Delhi District Court
State vs . Sachin & Anr on 18 March, 2023
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. SACHIN & ANR
FIR Number : 548/2008.
Under Section : 387/506/120B/201 IPC.
Police Station : Narela.
JUDGMENT
a) Registration no. of case : 5289603/2016
b) Name & address of the : Mukesh Mangla
complainant S/o Sh. Rajender Singh
R/o F1728, Bhorgarh, Narela,
Delhi
c) Name & address of : 1. Sachin Kumar
accused S/o Sh. Satbir Singh
R/o H. No. 418, Pocket 6,
Sector B4, Punjabi Colony,
Narela, Delhi
2. Amrender Kumar Singh
S/o Sh. Dinanath
R/o Village Baishanpurva P S
Paryagpur Dist., Bahraich U.P.
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 1 of 41
d) Date of Commission of : Year 2018
offence
e) Offence complained of : 387/201/120BIPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
Date of Institution : 06.03.2009
Judgment Pronounced on : 18.03.2023
JUDGMENT
Brief facts:
1. The case of the prosecution is that, in the year 2008, both the accused namely Sachin and Amrinder entered into the criminal conspiracy and on 06/12/2018 at about 07:52 PM at Factory no. F1728, DSIDC, Bhorgarh, Narela, Delhi made a threatening call from their mobile phone no. 9721088047 and 9919827819 to the complainant namely Mukesh Mangla at his mobile phone no. 9958322822 and demanded extortion money of Rs. 5,00,000/ and thereby committed the offence U/s 387/120B Indian Penal Code, 1860 (hereinafter "IPC"). Further, both the above mentioned accused had burned the SIM card of mobile phone no. 9721088047 and intentionally disappeared with intent to screen the offender from FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 2 of 41 legal punishment and thereby both the accused committed the offence U/s 201/120B IPC. The present FIR No. 458/2008, was registered under section 387/506 IPC on the complaint of Mukesh Mangla.
2. On the basis of the investigation carried out by the police, chargesheet was filed under section 173 Cr.P.C in the court on 06/03/2009 and chargesheet and other relevant document were supplied to the accused persons in compliance of section 207 Cr.P.C to their satisfaction.
3. Charge for committing the offence punishable under section 387/201/120B IPC was framed upon both the accused on 22/05/2012 to which accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for PE.
Prosecution Evidence
4. To prove its case, prosecution has examined as many as 18 witnesses. The crux of the testimonies of complainant Mukesh Mangla, on whose complaint the FIR has been registered, and IO are as follows:
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 3 of 414.1 PW4 Mukesh Mangla deposed that in the year 2008, he along with his friend Amit Jindal used to run a footwear factory at F1728, DSIIDC, Narela, Delhi. Accused Sachin (correctly identified) used to work at their factory. On 16.12.2008, when he was present at his factory, he received a telephonic call on his mobile number 9958322822 from a mobile phone number 9721088047. The caller on the mobile phone stated to him that Narela and Gurgaon were on his hitlist and were his targets. The caller also stated to him that he wanted to do explosions in the area of Narela and Gurgaon and he receives Rs. 5 lacs for each blast and that the factory of witness was also at his hitlist/target. On 19.12.2008, the witness received a message on his mobile phone from mobile number 9721088047 that "bis lak rupay agar barah tarikh tak nahi pahucha, toh panch karod ka tum nukshan uthaogey, yeh bis lakh Hamid Mujahidin tak pahuchaya jaygega jiska nishana F1728, H.....". On 10.12.20018, he along with his friend Amit Jindal went to PS Narela and gave a written complaint in this regard as Ex PW4/A. He stated that inpite of his complaint, he and Amit Jindal kept on receiving threatening calls from aforesaid mobile number on his mobile phone number. He stated that the caller demanded Rs. 20 lacs from them but on their refusal to the said amount, the caller gave threats to kill him and Amit Jindal. It is stated that at this, the caller demanded the money in five instalments of Rs. 4 lacs each. On 04.01.2009, he FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 4 of 41 received a call from the caller to give him first instalment of Rs. 4 lacs. He stated that he narrated about this to the police. The police told him that they would accompany him to the place where he has to pay the amount. On 05.01.2009, he again received a call and the caller told him to meet at Loni, Tronica City to pay him cash amount of Rs. 4 lacs and instructed him to come in black pant and white shirt along with a black bag containing the cash amount whereafter he along with police officials reached at Tronica city. The police officials had handed over to him fake currency notes i.e. 8 packets of Rs 500/. After that, witness stated that he was called by accused Amarender near Water Tank at Tronica city. He went there where accused Amarender signaled to come to him and also signalled him to give money. While he was handing over the black bag containing packet of money to accused Amarender, the witness signaled the police officials whereafter police officials apprehended accused Amarender with the packet of money. The police took the bag into its possession from accused Amarender and tied it with a white cloth and sealed the same with the seal of NS. The bag was taken into possession vide seizure memo Ex PW4/B. Police also recovered one Nokia mobile phone from accused Amarender vide seizure memo Ex PW4/C; arrested the accused Amarender vide arrest memo Ex PW 4/C; conducted his personal search memo vide Ex PW4/D and Ex PW1/E and prepared his disclosure statement as Ex PW4/F. Police FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 5 of 41 also recorded his statement. He stated that he handed over his mobile phone to the police next day which contained recording of threatening calls. The police made 5 CDs of said threatening call from the recording of his mobile phone. Thereafter, witness stated that police also got prepared the transcript of those calls. The police took the said CDs and his mobile phone into possession vide seizure memo Ex PW4/G. IO recorded his statement. Thereafter, witness identified one black bag containing two Nokia mobile phone as Ex.
P2 and Ex P3; one packet of fake currency notes (8 packets) as Ex. P1 and polythene containing 5 Cds as Ex. P4.
Thereafter, the witness was crossexamined by the Ld. Counsel for accused. In such crossexamination, witness stated that he studied up to 12th standard and that Amit Jindal who was his partner is a practising lawyer. He had started his business/ Proprietorship firm at F1728 at Bhorgarh, Narela Industrial Area in 2008. He had received about 13 threatening calls with regard to the present incident. Accused Sachin used to supply the goods of their firm. He did not know where accused Sachin was residing. After registration of FIR, he had seen accused Sachin at PS on 06.01.2009.
He firstly received the threatening call on 06.12.2008 in the evening when he was alone at his factory. He had not lodged any complaint to the police at 100 no. or by any other mode with regard to the said call. On 09.12.2008, he received a SMS in the afternoon, FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 6 of 41 when he was in Delhi. He had not made any complaint regarding the SMS to the police on 09.12.2008.
Firstly, he met the police on 10.12.2008 at about 11.00 am 12.00 am at PS Narela with regard to the said incident. He alongwith his brother and 23 other persons went to the PS. He did not remember even approximately as to how many times, he met with the police officials with regard to investigation of the present case or even by approximation as to how many statements of him were recorded by the police officials. He put 34 signatures on some documents with regard to the said incident. He had not told the police in any of his statements recorded by them that on 06.12.2008, he was present at his factory when he received telephonic call on his number 9958322822 from mobile number 9721088047. He did not remember whether that he got afraid after receiving the threatening calls. Confronted with his statement Ex. PW4/A wherein it is not mentioned.
Witness stated that he had not stated to the police in his complaint Ex PW4/A and in his statement recorded U/s 161CrPC that inspite of his complaint, he and Amit Jindal kept on receiving threatening calls from aforesaid mobile number on his mobile. He had stated to the police in his complaint Ex PW4/A & in his statement recorded U/s 161 CrPC that the caller on the mobile phone demanded Rs. 20 lacs from them but they refused to give the said FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 7 of 41 amount and to that, the caller gave threats to kill him and Amit Jindal. Confronted with the complaint Ex PW4/A and the statements of the witnesses, wherein it is not sorecorded. He had not stated to the police in his complaint Ex PW4/A and in his statements recorded U/s 161 CrPC that at this, the caller demanded the money in 5 installments of Rs. 4 lacs each. He had stated to the police in his complaint Ex PW4/A and in his statements recorded U/s 161 CrPC that on 04.01.2009, he had received a call from the caller to give him 1st installments of Rs 4 lacs and that he narrated about this to police and the police told him that they would accompany him to the place where he had to pay the amount. Confronted with complaint Ex PW 4/A and the statements of the witness, wherein it is not sorecorded. He had stated to the police in his complaint Ex PW4/A and in his statement recorded U/s 161 CrPC that on 05.01.2009, he again received the call and the caller told him to meet at Loni, Tronica City to pay him cash amount of Rs. 4 lacs and instructed him to come in black pant and white shirt alongwith a black bag containing the cash amount and that he along with the police officials reached at Tronica city and that police officials handed over to him fake currency notes. Confronted with the complaint Ex PW4/A and the statements of the witness, wherein it was not sorecorded.
He had stated to the police in his complaint Ex PW4/A and in his statements recorded U/s 161 CrPC that he went there and FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 8 of 41 Amrender signaled him to come to him and also signalled him to give money. While he was handed over the black bag containing packet of money to Amarender, he gave signal to the police officials about the same. Confronted with the compaint Ex PW4/A and the statements of the witness, wherein it is not sorecorded.
He stated that he had not stated that the police also got prepared the transcript of those calls.
His brother namely Amit Jindal had written the complaint Ex PW4/A. All the calls regarding threats and extortion came on mobile phone. He did not remember when police met him after 10.12.2008. The calls which he received on mobile phone were from only one caller. He stated that the voice of the caller was the same. He could not say even by approximation that when he received call from the caller with regard threats to kill him.
On 04.01.2009, he had received a call from the caller in the evening hour when he was at his home. He talked with the caller for about 23 minutes. He admitted that he had not lodged any complaint or called at 100 number with regard to this said call. He met with the police but he could not tell his name and designation. Till 04.01.2009, he had no knowledge that where he had to go for giving the instalments. He did not remember even by approximation as to what time, he received a call on 05.01.2009. He did not remember as to for how much time he talked with caller on FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 9 of 41 05.01.2009.
On 05.01.2009, he left his house at about 1.00 to 2.00 pm for PS Narela and at about 3.00 pm reached there. He left the police station for Tronica City and reached at the spot at about 6.00 pm. He himself purchased the black colour bag, however, he could not tell any distinguishable mark on the said bag. He alongwith 23 police officials left the PS in his Alto Car. IO had not asked any public person to join the investigation during proceedings from Narela PS to Tronica City. IO had not asked any public persons, other police officials, traffic police for joining the investigation. He admitted that the place was very crowded area. Police officials took his bag in PS Narela and thereafter, handed over the same to him at the spot to give the same to the accused. After reaching at the spot the accused immediately came to him and asked for the bag upon which the police officials arrested him. They returned back to the PS at about 9.00pm. His statement was recorded at Tronica City by the IO. IO had not asked any public persons to join the investigation at the time of arrest of the accused Amrender. Accused Amrender was arrested at about 7.00 pm and police had not given the information to the family members of accused regarding his arrest. He could not tell whether accused Amrender signed on his arrest memo in Hindi or English. Police officials prepared the pullanda of fake currency at the PS and the same were seized by IO and after sealing the same, police FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 10 of 41 officials kept the same with them. All the writings were done at PS. He handed over his mobile phone to police on 06.01.2009. He got prepared 5 CDs of conversation at Rohini Computer Shop and he could not tell the name and address of the said shop. He admitted that he had not told the said fact to police. He had not taken any bill from the said computer shop. The shopkeeper had not issued any certificate U/s 65B of Indian Evidence Act. Transcript of the recordings were prepared in Narela. He could not tell the name and address of the shop from where the transcript were done. After handing over the mobile phone, CDs and transcript, he returned back to his home and could not tell what the police officials had done after making the same.
He admitted that accused Sachin had never threatened him or Amit Jindal.
They returned back to the PS in his Alto Car after arrest of accused Amrender.
4.2 PW18 Inspector Narender Singh deposed that on 17.12.2008, Ct Harish Kurma brought the tehrir and FIR and gave to him. Thereafter, he carried out the investigation. He went out of station. He tried to search out the user of the phone by which threats calls of extortion were made. The number of the mobile phone was 9721088047. He verified the ownership from concerned mobile FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 11 of 41 company. Upon verification, it came to know that the mobile phone was being used by some unknown person. He took the address of the original owner of the mobile phone of the above said mobile phone and He went to the given address in UP. He recorded the statement of that person namely Chhotelal. For some time, investigation mark to SI Mahender. When he resumed the charge of present case on dated 04.01.2009 complainant Mukesh Mangla told him that he has received one SMS message on his phone from another number regarding the same matter. He apprised to SHO and on 05.01.2009, he formed a raiding party and Ct Brahmdev was deputed in civil dress with complainant. Complainant as per direction preparped 8 bundle of 500 rupees currency notes from top and beneath colored copy of the currency notes were kept and the photocopies were kept in the mid of it. As per threats/extortion call, the complainant wore that type of clothes and put the currency in the black colour bag. Constable Brahmdev was with the complainant and he alongwith police staff were in another vehicle. Ct Brahmdev was informing him about the phone calls and they were moving accordingly. At about 6.30 pm, accused Amrender Kumar Singh when took the money from the complainant, they apprehended the accused near water tank at Tronika City, Loni, UP. Thereafter, he interrogated the accused and arrested him. The arrest memo, disclosure statement, personal search memo are already exhibited.
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 12 of 41He prepared site plan of the place of arrest Ex PW18/A bearing his signature at Point A. He seized the bundls of notes in the black colour bag which were recovered from the possesssion of Amrender and the seizure memo of it is already Ex PW4/B bearing his signature at Point C. The mobile phone make up of Nokia bearing number 9919827819 which was used and the same was also taken in to possession and its seizure memo was prepared Ex PW4/C bearing his signature at Point C. The IMEI number of the above said mobile phone was the same which was used earlier also in committing threatening/extortion calls to complainant. The currency note were wrapped with one threat (kapde Ki Katran) and the put the seal of NS. Seal was handed over to complainant. Thereafter, he along with accused and police party reached to the PS and the case property was deposited in the PS malkhana and the accused was put behind the bar. On 06.01.2009, he arrested the accused Sachin from his house as per the discloser made by accused Amrender. His arrest memo and personal search memo already Ex PW17/B and Ex PW17/C and disclosure statement of accused already Ex PW17/A. The medical examination of both the accused were conducted and they were sent to JC as per procedure. He reached to the police station after sending them to JC. Complainant came to him in the PS and he produced the mobile phone in which he had received the threating calls and SMS. He recorded the transcription of SMS and threats/extortions calls.
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 13 of 41The transcription of the calls is Ex PW18/B. It was recorded in 5 CDs and were separately kept in 5 polythene and sealed with seal of NS and prepared seizure memo Ex PW4/G. He deposited the same in the PS Malkhana. He collected the CDR and relevant records of concerned mobile phones. He moved an application for specimen voice sample of accused Amrender, however, the same was dismissed by the court vide dated 13.03.2009 which is already annexed in the judicial file. Thereafter, he did not send the CDs and mobile phone to FSL as the specimen voice of accused was to be matched to with CDs voice. Thereafter, he recorded the statement of witnesses and completed the remaining formality and submitted the chalan. Accused Sachin correctly identified by the witness and the identity of another accused was not disputed.
Case property has already been exhibited in deposition of PW4.
Thereafter, witness was crossexamined by Ld. Counsel for accused. In his crossexamination, witness stated that on 17.12.2008, he was at PS when Ct Harish Kumar gave the rukka and copy of FIR. However, he could not tell the time when the same was handed over to him. He left the PS after receiving the copy of FIR for search of user of mobile phone. He made the DD entry in this regard. He could not tell the said DD number. He denied that I had not left the PS on the above mentioned date or that no DD entry was FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 14 of 41 made in this regard or that is why he could not tell the said DD number.
On or about 20.12.2008, he left for UP where he met with Chotelal. He could not tell the DD number whereby he left for UP. He could not tell the nature of job of Chhotelal. He denied the suggestion that he had not visited to UP or that he never recorded the statement of Chotelal or that his statement was manipulated by him.
On 04.01.2009, Mukesh Mangla visited in the PS. He could not tell who other were accompanying him on that day. He had recorded the statement of Mukesh Mangla on 04.01.2009. He might have recorded the statement of other person on the same day in the present case. He had not seized the mobile phone of Mukesh Mangla on that day. He denied that Mukesh Mangla had not joined the investigation on 04.01.2009 or that is why his phone was not seized on the same day.
He constituted the raiding team on 05.01.2009 and the same is consist of me, Ct Bhudev, HC Samsher, SI Mahender and Ct Vinod. He brief the raiding team on the same day in his room in noon hours. At about 1.00 pm, complainant also reached at the PS. Complainant himself brought 8 bundles containing (photocopy) of Rs. 500/ currency notes. On 05.01.2009, they all left the PS in two vehicles/car, however he could not tell the make and number of those vehicle. Out of the said cars, one belongs to complainant and one FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 15 of 41 belongs to me. No other family members of complainant were accompanying them on that day. Ct Bhudev and complainant were in one car and other teams members were in his car. They left the PS and we made the DD entry in this regard. They could not tell the DD number of the same. He denied that he could not tell the same as no such entry was made or that no raiding team was constituted or that they had not left the PS on that day.
He did not remember whether he or any other member of the team made any request to public persons for joining the investigation when they left the PS. He denied that they had not asked any public persons to join the investigation or that is why no public persons join the investigation of the present case They left the PS at about 1.30 pm. The complainant's car was headed to our car. From the PS Narela, they reached to Yamuna Bridge Wazirabad. They waited there for a 11.30 hour. Thereafter, they left for Traunica City, UP. He could not tell the time when they reached there. They had not given any information to local police. They asked 45 public persons to join the investigation but none agreed. They had not given any written notice to the public persons who had refused to join the investigation. He voluntarily submitted that they left the spot after telling their problems. There is a distance at about 1520 meters between his car and the car of complainant. All the raiding members were deputed by him at different points. After about FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 16 of 41 1520 minutes, accused reached at the spot. Ct Bhudev and HC Shamsher apprehended the accused. As soon as accused tried to leave the spot after getting the bag from the complainant, the above police officials nabbed him. All the writing work carried out while siting on the bench. No public persons were there at the time of writing work. He denied that accused was not arrested in the manner and from the place as deposed by him or that he had not given any disclosure statement or that his signatures were obtained forcefully during his police custody or that the same were converted into various incriminating documents against him. He did not remember as to whom the information about the arrest of accused was given. He voluntarily submitted that the same is mentioned in the arrest memo.
The seal on pullandas on currency notes were put at the place where the accused was arrested. The seal was handed over to the complainant. No handing memo was prepared. The seal was returned to me by the complainant next day in the PS. No handing over memo was prepared. They left the spot at about 99.30 pm and returned back to the PS at about 10.3011.00 pm. Again on 06.01.2009, complainant came to the PS on his call at about 5.005.30 pm. At the PS, He himself recorded the transcript of SMS and threat calls. He asked one Ct Harish to brought 5 CDs from the market. The complainant was in another room at PS. He had not issued any certificate U/s 65B Evidence Act regarding the FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 17 of 41 transcription of SMS and calls. (Objected by Ld APP for the state). The complainant was not with him when the CDs were made. He denied that as per his investigation the mobile number 9958322822 was used by Deepak Gupta or that the accused had not made any threatening call or SMS to the complainant or that they were falsely implicated the present case.
5. All other witnesses were either formal or police witness and were duly examined and cross examined.
6. Prosecution evidence was closed on 30/08/2019 and matter was listed for statement of accused U/S 313 Cr.P.C and same was recorded on 19/03/2021.
Statement of Accused
7. After recording the prosecution evidence all the incriminating facts and evidence were put before the accused persons and they pleaded that they are innocent and they further pleaded that, mobile no. 9721088047 does not belongs to them nor they make any extortion call from that mobile no. They are falsely implicated in the present case. The police officials took their signature on certain blank and printed paper and later on the same were converted into FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 18 of 41 incriminating evidence against them. They also pleaded that, nothing was recovered from their possession or at their instance. They further pleaded that, complainant and other witnesses are the interested witness and the complainant owed Rs. 240000/ to accused Sachin as he was the employee and transport the goods of complainant. Lastly, they said that they do not want lead any evidence.
Issues to be decided
8. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrives at a conclusion:
(1). Whether accused persons namely Sachin and Amrinder has committed the offence of extortion by putting the complainant under the fear of death by making a threatening phone call to him punishable under section 387 IPC ?
(2).Whether accused persons namely Sachin and Amrinder has committed the offence by disappearing the evidence by destroying the SIM card punishable under section 201 IPC?
(3). Whether accused persons namely Sachin and Amrinder has committed the offence criminal conspiracy punishable under section 120B IPC?
Observations FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 19 of 41 "Whether accused persons namely Sachin and Amrinder has committed the offence of extortion by putting the complainant under the fear of death by making a threatening phone call to him punishable under section 387 IPC?"
Section 387: Putting person in fear of death or of grievous hurt, in order to commit extortion: Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 383: Extortion: Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
"Whether accused persons namely Sachin and Amrinder has committed the offence by disappearing the evidence by destroying the SIM card punishable under section 201 IPC?"
Section 201: Causing disappearance of evidence of offence, or giving false information to screen offender:
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 20 of 41 description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Ingredients:
In order to establish a charge U/s. 201, the following ingredients must be proved:
(1) An offence has been committed (2) The accused knew or had reason to believe that an offence has been committed (3) The accused, caused any evidence of the commission of offence to disappear or gave any information relating to the offence which he knew or believed to be false (4)The accused did so intending to screen the offender from punishment, whether that offender be himself or another person "Whether accused persons namely Sachin and Amrinder has committed the offence criminal conspiracy punishable under FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 21 of 41 section 120B IPC?"
Section 120B: Punishment of criminal conspiracy: (1) Whoever is a party to a criminal conspiracy to com mit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punish able as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 120A: Definition of criminal conspiracy: When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Pro vided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Expla nation: It is immaterial whether the illegal act is the ul timate object of such agreement, or is merely incidental to that object.
Ingredients:
9. (1) There should be an agreement between two or more persons; (2) They must allege to conspire and (3) The agreement should be to do or cause to be done an illegal act or an act which may not itself be illegal by illegal means FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 22 of 41 FINDINGS
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
Establishment of identity of accused
11. As per the version of the prosecution, the accused namely Amrinder was arrested from the spot when he was receiving the extortion money from the complainant. Moreover, the coaccused Sachin was arrested upon the discloser statement of accused Amrinder. To prove the identity of the accused, police created a FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 23 of 41 raiding team, who arrested the accused from the spot. Accused persons challenged the creation of such team and stated in the final argument that, no such team was ever made by the police and all the version of the police regarding the raiding team is a false.
Raiding team: On the perusal of the testimonies of the witnesses, one raiding team was made by the police who accompanied the complainant to the spot. As per the prosecution that, raiding team consist of IO/Insp. Narender Singh, Ct. Bhudev, HC Shamsher, SI Mahender and Ct. Vinod along with complainant. IO stated that, the raiding team left for the spot in two different cars. These cars were belonging to complainant and IO. In one car complainant left for the spot along with Ct. Bhudev and remaining members were in other car. However, HC Shamsher, who was one of the members of the raiding team deposed that, including complainant, we were four member of the raiding team and all of them were on the same vehicle. Further, PW4 complainant deposed that, he and 23 police officials left the PS in his Alto car. As per the IO there were five police personnel were the member of the raiding team on the other hand PW HC Shamsher deposed that there were four member of the raiding team. Moreover, the IO himself deposed that the raiding team left for the spot in two different vehicles, whereas, PW HC Shamsher deposed contrary to the IO and stated that all the members were in FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 24 of 41 one vehicle and PW4 deposed that he was accompanied by the 23 police official in his car contrary to the IO, who stated the only one police official was accompanied the complainant.
Further, IO stated that, when they reached at the Yamuna Bridge at Wazirabad, they waited there for about one to one and a half hour. However, no reason or purpose has been mentioned in the testimony of any witness for waiting at Yamuna Bridge. On the contrary, HC Shamsher stated in his cross examination that, the raiding team reached at the spot i.e. Tronica city without any stoppage in between PS to the spot.
12. Fake currency notes: PW4 Mukesh Mangla, who is the complainant in the present case, deposed that, the police officials had handed over to him the fake currency notes. Whereas, the cross examination of the PW18 IO/Insp. Narender Singh reflected that, the complainant himself brought the fake currency notes which contained the Rs. 500/ currency notes.
Further, PW4 deposed in his cross examination that, police officials took my bag in PS and handed over the same to me at the spot. Whereas, the testimony of HC Shamsher reflected that, the bag was in possession of the complainant during the transit to the spot.
It appears from the above discussion that, the FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 25 of 41 prosecution has failed to prove the number of the member of the raiding team and in how many vehicles the raiding team went to the spot. Further, it was also not clear from the testimonies of the witnesses who had brought the fake currency notes and who had the possession of currency notes bag during the transit to the spot. Therefore, this court arrived at the conclusion that, prosecution has failed to establish the fact that, police had constitute a raiding team who had arrested the accused Amrender from the spot along with the bag of fake currency notes.
Interested Witness
13. Accused persons has taken the defense when their statement recorded U/s. 313 Cr.P.C. that, the complainant is the interested witness and other witness i.e. PW2 is the business partner of the complainant and he is also an interested witness. They had further pleaded in their statement that, complainant owed Rs. 240000/ to accused Sachin and therefore falsely implicated him in this case. Further, they implicate accused Amrinder in this case as he is the relative of the accused Sachin. However, the Hon'ble Supreme Court has held in Rajesh Yadav and Others etc. vs. State of U.P. in Criminal Appeal No. 339340of 2014 decided on 04/02/2022, that a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 26 of 41 circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as relative or interested witness, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact.
The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26) FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 27 of 41 "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , a fiveJudge Bench of this Court has categorically observed as under: (AIR pp. 209210, para 14) "14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine;
whether or not the story disclosed by the evidence is probable, are all matters which must be taken into FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 28 of 41 account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
14. This court comes to the conclusion that PW4 i.e. complainant and PW2 i.e. business partner of complainant, owed Rs. 240000/ of the accused, as per the defense of the accused persons, and therefore they have been falsely implicated in this case. This court is concurred with the observation made by the Hon'ble Supreme Court in above cited case laws, that a witness cannot be termed as an interested witness unless, there is any purpose or benefit derived by false implication or punishment to an innocent person, and their testimonies cannot be castaway merely on the ground that they are interested witness. However, in the present case, this court finds that, the complainant may have a purpose to falsely implicate the accused persons as the complainant has to pay Rs. 240000/ to the accused. So, their testimony cannot be worthy to rely upon without FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 29 of 41 the corroboration with other evidences laid by the prosecution.
Delay in lodging the FIR
15. Accused persons has raised objection that the complainant had made a written complaint to the police on 10/12/2008 and the FIR was lodged by the police on 17/12/2008. There was a delay of seven days in lodging the FIR. Accused persons had submitted that, the complainant has doctored a false story against them to implicate in this case. Moreover, the prosecution had not advanced any satisfactory reason for the undue delay of seven days in lodging the FIR.
The Hon'able Supreme Court considered its earlier judgments in Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 and observed as :
"Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely".FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 30 of 41
Apex Court in the case of State of Rajasthan vs. Om Prakash (2002) 5 SCC 745 has held that:
"as regards the contention regarding the delay in lodging the FIR, the real question is about the explanation for the delay.
Apex Court in the case of Dildar Singh v. State of Punjab, (2006) 10 SCC 531 held, "delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory."
In the case of State of Karnataka v. Mapilla P.P. Soopi, (2003) 8 SCC 202 Hon'ble apex court held that Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case.
From the above discussion it is cleared that, the delay in lodging the FIR shall not fatal the case of the prosecution, if there is a valid and plausible explanation is advance by the prosecution. However, in the present case, during the entire trial, prosecution does not bring any clarification as to why the FIR was lodged after the delay of seven days. This fact brings the doubt in the mind of the court.
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 31 of 41No independent witness:
16. The investigating agency has failed to cite any independent witness regarding the arrest of the accused Amrender as well as recovery of fake currency notes from the possession of the accused. Accused persons had taken this defense and they also submits that, the police officials had taken their signatures on some blank as well as some formatted documents which were converted into the incriminating evidence against them. PW4 deposed that, the IO had not asked any public person or any other officials for joining the investigation and he deposed that the place was a crowded area. He further deposed that, the IO had not asked any public person to join the investigation at the time of arrest of accused Amrender. PW13 submitted that, public person were asked to join the investigation, however, neither the legal notice nor any action was taken by the IO against the persons who refused to join the investigation. PW17 also submits on the similar line with PW13 regarding the nonjoining of any independent witness and deposed that IO had asked the public person to join investigation at both the time when they left PS for Tronica city and when accused was arrested by the police but all went in vain. PW18/IO deposed that, he does not remember whether he or any other police officer asked public person to join the investigation when they left for the spot. He FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 32 of 41 further deposed that, at the time of arrest, they had asked the public person to join the investigation but none agreed and he had not served the notice upon any one of them who refused.
17. Regarding the importance of joining independent wit ness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere ef forts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to wit ness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken le gal action against such shopkeepers because they could not have escaped the rigours of law while declin ing to perform their legal duty to assist the police in in vestigation as a citizen, which is an offence under the IPC".
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 33 of 41Similarly, in "Nanak Chand Vs. State of Delhi" re ported as DHC 1992 CRI LJ 55 , it is observed as under:
that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the peti tioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as un worthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :
"It therefore emerges that noncompliance of these provi sions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to con sider whether any prejudice has been caused to the ac cused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to asso FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 34 of 41 ciate some independent witnesses with the search and strictly comply with these provisions."
18. Although, there is no impediment in believing the version of prosecution which is based solely on the testimony of the police officials, but for that the prosecution is first required to lay a very strong foundation to rule out the possibility of "conflict of interest". Present is the case where no sincere efforts were taken by the police officials to join any public person/ independent witness in the case. It is reflected from the testimony of PW4 that, the area was crowded and despite that, police has failed join any independent witness throughout the investigation. No plausible explanation has been advanced by the prosecution for nonjoining such witnesses which creates doubt over the story of the prosecution.
Departure entry
19. Another material thing which is required to be discussed about the case of prosecution is the departure and arrival entry main tain by the police officer. As per the Punjab Police Rule, it is manda tory for every police officer to make his departure and arrival entry in DD register of the PS. Further, Chapter 22 Rule 49 of Punjab Po lice Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of what ever rank, whether posted at the police station or elsewhere, with a FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 35 of 41 statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the lat ter personality by signature or seal. PW13 was asked about the depar ture entry in his cross examination and in reply he deposed that "no departure entry was made before leaving the police station". How ever, PW17 deposed contrary and stated that "IO had recorded the departure entry when we left the PS. I cannot tell the DD no.". Fur ther PW18/IO was cross examined regarding the departure entry and he deposed that "we left the PS and I made the DD entry in this re gard. I cannot tell the DD no. of the same". In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
Handing over memo of seal
20. It has come into the testimony of PW17 that, IO had sealed the all case property with his seal and the seal after use was handed over to him by the IO. However, on the other hand, the PW18/IO stated contrary regarding the handing over the seal after its use. PW18 stated that, "the seal was handed over to the com plainant. No handing over memo was prepared. The seal was re FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 36 of 41 turned to me by the complainant next day in the PS. No handing over memo was prepared". From the above mentioned facts, it is clear that both prosecution witness bring out the contrary statement regard ing to whom the seal was handed over. Moreover, non preparing of handing over memo cast a shadow of doubt upon the manner in which the investigation carried out by the investigating agency. Re liance is placed on "Ramji Singh V/s State of Haryana" 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that:
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
24. Similarly, Hon'ble Delhi High Court in "Safiullah v. State", 1993 (1) RCR (Criminal) 622, held that "10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have estab lished from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 37 of 4121. All the lapses in investigation creates doubt on the very recovery of bag with fake currency notes from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the recovery of the case property i.e. bag with fake currency notes and mobile phone from the possession of the accused beyond reasonable doubt.
Other discrepancies:
22. PW2 stated in his cross examination that, "It is correct that most of the facts stated by me in my examination in chief were not stated by me in my both the statements U/s 161 Cr.P.C. recorded by the police". It has comes into notice of the court that, this witness has improvised his testimony when he was called for the examina tion. It appears from his testimony that he is nothing but a hearsay witness who improvised his testimony as per the demand of prosecu tion's case.
As per the testimony of the PW18/IO, one Ct. Vinod was also the member of the raiding tem but he was not cited as the prosecution witness.
Circumstantial evidence
23. Circumstantial evidence is the most important aspect to FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 38 of 41 decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused. In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 39 of 41 to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".
CONCLUSION
24. It is the settled principle of criminal jurisprudence that the prosecution required to prove its case beyond all reasonable doubt. This follow from the cardinal principle that accused is pre sumed to be innocent unless proved guilty and the accused is entitled to the benefit of every reasonable doubt. On a consideration of the to tality of factors pleaded by prosecution and the accused, this court reached at the conclusion that prosecution has failed to establish the identity of the accused persons and its case beyond every reasonable doubt against the accused. Moreover there were so many other con tradiction and infirmities roll out in the testimonies of the witnesses during their cross examination. It is needless to mention here that the investigating agency did not investigate the case in hand in a fair and reasonable manner. All the prosecution witnesses not supported the case of the prosecution and testimonies of the prosecution witnesses suffer from many infirmities, inconsistency and contradiction. The evidence of the prosecution witnesses not trustworthy and not corrob orated with the circumstantial evidences and the witnessed of the prosecution have not been able make a continue link. Moreover, ac FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 40 of 41 cused persons successfully dent the case of the prosecution and also able to create a doubt in the mind of the court and benefit of the same must be given to them.
25. In view of the above discussions, the accused Sachin and Amrinder are hereby acquitted for the charges under Section 387/201/120B Indian Penal Code.
Dictated & Announced in Open Court.
(Jitender) MM01/North/Rohini/Delhi 18.03.2023 FIR No. 548/2008 PS Narela State Vs. Sachin & Anr. Page 41 of 41