Delhi District Court
State vs Vasudev Sharma on 24 April, 2019
IN THE COURT OF Ms POOJA AGGARWAL: x
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 658/07
PS Shalimar Bagh
State Vs Vasudev Sharma
Date of Institution: 16.09.2008
Date of Judgment: 24.04.2019
JUDGMENT
(a) Serial Number of the case : 537478/2016
(b) Date of commission of offence : 12.10.2007
(c) Name of the complainant : SI Ramesh Chand Meena
(d) Name of Accused, his : Vasudev Sharma
parentage & residence S/o Sh. Shridhar Prasad Sharma
R/o H. No. B-4837, Gali No. 112,
Sant Nagar, Delhi
(e) Offence complained of : Under Section 385 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Vasudev Sharma has been sent to face trial for the commission of offence under Section 385 of the Indian Penal Code (hereinafter referred to as 'IPC') on the allegations that on 12.10.2007, at about 12.00 noon, at Ring Road, Near All Heaven Restaurant Shalimar Bagh, Delhi, the accused had put SI Ramesh Chand in fear to harm to his reputation by publishing wrong information against him, complaining against him to his senior officials and spoiling his future in order to extort Rs. 1500/- from him.
FIR No. 658/07PS Shalimar Bagh State Vs Vasudev Sharma Page No. 1 of 14
2) After completion of the investigation, chargesheet was filed in Court against the accused Vasudev Sharma, cognizance of the offence was taken, accused was summoned and after his presence was secured, a copy of the chargesheet along with the documents was supplied to him in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of arguments, charge was framed against the accused Vasudev Sharma for the commission of offence under Section 385 IPC to which he pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 05 witness.
5) PW1 Sh. Ramesh Chand being the complainant testified that on 09.10.2007, he was posted at Ashok Vihar Circle as ZO when one Indica Car bearing no. DL3CW-5790 stopped at about 25 meters away from them and its occupant/accused called Ct. Ajeet, gave his visiting card Ex.PW1/A to him asking him to give it to PW1 which card PW1 kept in his pocket. He further testified that after about 10 minutes, the accused called him on his mobile 9868749407 asking him to talk upon which PW1 came to the car of accused and accused told him that he had a monthly of Rs. 1500/- fixed from his traffic point upon which PW1 asked him the purpose for the same, and the accused told PW1 that he published a weekly Hindi newspaper in the name and style of Tanuj Times and that the accused can write and publish bad about PW1 and his officers and he (accused) could tarnish his image and character FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 2 of 14 roll. PW1 further testified that the accused had also told him that all his zonal officers gave Rs. 1500/- per month to the accused in order to pacify him (accused) and prevent him from writing anything bad about the corruption and other things of all police officials on which PW1 told the accused that he would talk to other people and get back to the accused later as he was working.
6) PW1 further testified that on 11.10.2007, at about 6.45 pm, the accused again called PW1 and asked for Rs. 1500/- as monthly which PW1 refused and on the same day, at about 8.00 pm, PW1 went to his office and told the entire facts to Inspector Ved Prakash and a DD Entry no. 33 dated 11.10.2017 Mark A was lodged. He further testified that on 12.10.2007, at about 12.00 noon, the accused again came at Ashok Vihar T- point where PW1 was performing his duty alongwith his staff and parked his vehicle about 25 meters away from them upon which PW1 went to him asking him to remove his vehicle on which the accused threatened PW1 that he will publish against him in the newspaper and PW1 called at 100 number and also informed his TI about the incident on which Additional SHO Inspector Rajnish Parmar reached at the spot to whom the incident was narrated and the accused was taken to PS Shalimar Bagh and PW1 was also called there.
7) PW1 further testified that he gave a complaint Ex. PW1/B and FIR was registered against the accused, site plan Ex. PW1/C was prepared at the instance of PW1 by the IO after going to the spot, Indica car bearing no. DL3CW-5790 alongwith its key was also seized vide memo Ex.
FIR No. 658/07PS Shalimar Bagh State Vs Vasudev Sharma Page No. 3 of 14 PW1/D, accused was arrested and personally searched vide memo Ex. PW1/E and PW1/F. During the course of the trial, the accused did not dispute the identity of the Indica Car. The witness correctly identified the accused in the Court and also identified his signatures on the documents. The complainant/PW1 was duly cross-examined by the Ld defence Counsel at length.
8) No witness was examined as PW2.
9) PW3 Ct Ajeet testified on similar lines as PW1. He correctly identified the accused in the Court and also identified his signatures on the documents. PW3 was also duly cross-examined by the Ld defence Counsel at length and was also re-examined by the Ld APP for the State.
10) PW4 ASI Nanhe Lal (Ct Nanhe Lal as he then was) testified that on 12.10.2007, he went to the spot, i.e., Ring Road, Near All Heaven Restaurant Shalimar Bagh, Delhi with ASI Rajbir upon receipt of DD No 16A where they found traffic staff, the accused alongwith Inspector Ved Prakash and one Indica Car bearing number DL 3CW 5790 and that after sometime Addl. SHO Rajnish Parmar reached the spot and SI Ramesh Chand gave a written complaint Ex PW1/A to IO/ASI Rajbir Singh, IO prepared the rukka and got the FIR registered through PW4 who then returned to the spot with the copy of FIR and original rukka. He further testified that the accused was arrested and personally searched vide memo Ex. PW1/E and PW1/F, site plan Mark C was FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 4 of 14 prepared at instance of complainant, visiting Card of the accused was seized vide Ex. PW1/C, Indica car of accused was seized vide memo Ex. PW1/D. During the course of the trial, the accused did not dispute the identity of the Indica Car. The witness correctly identified the accused in the Court and also identified his signatures on the documents. The complainant/PW1 was duly cross-examined by the Ld defence Counsel at length.
11) PW5 Retd ASI Rajvir Singh (ASI Rajvir Singh as he then was) testified on similar lines as PW4 Ct Nanhe Lal. He went on to testify that at the spot they had met the accused alongwith inspector Ved Prakash, TI Traffic, SI Ramesh Chand Meena and Ct. Ajit Singh, other staff members. He further testified that in the meantime, Addl. SHO Rajnish Parmar alongwith his officials staff also reached at the spot on govt. vehicle and he was told by ZO Ramesh Chand Meena and TI Inspector Ved Prakash Meena that the accused was personating himself as Chief Editor of magazine namely Tanuj Times and narrated the incident which took place on 09.10.2007, 11.10.2007 and on 12.10.2007. He further testified that SI Ramesh Chand gave a written complaint alongwith the custody of accused to him, that they had requested public persons to join the investigation but none agreed and left without disclosing their names and addresses. He further testified that on the instructions of Addl. SHO for further investigation, he endorsed the complaint of SI Ramesh Chand, complainant handed over DD no 33 (traffic) and the forged visiting card of the accused, vehicle of accused was seized vide memo Ex. PW1/D, DD No. 33 and visiting FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 5 of 14 Card of the accused were seized vide Ex. PW1/C, the accused was arrested and personally searched vide memo Ex. PW1/E and PW1/F, rukka Ex PW5/A was prepared upon the complaint of the complainant and FIR was got registered through Ct Nanhe who returned to the spot and handed over the same to PW5. He further testified that after the medical examination of the accused was conducted, he was taken to the PS and put in the lock up. During the course of the trial, the accused did not dispute the identity of the Indica Car. The witness correctly identified the accused in the Court and also identified his signatures on the documents. He also identified the visiting card Ex PW1/A. The complainant/PW1 was duly cross-examined by the Ld defence Counsel.
12) PW6 Inspector Ved Prakash testified that on 12.10.2007 he was posted as TI at Ashok Vihar circle with SI Ramesh Chand posted as ZO under him. He further testified that on 11.10.2007, SI Ramesh Chand had informed him that posing himself as chief Editor Tanuj Times, the accused had approached SI Ramesh Chand demanding of Rs. 1500/- per month from him threatening that in case, his monthly money is not given, he will adversely report in his newspaper against ZO Ramesh Chand and the accused and will also forward the same to his senior officer.
13) He further testified that SI Ramesh Chand had told him that on 09.10.2007, the accused visited him upon which he had advised SI Ramesh Chand to lodge a DD Entry upon which, SI Ramesh Chand reported the matter while DD NO. 33 dated 11.10.2007. He further FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 6 of 14 testified that on 12.10.2007, at about 12.00 noon, when SI Ramesh Chand was again doing his duty at Outer Ring Road, Near Shalimar Bagh, the accused again visited him and demanded a monthly money of Rs. 1500/- upon denying the same, the accused threatened ZO/SI Ramesh Chad of dire consequences on which, SI made a call at 100 number and telephonically informed PW6 upon which he also rushed at the spot where the accused along with his Indica Car bearing registration Number DL3CW-5790 was present, police staff from PS Shalimar Bagh had also reached and SI Ramesh Chand gave his written complaint to the IO on which the present case was got registered and investigation was taken over by PS Shalimar Bagh. He further testified that the accused was arrested and personally searched vide memo Ex. PW1/E & Ex. PW1/F and SI Ramesh Chand also handed over the visiting card of accused of Tanuj Times to IO which was seized by IO alongwith DD No. 33 dated 11.10.2007 vide memo already Ex. PW1/C. He further testified as to the Indica car having been seized vide Ex PW1/D. The witness correctly identified the accused in the Court and also identified his signatures on the documents. He also identified the visiting card Ex PW1/A. The witness was duly cross-examined by the Ld defence Counsel.
14) During the course of trial, the accused did not dispute the factum of registration of FIR no. 658/07 Ex. P1, DD No. 16A dated 12.10.2007 Ex. P2 and DD no. 33 dated 11.10.2007 Ex. P3.
15)After prosecution evidence was closed, the statement of accused was FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 7 of 14 recorded under Section 281 read with 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained his innocence stating that he had been falsely implicated in this case. The accused however chose not to lead any defence evidence.
16)Final arguments advanced by the Ld APP for the State as well as on behalf of the accused have been carefully considered along with the evidence on record.
17)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
18)Since the accused has been charged with having committed an offence under Section 385 of Indian Penal Code, 1860, it was for the State to prove that in order to the committing of extortion, the accused had attempted to put the complainant in fear of injury to his reputation so as to induce him to deliver Rs 1500/- per month to the accused.
19)However, from the totality of the evidence on record, the prosecution has miserably failed to discharge the onus cast upon it. For instance, as FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 8 of 14 per the prosecution version, the genesis of the alleged extortion was on 09.10.2007 when the accused had stopped his Indica car 25 meters away from the complainant, he had given his card to PW3/Ct Ajit who in turn handed it to the complainant/PW1 SI Ramesh who had put it in his pocket upon which the accused had called the PW1/SI Ramesh and it was while talking on the phone, that the complainant/PW1 had gone to the accused who then made the alleged extortion demand. PW3/Ct Ajit has testified on similar lines during his examination in chief.
20)However, PW3 Ct Ajeet has himself testified during his cross-
examination that he did not hear the conversation between the accused and the complainant. That being so, the testimony of PW3/Ct.Ajeet as to the alleged extortion demand is merely hearsay and cannot be read as being corroborative of the testimony of the complainant/PW1 SI Ramesh.
21)The prosecution also failed to lead further corroborative evidence. For instance, during his cross-examination, the complainant/PW1 SI Ramesh has testified that the call had been made by the accused on 09.10.2007 at about 1.30 pm. Since it is the case of the prosecution that after receiving the call, the complainant had gone to the accused who then made the extortion demand, the CDR of the complainant or even the accused could have corroborated the testimony of the complainant/PW1 in respect of the alleged extortion demand by proving the factum of any call having been made by the accused and being received by the complainant/PW1 on 09.10.2007. However FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 9 of 14 IO/PW5 Retd SI Rajvir Singh himself testified that he did not make any efforts to obtain CDR between the accused and the complainant but prosecution was unable to bring on record any explanation for such material omission thereby warranting an adverse inference that the CDR's if produced in evidence would not have supported the case of the prosecution and were thus withheld.
22)It is also noted that the complainant/ PW1 SI Ramesh has further testified that on 11.10.2007 the accused had again called him at about 6.45 pm demanding Rs 1500/- from him on which day he lodged DD no.33 ExP3. It is pertinent to note that the entire examination in chief of the complainant/PW1 SI Ramesh is silent as to him having called the accused at any point of time, yet during his cross-examination, he admitted that he had called accused on 11.10.2007. Though the complainant/PW1 SI Ramesh went on to volunteer that he had first received the call from the accused on 11.10.2007 upon which he called back the accused, he neither clarified as to at which time the purported call was received from the accused nor he clarified as to the purpose for which he had called back the accused who as per the version of the complainant had already made an extortion demand from the complainant as a reasonably prudent person and especially a police official cannot be expected to call back an alleged extortionist which thus casts a shadow of suspicion over the version being put forth by the complainant/ PW1 SI Ramesh.
23)Be that as it may, it is pertinent to note that for reasons best known to FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 10 of 14 the prosecution, no CDR's have been produced even in respect of the alleged call made by the accused or made by the complainant/PW1 on 11.10.2007 which again warrants an adverse inference to be drawn.
24)Be that as it may, it is duly noted that the stand of the complainant has also not been consistent as there is discrepancy in the sequence of events as narrated by the complainant/PW1 at the time of lodging of the DD No.33 ie ExY3 and the complaint Ex PW1/B. For instance, while at the time of lodging of the DD, the stand of the complainant was that on 09.10.2007, the accused had come up to the complainant, given the card to the complainant himself and then made the extortion demand, there is no mention in the said DD about any phone call having been made by the accused to the complainant. However, in his complaint Ex PW1/B as well as in his testimony in the Court, the complainant has taken the stand that he had gone to the accused only after receiving the phone call. It has already come on record that the CDR's have not been collected to corroborate the testimony of the complainant in the Court nor any explanation has come forth in the entire evidence as led by the prosecution to explain such discrepancy due to which the case of prosecution is further weakened.
25)It is also pertinent to note that as per the testimony of the complainant/ PW1 SI Ramesh, the accused had told him all his zonal officers give him Rs 1500/- in order to pacify him from writing anything bad about them. Even PW5 Retd SI Rajvir Singh had testified in his cross- examination that during his cross-examination by the Ld APP, he had FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 11 of 14 come to know that Rs 1500/- was fixed as monthly from traffic police personnel, yet for reasons best known to the prosecution, again no further evidence was led by it to prove through what investigation the said fact came to the knowledge of the witness/PW5 Retd SI Rajvir as no other traffic personnel were examined regarding the same which again renders the case of the prosecution doubtful.
26)In respect of the incident dated 12.10.2007, the complainant/PW1 SI Ramesh has testified that at about 12.00 noon, the accused had again threatened to publish against him in the newspaper after which PW1 called at 100 number, informed his TI about the incident and Additional SHO Insp Rajnish Parmar reached at the spot. PW1 further testified that the accused was taken to PS Shalimar Bagh and he was also called there after which he gave a complaint Ex. PW1/B and FIR was registered against the accused and after the IO returned to the spot, the various documents were prepared including site plan, seizure memo, arrest memo and personal search memo.
27)On the other hand, the testimony of PW4 ASI Nanhe Lal and PW5 Retd SI Rajvir is conspicuously silent as to the complainant having gone to the PS or as to the complaint having been given in the PS. It is however, pertinent to note here that as per the testimony of PW4 ASI Nanhe Lal he had gone from the spot to the PS for registration of the FIR and after he returned IO had prepared the seizure memos, site plan, arrest memo, personal search memo etc implying thereby that the complaint must have been given at the spot itself which is contrary to FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 12 of 14 the oral testimony of the complainant/PW1 SI Ramesh and in the absence of any further evidence having been led by the prosecution to believe one version over the other, the possibility of the investigation having been manipulated cannot be ruled out, the benefit of which accrues to the accused.
28)It is further noted that PW5 Retd SI Rajvir has testified that on the instructions of Addl. SHO for further investigation, he endorsed the complaint of SI Ramesh Chand, complainant handed over DD no 33 (traffic) and the forged visiting card of the accused, vehicle of accused was seized vide memo Ex. PW1/D, DD No. 33 and visiting Card of the accused were seized vide Ex. PW1/C, the accused was arrested and personally searched vide memo Ex. PW1/E and PW1/F, rukka Ex PW5/A was prepared upon the complaint of the complainant and FIR was got registered through Ct Nanhe who returned to the spot at about 6.30 pm and handed over the same to PW5. Now if the testimony of the PW5 Retd SI Rajvir is accepted as correct then it would imply that all the documents had already been prepared before the registration of the FIR whereas in the arrest memo Ex PW1/E, the time of arrest is reflected as 5.00pm which implies that the possibility of the documents having been manipulated cannot be excluded.
Decision
29) In view of the aforesaid discussion, as the prosecution failing to prove its case against the accused beyond reasonable doubts, the accused Vasudev Sharma S/o Sh. Shridhar Sharma, is given the benefit of the FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 13 of 14 doubt and is hereby acquitted of the offence under Section 385 IPC in FIR no. 658/2007 PS Shalimar Bagh.
30) He is directed to furnish bail bond and surety bond in the sum of Rs.25,000/- under section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
31) File be consigned to Record Room after due compliance.
Announced in the Open Court
on 24.04.2019 Digitally signed
by POOJA
POOJA AGGARWAL
AGGARWAL Date: 2019.04.24
16:54:30 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
Digitally signed by POOJA POOJA AGGARWAL
AGGARWAL Date: 2019.04.24
16:54:39 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 658/07 PS Shalimar Bagh State Vs Vasudev Sharma Page No. 14 of 14