiv Lakhan Mahato and accused R.K. Dass were arrested and the Arrest Memo is Ex. PW8/A pertaining to accused Shiv Lakhan Mahato and Arrest Memo Ex. PW8/B C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 42 / 91 pertaining to accused R.K. Dass in this regard were prepared.
On being cross examined by Ld. Counsel for accused Shiv Lakhan Mahato he stated that the name of accused Shiv Lakhan Mahato was not mentioned in the complaint. He stated that as alleged in the complaint and verification, the demand of bribe was on the part of accused R.K. Dass, therefore, the agenda was to lay a trap on accused R.K. Dass. He stated that the name of accused Shiv Lakhan Mahato was mentioned by accused R.K. Dass when he was contacted over phone and at that stage, he had directed the complainant to hand over the bribe amount to accused Shiv Lakhan who was expected to be available in the school.
On being cross examined by Ld. Counsel for accused R.K. Dass he stated that he had not conducted verification of the demand made by accused R.K. Dass since it was already verified. He admitted that trap in this case was laid on the complaint of the complainant after verification. He denied that the bribe amount of Rs. 10,000/ was arranged by CBI and it was not brought by the complainant. He admitted that during the course of trap laying procedure, he had not tried to ascertain the telephone record of the mobile phone of the complainant with the mobile phone of accused R.K. Dass. He admitted that the Handing Over Memo was typed in verbatim and there was no addition or deletion in it. He admitted that the complainant was asked by him to give the bribe amount of Rs. 10,000/ specifically to accused R.K. Dass. He admitted that the independent witness and other team members were under direction to C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 43 / 91 carefully hear and watch the bribe transaction. He admitted that accused R.K. Dass was not present in the school to take the bribe amount as planned earlier between the complainant and the accused. He stated that the watchman of the school had intimated the complainant and the shadow witness that the principal accused R.K. Dass was not present in the school at that time. He admitted that the watchman had taken the bribe amount to handed over to accused R.K. Dass as told to him by the complainant. He admitted that on the direction of CBI the watchman i.e. Sh. Praveen Kumar gave a telephonic call from his mobile phone to the mobile phone of accused Shiv Lakhan. He admitted that watchman Sh. Praveen Kumar had told accused Shiv Lakhan Mahato that he had received the bribe amount and he should come to the school to collect it. He stated that he does not remember as to whether the witness Sh. Harish Chander was able to hear and see the operation from his position whereas the other witness being the shadow witness was able to hear and see the operation. He stated that after some conversation the complainant had given the tainted amount to accused Shiv Lakhan Mahato and explained that it was for accused R.K. Dass for admission of daughter of the complainant. He stated that he does not remember as to who made the call to the principal to reach at the spot. He stated that it is not in his knowledge as to whether the complainant and accused Shiv Lakhan Mahato had conversation regarding the handing over of the tainted bribe amount to accused R.K. Dass. He denied that the Principal was deliberately called from his C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 44 / 91 house to lay a false trap. He stated that he does not know whether the complainant is a closed relative of Inspector Pankaj Bansal who was one of the member of the trap laying team.
23. PW13 Sh. Lalit Mohan, is an independent witness who stated that on 01.5.2009 he was introduced by the SP, CBI to one SH. M.K. Upadhyay, Sub Inspector, CBI. He was also introduced to Sh. Vipin Kumar Gupta and was informed that Sh. Vipin Kumar Gupta had lodged a complaint Ex.PW10/A against accused R.K. Dass, Principal, Central School for securing admission of his daughter. He stated that he had gone through the contents of the complaint and according to the same, on 01.5.2009 complainant had received a phone call from accused R.K. Dass demanding a bribe of Rs. 50,000/ for securing admission of his daughter. Thereafter, after some bargaining accused R.K. Dass had agreed to accept Rs.30,000/ and as such first installment was to be paid in the sum of Rs.10,000/. Thereafter, verification of the complaint was conducted on 02.5.2009 and he as well as the complainant were directed to attend the CBI Office on 2.5.2009. Thereafter, Digital Voice Recorder and blank cassettes were arranged wherein his introductory voice was recorded. Thereafter, Sh. Manish Upadhyay, himself and the complainant had reached Kendriya Vidyalaya, Sector 5, Dwarka and was handed over a DVR in recording mode and he was directed to go to the Office of accused R.K. Dass while he and Manish Upadhyay stood at C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 45 / 91 some distance. After some time the complainant had returned back and the DVR was taken back from him and was switched off. The complainant had informed that initially he was not allowed to enter the Office of accused R.K. Dass. However, after sometime he was allowed to enter the office of the Principal and had a conversation with him where he had demanded a sum of Rs.50,000/ from him which was reduced to Rs.30,000/ and first installment was to be paid in the sum of Rs.10,000/. The principal had directed him to come with the bribe amount of Rs. 10,000/ on 04.5.2009 by 9:00 am. Thereafter, they had returned to CBI Office. The recorded conversation was transferred to another cassette and before that the conversation was heard and verification memo dated 02.5.2009 Ex.PW10/C was prepared. The cassette was sealed in his presence and seal was handed over to him with direction to come to CBI office at 7:00 am along with the seal on 04.5.2009.
On 04.5.2009 he had reached CBI Office and had met Inspector Khetarpal, complainant Sh. Vipin Kumar Gupta, other CBI Officials and one more independent witness Sh. Harish Chandra from MCD. All the presents were explained about the complaint. The complainant had informed that due to blockage of his ATM he was not in a position to arrange tainted money, and he be given some more time to arrange the money. Since the time to pay the tainted amount to R.K. Dass had already been fixed for 9:00 am, therefore, the complainant was asked to make a call to accused R.K. Dass to allow him some more time. Thereafter, C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 46 / 91 complainant had spoken to accused R .K. Dass and had explained the situation to him. On this, the accused had asked him to come with the bribe amount up to 3:00 pm. Thereafter, the complainant had left CBI Office for arranging the money and returned back to CBI office at 12:30 pm. Thereafter, the denominations of the currency notes were noted down and the currency notes were treated with some chemical and a demonstration was given for tentative reaction of some chemical solution. He further stated that he was asked to touch the tainted bribe amount of Rs.10,000/ with his fingers and was asked to dip his fingers in fresh solution of Sodium Carbonate and water in a glass tumbler. Upon doing so, the colourless solution had turned pink in colour which was thrown away. Thereafter a trap kit containing some documents, including complaint and some other materials was prepared. Before handing over the tainted bribe amount, personal search of Vipin Kumar Gupta was conducted and tainted bribe amount of Rs.10,000/ was thereafter kept by him in the right side pant pocket of the complainant. The complainant had been directed not to touch the said tainted bribe amount and to hand over the same to accused R.K. Dass only on his demand or on his direction to some other person. Thereafter, all the team members had searched each other. A DVR was handed over to the complainant with direction to switch it on after reaching the spot to record the conversation which may take place between him and the accused.
He further stated that he was asked to act as a C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 47 / 91 shadow witness and to remain close to the complainant in order to watch the transaction between complainant and the accused and to give a signal either by rubbing his face or by giving a missed call or taking out the handkerchief after the transaction was over. The DVR was put in the left side pocket of shirt of the complainant. Upon reaching the spot they were told that Principal R.K. Dass was not present in the school and had left. Thereafter they had gone back and had informed the TLO. The DVR was switched off. Thereafter, the complainant was directed to make a call from his mobile phone to the mobile phone of accused R.K. Dass and was handed over DVR in switched on mode to record the conversation and it was put on speaker mode so that everybody could hear the conversation. During the conversation, the complainant and the accused had spoken about admission of daughter of the complainant and the complainant had replied that he had brought only Rs. 10,000/ as first installment. Accused R.K. Dass promised him that his daughter will get admission in the school. Thereafter, the DVR was switched off. After that after directions of the TLO, he and the complainant had proceeded towards the school to hand over the money to accused Shiv Lakhan. The DVR was then put in the recording mode and was put inside shirt pocket of the complainant. The other team members had taken their positions. After reaching the spot, the money was handed over by the complainant to a person who was later on identified as Praveen Kumar, Security Guard of the school under the impression that he C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 48 / 91 was accused Shiv Lakhan. The pre fixed signal was given to the TLO. Praveen Kumar was caught by his writs by the TLO and CBI inspectors and the DVR was taken back from the complainant and was switched off. Praveen Kumar informed that he had no knowledge whether the amount pertains to bribe. He had stated that he had accepted it on behalf of accused R.K. Dass to give it to him. Thereafter, whereabouts of Shiv Lakhan were asked from Praveen Kumar who informed that he was not in the school. Thereafter, Praveen Kumar had made telephone call to Shiv Lakhan from the mobile phone of the complainant which was heard by everyone present. During the conversation Shiv Lakhan had informed that he will come within 10 minutes to collect the bribe amount meant for R.K. Dass. Thereafter the tainted bribe amount was taken back from Praveen Kumar and was handed over to the complainant for being given to accused Shiv Lakhan. The team members had again taken different positions and he had again remained with the complainant as shadow witness. After some time Shiv Lakhan had reached the school and Shiv Lakhan and complainant had some conversation after which Shiv Lakhan had accepted the bribe amount. The pre fixed signal was given to the TLO, who reached the spot and had caught Shiv Lakhan by his wrists. The DVR was taken back from the complainant and was switched off. Accused Shiv Lakhan had informed that he had accepted the bribe amount on behalf of R.K. Dass and that accused R.K. Dass was also reaching the school. Thereafter, trap members had taken their positions. R.K. Dass had C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 49 / 91 arrived in the school and had conversation with complainant and Shiv Lakhan. All this while, he was standing nearby from where he could see them.
The complainant had spoken to accused R.K. Dass for confirmation of admission of his daughter to which accused R.K. Dass replied that he should bring the remaining amount next day morning and only thereafter his daughter will be admitted. Manish Upadhyay had reached the spot with other team members. The DVR was taken back again from the complainant and was switched off. The TLO had confronted the accused R.K. Dass regarding demand and acceptance of bribe amount. Thereafter, they had gone to the room of the Principal. The independent witness Harish Chander had taken out the bribe amount from the pocket of accused Shiv Lakhan and thereafter, hand washes of Praveen Kumar and Shiv Lakhan were taken. Thereafter, the witness had explained the entire posttrap proceedings as deposed by the earlier independent witness i.e. PW7 Sh. Harish Chander. He also identified the currency notes and the bottles of hand washes.
On being cross examined by Sh. Umesh Sinha, Ld. Counsel for accused no. 1 R.K. Dass he stated that he had remained in CBI Office with the complainant on 01.5.2009 till 5:00 pm. He stated that he does not know that daughter of the complainant had procured admission in the school on 30.4.2009. He stated that he had reached CBI Office at 7:00 am on 02.5.2009 and the complainant had reached there at 7:15 am. He stated that the transcription was prepared in his C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 50 / 91 presence on 02.5.2009 by Manish Upadhyay. He stated that he knew that watchman and the complainant had met earlier prior to the trap. He denied that there were no coordination between R.K. Dass and Shiv Lakhan regarding the bribe amount. He admitted that complainant had requested accused Shiv Lakhan to hand over the bribe amount to R.K. Dass.
On being cross examined by Sh. Anuj Sarma, Ld. Counsel for accused no. 2 Shiv Lakhan, he stated that as far as he remembers during the negotiations of bribe amount on 02.5.2009, Principal R.K. Dass had told the complainant to hand over the bribe amount to Shiv Lakhan. He stated that it is correct that name of accused Shiv Lakhan was not specifically mentioned in the agenda of the trap team but it was clear that any one who will accept the bribe amount on behalf of accused R.K. Dass will be trapped.
24. PW14 Avinash Dixit, is sanctioning authority who had passed sanction order against accused R.K. Dass.
25. PW15 Inspector Nikhil Malhotra, is the trap team member who deposed regarding Pretrap and post trap proceedings from 02.5.2009 to 04.5.2009. He also proved the arrest of both the accused persons. He has investigated the case and has filed the Charge Sheet. He denied that it had come to his notice on 04.5.2009 that daughter of the complainant had procured admission in Kendriya Vidyalaya, Sector V, Dwarka. He stated that he had come to know about C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 51 / 91 it during investigation. He stated that he had not collected call detail records of mobile phone of watchman Praveen Kumar. He stated that he cannot say as to what conversation had taken place between Praveen Kumar and the complainant on 01.5.2009 at about 1:00 pm reflected in the CDR.
26. Statement of accused was recorded U/s 313 Cr.P.C. in which accused had stated that he is innocent and has been falsely implicated in this case.
27. Accused no. 1 R.K. Dass has examined two witnesses in his defence.
28. DW1 Sh. Manmohan, stated that on 03.4.2009 at about 7:30 pm he had visited the school of his daughter i.e. Kendriya Vidyalaya, Dwarka, SectorV as she was studying in 9th standard and he wanted to change her shift from afternoon to morning. He stated that he had seen the admission list at the gate of the school where a huge crowd had gathered. The Principal had requested all the persons who were present at the school gate to come at 10:10 am. There was, however, one person whose child's name was not in the admission list. An altercation had taken place between him and the Principal of the school, for entering the school premises. He stated that the said unknown person had threatened the Principal of the school. Ld. Defence Counsel has shown four different photographs Mark A, Mark B, Mark C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 52 / 91 C and Mark D to identify the said person. The Witness upon seeing the photograph Mark D stated that the photograph seems to be of that person.
On being cross examined by Ld. Senior PP for CBI he stated that he had seen the person for the first time on 03.4.2009. He admitted that he had not seen the name of the daughter of that person in the list of admitted candidates. He admitted that many persons were annoyed and were shouting to get inside the school. He stated that the Principal had issued instructions at 7:15 am. He stated that thereafter he had gone to school thereafter on 18.4.2009.
29. DW2 Sh. Anjani Kumar, stated that he had gone to meet the Principal of the School Sh. R.K. Dass on 16.4.2009 in the afternoon as his son was studying in that school in Class VI. When he had reached outside the room of the Principal the person who was shouting that his name was Vipin Gupta was threatening the Principal that he has lots of contacts in CBI and since his child's name did not appear in the admission list, he will teach him a lesson. Ld. Defence Counsel has shown four different photographs Mark A, Mark B, Mark C and Mark D to identify the said person. The Witness upon seeing the photograph Mark D stated that the photograph seems to be of that person.
On being cross examined by Ld. Senior PP for CBI he stated that the said Vipin Gupta was extending threats inside the room of the Principal. He admitted that he was outside the room of the Principal. He stated that he had seen C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 53 / 91 only Vipin Gupta and the Principal inside Principal's room. He stated that he could not see any staff member inside the Principal's room. He stated that 78 public persons were standing with him a the gate of the Principal's room. He also stated that he had stayed at the gate of room of the Principal for about two minutes. He stated that in his presence, Vipin Gupta was saying that he has many contacts in CBI, since his child has not been given admission in the school, he will see him. He stated that he had not informed the Police or any other authority regarding threats extended to the Principal, however, he had expressed his concern to others who were standing at the gate of the room that such language should not be used against the Principal. He stated that he had not visited the school after 16.4.2009.
30. Defence Evidence was closed thereafter.
31. Before final arguments were heard, Ld. Senior PP for CBI had moved an application to examine Senior Scientific Officer who had prepared CFSL Report pertaining to intercepted conversation. The application was allowed.
32. PW16 Sh. Deepak Kumar Tanwar, proved the CFSL Report Ex.PW16/A pertaining to intercepted conversation. He has stated that on the basis of auditory examination of the questioned voices of accused R.K. Dass and accused Shiv Lakhan, they have revealed that they were similar in prospect of linguistic and phonetic features.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 54 / 91 On being cross examined by Counsel for the accused he stated that the science of spectrography is based on opinion and probability. He stated that two persons cannot have similar voices but mimicry of voice is possible.
33. After examination of the witness, additional statements of the accuseds pertaining to the CFSL report were recorded.
34. Final arguments were heard on behalf of Ld. Senior PP for CBI as well as Ld. Counsel for the accused. I have heard arguments at the bar and have carefully gone through the case file.
35. It is submitted by the Ld. Defence Counsels that the witnesses joined in the investigation namely Sh. Harish Chander and Sh. Lalit Mohan were not independent witnesses. It is submitted that they were interested witnesses and have deposed at the instance of the CBI. However, Ld. Senior PP for CBI has submitted that there is nothing in cross examination of PW7 Sh. Harish Chander and PW13 Sh. Lalit Mohan which could discredit their integrity as independent witnesses.
36. After hearing Ld. Senior PP for CBI as well as Ld. Defence Counsels and going through the testimony of the independent witnesses, I am of the opinion that there is no material on the file to suggest that they frequently associate C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 55 / 91 with CBI as witnesses or that they are otherwise under the pressure of the CBI. Unless there is any specific material against any witness, they cannot be called as interested witnesses or witnesses not independent of the prosecution. There is no material on the file which could impeach their credit as witness. Every witness is deemed to be independent unless proved otherwise. In this regard, it is relevant to quote an authority reported as State of Gujarat vs. Raghnathan Vamanra Baxi AIR 1985, SC 1092, wherein while dealing with such a contention, Hon'ble Supreme Court observed in paragraph 5 as under:
"In appreciating oral evidence, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter.
Whether the witness is found to be partly truthful or to spring from tainted sources, the Court may take the precaution of seeking some corroboration, adequate and reasonable to C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 56 / 91 meet the demands of the situation, but a court is not entitled to reject the evidence of a witness merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating agencies. If their association with the investigating agencies is unusual, frequent or designed, there may be occasion to view their evidence with suspicion. But merely because they are called in to associate themselves with the investigating as they happened to be available or it is convenient to call them, it is no ground to view their evidence with suspicion. Even in cases where officers who, in the course of their duties, generally assist the investigating agencies, there is no need to view their evidence with suspicion as an C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 57 / 91 invariable rule. For example, in rural areas, investigating officers would ordinarily think of calling in the village officers, such as, the Headman, the Patel or Patwari to act as punch witnesses, as they are expected to be respectable persons of the locality. It does not mean that their evidence should be viewed with suspicion because they are government servants or because they are generally associated with investigating agencies whenever there is a crime in the village. For that matter, it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. The Court may be justified in looking with suspicion upon the evidence of officers who have been demonstrated to have displayed excess of zeal in the conduct and success of the prosecution. But to reject the evidence of all C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 58 / 91 official witnesses as the High Court has done in the present case, is going too far. We think that it is extremely unfair to a witness to reject his evidence by merely giving him a label."
37. Similarly, in another authority reported as State of UP Vs. Zakaullah AIR 1991 SC 1417, while dealing with such a contention, Hon'ble Supreme Court observed in paragraph 10 as under:
"The necessity for "independent witness" in cases involving police or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 59 / 91 phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action.
The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever."
38. In view of the above discussion and the law, referred to above, I am satisfied that PW7 Sh. Harish C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 60 / 91 Chander and PW13 Sh. Lalit Mohan are independent witnesses. Their evidence cannot be faulted on any ground particularly the ground of their not being an independent witnesses. The submission is, as such, without merit.
39. Ld. Counsel for the accuseds also states that the testimony of the witnesses of CBI cannot be relied upon even for the purpose of corroboration since the independent witnesses have deposed under threat of CBI and official witnesses of CBI are interested witnesses. In this regard para 10 of the Sate of U.P. Vs. Dr. G.K. Ghosh, 1984 SCC (Cri.) 46 is quite relevant which is extracted as under:
"It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complainants of harassment by a Government Officer making a demand for illegal gratification, is protected and the role of his department in the protection of such citizens is vindicated. Perhaps it can be contented that he is interested C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 61 / 91 in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same time it must be realized that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 62 / 91 is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The present case appears to be a case of that nature. If the circumstantial evidence is of such a nature that it affords adequate corroboration to the prosecution case, as held by the Ld. Special Judge, the appeal must succeed. If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily must fail."
40. It is next submitted by Ld. Counsel for the accused that transcription has been manipulated to suit the needs of the prosecution case. It is submitted that original recording device has not been produced in the Court and this shows that the transcription is not correct. I, however, do not agree with this contention as the cassette containing the intercepted conversation was played in the Court at the time of examination of PW 10 Sh. Vipin Kumar Gupta and he has identified his voice and that of the accuseds. This witness has been cross examined at length by the accused and there is nothing of any significance in the cross examination which could point out that the transcription has been tampered with C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 63 / 91 to suit the needs of the prosecution.
Ld. Senior PP for CBI has pointed out that the original recording devices are very few and each one cannot be produced in the Court as they are required in many cases and as such, the cassettes, in which the transcription was subsequently transferred, have been produced in the Court. The submission of Ld. Defence Counsels is, as such, without merit.
41. It is next submitted by Ld. Counsel for accused no. 1 that the specimen voice of the accused has been recorded contrary to the law and as such, the same cannot be read in evidence. However, I have carefully gone through the specimen voice recording memo Ex.PW7/B wherein it is recorded that the accused had given his voice voluntarily. The independent witnesses have also stated so. The memo bears the signatures of independent witnesses i.e. PW 7 Sh. Harish Chander and PW 11 Sh. Lalit Mohan. As such, it cannot be said that his sample voice was recorded forcibly. The submission, as such, is without merit.
42. The other contention of the Ld. Defence Counsel is that it was Praveen Kumar who was the real culprit since he had accepted the bribe amount in his independent capacity.
I do not agree with this contention since nothing on record reflects that there was any conversation or any deal was struck between the complainant and Praveen Kumar for C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 64 / 91 acceptance of bribe for admission of child of the complainant. On the contrary, Praveen Kumar was not even opening the gate of the school to the complainant which has been corroborated by all the witnesses and he has stated in his testimony that he has taken money because as a guard of the school it was his duty to receive if anything had to be given to someone in School. In any case it has also been proved beyond doubt that money was handed over to Praveen Kumar under mistaken identity and therefore, this contention is also devoid of any merit.
Also, if the CBI had to manufacture the scene or the trap they would have conveniently ignored the transaction which was the wrong transaction under mistaken identity to Sh. Praveen Kumar. The fact that the entire wrong proceedings qua Sh. Praveen Kumar have also been reflected in the proceedings prove the authenticity, genuineness and truthfulness of the proceedings which have been corroborated by the independent witness, shadow witness, the complainant and the official witness.
43. Ld. Counsel for accused R.K. Dass further states that the admission of Baby Khushi Gupta, Daughter of the complainant was done by the Committee which was specially created for the said purpose as has been proved by PW9 Sh. Surender Kumar. He, therefore, states that accused R.K. Dass had no role to play in the admission of the daughter of the complainant and her name had already appeared in the 4th C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 65 / 91 list prepared by the Committee itself as per the deposition of PW9 Sh. Surender Kumar.
Ld. Senior PP for CBI on the other hand states that PW9 was merely a Member of the admission committee and has clearly stated in his examination in chief that the purpose of the committee was to assist the Principal in finalizing the candidates for admission. However, the Principal was the the over all incharge of the admission and the only job as a member for him was to scrutinize the forms and categorize them accordingly. Ld. Senior PP for CBI has also drawn my attention to Statement of PW9 and states that the witness had clearly stated that that the list Ex. PW9/E which is list no. 4 where the name of daughter of the complainant appears at serial no. 6 was not displayed on the school notice board.
After hearing the Ld. Senior PP for CBI and the Ld. Defence Counsel and having gone through the statement of PW9 Sh. Surender Kumar, I do not agree with the contention of the Ld. Counsel for the accused that accused R.K. Dass was not in position of authority to decide the admission of daughter of the complainant. Since PW9 Sh. Surender Kumar has clearly mentioned that "The purpose of Committee was to assist the Principal in finalizing the candidates for admission. However, the Principal was the overall InCharge of the admission process and the only job for him was to scrutinize the forms and categorize them accordingly." He has also stated that "the fourth list was not displayed on the school notice board." It is therefore, clear C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 66 / 91 that it was the Principal i.e. accused R.K. Dass who was the final authority to admit the child in the School and since the fourth list was not out as it was not displayed, the fact which has been corroborated by other witnesses even if the name of the daughter of the complainant had appeared in the list which was not yet public, the accused R.K. Dass being the exclusive authority could have deleted the name of the daughter of the complainant before the list was out.
Moreover, as per PW13 Sh. Lalit Mohan, who is the shadow witness since the fourth list was not displayed and after transaction of first installment of Rs.10,000/ when the complainant had asked R.K. Dass as to whether his daughter will be admitted in the school, the accused had told him that he should first pay the rest of the bribe amount the next day and only then the child will be admitted. In my opinion, therefore, the testimony of PW9 Sh. Surender Kumar and PW13 Sh. Lalit Mohan read with testimony of the complainant and other witnesses proves beyond doubt that accused R.K. Dass was the exclusive authority who could admit the child in the school and had demanded bribe amount for the same before the fourth list was made public. Therefore, the contention of the Ld. Counsel that there was no motive or role of accused R.K. Dass in admission of child of the complainant is without any merit.
44. Ld. Counsel for accused R.K. Dass has drawn my attention to the list which he had tendered in evidence during the course of the final arguments which was not C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 67 / 91 disputed by the Ld. Senior PP for CBI and states that the daughter of the complainant had been admitted in Kendriya Vidyalaya, Janak Puri on 02.5.2009, therefore, his testimony is doubtful as he has stated that his daughter had not got admission in any school.
Ld. Senior PP for CBI on the other hand states that there is no evidence that this admission list was in the notice of the complainant.
Having heard both sides, I do not find any force in the contention of the Ld. Defence Counsel since even if complainant's daughter had got admission in Kendriya Vidyalaya, Janak Puri on 02.5.2009, it has no reflection or bearing on the present case as the demand of bribe was made and the bribe amount was accepted in this case pertaining to admission of the child in Kendriya Vidyalaya, Dwarka.
45. Ld. Counsel for the accused has also challenged the genuineness of all the CDs of intercepted conversation and states that there is every likelihood that the same have been interpolated or interfered with. He states that there is discrepancy of few seconds in the CDRs where duration of the calls is mentioned and in the transcript of the intercepted conversation. However, after hearing him and going through the CD of the intercepted conversation and the transcript of the conversation as well as the CFSL report and the CDRs I do not find any merit in this contention.
He has also stated that the voice quality was poor and, therefore, CFSL report as well as intercepted C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 68 / 91 conversation cannot be considered to be proved beyond reasonable doubt to convict the accused. I, however, do not agree with this contention also since the CFSL report regarding the genuineness of the voice is corroborative piece of evidence and since in the present case the complainant as well as the independent witnesses and the official witnesses have positively identified the voice of the intercepted conversation when the same was played in the Court and have stated that the conversation which was played in the Court was genuine and was recorded in their presence and a true transcription thereafter had been prepared which has been placed on record; it cannot be said that the prosecution has failed to prove the genuineness of the intercepted conversation beyond reasonable doubt.
46. The Ld. Counsel has also pointed out the discrepancy in the statement of witnesses regarding the complainant visiting the CBI office in the morning on the day of trap and informing CBI that his ATM had been blocked and regarding the time of switching Off of the DVR. I do not find them to be major discrepancies since the complainant as well as the witnesses have supported the prosecution case on all material points and minor discrepancies which are bound to take place due to lapse of time cannot have any bearing on the truthfulness of testimony of witnesses.
47. The Ld. Counsel for the accused has again and again insisted that the name of the daughter of the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 69 / 91 complainant had already figured in the 4th list on 30.4.2009. therefore, there was not question of demanding the bribe amount from the complainant. I, however, do not agree with this contention since the intercepted conversation clearly mentions the demand of bribe which has been supported by the complainant and the independent witnesses and it is nowhere mentioned that the 4th list had been made public rather it is on record that the 4th list was yet to be displayed and the demand of money was for this reason only that the name of the daughter of the complainant will appear in this list which was to be made public at a later date.
It is not clear as to why the Principal Accused R.K. Dass was not contacted with the complainant over telephone whose admission was pending in his school. There is also no explanation as to why there were conversation regarding the transaction of money, if the admission had already taken place and if the admission had taken place already why the principal was asking for money because the fees is to be deposited after admission only if the admission list is out and the fees is deposited at the fee counter. The amount in question which gets reflected in the conversation is Rs. 30,000/ which cannot be the school fees or the admission fees, as far as Kendriya Vidyalaya School is concerned.
48. Ld. Counsel for accused has also contented that since principal was not present in the school to accept the bribe amount it cannot be presumed that he was involved in C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 70 / 91 demand of bribe. I, however do not agree with this contention since the conversation between accused R.K. Dass and Shiv Lakhan Mahato clearly mentions that accused Shiv Lakhan Mahato had told accused R.K. Dass that Vipin Kumar had arrived with the money and, therefore, he should come to the school. This call was made to accused R.K. Dass after the bribe amount was accepted by accused Shiv Lakhan Mahato on behalf of accused R.K. Dass. Accused R.K. Dass had arrived at the spot and accused Shiv Lakhan Mahato had disclosed in presence of the CBI officials and the independent witnesses that this bribe amount had been accepted on behalf of accused R.K. Dass for admission of the child. Even otherwise, during conversation of accused R.K. Dass with the complainant accused R.K. Dass had not reduced the bribe amount from Rs. 30,000/ despite request of complainant Sh. Vipin Kumar.
Therefore, when the recovery of this amount is seen in light of the intercepted conversation and the deposition of the independent witnesses as well as the statement of the complainant and official witnesses I am of the opinion that the prosecution has been successful in proving the demand of bribe and acceptance thereafter beyond reasonable doubt and have also been able to prove the involvement of accused Shiv Lakhan Mahato as he was fully aware about the demand of bribe amount and it was he himself who had informed the principal that he had told the complainant regarding the bribe amount and breakup thereafter.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 71 / 91 Ld. Counsel contented that accused Shiv Lakhan Mahato had come to the school after PW Sh. Praveen Kumar had informed him that Sh. Vipin Kumar had come to the school. Sh. Vipin Kumar had spoken to the principal who had asked him to hand over the bribe amount to accused Shiv Lakhan Mahato. Therefore, it cannot be said that accused Shiv Lakhan Mahato was not aware of the entire deal. Therefore, whether he had any role to play in the admission process or not becomes totally irrelevant.
49. It has also been stated by Ld. Counsel for accused that the conversation between the Watchman Sh. Praveen Kumar and accused Shiv Lakhan Mahato has not been recorded which is fatal to the case. I, however, do not agree with this contention since it was not on the agenda of CBI Trap Laying Team that they will have to confront watchman Sh. Praveen Kumar and will have to get a call made from watchman Praveen Kumar. Therefore, rather it shows the truthfulness of the case since there was no instrument of any kind to intercept this conversation. Moreover, the witnesses and the complainant have clearly mentioned that what conversation had taken place between Watchman Sh. Praveen Kumar and accused R.K. Dass and between Watchman Sh. Praveen Kumar and accused Shiv Lakhan Mahato.
50. Coming to the testimony of the Defence Witnesses, Ld. Defence Counsel for accused R.K. Dass has C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 72 / 91 stated that both the defence witnesses have clearly deposed that the complainant was a enemical towards the Principal accused R.K. Dass and had threatened him to falsely implicate him in a criminal case through CBI. I, however, do not agree with this contention since though the accused no. 1 R.K. Dass has examined two witnesses in his defence, however they have only deposed that they had seen a man who has been vaguely identified by a photograph as they have deposed that " the photograph seems to be of the same person." Moreover, they have only stated that he was extending threats to the Principal, they do not know anything regarding the present case.
DW2 Sh. Anjani Kumar on the other hand, states that he had witnessed these threats on 16.4.2009 whereas, there is intercepted conversation and meeting between the accused and the complainant thereafter which has been proved to be on a mutual convenience basis. In case, accused R.K. Dass had been threatened by the complainant, he should have immediately lodged a complainant with the higher authorities along with the admission form of the child; instead of talking to complainant on phone. It only proves that accused R.K. Dass did not hold any grudge against the complainant as he neither lodged a complainant nor refused to speak to the complainant on the mobile phone or to meet him after school hours in the school premises as happened on the day of trap.
51. Ld. Counsels for accuseds have again and again C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 73 / 91 argued that it was the security guard Praveen Kumar who was involved in the incident and neither Shiv Lakhan nor R.K. Dass had anything to do with the entire episode. However, the relevant conversation between the complainant and Praveen Kumar shows that Praveen Kumar was not opening the gate of the school for the complainant to enter and the complainant had to force him to open the gate by informing him that he had spoken to the Principal. The complainant had asked the security guard to speak to the Principal but he had refused to speak to him. Praveen Kumar had also told the complainant that he does not know anything about the deal when he says "Mujhe kya pata, tumhare se baat huyi thi na?"
The guilt of accused Shiv Lakhan is also clear from the recorded conversation between Shiv Lakhan and the complainant to prove that he had knowledge that the name was being taken towards bribe for admission of the child and also knew that the deal had been settled for Rs. 30,000/ which is clear from the conversation when the complainant asked Shiv Lakhan ".... tumko pata hai kitne ki baat hui thi?" to which Shiv Lakhan had replied "3 par". The complainant had again asked him, "3 ya 30?" to which he had replied, "Haan Wahi.....". Complainant had asked Shiv Lakhan "Advance kitne ke liye bola tha?" to which Shiv Lakahn had replied, "20". The complainant had again told Shiv Lakhan, "10.......10 ke liye bola tha .... advance 10 ..... 20 baad main ...." Even thereafter, the conspiracy between Shiv Lakhan and the Principal is clear when Shiv Lakhan C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 74 / 91 informs accused R.K. Dass that Vipin Kumar has brought the money and what he should do with it and asked him to come to the spot immediately, "..... Achha haan.... Shiv Lakhan bol raha hoon ... o jo Vipin Kumar Gupta .... paise leke aaye hain...... ka kari hain..... le leyi...... haan aa jai, ahi jagah aa jai.... turant pahuncho turant". The fact that accused R.K. Dass had reached the spot immediately thereafter and all the witnesses and the complainant have deposed that Shiv Lakhan had accepted it on his behalf and opened. Shiv Lakhan informing him that he had come to the school to accept it, points out to his guilt.
Moreover if accused Shiv Lakhan Mahato was not aware about the deal, it is not clear neither he has lead any evidence as to why he had come to the gate when Praveen Kumar had told him that Vipin Gupta had come with Rs.10,000/. On the contrary, it is clear from the statement of the independent witnesses and statement of PW Sh. Praveen Kumar that when Praveen Kumar had informed him that Sh. Vipin Gupta had come with Rs.10,000/, accused Shiv Lakhan Mahato had specifically requested PW Praveen Kumar to ask Vipin Gupta to wait for him at the gate. It points out that accused Shiv Lakhan Mahato was also involved in the entire transaction.
As far as the role of Praveen Kumar is concerned, he has specially mentioned in his statement that the the complainant along with one more person had come to the School about 3:30 pm on 04.5.2009 and had asked for the mobile phone number of R. K. Dass. Therefore, since he C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 75 / 91 did not have the number they had gone to the guard Room and had told him that they had contacted R.K. Dass on his mobile and he had asked him to deliver the money to him and he is coming. It will be noteworthy to mention that R.K. Dass had told that the money be delivered to Shiv Lakhan and he is coming to the school. The complainant naturally would have thought that Praveen Kumar was Shiv Lakhan as even if he might have met the watchman when he used to visit school earlier, there is no mention in the entire testimony of the witnesses that his name was known to him. It is also clear that he did not know as to who Shiv Lakhan was which proves the truthfulness of the statements of the witnesses and the case of CBI.
52. As per law to prove it case, the prosecution was to prove the demand of bribe and acceptance thereof, conspiracy between the accused persons and misuse of their official position.
When the evidence in this case is seen in the light of above, I find enough oral evidence in the statements of witnesses namely PW10 Sh. Vipin Kumar Gupta , PW7 Sh. Harish Chander, PW13 Sh. Lalit Mohan and PW12 Sh. Dheeraj Khetarpal, regarding the motive for which bribe was being demanded, acceptance of bribe and recovery thereof from accused no. 2 Shiv Lakhan Mahato. The recovery of bribe money has been deposed to by all material witnesses and they have identified the 24 currency notes and even otherwise the currency notes which were recovered from the C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 76 / 91 accused Shiv Lakhan Mahato matched with the currency notes mentioned in the Handing Over Memo. There is tape recorded conversation of accused R.K. Dass vide Ex.PW10/B wherein also demand has been proved. Similarly, there is scientific evidence in the form of presence of phenolphthalein powder and examination of his voice. Not only this, PW 1 Sh. Newson Kumar has proved the call details of telephone no. 9868586944 pertaining to accused R.K. Dass and 9868991959 pertaining to accused Shiv Lakhan Mahato. In the tape recorded conversation Ex.PW10/B they are shown to be in touch with the complainant on his telephone No. 9268789141. In view of the evidence discussed above, I am satisfied that there was motive for demand of bribe by accused R.K. Dass and he had accordingly demanded it from complainant Sh. Vipin Kumar Gupta, accepted it and the same was recovered from accused Shiv Lakhan Mahato. As such the submission that neither was there motive to demand bribe, nor there was any demand nor acceptance thereof by the accused persons, is incorrect. For the same reasons, it cannot be said that there was no recovery from accused Shiv Lakhan Mahato which he had accepted on behalf of accused R.K. Dass.
53. I, therefore, hold that the prosecution has been successful in proving beyond reasonable doubt that while working as a public servant, i.e., Principal, Kendriya Vidyalaya, SectorV, Dwarka, New Delhi, he obtained illegal gratification other than legal remuneration as a motive or C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 77 / 91 reward to get the daughter of the complainant admitted in the School and while doing so he, by corrupt or illegal means, or by otherwise abusing his position as such public servant, demanded Rs. 50,000/ from complainant Sh. Vipin Kumar Gupta which was later on settled for Rs. 30,000/ and his peon i.e. accused no. 2 Shiv Lakhan Mahato was caught red handed while accepting Rs. 10,000/ from the complainant on behalf of the Principal i.e. accused no. 1 R.K. Dass on 04.5.2009. The oral evidence, transcription as well as phenolphthalein powder test, unmistakably point to the guilt of the accused persons.
54. Accordingly, both the accused persons are convicted separately under Section 120B r/w Section 7 & 13(2) read with 13(1)(d) of the PC Act. Accused no. 1 R.K. Dass is further convicted under Section 7 and 13(2) read with 13(1)(d) of the PC Act substantively. Accused no. 2 Shiv Lakhan Mahato is further convicted under Section 13(2) read with 13(1)(d) of the PC Act substantively.
55. To come up for arguments on quantum of sentence on 07.02.2013 at 2:00 pm. Announced in the open court on 31st Day of January, 2013.
(SWARANA KANTA SHARMA) SPECIAL JUDGE (CBI05), NEW DELHI/ 31.01.2013 C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 78 / 91 IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE, CBI05, PATIALA HOUSE COURTS, NEW DELHI.
CC No. : 10/12FIR no. : RC22(A)/2009 Unique Case ID no. : 02403R0336692010 Title : State (CBI) Vs.
1. R.K. Dass S/o. Late Sh. Sona Dass, R/o A27, National Apartment, Sector3, Plot no. 4, Dwarka, New Delhi.
2. Shiv Lakhan Mahato, S/o. Sh. Bihari Mahato R/o. C3/461, Nangli Vihar Extn., Najafgarh, New Delhi 43.
U/s : Section 120B IPC & 7, 13(2) r/w 13(1)(d) of P.C. Act 1988 07.02.2013 (Appearances) Sh. Akshay Gautam, Ld. Senior P.P. for CBI.
Sh. Umesh Sinha, Advocate, Ld. Counsel for accused no. 1 R.K. Dass along with accused.
Sh. Dilip, Advocate, Ld. Counsel for accused no. 2 Shiv Lakhan Mahato along with accused.
ORDER ON SENTENCE.
1. Vide my separate judgment dated 31.01.2013, accused R.K. Dass and accused Shiv Lakhan Mahato have C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 79 / 91 been convicted.
2. I have heard the arguments on the point of sentence at the bar and have carefully gone through the file.
3. It is submitted by the Ld. Public Prosecutor that the allegations against the accused persons are quiet serious. They had demanded and had accepted bribe of Rs.10,000/ to get the child of the complainant admitted in their School. It is submitted that accused R.K. Dass was the Principal and accused Shiv Lakhan was a Peon in the school and they were expected to discharge their duties faithfully. However, they failed in doing the same. It is prayed that they may be punished severely.
4. On the other hand it is submitted by the Ld. Defence Counsel that accused R.K. Dass comes from an educated family background. He is Post Graduate from Delhi University and has done lot of Social work during his student life and was one of the Chief Coordinator of Delhi University Student Union who had worked for the promotion of National Integration. It is stated that he has since retired and is about 61 years of age. He is heart patient and is suffering from other medical problems. He, therefore, states that lenient view be taken in this case.
5. It is submitted by Ld. Counsel for accused Shiv Lakhan Mahato that accused Shiv Lakhan Mahato was only a C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 80 / 91 Peon of accused R.K. Dass and had no role to play in the admission process and, therefore, a lenient view be taken against him as he does not have criminal history.
6. I have heard arguments on behalf of both the accused persons. After hearing them I am of the opinion that it is not disputed that accused Shiv Lakhan Mahato was Peon in the School and did not have any role in the admission process. However, I have already discussed in my Judgment that he was part of the conspiracy to demand and accept the bribe amount for admission of a child in the school and had used is official position as a public servant and had aided accused R.K. Dass in Commission of the offence. And accused no. 1 was working as a Principal of Kendriya Vidyalaya School and needless to say any teacher or Principal in our Indian Tradition is seen in awe and respect. Teachers are expected to be torch bearers of the society who have not only the future of our country but the new generation in their hands. Therefore, if teachers indulge in corruption, it cannot be taken lightly. God and Teachers have been kept at a pedestal where Teacher must be worshiped even before God as it is only through the Guru or teacher that we find the right path in life. But if the torch bearers of the next generation forget their path; what will happen to this country who is being eaten systematically by monster of corruption.
I wonder if now days "Money is God" for a few in the field of teaching too. If that be so, they will teach the same to the students.
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 81 / 91 The new generation is in the hands of Teachers. If even the teachers will indulge in corruption, they will be preparing the next generation for corruption only. If a child gets admission on the basis of corruption, what respect he will have for the one's who should be most respected and have been respected since time immemorial.
No doubt, majority of Teachers of this country are still honest, principled, dedicated, sincere and satisfied within their means. Therefore, there is all the more reason to punish the few who are not. In my opinion, the teachers of this country are the real leaders, the real torchbearers, because the responsibility of making the present and next generation corruption free is upon them which will ultimately ensure a corruption free society and the country. Needless to say, the students are like clay who are given in the able hands of the teachers and they will become what the teachers will make them.
7. While dealing with the question of sentence, in an authority reported as B.G. Goswami Vs. Delhi Administration, 1973 SCC (Crl.)796, observed as under:
"Now the question of sentence is always a difficult question, requiring as it does proper adjustment and balancing of various considerations which weight with a judicial mind in determining its appropriate quantum in a given C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 82 / 91 case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral part, but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both loose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 83 / 91 hardened criminal.............."
8. Similarly, in an authority reported as Modi Ram Vs. State of M.P., AIR 1972 SC 2438, observed as under:
"The only question with which we are concerned, as observed at the very outset of the judgment, is the question of sentence. The conviction has to be held to be fully justified on the record. Now the question of sentence is always a difficult and complex question. The accused persons found guilty may be hardened or professional criminals having taken to the life of crime since long, or they may have taken to crime only recently or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrong action seriously injuring the feelings and sentiments of the accused. Human nature being what it is men are at times moved by the impulse of the moment rather than by rational, cool, calculated estimate of the future good or evil. At such moments C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 84 / 91 they are ordinarily inclined to be ready to face any future evil falling short of the inevitable. Keeping in view the broad object of punishment of criminals by Courts in all progressive civilized societies true dictates of justice seen to us to demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happens to be a member. In considering the adequacy of the sentence which should neither be too severe nor too lenient, the Court, therefore, should keep in minid the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and station in life of the offender. "
9. Similarly, in an authority reported as State of UP Vs. C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 85 / 91 Sattan @ Satyendra and Others 2009 III AD (SC) 492 Hon'ble Supreme Court observed in para 14, as under:
"Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But, in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."
C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 86 / 91
10. The evil of bribery is on the rise in our society and it is adversely affecting all branches of our administration. It is very difficult for an ordinary man to get anything done in any Government Office. The Hon'ble Supreme Court expressed its concern on rising corruption in a case reported as Surain Singh Vs. State of Punjab 2009II AD (SC) 589, while dealing with the case of a Patwari who had accepted an illegal gratification of Rs. 300/, Hon'ble Supreme Court observed in paragraphs 7 and 8 as under: (7) "Day in and day out the gigantic problem of corruption in the public servants is on the increase. Large scale corruption retards the nation building activities and everyone has to suffer on that count. Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 87 / 91 post".
(8) "Considering the peculiar facts of the case, we are of the view that the custodial sentences of one year, which is minimum prescribed, would meet the ends of justice".
11. Coming to the present case, I must say that the primary and onerous fault in demanding and accepting bribe lies with a senior officer i.e. the convict R.K. Dass wile the criminality gets diluted when it comes to convict Shiv Lakhan Mahato, who is a lower ranking peon and no option but to follow the dictates of his superior/ boss. Nonetheless convict Shiv Lakhan Mahato knew that what he was doing was wrong and therefore, he has also conducted criminal misconduct in accepting the bribe on behalf of convict R.K. Dass.
The Offence committed by the convicts is quite serious and a bribe seeker deserves no sympathy. However, considering the overall facts and circumstances of case, the age and medical history of the accused I sentence accused no. 1 R.K. Dass to undergo Rigorous Imprisonment for a period of three years under Section 120B IPC r/w Section 7 and 13 (2) of PC Act along with fine of Rs.25,000/, in default of which to undergo further Rigorous imprisonment for three months.
I further sentence the convict R.K. Dass to C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 88 / 91 undergo Rigorous Imprisonment for three years under Section 7 of PC Act along with fine of Rs.25,000/, in default of which to undergo further Rigorous Imprisonment for three months.
I further sentence the convict R.K. Dass to undergo Rigorous Imprisonment for a period of three years under Section 13(2) read with Section 13(1)(d) of PC Act along with fine of Rs.20,000/, in default of which to undergo further Rigorous Imprisonment for three months.
12. All the sentences shall run concurrently as they arise from the same transaction of offence.
13. However, considering the facts that accused no. 2 Shiv Lakhan Mahato had no role to play in the admission process and it was accused R.K. Dass who was the sole InCharge who could admit or deny admission to child in the school, I am inclined to take lenient view and sentence accused Shiv Lakhan Mahato to undergo Rigorous Imprisonment for a period of one year under Section 120B IPC r/w Section 7 and 13(2) of PC Act along with fine of Rs.5,000/, in default of which to undergo further Rigorous imprisonment for fifteen days.
I also sentence the convict Shiv Lakhan Mahato to undergo Rigorous Imprisonment for a period of one year under Section 13(2) r/w Section 13(1)(d) of PC Act along with fine of Rs.10,000/, in default of which to undergo further Rigorous imprisonment for fifteen days.
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14. Both the sentences shall run concurrently as they arise from the same transaction of offence.
15. Benefit of Section 428 Cr.P.C. be given to both the Convicts as per law.
16. Bail Bonds of convicts are hereby cancelled and their sureties stand discharged. The documents, if any, of the sureties be returned against proper receipt after getting the endorsement, if any, cancelled.
17. The case property, i.e., amount of Rs.10,000/ be returned to the complainant immediately as per law. Rest of the case property is forfeited to the Sate to be disposed of as per law after the time of appeal is over.
18. Documents seized, if any, in the case be returned to the concerned Department on proper receipt by the IO after the time of filing of appeal is over.
19. At this stage, an application u/s. 389 Cr.P.C. is moved by Ld. Counsels for convicts. Copy supplied to Sh. Akshay Gautam, Ld. Senior PP. Fine of Rs. 15,000/ has been deposited by convict Shiv Lakhan Mahato. Accused R.K. Dass has deposited fine of Rs.60,000/ today. He has been allowed to deposit the remaining fine of Rs.10,000/ by tomorrow i.e. 08.02.2013.
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20. Heard on the application moved. It is stated that applicant/convict would be preferring an appeal against the judgment of this court and it is requested that order on sentence may be suspended and the convict may be granted bail till filing of appeal.
21. Considering the fact that he has been regularly appearing during the trial, the application is allowed and sentence is suspended till 08.4.2013 subject to the applicants/convicts R.K. Dass and Shiv Lakhan Mahato furnishing personal bond in the sum of Rs. 25,000/ with one surety in the like amount. Bail bonds are furnished. Bail bond of accused Shiv Lakhan Mahato has been accepted. However, accused R.K. Dass has been granted interim bail till tomorrow.
22. Copy of the judgment and order be given to the convicts free of cost immediately.
23. File be consigned to Record Room.
Announced in the open court on 7th February, 2013.
(SWARANA KANTA SHARMA) SPECIAL JUDGE (CBI05), NEW DELHI/ 07.02.2013 C.C. NO. 10/12 State (CBI) Vs. R.K. Dass & another Page no. 91 / 91