Document Fragment View
Matching Fragments
3. In so far as the main Uphaar case is concerned, it appears that after framing of charges on 27.02.2001 against the accused persons including Sushil Ansal, Gopal Ansal and H.S. Panwar in the main Uphaar case, and recording of prosecution evidence commenced from 23.05.2001 and during the course of trial while examining PW33 T.S. Sharma Asstt. Divisional Officer, Fire Station, Moti Nagar, Delhi on 19th July, 2002 which continued the following day i.e., 20th July, 2002, the learned Public Prosecutor noticed that some important documents which were seized by the IO in original during the course of investigation and which were filed along with the chargesheet and formed part of the judicial record were missing from the record of the case while some other documents had been tampered with and / or mutilated by tearing of a portion of the documents and/or defaced or made illegible by sprinkling black ink. The CBI moved two applications on 13th/14th January, 2003 to record part statement of IO R.S.Khatri and to summon additional witnesses and on 20.01.2003 a handwritten application Ex. PW2/A was moved by Shri Y.K.Saxena, Ld. Special PP (PW2) setting out the details of about nine documents that were either missing/tempered or mutilated and sought permission of the Court to lead secondary evidence; and another undated list was filed on 20.01.2003 Ex.PW30/DB about eight documents missing/torn. Anyhow, the said prayer was allowed by the Ld. Presiding Officer of the Court vide order dated 31.01.2003 Ex. PW37/E and the prosecution was permitted to lead secondary evidence in regard to the missing and tampered documents. Upon which, an affidavit dated 06.02.2003 was filed by IO R.S.Khatri Ex. PW10/A, placing on the judicial record photocopies of the missing documents.
(vii). File containing minutes of MD's meeting and correspondence containing 40 pages. Its page nos. 1, 9, 12, 14, 18 & 19 are missing. The relevant pages are 1 to 17.
7. The charge sheet went on to narrate the aspect of Fact Finding Enquiry conducted by Ms. Mamta Sehgal. Ld ASJ, PHC, ND with regard to Missing/ Obliterated documents, holding the appellant Dinesh Chandra Sharma, the then Ahlmad responsible being custodian of the judicial records, and further holding of a regular Departmental Enquiry vide order No. 94206/F962/Vig., dated 10.12.2003; and vide order dated 25.06.2014 Ex.PW5/C the appellant Dinesh Chandra Sharma was terminated from his services. During the course of investigation, certified copies of all the Missing/ Torn and Obliterated documents were collected from the Registry of the Supreme Court Court after observing all legal formalities. Thereafter, concerned PWs related to the Missing/ Torn and Obliterated documents were examined including Mr. Raj Singh Khatri, IO of main Uphaar CBI case and Spl. PP Mr. Y.K. Saxena. Their examination revealed that the said Missing/ Torn and Obliterated document were exhibited on the basis of photocopies of the same by the PWs being secondary evidence with the approval of the Ld. Trial Court in terms of provisions of Section 65 of The Evidence Act. During the examination, all the PWs pertaining to said Missing/ Torn and Obliterated documents the same PWs corroborated their earlier statements made in the Trial Court and had got exhibited the photocopies of the said Missing/ Torn and Obliterated documents being secondary evidence.
17.1 LEGAL SUBMISSIONS ON BEHALF OF APPELLANT SUSHIL ANSAL:
17.2 Sh. Siddharth Aggarwal, Ld. Senior Advocate for the appellant Sushil Ansal commenced his marathon arguments in the matter and it was urged that as per the charge framed against the appellants on 31.05.2014 by the Ld. Trial Court, the starting point of hatching of criminal conspiracy was after filing of charge sheet on 15.11.1997 and he urged that it concluded on 13.01.2003 when the fact of missing documents came to fore before the Court while recording the statement of prosecution witnesses. It was vehemently urged that in any case in terms of application dated 20.01.2003 Ex.PW2/A filed by the CBI and list of missing documents filed on 21.01.2003 read visavis affidavit of Inspector Raj Singh Khatri Ex.PW10/A dated 06.02.2003, it would go to suggest that out of 12 broad documents initially reported to be missing, tampered or mutilated or otherwise splashed with ink so as to make it illegible but till 21.01.2003 or for that matter 06.03.2003 in terms of affidavit Ex.PW10/A, it was never the case of the CBI that there had been any tampering with the judicial record and at the most it was a case where some documents that were missing since the same were not "readily available" as per the aforesaid applications. In this regard, it was pointed out that the documents D24, D25, D26 which were cheques reflected in the application of the CBI dated 20.01.2003 Ex.PW2/A were in fact traced by the Ahlmad on 10.06.2003 and a report to that effect had been made to the then Ld. Presiding Officer. 17.3. Mr. Aggarwal, Ld. Sr. Advocate while making comparative analysis of letter dated 20.01.2000, list of missing documents filed on 21.01.2003 visavis affidavit dated 21.01.2003 urged that upto 13.01.2003 the offence, if any, had already been committed and some documents were found later on but all this time there is no incriminating evidence as to how the documents went missing, which were later on found or retrieved and despite knowing these documents were missing, no one by that stage till passing of order dated 31.01.2003 on the application of the CBI had any iota of suspicion that appellant Sushil Ansal was behind the tampering of the judicial record. It was urged that it is not explained that despite the fact that documents D24, D25 and D26 were traced, why the appellant Sushil Ansal has been blamed and then charges are framed with regard to such documents and infact it was pointed out that the appellant has been convicted for all the eight missing documents if one goes by the initial application of the CBI dated 20.01.2003 Ex.PW2/A 17.4. Ld. Senior Advocate then proceeded to point out a new dimension which occurred during the interregnum and it was pointed out that 'Association of Victims of The Uphaar Tragedy' (AVUT) moved an application dated 20.05.2003 for cancellation of bail granted to the accused persons Sushil Ansal, Gopal Ansal and H.S. Panwar and it was urged, referring to the allegations levelled in the said application, that 'AVUT' orchestrated a kind of vendetta crusade against the accused persons on whimsical grounds of tampering with the judicial record, which application was dismissed by the Ld. Trial Court vide order dated 29.04.2003 Ex. PW5/DA; and AVUT then approached the Hon'ble High Court of Delhi and their petition vide paragraph (12) alleged as under: "That the abovementioned case is pending trial and the prosecution have examined more then 105 witnesses in the case. Suddenly during the course of the trial extraordinary circumstances have emerged which tend to interfere and subvert the administration of judicial process by the accused persons, namely Sushil Ansal, Gopal Ansal and H.S. Panwar who have deliberately and intentionally with ulterior motives, tampered with the evidence which is dealt in detail in the subsequent paragraphs. Strong circumstances clearly demonstrate their role in tampering with the evidence which is seen to have been done over a period of time in a planned manner so as to be able to succeed in playing a fraud upon the Court and to obstruct the trial Court to reach a logical conclusion at the end of the trial, based upon the evidences which reveal their nexus to the tragedy. Their acts tantamount to a crystal clear case of the abuse of process of Court besides commission of the the offences under Section 201 of Indian Penal Code and Section 12 of the Contempt of the Courts Act.
NATURE AND IMPORTANCE OF MISSING/ TAMPERED DOCUMENTS:
25.12 At the outset, there is considerable merit in the submission of the Ld. Addl. PP that the documents that got misplaced, mutilated or defaced were most probably selected in a deliberate and clandestine manner out of total record of about 20000 pages, which selected documents specifically pertained to the role of the appellants Sushil & Gopal Ansal besides H.S.Panwar out of the sixteen accused facing trial in the main Uphaar tragedy case. In so far as the defense plea about discrepancies in the Ex.PW2/A and the other application by the IO Ex.PW30/DB is concerned, much milage was sought to be drawn by the defense that as per Ex.PW2/A, there were stated to be nine documents that were missing/pilfered as on 21.01.2003, while as per Ex.PW30/DB, those 09 documents became 6 documents and as per Ex.PW10/A they again become 9 documents. It needs to be clarified that Ld. Trial Court was right in observing that Ex.PW30/DB was not a complete list of missing documents dated 21.01.2003 as it is evidently clear from Ex.PW30/DB that the Ld. Presiding Officer Ms. Mamta Sehgal ordered Ahlmad to report regarding the documents by 21.01.2003, which is indicative that same is prior to 21.01.2003 since sometime was afforded to the appellantAhlmad for tracing the documents. Further, in serial No. 6 in Ex.PW2/A, 03 documents i.e. D24, D25 (two cheques) and D 26 were mentioned, however, in Ex.PW30/DB, these cheques were shown as 3 separate documents at serial no. 6,7 & 8, and therefore, the number of documents became 08 because document no. D28, D93 & D34 were not mentioned in the list. Further, before IO ACP R.S. Khatri of the main Uphaar case could file his affidavit containing the list of the missing/ torn document, Dinesh Chandra Sharma found two documents which are D93 and D34 and for this reason, in the affidavit of Sh. R.S. Khatri, two documents mentioned at serial no. 8 & 9 in Ex.PW2/A were not reflected. The fact that one document D93 resurfaced was duly mentioned in Ex.PW37/E as well as in dismissal order passed by the Ld. D&SJ Ex.PW5/A. It is also pertinent to note that accused persons raised no objections during the recording of the secondary evidence regarding retrieval or resurfacing of D28.