Delhi District Court
Cbi vs . R.K. Sharma And Others on 20 November, 2014
IN THE COURT OF SH AJAY KUMAR KUHAR:
SPECIAL JUDGE, CBI (P C Act)-06 ,CENTRAL, DELHI.
CBI VS. R.K. SHARMA And Others
ID No. 02401R0120252000
CC No. 08/2012
RC NO. 91(A)/1997/CBI/ACB/ND
C.B.I. Vs. 1- R.K. Sharma S/o Sh. Giriraj,
R/o Flat No.314, RPS
Block, DDA Flats, Mansrover
Park, Shahdara, Delhi.
2-Mohd. Yunus Siddiqui @
Raja @ Chhotu @ Sunny, R/o H.
No. 5051, Daigah Sabri, Opp:
Khalsa Girls School, Darya Ganj,
Delhi.
3- Mohd. Riaz S/o Sh. Mohd.
Mustaq, R/o 4005, Gali Khan
Khana, Jama Masjid, Delhi-6.
4- Mohd. Tahir S/o Sh. Mohd.
Annis Siddiqui, 1972, Javed-ki-
Building, Kucha Chalan, Darya
Ganj, Delhi.
5- Mohd. Ayub @ Jain S/o Abdul
Aziz Khan, R/o H. No.5051,
Daigah Sabri, Darya Ganj, Delhi.
Date of Institution : 15.02.2000
Date of receipt in the
CBI Vs R. K. Sharma and Ors CC No. 08/2012 1/113
Court : 12.05.2012
Judgment Reserved : 28.10.2014
Judgment Delivered : 18.11.2014
JUDGMENT:
FACTS The CBI version, in brief, is that a case bearing No. RC 91(A)/97- DLI was registered on 24.11.1997 on the basis of a complaint made by Sh. Vivek Dhir, SI,CBI, ACB, New Delhi on the allegations that accused R.K. Sharma (A-1), who was working as Jr. Telecom Officer (JTO), Mahanagar Telephone Nigam Limited (MTNL), Delhi Gate, Incharge of Section 33, Delhi Gate Exchange, entered into a criminal conspiracy during April to August 1995, with co-accused persons Mohd. Yunus Siddiqui @ Raja @ Chhotu @ Sunny (A-2), Mohd. Riaz (A-3) Mohd. Tahir (A-4) , and Mohd.Ayub @ (A-5) , alongwith some unknown Officials of MTNL and private persons, with an object to obtain two telephone connections by impersonation, in the name of Mohd. Aslam r/o 2684, Gali Garahayya Daryaganj, New Delhi and Basharat Ali r/o 2641, Kucha Chelan, Daryaganj, Delhi. As per the prosecution case at the instance of accused Mohd. Yunus Siddiqui (A-2), accused Mohd. Riaz A-3 and Ayub @ Jain A-5 submitted forged documents by impersonation and obtained two telephone connections i.e. telephone numbers 3278646 & 3278630 in the names of Mohd. Aslam and Basharat Ali respectively. Accused Mohd. Riaz (A-3) had submitted his application, along with banker's cheque No. CBI Vs R. K. Sharma and Ors CC No. 08/2012 2/113 000696 dated 27.04.1995 for allotment of telephone connection in the name of Mohd. Aslam; whereas accused Ayub @ Jain had submitted his application along with DD No.620487 dated 25.04.1995 for Rs.15,000/- in favour of MTNL for allotment of telephone connection in the name of Basharat Ali.
2. After considering the applications of accused persons Mohd. Aslam and Basharat Ali, Order Book (OB) No. 36026002856 and OB No. 36026002854 both dated 10.05.1995 were issued in the names of aforesaid applicants Mohd. Aslam and Basharat Ali.These OBs were marked to accused R K Sharma A-1 as the area fell in his jurisdiction in section 33. He entered the details of OBs in new OB Register of Section 33 in his handwriting at Serial No. 207 and 208. The job of installation of these telephones was initially given Shri Hira Ballabh, Lineman/ Incharge of pillar No. 28, who visited the aforesaid premises 3-4 times but both the persons/ applicants could not be traced at the above said premises. Ultimately, he canceled the entries from his personal diary as the job could not be done. He informed the accused R.K. Sharma A-1 about the non- availability of subscribers at the address in the OBs. However, when the Lineman Hira Ballabh was on leave accused R.K. Sharma got fitted the telephone lines up-to the gate window terminal at the aforesaid address/premises through another RMS (Majdoor- MTNL) Shri Ram Adhar and Shri Gopal and told them that rest of fittings will be done by the subscribers themselves.
3. Accused R.K. Sharma had also directed one Shri S S Bansal Phone Inspector (PI), that one person namely Ayub would come to him (Mr. CBI Vs R. K. Sharma and Ors CC No. 08/2012 3/113 Bansal) with his reference and will pay some money to him for doing the needful. On next day, said person approached Mr. Bansal and gave two Annexure in respect of two telephone connections, bearing signatures of Mohd. Aslam and Basharat Ali. As per directions of Accused R.K. Sharma, Mr. Bansal issued two Jumper Letters dated 24.05.1995 after getting telephone numbers 3278646 & 3278630 from Shri Prakash Srivastava, Record Supervisor and gave the numbers to Ayub @ Jain, who gave Rs.1500/- to Mr. Bansal. Out of the said amount of Rs.1500/-, Accused R.K. Sharma kept Rs.1000/- and asked Mr. Bansal to keep Rs. 500/-. Accused R.K. Sharma himself wrote "Right on Test Subscriber" (ROTSS) on 07.06.1995 on both the Jumper Letters and put his signatures on them, certifying that the telephones were installed at the proper addresses and in the name of proper subscribers, where as the Record Supervisor Sh. Parkash Srivastva had informed that these telephones were not functioning and no response from the subscribers was received by him.
4. It is further the case of CBI that Accused R.K. Sharma had also requested Sh. D.P. Giri, JTO/Switch Room for opening of telephones connections no. 3278646 and 3278630 immediately, saying that these telephones belongs to his known persons. Accused R.K. Sharma had also rung up Mr. Giri at his residence to provide ISD facility on these telephones and to take proper care, whenever there is any fault in these telephones. Accused persons moved an application dated 19.07.1995 for ISD facility on these telephone lines,under there signatures which were attested by one Shri K.P. Sharma, Sale Tax Officer, who was also a non existing person.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 4/1135. It is further the case of CBI that Shri Madhu Sudan, Lineman, Incharge of pillar No.27 had noticed a switch board cable going from DP No. 2706 to House No.2146, M.P. Street via small closed Gali between H.No. 2144 and 2142 to the roof of house No. 2146 and when he had informed Accused R.K. Sharma about this fact, he told him that the two telephone numbers were DNP (disconnection due to non-payment) and had been made RNP (restoration after payment of non-payment), and as such, the cable was laid.
6. However a Joint Inspection was conducted and the joint inspection report dated 09.08.1995 and statements of witnesses Mr. Kochhar and Mr. Hiraballabh revealed that from same DP No. 2706/13 and DP No.2706/15, the aforesaid two telephone connections under reference were being utilized. These telephones were to be operated through pillar No. 28, whereas these were found operating through pillar No. 27. It was well within the knowledge of Accused R.K. Sharma that Basharat Ali and Mohd. Aslam were not residing at the aforesaid two addresses of 2641, Kucha Chelan, Darya Ganj, Delhi and 2684, Gali Gharyya, Darya Ganj, Delhi respectively and the telephone connections were never installed at the said premise and were actually installed at 2146,M P Street, Darya Ganj, Delhi,from where acused persons used to provide STD/ISD calls to various places in India and abroad. An inspection at MDF revealed that there was no jumpering on primary pair 11/5/86 of telephone no. 3278630 NE No. 23-0-82 and 39/7/51 of telephone no. 3278646 NE No. 25-5-13. Rather it was found that NE-23-2-82 was jumpered to pair 6-5-40 and NE-25-5-13 jumpered to 6-5-13. These primary pairs found terminated in CBI Vs R. K. Sharma and Ors CC No. 08/2012 5/113 pillar No. 27.
7. The prosecution has also alleged that the aforementioned two telephone connections were obtained by submitting forged documents & by impersonation, and installed at the places other than mentioned in the OBs. The ISD facility was also obtained on these telephones by submitting forged documents, purported to have been attested by non-existing Gazetted Officer. Thus, the afore-mentioned five accused persons have entered into a criminal conspiracy and put the MTNL to suffer a loss of Rs. 10,87,393/- by utilizing the aforesaid telephones for ISD/STD calls and providing conference facility to customers and charging lesser rates than the MTNL rates.
On these allegations, all the accused were sent for trial. The cognizance of the offences was taken on 22.03.2000 and accused were summoned for trial.
CHARGE
8. After hearing learned Public Prosecutor (PP) for CBI and the learned Defence Counsels of respective accused persons, my Ld. Predecessor vide a detailed order dt. 17.03.04 opined that a prima facie case is made out against all the accused persons. Accordingly Charges for the offences punishable Under Sections 120-B r/w Section 468/471 IPCand under Section 13(2) r/w Section 13(1)(d) of PC Act against all accused ;substantive charges under Section 420 IPC against all the five accused persons; substantive charges for offences punishable under Sections 468/471 IPC against three accused persons viz. R.K. Sharma, Mohd. Riaz and Ayub @ Jain and a separate substantive charge under CBI Vs R. K. Sharma and Ors CC No. 08/2012 6/113 Section 13(2) r/w Sec. 13(1)(d) of PC Act against accused R.K. Sharma were framed. However no charge for the offence punishable under Section 25 of Indian Telegraph Act was made out against any of the accused.
All the five accused persons were read over and explained the charges against them. They all pleaded not guilty to charges and claimed trial.
EVIDENCE
9. In order to prove its case, CBI has examined as many as 40 witnesses.
9.1 PW1 - Shri Ram Kishan, Sub Divisional Engineer, deposed that after his satisfaction - regarding address, name of parties and number of the telephone, as verified by the Official, he allowed the ISD facilities on these two telephone numbers 3278630 & 3278646. He has proved the applications of subscribers Basharat Ali and Mohd. Aslam for providing ISD/STD facilities Ex.PW1/A & Ex.PW1/B. 9.2 PW2 - Shri O.P. Chhabra, Sr. Accounts Officer (Legal) Khurshid Lal Bhawan, MTNL Office, New Delhi has proved the Seizure memo ExPW2/A and deposed that vide this seizure memo, four bills Ex.PW2/A1 to Ex.PW2/A4 were seized out of which two were of Basharat Ali; and two of Mohd. Aslam with regard to their respective telephone numbers 3278630 & 3278646.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 7/1139.3 PW3 - Shri Parmod Kumar Sharma, Cashier, Indian Overseas Bank, Darya Ganj Branch has proved Production-cum-Seizure memo of documents Ex.PW3/A, Cheque, Ex.PW3/B signed by Shri R.K. Bajaj, Officer of the Bank, at point-A and B.C. Application Ex.PW3/C. This witness was not cross-examined on behalf of any of the accused person.
9.4 PW-4 - Shri Ram Adhar, Majdoor, MTNL, Delhi Gate Exchange deposed that on the directions of Accused R.K. Sharma, JTO, who handed over him two O.Bs for fitting, he made fitting of telephone connections at the staircase of premises at Kucha Chellan. There was no one in the said premises. He also told about these fittings to SI Mr. Heera Ballabh, who was on leave on the day of fitting.
9.5 PW5 - Shri Madhu Sudan Lal, Lineman deposed that in the year, 1995, Accused R.K. Sharma was JTO/ Incharge and this witness was Incharge of pillar No.27. His regular majdoor told him that one old cable is hanging in the air and he told this fact to Accused R.K. Sharma who told him that after finishing work connected with Moharram procession, he should see the said hanging wire. After checking/ raid by Vigilance Deptt., Accused R.K. Sharma came to the house of this witness and told him not to say anything about it. When Vigilance raid was conducted, the cable was still hanging in air as it was earlier. He has proved the inspection report as Ex.PW5/A. 9.6 PW6 - Shri Sohan Lal, Manager, Bank of Baroda, Kingsway Camp, Delhi has proved seizure memo Ex.PW6/A; Account opening form Ex.PW6/B vide which Account was opened on 24.05.88 by one Seema CBI Vs R. K. Sharma and Ors CC No. 08/2012 8/113 Siddiqui; Withdrawal form dt. 27.04.98 Ex.PW6/C passed by him, which bears his signatures at point 'A', on the basis of which banker's cheque Ex.PW6/D in favour of MTNL was prepared and which bears signatures of Shri B.B. Bahl and Mr. Sohan Lal Khaitan at points 'A' & 'B'.
9.7 PW7 - Shri Prakash Srivastava, Accounts Officer (TR), MTNL, Rohini - proved documents as Ex.PW10/D2 and Ex.10/D1, which are Jumper Letters pertaining to telephone Nos. 3278630 and 3278646 and were proved by PW10 Shri Hira Ballabh. On the back of these two documents, this witness has identified writing of Accused R.K. Sharma to the effect "ROTSS" - (Right on Test Subscriber) and stated that names of the subscribers have been written by R.K. Sharma on Ex.PW10/D2 as Mr. Basharat and on Ex.PW10/D1, as Mr. Aslam. Both the writing have been signed by accused R.K. Sharma with date and the same are at point Q10A and Q9A. He further testified that this endorsement ROTSS means that accused R.K. Sharma has talked to the subscribers in question and telephones are in working order. On the basis of which, PW7 has made relevant entry in his History Register. He deposed that it was his duty to pass Jumper Letter received from JTO to MDF room and Switch room for execution and then make entry in record. After execution of work and confirmation from subscriber entry is made in the History Register of Telephone Exchange. In case he is unable to talk to the subscriber JTO confirm if he is able to talk to the subscriber. He further deposed that he could not talk to the subscribers and verbally told this to JTO accused R K Sharma who said that he will look into the mater. After some days R K Sharma wrote on Jumper Letters that he talked with subscriber. Therafter he made entry in the History Register.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 9/1139.8 PW8-Shri Zameer Ahmed and PW9-Shri M.K. Khan, both R/o 2641, Gali Khajur Wali, Kucha Chalan, Daryaganj, Delhi have deposed that they did not know any person by the name of Basharat Ali. No person by that name ever lived as a tenant or otherwise in the said complex (8 flats at plot
- 2641, having different owners). Telephone No. 3278630 was not installed in any of the flat in the said complex. Some telephone bills in the name of Basharat Ali were delivered at the complex, but no one claimed the same.
9.9 PW10 - Shri Hira Ballabh has deposed that in the month of May, 1995, Accused R.K. Sharma had given him Jumper Letters (copies) for issuance of telephone directory and telephone instruments of both the connections to be installed at 2641, Gali Khajur Wali, Kucha Chalan, Daryaganj, Delhi and 2684, Gali Garahayya, Darya Ganj, New Delhi which connections were to be connected from pillar No.28. PW10 was in charge of pillar No.28. On next day and 3 to 4 days thereafter, PW10 had visited both the addresses, but the subscribers were not found present. He made entry in his personal diary to this effect on 24.05.1995. He has proved the relevant page of his diary as Ex.PW10/A. He has put cross (X) on both the entries at point Y against the entry of Mohd. Aslam and Basharat Ali. On enquiry from the neighbouring residents of both the addresses, he was informed that names of subscribers were not known to them. He submitted this report to Accused R.K. Sharma. One day he was on leave and when came back, he came to know that wiring of both the said connections was got done by Accused R.K. Sharma, through his CBI Vs R. K. Sharma and Ors CC No. 08/2012 10/113 labourers. On his enquiry, he was informed that both the subscribers met accused R.K. Sharma and fitting was got done on his directions. He handed over telephone directory and telephone instruments of both the subscribers to Accused R.K. Sharma, who told him that subscribers of both the connections had met him. He received receipts of the same from Accused R.K. Sharma. He visited the aforesaid addresses and saw that telephone lines were installed inside the premises upto the staircase, to which R.K. Sharma, told him that internal wiring would be done by the subscribers themselves. On 09.08.1995, he accompanied the vigilance team for surprise check of both the connections at the respective premises. Lines were found installed at both the connections, but connections were not in working conditions from pillar No.28. Both these connections were found connected from pillar No.27. The line was found disconnected from overhead neighbouring house of said address. The said fact was mentioned in the inspection report Ex.PW10/B. Relevant page diary regarding name, addresses and OB numbers of both the connections, maintained by PW10 was exhibited as Ex.PW10/A. 9.10 PW11 Shri Gopal, Regular Majdoor, Delhi Gate Exchange, Daryaganj, Delhi deposed that in the year 1995, he alongwith Shri Hira Ballabh ( PW10) visited both the houses for installation of new telephone connections in the name of Basharat Ali and Mohd. Aslam and they were unable to contact the subscriber at the given addresses and on enquiry, they came to know that no such person is residing there. Thus, the work could not be executed.
One day, when their Incharge Sh. Heera Ballabh was on leave, Accused R.K. Sharma directed him and Ram Adhar to fix the telephone CBI Vs R. K. Sharma and Ors CC No. 08/2012 11/113 lines upto the gate terminal in both cases from their respective DP Boxes. At the spot, they met two persons namely Basharat Ali and Mohd. Aslam and they told him that they would fix telephone lines further themselves. When Heera Ballabh had returned from leave, they told him about fixing of the said lines at the instance of Accused R.K. Sharma. PW11 was also associated with the joint inspection and at the spot, the line was found terminated at window terminal and he told the inspection team that he had fixed the line upto the window terminal. Inspection report Ex.PW10/A also bears his signatures at point - B. He has further testified that since the incident had taken place about 12/13 years back, he could not identify the two persons subscribers who met them at the time of installation of the line and had told their names as Basharat Ali and Mohd. Aslam.
9.11 PW12 - Shri S.K. Goel, SDE (Training) DTDC, MTNL, Alipur Road, Delhi has proved the Joint report - Ex.PW12/A pertaining to details of telephone no., allotted cable pair and working cable pair. He has also proved the Particulars of allotted pair of both telephone connections as Ex.PW12/B. He deposed that NE pair of two telephones was traced which were found terminated on other cable pair, which were not meant for these telephones.
9.12 PW13 - Shri G.C. Joshi, has deposed that on 30.12.1997, when he was posted as Deputy Commissioner, Sales Tax (Administration & Vigilance) Government of NCT of Delhi CBI Officials had come to his office and produced document Ex.PW1/A, on which signatures of Basharat Ali (Q-4A) were purportedly attested by Shri K.P. Sharma, Sales Tax Officer. After checking the office record, he found that no such persons by CBI Vs R. K. Sharma and Ors CC No. 08/2012 12/113 the name of Shri K.P. Sharma remained posted as Sales Tax Officer in 1995.
9.13 PW14 - Shri Raju Sinha deposed that he remained posted as Div. Engineer Telephone (E-10B) in Delhi Gate Telephone Exchange for the period from 1992-1997. He has proved the print out of Subscriber Sample Observation (OABLA) (outgoing & income calls) for the period from 30.07.1995 to 09.08.1995 (running in 271 pages) duly signed by him, as Ex.PW14/A. He has also proved Meter Observation Summary (SABLA) printouts of telephone No.3278646 for 08.08.1995, from 07:05 hrs. to 11:12 hrs. and with regard to telephone No. 3278630 for 08.08.1995 from 07:05 hrs. to 17:05 hrs, duly signed by him, as Ex.PW14/B and Ex.PW14/C respectively. He has further proved the data from page No. 279 to 285 in Ex.PW14/D, which pertains to observation of malicious calls coming on the telephone numbers, put under observation.
9.14 PW15 Smt. Tahira Begum, resident of 2146, Kucha Chalan Daryaganj, Delhi has deposed that Mohd. Riaz, present in Court, is her brother. Mohd. Rias is also her brother, who is elder to Mohd. Riaz. She testified that Mohd. Rias was running a factory of manufacturing plastic shoes and to her knowledge, Mohd. Rais was not running any STD/ PCO and no land-line connection was ever installed in their premises nor Mohd. Riaz ever asked for any place in her house for running a PCO. She has also deposed that Accused Tahir is her brother's brother in law and that CBI had neither interrogated her nor recorded her statement.
PW15 was declared hostile by the Ld. PP for CBI as she did not support the case of prosecution .
CBI Vs R. K. Sharma and Ors CC No. 08/2012 13/1139.15 PW16 - Mohd. Arif, (r/o 2146, Kucha Chalan Daryaganj, Delhi) as also deposed more or less on the same lines as PW15 - Tahira Begum. He deposed that Mohd. Riaz (A-3)is his brother-in-law. Mohd. Rais elder brother of Mohd.Riaz A-3, was not running any STD/PCO and no land line connection was ever installed in their premises. This witness has also not supported the prosecution version that land-line connection installed in his house at inference of Mohd. Riaz (A-3) and was declared hostile by the Ld. PP for CBI.
9.16 PW17 - Shri D.P. Giri has stated that from April 1992 to 1997, he was posted as JTO in Delhi Gate Telegraph Exchange. Accused R.K. Sharma was also JTO (Outdoor) in Delhi Gate Telephone Exchange. Two new telephone connections with telephones No. 3278646 and 3278630 were installed from Delhi Gate Telephone Exchange on the basis of Letter received from Record Section. He deposed that he did not remember if any staff member of telephone department had requested him for expediting the installation of these telephone numbers. He deposed that accused R.K. Sharma particularly had never approached him to expedite the installation of the above said telephone numbers. However, he (Accused R.K. Sharma) had once told him to make repairs in respect of one of the two telephones, but he did not remember which was that.
This witness was also declared hostile and cross-examined by the Ld. PP for CBI. In his cross-examination by the Ld. PP for CBI, he has denied that Accused R.K. Sharma had asked him telephonically, at his residence, to open telephone connections, bearing No.3278646 and 3278630 immediately as the subscribes of these telephones were known to him. He has also denied that 15/20 days after the installation of these CBI Vs R. K. Sharma and Ors CC No. 08/2012 14/113 telephones, accused R.K. Sharma had asked him that one of these telephones was out of order from the switch room and he should remove the fault. He denied the suggestion that accused R.K. Sharma had requested him to provide and open ISD facility on these telephone numbers as the subscribers were very well known and close to him. This witness has deposed in general about procedure for installation of new telephone connection.
9.17 PW18 - Shri M.I. Kochhar has deposed that in the year 1995, he was working as an Assistant Vigilance Officer, MTNL, Khurshid Lal Bhawan, New Delhi. On 09.08.1995, Vigilance Officer Shri B.I. Hakhu had told him about the two telephone numbers being misused and required to be investigated. They took details of both the telephone numbers and started tracing alongwith Shri R.S. Yadav and other line staff of the Area. From the records, they found that these telephone numbers were working in pillar area other than the pillar area where they should have been working. He had prepared the detailed inspection report Ex.PW10/A and put his signature at point-C. PW18 has further deposed that as per this report, the NE of these telephone numbers were extended to pairs of pillar No.27 instead of pillar
28. Both the telephone numbers were extended on DP 2706 of pillar No. 27, which was on the wall of house No.2144 Gali MP Daryaganj and a four pair switch board cable was found from DP towards House No.2137 in front of one masjid. The cable was found cut and hanging and it appeared that the cable might have been cut from somewhere from House No.2137. Dial tone on both the telephone numbers i.e. 3278646 and 3278630 was CBI Vs R. K. Sharma and Ors CC No. 08/2012 15/113 found working on these two pairs. He has further deposed that on 11.08.1995, he alongwith Area SDO Shri Chaudhary, Phone Inspector Shri Bansal and Shri R.S. Yadav, JTO Vigilance visited premises No.2684 Kucha Chalan Gali Masjid Kale Khan and found Rossette fitted there at the ground floor and no further telephone line was provided in the premises at that time. This witness further testified that they also visited premises No.2641, Kucha Chalan and found "drop wire" terminated up to window terminal (Rossette) provided near the electric meter at the ground floor. No further fitting was found to any premises. From further inquiries made from Sh. Anisu Rehman R/o 3rd Floor of the said building it came out that no person by the name of Basharat Ali or Mohd. Aslam resided there or related to any resident of the building.
Both these pairs were tested from pillar point to DP and further upto subscriber premises by extending dial tone of some other number but dial tone could not be heard either at DP point or window terminals provided at both the premises. He proved the inspection report dated 11.08.95 as Ex.PW18/A. 9.18 PW19 - Shri A.P.S. Sachdeva has deposed that on 11.02.1998, while working as AVO, East MTNL, K.L. Bhawan, New Delhi, he handed over the print out of subscriber sample observation for the period from 30.07.1995 to 09.08.1995 and proved the same as Ex.PW14/A . He further deposed that he has also handed over Meter Observation Summary from 08.08.1995 pertaining to telephone No. 3278646 ( Ex.PW14/C) & 3278630 (Ex.PW14/D) which were seized by the CBI vide seizure memo Ex.PW19/A. CBI Vs R. K. Sharma and Ors CC No. 08/2012 16/113 9.19 PW20 - Inspector (CBI) Vivek Dhir is the complainant in this case. He has deposed that while posted as Sub Inspector in CBI, a preliminary enquiry of this case was marked to him and on the basis of his preliminary enquiry, he has filed a complaint dated 21.11.1997 to SP, CBI, SPE (ACB) and has proved the same as Ex.PW20/A. On the basis of this complaint, an FIR vide RC No.91(A)/97-DLI dated 24.11.1997 was registered, carbon copy of which has been proved by this witness as Ex.PW20/B. He has deposed that he had visited the addresses of premises 2684, Gali Ghariyya, Daryaganj and 2641, Kucha Chalan, Daryaganj, where the two telephone connections bearing No.3278646 & 3278630 in the names of Mohd. Aslam and Basharat Ali respectively were stated to have been installed. No such addresses existed and no such person existed there. He also deposed that verification revealed that both these telephone numbers were actually installed at 2146, M.P. Street, Kucha Chalan, Daryaganj through pillar No.
27. 9.20 PW21 - Shri S.S. Bansal deposed that in the year, 1995 he was working as Phone Inspector in Delhi Gate Telephone Exchange and was attached to accused R.K. Sharma, JTO. There was Order for opening of two telephone numbers which was received and entered by accused R.K Sharma, JTO in his register. In the month of May, 1995 R K Sharma told him that the party in whose favour the telephone connection were to be released had met him on previous day at a function. He further asked him to accept the documents/ annexures to be handed over by the said customers and to issue Jumper Letters to the concerned Branch/ Office. He directed him to accept money whatever is given by them. On next day, two persons came to this witness and gave two annexures to him alongwith CBI Vs R. K. Sharma and Ors CC No. 08/2012 17/113 Rs.1500/- cash. The said two persons did not disclose as to by whom they were sent, however, they had told that they already had conversation for that with accused R.K. Sharma. The witness got the annexure and cash of Rs.1500/- and issued the Jumper Letters and sent the same to the Office. He had delivered the telephone numbers to the said persons. Next day, accused R.K. Sharma came to the office and he handed over the said cash of Rs.1500/- to him, out of which, Accused R.K. Sharma gave Rs.500/- to him and kept Rs.1000/- with himself. He further deposed that he had prepared three copies of the Jumper Letters and gave one to Lineman Heera Ballabh for issuing telephone instrument and directory. After 2 or 3 days, Heera Ballabh informed accused R.K. Sharma in his presence that the party had not met him at the time of installation of the telephone and the telephone connection could not be installed.
This witness, declared hostile by the Ld. PP for CBI during cross- examination stated that his statements were recorded by CBI many times. He has admitted that he had stated to the CBI that Shri Srivastava, Record Supervisor had made endorsement on the back/reverse of the Jumper Letters and that he had not personally verified the addresses of Mohd. Aslam and Basharat Ali, mentioned in the Jumper Letters. He has proved the OB register of 01.01.1995 of Section 33 as Ex.PW21/A and stated that entries No.160, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 173, 181, 186, 191, 196, 205, 207 and 208 in this register are in the handwriting of accused R.K. Sharma, including entry No.228 and 229, encircled portion A35 and A36. He further deposed that the word "ROTSS" (Right on Testing) could have been written by him as well as by accused R.K. Sharma. He deposed that ROTSS is written after the party answer the call on verification. He deposed that he had written word "Bar STD" and CBI Vs R. K. Sharma and Ors CC No. 08/2012 18/113 accused R.K. Sharma has changed it to "normal" at point Q10 on Ex.PW10/D2 and at point Q9 on Ex.PW9/D1 and put his initials over the same. The witness has admitted to have written, cable pair No. 11/5/84x2809 on the Jumper Letter Ex.PW10/D2. The said cable pair number was changed to No.11/5/86, which is not in his hand and only accused Rakesh Sharma was authorized to change the said cable pair number. He has further clarified that by 2809 means that the pillar number was 28 and DP No. was 09. Heera Ballabh was Incharge/ Lineman for pillar No.28. He did not know if the telephone number was installed from pillar No.27. He has also stated that it is the duty of the Supervisor in the Record to check installation of telephone in the premises by dialing telephone number thereon and if no reply is received, the Supervisor writes on the back of the form "NR" and when reply is received, he writes "ROTSS" on the Jumper Letter. Accused R.K. Sharma had no concern to write words "ROTSS" on the back of Jumper Letters Ex.PW10/D1 & D2. He has admitted that column No.6 of register Ex.PW21/A is meant for "bonafidity report initial and date" and column No.7 is meant to enter the name of the Senior Lineman to whom the work is allotted. He also testified that entry of Jumper Letter Ex.PW10/D2 has been made at serial No.207 and that of Jumper Letter Ex.PW10/D1 at serial No.208.
In the cross-examination on behalf of accused R.K. Sharma, PW21 Shri S.S. Bansal has deposed that he had written cable pairs in Jumper Letters Ex.PW10/D-1 & D2 on the information given to him by Shri Hira Ballabh, Senior Lineman and he had not gone personally to verify the correctness of the pairs given by him. He has proved the concerned two OBs as Ex.PW21/DA and DB and stated that it is mentioned on these OBs that the telephones were to be opened with STD as the words "Barred" has CBI Vs R. K. Sharma and Ors CC No. 08/2012 19/113 been deleted therein. On the instructions of accused R.K. Sharma, he had written PVD Barred STD on the Jumper Letters. He has clarified that a cable containing 500 or even more telephone connections leaves the MDF as a single cable and from the pillars, different cables go to different DPs. A Lineman, if so wants,can change live cable going to one DP to another DP but Lineman or outdoor staff cannot change the live lines from one pillar to another pillar. MDF people cannot change the pillar of their own. He further deposed that Lineman had not informed him at any time that the telephone line laid down in pillar No.28 was not working and that a wrong telephone line was working in pillar No.27. Clip test is conducted at MDF in Exchange. No question has been put to this witness during cross- examination on behalf of remaining four accused persons.
9.21 PW22 - Shri Zia Ul-Haq-Soz, Property Dealer, r/o 2684, Kaley Khan Street, Kucha Chelan, Daryaganj, Delhi deposed that he is residing at this address since 1993 and he know all the occupants of eight flats consisting in this house and that no person by the name of Mohd. Aslam or Mohd. Riaz, ever resided there. When tendered for cross-examination, no question has been put to this witness on behalf of all the accused persons.
9.22 PW23 - Shri Afzal Ahmed has also been examined to the effect that no person by the name of Basharat was residing in house No.2641, Gali Khazoor Wali, Kucha Chalan, Daryaganj. This witness was also not cross- examined on behalf of any of the accused person.
9.23 PW24 - Shri R.K. Varun deposed that during the year 1994-95, while working as Divisional Engineer (Outdoor), Delhi Gate, Asaf Ali CBI Vs R. K. Sharma and Ors CC No. 08/2012 20/113 Road, he was looking after maintenance work relating to telephones and other administrative work. He deposed that Section 33, Kucha Challan was under his control at Divisional level through SHO, Telephone of that area. He has simply deposed about the procedure for installing a telephone connection. In his cross-examination on behalf of accused R.K. Sharma, he has admitted that in absence of JTO, all the work is done by Phone Inspector (PI) including preparing Jumper Letter, allotting work to Lineman for installation of telephone after getting instrument and the directory. JTO can depute PI to check bonafide of the party. The bonafide of the parties are checked by the Lineman when he goes for installation of telephone connection. It is the discretion of the JTO to visit the spot or not and he can rely upon the report of the Lineman. If the Record Section fails to connect the concerned party after making telephone calls twice or thrice, thereafter he reports to the JTO. When tendered for cross-examination, no question was put to this witness on behalf of other accused persons.
9.24 PW25 - Shri N.K. Aggarwal is the Principal Scientific Officer (Documents), CFSL, New Delhi. He has deposed that he has given his opinions regarding the material submitted by CBI vide his Report Ex.PW25/A and Ex.PW25/B. He has proved page No.1 of the questioned documents containing Q-1A to Q-1D of D-25 as Ex.PW25/1; page No.2 of the questioned documents containing Q-2 of D-25 as Ex.PW25/2; page No. 3 of the questioned documents containing Q-3 of D-25 as Ex.PW25/3; page No.4 of the questioned documents containing Q-4 and Q4B, already exhibited as Ex.PW1/A; page No.4 of the questioned documents containing Q-5, Q5A to Q5D of D-25 as Ex.PW25/4; page No.5 of the questioned documents containing Q-6, Q6A of D-25 as Ex.PW25/5; page CBI Vs R. K. Sharma and Ors CC No. 08/2012 21/113 No.6 of the questioned documents containing Q-7A & 7B of D-25 already exhibited as Ex.PW1/B. PW25 further deposed that he has done comparison of questioned documents Q5, Q5A to Q5D, Q6, Q6A, Q7A and Q7B and the questioned signature Mark A-1 with the specimen signature Mark S-12A to 37A and S-20 to S-23 pertaining to one Riyaz and proved his specimen signature as Ex.PW25/C-1 to C-25 (collectively). He further testified that on questioned signature Mark-Q8 of document D-25 of page No.7, no opinion was possible on the basis of material at hand. The specimen handwriting given by Ayub Khan marked S-80, S-88, S-104, S-109, S-114 which is a part of D-25 has been proved as Ex.PW25/S-1 to S-5. He has also proved the specimen handwriting of accused Ayub Khan marked S-119 to S-142 (D-42) as Ex.PW25/S-6 to S/29. He stated that he has also examined Q-5 marked in red by the IO and in blue by him (D-23) and has proved the same as Ex.PW25/C. He has further stated that he has compared standard handwriting mark S-1a to S-59a & A-1 to A-36 attributed to accused R.K. Sharma with Q-9, Q-9A, Q-10, Q-10A, Q-11 & Q-11A and has proved the specimen handwriting of accused R.K. Sharma (D-26) marked as S-1a to S-59a, collectively marked as Ex.PW25/B-1 to B-59; the questioned document (D-26) containing standard question mark Q-9 and at its back Q-9a (already exhibited as Ex.PW10/D1) and the questioned document (D-26) containing question mark Q-10 and at its back Q-10a (already exhibited as Ex.PW10/D-2); admitted writings A-1 to A-36 (D-20) and questioned document containing Mark Q-11 & Q11A (D-20), already exhibited as Ex.PW21/A. All the accused persons have opted not to put any question to this witness in the cross-examination.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 22/1139.25 PW-26 - Shri S.K. Gauba, Manager-II of Oriental Bank of Commerce, Saket, New Delhi is a witness in whose presence specimen handwritings Marked S-7(a) to S-28(a) of accused R.K. Sharma were taken on 16.04.1999.
This witness has also not been cross-examined on behalf of all the accused persons.
9.26 PW-27 - Shri Avinesh, an employee of MCD, Delhi has accompanied search team of the CBI alongwith another witness Sanjay. He deposed that on 31.12.1997, the team reached the premises No. 5051/23, Netaji Subhash Marg, Daryaganj, Delhi and seized the documents found there, vide seizure memo (D-6) and proved the same as Ex.PW27/A. Further examination-in-chief of this witness had been deferred as the original documents could not be traced out. Thereafter his statement was not recorded. Hence testimony of this witness cannot be read against the accused persons.
9.27 PW28 Shri Anil Kumar Kalia, Dy. General Manager (Admn.), Northern Telecom Region, has proved the sanction order as Ex.PW28/A. He deposed that he had considered the entire material presented to him by the CBI and after going through the same, he accorded the sanction for prosecution of accused R.K. Sharma.
During cross-examination on behalf of accused Tahir, this witness has admitted that in the sanction order, he has not given reference of any document received by him or perused by him, before according sanction.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 23/113He also admitted that the sanction order ExPW28/A does not bear the note of having been forwarded. He has denied the suggestion that he accorded the sanction mechanically. However, he could not say about the number of documents or the bulk of the documents, he had gone through before according sanction. He has again denied the suggestion that he has not applied his mind or that simply okeyed the draft sanction produced by CBI. He was not cross-examined on behalf of remaining accused persons.
9.28 PW29 Shri Dutt Sharma has deposed that on 25.11.1997 while posted Head Clerk in the Transport Department, South Zone, New Delhi, he visited CBI office to hand-over M.V. Act to some Inspector. He further testified that on the asking of CBI Officer, he signed a disclosure memo (D-16) of some Muslim person. He has proved the same as Ex.PW29/A. However, he stated that due to lapse of time, he was unable to identify that person.
During cross-examination on behalf of accused Tahir, the witness deposed that he had gone to CBI Office at the instance of Motor Licensing Officer after 5 PM and he was told to witness the utterances of an individual. He further deposed that in his presence signature of that individual were taken and admitted that his statement was not recorded. This witness was also not cross-examined on behalf of remaining accused persons.
9.29 PW30 - Shri G.L. Chaudhary deposed that he was posted as Sub Divisional Officer-III, Delhi Gate Exchange since 1994 to 1998. He testified that JTO Inchage of a Section is responsible for the works pertaining to installation, disconnection of telephone connections including CBI Vs R. K. Sharma and Ors CC No. 08/2012 24/113 new, transfer cases as well as repair of faults etc. He has further deposed about the duties and responsibilities of a JTO and the staff attached to the JTO. He has corroborated the statements of Shri Hira Ballabh (PW10), Shri M.L. Kochhar (PW18) as well as S.S. Bansal (PW21) and has authenticated the respective documents proved by these witnesses.
This witness further testified that keys of the pillar used to remain in the custody of SI Incharge of the Pillar. Jumpering inside the pillar is done by the Sub Inspector. Primary pair comes from exchange to the pillar. Inside the pillar, there is distribution point (DP). The primary wires are then connected to the DP with the help of a short wire and they are known as Jumper wires and that the system is known as Jumpering. He, however, deposed that he did not know from which pillar the telephones in question had been installed, but the primary pair came till pillar No.28.
The learned PP for CBI had stated that the witness was resiling from his statement made under Section 161 Cr.P.C.on certain points and sought permission to cross-examine the witness, which was opposed by Ld. Defence Counsel. However, the requested was allowed and the witness was cross-examined by the Ld. PP for CBI, wherein he testified that his statement was recorded by CBI and he had stated to the IO that Jumper had been issued for pillar No.28 but he did not know as to how it was found connected with pillar No.27. He also admitted having stated to the CBI that shifting of pillars can be done only by manipulating through Main Distribution Frame (MDF) in the exchange.
This witness (PW30) while under cross-examination on behalf of accused R.K. Sharma, on seeing the intimation Letter marked as PW30/1, has deposed that it was sent by Commercial Office to the subscriber namely Mohd. Aslam, containing in file (D-21), which shows that CBI Vs R. K. Sharma and Ors CC No. 08/2012 25/113 telephone connection was given to him with STD facility. He further deposed that similarly he has seen the noting portion of Mohd. Aslam's commercial file and at point-A initials of employees of the commercial office and initials marked as B on Ex.PW21/DB, appear to be similar. He testified that earlier he had stated that this initial appeared to be of R.K. Sharma, which may be inadvertent mistake on his part as this initial may not be of R.K. Sharma. Normally the SI (Sr. Lineman/Sub Inspector), himself or under his instruction, a lineman or a regular majdoor climb up to a DP to fix the last Jumpering for sending the telephone wire to the premises of the subscriber. He further clarified that when they examined the premises of both the subscribers, they found that the last lines from DP to the windows of the subscribers' building were intact. The telephone lines, right from MDF to the windows of the subscribers, were intact. A clip test was made after the lines were laid up to the windows of the subscribers. The current was always opened after the clip test showed that the line including the telephone instrument were duly fixed and were not broken. He further deposed that he had seen the documents of both the phones in question and could say that a JTO himself need not test the bonafide of the subscribers as these two cases were of current registration on depositing of Rs.15,000/- by each subscribers. He also deposed that during the period accused R.K. Sharma worked under him as a JTO, he was satisfied with his work and honesty and that there was no complaint against him in respect of his integrity.
During his cross-examination on behalf of accused Yunus and Tahir, this witness has deposed that OBs are prepared in triplicate; original and a carbon copy go to JTO concerned and the second carbon copy goes to Commercial Office. He has admitted that the telephone number, date of CBI Vs R. K. Sharma and Ors CC No. 08/2012 26/113 opening and opening meter reading were not retained in the Commercial Office, similarly even on the second copy, the telephone number, date of opening and opening meter reading were not written on the carbon copies. He has denied his knowledge if Commercial Office of MTNL had on record the address proof or the ID of applicants subscribers. It has been admitted that if any subscriber wants to obtain an unauthorized STD connection, that can be done in the Exchange. The exchange is manned by DE or his subordinates like SDO and JTO. However, the accused present in Court, was not the JTO of the Exchange. The line from the Exchange right upto the window, which included the pillar box, was dead at the time of inspection, but he did not ask the Exchange men as to why this line was dead. He has also deposed that he was not with the CBI raiding party and the documents Ex.PW21/DB, Mark PW30/1 and PW30/2 were not handed over him to the CBI.
9.30 PW31 Shri J.C. Sharma, Assistant Grade-III, FCI, Barakhamba Road, is a witness to the specimen signature/ handwriting of accused Ayub Khan in the CBI Office. He has deposed about the handwriting of Ayub Khan (D-24) marked as S-119 to 142, already exhibited in the statement of PW25 as Ex.PW25/S-6 to S-29 and admitted his own signatures at point-A on all the sheets. He has also admitted his signatures on the handwriting of accused Ayub Khan (D-25) Ex.PW25/S-1 to S-5 at point-A on all the sheets.
While cross-examined on behalf of accused persons Yunus, Tahir and Mohd. Riyaz, this witness testified that he was simply told by his Office to report at CBI Office. It must have taken about 2 hours for Ayub Khan to write, which he supervised, but he did not recall if any of the CBI Vs R. K. Sharma and Ors CC No. 08/2012 27/113 writings had gone bad and was destroyed. He has denied the suggestion that the handwriting was not taken in his presence or that he has signed it subsequently. He has also denied the suggestion that he is a regular witness for the CBI and has deposed so at the instance of CBI.
9.31 PW32 - Shri M.S. Rao is witness to specimen signature / handwriting of accused Mohd. Riaz (A-3). On 26.11.1997, while posted as LDC, Vigilance Department, Rajpur Road, Delhi, specimen handwriting of Mohd. Riaz, marked as S-20 to S-27 (a part of D-25, Ex. PW-32/A-1 to PW-32/A-8) was taken in his presence, which bears his signature at point- A on all the sheets.
During cross-examination, this witness has denied the suggestion that Mohd. Riyaz had not given his writing. He stated that his colleague Anish Tyagi was also present with him on that day. His statement was not recorded by CBI and he had no knowledge if statement of Anish Tyagi was recorded or not.
9.32 PW33 Shri P.P. Khattar is a witness to recording of the disclosure statement of accused (Mohd. Ayub). He has proved the disclosure memo dated 03.03.1998 as Ex.PW33/A and has admitted his signature at point-A on it.
All the accused persons did not opt to put any question to this witness in the cross-examination.
9.33 PW34 - Shri Sanjay Kumar alongwith his colleague Abinesh Kumar (PW27) has accompanied the search operation team of CBI to premises No.5051/23, Netaji Subhash Marg, Daryaganj, Delhi. He deposed that CBI Vs R. K. Sharma and Ors CC No. 08/2012 28/113 document was prepared regarding proceedings conducted at the abovesaid premises. He has admitted his signatures at point-B on the carbon copy of document Ex.PW27/A. All the accused persons also did not opt to put any question to this witness in the cross-examination.
9.34 PW35 - Shri D. Sengupta again is a witness to the recording of specimen handwriting of accused R.K. Sharma. He has admitted his own signatures at point A on the specimen handwriting S-1(a) to S-6(a), Ex.PW25B1 to B6. He has also admitted his own signatures at point-A on the specimen handwriting of accused R.K. Sharma S-29(a) to S-59(a), Ex.PW25/B29 to B59. But he could not identify accused R.K. Sharma, due to passage of time. He testified that when he was witnessing the specimen handwriting mentioned above, Inspector Shobha Dutta was present alongwith some other persons.
All the accused persons also did not opt to put any question to this witness in the cross-examination.
9.35 PW36 - Shri Rehan Ahmed, has identified accused Mohd. Yunus Siddiqui @ Raja, being his neighbour, but has not identified accused Ayub @ Jain. He has deposed that Qamar Hussain Sabari was his neighbour, but he did not know whether Mr. Sabari was also running some other business of telephone accessories or that has left the same. He also could tell the activities of accused R.K. Sharma and Mohd. Yunus Siddiqui. The witness was declared hostile by the learned PP for CBI and was cross- examined. During his cross-examination by the Ld. PP for CBI, this witness has stated that his statement was recorded by CBI, but has denied CBI Vs R. K. Sharma and Ors CC No. 08/2012 29/113 the suggestion that he had got recorded in his statement that accused R.K. Sharma, JTO was well known to his father and used to come to their shop, even with Mohd. Yunus Siddiqui and used to spend some time there. This witness also denied the suggestion that he had stated to the IO that Mr. Yunus Siddiqui @ Raja and Ayub @ Jain used to reside at the house of their father in law Shri Qamar Hussain Sabri at House-cum-shop No. 5051/23, Netaji Subhash Marg Darya Ganj, Delhi for the last 3-4 years. He has further denied the suggestion that he had got recorded in his statement that he has not seen Ayub since last about two months, or that Shri Sabari and Siddiqui were going the business of STD/ISD telephone, or that he had heard in the locality that there was some dispute between telephone authorities and Sabari. He has further denied the suggestion that Tahir & Raja were doing business of ISD/STD and also of telephone instruments in the name and style of M/s. Unique Communication, in front of his shop, or that all the telephone connections installed at the shop of Sabari, bearing No.5051/23, had been disconnected due to some dispute or that Shri Sabari is presently depending on a photocopy machine or that he had not seen Tahir for the last some days. He was confronted portions A to A to I to I of his statement Ex.PW36/A where it was so recorded. He has also denied the suggestion of the Ld PP for state that he had been won over by the accused persons and that is why, he had deposed falsely.
All the accused persons have opted not to put any question to this witness in the cross-examination.
9.36 PW-37 - Shri R.S. Yadav has deposed that on 09.08.1995, he was working as JTO (Vigilance) in the Office of G.M. (Vigilance), Khurshid Lal Bhawan, New Delhi. On that day, a complaint was received from CBI Vs R. K. Sharma and Ors CC No. 08/2012 30/113 reliable sources regarding misuse of telephone numbers 3278646 & 3278630. As per record, these telephones were installed at Kucha Chalan, Gali Guniya Dariya Ganj. Surprise check team, consisting of Shri M.L. Kochhar - Assistant Vigilance Officer, Shri S.S. Bansal - Phone Inspector, Shri G.L. Chaudhary - SDO, conducted the surprise check at the spot and it was revealed that built up of the telephones was going to pillar-27 whereas the area of installation of the telephone was serviced by pillar-28. Actually these telephones were being operated from pillar No.27. MDF tracing was done by another team and the said team informed that telephone numbers were Jumpered from NE-25/5/13 to pair-6/5/13 and NE-23/0/82 to pair-6/5/40; these were terminating at pillar No.27/06/15 and 27/06/13 respectively. The DP No. 27/06 was found located in M.P. Street on the wall of house No.2144. Switch board cable was going from DP No.27/06, it was found cut a few meters away. Enquiries about the person who owned the telephone numbers respectively, as per the record, were made at Building No.2614, Kucha Chalan, Daryaganj, and 2684 Gali Garayya, Daryaganj revealed that the persons named as Basharat Ali and Mohd. Aslam respectively had never lived at the given addresses. The drop wire at both the premises were found terminated on a window terminal points. There were no further fittings up to the subscribers' instruments. On seeing the report of the joint inspection/ surprise check of fittings of telephone numbers 3278646 and 3278630 (Ex.PW18/A), this witness has stated that it is the same report which was prepared by Shri M.L. Kochhar in his handwriting. He has identified his own signatures on this report at point-C. On seeing the report Ex.PW10/A, the witness has testified that whatever had been observed at the spot after verification, had been written in this report. He further testified that checking/verification CBI Vs R. K. Sharma and Ors CC No. 08/2012 31/113 of bonafide of subscriber is the duty and responsibility of JTO (Outdoor). In case JTO gets verification and checking done by somebody else, the responsibility remains of the JTO (Outdoor). Duty of doing ROTSS is of Telephone Operator (TO) in Record Section.
No question has been put to this witness by any of the accused, while tendered for cross-examination.
9.37 PW38 - Shri V.K. Khanna, was the Principal Scientific Officer & Incharge (Document Div.), CFSL, CBI, New Delhi at the relevant time. He has deposed that in this case certain documents had been submitted for examination by the SP, CBI, ACB, Delhi vide memo No.DLI/AC/CR/3/91(A)/1997 DLI/8065 dated 01.07.1998 (D-13).
This witness testified that handwriting evidence points to the writer of the specimen English writing marked S-119 to S-142 of Ayub Khan (Ex.PW5/S-6 to S-29, collectively), being the person responsible for writing the questioned English writing marked Q-5 (Ex.PW25/C - part of D-23) (except overwritten numerals) due to the reason given in detail in his report Ex.PW38/A (running into four pages).
PW-38 further testified that handwriting evidence points to the writer of the specimen English writing marked S-143 to S-150, being the person responsible for writing the questioned English writing marked Q-6, as per the details given in his report Ex.PW38/A and has proved specimen writing S-143 to S-150 of Mohd. Yunus Siddiqui, as mark-PW38/A (collectively), running into eight pages.
Accused R.K. Sharma (A-1) and Mohd. Riaz (A-3) have opted not to put any question in cross-examination of this witness. However, during cross-examination on behalf of accused Mohd. Ayub (A-5), the witness CBI Vs R. K. Sharma and Ors CC No. 08/2012 32/113 admitted that with passage of time and growing of age, the handwriting of a person undergoes a change, but added that mostly it becomes fit at an adult age and then the change is less at a later stage. He further deposed that two persons may have certain characteristics similar but all the characteristics cannot be similar because they are two different individuals having different minds. He has denied the suggestion that his report is not conclusive and that he cannot, with certainty report that a particular handwriting belongs to a particular person.
During cross-examination on behalf of accused Mohd. Yunus Siddiqui (A-2) and Tahir (A-4), this witness has deposed that as per books in very rare cases the repeated and frequent copying of signatures and handwriting, the copied signatures and handwriting may match the original signatures and handwriting, but has voluntarily stated that the limited writing and initials may match but it is not possible in voluminous writings and even in the limited writing and initials, if an opinion is given, it is a lighter opinion. He has admitted that the signatures are of various kinds, i.e..individualized signatures and some are in the writing form. Q5 i.e. D-23 Ex-PW25/C on page 163 and Q6 on D-23 Page 193, proved by him as Ex-PW38/2 are in the writing form. Generally a paragraph or a page is considered voluminous writing. It was voluntarily added that more than two or three Letters or initials are difficult to copy. Slants in Letters and words are also depicted in the digits and words written by the writer. It was admitted that people write with different pen pressures. However, it was voluntarily stated that pen pressure is there in ink writings and not in ball point and pencil writings. Q5 is written in ball pen. Reverse of Q5 was not sent for comparison to CFSL. He further submitted that they cannot directly determine the age of the paper as well as the age of the ink also.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 33/113He also testified that the portion in black ink at points A and B on Q5 i.e. Ex-PW25/C was not included by him for any opinion. He stated that documents Ex.PW25/S6 to S29 are in ball point, but could not answer about the age and ink of the paper used for Ex-PW25/S6 to S29. He also stated that documents in this case were not sent in sealed condition and were in open condition to the CFSL. He has denied the suggestion that he has given an opinion in this case as desired and in consultation and at the behest of the CBI but added that it is based on scientific analysis.
9.38 PW-39 - Shri Dharmesh Sharma, the then Special Judge-CBI (03) PC Act, New Delhi has deposed that on 10.05.1999, while posted as Metropolitan Magistrate, Tis Hazari Court, an application Ex.PW39/A, for recording confessional statement of accused Ayub Khan, was marked to him by the Ld. Chief Metropolitan Magistrate vide order dated 10.05.1999, Ex.PW39/B. To arrive at the considered opinion that the accused was not under any threat or coercion to make the statement, he had put certain queries to him and the accused was directed to be produced on next day. He has proved the proceedings of that day, as Ex.PW39/C and confessional statement of accused Ayub Khan, recorded on 11.05.1999, as Ex.PW39/D as well as the certificate recorded on the statement as Ex.PW39/E. During cross-examination on behalf of accused Tahir, PW39 deposed that he must have asked the accused if he knew English and whatever discussion took-place with the accused, was in Hindi. He further deposed that he did not recall if the Investigating Officer had informed him that two earlier applications, filed by the accused, had been rejected by the then Ld. Chief Metropolitan Magistrate.
In the cross-examination conducted on behalf of accused R.K. CBI Vs R. K. Sharma and Ors CC No. 08/2012 34/113 Sharma, this witness deposed that it is correct that the IO was outside his Chamber on both days and she identified the accused in his Chamber.
Ms. Chitra Mal, Legal Aid Counsel, who was representing accused Ayub Khan @ Jain at that time, has adopted the cross-examination conducted on behalf of accused R.K. Sharma & Mohd. Tahir.
Accused Mohd. Yunus Siddiqui and Mohd. Riaz have opted not to put any question to this witness.
9.39 PW-40 - Ms. Shobha Dutta, Dy. SP, CBI is the part Investigating Officer of this case. She deposed that after registration of the case, major part of the investigation was conducted by late Inspector Harminder Singh and thereafter investigation was marked to her, when she was Sub Inspector. After getting permission from the Ld. Special Judge for conducting investigation, she took all the related records from Inspector Harminder Singh. After scrutiny of the record, she summoned some of the witnesses, mostly the MTNL personal and recorded their further statements. She obtained the CFSL report, some documents from complainant, SI Vivek Dhir. She identified the signatures of late Sh. Harminder Singh at point-A on document D-19, Ex.PW40/1. She has deposed about taking specimen signatures of accused Ayub, R.K. Sharma and Riyaz and handwriting of accused R.K. Sharma and sending the handwriting and specimen signatures of accused R.K. Sharma to CFSL and collection of respective reports from CFSL. She testified that in the meantime, accused Ayub had moved an application to make the confessional statement which was recorded by Shri Dharmesh Sharma, the then MM, Tis Hazari, Delhi. She has proved the application dated 11.05.1999, requesting for recording of the confessional statement as CBI Vs R. K. Sharma and Ors CC No. 08/2012 35/113 Ex.PW40/5. She had identified accused Ayub Khan who was produced for recording the confessional statement and has proved the identification memo as Ex.PW40/6. She has admitted her signatures on Ex.PW39/A at points A, B, C & D. She has further proved the identification memo of Accused Ayub Khan as Ex.PW40/7. She further testified that sanction ExPW28/A for prosecution of accused R.K. Sharma was obtained by her.
In her cross-examination on behalf of accused Tahir, she admitted that she had not taken any permission from the Court for taking the specimen signatures and handwriting of accused persons, however she volunteered to state that they had voluntarily given the same. She could not recollect whether the accused persons were called together or individually for this purpose, however, public witnesses were present at the time of taking the same.
During cross-examination on behalf of Accused R.K. Sharma, PW40 has admitted that during investigation, she learnt that the Main Distribution Frame (MDF) is located in the telephone exchange and the telephone cables from pillar No.27 & 28 were independently to the MDF. She could not recollect if she had made any inquiry independently in relation to the cable pairs qua telephone numbers 3278630 and 3278646 originating from the MDF and leading to the pillars. The pairs given to these two telephone numbers at the time of installation are mentioned in the report of the MDF department. To a question whether she had made any interrogation from any official of the MDF, who conducted the Jumpering of two telephone numbers, PW-40 has replied that she had interrogated Mr. M.L. Kochhar of the vigilance department of the MTNL, who had made the relevant inquiries. She however, could not recollect from which of the MDF personal she had made the inquires herself, interrogated the personnel who CBI Vs R. K. Sharma and Ors CC No. 08/2012 36/113 conducted the clip test of these two telephone numbers, whether she collected any duplicate list of the order of opening the telephones from MDF and switch room.
During cross-examination on behalf of accused No.2, 3 & 5, PW40 has deposed that she did not produce the admitted handwritings and signatures of accused persons Mohd. Yunus, Riaz and Ayub alongwith the questioned handwriting and signatures before the court for comparison before sending the same to CFSL. She might have sent both, the specimen signatures and handwriting of these three accused persons, as taken by Inspector Harminder Singh and as taken by her, to CFSL. The witness was directed to check the record and answer what documents were sent by her to CFSL. In reply to a specific query of the Court, the witness submitted that the documents containing specimen writing & admitted writings and questioned writing & signatures were sent to CFSL vide memo Ex.PW40/11 i.e. D-11; Ex.PW40/12 - D-12; Ex.PW40/13 - D-13; and Ex.PW40/2 - D-14. She further deposed that the documents on which specimen signatures & handwriting of accused persons were taken by Inspector Harminder Singh, if not sent to the CFSL, would be on record. She could not recall, how many times accused Ayub was called to CBI Office by her nor could she even say approximately. She has denied the suggestion that on one time, on her calling when accused Ayub visited the CBI Office, she coerced him to make a confessional statement. The predecessor IO had collected the outstanding bills for these two telephones and they had recorded the statements of the officials of the MTNL qua the authenticity of the telephone bills. She has lastly denied the suggestion that she has not conducted a fair, proper investigation in accordance with law.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 37/11310. Vide a separate statement recorded on 03.05.2012, the Learned PP for CBI has closed the prosecution evidence and he did not prefer to produce the witness PW27 Shri Avinesh, whose further examination-in- chief was deferred for want of tracing out of the original documents.
Statement under Sec. 313 Cr.PC
11. Statements of all the five accused persons were recorded under Section 313 Cr.P.C.
11.1 The statement of accused R. K. Sharma (A-1) was recorded under Sec. 313 Cr.PC, the incriminating evidence was explained to him. He has admitted that telephone number 3278646 and 3278630 were installed while he was JTO (Outdoor) during the period 1992 to 1997. He has admitted that the entry no. 207 (Q-11) and 208 (Q-11 A) on Ex. PW-21/A (D-20) in the OB Register are in his handwriting. He has denied that lineman Hira Ballabh (PW-10) had visited house No. 2641, Kucha Challan, Darya Ganj and 2684, Gali Garahayya, Darya Ganj for installation of new telephone connection in the name of Basharat Ali and Mohd. Aslam but unable to contact the subscriber at the given address and on inquiry they came to know that no such person was residing there. He also denied that he had given the OBs Ex. PW-21/DA in the name of Basharat Ali and Ex. PW-21/DB in the name of Mohd. Aslam for filling telephone connections and he gave any instruction to Mr. Gopal (PW-11) and PW-4 Ram Adhar to fix the telephone lines up to the gate terminal only of the premises. He CBI Vs R. K. Sharma and Ors CC No. 08/2012 38/113 admitted that the Jumper Letters Ex. PW-10/D 1 for telephone no. 3278646 and Ex. PW-10/D-2 for telephone number 3278630 show that the lineman had made pairing on pillar No. 28-A. He further denied his specimen handwriting and signatures on Ex. PW-25/B-1 to B-59. He has admitted that Prakash Srivastava (PW-7) was unable to talk to subscriber and accordingly informed him. He also denied that he had spoken to the subscriber on telephone numbers and thereafter the entry was made in the History Register. He has denied having written the words ROTSS on the back of Jumper Letters Ex. PW-10/D-1 and 10/D-2. He also denied that he had informed S. S. Bansal (PW-21), Phone Inspector, in the month of May, 1995 that he had met the parties of telephone numbers 3278646 and 3278630 and directed Mr. Bansal to accept the documents for the connections. He has denied that the word 'Normal' at Q-10 on Ex. PW-10/D-2 and at point Q-9 on Ex. PW-10/D-1 was written by him. He opted to lead evidence in defence.
11.2 In his statement under Sec. 313 Cr.PC, accused Mohd. Yunus Siddiqui @ Raja has admitted that accused Mohd. Ayub (A-5) is his brother-in-law. However, he denied all the facts stated in the confessional statement Ex. PW-39/D made by co-accused A-5. He denied his specimen handwriting and signature on Ex. PW-38/1 (S-143 to S-150) and the writing on mark Q-6 Ex. PW-38/2. He also denied any knowledge about report of handwriting expert Ex. PW-25/A. With regard to the document account opening form of Seema Siddiqui wife of Yunus Siddiqui Ex. PW-6/B, withdrawal form Ex. PW-6/C, Bankers cheque Ex. PW-6/D, he stated that his wife's name is Hina Siddiqui. He also denied that he has a sister by the name of Seema Siddiqui. He did not opt to lead evidence in CBI Vs R. K. Sharma and Ors CC No. 08/2012 39/113 defence.
11.3 The accused Mohd. Riaz in his statement recorded under Sec. 313 Cr.PC denied his knowledge about the facts mentioned in Ex. PW-39/D i.e the confessional statement of co-accused Mohd. Ayub(A-5). He has denied his specimen writing and signature S-37, S-12 to S-19 on Ex. PW-25/C-1 to Ex. PW-25/C-25 and S-20 to S-36 Ex. PW-10/D and Ex. PW-32/A-1 to A-8. He has denied about installation of telephone no. 3278646 and 3278630 at the house of Mr. Mohd. Arif. He also denied that Mohd. Arif is his brother-in-law. He denied that the handwriting and signature Q-5A to Q-5D on Ex. PW-25/4, Q-6 on Ex. PW-25/5 is in the handwriting of writer of specimen signature S-12A to S-37A and S-20 i.e Ex. PW-25/C-1 to C-25. He denied that these specimen writing and signature are his specimen writing and signature. He also did not opt to lead evidence in defence.
11.4 In his statement under Sec. 313 Cr.PC, the accused Mohd. Tahir (A-4) has admitted that he is brother of accused Mohd. Yunus Siddiqui but denied that they are brothers of wife of accused Mohd. Riaz (A-3) and brother-in-law of accused Mohd. Ayub (A-5). He has denied his knowledge about the confessional statement Ex. PW-39/D made by A-5. He also did not opt to lead evidence in defence.
11.5 In his statement under Sec. 313 Cr.PC, the accused Mohd. Ayub (A-5) had admitted his confessional statement Ex. PW-39/D. He has retracted from his confession recorded before the Metropolitan Magistrate.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 40/113He stated that he gave the confession statement at the behest of CBI and his statement Ex. PW-39/D was not voluntary. He stated that CBI made him to state that accused No. 2 Mohd. Yunus Siddiqui gave his a sum of Rs. 1500/- with instruction to pay the same to S. S. Bansal at telephone exchange stating that R. K. Sharma (A-1) had sent him. He denied the fact in the statement that he gave Rs. 1500/- to S. S. Bansal who brought a list of telephones from which he selected two telephone numbers with number '786'. He denied his knowledge about installation of telephones at the house of Mr. Arif, brother-in-law of accused Mohd. Riaz (A-3). He also denied that he stated in his statement Ex. PW-39/D that Mohd. Yunus Siddiqui (A-2) had informed him that he had given a large sum of money to R. K. Sharma (A-1) for installation of these two telephone numbers at 2146, M. P. Street, house of Mr. Mohd. Arif. He had denied his signature on Ex. PW-1/A (an application for ISD facility) as Basharat Ali. He has denied that he signed as Basharat Ali at Q-2 and Q-3 on Ex. PW-25/2 (Duplicate application submitted in MTNL) and Ex. PW-25/3 (Annexure MTNL) respectively. He has denied his knowledge about the outstanding amount against two telephone numbers. He has stated that he has been falsely implicated in this case. Although he opted to lead evidence in defence but on 08.08.2012 gave the statement not to lead any evidence in defence.
DEFENCE EVIDENCE
12. The accused R. K. Sharma has examined two witnesses in his defence.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 41/11312.1 DW 1 Shri Idrish Ahmed, Assistant General Manager (Legal), MTNL, Minto Road, New Delhi while examined as DW-1 has deposed that the record in relation to the departmental enquiry, investigation and action by the Vigilance Department is not available with Legal Department of MTNL and has since been transferred to the AGM (IT Admn.), 8, Bhikaji Cama Place, New Delhi vide Letter dated 02.06.2003 of Shri S.S. Sachdeva, SDE (Discipline East) and has proved the photocopy of the Letter dated 02.06.2003 as Ex.DW1/1.
This defence witness was not cross-examined by the Ld. PP for CBI.
12.2 DW 2 Shri Pramod Kumar, Assistant General Manager (Administration), East, MTNL had produced the disciplinary enquiry file against Mr S.S. Bansal (PW-21), PI-1762, Idgah and had stated that pages 60 to 67 thereof are the draft charge-sheet, the memorandum alongwith imputations of misconduct, a corrigendum and relation to Letter dated 06.09.2000 and at page 72, is the photocopy of the reply of Mr. S.S. Bansal to the said Letter. This witness had produced the reply given by accused R. K. Sharma already on the record as Ex. PW-21/DD and exhibited the same as Ex. DW-2/2. He has also placed on record document Ex. DW-2/3, Ex. DW-2/4 and Ex. DW-2/5.
During cross-examination by the Ld. PP for CBI, DW2 has stated that as per the record, Mr. S.S. Bansal, PI, was only given a warning and no other action was taken against him. In answer to a question put by Ld. PP for CBI, this witness has deposed that as per the record, the then Competent Authority conducting the disciplinary enquiry, had dropped all charges against him vide exhibited Ex.DW2/5.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 42/113ARGUMENTS
13. I have heard the arguments from Sh. Mohd. Shakeel, Ld. Public Prosecutor for CBI. On behalf of accused persons, Sh. Amandeep Singh, Advocate adduced arguments for accused R. K. Sharma (A-1), Sh. M. P. Singh, Advocate, adduced arguments for accused Mohd. Yunus Siddiqui (A-2) and Sh. R. M. Tufail, Advocate, adduced arguments on behalf of accused Mohd. Riaz (A-3), Mohd. Tahir (A-4) and Mohd. Ayub (A-5). The written submissions / synopsis submitted by defence counsels have also been perused. I have also gone through the statement of witnesses and the documents on the file carefully.
13.1 Learned PP for CBI has submitted that one of the ingredients/main ingredient of the charges against Accused R.K. Sharma is that both the alleged telephone connections, viz. 3278646 and 3278630 were and not installed at the places mentioned in the OBs and further that on Inspection the said telephones were actually found operating from Pillar No.27 instead of Pillar No.28, through which they were supposed to have been operating in the names of Mohd. Aslam at 2684, Gali Garahayya, Daryaganj, New Delhi and Basharat Ali at 2641, Kucha Chelan, Daryaganj, Delhi respectively and that accused persons Mohd. Riaz and Ayub @ Jain by submitting forged documents by the names as Mohd. Aslam and Basharat Ali respectively, had obtained these telephone connections pursuant to a criminal conspiracy with co-accused persons Mohd. Yunus Siddiqui @ Raja @ Chhotu @ Sunny , Accused Tahir as well as accused R.K. Sharma. It has further been submitted by the Ld. PP for CBI that accused R.K. Sharma (A) himself wrote ROTSS on CBI Vs R. K. Sharma and Ors CC No. 08/2012 43/113 07.06.1995 on both the Jumper Letters, certifying that the telephones were installed at the proper addresses in the name of proper subscribers, in spite of the fact that he was not authorized to make such endorsements and despite Mr. Parkash Srivastava (PW-7) from Record Section informing that subscribers not responding to call. Ld. PP for CBI has further submitted that for obtaining these two telephone connections, a sum of Rs.1500/- was given to Sh. S.S. Bansal at the instance of accused R.K. Sharma, out of which accused R.K. Sharma had taken Rs.1000/- and asked Mr. S.S. Bansal to keep Rs.500/- with him.
13.2 The Ld. PP for CBI has argued that the statement of PW-21 S. S. Bansal and PW-10 Hira Ballabh prove that the subscriber (accused) were known to the accused R. K. Sharma and he also knew that the subscriber of telephone number were not residing at the address mentioned in the OBs. He argued that PW-10 Hira Ballabh had informed the accused R. K. Sharma (A-1) that despite his repeated visit he could not find the subscriber at the address and he made an entry in his diary maintained by him in the usual course of his business to this effect by putting a mark of cross against these entries. He proved the entry in the diary Ex. PW-10/A (D-9). Ld. PP for CBI argued that this leave no room for doubt that A-1 had the knowledge that subscriber are not available at the given address. Still, the accused R. K. Sharma (A-1) got the telephone line installed till the windows terminal of the houses mentioned in the OB with the help of PW-4 Ramadhar and PW-11 Gopal, the regular Mazdoors, in the absence of Hira Ballabh. He further argued that PW-7 Sh. Prakash Srivastava was the record supervisor who had received the Jumper Letters and issued the telephone numbers. This witness could not contact the subscriber on CBI Vs R. K. Sharma and Ors CC No. 08/2012 44/113 phone which is the mandatory requirement before energizing the telephones. He informed the accused Raj Kumar Sharma (A-1) about non availability of subscribers. In the background of these facts, accused himself wrote ROTSS on the back of Jumper Letters Ex. PW-10/D-1 and D-2. This endorsement is made only after contact is made with the subscriber. The Ld. PP argued that writing of the word ROTSS by accused himself conveyed that he had talked to the subscriber who in fact were not available at the given address.
13.3 He further argued that accused R. K. Sharma (A-1) knew that telephones are being installed at some other place which shows that he was part and parcel of this criminal conspiracy. As regard the accused Mohd. Ayub (A-5) and Mohd. Riaz (A-3), it was argued that the handwriting expert report Ex. PW-25/A and 25/B as well as Ex. PW-38/A show their complicity in the conspiracy. The duplicate application, the specimen signature form submitted in MTNL for telephone connection are bearing the signatures of these two accused signed as Basharat Ali and Mohd. Aslam respectively. The handwriting expert report established that these duplicate application and specimen signature forms have been signed by them as Basharat Ali and Mohd. Aslam. As regard accused No. 2 Mohd. Yunus, Ld. PP argued that his specimen writing has tallied with the writing on a note on which the telephone numbers and the name of some subscribers were mentioned. He argued that the document Q-6 Ex. PW-38/2 contains names of client and telephone number in the handwriting of the accused Mohd. Yunus Siddiqui. As per the handwriting expert report Ex. PW-38/A, the specimen writing S-43 to 150 mark PW-38/1 pertaining to accused Mohd. Yunus Siddiqui has tallied with the writing on Q-6.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 45/11313.4 Ld. PP also argued that the confessional statement of accused Mohd. Ayub (A-5) can be used against the accused to show their complicity in the conspiracy. He submitted that the accused Mohd. Tahir (A-4) also used to deal with the clients on the telephone booth as stated by Mohd. Ayub (A-5) in his confessional statement Ex. PW-39/D. The Ld. PP then relied on the statement of PW-2 who has spoken about the loss suffered by the MTNL. The Ld. PP argued that the pending Bills Ex. PW-2/A-1 to 2/A-4 pertaining to these two telephone connection were sent at the address mentioned but they are still unpaid. He further submitted that the accused not only obtained telephone connection on the basis of forged documents but also obtained ISD facility on the basis of forged Letter attested by a fake sales tax officer. The Ld. PP has thus argued that the prosecution has been able to prove its case beyond reasonable doubt that two telephone connections were applied by the accused Mohd. Riaz (A-3) and accused Mohd. Ayub (A-5) in the name of Mohd. Aslam and Basharat Ali respectively at the instance of accused Mohd. Yunus Siddiqui (A-2); that accused R. K. Sharma (A-1) was part and parcel of this conspiracy as he facilitated the commission of the offence by falsely writing ROTSS on Jumper Letters to falsely confirm the verification of the subscriber; that statement of PW-21 S. S. Bansal, PW-10 Hira Ballabh, PW-4 Ramadhar, PW-11 Gopal and PW-5 Madhusudan clearly point out the complicity of accused A-1 in the conspiracy; that the confession of accused A-5 also corroborate the allegations against A-1 and rest of the accused persons; that the handwriting expert reports Ex. PW-25/A, PW-25/B and PW-38/A further connect the accused persons with the offence of cheating, forgery and criminal misconduct of accused A-1. He concluded arguments with CBI Vs R. K. Sharma and Ors CC No. 08/2012 46/113 submission that prosecution has proved its case against all the accused persons beyond reasonable doubts.
13.5 In support of his submissions, Ld. PP for CBI has relied upon the judgments of Thoti Manohar Vs. State of Andhra Pradesh 2012Crl. J. 3492 S.C, State of Punjab Vs. Karnail Singh 2003 Crl. J. 3892 S.C, Laxmipat Choraria Vs. State of Maharashtra 1968 Crl. J. 1124 S.C, Jaspal Singh D.S.P. Vs. State of Punjab (2012) 1 SCC (Crl) 1, Pirthi Chand Vs. State of H.P 1989 Crl. J. 841 S.C, P.S. Rao Vs. State of UP/1994 Crl. J. 2012 SC, Lalit Popli Vs. State 2003 (2) SC 583, Alamgir Vs. State 2003 (1) SCC 21, State of Bombay Vs. Kathi Kalu 1961 (2) Crl. J. 856, State of UP Vs. Buta Singh AIR 1978 SC 1770, State of NCT Vs. Navjot Sandhu @ Afroj Guru 2005 and Jaspal Singh Vs. UOI Dy SP 2012 (1) SCC (Ori) 1. I have gone through the case law relied upon.
ARGUMENTS ON BEHALF OF ACCUSED NO. 114. Sh. Amandeep Singh, Ld. Counsel for accused R. K. Sharma (A-1) has argued at length and has also submitted the written synopsis. He argued that main allegation against the accused R. K. Sharma is that he was the part and parcel of the conspiracy whereby two telephone connections were installed at the place other than the place where they were to be installed as per the Order of Booking (OB) and the connections to these telephone lines were provided from pillar no. 27 instead of pillar no. 28 as CBI Vs R. K. Sharma and Ors CC No. 08/2012 47/113 per the Jumper Letters. He argued that the case of the prosecution that subscribers were not available at the address where these telephone connections were to be provided, does not stand on its legs in view of the statement of PW-11 Gopal and PW-4 Ram Adhar. He argued that PW-11 Gopal, Regular Mazdoor of Telecom Department has categorically deposed that he along with PW-4 Ram Adhar had visited house No. 2641, Kucha Chalan, Darya Ganj and 2684, Gali Garahayya, Darya Ganj, for installation of telephone connections in name of Basharat Ali and Mohd. Aslam, where they met two persons namely Basharat Ali and Mohd. Aslam. He further argued that bonafide of the subscribers are checked by the lineman and they go for installation of telephone connections and it is the discretion of the JTO to visit the spot or not to check the bonafide of the party. He submitted that prosecution has not placed on record any such procedure or rules and regulations governing the installation of telephone connection relied upon and issued by MTNL Department. In the absence of any specific procedure and rules being provided, it is not possible to decide whether lapses have been committed by the official of MTNL in following the procedure and rules.
14.1 With regard to the change of pair and providing of the connection from pillar no. 27, it was argued by Ld. Counsel that connections are provided as per the pairing mentioned in the Jumper Letters and the particulars of pairing mentioned on the Jumper Letters cannot be changed because it is under the control of Main Distribution Frame (MDF). He submitted that telephone lines cannot be shifted from one pillar to other without the OB from Head Office. He further submitted that PW-10 Hira Ballabh has admitted that officer of MTNL has checked the Jumpering CBI Vs R. K. Sharma and Ors CC No. 08/2012 48/113 inside the pillar between the line going to Distribution Point (DP) and the line coming from MDF and it was found to be intact. He argued that it means from MDF onwards till the telephone instrument, the line was intact. Thus, he argued that the wiring, Jumpering and connection of two telephones was done in accordance with the OBs sent by Head Office and these connections were done through pillar no. 28 and the wiring and Jumpering on the day of the raid (09.08.1995) was found to be intact. He further submitted that employee of telephone department i.e PW-4 Ram Adhar and PW-11 Gopal, had met two persons at the spot. This leads to the conclusion that telephone connections were installed at the addresses mentioned in the OBs which were issued by Head Office. Thus, no offence is committed by A-1.
14.2 Ld. Counsel further submitted that prosecution has not been able to prove at which place these two telephone connections were in fact installed. There is no recovery of any instrument or wiring. There are discrepancies in the statement of witnesses with regard to the places where these telephones were actually found to be operating. He submitted that in the complaint dated 21.11.1997 (Ex. PW-20/A), it is stated that telephones were installed at shop No. 1488, Pataudi House, Kucha Dakner, Darya Ganj. On the other hand, in the joint inspection report dated 09.08.1995 Ex. PW-12/A, it is mentioned that at the time of vigilance checking, DP of both the telephones were found on the wall of house No. 2144, Gali M. P. Street, Darya Ganj. Still in the report dated 14.08.1995, it is stated that cable was found running to top of the roof of house No. 2146, M. P. Street. Thus, the prosecution has failed to establish that the telephones were CBI Vs R. K. Sharma and Ors CC No. 08/2012 49/113 installed at place other than what has been mentioned in the OBs.
14.3 Ld. Counsel also referred to the statement of PW-30 G. L. Chaudhary and submitted that keys of pillar remain in custody of SI who is Incharge of the pillar and Jumpering inside the pillar is done by him only. He argued that PW-30 admitted that shifting of pillar can be done only by manipulating through MDF in the Exchange. He argued that without the involvement of staff at MDF, no pair of any telephone number can be changed or altered.
14.4 Then he referred to the statement of PW-12 S. K. Goyal, who was JTO in Switch Room. Ld. Counsel has argued that PW-12 has stated that raiding team which inspected MDF found that originally allotted cable pair in MDF was not there and on the contrary the Jumpering was on different pair although the NE was the same. It means that original allotted numbers were working but not at the originally allotted cable pair but on different cable pair. He argued that this sort of change of Jumpering can be done only at the MDF and there also cannot be double Jumpering from the MDF. He argued that despite the prosecution knowing all these facts, no investigation has been done from any of the staff member in MDF. Therefore, no evidence has come on the record as to who has done the illegal change of pairing in the MDF by virtue of which the lines were transferred from pillar no. 28 to pillar no. 27. Ld. Counsel further argued that the IO (PW-40 Shobha Dutta) has admitted that she has not recorded statement of any of the employee in the MDF. He argued that in view of statement of PW-12 S. K. Goyal that on 09.08.1995 at time of inspection of MDF, it was found that Jumpering was on different cable pair, it becomes CBI Vs R. K. Sharma and Ors CC No. 08/2012 50/113 doubtful whether at time of opening the two telephone numbers, the Jumpering in MDF was done through pillar No. 27 or 28 or the illegal Jumpering through pillar No. 27 was done later on. He argued that only staff at MDF could have explained this but there is no investigation on this line. For this change of Jumpering on MDF, A-1 cannot be liable.
14.5 Ld. Counsel further submitted that the words ROTSS on the Jumper Letter could be written by the JTO and there is no evidence to show JTO was not authorized to write these words on the Jumper Letter. He refers to statement of PW-24 R. K. Varun who stated that if the Record Section fails to connect the concerned party after making telephone call, it report the matter to JTO. PW-7 Prakash Srivastava, who was to make these calls, has deposed that if he is unable to speak with the subscriber on telephone then he inform the JTO / Phone Inspector and if the JTO is able to talk to the subscriber then he certify about having talked to the customer by writing ROTSS. Thus, there is no illegality in A-1 writing ROTSS on Jumper Letter. Ld. Counsel further argued that the allegations against accused R. K. Sharma that he had talked to PW-17 D. K. Giri for providing connection immediately as the subscribers were known to him, could not be established as PW-17 has nowhere supported this version of the prosecution. He further argued that prosecution was unable to establish that accused R. K. Sharma knew that the two telephone connections were being unauthorizedly utilized.
14.6 As regards the statement of PW-21 S. S. Bansal, Ld. Counsel argued that he is most unreliable witness as he has made false statement in the court. He has blatantly denied in Court that no departmental inquiry was CBI Vs R. K. Sharma and Ors CC No. 08/2012 51/113 initiated against him for accepting Rs. 1500/- for providing telephone number to subscriber. Ld. Defence Counsel refer to statement of DW-2 Parmod Kumar, who has deposed that the disciplinary inquiry was initiated against S. S. Bansal (PW-21). Further, PW-21 S. S. Bansal admit having written Letter Ex. PW-21/DD wherein he has stated that he did not accept any money from subscriber of two telephone numbers or R. K. Sharma (A-1). That this witness is not truthful and lacks credibility. He argued that PW-21 was in fact the person who had given Jumper Letters to PW-10. He further argued that the acceptance of Rs. 1500/- by PW-12 as per the case of prosecution established that PW-21 S. S. Bansal is an accomplice. He further submitted that statement of accomplice cannot be believed.
14.7 As regards the confessional statement of co-accused Mohd. Ayub (A-5), it was submitted by Ld. Counsel that it is a belated statement recorded after the gap of two years. It is not spontaneous and voluntary. Moreover, the confessional statement of co-accused cannot be used as an evidence against the accused unless there is a corroboration and support from some independent evidence.
14.8 In support of his submissions, Ld. Counsel has relied upon the judgments of Pancho Vs State of Haryana 2012 Crl. L. J. 832, Vishnu Prasad Sinha Vs State of Assam Crimial Appeal No. 453/2006, Rita Handa Vs. CBI 152 (2008) DLT 248 and A. K. Bose Vs State of Bihar AIR 1975 SC 1560. I have gone through the case law referred by Ld. Counsel.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 52/113 ARGUMENTS ON BEHALF OF ACCUSED NO. 215. Sh. M.P. Singh, Ld. counsel for accused no. 2 Mohd. Yunus Siddiquie has submitted that it is a case of no evidence against A-2. He argued that the prosecution has relied upon the handwriting expert opinion to connect the accused with the offence. He submits that Ex. PW-38/2 (D-23) i.e list containing some names with telephone numbers against them, is stated to be in the handwriting of accused A-2, as per the handwriting expert. However, Ld. counsel for A-2 argued that there is no evidence about the specimen writing of A-2. The handwriting expert compared Ex. PW-38/2 with the specimen handwriting S-143 to S-150 purported to be the specimen writing of A-2. He argued that there is no evidence that the specimen writing S-143 to S-150 marked Ex. 38/1 is that of A-2. No witness has deposed that this specimen writing of A-2 was taken in his presence.
15.1 Accused no. 2 Mohd. Yunus Siddiquie in his statement u/s. 313 Cr. P.C. has denied that his specimen writing was ever taken during the investigation. Ld. counsel for A-2 further argued that not only the specimen handwriting of accused Mohd. Yunus Siddiquie (A-2) could not be proved on the record, even the expert opinion can never be the sole basis of conviction in the absence of corroborative evidence or material on record. He referred to the judgment in Magan Bihari Lal Vs. State of Punjab, AIR 1997 (SC) 1091 in support of his argument.
15.2 Ld. counsel for A-2 further argued that the prosecution has relied upon the confessional statement of the co-accused Mohd. Ayub (A-5). Ld. CBI Vs R. K. Sharma and Ors CC No. 08/2012 53/113 counsel has argued that the confessional statement of a co-accused cannot be taken as a substantive evidence against A-2. He referred to the judgment in Bishnu Prasad Sinha Vs. State of Assam, 2007 (1) R.C.R. (Criminal) 724 and Pancho Vs. State of Haryana, 2011 (4) R.C.R. (Criminal) 665, AIR 2012 (SC) 238.
15.3 He argued that there has to be some evidence on record before the confession of a co-accused can be considered against an accused. In the present case, there is no evidence which connect the accused Mohd. Yunus Siddiquie (A-2) with the offence. He further argued that in the absence of any oral or documentary evidence against the accused, he cannot be connected with the offence. Thus, the prosecution has miserably failed to prove its case against Mohd. Yunus Siddiquie (A-2).
ARGUMENTS ON BEHALF OF ACCUSED NO. 3, 4 & 5.
16. Sh. R. M. Tufail, Ld. Counsel for accused persons namely Mohd. Riyaz (A-3), Mohd. Tahir (A-4) and Mohd. Ayub @ Jain (A-5) has argued that it is a case where there is no evidence to connect these accused persons with the offence. He argued that prosecution has relied upon two sets of evidence to connect these accused persons with the offence. First is the report of handwriting expert and second is confessional statement of co- accused. He argued that prosecution has miserably failed to prove its case against these accused persons. First of all, there is no recovery of any telephone instrument, wire, telephone directory etc., from the possession or at the pointing of any of these accused persons which were allegedly used in the commission of offence by them. He further argued that as per the CBI Vs R. K. Sharma and Ors CC No. 08/2012 54/113 case of prosecution, the telephone were installed at the residential premises of Md. Arif (PW-16), however, PW-16 Mohd. Arif and PW-15 Ms. Tahira have not supported the case of the prosecution. He further submitted that PW-4 Ram Adhar and PW-11 Gopal deposed that they had met two persons namely Basharat Ali and Mohd. Aslam at the spot when they laid the telephone lines but the investigating agency did not prefer to hold any TIP even after the arrest of the accused persons to establish their identity whether they were the persons who were seen by PW-4 and PW-11. Even otherwise these witnesses have not identified any of the accused as the persons who had met them at the time of laying of telephone lines.
16.1 As to the report of handwriting expert, Ld. Counsel has argued that this is simply an opinion which cannot be basis of conviction. The opinion is to be corroborated by other material evidence. However, in the present case there is no evidence against the accused persons. So far as the confessional statement of co-accused is concerned, it was submitted by Ld. Counsel that it is not a substantive piece of evidence and can be used only for the purpose of corroboration. Before the confession of an accused is taken as a corroborative evidence, there has to be independent sterling evidence connecting the accused with the offence. He further argued that prosecution has failed to show what evidence they had collected to which they required a corroboration in the form of recording of confessional statement of an accused. Ld. Counsel further argued that the incident was of the year 1995; the inquiry was registered in the year 1997; the accused were arrested in the year 1998 and the confession of accused Mohd. Ayub (A-5) was recorded in the year 1999. No reasonable explanation offered for such delay in recording confession. He argued that recording of the CBI Vs R. K. Sharma and Ors CC No. 08/2012 55/113 confession was only with view to facilitate the filing of charge-sheet in the present matter as there was no evidence to connect the accused persons with the offence till that time.
16.2 Ld. Counsel has also assailed the investigation stating that in the charge-sheet, two more persons were referred namely Mohd. Anwar and Arif Khan in Khana No. 2 but no explanation has been offered as to why they were not sent for trial. Also, the investigating agency did not identify the place where the telephones were in fact used. He further argued that IO did not investigate from whose account the draft of payment of fee for a new connection was got prepared.
16.3 As regard PW-21 S. S. Bansal, Ld. Counsel argued that he admitted taking Rs. 1500/- from the subscriber who as per the prosecution is one of the accused. If PW-21 had admitted having taken Rs. 1500/- from the accused then why it was not treated as a confessional statement and PW-21 S. S. Bansal was not made an accused. Thus, Ld. Counsel has argued that prosecution has failed to establish its case against the accused persons. The evidence on which the prosecution relied i.e report of handwriting expert and confessional statement of an accused, are not sufficient to connect the accused with the offence. Hence, they be acquitted.
16.4 In support of his submissions, Ld. Counsel has relied upon the judgments of Kali Ram Vs State of HP (1973) 2 SCC 808, State of U.P. Vs. Rambir Singh 2007 (3) Crimes 399 (SC), State of Rajasthan Vs. Islam (2011) 6 SCC 343, State of Delhi Vs. Shri Ram Lohia, AIR 1960 S.C. 490 (V 47 C 83), Ram Kishan Singh Vs. Harmit Kaur & Others CBI Vs R. K. Sharma and Ors CC No. 08/2012 56/113 AIR 1972 S.C. 468 (V 59 C 90) and Parmanda Pegu Vs. State of Assam 2004 Crl. L.J. 4197.
17. It is a case of criminal conspiracy entered into by accused persons to cheat Telecom Department by forging documents and obtaining telephone connection with STD and ISD facilities on the basis of forged documents in fictitious names and addresses. In pursuance of this criminal conspiracy, the accused Mohd. Riaz (A-3) and Mohd. Ayub (A-5) applied for telephone connection in the name of Mohd. Aslam and Basharat Ali respectively. Accused R. K. Sharma (A-1) facilitated the energizing of telephone connection knowing well that connections were obtained in fictitious name. Accused Mohd. Yunus Siddiqui (A-2) provided the fees of Rs. 15000/- for obtaining connection in the name of Basharat Ali and he also remained in contact with accused R. K. Sharma through whom he got the telephone numbers allotted for which Rs. 1500/- were paid to S. S. Bansal (PW-21) who issued the Jumper Letters at the instance of the accused R. K. Sharma (JTO). These telephone connections bearing numbers 3278646 and 3278630 were in fact got installed at place other than mentioned in Jumper Letters and abandoned after some time. The bill generated for the use of these two telephone bills remained unpaid. Thus, the Telecom Department has been cheated by obtaining connection in fictitious name and at fictitious address and causing wrongful loss to the Department.
18. In order to prove its case, the prosecution had to broadly establish that telephone connections 3278646 and 3278630 were obtained by CBI Vs R. K. Sharma and Ors CC No. 08/2012 57/113 accused Mohd. Ayub (A-5) and accused Mohd. Riaz (A-3) in the name of Basharat Ali and Mohd. Aslam respectively and subsequently ISD facility was also availed on these phones; these telephone connections were not installed at the address given in Order of Booking (OB) i.e at 2684, Gali Garahayya, Darya Ganj and 2641, Kucha Chelan, Darya Ganj; the accused R. K. Sharma (A-1) knew that subscribers and addresses were fictitious and he provided assistance in energizing of telephones, which were not installed at the addresses given in the OBs.
19. To prove its case, the prosecution has relied upon the oral statement of witnesses, documents, Expert Opinion (of handwriting expert) and judicial confession of accused Mohd. Ayub (A-5) before Metropolitan Magistrate.
20. The prosecution was to prove the fact that pursuant to the criminal conspiracy of all accused persons, two telephone bearing Nos. 3298646 and 3278630 were installed in fictitious names and at fictitious addresses. Accused R.K. Sharma is a public servant. He was working as JTO (Outdoor), Section-33 at Delhi Gate telephone exchange at the relevant time. The prosecution, in order to prove the case that the JTO, i.e. accused R.K. Sharma has committed the offence of criminal misconduct, has examined a number of witnesses, placed reliance on expert opinion and sought corroboration from the confessional statement of accused Mohd. Ayub (A-5). To ascertain whether the action on the part of JTO- accused R.K. Sharma amounts to criminal misconduct or not, it is necessary to understand the duty of JTO (Outdoor) and procedure for installation of a telephone connection.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 58/11321. In this regard, I would refer first to the statement of PW-30 Sh. G. L. Chaudhary, who was the Sub-Divisional Officer-III, Delhi Gate Exchange. He has explained that the JTO Incharge of a Section is responsible for the work pertaining to installation, disconnection of telephone connections including new as well as transfer cases and repair of fault etc. In performance of his duty, he is assisted by Phone Inspector, Sub-Inspector, Lineman and Regular Mazdoor. When the JTO receive an order from Commercial Officer regarding new connection, the same is entered in the OB Register (Order of Booking Register) which is maintained by JTO. The responsibility to check the bonafide of subscriber is of the JTO which he check either himself or through Phone Inspector. When the job is assigned to SI, Lineman, he visit the site where new connection of land- line is to be installed and also test the DP pair and pillar pair for installation of new connection. He also arrange line from DP to window of subscriber residence or up to the place in the house where telephone is to be installed in case the subscriber is available in the home (DP stands for Distribution Point). PW-24 R. K. Varun, who was Divisional Engineer (Outdoor) has also stated that for installing any telephone connection, OB is received by SDO, who is the Incharge of Sub-Division and then it comes to JTO from the office of SDO. The JTO checks the bonafide of the customer and thereafter allots necessary equipment to the concerned lineman of the area. The Pairs are given by the lineman who informs the JTO. Thereafter, JTO prepares Jumper Letter in which details of the Pair number, OB number and other details are mentioned and send Jumper Letter to the Record Section for opening of telephone number and jumpering at MDF. PW-7 Prakash Srivastava, Telephone Operator in the Record Room stated that on CBI Vs R. K. Sharma and Ors CC No. 08/2012 59/113 receipt of Jumper Letters from the JTO, same is forwarded to MDF (Main Distribution Frame) room and Switch Room for execution. After the completion of the work and confirmation from the subscriber, entry is made in the History Register of the Telephone Exchange. For confirmation from the subscriber, call is made to the subscriber. So, as per the procedure, it is the duty of the JTO to ascertain the bonafide of the subscriber and the address where the telephone is to be installed.
22. Now, before considering the role of accused R. K. Sharma (A-1) in installation of telephone connection in fictitious name and address, I would deal with the evidence of the prosecution which show that these telephones were not installed and did not function from the address mentioned in the Jumper Letters. It is an undisputed fact that as per Jumper Letter Ex. PW-10/D-1, the telephone no. 3278646 (OB No. 36026002856, dated 10.05.1995) was to be installed at 2684, Gali Garahayya, Darya Ganj, New Delhi, in the name of Mohd. Aslam and the telephone number 3278630 (OB No. 36026002854, dated 10.05.1995) was to be installed at 2641, Kucha Chelan, Darya Ganj, New Delhi-110002, in the name of Basharat Ali.
23. PW-37 Sh. R. S. Yadav, the then JTO (Vigilance), in the office of GM Vigilance, deposed that on 09.08.1995, a complaint was received from a reliable source regarding misuse of telephone no. 3278646 and 3278630, which were installed at Kucha Chelan and Gali Garahayya, Darya Ganj as per the record. He deposed that a surprise check team consisting of Mr. M. I. Kochar, Assistant Vigilance Officer, Sh. S. S. Bansal, Phone Inspector and Sh. G. L. Chaudhary, SDO, conducting the surprise check at the spot which revealed that the built up of the telephones was going to pillar 27 where as the area of installation of the telephones was serviced by pillar CBI Vs R. K. Sharma and Ors CC No. 08/2012 60/113 no. 28. The team which did the MDF tracing informed that these telephone numbers were Jumper-ed from NE-25/5/13 to pair 6/5/13 and NE-23/0/82 to pair 6/5/40. These were terminating at pillar No. 27/6/15 and 27/6/13 respectively. The DP No. 27/6 was found located in M. P. Street on the wall of house No. 2144. The switch board cable from DP No. 27/6 was found cut a few metre away. He further deposed that the inquiry about the persons who owned these telephone numbers as per the record was made at 2641, Kucha Chelan, Darya Ganj and 2684, Gali Garahayya, Darya Ganj, which revealed that persons named as Basharat Ali and Mohd. Aslam respectively had never lived at the given addresses. He further deposed that the drop wire at both the premises were found terminated on a window terminal. There were no further fittings up to the subscriber instrument.
24. Thus, the statement of this witness shows that the telephone numbers 3278646 and 3278630 were not found functioning from 2684, Gali Garahayya, Darya Ganj and 2641, Kucha Chelan, Darya Ganj. There was a submission by the Ld. Defence Counsel that the prosecution has not been able to show in which premises in fact these telephones were installed. I think this was not important in facts of the case. The fact that telephones were not installed and used at addresses mentioned in OBs and Jumper Letters, is sufficient to establish case of prosecution. The prosecution had to establish that these telephones were not functioning from the premises from where they were supposed to be operating. This has been proved by the prosecution by virtue of three Inspection Reports conducted in this case.
25. The first Report is of 09.08.1995 of the inspection conducting by PW-12 Sh. S. K. Goel, JTO, Vigilance in MDF, Delhi Gate Exchange.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 61/113This Report Ex. PW-12/A shows that there were no Jumpers on primary pair 39/7/51 of telephone number 3278646 and pair no. 11/5/86 of telephone no. 3278630. It was further found that NE-25/5/13 of telephone no. 3278646 was found Jumpered on 6/5/13 and NE-23/0/82 of telephone no. 3278630 was found Jumpered to 6/5/40. The dial tone on pair 6/5/13 and 6/5/40 was found 'OK'. This Report thus revealed that these telephones were not functioning on the allotted cable pair but were functioning on a different cable pair.
26. Another Inspection Report is also dated 09.08.1995 Ex. PW-10/B (wrongly mentioned as Ex. PW-10/A on the document. In fact Ex. PW-10/A is the page of the diary maintained by PW-10 Heera Ballabh showing his entry dated 24.05.1995). PW-18 Sh. M. I. Kochar has prepared this Inspection Report. With regard to this Report, he deposed that NE of these telephone numbers were extended to pairs of pillar No. 27 instead of pillar 28. The telephone numbers were extended on DP-2706 of pillar No. 27 which was found on the wall of house No. 2144, Gali M. P. Street, Darya Ganj. The cable was found cut and hanging. In the Report, it is also mentioned that no traces of switch board cable was found going inside any premises and it appeared that the user of both these telephones had cut the cable and draw up in his side to destroy the evidence of any communication set-up in the premises. It is further mentioned that the cable was tested and found dial tone on two pairs and on these pairs telephone number 3278646 and 3278630 were found working.
27. As per this Report, the telephone numbers 3278646 and 3278630 were found working on cable pairs on DP No. 2706 which was found CBI Vs R. K. Sharma and Ors CC No. 08/2012 62/113 outside the house No. 2144, Gali M. P. Street, Darya Ganj, meaning thereby these telephones were not on pillar No. 28 where they should have been functioning as per the record. This is further confirmed by another Inspection Report dated 11.08.1995 of PW-18. As per this Report, PW-18 along with area SDO, Phone Inspector S. S. Bansal and R. S. Yadav, JTO, Vigilance, had conducted the inspection. PW-18 Sh. M. I. Kochar deposed that they found Rosette (Window Terminal Point) fitted at the ground floor of premises no. 2684, Kucha Chelan, Darya Ganj and no further telephone line was provided in the premises at that time. He further deposed that they also visited premises No. 2641, Kucha Chelan and found drop wire terminated up to window terminal provided near the electric meter at the ground floor and no further fitting was found up to any premises. The inquiry also revealed that no one in the name of Basharat Ali and Mohd. Aslam was residing at these addresses. This Report Ex. PW-18/A further confirms that connection was provided up to window terminal but there was no further connection from window terminal inside any premises. Both this pairs were tested from pillar point to DP and further up to subscribers premises by extending dial tone of some other number but dial tone could not be heard either at DP point or window terminal provided at both the premises.
28. Thus, the Inspection Reports Ex. PW-12/A, Ex. PW-10/B (wrongly mentioned as Ex. PW-10/A on the document) and Ex. PW-18/A and the statement of PW-12 S. K. Goel, PW-18 M. I. Kochar and PW-37 R. S. Yadav prove that the telephone numbers 3278646 and 3278630 in the name of Mohd. Aslam and Basharat Ali respectively, were not installed at the given addresses 2684, Gali Garahayya, Darya Ganj and 2641, Kucha Chelan, Darya Ganj and they were operating from different cable and CBI Vs R. K. Sharma and Ors CC No. 08/2012 63/113 different pairs. Thus, the prosecution has proved that telephones were installed at different premises from different pillar.
29. Whether the accused R. K. Sharma (A-1) was aware about the fictitious name of the subscribers and the fictitious addresses where the telephone were to be installed as per the OBs? To look for an answer to this question, I would look into the evidence of witnesses.
30. The prosecution examined Sh. Zahir Ahmed (PW-8) and Sh. M. K. Khan (PW-9). Both residents of 2641, Kucha Chelan, Darya Ganj. It is pertinent to note here that the telephone number 3278630 was to be installed at this address in the name of Basharat Ali. Both these witnesses are the residents of this premises i.e 2641, Kucha Chelan, Darya Ganj, and have deposed that no person by name of Basharat Ali ever lived as a tenant or otherwise in the said complex which has 8 flats owned by different owners. It was deposed by them that some telephone bills in the name of Basharat Ali were delivered in the complex but no one claimed the same. In the cross-examination, both these witnesses have stated that they were called by the IO where they have made the above statement. Both these witnesses are independent witnesses with no motive to support the prosecution and to depose against the accused. There is no material to draw any inference that these witnesses deposed under any sort of pressure. The statement of these witnesses proved the fact that no person with the name of Basharat Ali was resident in premises No. 2641, Kucha Chelan, Darya Ganj and the telephone number 3278630 was not installed in this premises.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 64/11331. The prosecution then examined Sh. Zia-ul-Haq-Soz (PW-22). He has deposed that in premises No. 2684, Kucha Chelan, Darya Ganj, there are 8 flats and no person by the name of Mohd. Aslam or Mohd. Riaz ever resided there. The statement of this witness goes unchallenged in the cross-examination. This statement established that Mohd. Aslam in whose name telephone number 3278646 was issued, was not residing at the address mentioned by him in the application as 2684, Gali Garahayya, Darya Ganj.
32. Having established that Basharat Ali and Mohd. Aslam subscribers to phone no. 3278630 and 3278646 were not residing at the addresses mentioned in the OBs, the prosecution then rely upon the statement of PW-21 S. S. Bansal, PW-10 Heera Ballabh, PW-4 Ram Adhar and PW-11 Gopal to prove that the accused R. K. Sharma (A-1) knew about these facts. I shall deal with the statement of PW-21 S. S. Bansal first.
33. PW21 Shri S.S. Bansal, who was working as a Telephone Inspector at Telephone Exchange, Delhi Gate at the relevant time, has deposed that he was attached to accused R.K. Sharma, who was Incharge of the area concerned. In the month of May, 1995, there were orders of opening of two telephone connections, which were received by accused R.K. Sharma and kept in his custody. Accused R.K. Sharma had told him that the parties in whose favour the telephone connections were to be released, had met him on the previous day at a function and also told that he would not come in the office on next day and further directed him (PW-21) that he should accept the documents/ annexures which will be handed over by the said customers and to issue Jumper Letters to the concerned Branch/ Office. He CBI Vs R. K. Sharma and Ors CC No. 08/2012 65/113 had also directed him to accept whatever money is given by customers. The perusal of deposition of this witness further reveals that thereafter two persons had come to him and gave him two annexures along with Rs. 1500/- as cash. The said two persons did not disclose as to by whom they were sent, however, they had told him that they already have a talk with accused R.K. Sharma. The Annexures were in the names of customers in whose names the telephone connections were to be released. This witness had got the annexures and received the cash of Rs.1500/- and issued the Jumper Letters (Ex. PW-10/D-1 and Ex. PW-10/D-2). He had also delivered the telephone numbers to the said persons after getting the same issued from the record. Next day, accused R.K. Sharma had come and Rs.1500/- were handed over to him. Out of this amount, accused R.K. Sharma had given him (PW21) Rs.500/- and kept Rs.1000/- with him. This witness has further deposed that he had given one copy of Jumper Letters to Lineman Heera Ballabh for getting telephone instrument and directory. After 2 or 3 days, Heera Ballabh (PW10) had informed accused R.K. Sharma in his presence that the parties had not met him at the time of installation of telephones and the telephone connection could not be installed.
34. Ld. Defence counsel for accused No. 1 has submitted that statement of this witness cannot be relied upon for two reasons. First, he has given inconsistent statement and secondly, as per his own statement he kept Rs. 500/- allegedly given by accused No. 1 out of Rs. 1500/- given by the subscribers to him and thus he is an accomplice whose statement cannot be believed. This witness (PW-21) has also deposed about the endorsement made by the accused R. K. Sharma in the OB Register Ex. PW-21/A CBI Vs R. K. Sharma and Ors CC No. 08/2012 66/113 (D-20) and the modification made in the Jumper Letters by writing the word 'normal' and confirming that the subscribers answered the verification call by writing 'ROTSS' on the Jumper Letters. However, before dealing with this part of his statement, I would deal with the objection of the Ld. Defence Counsel with regard to statement of PW-21.
35. At the outset, it may be stated that even if PW-21 is considered as an accomplice, his statement cannot be ignored. The Ld. PP for CBI has vehemently opposed this plea of the Ld. Defence Counsel that statement of PW-21 cannot be accepted because he is an accomplice. Ld. PP relied upon the judgment in case of Jaspal Singh, Dy. Superintendent of Police Vs State of Punjab, (2012) 1 SCC (Crl.) 1.wherein it was held that an accomplice who has not been put on trial is a competent witness as he deposes in court after taking oath and there is no prohibition in any law not to act upon his deposition without corroboration.
36. It is settled law that an accomplice is a competent witness and conviction can lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime.
37. Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an CBI Vs R. K. Sharma and Ors CC No. 08/2012 67/113 accomplice. Thus, the statute provides firstly, accomplice is a competent witness against an accused and secondly, a conviction resting on uncorroborated testimony of an accomplice is not illegal. But at the same time, Section 114, Illustration (b) sounded a word of caution saying that Court "may" presume that accomplice is unworthy of credit unless he is corroborated in material particulars. Even this caution does not say that Court has to presume an accomplice unworthy of credit without corroboration. The Hon'ble Supreme Court in K. Hasim Vs State of Tamil Nadu, (2005) 1 SCC 237 has examined this issue while taking into consideration the provisions of Section 133 read with Section 114, Illustration (b) of the Evidence Act. The legislature in its wisdom used the word "may" and not "must" and, therefore, the court does not have a right to interpret the word "may" contained therein as "must". The court has to appreciate the evidence with caution and take a view as to the credibility of the evidence tendered by an accomplice. In case the evidence of an accomplice is found credible and cogent, the court can record the conviction based thereon even if uncorroborated. With regard to corroboration, the Hon'ble Apex Court observed that it is not necessary that there should be an independent corroboration of every material circumstance in the sense that the independent evidence of the case apart from the testimony of the accomplice should in itself be sufficient to sustain conviction.
38. Therefore, even if PW-21 is treated as an accomplice, still his statement is admissible against the accused without any corroboration because he is not put to trial with the accused. Moreover his statement inspire confidence if seen in the context of the case and surrounding CBI Vs R. K. Sharma and Ors CC No. 08/2012 68/113 circumstances. Ld. Defence counsel had objected to his statement on the ground that he is hostile witness of prosecution. In this regard, it can be said that statement of a witness is examined in its entirety and has to be read along with the statements of other witnesses in order to arrive at a rational conclusion. Moreover, as held in Rajender and Anr Vs State of Uttar Pradesh AIR 2009 SC 2558, evidence of hostile witness may not be totally rejected, portion of his testimony which is consistent with case of prosecution, may be accepted. In the present case, PW-21 has received corroboration from other witnesses as well, which lends credence to his statement. The Ld. Defence counsel had argued that this witness is unreliable as he has changed his statement at different forums while in the Court he deposed that he had taken Rs. 1500/- from the subscribers but in the Departmental Inquiry, he denied taking money from the subscribers. Ld. Defence counsel referred to the statement of DW-2 Pramod Kumar and referred to the letter Ex. PW-21/DD later on also exhibited as Ex. DW-2/2 wherein PW-21 has denied taking any money from the subscribers of telephone numbers 3278646 and 3278630 and R. K. Sharma.
39. The contention of the Ld. Defence counsel for A-1 that PW-21 S. S. Bansal has given inconsistent statement, it would be suffice to say that this witness although has changed his version regarding acceptance of money in disciplinary proceedings but in the Court he has admitted the fact of accepting money. His statement in the Court is found believable because of the corroboration it receives from other evidence and that corroborative evidence is the confession of the accused Mohd. Ayub (A-5). (The objections of the Ld. Defence counsel regarding the admissibility of confession of the Mohd. Ayub (A-5) will be discussed later on when I will CBI Vs R. K. Sharma and Ors CC No. 08/2012 69/113 discuss the evidence against other co-accused). Apart from the confession of A-5, the fact that A-1 was involved actively in the issuance of telephone numbers 3278646 and 3278630 also stands corroborated by the statement of PW-10 Heera Ballabh, PW-4 Ram Adhar and PW-11 Gopal.
40. Now, I shall discuss the statement of PW10 Sh. Heera Ballabh. PW10 Shri Heera Ballabh has stated that he was working as Lineman in MTNL since 1994. In the month of May, 1995, Accused R.K. Sharma had called him and told him that two telephone connections were to be opened and handed over the same numbers to him as well as the addresses of the subscribers, where the telephones were to be installed. Accused R.K. Sharma had also given him copies of Jumper Letters for issuance of telephone directory and telephone instruments of both the connections. The connections were to be installed at 2641, Gali Khajur Wali, Kucha Chelan, Daryaganj, Delhi and 2684, Gali Garahayya, Darya Ganj, New Delhi which connections were to be connected from pillar No.28 and he was the Incharge of pillar No.28. On next day he had visited both the said addresses, but the subscribers were not found there. He visited 3 to 4 days but the subscribers were not found present on the said addresses. He also made entry in his personal diary regarding his visit to the said addresses. The relevant page of diary is proved as Ex. PW-10/A. He had put cross (X) on both the entries at point Y which are against the names of Mohd. Aslam and Basharat Ali. He had also inquired from the neighbouring residents but was informed that names of subscribers were not known to them. One day, when he was on leave, he had come to know that wiring of both the said connections was got done by Accused R.K. Sharma, through his labourers. During inquiry, it revealed that both the subscribers had met accused R.K. Sharma and fitting was got done on the directions of CBI Vs R. K. Sharma and Ors CC No. 08/2012 70/113 Accused R.K. Sharma. He has also deposed that he had handed over telephone directory and telephone instruments of both the subscribers to Accused R.K. Sharma. This witness has further deposed that after joining the duty, he had visited the aforesaid addresses and saw that telephone lines were installed inside the premises up to the staircase. Accused R.K. Sharma told him that internal wiring connection would be done by the subscribers themselves.
41. PW-11 Gopal has deposed that PW-10 Heera Ballabh along with him had visited the premises for installation of new telephone connection in the name of Basharat Ali and Mohd. Aslam but were unable to contact the subscribers at the given addresses and after inquiry they came to know that no such person was residing there. Therefore, the work could not be executed. Thus, this witness (PW-11) has corroborated PW-10 regarding his visit for installation of telephones and non-availability of persons at the addresses, in whose name the telephone connections were issued. PW-11 further deposed that one day when the Incharge Heera Ballabh was on leave, the accused R. K.Sharma (A-1) JTO, directed him and Ram Adhar (PW-4) who was also a regular mazdoor to fix the telephone lines up to the gate terminal in both the cases from their respective DP boxes. He deposed that at the spot they met two persons namely Basharat Ali and Mohd. Aslam who told that they would fix telephone lines further themselves.
42. PW-4 Ram Adhar has also deposed that on the directions of accused R. K. Sharma (JTO) who had handed over to him two OBs for fitting, he made fittings of telephone connections at the staircase of the premises. He deposed that there was no one in the said premises and he told about the CBI Vs R. K. Sharma and Ors CC No. 08/2012 71/113 fittings to Heera Ballabh.
43. Thus, the statement of PW-10 Heera Ballabh, PW-11 Gopal and PW-4 Ram Adhar proved that the subscribers were not available at the given addresses and the fittings of the telephone lines was made only up to the staircase and not inside the premises by installation of the telephone instruments. This evidence along with statement of PW-21 S. S. Bansal is sufficient to conclude that the accused R. K. Sharma (A-1) was well aware that the subscribers were fictitious and the telephones were being installed at premises other than the addresses mentioned in the OBs and Jumper Letters. This fact about the knowledge of the accused R. K. Sharma (A-1) is further evident from the conduct of the accused when he wrote 'ROTSS' on the back of Jumper Letters.
44. PW-7 Sh. Prakash Srivastava, who was the Telephone Operator in the Record Section has deposed that it was his duty to pass Jumper Letter received from JTO to MDF room and Switch Room for execution and then make an entry in the record. He deposed that after execution of the work and confirmation from the subscriber, entry is made in the History Register of Telephone Exchange. In case, he is unable to talk to the subscriber after passing of the current, he inform the concerned JTO / Phone Inspector and if the JTO is able to talk to the subscriber on phone, then he certifies about having talked to the customer. He deposed that in the present case, he could not talk to the subscriber and told R. K. Sharma (JTO) verbally about this. He deposed that he made entry to this effect by writing 'NR' (No reply from subscriber) on Ex. PW-10/D-1 and Ex. PW-10/D-2 on their backside. He identified his relevant entries dated 03.06.1995, 04.06.1995 CBI Vs R. K. Sharma and Ors CC No. 08/2012 72/113 and 05.06.1995 at point A, B & C on Ex. PW-10/D-1 and Ex. PW-10/D-2. After some day, R. K. Sharma (A-1) wrote on Jumper Letters that he talked with subscribers. Thereafter, he made entry in the History Register. This witness was shown the Jumper Letters Ex. PW-10/D-1 and Ex. PW-10/D-2 for telephone numbers 3278646 and 3278630 respectively. He identified on the back of these two documents the writing of the accused R. K. Sharma (A-1) to the effect 'ROTSS' (Right On Test Subscriber Speaking) and stated that names of the subscribers under this endorsement have been written by the accused R. K. Sharma (A-1) as M. Aslam on Ex. PW-10/D-1 and Basharat on Ex. PW-10/D-2. He deposed that both the writings have been signed by accused R. K. Sharma with the date at point Q-9A and Q-10A. He further deposed that the effect of this endorsement means that R. K. Sharma had talked to subscribers in question.
45. Ld. Defence Counsel for accused No. 1 argued that the words 'ROTSS' on the Jumper Letters could be written by the JTO and there is no evidence to show that JTO was not authorized to write these words on the Jumper Letters. Referring to the statement of PW-24 R. K. Varun, he submitted that if the Record Section fails to connect the concerned party, the matter is reported to the JTO. He further submitted that PW-7 Prakash Srivastava has stated that if the JTO is able to talk to the subscriber then he can certify about having talked to the customer by writing 'ROTSS'. Thus, there is no illegality in writing of 'ROTSS' in the Jumper Letters by the accused.
46. Ld. Defence Counsel has rightly argued that if Record Section is unable to talk to subscriber, the JTO is informed and there would be CBI Vs R. K. Sharma and Ors CC No. 08/2012 73/113 nothing wrong if the JTO writes 'ROTSS' after talking to the subscriber. But in the context of the present case, writing of the words 'ROTSS' has acquired importance because there is evidence which show that the subscribers were not available and residing at the addresses on which the telephones were to be installed. If there was no illegality in writing of 'ROTSS' by accused R.K. Sharma being the JTO, I fail to understand why this accused denied in his statement under Sec. 313 Cr.PC that the words 'ROTSS' were written by him at point Q-9A and Q-10A on Ex. PW-10/D-1 and PW-10/D-2. The fact that he had written these words stands proved from the statement of PW-7 Prakash Srivastava and PW-21 S. S. Bansal. Apart from the statement of these two witnesses, there is a Report of the handwriting expert Ex. PW-25/B which confirms that the writing at Q-9A and Q-10A on Ex. PW-10/D-1 and Ex. PW-10/D-2 are of accused R. K. Sharma. (The objection of the Ld. Defence Counsel for accused No. 1 as to the admissibility of report of handwriting expert will be discussed in the later part of the judgment when I will take up this issue while dealing with the similar objection of Sh. R. M. Tufail, Ld. Counsel for accused No. 3, 4 and 5). Despite this overwhelming evidence that he (A-1) wrote ROTSS on the Jumper Letters, his denial in his statement under Sec. 313 Cr.PC that he did not write these words on the Jumper Letters is an indicator towards a guilty mind. If the accused R. K. Sharma as JTO was authorized to write ROTSS, there was nothing to prevent him from accepting this fact that he wrote ROTSS, in reply to a question put to him in this regard in his statement under Sec. 313 Cr.PC. It makes it evident that accused R. K. Sharma (A-1) was well aware that there was no person with the name of subscribers Basharat Ali and Mohd. Aslam at the given addresses and the subscribers were fictitious. Because he knew this fact that the subscribers CBI Vs R. K. Sharma and Ors CC No. 08/2012 74/113 and the addresses were fictitious, he had denied his writing ROTSS on Jumper Letters.
47. The Ld. Counsel for accused R. K. Sharma has argued that accused R. K. Sharma is innocent and he has been made a scapegoat by the Department. He argued that the telephone lines could have been changed from pillar No. 28 to pillar No. 27 only from MDF. He also submitted that as per PW-30 Sh. G. L. Chaudhary, the keys of the pillar remain in the custody of SI, Incharge of the pillar and the jumpering inside the pillar is also done by him. He further argued that PW-30 has admitted that Jumper Letters had been issued for pillar No. 28 and shifting of pillars can be done only by manipulating through MDF in the Exchange. He emphasized further that as per PW-30, the last line from the Distribution Point to the windows of the subscriber's building was intact and thus telephone lines right from the MDF to the windows of the subscribers were intact. He further submitted that as per PW-30 current is always opened after Clip Test shows that line up to the telephone instrument are duly fixed and are not broken. Referring to the statement of PW-10, Ld. Counsel argued that the pairing in the Jumper Letter was made by the lineman on pillar No. 28 and the pairing can be changed only in the MDF room and no telephone line can be shifted to any other pillar or area without an OB order from the Head Quarter. Referring to the statement of PW-5 Madhu Sudan Lal, Ld. Counsel argued that pillar No. 27 and 28 are away from each other and are not interconnected. These pillars were directly and separately connected with MDF of the Telephone Exchange.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 75/11348. The Ld. Defence Counsel, however, has ignored this fact that despite the connection being provided up to the subscriber's building as per the Jumper Letters, no current and dial tone on the phone numbers 3278646 and 3278630 was found through pillar No. 27. The Inspection Report dated 09.08.2005 shows that the four pair switch board cable was found from DP point 2706/13 and 2706/15 running towards house No. 2137 in front of one Masjid and the cable was found cut and hanging. The cable was tested and found dial tone on two pairs and on these pairs telephone numbers 3278646 and 3278630 were found working. This proves that the submission of Ld. Defence counsel is contrary to the documentary evidence produced by the prosecution.
49. I would agree with the submissions of Ld. Defence counsel for accused No. 1 that telephone lines could have been changed from MDF and also that the lineman who is Incharge of a pillar can also be instrumental in change of the pillar. I would like to say that the IO has shown the lack of expertize in investigation otherwise the IO would have examined witnesses from the MDF. The role of the lineman also could have been examined in depth as that could have shown the involvement of some more officials of the MTNL. In the charge-sheet only accused R. K. Sharma is the public servant and as per the allegation he was in conspiracy with unknown official of MTNL. Who were the unknown official of MTNL perhaps has not been probed. The investigation is faulty in this regard. But at the same time, I would say that defective investigation cannot be a ground itself to ignore the evidence against an accused who has been sent for trial nor the possibility of involvement of some other officials of the MTNL can absolve the accused R. K. Sharma (A-1) of his CBI Vs R. K. Sharma and Ors CC No. 08/2012 76/113 liability for his acts. Even if some other accused persons could have been brought on record by a more diligent investigation that would not exonerate the accused R. K. Sharma for his criminal misconduct. He being the Incharge of the area as JTO was to ensure that telephone is installed at a proper address. Specially when Senior Lineman Heera Ballabh (PW-10) told him that he visited the premises but failed to locate the subscribers. Still A-1 ventured to install the telephone lines up to the window terminals of the address of the subscribers. Thereafter by writing ROTSS on the Jumper Letters on Ex. PW-10/D-1 and Ex. PW-10/D-2, he is confirming this fact that he had talked to subscribers while there was none. Strangely enough he denied having written ROTSS on Jumper Letters. This brings me to the reports of the Handwriting Experts PW-25 Sh. N. K. Aggarwal and PW-38 Sh. V. K. Khanna, which prove that words ROTSS were written by R. K. Sharma (A-1).
50. The Handwriting Experts namely PW-25 Sh. N. K. Aggarwal and PW-38 Sh. V. K. Khanna have submitted their reports. PW-25 submitted his report dated 30.11.1998 as Ex. PW-25/A and dated 21.12.1999 as Ex. PW-25/B. PW-38 Sh. V. K. Khanna submitted his report Ex. PW-38/A dated 28/31.08.1998.
51. During the investigation, questioned documents and the specimen handwriting of the accused persons were sent to the CFSL. As regards the accused R. K. Sharma, following documents were sent for examination.
(i) Q-9 and Q-10. On Ex. PW-10/D-1 and PW-10/D-2 (Jumper Letters, D-26). As per prosecution, the accused had written the work 'Normal' after cutting 'Bar STD'.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 77/113(ii) Q-9a and 10a (Ex. PW10/D-1 and PW-10/D2 (Jumper Letters). The questioned documents is the writing of accused R. K. Sharma, as 'ROTSS Mr. Aslam' and 'ROTSS Mr. Basharat'.
(iii) Q-11 and Q-11a in D-20 i.e entries in the OB register of JTO maintained by accused No. 1.
51.1 Along with the questioned documents mentioned above, their corresponding specimen handwriting of accused R. K. Sharma was also sent. The corresponding specimen handwriting with regard to Q-9 and Q-10 is S-35a to S-40a Ex. PW-25/B-35 to B-40. The corresponding specimen writing with regard to Q-9a is S-51a to 59a Ex. PW-25/B-51 to
59. The corresponding specimen writing with regard to Q-10a is S-41a to 50a Ex. PW-25/B-41 to 50. The corresponding specimen to Q-11 and 11a is S-7a to S-28a Ex. PW-26/A. The specimen handwriting of accused R. K. Sharma (A-1) S-7a to S-28a on Ex. PW-26/A has been identified by PW-26 Sh. S. K. Gauba in whose presence these standard writings were taken. The witness also identified the accused R. K. Sharma in the Court. The specimen writing of accused R. K. Sharma S-1a to S-6a and then S-29a to S-59a was taken in the presence of PW-35 Sh. D. Sen Gupta.
51.2 As per the report of PW-25 Sh. N. K. Aggarwal Ex. PW-25/B, the writer of specimen standard writing S-1a to S-59a and admitted writing A-1 to A-36 attributed to accused R. K. Sharma (A-1) is also the writer of questioned writing Q-9, Q-9a, Q-10, Q-10a, Q-11 and Q-11a.
52. As regards the accused Mohd. Yunus Siddiqui (A-2), following documents were sent for examination:-
CBI Vs R. K. Sharma and Ors CC No. 08/2012 78/113(i) Q-6 (D-23) Ex. PW-38/2. This is a sheet of paper on which certain names with telephone numbers and amount against them is written.
52.1 The corresponding specimen English writing of the accused Mohd. Yunus Siddiqui (A-2) is S-143 to S-150 Mark PW-38/1.
52.2 As per the report of PW-38 Sh. V. K. Khanna Ex. PW-38/A, the writer of specimen standard writing S-143 to S-150 (attributed to accused Mohd. Yunus Siddiqui, A-2) is also the writer of questioned writing Q-6 (On D-23 Ex. PW-38/2). The specimen / standard handwriting S-143 to S-150 Mark PW-38/1 has been identified by PW-38 Sh. V. K. Khanna, Handwriting Expert.
53. As regards the accused Mohd. Riaz (A-3), following documents were sent for examination:-
(i) Q-5, Q-5A to Q-5D. Specimen signature sheets submitted in the MTNL Ex. PW-25/4 bearing signature as Mohd. Aslam.
(ii) Q-6 and Q-6A. Duplicate application form to be submitted along with the application Ex. PW-25/5. Q-6A is the signature.
(iii) Q-7 A and Q-7B. Application for ISD facility on telephone number in the name of Mohd. Aslam Ex. PW-1/B. 53.1 The specimen writing and signature of accused Mohd. Riaz (A-3) is S-12 to S-37 and S-12a to S-37a Ex. PW-25/C-1 to C-25. The corresponding specimen to Q-5A to Q-5D, Q-6, Q-7A and Q-7B is S-20 to S-23 Ex. PW-32/A-1 to A-4. As per the report of the handwriting expert CBI Vs R. K. Sharma and Ors CC No. 08/2012 79/113 Ex. PW-25/A, the writer of specimen standard writing S-12a to S-37a and S-20 to S-23 is also the writer of questioned writing Q-5A to Q-5D, Q-6, Q-7A and Q-7B. Specimen writing S-20 to S-27 (Ex. PW-32/A-1 to A-8) of the accused Mohd. Riaz was taken in the presence of PW-32 Sh. M. S. Rao.
54. As regards the accused Mohd. Ayub (A-5), following documents were sent for examination:-
(i) Q-1A to Q-1D. These are the signatures in the name of Basharat Ali on the specimen sheet submitted to MTNL. These questioned documents are Ex. PW-25/1.
(ii) Q-2. This is the duplicate application which is submitted to MTNL along with the original and documents for obtaining the telephone connection. This is Ex. PW-25/2 and bears the signature as Basharat Ali in Hindi.
(iii) Q-3 is annexure A submitted in the MTNL under the signature and in the name of of Basharat Ali. This is Ex. PW-25/3.
(iv) Q-4A and Q-4B. This is an application for ISD facility on telephone no. 3278630 in the name of Basharat Ali.
(v) Q-5 (D-23) Ex. PW-25/C. This is a sheet of paper on which certain names with telephone numbers and amount against them is written
54.1 The corresponding specimen handwriting accused Mohd. Ayub (A-5) to Q-1A to Q-1D, Q-2, Q-3 and Q-4A and Q-4B is S-80, S-88, S-104, S-109 and S-114 Ex. PW-25/S-1 to S-5. The corresponding specimen writing of accused Mohd. Ayub (A-5) to Q-5 (D-23) is S-119 to CBI Vs R. K. Sharma and Ors CC No. 08/2012 80/113 S-142 (D-24) Ex. PW-25/S-6 to S-29.
54.2 As per the report of the handwriting expert Ex. PW-25/A, the writer of specimen standard writing S-80, S-88, S-104, S-109 and S-114 (attributed to accused Mohd. Ayub, A-5) is also the writer of questioned writing Q-1A to Q-1D, Q-2, Q-3 and Q-4A and Q-4B. However, no opinion could be given with regard to questioned writing Q-5 (D-23). The specimen /standard writing of the accused Mohd. Ayub (A-5) i.e S-80, S-88, S-104, S-109 and S-114 (Ex. PW-25/S-1 to S-5) and S-119 to S-142 (Ex. PW-25/S-6 to S-29) were taken in the presence of PW-31 Sh. J. C. Sharma.
55. Having considered the questioned documents in the handwriting of accused R. K. Sharma (A-1), accused Mohd. Yunus Siddiqui (A-2), accused Mohd. Riaz (A-4) and accused Mohd. Ayub (A-5), their specimen handwriting and the report of the handwriting experts, I shall deal with the arguments of the Ld. Defence counsels with regard to the opinion of the Handwriting Expert, its admissibility and evidentiary value.
56. All the Ld. Defence counsels had argued in unison that the Handwriting Expert report is not sufficient to connect the accused with the offence. Sh. M. P. Singh, Ld. Counsel for accused No. 2 argued that the Expert opinion with regard to handwriting of an accused can never be the sole basis of conviction in the absence of corroborative evidence or material on record. He relied upon the judgment in the case of Magan Bihar Lal Vs State of Punjab AIR 1977 SC 1091. He also submitted that apart from this the prosecution could not prove the specimen handwriting CBI Vs R. K. Sharma and Ors CC No. 08/2012 81/113 S-143 to S-150 attributed to the accused Mohd. Yunus Siddiqui. He argued that there is no evidence that this specimen writing pertains to the accused Mohd. Yunus Siddiqui. The accused himself in his statement under Sec. 313 Cr.PC denied that his specimen writing was ever taken during the investigation.
57. Sh. R. M. Tufail, Ld. Counsel for accused A-3, A-4 and A-5 has argued that the Handwriting Expert report is simply an opinion which needs to be corroborated by other material evidence. He also argued that in the present case the specimen handwriting of accused A-3 and A-5 was allegedly taken without any permission of the court. Therefore, the Handwriting Expert's reports cannot be read in evidence against the accused persons. His reliance is on the judgments in Rakesh Kumar Vs State 2004 (1) JCC 110 and Sapan Haldar Vs State Crl. Appeal No. 804/2001 decided on 25.05.2012 in support of his argument that without the permission of the Court, specimen handwriting of the accused cannot be taken during investigation. He also relied upon Fakruddin Vs State of MP AIR 1967 SC 1326, Magan Bihari Vs State of Punjab (Supra) to support his arguments that these reports cannot be conclusive evidence against the accused persons.
Sample of handwriting of accused without permission of court - Effect ?
58. Learned Defence Counsels have argued that the Investigating Officer was not empowered by the law to take sample handwriting of the accused persons during the course of trial. It is, therefore, argued that sample CBI Vs R. K. Sharma and Ors CC No. 08/2012 82/113 handwriting of accused persons namely R. K. Sharma (A-1), Mohd. Yunus Siddiqui (A-2), Mohd. Riaz (A-3) and Mohd. Ayub (A-5) taken by the Investigating Officers is not in accordance with law and hence cannot be considered in evidence.
58.1 Learned PP for CBI, on the other hand, has argued that there is no illegality in taking specimen signatures of accused persons during the trial. In this regard, he has relied upon the judgment titled as Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 where the Hon'ble Supreme Court has held that taking of specimen signatures/handwriting of the accused is not illegal and report of expert can be used as an evidence.
58.2I have considered the rival submissions. In the case of Sapan Haldar (supra), no doubt, it has been held that a police Officer, during investigation, cannot direct the accused to give sample signatures or handwriting and the power is that of the Court concerned and is to be found under Section 73 of the Indian Evidence Act. Perusal of the Judgment of Hon'ble High Court in Sapan Haldar (supra) shows that it does not refer to the case of Rabindra Kumar Pal @ Dara Singh (supra), decided by the Hon'ble Supreme Court, obviously for the reason that it was not brought to the notice of the Hon'ble High Court. Moreover, as per the law, the law laid down by Hon'ble Supreme Court shall prevail over the law laid down by the Hon'ble High Court. Perusal of the judgment of Rabindra Kumar Pal @ Dara Singh (supra), reveals that Hon'ble Supreme Court had specifically considered this question in this judgment. The Hon'ble Supreme Court thereafter considered whether Investigating Officer can take the specimen handwriting of accused during investigation.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 83/113In the said case, the Investigating Officer had taken a specimen signatures of the accused persons and Hon'ble Supreme Court has held that the principles, the procedure adopted by the Investigating Agency analyzed and approved by the Trial Court and confirmed by the Hon'ble High Court, cannot be faulted with. The relevant paragraph of the judgment read as under:-
"Another question which we have to consider is whether the Police (CBI) had the power under the Cr.PC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Cr.PC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him.
To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay vs. Kathi Kalu Oghad and Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for CBI Vs R. K. Sharma and Ors CC No. 08/2012 84/113 consideration:
"2. ... ... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwriting - Ex. 27, 28, and 29 - the accused could be said to have been 'a witness against himself' within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwriting had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwriting.
4. ... ... The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution."
The following conclusion/answers are relevant:
10. ... ... Furnishing evidence in the latter sense could not have been within the contemplation of the Constitution- makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-
incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing CBI Vs R. K. Sharma and Ors CC No. 08/2012 85/113 criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ... ....
11. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. ..... A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They CBI Vs R. K. Sharma and Ors CC No. 08/2012 86/113 are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. In view of these considerations, we have come to the following conclusions :-
(1)An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2)The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3)'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this CBI Vs R. K. Sharma and Ors CC No. 08/2012 87/113 strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made".
58.3 In view of the above position of law, the arguments of Ld. Defence counsels that the Handwriting Expert's Reports can not be read in evidence because specimen / standard handwriting of the accused persons were taken during investigation without permission of the court, will not stand. However, the Ld. Defence counsels have also taken this plea that the Handwriting Expert opinion being a mere opinion cannot be a basis of the conviction. A fact can be proved either by direct evidence or indirect evidence. When the question arise whether a particular document is written by an accused, the Court has to form an opinion either by resorting to Sec. 73 of the Indian Evidence Act to compare the questioned signatures, writings etc., with the admitted signatures / writings or the Court may rely upon the statement of witnesses who have seen the accused writing the particular document or who are familiar with the writing of the accused. Sec. 45 of the Evidence Act provides that when a Court has to form an opinion as to identity of handwriting then the opinion upon that point of a person specially skilled in the science as to identity of handwriting is a relevant fact. Meaning thereby that an opinion by the Handwriting Expert regarding the handwriting of the accused on the questioned document is a relevant fact which the Court consider to form its CBI Vs R. K. Sharma and Ors CC No. 08/2012 88/113 opinion whether the accused is the writer of the questioned document.
59. Now, the question is whether the opinion of Handwriting Expert is sufficient to record a conviction?
59.1 The Ld. Defence counsels have relied upon the judgment in Magal Lal Bihari's case (Supra) wherein it was observed as under:-
" It is now well settled that Expert opinion must always be received with great caution and perhaps none so with more caution then the opinion of a Handwriting Expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on Expert opinion without substantial corroboration. This Rule has been universally acted upon and it has almost become a rule of law".
59.2 In the case of Fakhruddin Vs State (Supra) the Court considered the evidentiary value of Expert opinion in regard to handwriting and observed that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence direct or some circumstantial.
59.3 The Ld. PP for CBI on the contrary argued that though it is a settled law that Handwriting Expert opinion should be corroborated by independent evidence, however, this law is not absolute. He placed reliance on the judgment in the case of Lalit Popli Vs State AIR 2003 SC CBI Vs R. K. Sharma and Ors CC No. 08/2012 89/113 1796 wherein it was observed that evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such uncorroborated evidence or not. In Alamgir Vs State AIR 2003 SC 282, also it was observed that Handwriting Expert opinion duly corroborated by circumstantial evidence can be accepted. The Ld. PP for CBI placed heavy reliance on Murari Lal Vs State of MP AIR 1980 SC
531. In this case, the Hon'ble Supreme Court dealt with all the precedents and specifically considered the judgment in Magan Bihari Lal's case and observed that the observation of Magan Bihari Lal's case must be understood as referring to the facts of the particular case. After discussing the law on the issue, the Hon'ble Supreme Court concluded "We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a Handwriting Expert must never be acted upon, unless substantially corroborated. It further observed that "Reasons for the opinion must be carefully probed and examined. All the relevant evidence must be considered. In appropriate cases, corroboration may be sought in cases where the reasons for opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an Handwriting Expert may be accepted. It was further observed that "There cannot be any inflexible rule on a matter which, in the ultimate analysis is no more than a question of testimonial weight".
59.4 Thus, it is clear what testimonial weight is to be given to the Handwriting Expert opinion would depend on the reasoning given by the CBI Vs R. K. Sharma and Ors CC No. 08/2012 90/113 Expert. PW-25 Sh. N. K. Aggarwal has an experience of 34 years in examination of questioned documents. In his report Ex. PW-25/A dated 30.11.1998, he had compared the questioned document with the specimen writing of the accused Mohd. Ayub. He adopted all the scientific method for comparison of the questioned documents and the specimen handwriting. He also examined the questioned documents pertaining to accused Mohd. Riaz (A-3) and gave its finding that the questioned documents are in the writing of the person who has given the specimen / standard writing.
59.5 In his report Ex. PW-25/B dated 21.12.1999, he has given his finding that the questioned writing Q-9, Q-9a on Ex. PW-10/D-1 and questioned writing Q-10 and Q-10a on Ex. PW-10/D-2 is by the same person who had given the specimen / standard writing Ex. PW-25/D-41 to D-59. Again the analysis of the writings is based on the scientific method.
59.6 PW-38 Sh. V. K. Khanna is a highly qualified Scientific Officer to the Government of India, CFSL, Delhi. He had examined the questioned documents Q-5 Ex. PW-25/C and compared the same with the specimen handwriting of the accused Mohd. Ayub Mark S-119 to S-142 Ex. PW-5/S-6 to S-29 and he opined that person responsible for writing questioned writing Q-5 is also the writer of the specimen writings. He has also examined the document Q-6 (D-23, Ex. PW-38/2) with the specimen handwriting S-143 to S-150 of the accused Mohd. Yunus Siddiqui (A-2) and opined that the writer of specimen writing S-143 to S-150 is the person responsible for writing the questioned English writing Mark Q-6 (D-23).
CBI Vs R. K. Sharma and Ors CC No. 08/2012 91/11359.7 In the cross-examination by accused Mohd. Ayub, he stated that due to passage of time and growing of age, handwriting of a person undergoes a change but mostly it becomes fit at an adult age and thereafter, change is less. He specifically denied the suggestion that his report is not conclusive and he cannot report with certainty that particular handwriting belong to a particular person.
59.8 Thus, there is no material on the record to throw some doubt on the opinion of these Handwriting Experts. On the basis of the Reports of Handwriting Experts Ex. PW-25/A, PW-25/B and PW-38/A and self comparison of the questioned documents and specimen / standard writings of the accused persons, every prudent man would come to the conclusion that the questioned documents were written by the accused persons.
60. Now, I intend to examine those documents which the prosecution has proved to have been written by the accused persons. This would link the accused persons with the offence.
60.1 First, I will take the case of accused R. K. Sharma (A-1). Q-9 and Q-10 are the words 'Normal' written on the Jumper Letters Ex. PW-10/D-1 and PW-10/D-2. Questioned documents Q-9a is the word 'ROTSS, Mr. Aslam' and Q-10a is the word 'ROTSS, Mr. Basharat'. Q-11 and Q-11a are the entries made in the OB Register Ex. PW-21/A. The accused R. K. Sharma (A-1) has admitted his writing Q-11 and Q-11a but had denied his writing the word 'Normal' and 'ROTSS'. From the evidence, now it stands proved that A-1 is the author of these words on the Jumper Letters. The effect of writing these words on the Jumper Letters has already been CBI Vs R. K. Sharma and Ors CC No. 08/2012 92/113 discussed.
60.2 Secondly, I will take the case of accused Mohd. Yunus Siddiqui (A-2). The prosecution had seized a paper slip during the investigation which contained certain names with telephone numbers against them. The prosecution case is that these are the names of the clients who had used the STD / ISD facility on the telephone. As per prosecution, this document is connecting the accused with the offence. To prove that this document Ex. PW-38/2 is written by accused Mohd. Yunus Siddiqui (A-2), the specimen writing of the accused were taken vide S-143 to S-150 and as per Handwriting Expert report, both have tallied. I shall deal with the effect of this comparison while dealing with the evidence against accused Mohd. Yunus Siddiqui (A-2).
60.3 Thirdly, I will take the case of accused Mohd. Ayub (A-5). As per prosecution case, accused Mohd. Ayub (A-5) had applied for telephone connection in the name of Basharat Ali. Q-1 to Q-1D is the specimen signature sheet of MTNL signed by the subscriber as Basharat Ali. Q-2 is the duplicate application form under the signature of Basharat Ali. Q-3 is an annexure of MTNL wherein Basharat Ali had given an undertaking. Q-4a and Q-4b are the signatures as Basharat Ali on the application (Ex. PW-1/A) for ISD facility on the telephone. Now, it stands proved that telephone connection was applied for and connection issued in the name of Basharat Ali resident of 2641, Kucha Chelan, Darya Ganj. Now, it stands proved that accused Mohd. Ayub (A-5), who had signed as Basharat Ali at point Q-1a to Q-1d, Q-2, Q-3, Q-4 and Q-4b, committed this forgery to obtain telephone connection with the full knowledge that telephone will CBI Vs R. K. Sharma and Ors CC No. 08/2012 93/113 not be installed at the place which is mentioned in the application and it will be used for illegal purposes.
60.4 Now, I will take the case of accused Mohd. Riaz (A-3). As per prosecution case, he applied for telephone connection as Mohd. Aslam. The specimen signature sheet submitted in the MTNL is bearing signature at Q-5, Q-5a to Q-5d, the duplicate application is bearing signature at point Q-6 and the application for ISD facility on the telephone is bearing signature at Q-7a and Q-7b. These questioned signatures are in the name of Mohd. Aslam. It stands proved that accused Mohd. Riaz (A-3) had signed as Mohd. Aslam. Thus, it stands proved that accused Mohd. Riaz (A-3), who had signed as Mohd. Aslam at point Q-5, Q-5a to Q-5d, Q-6, Q-7a and Q-7b, committed this forgery to obtain telephone connection with the full knowledge that telephone will not be installed at the place which is mentioned in the application and it will be used for illegal purposes.
60.5 It was submitted by Ld. Counsels for the accused persons that the Handwriting Expert Report by itself is not sufficient to hold the accused guilty for the offence. I am also of the view that some corroboration is required. What should be the nature of corroboration?
60.5 In the case of K. Hashim Vs State of TN (2005) 1 SCC 237, the Hon'ble Supreme Court dealt with the expression 'Corroboration' in material particulars. The Hon'ble Court was of the view that the word 'Corroboration' means not mere evidence tending to confirm other evidence. It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case should in itself be sufficient to sustain conviction. What is CBI Vs R. K. Sharma and Ors CC No. 08/2012 94/113 required is some additional evidence which would render it probable that the other evidence is true. It was further observed that it is not necessary that 'Corroboration' should be direct, it would be sufficient if it is merely circumstantial evidence showing the connection with the crime.
CONFESSION (A-5, MOHD. AYUB)
61. Keeping this position of law, now we search for the corroboration to the evidence of Handwriting Expert and other oral statement of witnesses. For this purpose, I resort to the confession of accused Mohd. Ayub (A-5). The accused Mohd. Ayub has given his confessional statement (Ex. PW-39/D) before Ld. Metropolitan Magistrate Sh. Dharmesh Sharma. So far as the law pertaining to confession is concerned, it is settled position of law that the confession has to be voluntary, without inducement or threat. Before considering the the evidentiary value of confession of accused Mohd. Ayub, it would be appropriate to go through his confessional statement first.
61.1 In his confession before the Ld. Magistrate Mr. Dharmesh Sharma on 11.05.1999, he has categorically stated that he is making the confession voluntarily and is aware of the fact that it can be used against him. Perusal of the record reveals that the accused first appeared before the Ld. M.M. on 10.05.1999. The Ld. M.M. had not recorded the confession on the said date. It was explained to the accused that he was not legally bound to make a confession and if he does so, it may be used as evidence against him. Ld. MM had also asked him some questions to ensure the fact that he is not making the confession under coercion or undue influence. The accused had CBI Vs R. K. Sharma and Ors CC No. 08/2012 95/113 still shown his willingness to make a confession and so it was put up for 11.05.1999. On 11.05.1999, as stated above, he was again told that confession can be used against him during the Trial. Despite the warning, the accused has made the following confession statement.
In the year 1991, he had come from Bombay to Delhi and was residing with his father-in-law. His co-brother Mohd. Yonus Siddiqui (A-2) was already residing there. He (A-2) had got him (A-5) employed with his brother Tanveer who used to supply telephone instruments at Barakhambha Road. In the meanwhile, Mohd. Ayub had opened a STD-ISD shop in Dariya Ganj but could not work there for more than 4-5 months. He had thereafter worked as Driver. When he (A-5) was working as a driver, Mohd. Yunus @ Raja (A-2) had told him that he intended to install one telephone. He gave him a slip with name and address. The slip mentioned the name of Basharat Ali and address was written as 2641, Kucha Chelan, Dariya Ganj and also given him one MTNL Form (In the statement the word 'Form' is missing) and asked him to fill up and sign the same. Mohd. Yunus told him that this name and address is given through R K Sharma, JTO. Thereafter Mohd. Yunus had given the other form to his brother-in-law Mohd. Riaz (A-3). He (Mohd Yunus, A-2) got this form filled from Mohd. Riaz as Mohd. Aslam and address of Dariya Ganj was also given in this form too. For obtaining telephone connection on this form, Rs. 15,000/- was given by Mohd. Riaz and for filling up the form in the name of Basharat Ali, Mohd. Yunus had himself arranged Rs. 15,000/-. He (Mohd. Ayub, A-5) had not given any amount.
It is further stated that Mohd. Yunus had given him Rs. 1500/- as cash and asked him to come to telephone Exchange and meet one Shyam Sundar Bansal (PW-21). He (Mohd. Ayub, A-5) was also asked by Mohd. Yunus CBI Vs R. K. Sharma and Ors CC No. 08/2012 96/113 (A-2) that he (A-5) should tell him that he has been sent by R.K. Sharma, JTO. He had acted accordingly. After giving the amount, Shyam Sundar Bansal had given a list of telephone numbers. He had selected two telephone numbers in which there were three numerical "786". He had given the numbers to Mohd Yunus (A-2).
He had further stated that thereafter Mohd. Yunus and R K Sharma had a meeting. Accused R K Sharma had got installed these numbers in 10-12 days. These numbers were not filled in the Forms. Accused R K Shamra had thereafter made lineman to agree for installation of telephones. Both these telephones were got installed in the house of Mohd. Arif, who is brother-in-law of Mohd. Riaz. The address of Mohd. Arif was 2146, Pataudi House. During this period he (Mohd. Ayub) lost his job. He then contacted Mohd. Yunus @ Raja (A-2) who told him that he had got two telephones connections installed and he (Mohd Ayub) can work on these telephone numbers. Thereafter Mohd. Yunus had given him list of customers on which telephone numbers were written. He was asked by Mohd. Yunus to arrange STD-ISD calls for the customers. He used to work on these telephone numbers on the day time and in the night Mr. Tahir Siddiqui (A-4), who is brother of Mohd. Yunus used to work. When he (A-5) was working there, R. K. Sharma (JTO, A-1), Mohd. Rias (A-3) and Mohd Yunus (A-2) used to visited the said premises. Mohd. Yunus (A-2) used to collect the money from the customers on whose behalf STD-ISD calls were made. He (Mohd. Ayub) had come to know that they use to arranged the telephone calls at cheap rates.
After 10-15 days, Mohd Yunus (A-2) had informed the Mohd. Ayub (A-5) that the work has been closed and he should go for any other job. He (Mohd Ayub, A-5) had worked for Mohd. Yunus for a monthly salary of Rs.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 97/1132000/-. When he (Mohd Ayub) asked Mohd Yunus that Rs. 2000/- are very less, on this Mohd. Yunus had told him that he has given a big amount to R K Sharma, JTO for installation of telephones and recovery has not yet been effected. He (Mohd. Ayub) had thereafter started working as a driver with is father-in-law. In the meanwhile Mohd. Yunus @ Raja came to know that the fictitious telephone numbers have come into the knowledge of Authority and, therefore, told him (mohd Ayub) to proceeded Bombay and he also told that when everything will be over, he will be called back. He had gone to Bombay, after sometimes CBI has arrested him".
61.2 Perusal of confession of accused Mohd. Ayub (A-5) reveals that all the accused persons were actively involved in the criminal conspiracy of cheating and forgery, except the accused Mohd. Tahir (A-4) who only used to work at night for his brother Mohd. Yunus (A-2). Perusal of confession clearly reveals that forms were filled up in fictitious names. Mohd. Riaz (A-3) had filled up the form as Mohd Aslam and Mohd Ayub (A-5) has filled up the form as Basharat Ali. The confession also reveals that JTO R.K. Sharma (A-2) was fully involved in the conspiracy. He was also given a huge amount. The confession also corroborates the statement of PW21 Sh. S.S. Bansal that accused R.K. Sharma had asked Mohd. Ayub to meet S. S. Bansal and to arrange installation of telephones. The confession also corroborates the version of prosecution that accused R K Sharma was involved in the installation of telephones right from the beginning till the end. Confession also reveals that all the other accused persons have played an active role and committed offences of forgery and cheating. Confession coupled with the hand-writing opinion corroborates the fact that a criminal conspiracy was hatched between the accused R K Sharma (A-1), accused CBI Vs R. K. Sharma and Ors CC No. 08/2012 98/113 Mohd. Yunus (A-2), accused Mohd Rias (A-3) and accused Mohd. Ayub (A-5).
Objections of the Ld. Defence Counsels to the confession of accused A-5
62. Ld. Defence counsels had argued that no reliance can be place upon the confession of co-accused Mohd. Ayub (A-5) for the reason that the confession was made after two years of the incident. They had further argued that the accused Mohd. Ayub had also retracted from his confession when his statement under Sec. 313 Cr.PC was recorded. Therefore, it cannot be read into evidence. They has further argued that this confession is only exculpatory not inculpatory and, therefore, cannot be relied upon. They further argued that no conviction can be based on the basis of retracted confession.
62.1 Before dealing with the objections of the Ld. Counsels for the accused persons as to the admissibility of confession of accused A-5 in the evidence, it would be appropriate to understand what is the prevalent law on the confession.
62.2 The basic principle on which Sec. 164 Cr.PC is based is that the confession must be voluntarily. A duty has been cast on the Magistrate to ensure that the confession is voluntary and to ascertain this, guidelines for Magistrate have been provided. In the case of State of UP Vs Singhara Singh AIR 1964 SC 358, the Hon'ble Supreme Court expressed the view that "the first precaution which a Magistrate is required to take is to prevent forcible extraction of confession by the Prosecuting Agency".
CBI Vs R. K. Sharma and Ors CC No. 08/2012 99/113In the case of Shivappa Vs State of Karnataka (1995) 2 SCC 76, it was observed that "the provisions of Sec. 164 Cr.PC must be complied with not only in form, but in essence before proceeding to record the confessional statement, a searching inquiry must be made from the accused as to the custody from which he was produced and the treatment he had been received in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. The Magistrate should also grant sufficient time for reflection to the accused and should be assured of protection from any sort of apprehension of torture or pressure from the police in case he declines to make a confessional statement".
62.3 To ascertain that the confession is voluntary, the Magistrate must inquire about the nature of custody of the accused. In the case of Shankaria Vs State of Rajasthan (1978) 3 SCC 435, it was held that "custody of accused with police immediately preceding the making of confession is sufficient to stamp confession as involuntary and hence unreliable". In the case of Devendra Prasad Tiwari Vs State of UP (1978) 4 SCC 474, it was reiterated that "before a confessional statement made under Sec. 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence".
62.4 In criminal cases where the prosecution rely upon the confession of an accused against another accused person, the proper approach to adopt is to consider the other evidence against the co-accused and if the said CBI Vs R. K. Sharma and Ors CC No. 08/2012 100/113 evidence appears to be satisfactory, the Court may turn to the confession with a view to assure itself that the conclusion, which it is inclined to draw from other evidence, is right. In the case of State Vs Nalini (1999) 5 SCC 253, the Supreme Court dealt with the evidentiary value of confession of an accused against another accused. It was observed "What is the evidentiary value of a confession made by one accused as against another accused apart from Sec. 30 of the Evidence Act? While considering that aspect, we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used".
62.5 While analyzing Sec. 30 of Evidence Act, in the case of Bhuboni Sahu Vs R. AIR 1949 PC 257 it was observed "Sec. 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co- accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is much weaker type of evidence than the evidence of an approval, which is not subject to any of those infirmities. Section 30, however, CBI Vs R. K. Sharma and Ors CC No. 08/2012 101/113 provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the Section does not say that confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with other evidence".
62.6 In the case of Kashmira Singh Vs State of MP, the Hon'ble Supreme Court laid down the ratio that "confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of the Section 30 of the Evidence Act".
62.7 While the confession against a co-accused can be used only when there is some other evidence on record, the legal position of the confession viz a viz the confessor himself has been stated in the case of Sarwan Singh Rattan Singh Vs State of Punjab AIR 1957 SC 637 when it was observed that " it is always open to the Court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement".
62.8 In the recent judgment in the case of Pancho Vs State of Haryana (Supra), reliance was placed on the judgment of the Constitution Bench in the case of Hari Charan Kurmi Vs State of Bihar AIR 1964 SC 1184 wherein it was observed that " A confession cannot be treated as CBI Vs R. K. Sharma and Ors CC No. 08/2012 102/113 substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the Court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from other evidence is right. Therefore, in dealing with a case against an accused, the Court cannot start with the confession of a co-accused; it must began with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence".
62.9 I have carefully considered the contention of Ld. Defence counsels. It is no doubt true that the confession has been made after a period of two years but that by itself does not reduce its evidentiary value, if it is found to be voluntary and truthful. Confession had been recorded before a Metropolitan Magistrate, who had given sufficient warning to the accused Mohd. Ayub that the confession can be used against him during the Trial. He had also ensured the fact that confession has been made voluntarily without any coercion or undue influence. There is nothing on record to suggest that confession has not been properly recorded by the Ld. M.M. Perusal of the same reveals that the Ld. M.M. has recorded the confession in a fair manner. The Ld. M.M. has taken great care and was cautious of the fact that accused may be under pressure. He had, therefore, not CBI Vs R. K. Sharma and Ors CC No. 08/2012 103/113 recorded the confession on 10.05.1999 but had recorded the same on 11.05.1999 and has given ample opportunity to accused to think about the matter so as to ensure that he does not make the confession under any pressure or undue influence. PW-39 Sh. Dharmesh Sharma, the then Ld. MM, has deposed that he had put preliminary queries to the accused on 10.05.1995 when accused was produced before him to understand his state of mind. Those queries have been recorded in Ex. PW-39/C. He deposed that on the examination of the accused, he was of the opinion that accused is ready to make his statement voluntarily and without any coercion or undue influence. He further deposed that still he gave time to accused to reconsider his legal position and asked him to appear on the following day. He further deposed that on 11.05.1999, the accused was again asked about his decision and he was willing to make his statement voluntarily. He has noted in this proceedings that accused was on bail. He was apprised that he is not bound to make a statement and he was also warned that in case he make a statement, it may be used as evidence against him. These sort of queries by the Ld. Magistrate clearly show that the Magistrate before recording confession has followed the guidelines of Sec. 164 Cr.PC properly.
62.10 Therefor, In my opinion, there seems to be no pressure on the accused Mohd Ayub (A-5) to make the confession. Accused was already on bail. There was no incentive for him to make the confession or he was not in jail so expecting to be released on bail if confession is made by him. I, therefore, do not find any illegality, irregularity or infirmity in the confession recorded by the Ld. M.M. So far as, arguments of Ld. Defence counsel that confession is exculpatory in nature is concerned, the same is CBI Vs R. K. Sharma and Ors CC No. 08/2012 104/113 also not correct as per the confession. The confession reveals that accused Mohd. Ayub (A-5) has also shown his involvement in the whole conspiracy. He had admitted the fact that he had filled up the MTNL form in a fictitious name and fictitious address to obtain the telephone number which was used to make STD and ISD calls at the cheaper rates. He was also a beneficiary for the reason that he had got employment because of running of telephones in the fictitious names. The evidence further reveals that bills worth more than Rs. 10,00,000/- due for these telephones, were not paid. The confession also reveals the clear involvement of Mohd. Yunus Siddiqui (A-2) who had arranged the telephone in connivance of accused R K Sharma (A-1). The confession also reveals the involvement of accused Mohd Riaz (A-3), who had obtained the telephone connection in fictitious name of Mohd. Aslam. The confession also reveals the involvement of accused Mohd Ayub (A-5), who had obtained the telephone connection in fictitious name of Basharat Ali. Perusal of the above evidence on record reveals that all the accused persons were involved in the offences of cheating and forgery and obtaining the telephone in fictitious names and causing wrongful loss to the Government. The prosecution examined PW-2 Sh. O. P. Chhabra, Sr. Account Officer, who has proved four telephone bills Ex. PW-2/A-1 to A-4. Out of these four bills, two pertains to Basharat Ali and two pertains to Mohd. Aslam, having telephone number 3278630 and 3278646 respectively. The first bill Ex. PW-2/A-1 in the name of Basharat Ali shows the payable amount as Rs. 2,79,117/-, the second bill Ex. PW-2/A-2 in the name of Basharat Ali is for Rs. 2,85,116/-, the third bill Ex. PW-2/A-3 in the name of Mohd. Aslam is for Rs. 2,33,738/- and the fourth bill Ex. PW-2/A-4 in the name of Mohd. Aslam is for Rs. 2,81,422/-. Thus, the total bill pending for the above said CBI Vs R. K. Sharma and Ors CC No. 08/2012 105/113 telephone numbers in the name of Basharat Ali and Mohd. Aslam is Rs. 10,79,393/-. Regarding the pendency of these bills, accused persons have not taken any stand and denied their knowledge about pendency of these bills.
62.11 Therefore, the accused obtained the above said telephone connections on the basis of forged documents and thereafter abandonedl the telephones without paying the bills. This prove the charges against them of cheating, forgery and criminal conspiracy.
63. Before concluding what evidence has come against each accused person, I would deal with the contention of the Ld. Counsel Sh. R. M. Tufail, with regard to lacuna and drawback in the investigation. He submitted that in the present case, PW-4 Ram Adhar and PW-11 Gopal deposed that they met two persons namely Basharat Ali and Mohd. Aslam at the spot when they laid the telephone lines. However, no test identification parade of the accused was got conducted to ascertain whether the accused Mohd. Riaz and Mohd. Ayub were the persons who met these witnesses as Basharat Ali and Mohd. Aslam. He also submitted that in the charge-sheet, one Mohd. Anwar and Arif Khan have been shown in Khana No. 2 but no explanation has been offered as to why they were not sent for trial. He also submitted that the incident in the present case pertains to the year 1995 and the FIR in this case was got registered in the year 1997. Thus, leaving enough room for embellishments and improvements. The possibility of falsehood in the FIR cannot be ruled out.
64. Ld. Counsel Sh. Amandeep Singh for accused No. 1 has also taken CBI Vs R. K. Sharma and Ors CC No. 08/2012 106/113 exception to the investigation conducted in this case. He argued that no investigation from MDF has been conducted nor the role of the lineman has been explored in the present case. His argument is based on his submission that telephone lines from pillar No. 28 to 27 could have been changed only from the MDF and the lineman would definitely come to know when a telephone line is taken from the pillar under his jurisdiction. Therefore, the lineman of pillar No. 27 Mr. Madhu Sudhan (PW-5) must have known about providing of telephone line from MDF to pillar No. 27 and onwards. No investigation has been done in his direction.
65. I have already observed that the investigation in the present case is not up to the mark. The investigation has not explored many angles. Initially, when the case was registered, it named R. K. Sharma, public servant, in conspiracy with some unknown public servants of MTNL. No efforts seems to have been made to investigate the role of other employees in the MTNL. The Investigating Officer has not shown diligence in the performance of his / her duty. A more effective and thorough investigation could have revealed involvement of some other public servant in MTNL. Such an investigation as in the present case is not expected from a premium Investigating Agency like CBI. But once the charge-sheet has been filed wherein certain persons have been arrayed as accused, it becomes the duty of the Court to see the evidence, analyze and appreciate it to ascertain the role of the accused sent for trial. The evidence of the prosecution is examined minus the lapses and omission of the Investigating Agency to ascertain whether the evidence which has been brought on record, connect the accused with the offence. Giving undue benefit to the accused on account of pit-falls in the investigation ignoring the evidence CBI Vs R. K. Sharma and Ors CC No. 08/2012 107/113 on record, would lead to miscarriage of justice. In the case of Karnail Singh Vs State of MP AIR 1995 SC 2472, it was observed by the Hon'ble Supreme Court that it is not proper to acquit a person due to defective investigation if the case otherwise stand established, since doing so would be falling in the hands of erring Investigating Officer. Later on in the case of Paras Yadav Vs State of Bihar, AIR 1999 SC 644, the Hon'ble Supreme Court observed, " If lapses or omission is committed by Investigating Agency, negligently or otherwise, the prosecution evidence is required to be examined de-hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party". In the case of Ram Bihari Yadav Vs State of Bihar AIR 1998 SC 1850, it was observed that the story of the prosecution is to be examined de-hors the contaminated conduct of the Investigating Officer lest the mischief which may also be deliberate one, is perpetuated.
66. So notwithstanding the deficiency in the investigation, the Court had to see the prosecution evidence on record connecting the accused with the offence. After considering the evidence on record, this Court has found that on the basis of the evidence, the prosecution has been able to prove allegations against the accused R. K. Sharma (A-1), accused Mohd. Riaz (A-3) and accused Mohd. Ayub (A-5). However, it failed to prove its case against accused Mohd. Yunus Siddiqui (A-2) and Mohd. Tahir (A-4).
67. Qua the accused R. K. Sharma (A-1), the prosecution has proved CBI Vs R. K. Sharma and Ors CC No. 08/2012 108/113 that he was the JTO, Incharge of Section-33, Delhi Gate Telephone Exchange. He received two OBs for telephone numbers 3278646 and 3278630 for installation in the name of Basharat Ali and Mohd. Aslam at premises numbers 2641, Kucha Chelan, Darya Ganj and 2684, Gali Garahayya, Darya Ganj. The entries in the OB Register Ex. PW-21/A at serial No. 207 & 208 in the handwriting of the accused stands proved. PW-21 S. S. Bansal has proved that the accused R. K. Sharma (A-1) had told him that he (A-1) met the subscribers and also asked him to take money and provide telephone numbers and Jumper Letters to the subscribers. The prosecution also proved that the Sr. Lineman PW-10 Heera Ballabh when went to install the telephone lines, he did not find the subscribers. He informed this fact to the accused R. K. Sharma. The accused in the absence of PW-10 got installed the telephone lines up to the window terminal of the house of the subscribers stating that further fitting will be done by the subscribers. The prosecution also proved by the statement of PW-8 Sh. Zahir Ahmed, PW-9 Sh. M. A. Khan, PW-22 Sh. Zia-ul-haq Soz and PW-23 Sh. Afzal Ahmed that Basharat Ali and Mohd. Aslam were not residing at the addresses. The conduct of the accused R. K. Sharma reflecting the guilty mind is evident by his act of writing 'ROTSS' on the Jumper Letters Ex. PW-10/D-1 and PW-10/D-2 specially when PW-7 Sh. Prakash Srivastava had told him that he had called at the numbers three times but there is no response from the subscribers. The accused R. K. Sharma should have become more cautious before confirming that he had talked to the subscribers by writing 'ROTSS'. The Handwriting Expert reports Ex. PW-25/B has confirmed it that 'ROTSS' was written by the accused R. K. Sharma. The role of the accused R. K. Sharma in the conspiracy is further evident from the confession statement CBI Vs R. K. Sharma and Ors CC No. 08/2012 109/113 of accused Mohd. Ayub (A-5) which is Ex. PW-39/D. Thus, the prosecution has been able to prove its case against the accused R. K. Sharma (A-1) beyond reasonable doubt that he was in the thick and thin of the criminal conspiracy to commit forgery and cheat the MTNL by obtaining telephone connections in the name of non-existing persons. The accused R. K. Sharma is also found guilty of the offence of criminal misconduct under Sec. 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988. However, prosecution could not prove allegation for substantive offence under Sec. 420 IPC, Section 468 and Sec. 471 IPC against him.
68. Qua the accused Mohd. Yunus Siddiqui (A-2), the prosecution had alleged that he had master-minded the conspiracy and had asked Mohd. Ayub (A-5) and Mohd. Riaz (A-3) to apply for telephone connection in the name of Basharat Ali and Mohd. Aslam respectively. The evidence on which the prosecution rely against him is the Handwriting Expert Report Ex. PW-38/A. As per this report, the document Q-6 on which certain names were written with telephone number against them was written by the person who had given the specimen / standard writings S-143 to S-150 which have been marked as PW-38/1. The prosecution, however, failed to prove that the specimen and standard writing S-143 to S-150 is that of accused Mohd. Yunus Siddiqui. No witness has been examined to prove that the specimen writings S-143 to S-150 was taken in his presence. The accused on his part has denied having given any such specimen writings. Not only this even the relevancy of this document Q-6 could not be established. How, the names written on this document with some telephone numbers can be connected with the present case? There is no CBI Vs R. K. Sharma and Ors CC No. 08/2012 110/113 answer to this question. It is not the case of the prosecution that this sheet of paper was recovered from the accused Mohd. Yunus Siddiqui (A-2). Therefore, the prosecution failed to prove that the document Q-6 has any relevance with the present case and also failed to prove that it was written by the accused.
69. Another evidence on which the prosecution relied is the confession statement of accused Mohd. Ayub (A-5, Ex. PW-39/D). In this confession statement, the role of accused Mohd. Yunus Siddiqui has been explained. But I am afraid that the confession of a co-accused in the absence of some corroborating evidence cannot be used for conviction of an accused. The law on this issue has already been discussed in previous paragraphs. Therefore, the confession Ex. PW-39/D, which was retracted as well, is not substantive evidence for use against accused Mohd. Yunus Siddiqui (A-2). In view of this, I observe that prosecution was unable to prove its case beyond reasonable doubt against the accused Mohd. Yunus Siddiqui (A-2).
70. Coming to the evidence against accused Mohd. Riaz (A-3), the prosecution has proved that the duplicate application Ex. PW-25/5, specimen signature sheet of the MTNL Ex. PW25/4 and the application for ISD facility Ex. PW-1/B bear the signature of Mohd. Aslam at Q-5a to Q-5d, Q-6, Q-7a and Q-7b. The Handwriting Expert report Ex. PW-25/A has proved that these signatures are in the handwriting of accused Mohd. Riaz (A-3). Apart from this, there is a confession statement of co-accused Mohd. Ayub (A-5) which also connect the accused Mohd. Riaz with the offence. Thus, the offence of forgery, cheating and criminal conspiracy stands proved against him.
CBI Vs R. K. Sharma and Ors CC No. 08/2012 111/113
71. Qua the accused Mohd. Tahir (A-4), the prosecution has not been able to bring any evidence on record. Except that in the confession Ex. PW-39/D, there is a reference that the accused Mohd. Tahir (A-4) used to look after the telephones in the night, there is no other evidence which connect the accused with the offence. There is no oral evidence, no documentary evidence and no scientific evidence against the accused Mohd. Tahir (A-4) to show that he was in any manner part and parcel of the conspiracy. Even if it is accepted that he was attending the phones in the night that does not connect his with the offence of conspiracy and forgery etc. Therefore, prosecution has failed to prove any case against the accused Mohd. Tahir.
72. Coming to the evidence against accused Mohd. Ayub (A-5), the prosecution has proved that the duplicate application Ex. PW-25/2, specimen signature sheet of the MTNL Ex. PW25/1, the application for ISD facility Ex. PW-1/A and the annexure A of MTNL Ex. PW-25/3 bear the signature of Basharat Ali at Q-2, Q-1a to Q-1d, Q-4a and Q-4b and Q-3. The Handwriting Expert report Ex. PW-25/A has proved that these signatures are in the handwriting of accused Mohd. Ayub (A-5). Apart from this, there is his confession statement Ex. PW-39/D which also connect him with the offence. Thus, the offence of forgery, cheating and criminal conspiracy stands proved against him.
73. Thus, in view of the above discussion, the accused R. K. Sharma (A-1), Mohd. Riaz (A-3) and Mohd. Ayub (A-5) are held guilty and convicted for the offences under Sec. 120-B IPC read with Sec. 468/471 CBI Vs R. K. Sharma and Ors CC No. 08/2012 112/113 IPC and Sec. 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act. Accused Mohd. Riaz (A-3) and Mohd Ayub (A-5) are also held guilty and convicted for the offences under Sec. 468 and 471 IPC. Accused Mohd. Riaz (A-3) and Mohd Ayub (A-5) are also held guilty and convicted for the substantive charge of Sec. 420 IPC. Accused R. K. Sharma (A-1) is also held guilty and convicted for the substantive charge under Sec. 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act, 1988. However, accused R. K. Sharma is acquitted of the substantive charges under Sec. 420, 468 and 471 IPC. The accused Mohd. Yunus Siddiqui (A-2) and Mohd. Tahir (A-4) are acquitted of charges against them.
Dictated and announced (AJAY KUMAR KUHAR)
in the open court on 18.11.2014 Special Judge, CBI(PC Act)-06
Tis Hazari Court, Delhi
CBI Vs R. K. Sharma and Ors CC No. 08/2012 113/113