` CRIMINAL APPEAL No.576 OF 2004 (Against the judgment and order of conviction dated 19.07.2004, passed by learned Special Judge Vigilance in Special case no. 87 of 1983) ****** Babban Das @ Baban Das son of Baleshwar Das Resident of village- Ram Deo Tola P.O. Jagdishpur, Dist. Bhojpur,Arrah ------Appellant Versus The State of Bihar ----Respondent With CR. APP (SJ) No.595 oF 2004 Mahangu Mansuri Son of Rajak Mansuri, R/o vill. Jagdishpur P.S. Jagdishpur, District Arrah (Bhojpur) -----Appellant Versus The State of Bihar --Respondent With CR. APP (SJ) No.600 oF 2004 Munilal Mochi son of Late Ramatar Ram resident of village Banemok, P.S. Punpur, Dist. Patna ---Appellant Versus 1. The State of Bihar 2. The Additional Director General of Police cum Additional Secretary, vigilance Department, Govt. of Bihar, 6 Circular Road, Patna. ----Respondents With CR. APP (SJ) No.609 oF 2004 Dharam Deo Rai Son of late Ram Janam Rai, Resident of vill. Bodarhi, P.O. and Police Station Dawath, Dist. Rohtas. -----Appellant Versus The State of Bihar -------Respondent With 2 CR. APP (SJ) No.625 oF 2004 Sirajuddin Ansari @ Sarajuddin Ansari son of late Fudeni Mian, R/o vill & P.O. Haswadih, P.S.Piro, Dist. Bhojpur (Arrah) ------Appellant Versus The State of Bihar ---Respondent ***** For the appellants (in Cr. Appeal Nos. 576 of 2004 & 595 of 2004 : Mr. Dr. Rajesh Kumar Singh, Amicus Curiae. For the appellant (in Cr. Appeal No. 600 of 2004 : Mr. T.N. Matin, Senior Advocate. For the appellant (in Cr. Appeal No. 609 of 2004 : Mr.Sarva Deo Singh, Advocate. For the appellant (in Cr. Appeal No. 625 of 2004 : Mr. Jitendra Prasad Singh, Advocate. ***** P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal,J. These batch of five appeals arise out of and are directed against the judgment and order of conviction dated 19.07.2004, passed by the learned Special Judge, Vigilance, Patna, in Special case no. 87 of 1983. They have thus been clubbed together, heard and are being disposed of by the present order. Each of the appeal has been filed by one appellant and as such for the sake of clarity appellants of each appeal shall hereinafter referred to as A/1, A/2, A/3, A/4 and A/5 respectively. 2. P.W.4 Hemraj Prasad, on receiving a complaint in respect of serious illegalities and irregularities having been committed by the officers and executing agents of different schemes executed under National Rural Employment Programme ( in short „ NREP‟) carried out within Piro block in the District of Bhojpur, lodged an F.I.R. being Vigilance P.S. Case no. 18 of 1983, under Sections 409, 420, 120B 467, 468, 471, 477A of the Penal Code and 3 Section 5(2) read with Section 5(1)( c)(d) of the Prevention of Corruption Act, 1947. A/1 to A/3 were held guilty of having committed offence(s) under Sections 409, 420, 120B, 467, 468, 471, 477A of the Penal Code and Section 5(2) read with Section 5(1) ( C)(d) of the P.C. Act. Similarly A/4 and A/5 were found guilty and convicted under Sections 120B and 420 of the Penal Code. The maximum punishment awarded to appellant A/1, A/2, A/3 is to undergo R.I. for two and half years and to pay a fine of Rs.15000/- (Fifteen thousand) each having default clause(s).Similarly A/4 to A/5 were awarded maximum punishment under Sections 420/120B of the Penal Code and sentenced to undergo R.I. for 02 years on each count and to pay fine of Rs. 5000/- with default clause. 3. Several schemes of NREP allegedly executed between the years 1982-83 by the officers posted at Piro with the assistance of some executing agents/agencies came under the scan of the Vigilance Department. Enquires, including re-measurement of the schemes/works executed under these schemes revealed that local officers posted in the Block in connivance with agents appointed for few schemes fraudulently withdrew and misappropriated the Government funds in relation to those schemes and created official records/documents to cover up such defalcation. The appellants are, therefore, in two categories. A/1 to A/4 are Government employees, who were during the relevant period posted as J.E. R.E.O., Assistant Engineer NREP Ara, B.D.O. Piro and Jansevak posted in the said Block respectively. A/5 was an agent, who was assigned to execute scheme nos. 21-1982-83 & 22-1982-83. A chart laid out herein below would show the details of fund allegedly misappropriated under different schemes of NREP in the said block:- 4 Sl No. Nature of Jobs Est./Revise d Amount Records prepared and payment made Verification found Amount defalcated 4/81-82 Culvert bridge 8543.00 4591.00 1300.00 3291/- 21/82-83 22/82-83 Repair of Keshwa kachcha Raod 14000.00 13557.00 15294.00 16176.00 2124.00 27996.00 25/82-83 Digging of Telhar pond 34,833.00 10,881.00 16 q.17Kgs. 2907.00 7974.00 26/82-83 Repairing of Chilbilia Ahar 49504.00 20,188.00 3982.00 16,206.00 29q.91Kg. 27/82-83 Reparing of Sukhraulia Ahar 37774.00 12764.25 paise 2694.50 10069.75 paise 30/82-83 Repair work part-2 (Sukhraulia Ahar) 30,266.00 6075.00 807.50paise 6749/- Executing agent(s) of scheme nos. 21 and 22 of 1982-83 was A/5. Scheme no. 4 of 1981-82 and 26/30 of 1982-83 were got executed by other accuseds not facing the present trial. In respect of all the aforesaid schemes (refer chart) initial measurement of the works allegedly executed thereunder was/were entered in the measurement book(s) by the junior engineer NREP Piro and approved by A/2. Payments made to different agents/ government employees under the scheme(s) was/were approved by A/3, who was functioning as the Block Development Officer, Piro. Be it noted here that there is further allegation that A/1 himself withdrew payment claimed by the work agent of the said scheme under third and final bill. P.W.11 Sharda Nand Singh made investigation of the case, seized all relevant documents/work records and upon conclusion of the same submitted charge sheet against the present appellants and few others. Learned Magistrate took cognizance of the case. It may be pointed out here that some of the accuseds died during pendency of the investigation/trial. Two of the accused, namely, Arjun Singh and Rajendra Sah facing the trial left appearing at the trial resultantly they have been declared absconder(s) and the trial was separated. Charges, as noted above, were framed 5 and explained to them. Appellants pleaded not guilty. They claimed their false implication under political pressure. According to them, the works executed under the different schemes of NREP were executed as per the scheme(s) and measurements were properly taken and entered in the measurement books (MB‟s). Subsequently the verification report(s) were manufactured in order to implicate them. At the trial, the prosecution examined as many as 13 witnesses, besides exhibiting a host of documents as also the material exhibits to bring whom the charge(s). 4. PW-1 Bishwanath Prasad has proved Exhibit-1 (Sanction order) in respect of A/2. 5. PW-2 Ram Nath Prasad proved Exhibit 1/1, which is sanction order in respect of A/3. 6. PW-3 Bhuneshwar Singh, during the relevant time, was posted as Block Employment and Social Security officer in Piro Block. He was involved in verification of some of the schemes carried out by the Assistant Engineer (PW-5) posted in the Vigilance Department. In his presence in the month of July 1983, repair work of Keshwa Kachcha road (divided in two schemes), construction of Pharaura culvert were measured and verified by P.W.5 Purnanand Mishra, Assistant Engineer who carried out the measurement. He is on record deposing that in his presence measurement sheet was prepared and he signed the same. He has further deposed that besides those measurements he was also present while measurements of other schemes were being carried out. 7. PW-4 is informant and the Dy. S.P. of Vigilance. He has proved Exhibit-2 (written report) and F.I.R. (Exhibit-3). 8. P.W.5 Purnanand Mishra is the Assistant Engineer posted in Vigilance Department. He got measured and verified the schemes. According to 6 him, verification of works and re-measurement was made by him in respect of 03 schemes in presence of PW‟s 3 and 4. Such re-measurement was carried out by him in respect of scheme nos. 04 of 1981-82, 21 of 1982-83, 22 of 1982-83. This witness has proved the signature of Babban Das (A/1) on the measurement books as Exhibits 4 to 4/2, on the M.B. no. 7/82-83, M.B. No. 12 and M.B. no. 13 respectively. He has also proved the entire M.Bs. as Exhibits 5 to 5/2. The verification measurement chart of Keshwa road has been proved by him as Exhibit-7. Verification measurement chart of Pharaura culvert has been duly proved as Exhibit 7/1. Similarly another verification report has been proved by him as Exhibit 7/2 which is in respect of one of the schemes in question. His deposition would reveal elaborately how the payments were made after showing measurement in the M.Bs in order to cover up the misappropriation of Government fund(s). His deposition further reveals the manner in which one work was bifurcated into two schemes bearing nos. 21/82-83 and 22/82-83 and A/5 (Sirajuddin Ansari) was appointed agent. It is seen from his evidence that payments in those schemes against 3rd and final bill were received by Babban Das (A/1) .What was actually found on verification in respect of the schemes allegedly executed under the NREP scheme can be seen from his deposition, and the verification reports Exhibit-7, 7/1 and 7/2. Bungling in execution of those schemes were found writ large. Collusion and conspiracy of all the accused persons in swindling government money by entering forged, fake and fictitious measurement(s) in MBs are explicit from bare reading of his deposition. 9. P.W.6 Radha Mohan Shrivastava proved sanction order in respect of A/4 (VLW). 10. P.W.7 Shailendra Kumar Singh, Nazir was posted during the relevant time in Zila Parishad and in whose presence measurement/re- 7 measurement of few schemes allegedly executed under the NREP programme was made. He has stated in his deposition that he used to verify the bills and thus was aware of the writings of A/2 (Mahangu Mansoori), the Assistant Engineer. He has proved the endorsement and signatures of A/2 on the proceeding Books of Keshwa Kachcha road part -1 as Exhibit-4. Writings and signatures dated 8-4- 83 as (Exhibit 4/1) and his signature on the report (Exhibit 4/2). He has also proved the signature of A/2 as Exhibit 4/3 to 4/5 on the proceeding book of Keshwa Kachcha road part-2. 11. P.W.8 Basudeo Rai was posted as S.D.O. Ara. He carried out measurement of works under orders of the District Magistrate. He has deposed that under orders of the District Magistrate, Bhojpur the works executed under NREP schemes in Piro Block was/were verified and measured at the spot in presence of Laxmi Kant Dubey Deputy Collector, Nazarat, Ara (PW-9). Shiv Pujan Singh Junior Engineer measured the works of scheme nos. 25 of 1982-83 and 27 of 1982-83. While verifying and re-measuring the works, Block Development Officer (A/3) and the local M.L.A. were also present. Agent of those schemes, namely, A/4(Dharmdeo Rai) was also present. He is on record stating that the verification report was handed over to the Investigating Officer of the vigilance. According to him, some of the appellants and the agent(s) were present at the time of measurement when it was found that there was huge difference between the actual work carried out and projection(s) made in the corresponding MBs and the amount/fund withdrawn by the appellants. He has proved measurement book no. 19, which relate to scheme no. 25 of 1982-83 (Exhibit-5) and also measurement book no.17 relating to scheme no. 27 of 1982- 83 (Exhibit 5/1). Certificates granted by A/3 Munilal Mochi regarding page number of measurement book is Exhibit-6. This witness has stated that in both 8 the aforesaid schemes excessive payments were made than the actual work done and for that accused persons were solely responsible. 12. P.W.9 Laxmi kant Dubey was posted as Nazarat Deputy Collector at Ara. In his presence verification and re-measurement of works executed under scheme nos. 25 and 27 of 1982-83 were made by a junior Engineer on which he had signed. He has proved the carbon copy of the measurement sheet prepared by Shiv Pujan Singh relating to scheme no. 27 of 1982-83 relating to Sukhrauli Ahar. He has also proved carbon copy of the measurement sheet of scheme no. 25 of 1982-83 which is in respect of repair work of Telar pond as Exhibit 11/1. Exhibits 11and 11/1 are the measurement reports prepared by Shiv Pujan Singh (now deceased). From his evidence it reveals that after showing imaginary and fictitious works in the measurement books excessive payments were received in collusion with and in conspiracy of the accused persons causing huge monetary loss to the exchequer of the State government after ignoring the instructions of the department. 13. P.W.10 Krishna Kumar Mishra is the Chief State Examiner- cum - Director Finger print Bureau Criminal Investigation Department, Patna. He examined the finger prints of muster-roll relating to schemes in question. He found that in scheme no. 27 of 1982-83 thumbs impression on muster-roll marked as A/1, A/2, A/3, A/4 and A/5 were same which have been marked as Exhibit 7 to 7/5. This witness has further deposed that Exhibit 7/5 to 7/7 are also the same. Exhibit 7/8 and 7/9 were the same, Exhibit 7/10 to 7/19 are also the same. Exhibit 7/20 to 7/22 are of the same person. Regarding scheme no. 30/82- 83 thumbs impression marked B/1, B/2, B/3, B/4, B/9, B/10, B/13, B/14, B/15, B/16 and B/17 were the same. B/7 and B/8 were again the same. B/5, B/6 and B/11 were found to be the same. Photographs of L.T.I. of muster roll have been 9 marked as Exhibit 7/26 to 7/43 in the case. Relating to scheme no. 25/82-83 thumbs impression of muster-roll marked C/1, C/2, C/3, C/4 and C/5 were found similar, thumbs impression appearing on C/6, C/7 and C/14 were again found to be similar. Similarly C/8 and C/9 were similar. Thumbs impression appearing on C/10, C/11 and C/13 were found similar. As regard scheme no. 26 of 1982-83, thumbs impression of muster-roll marked by this witness are D/1 to D/16, D/16A, D/17 and D/32 which were found similar. This witness has further deposed that thumbs impression of muster-roll of scheme no. 21 of 1982-83 marked E/2 and E/3 were similar. Thumb impressions marked as E/4, E/5, E/5A and E/6 were similar whereas E/1 and E/7 did not tally. F/12, F/15, F/21 and F/22 were thumbs impression on muster-roll relating to scheme no. 22 of 1982- 83 which were found the same. Similarly F/11, F/14 were found similar. F/4, F/13, F/16 and F/23 were similar. F/7, F/8, F/18 and F/20 were similar. F/9 and F/10 were again found similar. His report is Exhibit-8. He has proved the enlarged photographs as Exhibit 7/44 to 7/57. He has also proved the enlarged photographs relating to scheme no. 26 of 1982-83 as Exhibit 7/58 to 7/90, regarding scheme no. 21 of 1982-83 as Exhibits 7/91 to 7/98. Exhibits 7/99 to 7/123 relate to scheme no. 22 of 1982-83. His deposition clearly demonstrates that LTIs on muster roll were forged. Collusion and conspiracy of the appellants are reflected therefrom. His cross-examination in no way discredit him. 14. P.W.11 Sharda Nand Singh is the Investigating Officer of the case. His deposition revealed that charge(s) leveled against the appellants were found technical in nature and as such measurements were got done by Assistant Engineer Vigilance (P.W.5) in presence of other persons including some of the appellants. He seized all relevant documents concerning the schemes in question. He called for and seized official files relating to Keshwa Kachcha road ( Material 10 Exhibit-I). This witness along with PW-12 has proved different material Exhibits, details of which are as under:- Material Exhibit no. Contents (i) File relating to measurement of report (ii) File relating to measurement of scheme no.4 of 1981-82 (iii) File relating to measurement of scheme no.25 of 1982-83 (iv) Filed relating to measurement of scheme no. 26/1982-83 (v) Muster roll (vi) File containing order sheets and correspondence relating to measurement of scheme no. 27 of 1982-83 Part -1 (vii) Muster- roll of the scheme (viii) File containing order sheet correspondence of scheme no. 30 of 1982-83 (ix) Guard filed containing circular of the State Government (x) Guard file part-II (xi) File containing list of labourers of gram panchayat Tilari Dih and Sukhrauli (xii) List of labourers of Gram panchayat Telar (xiii) Muster roll relating to scheme no. 21 of 1982-83 part-1 (xiv) Muster roll relating to scheme no. 22 of 1982-83 part-2 (xv) Muster roll relating to scheme no. 25 of 1982-83 (xvi) to XVI/CXVI Negative photographs of L.T.I‟s This witness has also proved the writings of Shiv Pujan Singh (Since dead) appearing at page nos. 17 to 35 of Exhibit-9, which related to the verification of work of Chilbilia Ahar. It is found from his evidence that in scheme nos. 21 and 22 of 1982-83, estimated cost was Rs. 27,552/- whereas payment(s) were made for Rs. 30,120/-. Thus a sum of Rs. 2,568/- was paid more than the amount of estimate. During verification by the vigilance Department the Government work done was found valued at Rs. 2,124/- only. Thus, according to him excessive amount of Rs. 28,096/- was made and thus misappropriated by the accused persons under the said schemes and to cover up the alleged misappropriation official documents were forged and used. He has further deposed that in the same plot both the schemes (scheme nos. 21 and 22 of 1982-83) were shown to have been executed but in course of verification no sign 11 was found indicating execution of 02 schemes. He has further stated that A/3 (Block Development Officer) appointed accused Sirajuddin Ansari (A/5) as agent whereas there was no evidence that aforesaid Sirajuddin was head of the labourers/mate. A/5 showed the work done for Rs. 25,326 without taking any advance which again was inconceivable for a labour/mate. According to him, the B.D.O. (A/3), in order to create jurisdiction of approval and sanction, bifurcated one scheme/work in two schemes. This was done with a view to arrogate to himself power of administrative sanction and payment. B.D.O was empowered to sanction scheme/work estimated/re-estimated only up to Rs. 15,000/-. His evidence revealed that work of Rs. 104/- was only left to be done in part 1 whereas in part-2 earth work of Rs. 66/- was only left to be executed/done. A/3 Block Development Officer removed the agent (A/5) and nominated A/1 ( junior Engineer) as agent who had already measured the work allegedly executed by Sirajuddin Ansari (A/5). On the strength of measurement taken by A/1 payments were shown to have been made. It can further be seen from his evidence that without receiving muster-roll A/3 (B.D.O) made all the payments. From his evidence it is also found that the department by different notifications had clearly instructed that work under the NREP scheme was not to be executed/performed by employing any contractor/agent. It was to be executed/performed through departmental agency or through Gram Panchayat Executive. The B.D.O. (A/3) had, therefore, clearly acted in gross violation of the said circular of the Government in order to enure undue benefit to him as also other accuseds under him. Another aspect of the matter revealed from his deposition is that the appellant (B.D.O) sent the file to the Assistant Engineer who without going on the spot entered the 3rd measurement of Rs. 2,748/- and thereafter forging the record recommended for payment of more than 10% of the 12 estimate and the B.D.O.(A/3) without making any query, passed the payment of the 3rd bill and A/1 Babban Das received the same. Paragraph no.19 of his deposition further discloses how interpolation in the order-sheet dated 05.02.1983 relating to scheme nos. 27 of 1982-83 and 30 of 1982-83 were made and excessive payments made in favour of A/1 Junior Engineer. It is further seen from his deposition that earlier Ishwar Dayal Singh was appointed agent who showed the work of Rs 9,596/- and food grains worth 22 quintals 58 Kgs but after scoring of the same subsequently A/1 (Baban Das) Junior Engineer presented re-estimate of Rs. 37,774/- after enhancing the rate from Rs. 6/- per labour to Rs. 8.50/- . It is further found from his evidence that the S.D.O. Ara (P.W.8) got measured the work in presence of MLA and other accused/appellants by one Shiv Pujan Singh Junior Engineer and found the work done only worth Rs. 2,694.50 paise and thereby excess payment made to the tune of Rs. 12,764.25/- and 18 quintals 91 Kgs. wheat were distributed. He therefore directed for immediate deposit of the excess amount of the food grains within 2 days. His evidence thus delineate in detail how the accused persons/appellants in collusion and in conspiracy with each other cheated the Government and committed misappropriation of Government fund allotted for execution of different schemes under NREP. They forged and fabricated measurement books, scoring of order sheets and after such cutting/scoring enhancing and re-estimating the rate(s) and thus estimated value. Some work/scheme was bifurcated into 02 schemes only with a view to create jurisdiction. This witness has further stated that he sent the thumb impression of muster-roll to State Thumb Impression Examiner (PW10). Requisition is on record as Exhibit-10. He has also proved the muster roll of different schemes. 15. P.W.12 Ashok Kumar Thakur is the State Photo examiner 13 who has proved the negatives (material exhibits XVI to XVI/CXVI). He prepared positives of those negatives and has proved the same as Exhibit 6/1 to 6/124. 16. Mr. Sarvadeo Singh representing A/4 in Cr. Appeal no. 609 of 2004, brings to the notice of this Court an application being I.A. No. 862 of 2010 filed on 7.07.2010 under Section 374(2) and 389(1) of the Code of Criminal Procedure, para 3 whereof reads as under:- “3. That the present memo of appeal is pending before this Hon‟ble Court for final hearing, however the appellant is on bail by this Hon‟ble Court. During the pendency of this present appeal the appellant died on 2.2.2010 during treatment at Medical college, Lucknow in this regard a death certificate has been issued on 9.2.2010 by the Registrar Birth and Death Lucknow Nagar Nigam.” Such statement is made on the basis of a death certificate dated 09.02.2010, issued by Lucknow Nagar Nigam. The affidavit has been affirmed by the son of A/4. According to him the appeal has become infructuous and needs to be disposed of in terms of Section 394 of the Code. 17. Different sets of lawyers appeared on behalf of the appellants. Cr. Appeal nos. 595 of 2004 and 576 of 2004, however, remained unrepresented and as such this Court took the assistance of amicus curiae. . Mr. T.N. Matin, learned senior counsel appearing in Cr. Appeal no. 600 of 2004 made the leading arguments. Other counsels have adopted the argument made by him. Learned counsel has submitted that A/3 is not named in the F.I.R. He was serving as Block Development Officer during the relevant time. He made payment on the basis of measurement made by A/1 Baban Das (Junior Engineer) and A/2 Mahangu Mansoori. Referring to the evidence of P.W.8 (Sub Divisional Officer), it is submitted that he has plainly 14 accepted in paragraph no.12 of his deposition that when he was posted as Block Development officer, he used to make payment on the basis of such measurement made by the Assistant Engineer and Junior Engineer. It is next submitted that there is no evidence and or material on record to show that he conspired with other accused persons. It is his contention that admittedly the scheme was afoot and as such it cannot be inferred from the materials on record that there was any misappropriation of fund by forging records and thereby cheating the Government fund. Referring to deposition of P.W.5, it is submitted that the re-measurement was made during rainy season and after expiry of certain period. It is thus contended that these factors would result in difference of measurement. It thus cannot be said that work(s) was/were