- (1.) Challenge in this appeal is to the judgement and order dated 07.05.2008 passed by Shri Deepak Kumar, learned Special Judge, (Anti Corruption) Gorakhpur in Special Trial No. 4 of 2004 ( State Vs. Gulab Misra and others) arising out of Case Crime No. 30 of 2000, under sections 409, 420, 120-B IPC and section 7/13 of Prevention of Corruption Act, whereby the appellants were convicted and sentenced to two years' rigorous imprisonment and a fine of Rs. 5000/- each under sections 409/120-B IPC, one year rigorous imprisonment and a fine of Rs. 1000/- each under section 420/120-B IPC and one year rigorous imprisonment and a fine of Rs. 5000/- each under section 7 and 13(1)(C) read with section 13(2) of Prevention of Corruption Act with default stipulation. However, all the sentences were directed to run concurrently.
(2.) Filtering out the unnecessary details, the prosecution case is that a report was lodged by Sub-Divisional Engineer, Phones, Salempur, Deoria on 24.03.2000 that on 22.03.2000, the OC, Telephones Centre's Regional Engineer Shri Subhendu Bahadur informed that some unauthorised calls were being matured to abroad. Then Regional Engineer, Telephones, Deoria Shri R.N. Mishra along with Shri D.P. Mishra, TTA traced the calls and found that calls are being matured from Salempur side. When the informant under the directions of Shri R.N. Mishra traced the calls with other officers, during intervening night of 22/23.03.2000, it revealed that these calls are being matured from Bhatni Exchange. The information was sent to the Regional Engineer, Deoria intimating about these facts. In the intervening night of 23/24.03.2000 at about 1.00 O' clock in the night Regional Engineer Shri R.N. Mishra accompanied with Saroj Mishra, Gulam Mohammad along with Sub-Inspector H.N. Pandey, Constables Gopal Kannaujia and Lallan Prasad and Shri P.N. Kushwaha, TTA reached Bhatni Exchange and called Lineman Ram Chandra from his house and he was interrogated about the matter, who stated that his companion Gulab Misra and Janardan Pandey may also be called so that the whole incident may be revealed as to from where line had been connected and where telephone sets have been installed. On this Gulab Misra and Janardan Pandey were called. Gulab Misra came, but Janardan Pandey did not come. All the officers accompanied with Gulab Misra and Ram Chandra got the telephone exchange opened. The whole party proceeded to the roof on the pointing out of the accused Ram Chandra and Gulab Misra, where on the stair of the roof, the shape of a room was given by covering it, in which on the four telephone lines, three telephone sets and one handset was tied. All the instruments were having dial tone and STD and ISD calls could be matured from all the sets. When they were connected with the computer and STD lock was opened, it revealed that from telephone Nos. 81023, 81037, 81039, 81045, 81081, 81017 and 81143, the unauthorised calls were transferred and long conversations were being held abroad. Most of the calls related to Saudi Arabia, Bangladesh and U.K. and some parts of the country like Karnataka, Tamil Nadu and Bihar. A blanket was found on the floor in the enclosed space and a lighted lamp was also found. Three telephone sets, one handset, drop wire, two-way wire set, one ear phone set, two telephone directories of Mau Division relating to the year 1998, one electronic card, two personal diaries, purse and several piece of papers on which telephone numbers of country and abroad were written, one credit slip bearing seal of Allahabad Bank, Siwan relating to Cheque No. 404978 of Canara Bank amounting to Rs. 8,000/- and one credit slip of Account No. SB NRE-30 dated 02.03.2000 in the name of Ijaz Uddin was also recovered. All these articles along with two shirts which were recovered from the spot were collected. Linemen of Bhatni accused Ram Chandra and Gulab Misra stated that they used to give Ijaz Uddin the facility of transfer of calls by means of these instruments and in return Ijaz Uddin used to give money to them. As soon as Ijaz Uddin heard the sound of exchange being opened, he fled away leaving his articles on the roof. The articles recovered were brought to the police station by the informant. Illegal acts were done in connivance with the linemen Ram Chandra, Gulab Misra, Janardan Pandey, J.T.O, Bhaatpar Rani, Babu Lal Kushwaha and Shri Parmanand Kushwaha, TTA, Laar, who used their position and took bribe to illegally oblige Ijaz Uddin. Hence written report was lodged.
(3.) The investigation was entrusted to C.O. Dr. S.P. Singh, PW-6 on 24.03.2000, on that date he recorded the statement of the informant and inspected the spot. He further recorded the statement of Durga Prasad Mishra on 29.03.2000. He sought permission to examine the accused persons. On 04.05.2000, he recorded the statement of witnesses. On 01.06.2000, he further recorded the statement of R.N. Mishra. On 12.06.2000, he perused the statement of Alim Uddin recorded under section 164 Cr.P.C. Further on 29.07.2000 statement of Subhendu Bahadur and Alauddin Shahi were recorded. On 06.02.2001, the charge sheet was submitted by this witness. This witness proved the site plan as Ext. Ka-9 and charge sheet as Ext. Ka-10.;