Central Bureau Of Investigation vs Padmanabha & Others

H.P. Sandesh, J

This appeal is filed by CBI against the order of acquittal passed in Spl.C.C.38/2004 on the file of XXXII Additional City Civil and Sessions Judge

and Special Judge for CBI Cases, Bengaluru (CCH.34) vide judgment dated 12.06.2009.

The factual matrix of the case is that the CBI police had filed the charge sheet against the respondents/accused for the offence punishable under

Section 120B read with Section 409 of IPC and Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988. The charges

levelled against the accused persons by the prosecution are that accused No.1 Sri. S.Mylaraiah was the Senior Technical Supervisor, RSU, MDF,

Nazarbad parented to OCB Main Exchange, Gokulam, Mysuru where accused No.2 Sri. Padmanabha was the Contract Labourer and accused No.3

Sri. Ramesh was the Contract Labourer at OCB Main Exchange, Gokulam. Accused No.4 Sri. Yellappa was the Sub-Inspector (O) at O/o SDE,

Telecom, Siddarthanagar, Mysore. Accused No.5 Cheluvaraju was the Telephone Operator at Telephone Exchange, Nazarbad. Accused No.6 Sri.

P.K.Ramunni Kutty was the Phone Mechanic at O/o SDE (Central), D.D.Urs Road, Mysore. Accused No.7 Sri. Abdul Jabbar R/o Tellicherry and a

friend of accused No.5 was working at Riyadh, Saudi Arabia, Accused No.8 Sri. Sajjad Haider and accused No.9 Mansoor Ahmed were residents of

Thumbe near Mangalore.

It is the allegation against the accused persons that accused No.1 is the mastermind, who conspired with other accused persons and in pursuance of

the said conspiracy, on extracting information about the five spare telephone numbers with STD/ISD facility in the system of RSU, MDF, Nazarbad,

tampered and diverted them for illegal use to Bhagyalakshmi STD/PT Booth, Desika Road, Mysuru from 11.03.1997 to 24.06.1997, Chamundi Vasathi

Gruha Lodge, Chandragupta Road, Mysuru from 11.04.1997 to 31.05.1997 and Hotel Sree Raghu Nivas near Ranjith Talkies, B.N. Road, Mysuru

from 16.06.1997 to 24.06.1997 and utilized the lines illegally for connecting/inter-connecting thousands of ISD/STD calls between Riyadh and

Dammam (Kingdom of Saudi Arabia) and India and caused wrongful loss to the tune of Rs.71 lakhs to the department and corresponding wrongful

gain for themselves. In pursuance of the criminal conspiracy, accused No.1 on 11.03.1997 at 16.51 hours diverted the working STD/PT number

No.420337 to Bhagyalakshmi STD/PT Booth for illegal use.

Accused No.5 Sri.M.Chaluvaraju and accused No.6. P.K.Ramuuni Kutty were jointly operating Bhagyalakshmi STD/PT Booth since February,

1997 which was hired by accused No.5 from Sri.B.Rajesh. Accused No.7 Sri. Abdul Jabbar, who was the friend of accused No.5, then working at

Riyadh, during the first week of March 1997 suggested to accused No.5 for arranging telephone lines to connect/inter-connect calls between Riyadh

and India. Accused No.5 asked accused No.6 to approach accused No.1 and arranged telephone lines for such use. Accused No.6 met accused No.1

and requested for two telephone lines with STD/ISD facility for the above purpose. Accused No.1 agreed to it and accused No.1 extracted details of

the four spare telephone numbers in the system of RSU and arranged to divert two numbers alternatively to Bhagyalakshmi STD/PT Booth for illegal

use. For this purpose jumperings at RSU, MDF at the equipment points of the spare numbers were done by accused No.2 Sri. Padmanabha, at the

instance of accused No.1 for monetary considerations. Further, accused No.3 Sri. Ramesh at the instance of accused No.1 used to remove the

detailed billing print out of spare numbers from OCB Main Exchange, Gokulam for preventing them from being dispatched to accounts officer in order

to prevent detention of line diversion, for monetary considerations. The lines diverted to Bhagyalakshmi STD/PT Booth was used by accused Nos.5

and 6 for connecting and inter-connecting STD/ISD calls between Riyadh and India on behalf of accused No.7 from 11.03.1997 to 24.06.1997. For

the calls connected as such, accused No.7 used to send payments to accused No.5, every fortnight, through his father Sri. A.K.Usman. The amount

paid as such were shared among accused Nos.1 to 6. Meanwhile, accused Nos.8 and 9 were introduced to accused No.1 by Sri. D.P.R.Shekar, SSO

during March 1997. They were in search of illegal telephone lines for connecting calls to Dammam. During the first week of April 1997, accused No.1

introduced accused Nos.8 and 9 to accused No.6 at Bhagyalakshmi STD/PT Booth and arranged to connect calls for them to Dammam from the said

Booth. As such, accused Nos.5 and 6 had connected calls to numbers at Dammam, on behalf of accused Nos.8 and 9 during the first ten days of

April, 1997 and received payment for it. On 11.04.1997, when accused Nos.8 and 9 met accused No.1 and expressed desire to go back, the later

asked them to stay back and called accused No.4 Yellappa and asked him to arrange a room in some hotel falling in his work area, for the stay of

accused Nos.8 and 9 for having an independent operation on diverted telephone lines. Subsequently, on 11.04.1997 accused Nos.1 and 4 went to

Chamundi Vasathi Gruha Lodge, along with accused No.8 and 9 and booked room No.1 for stay of accused No.8 in the fictitious name of Sri.

P.Manoj, Telephone Department, Mangalore and installed a two line Tatafone in the said room. Further, at the instance of accused No.1, accused

No.4 had employed Sri. Chikkanna and Rachaiah, linemen to connect two cable pairs to the Tatafone from the nearest distribution point and paid them

for it. Further, accused No.1 had diverted two spare telephone lines to the above said lodge and allowed accused Nos.8 and 9 to operate from

11.04.1997 connecting calls to Dammam and received payments in return. During such stay of accused Nos.8 and 9, accused Nos.1 and 4 were

regular visitors to the lodge and accused No.4 was attending to the faults that occasionally arose in the telephone lines, at the instance of accused

No.1. On 31.05.1997, accused Nos.8 and 9 were asked to vacate the room by the lodge owner. On vacating the room, they met accused No.1, and

expressed desire to go back and again accused No.1 asked them to stay back and on 16.06.1997, arranged room No.2 at Hotel Sree Raghu Nivas for

their stay with the help of accused No.4. There also accused No.4 arranged to connect two cable pairs from the nearest distribution point, to the two

line telephone instrument installed for the use of accused Nos.8 and 9, by employing Chikkanna and Rachaiah. Accused Nos.8 and 9, operated the

telephone in the Hotel room from 16.06.1997 to 24.06.1997 and at that time, the diversion was detected. During the period of illegal diversion of lines,

accused No.1 used to test and interrogate the spare telephone lines from the computers terminal ""TY 003"" of RSU, MDF, Nazarbad frequently for the

purpose of ensuring their working in the good condition. By the above acts, accused Nos.1 to 9 caused wrongful loss to the tune of Rs.71 lakhs to the

Department of Telecom and derived corresponding wrongful gain for themselves and thereby committed offences alleged against them.

In order to prove the charges leveled against them, the charges were framed against the accused persons and accused persons denied the charges

and claims for trial. The prosecution in order to prove the charges leveled against the accused, examined P.W.1 to P.W.26 and marked Ex.P1 to P85

and material objects as M.O.1 to M.O.4. After the closure of the evidence of the prosecution, the statement of the accused under Section 313 of

Cr.P.C. was recorded. The accused neither examined any witness nor got marked any documents. Learned Trial Judge, after concluding the trial,

heard the arguments of the prosecution as well as the defence and acquitted all the accused persons.

This Court would like to make it clear at this stage itself that accused Nos.1, 4 and 9 passed away during the pendency of the proceedings and case

against accused Nos.1, 4 and 9 was abated and the remaining accused persons faced the trial. The CBI being aggrieved by the judgment of the

acquittal, filed the present appeal before this Court.

The main contention of the CBI before this Court is that the Trial Court has failed to appreciate the settled position of law on the aspect of

conspiracy. The conspiracies are hatched always in the darkness and there is no likelihood of getting the direct evidence to establish the same. The

circumstantial evidence in such cases are sufficient to prove the offences committed by the accused. It is contended that it is the fact that four

telephones were spared and were not allotted to anybody else and the same were misused by the accused persons in conspiracy with each other. It is

also not disputed that a number of ISD/STD calls were made through the said telephone numbers. It is also not disputed that ISD/STD calls so made

have resulted in loss to the department. The Trial Court has erred in disbelieving the evidence on clumsy ground, particularly, P.W.6 and P.W.13 with

whom extra-judicial confessions was made by the accused persons. The Trial Court also has committed an error while discussing in para Nos.11 to 14

of the judgment that P.W.6, in order to save his skin, has made accused Nos.2 and 3 as scape-goats and PW.6 was required to suppress the spare

telephone numbers when the new Telephone Exchange was installed. The said observations of the Trial Court has no legal force and the Trial Court

has not given any findings as to how the extra judicial confession made by accused Nos.2 and 3 are inadmissible in evidence. The Trial Court has also

observed that accused No.2 was working under accused No.1 and as such he has to obey the command of accused No.1 during the course of his

duty. Moreover, the trial Court has erred in discarding the evidence of PW.6 and PW.13, who have proved extra-judicial confession.

The other contention of the appellant is that the Trial Court has based its findings on the assumptions and presumptions rather than appreciating the

settled position of law that all citizens of India, whether an employee including police officials or others are independent witnesses and evidence

deposed by all of them are admissible in evidence. Just because PW.6 was required to suppress the spare telephone numbers when the new

telephones were installed, does not permit automatically anybody to misuse by illegally using the same for some other personal benefits. Similarly, if

accused No.2 is working under accused No.1, law does not allow him to obey the illegal commands issued by his superior. Inspite the prosecution has

produced the voluminous documents to establish the involvement of all the accused, the Trial Court failed to appreciate the evidence in a proper

perspective and has committed an error in acquitting the accused.

Learned counsel appearing for the CBI also in his arguments vehemently contend that the Trial Court has failed to appreciate the material available

on record, and also failed to take note of the fact that a loss to the tune of Rs.71 lakhs was caused to the department. The Trial Judge failed to believe

the evidence of P.W.6 and P.W.13 only on the ground that they are the co-employees of the very same department. The Trial Court also committed

an error in coming to the conclusion that there are no evidence against accused Nos.7 to 9. The Trial Court also comes to the conclusion that the

contract labourers are not having the knowledge. P.W.1 and P.W.2, who are the Vigilance Officers deposed with regard to detecting the misuse of

telephone connections. It is also evident that five spare telephone numbers are kept in use but they were not allotted.

It is further contended that P.W.3 deposed that accused No.3 having details of command. P.W.4 and P.W.5 speaks with regard to jumperings. It

is not in dispute that accused Nos.2 and 3 were working under accused No.1. The findings given by the Trial Court is against the evidence of PW.6

and PW.13 and their evidence has also been discarded. It is the specific case of the prosecution that accused No.3 has not intentionally taken the print

out in respect of the telephone instruments which have been used and evidence of PW.3 is very clear that accused No.3 also made the confession

statement before PW.13. The Trial Court also failed to consider the evidence of P.W.17 and P.W.18, who have deposed against accused Nos.5 and

The Trial Court failed to appreciate the documentary evidence produced before the Trial Court, particularly Ex.P49 and mahazar was conducted

and seizure was made in the presence of PW.6. PW.10 also identified accused No.5. It is further contended that PW.1 also deposed against accused

Nos.8 and 9 and the Trial Court not appreciated the documentary evidence relied upon by the prosecution. The reasons assigned by the Trial Court

are not correct. Hence, it requires interference of this Court.

Learned counsel appearing for accused No.5, who has been arraigned as respondent No.3 in this appeal has filed his written arguments

contending that accused No.5 was also an employee of the Department of Telecom and the allegation in the charge sheet was that he was jointly

operating along with one Sri. P.K.Ramunni Kutty, who is an accused No.6 the STD/PT Booth since February, 1997 and the same was hired from one

Sri. B.Rajesh and accused No.5 was collecting the money from accused No.7 once in 15 days through Sri. A.K.Usman, who is the father of accused

No.7 and same was shared by accused Nos.1 to 6. The allegation against accused No.5 is that he had used Bhagyalakshmi STD/PT Booth for the

purpose of diverting the spare numbers and using the same for connecting the international calls to Dammam during the said period and in this regard,

the person, who could speak is the P.W.17, the owner of the said telephone booth.

On perusal of evidence of P.W.17, he has not spoken anything about accused No.5 at all. The next witness is PW.18, who admits that he got sub-

leased the STD/PT from P.W.17 for a period of one year under the deed of agreement dated 01.10.1996 (Ex.P.50) and admits his signature. Having

perused Ex.P.50, the same cannot be a sub-lease. PW.18 also categorically admits that the same cannot be a sub-lease in terms of the agreement -

Ex.P50. Even according to PW.16, the I.O. deposes that Bhagyalakshmi STD/PT was operated by P.W.12 and not accused No.5. Thus, there is no

incriminating material against accused No.5. The Trial Judge in detail discussed with regard to incriminating evidence of accused No.5 and has rightly

acquitted the accused and there are no grounds to convict the accused.

Learned counsel appearing for respondent Nos.4 to 6 i.e., accused Nos.6, 7 and 8 vehemently contend that it is the case of the prosecution that

PW.8 detected the conversation, and internal enquiry was conducted with regard to jumpering work. P.W.1 to P.W.6 are the official witnesses,

P.W.7 to P.W.11 are connected to three places, P.W.12, P.W.13 and P.W.14 are employees of the very same department. The evidence of P.W.17

and P.W.18 is also not helpful to the prosecution. The other witnesses are handwriting expert, sanctioning authority and the witnesses to the mahazar.

Learned counsel referring to all these witnesses, would vehemently contend that for having spare numbers are used by these accused persons, no

material is placed before the Court. The persons who made the calls are also not examined before the Court. The beneficiaries have also not been

identified and examined before the Trial Court. For having diverted the telephone calls, no materials are placed. The investigation material collected by

the I.O. also not supports the case of the prosecution. No materials are placed in support of the fact that the Instruments which are seized were used

for the said purpose. There is conflicting evidence before the Court and some of the witnesses say that there was only STD facility and not ISD

facility. When there is no ISD facility, the calls cannot be made to the abroad.

Having considered the material on record, there is no iota of evidence placed before the Court regarding the conspiracy between the accused

Nos.1 to 9 and witnesses also fails to identify the accused persons. The exact diversion is not forthcoming. The P.W.1 and P.W.2 state that only loss

to the tune of Rs.71 lakhs was caused to the department. No doubt, the Trial Court has not discussed in detail and even on consideration of the

prosecution evidence in toto, there is no material to connect these persons that they were indulged in committing such offences. Hence, there is no

merit in the appeal to reverse the findings of the Trial Court.

Learned counsel for the respondent Nos.1 and 2, who has been appointed as an amicus curiae in his argument vehemently contend that the

prosecution fails to prove the guilt of the accused persons. The learned counsel would vehemently contend that first of all, the allegation of conspiracy

has not been proved and in the absence of proving the conspiracy, they cannot be convicted for the offence invoked against them. Hence, there is no

merit in the appeal.

In reply to the arguments of the learned counsel appearing for the accused, the learned counsel appearing for the prosecution would vehemently

contend that Exs.P.2 to P.12 are the authenticated documents to show that the instruments are used and that the accused persons were indulged in

committing the offences. A fraud has been committed by not issuing the bills and there is no specification of the address and so also the spare

instruments were used in committing the fraud. In the cross-examination of the witnesses, nothing is elicited from the prosecution witnesses. PW.6, in

the cross-examination, has categorically admitted that ISD facility was available. There is no dispute with regard to the use of the spare telephones.

When such being the case, the learned Trial Judge failed to appreciate the evidence in a prospective manner. Hence, it requires interference of this

Court.

Having heard the learned counsel for the appellant as well as the respondents, this Court has to re-appreciate the material available on record.

Since, the present appeal is filed against the order of acquittal, this Court has to examine whether the material placed by the prosecution connects the

accused in proving the guilt and charges leveled against them.

Having heard the arguments of the learned counsel for the appellant and learned counsel for the respondents, the point that would arise for the

consideration of this Court is :-

Whether the Trial Court has committed an error in acquitting the accused for the charges levelled against them and whether it requires interference

of this Court ?

Before considering the material on record, this Court has to look into both oral and documentary evidence available before the Court, particularly

the incriminating evidence led by the prosecution against each of the accused.

The CBI examined P.W.1, the Vigilance Officer who had received the written complaint from the General Manager stating three telephone

connections being misused. Accused No.1 was controlling the computer operations at RSU and speaks with regard to the transfer of telephone

exchange to RSU, 4 telephone connections were inadvertently not transferred. Four telephones were given to private public call offices

unauthorisedly. It is also his evidence that one Mr.Joshi was in charge of Gokulam Main Exchange. One Technical Supervisor by name Mylaraiah,

accused No.1 was controlling the computer operations at RSU. In the course of enquiry he came to know that while shifting of telephones from main

exchange to RSU, four telephone connections were inadvertently left untransferred at the RSU. He found that the left four telephones were given to

private public call offices unauthorisedly. For this purpose, the jumper wires were used at the MDF (Main Distribution Frame). It had taken place in

RSU, Nazarabad station. It was accused No.1 Mylariah who was in charge of Nazarabad station. He was assisted by accused No.2 Padmanabha

and accused No.3 Ramesh. These two were contract labourers at that time, in MDF. The approximate calls were 54 lakhs call units and approximate

loss was Rs.71 lakhs. During the preliminary enquiry with accused No.1, it did not bring out any required results. He was directed by the Chief

General Manger to lodge the complaint with the CBI. Accordingly, he lodged the complaint dated 18.08.1997 with the CBI in terms of Ex.P.1.

In the cross-examination, P.W.1 admits that Technical Supervisors and GTO's are technically trained in the area of telecommunications. He is not

sure about the suggestion that the working telephones and spare telephones i.e., non- working telephones come under the control of main telephone

exchange in Gokulam. He admits that he has not made any enquires with Mr.Sharma, A.E. External and Mr.Joshi, A.E. internal. He volunteers that

his visit to Mysore was only for fact- finding purpose.

P.W.2 Sri M.R. Subbakrishna was working in Vigilance Section as Sub-Divisional Engineer. In his evidence he says that there was report from

General Manger, Telecommunications, Mysore regarding abnormal reading of four spare telephone numbers and one working telephone. He himself

and P.W.1 visited Gokulam Telephone Exchange and also Nazirabad RSU. The term ""spare indicator"" means a telephone number which is not allotted

to the subscriber but which is ready for allotment. So far as these four spare indicators are concerned, though they were removed from the records

with a view not to allot, however, they were not actually removed from service by giving command to the equipment. Therefore, they could be very

much put in service. With a view not to make those four numbers not available for service, they should have been suppressed in the equipment itself.

They also made oral enquiries with contract labourers Mr.Ramesh, Padmanabha, Chikkanna and other four members. They also examined deceased

accused No.1 Mylaraiah who was the Senior Technical Supervisor of RSU, Nazirabad. He also sees the activity report of telephone numbers at

Exs.P.2, 3, 4 and 5 which have been shown and also D23, 24, 25 and 26. He also identifies the other printouts as Exs.P.6 to 11. He also says that

accused No.3 Ramesh has given statement before him and the same is marked subject to objection as Ex.P.13. He was subjected to cross-

examination.

In the cross-examination, he admits that so far as Nazarbad RSU is concerned, it was parented to Gokulam OCB Exchange. He admits that if any

number is given from Nazarbad RSU, that would be found in Gokulam OCB Exchange. He admits that the main control and the data of such

telephone number given from Nazarbad Exchange would be available with Gokulam OCB Exchange. He admits that when four spare numbers were

there in Nazarbad Telephone Exchange, it was the duty of the concerned officer at Main Exchange to suppress those four numbers. The meaning of

'suppression' is making it non- functioning in the language of telecommunication. He admits that STD and ISD facility would be available only on the

basis of password command given at the Main Exchange. He further admits that STD and ISD cannot be tampered in a RSU. Smt. Shylaja the JTO

has given a statement before him in the course of his enquiry. He admits that he has not verified whether all the four spare numbers had ISD facility.

But on examination of the printouts, he came to know that they were having STD and ISD facility. It is suggested that accused No.3 has not given

any such statement in terms of Ex.P.13 and the same was denied. It is suggested that there are other real culprits and he knew their names and that

he has purposely not given the complaint against them and the same was denied.

P.W.3 was working as JTO, OCB, Gokulam, Mysore. In his evidence he says that five telephones were showing abnormal meter readings and he

had given direction to accused No.3 to take the printout of the bills and the bills of these five numbers were excluded. He says that the same shows

that accused No.3 had knowledge of the meter readings. He had the knowledge about ESAB command in computer for checking telephone line and

ABOIL and TAXIN. Accused No.3 knows about the command to take printouts of detailed bills. Before his coming to that exchange, accused No.3

had been working there itself. Ex.P.15 is identified by him, which runs to 18 sheets. All these printouts had been taken by accused No.3 as per his

direction and again he says that all these printouts pertaining to the telephone numbers stated above by him were taken out by him and not by accused

No.3 Ramesh. Accused No.3 had been in the official practice of taking out the printouts of other telephone numbers. So far as these five telephone

numbers are concerned, accused No.3 had not been taking out the printouts. When L.D. Joshi told him to take out the print outs, he had directed

accused No.3 to take out the printouts of all the telephone numbers. He had taken out the printouts of all the telephone numbers but had excluded to

take out the printout of these specific five telephone numbers. Therefore, he took out the printout of those five telephone numbers. He verified the

fortnightly meter reading of crossbar numbers at Ex.P.16 in respect of the said five telephones. Ex.P.16 shows the units of calls made during each

fortnight. He gave a report in terms of Ex.P.18. Accused No.3 Ramesh knows how to give commands of TAXIN, ABOIL and ESAB. He was

subjected to cross- examination.

In the cross-examination, he admits that the duties of accused No.3 were those of the peon like cleaning the premises, attending the phones, taking

of detailed bill prints. He says that he had given oral instructions to accused No.3 to take bill printouts as per the instructions of L.D. Joshi. He had not

given any written instructions to accused No.3. He does not know the educational qualification of accused No.3. He admits that no training has been

given to accused No.3 regarding operation of computers. He also admits that he does not remember as to how many persons were working in switch

room during the period of offence. It is suggested that accused No.3 had not been doing the work of taking out detailed billing printouts and the same

was denied. It is suggested that accused No.3 did not have the knowledge to take out such print outs and that he had not given training to him to take

prints outs and the same was denied. It is suggested that L.D. Joshi and accused No.1 Mylaraiah were involved in diversification of telephone lines in

question and that he know about the alleged conspiracy and the same was denied. It is elicited that he does not know who was in charge of ""Ty-002

X Bar Exchange as on 29.04.1997. He does not know who was in charge of ""CV003"" and ""CV004"" on the concerned dates. He admits that one

cannot find out as to who actually operated the system as appeared in Ex.P.17.

P.W.4 is the Sub-Divisional Engineer. In her evidence she says that during the month June 1997, abnormal meter reading were observed by the

Accounts Officer, Telephone Revenue Authority. The status of five numbers out of four are mentioned in the FIR. P.W.4 says that accused No.2

connects the jumpers. It is her evidence that she contacted deceased accused No.1 over phone and directed him to find out the status of these five

telephone numbers and his reply was that they were in working condition and there was no addresses pertaining to those telephone numbers. She

directed accused No.1 Mylaraiah to verify the jumper at MDF and his reply was that there was no jumper. Thereafter, all the five numbers were kept

under observation. Subsequently, those numbers were deleted from the system. Hence, she gave report in terms of Ex.P.20. She identifies accused

No.2 Padmanabha and says that he was working as a casual labourer in Nazarabad RSU. She was subjected to cross-examination.

In the cross-examination, she admits that whenever any subscriber wants STD and ISD facilities, he has to give application to commercial officer

and it will be routed and come to them for execution. Whenever any ISD facility is given to a subscriber the STD facility also follows it. In respect of

these four numbers, they did not have ISD facility. They had only STD facility. She has not given any ISD facility to any of the above stated telephone

numbers. So far as creation and suppression of telephone numbers are concerned, she has to receive directions from the higher officer and then only

she can act upon in that regard. She has not gone to RSU Nazarabad at any point of time. She admits that it was accused No.1 who told her about the

jumpering work that was done by accused No.2.

P.W.5 K. Balasubramanya, Sub-Divisional Engineer in his evidence says that from exchange side to line side they put jumper wire to inter connect

the subscriber to the equipment. There would be separate jumper wire for each subscriber. The connection of a particular telephone number can be

changed to some other equipment with the help of jumper wires. Exs.P.16 and 17 are marked through this witness. There are no incriminating

evidence against any of the accused persons having perused the evidence of this witness.

P.W.6 Lakshmana Dattatreyea Joshi, Divisional Engineer in his evidence he says that there were two RSUs - one in Nazarabad and other in

Vishveshwaranagar. Accused No.1 Mylaraiah was the Technical Supervisor in RSU, Nazarabad. The staff working in Nazarabad RSU were aware

of the fact that the three new numbers had not been suppressed in Gokulam Main Exchange. It is his incriminating evidence that accused Nos.2 and 3

stated that they acted according to the instructions of accused Nos.1. Accused No.2 stated that accused No.1 paid him Rs.10,000/- once and

Rs.20,000/-again. He was subjected to cross-examination.

In the cross-examination, he admits that all the four numbers are standing in the name of Director, CFTRI. They were working lines. Once they

were restored back to CFTRI office, they started to function there itself. It is elicited that J.T.Os will also have the powers to do that work. It is not

SDE alone who does it. He admits that suppression of the number had to be made in Gokulam Main Exchange itself and not in Nasarabad, RSU. He

admits that before the police he has stated that it was JTO Shylaja who should have suppressed them. But it is also the cumulative responsibility of

himself, herself and accused No.1 who should have the duty of suppressing them. He also admits that he has not received any requisition with a

request for giving ISD facility in respect of three numbers. He admits that when there is no ISD facility to a telephone and when that telephone is

covered by area transfer, and if such telephone requires ISD facility when that requisition comes from the subscriber, in that case written intimation

regarding providing that facility will be given. It is also suggested that he himself and accused No.1 Mylaraiah colluded with the other lineman

Yellappa, Chikkanna and Rachaiah and diverted the lines and misappropriated the funds and the said suggestion was denied.

P.W.7 Sri B.L. Ram Mohan, STC-PC holder, in his evidence he says that he gave complaint to the telephone department in terms of Ex.P.24.

There is no incriminating evidence against any of the accused.

P.W.8 Annes Ahamed in his evidence he says that telephone number 420 337 belongs to P.W.7. When the misuse of the number by

Bhagyalakshmi telephone booth was enquired and when the same was tried from two other booths, the facility was not available but from the third

booth when the call was made he realized that both carried the name of Bhagyalakshmi and there is no any incriminating evidence.

P.W.9 speaks with regard to Bhagyalakshmi STD booth pertaining to Papegowda and he has not supported the case of the prosecution.

P.W.10 in his evidence he says that lodge Chamundi Vasathi Gruha belongs to his wife and he says that in the month of April, 1997 when he went

to room No.1, he saw a person and a telephone instrument. He also says that they had not allowed any telephone connection in any room of the lodge.

A person came to him and asked for return of the telephone instrument and he refused to give it back to him as he had not produced any documents.

P.W.11 R. Raghurambhat was the owner of Raghu Nivas hotel. In his evidence he says that there is no any telephone facility in the hotel. Room

No.2 was allowed to one Manoj, a vegetable merchant and another Sajjad Ahamad in 1997. Those two stayed together in the lodge once for five days

and other time also for five days. They had got a phone installed in that room without our knowledge. The telephone had got the facility of only

outgoing calls. Two people by name Mylaraiah and Yellappa used to come to their restaurant often and they used to meet Manoj and occasionally the

other person in the restaurant and used to go back. He says that none of these accused Nos.2, 3, 5, 6 and 8 were staying in the room in his lodge in

that year. So far as Manoj is concerned, later he came to know that his real name was Mansoor Ahamad.

P.W.12 T.G. Nagarajaiah, JTO Hunsur Telephone Exchange in his evidence he says that one D.P.R. Shekar approached him for two telephone

connections.

P.W.13 Mrthyunjaya Kumar in his evidence he speaks with regard to taking out the printouts. He knows accused Nos.2, 3, 5, 6, 7 and 8. Accused

No.3 was working as casual labourer in Gokulam Telephone Exchange. Accused No.2 was working as casual labourer in Nasarabad RSU. Accused

No.1 was working as Telecom Technical Assistant. That on 27.06.1997 he had gone to the office of L.D. Joshi for some discussion regarding some

other office matter. At that time, he saw accused No.2 Padmanabha and accused No.3 Ramesh present there with L.D. Joshi. On that date accused

Nos.2 and 3 revealed to L.D. Joshi about the misdeeds, in his presence. Accused No.2 told to L.D. Joshi that himself did jumpering work as per the

instructions of accused No.1 Mylaraiah. Accused No.2 Padmanabha also stated that accused No.1 Mylaraiah had assured him that he should not

worry about his job and he would get some other job given to him is some hotel. Accused No.2 also revealed that for that work of jumpering, he

received Rs.20,000/- to Rs.25,000/- from accused No.1. Accused No.3 Ramesh also revealed to L.D. Joshi that accused No.2 should not send

printouts of telephone numbers to the addresses of those telephone numbers. He also revealed that for that he received Rs.10,000/-from accused

No.1. It is also his evidence that Vigilance Officers of the department also interrogated accused No.3 on 24.07.1997. At them time also, he was

present and he gave the statement in terms of Ex.P.13.

In the cross-examination, he admits that on his own he visited the office of L.D. Joshi and his visit was not in connection with this case. It is

suggested that accused Nos.2 and 3 have not given any statement that they have received the amount and the same was denied.

P.W.14 identifies accused No.5 in her evidence as he was working as Telephone Operator.

P.W.15 R.S. Srinivasa, Divisional Engineer (Internal) says that accused No.1 was working as Senior Technical Supervisor in the same RSU.

There are no complaints with respect to the above four numbers.

P.W.16 is the Investigating Officer who registered the FIR in terms of Ex.P.40 and conducted the search and seizure of the telephone bills seized

from accused No.5. Accused No.6 gave the voluntary statement in terms of Ex.P.45. M.Os.1 to 3 are recovered from accused No.6. He also

obtained the sanction order against accused Nos.1, 4, 5 and 6. He also seized the documents from accused No.4.

In the cross-examination, a suggestion was made that whether M.Os.1 to 3 are available exclusively in telecom department and his reply is that

telecom department does not provide any instruments like M.Os.1 to 3. It is suggested that M.O1 was not given by the wife of accused No.6 in his

presence and he had not seized it from accused No.6 and the said suggestion was denied. It is suggested that M.Os.2 and 3 were not seized by him

from accused No.6 which were handed over to accused No.6 by the same lady and the same was denied.

P.W.17 in his evidence he says that he was running STD telephone booth and he entered into an agreement sub- letting the same to Rajesh that

every month he should pay Rs.6,000/- to him. He also took the security deposit of Rs.50,000/- and he identifies the agreement as per Ex.P.50. There

are no incriminating evidence against the accused persons.

P.W.18 Rajesh is the one who took the said booth from P.W.17. He identifies his signature as per Ex.P.50(a). He says that he incurred heavy loss

in this business and he sub-let the same to accused No.5 Cheluvaraju and there was a oral agreement between him and accused No.5 that he should

pay Rs.30,000/- as advance and Rs.250/- per day to him. On the basis of the agreement, he entrusted both the telephones to accused No.5

Cheluvaraju with the premises. He identifies accused No.5. He states that he used to go to the premises often to collect the amount and for other

purposes. He used to find CW 12 P.K. Shaji and accused No.6 Ramunnikutty in the said premises whenever he used to visit there. He identifies

accused No.6. When he handed over the said telephone booth to accused No.5, there was no call conference instrument attached to STD telephone.

From January 1997 to August 1997, accused No.5 had been running that STD booth. After the CBI enquiry, he took back the said telephone booth

from P.K. Shaji. He handed over the premises to Pape Gowda 10 or 15 days after he handed over the premises to accused No.5. When he went to

the said premises, he found call conference instrument attached to the STD telephone. On enquiry, accused No.5 told him that the customer can make

STD calls from his house itself through the said STD telephone without coming to the booth and the business was going on well. As per the agreement

between himself and accused No.5, it was accused No.5 who was to pay the telephone bills to the department.

In the cross-examination, it is elicited that as per clause 6 of Ex.P.50, he was not supposed to transfer the booth to anybody else during the period

of agreement. It is suggested that accused No.5 did not pay Rs.30,000/- to him and he did not hand over the said telephone booth to him and the said

suggestion was denied. In the cross-examination by the learned counsel for accused Nos.2, 3 and 6 it is elicited that in that booth he had got two

telephone connections i.e., one for coin box telephone and the other for open STD telephone. It is suggested that C.W.12 P.K. Shaji was his friend

and that he had entrusted Bhagyalakshmi STD booth to him and the said suggestion was denied. It is elicited that he does not know whether P.K.

Shaji and accused No.6 were coming together to Bhagyalakshmi telephone booth but he claims that he used to see them being present there.

P.W.19 S.C. Lohia, hand writing expert, in his evidence he says that the person who wrote the blue enclosed writings i.e. Ex.P.57 also wrote the

red enclosed writings Ex.P.53. It is also his evidence that disputed writings has been red enclosed and marked with blue pencil as Q1 now marked as

Ex.P.53, Q2 to Q109 and Q115 to Q200 in a hand book which is marked as Ex.P.54. It is also his evidence that he has received the specimen writing

of one Sri M. Cheluvaraju marked by him as S1 to S5 and the same is marked as Ex.P.57. The specimen writings of one Abdul Jabbar accused No.7

marked by him as S6 to S50, S50/1, S51 to S140 and S161 to S250 in 226 sheets and marked as Ex.P.58. The specimen signature of accused No.8 are

marked as S151 to S155 as Ex.P.6. He was subjected to cross-examination.

In the cross-examination he admits that specimen signatures as per Ex.P.57 are not taken before him. He further admits that the reasons as per

Ex.P.63 are given by him and not by Mr.Goel. He admits that he has not produced the photographs of magnified writings referring to the comparison.

Normally they magnify one and a half time or two times which is sufficient for comparison through microscopic instrument.

P.W.20 is the mahazar witness during the search of STD booth. He says that one H.S. Pujari is also one of the witness. He identifies the

signature as per Ex.P.43(b). He accompanied the CBI team to Ramunni kutty's house. During the search they seized some acquirements. Two other

independent witnesses were also present and he signed Ex.P.49.

P.W.21 speaks with regard to issuance of sanction order in respect of accused Nos.1 and 4 to 6. In the cross- examination, he admits that he

cannot say the details of the documents that he had gone through before according sanction to prosecute accused No.5. He admits that assuming that

Rs.71 lakhs loss was caused, he mentioned the same in the sanction order in respect of accused No.5.

P.W.22, Chief Manager, Syndicate Bank is also the mahazar witness in respect of residence of accused No.8. He says that at the time of search,

some files were seized by the CBI team and a mahazar was prepared and he signed the said mahazar as per Ex.P.69(a). At the time of seizure one of

the witness S.H. Jagajeevan Das also singed the same. Accused No.8 was present. Once again he accompanied the CBI team to the house of B.M.

Abdul Khader and at that time two folios of documents were seized by the CBI team and the mahazar was drawn in terms of Ex.P.70.

P.W.23 is an independent witness, who is an employee of Syndicate Bank.. P.W.23 has not supported the case of the prosecution and turned

hostile.

.W.24 is also an independent witness who is the retired officer of Canara Bank. In his evidence he says that he went along with CBI team to the

resident of accused Abdul Jabbar and CBI team seized six items of documents. It consisted of passport, bunch of papers and other correspondence

letters, telephone index book. He signed the mahazar Ex.P.72. In the cross-examination by learned counsel for accused No.7, he says that he had not

accompanied the CBI team and he was taken by the CBI team from the Bank itself. It was about 6.30 hours in the morning. The working hours of the

bank was from 10.00 a.m. to 5.00 p.m. He also admits that except Ex.P.54, no other documents are seized.

P.W.25 is the retired Senior Section Supervisor, BSNL, who is the seizure mahazar witness. In his evidence he says that CBI Inspector called him

to CBI office at RT Nagar and obtained his signatures on the above mentioned documents and he identifies signature at Ex.P.73. In the cross-

examination, he admits that he had signed at 90 places.

P.W.26 is the Sub-Divisional Engineer, BSNL. In his evidence he says that he accompanied the CBI team to Saraswathipuram of Mysore City

and there they went to the house of one Mr. Chaluvaraju and they conducted search in his presence. The mahazar was drawn in terms of Ex.P.44.

The computer printout of telephone bills having page Nos.2 to 37 which was seized shown as item No.1 in Ex.P.44 is marked as Ex.P.15 and it bears

his signatures on the front page and the last page. He admits that at the time of search, one Ramanni Kutti was there in the house and he is accused

No. 6 in this case. He identifies him before the Court. One telephone instrument, some wires, conference units were seized there. The detailed

telephone bill printouts were also seized there. Narayan Prasad and Palakasha were also present at the time of the search.

In the cross-examination by learned counsel for accused Nos.2, 3 and 6, it is elicited that M.O.1 and other materials seized were produced by

Smt.Vasantha. He does not know whether any licence is required to keep M.O.1. M.O.1 like instrument is available in the open market also. He

cannot say whether any call made through M.O.1 is recorded in it.

Having considered both oral and documentary evidence placed on record, particularly in respect of accused Nos.2 and 3, except the very

contention of the learned counsel for the CBI that there was a extra judicial confession, there is no any material before the Court. The witness P.W.1

who is the Vigilance officer of the department speaks only with regard to accused No.1 was controlling the operations at RSU and speaks with regard

to that RSU inadvertently not transferred the four telephones. The four telephones were given to the private public call offices unauthorisedly. P.W.2

also categorically admits that four numbers were removed from the records, but could be used. Various documents of the exhibit does not reflect local

calls. He speaks that Ex.P.13 is the statement given by accused No.3 and also identifies his signature. But the fact is that accused Nos.2 and 3 gave

the statement before them that accused Nos.2 and 3 discharged their duties at the instance of accused No.1. P.W.6 also says that an amount of

Rs.10,000/- was given to accused No.2 by accused No.1 once and again given Rs.20,000/-. But there is no recovery in respect of payment of the

amount made to accused Nos.2 and 3. Except the oral evidence of these witnesses against accused Nos.2 and 3 and the extra judicial confession

made by accused Nos.2 and 3 before the official witness who belongs to the very same department, no other materials are found.

The learned counsel for CBI also pointed out that in the appeal memorandum the main contention urged is extra judicial confession against

accused Nos.2 and 3. The extra judicial confession is a weak piece of evidence and based on the weak piece of evidence of extra judicial confession,

the accused persons cannot be convicted. No doubt, it is the contention of the learned counsel for the CBI that in a case of conspiracy, the Court

cannot expect direct evidence and the same has to be proved by circumstantial evidence. In a case of proving the case against the accused, relying

upon the circumstantial evidence, there must be a chain link to each circumstances and the same is also not found in order to come to a conclusion

that accused No.2 and 3 have committed the offence. It is pertinent to note that P.W.1 assessed the approximate loss to the tune of Rs.71 lakhs and

the Accounts Officer categorically admitted in the cross-examination that the same is based on guess work. It is pertinent to note that P.W.1 admits

that Technical Supervisor and JTOs are technically trained in the area of telecommunications. It is also important to note that P.W.1 categorically

admits that he is not sure about the suggestion that the working telephones and spare telephones i.e., non-working telephones come under the control

of main telephone exchange in Gokulam. It is important to note that in the cross- examination he admits that he has not made any enquires with

Mr.Sharma, A.E. External and Mr.Joshi, A.E. Internal.

It is important to note that P.W.2 Vigilance Officer in the cross-examination though he claims that accused No.3 Ramesh has given the statement

before him in terms of Ex.P.13, his main evidence is that he did not take out the printout in respect of disputed telephone number. P.W.3 speaks with

regard to accused No.3 that he was knowing operating of the command and he intentionally did not take out the printout in respect of those telephone

numbers. But in the cross- examination, P.W.3 categorically says that the job of accused No.3 were those of the peon like cleaning the premises,

attending the phones, taking of detailed bill prints. He states that he had given oral instructions to accused No.3 to take the bill print outs as per the

instructions of L.D.Joshi. He has not given instructions to accused No.3 in writing. It is important to note that he does not know the educational

qualification of accused No.3 and further admits that no training is given to accused No.3 regarding operation of computers. P.W.3 admits that he

does not remember as to how many persons were working in switch room during the period of offence. It was suggested that L.D. Joshi and accused

No.1 Mylaraiah were involved in diversification of telephone lines in question and that he know about the alleged conspiracy and the same was denied.

It is pertinent to note that in the cross-examination, he admits that one cannot find out as to who actually operated the system as appeared in Ex.P.17.

It is important to note that P.W.4 admits that she know accused No.2 Padmanabha and he was working as casual labourer in Nazarabad RSU.

But she claims that he was carrying out the work of jumpering for new telephone connections. But in the cross-examination, she categorically admits

that whenever any subscriber wants STD and ISD facilities, he has to give application to commercial officer and it will be routed and come to them

for execution. It is also important to note that she admits that whenever any ISD facility is given to a subscriber, the STD facility also follows it. So far

as the telephone numbers are concerned, they did not have ISD facility. They had only STD facility. P.W.4 categorically admits that they have not

given any ISD facility to any of the above stated telephone numbers. She further admits that she has to receive directions from the higher officer and

then only she can act upon in that regard. She also admits that she has not gone to RSU Nazarabad at any point of time. She claims that accused No.1

told her about the jumpering work that was done by accused No.2. It is elicited that she does not know as to how many members of staff were

working in Nazarabad RSU in those days and she cannot say whether accused No.2 was not doing the jumpering works.

Having perused the evidence, particularly of P.W.1 to P.W.5 and P.W.6, this Court does not find any incriminating evidence against accused

Nos.2 and 3 to bring the accused within the ambit of committing the offence of conspiracy with accused No.1 in causing loss to the department. It is

important to note that both of them are casual labourers and they were appointed as peons and witnesses have categorically admitted that they have

not given any training and also no order was given to entrust the work to accused No.3 to take out the printouts and they are not having any technical

knowledge. Merely because the interested witnesses says that extra judicial confession was given before them, they cannot be convicted. I do not find

any error committed by the Trial Court in acquitting accused Nos.2 and 3 and there is no any recovery at the instance of accused Nos.2 and 3 except

extra judicial confession.

Insofar as accused Nos.5 to 8 are concerned, it has to be noted that the witnesses, particularly P.W.11 who is the owner of Raghu Nivas hotel, in

his evidence he says that there was no any telephone connection in the hotel. He says that accused No.9 was present with the false name Manoj and

claims that accused No.8 was also present in the said room. He says that none of accused No.2, 3, 5, 6 and 8 were staying in the room in his lodge in

that year. Later he came to know that real name of Manoj was Mansoor Ahamad. When P.W.11 says that when accused No.8 was not staying in the

room, his evidence cannot be relied upon in respect of accused No.8 though he claims that accused No.8 was present in the said room.

P.W.14 identifies accused No.5 and Ex.P.33 is related to accused No.5. In the chief evidence he identifies accused Nos.2, 3, 5, 6, 7 and 8, but he

claims that he can identify only accused No.5. There is no any incriminating evidence against accused No.5 except identifying accused No.5. P.W.16

Investigating Officer states that telephone bills are seized from accused No.5 and accused No.6 has given voluntary statement in terms of Ex.P.45

and says that M.Os.1 to 3 are recovered from accused No.6. It is pertinent to note that P.W.26 in the cross- examination categorically admits that

M.O.1 and other materials seized were produced by Smt.Vasantha and hence the evidence of P.W.16 is contrary to P.W.26. It is pertinent to note

that P.W.26 who is an employee of BSNL i.e., Sub-Divisional Engineer, BSNL, Mobile Services categorically admits that he does not know whether

any licence is required to keep M.O.1. M.O.1 like instrument is available in the open market also. He further admits that he cannot say whether any

call made through M.O.1 is recorded in it. First of all, the very recovery at the instance of the accused has not been proved and P.W.26 who is an

witness to the seizure mahazar admits that the same was seized through Smt.Vasantha and throughout in the cross- examination, it is suggested that

the same was not seized from the accused. Though prosecution relies upon M.Os.1 to 4, the very seizuere itself is not proved. P.W.26 categorically

says that he cannot say whether any call made through M.O.1 is recorded in it. Even though the prosecution relies upon Exs.P5 to 12 regarding calls

made, none of the witnesses have spoken with regard to that they have witnessed making of the phone calls by the accused and it is only a hearsay

evidence.

The prosecution also relied upon the evidence of P.W.17 and P.W.18. P.W.17 original owner of the telephone booth categorically says that no

conference call facility was provided in the said booth. He also says that he has entered into an agreement with P.W.18 in terms of Ex.P.50. Having

perused the document Ex.P.50, it is an undisputed fact that it is an agreement between P.W.17 and P.W.18. Though P.W.18 claims that accused

No.5 approached and requested him to give two telephones, he admits that there was an oral agreement between accused No.5 and him and he paid

Rs.30,000/- . In order to prove the fact that accused No.5 has paid the advance amount of Rs.30,000/- to P.W.18, no document is placed before the

Court. For having paid an amount of Rs.250/- per day by accused No.5 also no documents is placed before the Court. Merely identifying accused

Nos.5 and 6 by P.W.18 is not enough to prove the accused guilty. It is pertinent to note that P.W.18 categorically says that he used to see C.W.12

and accused No.6 in the telephone booth. In order to prove the fact that he entrusted the two telephones to accused No.5, there is no any material.

P.W.18 admits that in terms of Ex.P.50 he has not been permitted to entrust the same to anybody else and hence his evidence is contrary to Ex.P.50.

The prosecution also examined P.W.19 hand writing expert to prove the fact with regard to hand writing available at Exs.P.53 and 57. In the

cross-examination, P.W.19 categorically admits that though he came to a conclusion that the same belongs to a particular accused person, he

categorically admits that he has not produced the photographs of magnified writings referring to the comparison. He further admits that normally they

magnify one and a half time or two times which is sufficient for comparison through microscopic instrument. He categorically admits that he has not

produced the photographs of magnified writing referring to the comparison and the same cannot be believed and based on the handwriting expert's

opinion, the accused persons cannot be convicted. The mahazar witness P.W.20 in respect of telephone STD booth, his evidence is not particular

about which of the documents are seized at the instance of accused No.6 expect identifying the signature in Ex.P.43. Though P.W.20 claims one

witness H.S.Pujari was also present, he has not been examined. It is also pertinent to note that the other witnesses P.W.22 and P.W.23 are the

witnesses to the mahazar. The independent witness P.W.23 has completely turned hostile and mere marking of documents is not enough and the same

has to be proved. P.W.24, the retired bank official of Canara Bank is the mahazar witness to Exs.P.72 and 54. In his cross-examination he

categorically admits that he was taken by the CBI team at about 6.30 hours in the morning. He categorically admits that working hours of the bank

was from 10.00 a.m. to 5.00 p.m. But his evidence is that they were taken by the CBI team from the Bank itself in the early morning. There is no

explanation as to why they were in the Bank at 6.30 a.m. He also admits that except Ex.P.54, no other documents are seized in his presence.

Having taken note of over all evidence available on record, the prosecution failed to prove the fact with regard to the involvement of accused

Nos.5 and 6. No doubt, accused Nos.7 and 8 are beneficiaries of the said transaction. In order to bring home all the accused persons also, there is no

substantial material before the Court. It is also important to note that accused Nos.1 and 4 are no more and the specific case of CBI is that accused

Nos.1 and 4 conspired with other accused persons in committing and causing loss to the department. The Trial Judge while acquitting the accused has

not discussed the evidence on record in detail. Having perused the evidence on record, this Court also does not find any substantial evidence before

the Court in order to connect the accused persons both in respect of offence of conspiracy and also causing loss to the department. No doubt, some of

the documents i.e., Ex.P.2 to 12 are placed before the Court with regard to the use of the telephone numbers which have not been installed to any

other person or any department and the same has been misused by making telephone calls. But in the absence of any substantial material before the

Court, it is not appropriate to reverse the findings of the Trial Court in coming to the other conclusion. On re-appreciation of the evidence also, the

benefit goes in favour of the accused. In the case on hand, no such substantial material is found to come to other conclusion and hence, I do not find

any merit in the appeal to reverse the findings of the Trial Court.

It is important to note that in the appeal memorandum mainly two grounds are urged with regard to proving the conspiracy and the same is rest

upon circumstantial evidence and in order to connect the accused persons to prove conspiracy also no chain link is placed before the Court. The other

contention is that extra judicial confession has not been considered by the Trial Court. I have already pointed out that extra judicial confession is a

weak piece of evidence and based on extra judicial confession, the accused cannot be convicted, unless substantial material is placed on record. No

doubt, the learned counsel for the appellant though not urged other grounds in the appeal memo, during the course of argument brought to the notice of

this Court several materials before the Court and the same does not inspire the confidence of this Court relying upon the evidence of P.Ws.6, 11 and

The evidence of P.Ws.17 and 18 are not helpful to the prosecution in order to prove the case against accused Nos.5 and 6. Apart from that, there

is no chain link between the circumstantial evidence in favour of the prosecution. The conspiracy cannot be proved by direct evidence but

circumstances should be in favour of the prosecution and the same is not found. Hence, there is no merit in the appeal to reverse the findings of the

Trial Court.

In view of the discussions made above, I pass the following:

ORDER

(i) The appeal is dismissed.

(ii) The Registry is directed to pay the amount of Rs.3,000/- in favour of amicus curiae.