Delhi District Court
State vs . Lalit C. Nagpal & Ors on 27 June, 2016
IN THE COURT OF SH. SONU AGNIHOTRI
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH
SAKET COURTS, DELHI
FIR No. 77/02
PS Vasant Kunj (CB)
State Vs. Lalit C. Nagpal & Ors
JUDGMENT
UID No. 02403R0163432002 a. Sl. No. of the case : 55/2002 b. Date of commission of offence : In month of February, 2002 and 09.02.2002.
c. Name of the complainant : Sanjay Bhatnagar
d. Name of the accused, their
parentage and addresses : 1) Lalit C. Nagpal
S/o Shiv Charan
R/o 153, RPS Flat,
Ambedkar Nagar,
Delhi.
2) Suresh Bharti
S/o Channa Ram
R/o H. No. 244,
Ambedkar Nagar,
Sector5, Delhi.
FIR No. 77/02 PS Vasant Kunj (CB) Page-1/22
3) Sanjeev Kumar
S/o Gopal Krishan
R/o 39/1340, DDA
Flats, Madangir, Delhi.
e. Plea of accused : Pleaded not guilty
f. Offence complained of or proved : 120B, 292/387/506
r/w Section 120 B IPC
g. Final order : Acquitted
h. Date of Institution : 18.04.2002
i. Judgment reserved on : 31.05.2016
j. Judgment delivered on : 27.06.2016
BRIEF FACTS:
1. As per prosecution version, on 20.02.2002, complainant Sanjay Bhatnagar came to Anti Extortion Cell at R. K. Puram and gave his statement to SI Sunil Kumar.
2. Complainant in his statement stated that he is working as Designer and was running his office from residential address of his parents at C1/1242, Vasant Kunj, New Delhi having phone number 6898417. He stated that about two/two and half years ago, he used to visit Scorpion Health Club near IIT Gate, Sidharth Enclave for exercise and massage. He stated that in the said Health Club, there was one instructor in name of Suresh Bharti who used to teach exercise and also used to give massage. He stated that he also got massage done from Suresh Bharti 23 times. He stated that after some days, FIR No. 77/02 PS Vasant Kunj (CB) Page-2/22 the said Health Club was closed. He stated that thereafter he did not go in the said Health Club nor did he have any contact with Suresh Bharti. He stated that on 08.02.2002, Suresh Bharti called him and told him that he has opened his Health Club in Mehrauli and asked him to come there. He stated that he also gave his contact number 9810683697. He stated that on next day, he called Suresh Bharti whereupon he told that some work is going on in Mehruali Health Club and complainant was asked to meet him at PVR, Anupam. He stated that thereafter complainant went to PVR, Anupam where Suresh Bharti met him and told that some work is going on at his Health Club at Mehrauli. He stated that Suresh Bharti asked him to accompany him to Health Club of his friend at Pushp Vihar which complainant negated but that he insisted and took complainant to Sector4, Pushp Vihar. He stated that complainant told him that there is no club there but that Suresh Bharti engaged him in talks and gave him Tea to drink. He stated that he became semi conscious after drinking Tea. He stated that thereafter Suresh Bharti took him to room inside and removed his clothes and asked complainant to take massage for relaxation. He stated that thereafter Suresh Bharti massaged him for which he paid Rs. 200/ to him. He stated that thereafter he returned to his home. He stated that thereafter since last 78 days, one person namely Amit is calling him on his number 6898417 and threatening him that he has got filmed video of his massage and that if he does not give him Rs. 20 lakhs, he will circulate copy of the same in his relations. He stated that he also told him that he has purchased this film in Rs. 10 lakhs. He stated that he expressed his willingness to talk with him whereupon he gave his number to complainant 9810683697. He stated FIR No. 77/02 PS Vasant Kunj (CB) Page-3/22 that thereafter one packet was received at his house containing CD having obscene pictures of Suresh Bharti and him. He stated that thereafter Amit called him and threatened complainant to give Rs. 20 lakhs to him failing which he will get circulated copy of CD at various places. He stated that he was quite scared but that he kept on recording calls of Amit on tape. He stated that Amit threatened him Yesterday that in case complainant does not make payment today, he will have to face the consequences. He stated that he was scared and became ready to give Rs. 15 lakhs to Amit in three installments whereupon Amit asked him to come with Rs. 5 lakhs at 3 /4 PM at PVR, Anupam. He stated that Amit told him that they will return Video film after he makes complete payments. He stated that Amit gave his new number 9810131586 to him yesterday only and asked him to contact him at this number. He stated that he was scared and that some sort of wrong film /photo has been taken by these people after making him drink Tea after mixing something into the same. He stated that he is not well and scared and help be given to him. He stated that he has given CD sent by them alongwith envelope and letter and three cassettes recorded by him with regard to talking done on phone number 6898417.
3. It is stated that complainant gave SI Sunil Kumar one Khaki colour envelope whereupon name and address of complainant was written, one courier and carriage receipt, one threatening letter, one CD and three audio cassettes. It is stated that audio cassettes were heard and transcription was prepared. It is stated that VCD was seen which corroborated complainant's version. It is stated that abovesaid articles were taken into possession by SI FIR No. 77/02 PS Vasant Kunj (CB) Page-4/22 Sunil Kumar vide separate memo. It is stated that FIR u/sec 328/384/387/506 IPC was got lodged.
4. It is stated that during investigation complainant was made to contact extortionist at given number of extortionist 9810131586 whereupon complainant was called with money at 05:30 PM at PVR, Anupam. It is stated that SI Sunil Kumar with help of accompanying staff apprehended Suresh Bharti, Sanjeev and Lalit at instance of complainant when they came to collect money when complainant was sitting in his car bearing No. HR26C8238. It is stated that accused were arrested after interrogation and evidence being found against them.
5. It is stated that from pocket of shirt of accused Lalit, two SIM cards used in commission of the offence in present case were recovered. It is stated that from purse of accused Sanjeev, one courier receipt and one slip having written name and address of complainant were recovered. It is stated that recovered articles were taken into possession vide separate memos. It is stated that complainant identified voice of accused Lalit as that of Amit. It is stated that SI Sunil Kumar recorded disclosure statements of accused persons. It is stated that Section 292, 120 B and 34 IPC were added in the FIR. It is stated that at instance of accused Sanjeev, video camera and one video cassette was recovered at instance of accused Suresh Bharti. It is stated that IO SI Sunil Kumar procured specimen handwriting and sample voice of accused Lalit and sent the same to FSL for opinion. It is stated that details of SIM cards was procured.
FIR No. 77/02 PS Vasant Kunj (CB) Page-5/22
6. After completion of investigation, charge sheet was filed before court on 18.04.2002.
7. Provisions of Section 207 Cr. P. C. were complied on appearance of accused persons before court and prima facie case having been made out, charge u/s 120B, 292/387/506/120B IPC was framed against persons accused on 05.05.2003 to which accused pleaded not guilty and claimed trial.
8. Prosecution examined following witnesses to prove its case: PW 1: HC Ved Prakash PW2: Satish Nagpal PW3: HC Jaswant Singh PW4: Sanjay Bhatnagar PW5: Girish PW6: Mohan Sethi PW7: Chander Shekhar PW8: HC Rishi Pal PW9: HC Yashpal PW10: SI Charan Singh PW11: Inspector Sunil Kumar PE was closed on 21.04.2016 by the order of court on submissions made by Ld. APP for the State.
Statement of accused u/s 313 Cr. PC were recorded on 10.05.2016 in which all incriminating evidence and circumstances appearing in evidence against accused were put to accused persons. Accused Suresh Bharti stated that he is innocent has has been falsely implicated in this case. He stated that earlier he had FIR No. 77/02 PS Vasant Kunj (CB) Page-6/22 seen complainant when he used to work at Scorpio Club thereafter he saw the complainant for the first time at the PS /Crime Branch office. He stated that he alongwith coaccused were shown to witnesses at PS/ Crime Branch. He stated that witnesses produced by prosecution are false and interested witnesses. He stated that he is innocent and has been falsely implicated in this case. He stated that he was not apprehended from PVR area. He stated that nothing has been recovered from his possession or on his instance. He stated that he was made to sign under pressure on many papers some of which were blank papers. He stated that he knew complainant earlier when he had work at Scorpio Health Club. He stated that he has not committed any offence as alleged.
Accused Sanjeev Kumar stated that he is innocent and has been falsely implicated in this case. He stated that he saw complainant for first time at PS /Crime Branch office. He stated that he is innocent and has been falsely implicated in this case. He stated that he alongwith co accused shown to witnesses at PS/Crime Branch. He stated that witnesses produced by prosecution are false and interested witnesses. He stated that he is innocent and falsely implicated. He stated that he was not apprehended from PVR Cinema area rather he was forcefully taken/apprehended from his residence. He stated that nothing has been recovered from his possession or on his instance. He stated that he was made to sign under pressure on many papers some of which were blank papers. He stated that he has not committed any offence as alleged.
Accused Lalit Nagpal stated that he is innocent and has been falsely implicated in this case. He stated that he saw complainant at PS/Crime Branch office for first time. He stated that he alongwith co accused were shown to witnesses at FIR No. 77/02 PS Vasant Kunj (CB) Page-7/22 PS/Crime Branch. He stated that witnesses produced by prosecution are false and interested witnesses. He stated that he is innocent and has been falsely implicated in this case. He stated that he was not apprehended from PVR Cinema area. He sated that nothing has been recovered from his possession or on his instance. He stated that he was subjected to pressure tactics by Crime Branch officers and he was made to write on many papers under dictation. He stated that his signatures were obtained under pressure on many papers some of which were written and some were blank. He stated that he was made to record his voice on many CDs and cassettes under pressure while reading from written material. He stated that he has not committed any offence as alleged.
No DE was led by accused persons.
I have heard final arguments addressed by respective counsels and perused the record.
Decision and Brief Reasons for the Same Before disclosing my opinion with respect to present case i.e. whether prosecution has been able to prove guilt of accused persons beyond reasonable doubt or not, I will discuss evidence led by prosecution.
PW1 HC Ved Prakash is Duty Officer who exhibited copy of FIR vide Ex. PW1/A. PW2 Satish Nagpal exhibited seizure memo of documents i.e. application letter, curriculum and address of staff of Scorpion SFC (with regard to accused Suresh Bharti) vide Ex. PW3/A (in actual on court record, seizure memo has been exhibited with nomenclature of Ex. PW2/A and writing of Ex. PW3/A in deposition of PW2 appears to be result of typographical error). The said seized FIR No. 77/02 PS Vasant Kunj (CB) Page-8/22 documents were also exhibited in deposition of PW2 vide Ex. P1, P2 and P3 (on record in actual, documents have been exhibited as Ex. PW2/1, Ex. PW2/2 and Ex. PW2/3 and writing of Exhibits as Ex. P1, P2 and P3 appears to be result of typographical error). Henceforth, in this judgment, documents shall be referred to accordingly.
PW3 HC Jaswant Singh is MHC (M) PS Vasant Kunj who exhibited copy of entry in register No. 19 at serial No. 1192 vide Ex. PW3/A and copy of road certificate vide Ex. PW3/B. PW4 Sanjay Bhatnagar is the complainant who exhibited his statement vide Ex. PW4/A, seizure memo of audio cassettes three in number, VCD, envelop, one letter and one receipt of Desk to Desk courier vide Ex. PW4/B, seizure memo of courier receipt and one paper slip vide Ex. PW4/C, personal search memo of accused persons vide Ex. PW4/D to Ex. PW4/F, seizure memo of copies of bills for telephone No. 6898417 and copy of lease agreement with regard to premises No. 1242C1, Vasant Kunj vide Ex. PW4/G. He correctly identified all accused before court. He exhibited case property i.e. three audio cassettes before court vide Ex. P1 to P3, one CD (version) vide Ex. P4, one envelop bearing address of PW4 vide Ex. P5, one letter written in Hindi vide Ex. P6 and one slip of courier of Desk to Desk courier vide Ex. P7. He in his cross examination by state identified further case property which was produced in unsealed condition i.e. one mobile phone make Panasonic and two SIM cards vide Ex. P8 to P10.
PW5 Girish is the person who was working in DTDC office on 15.04.2002. He exhibited seizure memo of one copy of proof of delivery of consignment No. 99886097 and attested photocopy of account copy of consignment FIR No. 77/02 PS Vasant Kunj (CB) Page-9/22 No. 99886097 vide Ex. PW5/A. PW6 Mohan Sethi is the photographer who has turned hostile and has not supported prosecution version at all.
PW7 Chander Shekhar is Nodal Officer from Bharti Airtel Limited who exhibited his report regarding non availability of call details record of mobile No. 9810131586 and 9810683697 for period of 08.02.2002 to 20.02.2002 and SIM card No. 8991100108012279727 and 8991100108011274109 for period 05.04.2002 vide Ex. PW7/A. PW8 HC Rishi Pal deposed that on 08.04.2012 on the instructions of IO, MHC (M) PS Vasant Kunj handed over two sealed pulandas sealed with seal of RB and CSM to him and he deposited the same with CFSL, CGO Complex, Lodhi Complex, New Delhi and he handed over receipt of the same to MHC (M).
PW9 HC Yashpal is the police official who took rukka to PS Vasant Kunj for registration of FIR and handed over copy of FIR and original rukka to SI Sunil near the PVR, Saket after registration of FIR. He correctly identified all accused persons before court.
PW10 SI Charan Singh is police official who assisted IO in the investigation. He exhibited seizure memo of one mobile phone make Panasonic having one SIM card and one another SIM Card of Magic recovered from pocket of accused Lalit Nagpal vide vide Ex. PW10/A, seizure memo of Video Cassette make Panasonic from house of accused Suresh Bharti vide Ex. PW10/B, seizure memo of Video Camera make National from house of accused Sanjeev Sharma vide Ex. PW10/C, arrest memos of accused persons vide Ex. 10/D to Ex. PW10/F and seizure memo of Audio Sample voice in an Audio Cassette of accused Lalit @ Nagpal FIR No. 77/02 PS Vasant Kunj (CB) Page-10/22 vide Ex. PW10/G. He correctly identified all accused before court. He correctly identified case property before court vide Ex. P1 to P6.
PW11 Inspector Sunil Kumar is IO who exhibited endorsement on complaint of complainant vide Ex. PW11/A, disclosure statements of accused persons vide Ex. PW11/B1 to Ex. PW11/B3, address receipt of complainant allegedly recovered from accused Sanjeev vide Ex. PW11/P1, consent taking letter recording consent of accused Lalit @ Nagpal with regard to his voice sample vide Ex. PW11/C, specimen handwriting of accused Lalit @ Nagpal vide Ex. PW11/D1 to Ex. PW11/D17, account copy of DTDC vide Ex. PW11/P2 and copy of seizure memo of attendance register for February, 2002 of DTDC vide Ex. PW11/E. He identified Video camera before court vide Ex. PW11/P1, video cassette make Panasonic vide Ex. PW11/P2, audio cassettes vide Ex. P1 to P3, VCD vide Ex. P4, mobile phone make Panasonic and two SIM cards vide Ex. P8 to P10 and audio cassette purportedly containing sample voice of accused Lalit vide Ex. PW11/P3. He correctly identified all accused before court.
After going through evidence as adduced by witnesses examined by prosecution, I am of the view that prosecution has not been able to prove its case against accused persons beyond reasonable doubt. The reasons as to why I have arrived at this conclusion are as follows: For proving offence u/sec 387 IPC, prosecution was required to prove that accused in order to commit extortion put or attempted to put complainant or any one in fear of death or grievous hurt.
Extortion is defined by Section 383 IPC as below: FIR No. 77/02 PS Vasant Kunj (CB) Page-11/22 "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".
Section 387 IPC provides punishment if in order to commit extortion, accused put any person in fear of death or grievous hurt to that person or to any other.
Threatening if any in this case was given to complainant/PW4. Complainant in his examination in chief has deposed that he received telephone call from some Mr. Amit and he informed and threatened him that he has taken a video of that day, when he had gone with Mr. Suresh Bharti at Pushp Vihar flat. He further deposed that he also threatened him and his family of dire consequences if he does not give them Rs. 20 lakhs to the said Amit. Complainant also deposed to have received one threatening letter. The said alleged threatening letter has been exhibited on record vide Ex. P6. Complainant in his cross examination by state later admitted that accused Lalit gave him threat to kill and kidnap his children in case of non payment or refusal to fulfill his demand.
Complainant in his examination in chief by himself has not deposed anything with regard to threatening given by any of the accused concerning threat of death or grievous hurt to him or anyone else and it is only in cross examination done on behalf of state and on suggestion of state that he admitted that he received threat from accused Lalit to kill and kidnap his children in case of non payment or refusal to fulfill his demand.
FIR No. 77/02 PS Vasant Kunj (CB) Page-12/22 With regard to three audio cassettes produced by complainant in office of Crime Branch (Ex. P1 to P3), state was required to prove that these audio cassettes contained voice of accused persons. PW4/complainant in his cross examination stated that he had noted marking on each cassettes in word as "demand for ransom". He further stated that he remember that it was done by the pen but he does not remember the colour of the ink. PW10 SI Charan Singh in his cross examination admitted that words "demand for ransom" have not been endorsed on the cassettes Ex. P1 to P3. In these circumstances, Ex. P1 to P3 becomes doubtful. State was further required to authenticate these cassettes Ex. P1 to P3 by taking opinion from FSL that they are not tempered with and are original source which has not been done by IO in the present case. State was further required to prove that these cassettes were recorded by complainant in a particular recording instrument and that instrument should also have been seized by IO during investigation and report should have been obtained from FSL that the recordings in these cassettes were done using that particular instrument and at date and time as told by complainant but the same has not been done by IO. IO should also have obtained report from FSL with regard to non tempering of these cassettes which has not been done by IO in present case. In these circumstances, it will be difficult to rely on these audio cassettes for the purpose of convicting accused persons.
Further, with regard to CD produced before court, it was identified and produced before court for the first time in deposition of PW4. It has been observed that "One more pulllanda is also produced which bears the particulars of the case and bearing three seals but impression is not clear as well as at two places the material of seal has been removed from one seal. Same is opened up and taken FIR No. 77/02 PS Vasant Kunj (CB) Page-13/22 out the case property which is CD (Version) Same is shown to the witness to identify the same correctly, same is Exh. P4".
CD when firstly produced before court does not show clear impression of seals as well as at two places, material of seal has been removed from one seal. In these circumstances, tempering in case property cannot be ruled out.
CD should also have been sent by IO to FSL but the same does not appear to have been sent to FSL by IO. From FSL, opinion should have been taken by IO as to whether alleged photographs in the CD are real one and not morphed and IO should also have sent alleged video cassette recovered (Ex. PW11/P2) from house of accused Suresh Bharti to FSL in order to ascertain as to whether photographs allegedly on CD have been copied from the said video cassette. CD in these circumstances is secondary evidence but no permission has been taken by state to lead secondary evidence. Further, state has not been able to prove by producing any witness that the said CD was sent by one of the accused or at instance of accused through courier at house of complainant/PW4. PW10 in his examination in chief stated that on 21.02.2002, accused Sanjeev Sharma led us to Khem Chand Market where they met with one Mahesh Sethi. He deposed that accused Sanjeev stated that he had got the CD prepared from Mahesh Sethi from the video cassette and his version was corroborated by Mahesh Sethi also. There is no witness examined by state in name of Mahesh Sethi. One Mohan Sethi has been examined as PW6 who has turned hostile and has not supported prosecution version at all. Accused persons in these circumstances cannot be convicted.
Further, IO failed to bring original lease deed Mark F on record which is purportedly lease deed of premises No. C1/1242, Ground Floor, Sector C, FIR No. 77/02 PS Vasant Kunj (CB) Page-14/22 PocketI, Vasant Kunj, New Delhi between its owner Mr. G. I. S. Chauhan and between Stambh Design Consultant (with complainant as his partner ) in order to show that complainant in any way was connected with aforesaid premises at which he purportedly received threatening letter and CD. State has further failed to prove on record that phone number 6898417 was installed at the abovesaid premises and complainant was its user. Bills pertaining to abovesaid number though have been Marked as Mark A and B but they are not in name of complainant. It is pertinent to mention that as per prosecution story, calls for extortion were being received by complainant /PW4 at number 6898417.
As per prosecution version, one mobile phone Make Panasonic and two SIM cards were recovered from pocket of accused Lalit @ Nagpal. Mobile numbers of these SIM cards were purportedly 9810131586 and 9810683697 out of which number 9810683697 was purportedly given by accused Suresh Bharti to complainant and number 9810131586 was purportedly given by alleged caller Amit to complainant as per Ex. PW4/A. Seizure memo of abovesaid articles is Ex. PW10/A. Complainant /PW4 though in his examination in chief in his cross examination by state has identified abovesaid articles vide Ex. P8 to P10 but their genuineness becomes doubtful in view of the fact that they were produced before court in unsealed condition and tempering of case property in these circumstances cannot be ruled out. Further PW4/Complainant in his cross examination admitted that he did not join any police investigation outside police station. State has not able to prove ownership of this mobile and SIM cards. Though CDRs of abovesaid mobiles was called through PW7 but PW7 could not produced the same and his report in this regard was exhibited on record vide Ex. PW7/A. IO should have issued FIR No. 77/02 PS Vasant Kunj (CB) Page-15/22 a direction to concerned Mobile Service Provider Company to preserve records of abovesaid mobile numbers but IO failed to do so and an important piece of evidence was lost because of the same. IO has not brought anything on record showing connection of accused Suresh Bharti and Lalit @ Nagpal qua aforesaid mobile numbers except their alleged recovery from accused Lalit @ Nagpal but the same cannot be formed basis of conviction of accused persons keeping in view the fact that they were first time produced before court in testimony of PW4 in unsealed condition.
With regard to threatening letter (Ex. P6) and envelope (Ex. P5) in which purportedly CD was received, I am of the view that they are also not confidence inspiring in view of what has been stated by PW4 in his cross examination. PW4 in his cross examination conducted on 09.04.2012 stated that the paper in which threat and demand of money was received was a plain white paper without any lines printed on it. He in his cross examination conducted on 02.03.2012 stated that ransom letter was hand written and matter was written on both sides of the paper. Perusal of Ex. P6 shows that it has lines printed on it and material has been written on the same only on one side of the paper. It completely reduces credit of Ex. P6. With regard to Ex. P5 i.e. the envelop, PW4 in his cross examination conducted on 02.03.2012 stated that name and address on envelop containing letter was typewritten and not handwritten whereas perusal of Ex. P5 shows that name and address of complainant on it is handwritten and not typed. It completely diminishes credibility of Ex. P5 and accused persons cannot be convicted on basis of Ex. P5 and P6.
FIR No. 77/02 PS Vasant Kunj (CB) Page-16/22 IO is stated to have taken specimen handwriting of accused Lalit @ Nagpal vide Ex. PW11/D1 to Ex. PW11/D17 which purportedly was sent by him for comparison qua handwriting on Ex. P5 and P6 interalia other documents but perusal of Ex. PW11/D1 to Ex. PW11/D17 shows that they have been taken in custody of police.
At this stage, it is necessary to discuss the admissibility of such evidence which is based on the specimen signatures and specimen handwritings obtained from the accused while in police custody. The question is whether the police officials were within the four corners of the law when they obtained the specimen signatures / handwritings of the accused in this manner.
The issue was dealt with by the Hon'ble Supreme Court of India in various precedents. In precedent titled as State of Bombay v. Kathi Kalu Oghad (1961) 2 CrLJ 856], the Hon'ble Supreme Court held that such obtaining of specimen handwritings would not be violation of Article 20 (3) of the Constitution of India. The law developed and the import of law laid down by the Hon'ble Supreme Court was clarified by the full bench of the Hon'ble High Court of Delhi in recent judgment titled as Sapan Haldar v. State [Crl. A. no. 804/2001 dated 25.05.2012]. It was observed as under: "With respect to specimen handwritings obtained from an accused by the investigating officer, in the decisions reported as (1994) 5 SCC 152 Sukhwinder Singh & Ors. vs. State of Punjab and AIR 2003 SC 4377 State of Haryana vs. Jagbir Singh & Anr., the Supreme Court categorically held that said evidence was totally inadmissible in evidence."
FIR No. 77/02 PS Vasant Kunj (CB) Page-17/22 It was further observed as below: "Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different visàvis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct. The Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions."
The reference was answered thus, "i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore,Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No.25 of 2005 was notified, interalia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison."
It has thus been clearly laid down that the police officials have no power to obtain the specimen signatures and specimen handwritings of the accused FIR No. 77/02 PS Vasant Kunj (CB) Page-18/22 in their custody at the stage of investigation. Section 4 and 5 of Identification of Prisoners Act would apply only to obtaining of finger prints or foot prints but same would not apply the specimen handwriting and signatures. Though such position is now being take care of by amendment in the Cr. P. C. wherein Section 311A has been inserted, yet the same would not be retrospective in operation. Prior to the said amendment, the police officials had no power to obtain the specimen handwriting / signatures from the accused while in their custody. Any such material collected has to be excluded from consideration being inadmissible in evidence.
Applying the said law to the matter in hand, it can be said that when specimen signatures of the accused Lalit @ Nagpal was obtained by IO investigating the case, the said procedure was not as per law.
Though FSL report with regard to accused Lalit @ Nagpal is on record but the same has not been proved on record by state but the same cannot be otherwise taken into consideration keeping in view law discussed above.
Voice sample of accused Lalit @ Nagpal as evident from Ex. PW11/C was also taken while accused was in police custody and Section 27 of Indian Evidence Act does not protect this piece of evidence so far as admissibility of this evidence is concerned. Further, through FSL report with regard to three audio cassettes and sample voice of accused Lalit @ Nagpal though on record but same has not been proved on record by state and hence cannot otherwise also be taken into account.
With regard to offence u/sec 120 B IPC, state has failed to prove any conspiracy between accused persons. Place of arrest of accused persons from near PVR as reflected from Ex. PW10/D to Ex. PW10/F is not reliable in view of what has FIR No. 77/02 PS Vasant Kunj (CB) Page-19/22 been stated by PW4 in his cross examination. PW4 in his cross examination conducted on 09.04.2012 admitted that he saw accused Sanjeev and accused Lalit for the first time ever in the police station. He further admitted that he saw accused Suresh after the entire episode of the present case at police station. In view of what has been stated by PW4 in his cross examination as stated above nullifies place of arrest of accused persons near PVR, Saket which further nullifies story of state that accused persons called complainant near PVR, Saket for taking first installment of Rs. 5 lakhs.
Further, PW4 in his cross examination conducted on 15.09.2014 admitted that he had very good friendly and close relation with accused Suresh Bharti. He further stated that it could be a possibility that one of the Inspector working in Scorpio Club having knowledge that he has good relations with Suresh Bharti could have threatened and blackmailed him. He stated that there is always a possibility of either side, that means accused persons may be innocent or not. He admitted that he was told by police that present accused persons had committed crime of threatening and blackmailing him. When complainant /PW4 is himself is in doubt regarding role played by accused persons in the entire episode, keeping in view circumstances as discussed in various preceding paras of this judgment, accused persons cannot be convicted.
With regard to offence u/sec 292 IPC, the same cannot be said to have been proved qua accused persons as CD as discussed earlier has not been proved in accordance with law by state. Further, PW4 in his cross examination stated that he is an Exhibition Designer since last 30 years and use computers frequently including photoshop application. He admitted that technically FIR No. 77/02 PS Vasant Kunj (CB) Page-20/22 photographs can be manipulated/morphed by using photoshop applications /software etc. and there is a method by which it can be checked that whether photograph is manipulated /morphed or not. He volunteered that he has not checked the photograph which was sent to him in the CD whether it was manipulated /morphed by that method. IO also does not appear to have done any efforts in this regard as discussed above. Further IO has brought nothing on record to match scene of crime i.e. the room where alleged pictures were clicked i.e. the background of pictures visavis background of pictures in the CD. It has left chain of events incomplete and accused cannot be convicted in these circumstances for offence u/sec 120 B r/w Section 292 IPC.
PW4 in his cross examination recorded on 09.04.2012 stated that police did not make him listen to any person's voice on phone or otherwise to help him identify the voice. PW4 in his examination in chief also stated with regard to identification of accused Lalit as person who used to call him on telephone and demanded money and gave threats in case of non payment as Amit in his cross examination by state only and on suggestion of state. In absence of FSL report in this regard proved on record by state and in view of taking of sample voice of accused Lalit @ Nagpal in police custody which has not been taken in accordance with law and thus not admissibility evidence being taken in police custody, I am of the view that prosecution version in this regard cannot be believed. On phone voice of a person sounds a bit different than actual voice and it was necessary to corroborate with regard to involvement of accused Lalit @ Nagpal that recordings in the cassettes would have got matched with sample voice of accused Lalit @ Nagpal taken in accordance with law. Hence, prosecution version with regard to threatening given by FIR No. 77/02 PS Vasant Kunj (CB) Page-21/22 accused to complainant/PW4 cannot be believed.
Thus in view of my aforesaid discussion, it can be said that state has not been able to prove its case against accused persons beyond reasonable doubt. Accordingly accused are acquitted for offences under section 120B, 292/387/506 IPC r/w Section 120 B IPC.
File be consigned to Record Room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 27.06.2016 Chief Metropolitan Magistrate
District South
Saket Courts, Delhi.
FIR No. 77/02 PS Vasant Kunj (CB) Page-22/22