Delhi District Court
State vs Prem Prakash Singh @ Munna Bajrangi & ... on 23 January, 2012
FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 63/2009 PS: Special Cell U/s 387 IPC r/w Section 120 B IPC Unique ID No.: 02401R002882010 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 30/2
(b) Name of complainant : SI Umesh Barthwal
(c) Date of commission of offence : On or After 16.09.2009
(d) Name of the accused : (i) Prem Prakash Singh @ Munna Bajrangi, S/o Shri Paras Nath, R/o Village Kaseru Pure Dayal, Jaunpur, Uttar Pradesh.
Present Address:
C102, Siddhi Vinayak Society, Malad West, Mumbai, Maharashtra.
(ii) Mahendra Ayare @ Shetty @ Vijay S/o Shri Abhimanyu, R/o 146/3, Railway Colony, Santa Cruz (E), Mumbai, Maharashtra.
State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 1 of 37
FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
(iii) Miraz Ahmed S/o Late Shri Jalaluddin Khan, R/o E435, Ashok Vihar Colony, PS Jaitpura, Varanasi, UP.
(iv) Iftikar Ahmed @ Babloo, S/o Shri Mukhtyar Ahmed, R/o H.No.101, 1st Floor, Ayesha Apartments, Samad Nagar, Bhiwandi, Thane, Maharashtra.
(v) Rizwan Ahmed Ansari, S/oLate Shri Abdul Moid Ansari, R/o H.No.A39/276 K, Mohalla Saraiya, PS Jaitpura, Varanasi, Uttar Pradesh.
("Proclaimed Offender")
(e) Offence complained of : 387 IPC r/w Section 120 B IPC
(f) Plea of accused : All pleaded not guilty
(g) Final arguments heard on : From 05.01.2012 to 17.01.2012.
(h) Final Order : All accused persons "Acquitted",
except accused Rizwan Ahmed
Ansari.
(i) Date of such order : 23.01.2012
______________________________________________________________ State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 2 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case as borne out from the record are that a few months prior to August' 2009, the Special Cell of Delhi Police had been developing information regarding gang members/operatives of underworld don "Chhota Shakeel". The information was being developed through manual as well as technical modes, whereby some telephone numbers were taken on legal interception. On 16.09.2009, a conversation was intercepted between mobile number 9506805141 (hereinafter referred to as "phone connection A") and mobile number 9506401532 (hereinafter referred to as "phone connection B"). The conversation revealed a conspiracy, to extort money from a businessman of Delhi namely Shri Ashok Tebriwal, having mobile phone number 9811040294 (hereinafter referred as phone "C"). Thereafter, the sources were sensitised by the Special Cell. At around that time simultaneously, the information was being developed by Special Cell about a dreaded gangster of Uttar Pradesh namely Prem Prakash @ Munna Bajrangi and his associates. Through sources it came to light that user of "phone connection A" was a gangster by the name of Miraj Khan, resident of Varanasi, UP, who was an associate of Prem Prakash @ Munna Bajrangi, whereas user of "phone connection B" was a person by the name of Iftikar Ahmed @ Babloo, again a resident of Varanasi, UP and both were engaged in collecting extortion money on behalf of gangster Prem Prakash @ Munna State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 3 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Bajrangi (hereinafter referred to as "MB"). Thereafter, on 29.09.2009, another call was intercepted between "phone connections A and B", which again fortified the earlier information that a conspiracy to extort money from businessman Shri Ashok Tebriwal on foot. On 21.10.2009, the aforesaid two intercepted conversations were recorded on two C.Ds and their transcripts were prepared, on the basis of which the case FIR in the matter U/s 120 B IPC was recorded. The technical and manual surveillance revealed that location of user of "phone connection A" was in Varanasi, whereas the location of user of "phone connection B" was in Bhiwandi, Maharashtra. The inputs further revealed that MB was present somewhere in Mumbai. On 21.10.2009, a team of the officers of Special Cell including Inspector Lalit Mohan Negi, Inspector Hriday Bhushan, IO SI Umesh Barthwal, HC Rakesh Kotiyal, HC Sukhbir Singh and others was constituted, which left for Mumbai to nab "MB" in Mumbai. On 25.10.2009, a secret information was received by the aforesaid team in Mumbai that one person by the name of Mahinder Ayare @ Vijay @ Shetty was a close contact of "MB" and was residing in Railway Colony, Santa Cruz, East Mumbai. Surveillance was mounted upon the activities of the aforesaid person and simultaneously sources were deployed to develop the information further.
2. On 27.10.2009, sources informed the team that Mahinder Ayare was present in the area of Malad (West), Mumbai. It further came to the notice of the team that Mahinder Ayare used to visit somebody in Siddhi State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 4 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Vinayak Society, Malad (West), Mumbai and even sometimes stayed there. Thereafter, watch was mounted around Siddhi Vinayak Society and sources were deployed. On 29.10.2009, the team received a specific input that Mahinder Ayare had gone to Siddhi Vinayak Society, Malad (West), Mumabi and "MB" could be found there. The team immediately reached to Siddhi Vinayak Society. Accused Mahinder Ayare was found coming from the said society and was identified by the secret informer. He was apprehended and his interrogation revealed that he was an associate of MB and MB was living in flat No.C102, Siddhi Vinayak Society, Malad (West), Mumbai. Immediately, search was conducted at the aforesaid flat where wife of MB namely Smt.Seema Singh was found, who had no idea about the whereabouts of MB. The interrogation of Mahinder Ayare revealed that he had dropped MB on the said day at a resort at Surat Highway from where MB had gone with Iftikar Ahmed @ Babloo to make extortion call to a businessman by the name of Ashok in Delhi. He further revealed that he had purchased a mobile phone for making extortion calls and MB was carrying that phone at that time. He further revealed that he would go to Chinchoti on Surat Highway at around 5.30 PM to pick him up. Mahinder Ayare was arrested in the matter at about 3.30 PM.
3. Thereafter, police party went to Chinchoti on Surat Highway and at about 5.30 PM apprehended MB. During his interrogation MB revealed that he had gone to Bhiwandi to make extortion call to Delhi businessman State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 5 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Shri Ashok Tebriwal on "phone C". From his possession mobile No. 9565350151 (hereinafter referred to as "phone connection D") was recovered. Both the arrested persons namely Mahinder Ayare and MB were brought to Delhi at the Office of Special Cell. Shri Ashok Tebriwal was contacted on his "phone C", who informed Special Cell that on 29.10.2009 while he was in Karol Bagh, Delhi, he had received a threatening call for extortion from "phone connection D" from a caller, who had introduced himself as MB. After confirming the factum of extortion from Ashok Tebriwal, the Special Cell took both the accused persons on police custody remand to unearth the conspiracy of extortion.
4. Two more teams were constituted on 03.11.2009, one under the leadership of SI Chandrika Prasad and another under the leadership of SI Rishi Pal. The team of SI Chandrika Prasad was sent to Bhiwandi, Thane, Maharashtra, to apprehend accused Iftikar Ahmed @ Babloo; whereas the team of SI Rishi Pal was sent to Varanasi, UP, to apprehend accused Miraj Ahmed. On the same day, Shri Ashok Tebriwal was called in the office of Special Cell and his statement to the effect that extortion call demanding Rs. 1.00 Crore was received by him from MB. The aforesaid teams apprehended accused Iftikar Ahmed @ Babloo and Miraj Ahmed and brought them to Delhi. Both the accused persons were also interrogated. They both admitted that they had been working for MB and were using "phones' connections A and B" respectively, which were taken in the names of unknown persons on State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 6 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 the strength of documents procured through deceit, which were made available to them by one Rizwan. The said Rizwan could not be arrested in the matter and was subsequently declared "Proclaimed Offender" by this court.
5. On 08.11.2009, the team headed by SI Chandrika Prasad raided the house of accused Mahinder Ayare and took into possession the box of mobile phone make Nokia 1202, which had been purchased by him for MB for making extortion call. Accused Mahinder Ayare also led the police party to the shop from where he had purchased the above mobile phone which stood recovered from MB.
6. During investigation, the Customer Application Form and CDRs of "phones connections A & B" were taken from M/s Idea Cellular. On 13.11.2009, voice samples of accused Miraj and Iftikar Ahmed @ Babloo were recorded by experts at CFSL, CBI, Lodhi Colony. The CDs of voice samples were matched with the two CDs of their intercepted conversations and opinion of CFSL was taken thereupon, which confirmed the voice of aforesaid two persons therein. The Customer Application Form of "phone C"
belonging to Shri Ashok Tebriwal was also obtained.
7. After completion of investigation, all the four accused persons stood chargesheeted for offences punishable U/s 387 IPC r/w Section 120 B IPC.
State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 7 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
8. On 30.05.2011, the supplementary chargesheet was filed in the matter whereby the CDRs of "phone C", two roaming CDRs of "phone connection D", allegedly apprehended from MB, Death Certificate of tipper Manoj Rai and statement U/s 161 Cr.P.C of witness Vasant Kumar were placed on record.
9. After filing of the charge sheet in the case, accused persons were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 28.03.2011, charge U/s 387 IPC r/w Section 120 B IPC were framed against the accused persons to which they pleaded not guilty and claimed trial.
10. In order to bring home the guilt of accused persons, prosecution examined 24 witnesses, whereafter the PE in the matter was closed and statements of all the accused persons U/s 313 Cr.P.C were recorded, wherein they abjured all the allegations against them and claimed to be falsely implicated in this case, however, they did not lead any evidence in their defence.
11. I have heard arguments advanced at bar by learned APP on behalf of State, Shri Deepak Sharma, Advocate, learned counsel for accused MB and Mahinder Ayare; Shri R.P Tyagi, advocate, learned counsel for accused Iftikar Ahmed @ Babloo; Shri Vikram Singh Saini, advocate, learned State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 8 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 counsel for accused Miraj Ahmed and perused the entire material on record. Before adverting to adjudication upon the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter which is as under.
12. PW1, HC Rakesh Kothyal and PW2 HC Mohan are the witnesses of the team which was constituted by Special Cell on 21.10.2009 which had visited Mumbai to nab MB. The evidence of both the witnesses is on the same lines, wherein they stated that they alongwith Inspector Lalit Mohan Negi, Inspector Hriday Bhushan, SI Umesh Barthwal and others had gone to Mumbai where firstly accused Mahinder Ayare was apprehended and thereafter at his instance accused MB was arrested on 29.10.2009 at about 5.30 PM from Chinchoti on Surat Highway. They both have proved the documents of arrest of the aforesaid two accused persons. They have also proved disclosure statements of both the accused persons recorded by the team as also the seizure of "phone connection D" from accused MB. PW1 HC Rajesh Kothyal further stated that on 08.11.2009, the supplementary disclosure statement of accused Miraj Ahmed was also recorded in his presence. They both were thoroughly crossexamined by the defence, wherein they stated in unison that they had no idea as to whether the police party had made a departure entry in the Special Cell or arrival entry in any PS in Mumbai. They, however, further stated in unison that police party had two vehicles at their disposal in Mumbai which were arranged by Inspector Lalit State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 9 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Mohan. They further admitted that at the time of arrest of both the accused persons, no independent witnesses were joined. They further admitted that information regarding arrest of aforesaid two accused persons was not given to local police. They also admitted that during the operation they did not have any latest photographs of MB. They further admitted that at the time of operation, they were not carrying arms and ammunition.
13. PW3, ASI Surjeet Singh was posted as Duty Officer in PS Special Cell on 21.10.2009 and he has proved the recording of case FIR in the matter as Ex.PW3/A.
14. PW4, Shri Ashok Tibrewal, the star witness of the prosecution in his evidence stated that he was the Director of retail showroom chain by the name of "Salasar Mega Showroom", having stores in Delhi, Allahabad, Kanpur, Agra, Indore, Raipur, Gwalior, Cuttack and Guwahati and having annual turnover of Rs.10.00 Crores. He admitted having mobile phone number "C" in his name. He further stated that in the year 2009, he had received call from Special Cell of Delhi Police, whereby he was told that "phone C", being used by him was found as last dialed number in the mobile phone apprehended from accused MB, who was arrested by Special Cell a day prior thereto. It was further stated that at the time of receiving call from Special Cell he was in Amritsar. After coming back to Delhi, he went to O/o Special Cell and met IO, SI Umesh Barthwal, who made enquiries from him. State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 10 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 He further stated that on receiving a call from an unknown caller, who had used his name as "Ashok Kejriwal" thrice and he could not hear anything more and call lasted for about 5 to 7 seconds. He considered it to be a wrong call and did not pay any heed thereto. Thereafter, twice calls were made on his "phone C" from the same number, but he did not pick up the phone. Thereafter, he did not receive any other call. He was declared hostile to the prosecution case and was thoroughly crossexamined by the learned APP. He denied having received specific call from "phone connection D" or the landline number 02522684992 twice. He specifically denied the suggestion of the prosecution that the caller had introduced himself as "MB" and had made a demand of Rs.1.00 Crore. He further denied the suggestion that MB had threatened to kill him if the aforesaid demand was not fulfilled. He was confronted with his statement recorded by Special Cell U/s 161 Cr.P.C on 03.11.2009. The said statement was even readover to him in court. He categorically denied having made any such statement to Special Cell. Thereafter, he further denied the suggestion that he was deposing falsely as he had been bribed by the accused persons. He also expressed his inability to identify the voice of the caller, if the same was played again to him.
15. PW5, Shri Ingarsal, SSOII (Photo & Scientific Aids Division), CFSL, New Delhi; PW6 HC Devdutt and PW7 Shri Krishan Kumar, Lab Assistant, CFSL, CBI, New Delhi are the witnesses to the effect on 13.11.2009 accused Miraj Ahmed and Iftikar Ahmed @ Babloo while in police custody State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 11 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 were taken to CFSL, where their voice samples were recorded. The recording of the sample voice of the aforesaid two accused persons has not been disputed by the defence.
16. PW8, Shri Ahmed Sheikh in his evidence stated that he was working as "Salesman" at Shop No.B2, Chetna Collection, D'Souza Market, Tank Road, Orlam, Malad West, Mumbai, which belonged to one Shri Dharmender Shah. On 08.11.2009, the team of Delhi Police had come at his shop, alongwith one arrested person and shown to him one booklet having stamp of his shop as also a mobile phone box of Nokia 1202 and had asked questions about the fact as to whether the said mobile phone was sold by him to somebody. He identified the mobile phone box through the stamp of Chetna Collection affixed thereupon. He was crossexamined by the defence wherein he admitted that his shop was also supplying mobile phones to small shopkeepers with stamp of their shop and said phones with stamp of his shop were available in the open market. He further stated that police did not ask for any bill in respect of the sale of the said mobile phone. Very strangely, he stated that he was not in a position to identify the accused, who was there with the police at that time. It is relevant to note here that on 23.07.2011, accused Mahinder Ayare was present in court.
17. PW9, Police Naik Kailash Gulab Chauvan, PS Vakola, Santa Cruz (East), Mumbai in his evidence stated that on 08.11.2009 the police State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 12 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 officials of Delhi Police had come to the aforesaid PS. As per the directions of his seniors, he joined the team of Delhi Police. He alongwith the police team of Delhi Police had gone to the residence of accused Mahinder Ayare at 146/3, Western Railway Colony, Santa Cruz (East), Mumbai from where a cardboard box of Nokia mobile phone was recovered from the bed. He categorically stated that he did not see if there was anything inside the said box. He further categorically stated that police took possession of the said box, but did not prepare any document. He did not identify accused Mahinder Ayare. He was also declared "hostile" to the case of prosecution and was crossexamined by the learned APP. He categorically denied the suggestion that he had made a statement to the effect that a cardboard box of Nokia model 1202 and one booklet kept inside was taken into police possession. He further denied the suggestion that at that time the brother of accused Mahinder Ayare, namely Shri Jitender Ayare was also present. Accused Mahinder Ayare was specifically shown to this witness, but he did not identify him to be the person, at whose residence he had gone with the police. He was also crossexamined by the defence, wherein he stated that the cardboard box of Nokia were easily available in the open market and could be kept by anyone at his residence. He further admitted the suggestion that the card board box was not having any specific mark.
18. PW10, Mohd. Shahid and PW11 Shri Sajid are the witnesses in respect of "phone connection B", allegedly used by accused Iftikar Ahmed State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 13 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 with the further allegations that the said connection was obtained by PW10, Mohd. Shahid by submitting his identity documents at the instance of PW11 Shri Sajid, who was his landlord. Both the witnesses pleaded complete ignorance about the case and were declared "hostile" to the case of prosecution. PW10, however, admitted the relationship of tenant and landlord with PW11, Shri Sajid. He categorically denied the suggestion that he had subscribed to an IDEA connection in respect of "phone connection B". He was confronted with the photocopies of Customer Application Form (CAF), his photographs and documents in respect of "phone connection B".
He admitted his photograph and the copies of documents annexed therewith, however, he denied having filled up the Customer Application Form, being illiterate. He also denied his signatures thereupon. He further denied the suggestion that "phone connection B" was given by him to PW11, who in turn handed it over to accused Iftikar Ahmed @ Babloo. He in fact, clarified that he never obtained any SIM Card from any mobile company as he had not been using any mobile phone. He was confronted with his statement recorded U/s 161 Cr.P.C in the matter. He categorically denied having made any such statement to the police. In crossexamination by the defence, he categorically admitted that police did not make any enquiries from him. PW11 also categorically stated that he did not hand over "phone connection B" to accused Iftikar Ahmed @ Babloo. He even did not identify accused Iftikar Ahmed @ Babloo in court. He further denied the suggestion that he had asked PW10 to use his identification documents to procure "phone State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 14 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 connection B". He, however, admitted that police had made enquiries from him, but he denied having given any statement to police. In his cross examination by the defence, he admitted that the documents alongwith the Customer Application Form (CAF) were never shown to him by the police earlier.
19. PW12, Shri Bhanu Pratap and PW13 Shri Vineet Bansal are the witnesses in respect of "phone connection A", allegedly used by accused Miraj with the allegations that the said connection was purchased from PW12 on the strength of the documents of identity of PW13, Shri Vineet Bansal. PW12 in his evidence stated that he was working as "Executive" in Saroja Communications, situated at Kabir Road, Varanasi and "phone connection A"
was sold through the said shop. He admitted signatures of one Ms.Nidhi Jaiswal, who was working at the said shop, at that time, on the Customer Application Form (CAF) in respect of the said phone connection. He further stated that "phone connection A" was given to the subscriber Shri Vineet Bansal after due verification of the documents. He was crossexamined by the defence, wherein he stated that verification of the authenticity of the documents filed alongwith the Customer Application Form (CAF) by the subscriber was the responsibilty of the mobile company and not of his shop. He denied having made any statement to the police.
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20. PW13, Shri Vineet Bansal, in whose name "phone connection A" was there admitted his photograph and documents on the Customer Application Form, in respect of "phone connection A", but denied his signatures upon the Customer Application Form. In his crossexamination, he categorically admitted that he had never lost his documents of identity, but clarified that he had furnished copies thereof to his LIC Agent and Passport Office and had probably also given a copy thereof in a hotel where he had stayed. He admitted the suggestion that his specimen signatures were not obtained by the police for verification upon the alleged signatures appearing on the Customer Application Form (CAF) of the said connection (Ex.PW12/A).
21. PW14, ASI Senser Pal was a member of the team of SI Rishi Pal, which was sent to Varanasi, UP to arrest accused Miraj Ahmed on 03.11.2009. He stated in his evidence that on 03.11.2009, the police party reached at PS Jaitpura, Varanasi, UP. One constable from the PS was taken to the house of accused Miraj Ahmed and he was arrested. He has proved the arrest documents of this accused and the disclosure statement made by him while in police custody. He further stated that he alongwith SI Rishi Pal, HC Raj Kumar, HC Mohan Chand and HC Parveen had also gone to Mumbai alongwith accused Mahinder Ayare and on 08.11.2009 and had taken into possession the cardboard box of mobile phone make Nokia 1202 from his residence. He further stated that he had gone to Chetna Collection at D'Souza State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 16 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Market, Malad, Mumbai with the police team and accused Mahinder Ayare from where "phone connection D" was purchased by accused Mahinder Ayare, for handing over to MB. He was thoroughly crossexamined by the defence, wherein he admitted that IO had not tallied the IMEI number of the mobile phone with the one appearing on the cardboard box.
22. PW15, Dr.C.P Singh from FSL, Rohini has proved the FSL result with regard to matching the voice of accused Miraj Ahmed and Iftikar Ahmed upon the voices in the intercepted CDs (Ex.PW19/A & Ex.PW19/B).
23. PW16, Shri V. Vumlunmang in his evidence proved the Interception Order dated 26.08.2009, after seeing the photocopy of the order in this regard passed by Shri Gopal K. Pillai, the then Union Home Secretary, as the original thereof was stated to have been destroyed as per the provisions of Section 5(2) of the Indian Telegraph Act r/w Rule 419 A thereof. In his crossexamination, this witness evaded answering legal questions.
24. PW17 Shri Anuj Bhatia, Nodal Officer from M/s Vodafone Essar Mobile Services Limited proved the Customer Application Form (CAF) in respect of "phone C" belonging to Shri Ashok Tebriwal as also the CDRs in respect thereof for the period from 25.10.2009 to 30.12.2009. State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 17 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
25. PW18, Shri Kaushik Ghosal, Nodal Officer from Vodafone Essar Digilink Limited was examined by the prosecution to prove the details in respect of "phone connection D", allegedly recovered from accused MB. This witness stated that the said connection was in the name of one Shri Triloki Nath, but the CDR in respect of the said phone was not found in their network.
26. PW19, SI Rishi Pal Singh, in his evidence stated that on 16.09.2009 he was monitoring the interception of telephone conversation between "phone connection A" and "phone connection B". The said conversation was brought to the notice of senior officers. Through some source information, it was revealed that "phone connection A" was being used by accused Miraj, whose location was in Banaras, whereas "phone connection B" was being used by accused Iftikar Ahmed @ Babloo, whose location was in Maharashtra. He further stated that on 29.09.2009, another call was intercepted between aforesaid two numbers. Further source information revealed that the said accused persons were the conduits of accused MB. On 21.10.2009, on the directions of IO, SI Umesh Barthwal, the aforesaid two intercepted conversations were recorded in two CDs and their transcripts were prepared. The said transcripts are Ex.PW19/A and Ex.PW19/B respectively. On 03.11.2009, he alongwith ASI Senser Pal, HC Devi Dayal, Ct.Surender Gautam and Ct.Udham went to Varanasi and arrested accused Miraj Ahmed. Thereafter, on 07.11.2009, on the directions of senior State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 18 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 officers, he alongwith ASI Senser Pal, HC Raj Kumar, HC Parveen and HC Mohan alongwith accused Mahinder Ayare went to Maharashtra and effected recovery of cardboard box of the mobile phone from the residence of accused Mahinder Ayare on 08.11.2009. Thereafter, he alongwith accused Mahinder Ayare and other police party went to the shop by the name of Chetna Collection at Malad, Mumbai, where one Ahmed Sheikh (PW8) identified the stamp of his shop on the booklet as well as the cardboard box of the mobile phone.
27. This witness was thoroughly crossexamined by the defence, wherein he stated that in the month of September' 2009, he had intercepted about 50 calls between "phone connection A & phone connection B", but except for Ex.PW19/A and Ex.PW19/B other were irrelevant. He admitted that "phone connection A and phone connection B" were put on interception for the purpose of watching the movements of underworld don "Chotta Shakeel". He admitted that accused Miraj Ahmed and Iftikar Ahmed were not conduits of Chotta Shakeel. He admitted that "phone C" belonging to Shri Ashok Tebriwal was not put on surveillance ever. He further admitted that Ex.PW19/A and Ex.PW19/B do not contain any reference to MB. He further admitted that callers of "phone connection A and phone connection B"did not address each other by their names. He further admitted that in conversation Ex.PW19/B, name of Shri Parveen Bhoomihaar had surfaced, but investigation qua him was not conducted in the matter. State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 19 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
28. PW20, HC Vinod in his evidence stated that on 03.11.2009 he had gone to Bhiwandi, Maharashtra alongwith team leader SI Chandrika Prasad and other police officials namely HC Raj Kumar, HC Yashpal and HC Surender, where accused Iftikar Ahmed @ Babloo were arrested. In his crossexamination by defence, he stated that no public person was joined during the arrest of said accused.
29. PW21, SI Chandrika Prasad in his evidence stated that on 31.10.2009, he alongwith HC Raj Kumar, HC Vinod, HC Yashpal and HC Surender left for Mumbai via train and reached there on 01.11.2009 where he tied up with AntiExtortion Cell, Crime Branch, Thane. On 03.11.2009, at about 6.00 PM, they received an information with regard to presence of accused Iftikar Ahmed @ Babloo in front of Ayesha Building, Samadh Nagar, Bhiwandi. Accused was arrested and was taken to AntiExtortion Cell, Thane. On the next day in the morning, accused was taken to his residence and from there his passport was taken into possession. Thereafter, accused took him to a STD/PCO shop from where accused MB had made an extortion call to Shri Ashok Tebriwal on 29.10.2009. The owner of STD shop namely Shri Ganesh was interrogated and a pointing out memo of the place was prepared. Thereafter, the accused was brought to Delhi after seeking his transit remand from the court of Ld.CJM, Thane. In crossexamination, this witness admitted that on the memos prepared by him, the signatures of any officials of AntiExtortion Cell, Thane are not there. State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 20 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
30. PW22, ASI Raj Kumar deposed on the lines of PW21. In his crossexamination, he could not give the description of Shri Ganesh, the owner of STD shop.
31. PW23, Inspector Umesh Barthwal, the main IO of the case, in his evidence set out the entire investigation conducted in this matter by three teams. He was thoroughly crossexamined by the defence. He admitted in his crossexamination that in the rukka prepared by him in the Column "Place of Occurence" word "Not Specific" was written. At various places he admitted that Inspector Hriday Bhushan and Inspector Lalit Mohan Negi had accompanied him to Mumbai at the time of arrest of accused Mahinder Ayare and MB. He admitted that he did not record the statements of either of the aforesaid Inspectors. He further admitted that he had not recorded the statement of Shri Ashok Tebriwal between 16.09.2009 to 02.11.2009. He also admitted that he did not conduct any investigation qua Shri Parveen Bhoomihaar, whose name figured in Ex.PW19/B. He further stated that he had heard the above conversations where the name of MB did not figure. In answer to a question of the defence, he admitted that at the time of arrest of accused Mahinder Ayare, he did not call any public person. He categorically admitted that the call details in respect of "phone connection D" were pertaining to only one date, i.e 29.10.2009. He could not tell as to whether he had shown Mark X, X1 and X2 to PW11 Shri Sajid. He admitted that he did not collect the data as to when "phones connections A, B and D" State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 21 of 37
FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 were activated. He also categorically admitted that he did not obtain the specimen signatures of PW13 for the purpose of comparison of his alleged signatures appearing on Ex.PW12/A. He also admitted that he did not recommend surveillance upon "phone C" of Shri Ashok Tebriwal. He also admitted that he had not deputed any police official to keep watch on the house of MB when his wife was there and they had left for Chinchoti on Surat Highway to apprehend accused MB. He further admitted that Shri Ashok Tebriwal had not approached Special Cell and had not filed any complaint, but it was Special Cell which had approached him. He also admitted that he did not ask the FSL to give the ageing proof of CDs, the transcripts whereof are Ex.PW19/A and Ex.PW19/B.
32. PW24 HC Narender Singh in his evidence stated that on 23.11.2009 he took four sealed envelops from MHC(M) and took the same to FSL, Rohini.
33. This is all as far as prosecution evidence in the matter is concerned.
34. The learned APP has very vehemently argued that the prosecution has amply proved its case against all the four accused persons of conspiring to extort Rs.1.00 Crore from PW4 Shri Ashok Tebriwal. It is further argued that it is not possible to have direct evidence of conspiracy as State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 22 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 the conspiracy is hatched in dark and executed in secrecy. She has pointed out through various circumstances that there was a conspiracy among the accused persons, including accused Rizwan (since PO) in this case. The circumstances which were argued at bar are enumerated as under:
(i) During the interception of phone calls of some of the alleged conduits of underworld don "Chotta Shakeel", conversations Ex.PW19/A and Ex.PW19/B were intercepted alongwith several other conversations between accused Miraj, who was using "phone connection A" and his location was at Varanasi and accused Iftikar Ahmed @ Babloo, who was using "phone connection B" through which it came to fore that if PW4 Shri Ashok Tebriwal was pressed hard, then he could be forced to shell out some money;
(ii) The aforesaid conversation which was reduced in two CDs, being CDs No.3 and 4 when matched with the sample voices of accused Miraj and Iftikar Ahmed @ Babloo proved that their voices matched;
(iii) The call from "phone connection D" was made by accused MB to PW4 Shri Ashok Tebriwal on 29.10.2009 at 17:35 Hrs and through landline number 02522684992 at 16:11 Hrs & 16:12 Hrs on the same day;
(iv) "Phone connection D" was duly recovered from the possession of accused MB and;
(v) The cardboard box Ex.PW8/1 in respect of "phone connection D" was recovered from the residence of accused Mahinder Ayare. State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 23 of 37
FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
35. On the strength of aforesaid circumstances, it is argued by the learned APP that once "phone connection D" was recovered from accused MB, it was clearly established on record that a call was made therefrom to PW4, then the onus shifts upon the accused to show as to why phone call was made from "phone connection D" to PW4 by him.
36. Per contra, the learned defence counsels in unison argued that the circumstances aforesaid argued by the learned APP are not definite in nature and everything has been left to chances, secret informations and technical surveillance. Neither PW19 nor any other police official of Special Cell had earlier heard the voices of either accused Miraj or accused Iftikar Ahmed @ Babloo, nor in the conversations Ex.PW19/A and Ex.PW19/B, the callers addressed each other by their names, then how the Special Cell came to know of their identities? It is next argued that IO, PW23 in his evidence categorically admitted that the ageing proof of CDs through which the conversations Ex.PW19/A and Ex.PW19/B were transcripted was not obtained from CFSL which casts a doubt upon the story of prosecution, as it was very easy for the prosecution to have made accused Miraj and Iftikar Ahmed @ Babloo to enter into a conversation and then record the same. As regards the recovery of cardboard box of mobile "phone connection D" i.e Ex.PW8/1, it was argued that the recovery was not effected in the presence of any independent witness and the witnesses, i.e PW19 and PW14 and most importantly PW9 have not been able to give the description of the locality State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 24 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 where the house of accused Mahinder Ayare was situated and wherefrom the recovery of Ex.PW8/1 was effected. Similarly, the accused MB was also not arrested in presence of any public witness.
37. This is settled law that the following conditions must be fulfilled before a case against an accused based upon circumstantial evidence can be said to be fully established:
(a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstance concerned "must" or "should" and not on "may be" established;
(b) The facts so established should be consistent only with the hypothesis of the guilt of accused, i.e to say, they should not be explainable on any other hypothesis, except that the accused is "guilty";
(c) The circumstances should be of a conclusive nature and tendency;
(d) They should exclude every possible hypothesis, except the one to be proved and;
(e) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused (AIR 1984 SC 1622, titled as, "Sharad Birdi Chand Sharda V/s State of Maharashtra"). State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 25 of 37
FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
38. In "AIR 1976 SC 917" titled as, "Chander Mal & Anr. V/s State of Rajasthan", the Hon'ble Supreme Court was pleased to hold that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) Firstly, the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established;
(ii) Secondly, those circumstances should be of a definite tendency pointing out towards the guilt of the accused;
(iii) Thirdly, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, i.e to say, the circumstances should be incapable of explanation of any reasonable hypothesis save that of the accused's guilt.
39. I have gone through the transcript Ex.PW19/A and Ex.PW19/B purportedly between accused Miraj Ahmed and Iftikar Ahmed @ Babloo while using "phone connection A" and "phone connection B". It is crystal clear that none of the two callers addressed each other by their names. It is further clearly apparent that name of accused MB does not figure therein. It is further apparent that the context of their conversation is the election scenario in UP and Maharashtra, wherein passing reference has been made to one Parveen Bhoomihaar and one Ashok Kejriwal. In Ex.PW19/B, the phone number of the said Ashok Kejriwal referred to matches with the mobile phone number of PW4 Shri Ashok Tebriwal. There is no direct reference to any State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 26 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 kind of extortion therein. The only reasonable inference which can be drawn from the joint reading of both the transcripts is that one Shri Parveen Bhoomihaar might have had some rivalry business or otherwise with said Shri Ashok Kejriwal and as such through the callers he wanted the issue sorted out in reference to some political scenario.
40. The prosecution has no answer as to how the Special Cell came to know that caller in respect of "phone connection A" was Miraj Ahmed, whereas caller in respect of "phone connection B" was Iftikar Ahmed @ Babloo, particularly when there is no evidence on record that the said phones were in their names or that the officials of Special Cell were acquainted with their voices. The only answer which is forthcoming is same that came to fore through technical and manual surveillance mounted by Special Cell upon the said numbers. The learned APP tried to explain the same under Section 125 of the Indian Evidence Act, which reads as under:
"125. Information as to commission of offences - No Magistrate or Police Officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public public revenue".
An important question which falls for consideration here is whether the provisions of Section 125 Indian Evidence Act can be stretched to State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 27 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 such a limit that secret information/technical surveillance/manual surveillance takes the place of proof. The answer has to be "BIG NO" as there has to be some semblance of evidence with regard to the investigation conducted in this regard. There is further no evidence that accused Miraj Ahmed and Iftikar Ahmed @ Babloo had been working for accused MB, except for their own disclosure statements and the disclosure statements of MB. There is no evidence on record worth the name that the aforesaid two accused persons were in touch with accused MB with regard to committing extortion upon PW4 for a sum of Rs.1.00 Crore.
41. This case involves five phones, out of which four are mobile phones and one is a STD landline phone, i.e phone connections A, B, C, D and STD phone No.02522684992. From the evidence recorded in the matter, let us analyse as to whether the prosecution has been able to prove the ownership/possession/use thereof for the purpose of committing extortion in this matter.
42. "Phone Connection A - 9506805141":
As per the prosecution case, this phone connection was being used by accused Miraj Ahmed during the month of September' 2009. This phone connection of Idea Cellular was obtained from "Saroja Communications", Kabir Road, Varanasi, UP, on the strength of the identity documents of PW13, Shri Vineet Bansal and was handed over to accused State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 28 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Miraj Ahmed by accused Rizwan ("since PO"). Let us see the evidence of PW12 and PW13 in this regard. The Customer Application Form (CAF) in respect of aforesaid phone connection contained the name of PW13, his identity documents and his signatures at pt.X on Ex.PW12/A. PW13 when came to witness box categorically denied having purchased the aforesaid connection from Idea Cellular. He categorically denied his signatures on the CAF. With regard to his identity documents, he gave an explanation that he had given the copies thereof to his LIC Agent and Passport Office for renewal of passport. As regards his photo, he expressed his suspicion that he had given the same in a hotel. PW12 Shri Bhanu Pratap, the Executive of Saroja Communications in his evidence stated that the documents of identity in respect of CAF were verified by Idea Cellular and his shop had only issued the connection.
43. During the course of investigation also, PW13 had denied his signatures on Ex.PW12/A. As such, it was expected of the IO to have obtained his specimen signatures for the purpose of comparing the same with his alleged signatures appearing on Ex.PW12/A and that having not done, an important link between Vineet Bansal and accused Miraj Ahmed gets lost. Admittedly, the SIM card containing "phone connection A" was never recovered in the matter, therefore, it is too preposterous to even imagine that the said phone was being used by accused Miraj Ahmed.
State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 29 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012
44. "Phone Connection B - 9506401532":
As per the prosecution case, this phone connection was being used by accused Iftikar Ahmed @ Babloo during the month of September' 2009. As per the prosecution case, the said connection was obtained by PW11, Shri Sajid at the instance of accused Iftikar Ahmed by using identity documents of PW10 Mohd. Shahid, who was his tenant and the same was handed over to accused Iftikar Ahmed @ Babloo. Let us see what PW10 and PW11 have to say in this regard. Both these witnesses, when came to witness box turned "hostile" to the prosecution case. PW10 Mohd. Shahid categorically denied having ever given his identification documents to PW11 Shri Sajid. When this witness was confronted with his photograph appearing on CAF, in respect of the aforesaid phone connection, he though admitted the same, but categorically denied his signatures on CAF and offered an explanation that he was illiterate and as such, could not have signed the same. He further clarified that he never used mobile phone in his life and had never taken any connection. He even denied having made statement to the police during investigation. He did not even identify accused "Iftikar Ahmed". Similarly, PW11 also pleaded complete ignorance about this phone connection. He further denied the suggestions of the prosecution that accused Iftikar Ahmed @ Babloo had met him through one Shri Dhirender Kapoor. PW23, SI Umesh Barthwal, however, in his evidence stated that it was through said Shri Dhirender Kapoor that PW11 had met accused Iftikar Ahmed @ Babloo. Therefore, the prosecution has miserably failed in proving State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 30 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 the possession of aforesaid phone connection by accused Iftikar Ahmed @ Babloo.
45. "Phone Connection C - 9811040294":
As per the material on record, this phone was in the name of Shri Ashok Tebriwal as the Director of M/s Salasar Mega Showrooms. It came to the knowledge of police on 29.09.2009 that in Ex.PW19/B this phone number had figured in, yet there is nothing on record that surveillance was mounted on this phone. It is very strange to notice that once it was in the knowledge of police that some persons were making an attempt to either intimidate or threaten the user of this phone connection for extortion, then they should have atleast contacted him, interrogated him or given protection to him, if needed. Yet the police kept mum till 30.10.2009, i.e the time when accused MB was arrested and finally statement of PW4 was recorded only on 03.11.2009. That is grossly inexplicable. Both PW19 and PW23 deposed in a very casual manner with regard to keeping surveillance upon this phone connection, providing security to the holder of this connection number and even making any enquiries in this regard between 29.09.2009 to 30.10.2009.
46. "Phone Connection D - 9565350151 (allegedly recovered from accused MB)":
As per the prosecution case, this mobile connection was obtained from Varanasi by accused Rizwan through accused Iftikar Ahmed, who was State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 31 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 staying in Bhiwandi, Pune and the same was sent to Mumbai to accused MB, who made extortion call to PW4 Shri Ashok Tebriwal on 29.10.2009 at 15:35 Hrs from an STD booth on Surat Highway. PW23 in his evidence admitted that he called for the Call Detail Records of this phone in respect of only on date, i.e 29.10.2009, which is very strange. Two witnesses namely, PW17 and PW18 are relevant in respect of this connection. PW18, Shri Kaushik Ghosal, Nodal Officer from M/s Vodafone Essar Digilink Limited, Lucknow, UP in his evidence admitted that the said connection was found in the name of one Shri Triloki Nath, but in their network the CDR of this phone was not available. The said Shri Triloki Nath was not examined in the matter. In his crossexamination, this witness categorically stated that before issuing the connection, the verification of the documents of identification annexed with the CAF was conducted by them. PW17 Shri Anuj Bhatia, Nodal Officer from Vodafone Essar Limited in his evidence stated that he had received notice from the complainant of this case seeking roaming call data records for the period from 25.10.2009 to 30.10.2009, in respect of this mobile connection. It appears that data of only date, i.e 29.10.2009 was available. PW23, the IO of the case when confronted with this number categorically stated that he did not seek the Call Detail Records of this mobile phone connection right from the day it was activated. From the aforesaid gamut of facts, it is apparent that the investigation qua this number was conducted in a very selective manner. There are certain unanswered questions, i.e when this mobile connection was activated? Secondly, why the address of Shri Triloki State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 32 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Nath was not verified and he being not examined in the matter? Whey CDR of only one date, i.e 29.10.2009 when a call from this phone was allegedly made to the "phone connection C" of Shri Ashok Tebriwal was obtained? Because of nonexamination of Shri Triloki Nath, an important link witness in the story gets missing, i.e how this connection came from Shri Triloki Nath to accused Iftikar Ahmed and from accused Iftikar Ahmed to accused MB. There is another story with regard to mobilephone handset in which this connection was allegedly used. The said mobile handset was allegedly purchased by Mahinder Ayare from the shop "Chetna Collection", D'Souza Market, Tank Road, Orlam, Malad (West), Mumbai. In this regard, the prosecution examined PW8 Shri Ahmed Sheikh, who in his cross examination very categorically stated that the cardboard box in respect of Nokia phone model 1202, bearing stamp of his shop was shown to him, but no enquiries with regard to any bill in this regard was made. This witness further stated that they used to sell the mobile phone handsets in box, containing their stamp to small vendors as well. Therefore, the circumstances with regard to aforesaid phone and connection being recovered from accused MB is "not definite and shrouded with a lot of suspicion".
47. "STD Phone Number 02522684992":
As per the prosecution case, from this phone, accused MB made two calls on 29.10.2009 to PW4 Shri Ashok Tebriwal at 16:11 Hrs and 16:12 Hrs from an STD shop on Surat Highway, Bhiwandi when accused Iftikar State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 33 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Ahmed was also there with him. The owner of said STD booth was one Shri Ganesh, but the said Shri Ganesh has not been examined in the matter. Neither PW21 nor PW23 gave description of the said Shri Ganesh in their examination. Except the "Pointing Out Memo" of the STD booth prepared at the instance of accused Iftikar Ahmed @ Babloo, there is no other material on record.
48. From the analysis of the evidence recorded with regard to all the aforesaid phones, it is apparent that the prosecution has not been able to prove the possession and use of the aforesaid phones by the accused persons, except "phone connection C (9811040294)" of Shri Ashok Tebriwal and qua the said number also the investigation is shrouded in suspicion. In order to prove the conspiracy of the accused persons, some semblance of their meeting of minds was required to be established on record, which the prosecution has miserably failed.
49. Now, let us see what is the evidence with regard to putting PW4 in the fear of death or of grievous hurt in order to commit extortion. PW4 when came in the witness box did not support the case of prosecution at all. He although admitted having received a call from an unknown number, a day prior to he was contacted by the officials of Special Cell, but he categorically stated that the caller neither made any ransom call nor threatened him. In his crossexamination by the learned prosecutor, he categorically denied having State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 34 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 received any threatening or extortion call from "phone connection D" or the landline number. Strangely, the suggestions which were given to him by the prosecution were that he had been bribed by the accused persons and not that he was threatened by the accused persons for deposing in their favour. If we read evidence of this witness in juxtaposition with the evidence of PW19 SI Rishi Pal and IO, PW23 SI Umesh Barthwal, then it becomes abundantly clear that the police did not try to contact him immediately on 29.10.2009, but contacted him for the first time only on 30.10.2009, i.e after arrest of accused MB and Mahinder Ayare. It is presumed that the extortionists would frequently change their mobile numbers, but it was not expected that a victim would change the same so frequently and in any case, in this case PW4 did not change his mobile number, then what stopped the police from keeping a surveillance upon his mobile number. There is ample material on record that the police did not try to investigate him during the period from 29.09.2009 to 30.10.2009, did not provide him any kind of security and even did not caution him. His statement was recorded for the first time on 03.11.2009 which is very strange. Then there is again a mysterious fact that why the CDR of "phone connection D" for one day only, i.e 29.10.2009 was stated by IO, PW23. Why Inspector Lalit Mohan Negi and Inspector Hriday Bhushan, who were the team leaders and had gone with the IO to Mumbai between 21.10.2009 to 30.10.2009 were not examined in the matter? Why no independent persons were joined during the arrest of the accused persons? All this leaves a lot to be desired on part of investigating State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 35 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 agency in such type of cases. Except for the disclosure statements of accused persons, there is virtually no material on record to connect them with the commission of crime in this case.
50. In case reported as, "1987 Crl.LJ , page 137", titled as, "Ramjee Singh V/s State of Bihar", the Hon'ble High Court of Patna has been pleased to lay down as under:
"In order to constitute an offence of extortion, there ought to be some visible overt act which may reflect the natural and normal inference that the wrong doer had, in fact, put a person or had made an attempt to put any person in fear of death or of grievous hurt. In absence, of any apparent overt act leading towards the act of extortion and thus putting putting any person in fear of death, or or grievous hurt, there could not be said to be on offence committed for extortion by threat. Without any visible sign of physical act, simply use of words is not enough to consitute that offence."
(emphasis supplied)
51. If the law laid down in the aforesaid judgment is applied to the facts of the present case, then it would be apparent that what to talk of any visible sign of physical act, there has been no material on record that even a threat, muchless threat for extortion was given to PW4 by any of the accused persons. The accused persons are accordingly acquitted of the charges in this case. "It is ordered accordingly". The B/Bs of accused Mahinder Ayare, Miraj Ahmed and Iftikar Ahmed @ Babloo are accordingly cancelled, their surety(ies) stand discharged. Endorsements, if any, either on the documents of these accused persons or their sureties be cancelled forthwith. Accused State V/s Prem Prakash Singh @ Munna Bajrangi & Ors. ("Acquitted") Page 36 of 37 FIR No.63/2009: U/s 387 IPC r/w Sec.120 B IPC: PS Special Cell DOD: 23.01.2012 Prem Prakash @ Munna Bajrangi be released from JC forthwith, if not required to be detained in some other case. The B/B of accused persons namely Mahinder Ayare, Miraj Ahmed and Iftikar Ahmed @ Babloo are extended for a period of six months in terms of Section 437 A Cr.P.C. Accused Prem Prakash @ Munna Bajrangi is directed to furnish a Bail Bond in the sum of Rs.10,000/ with one surety in the like amount, thereby giving an undertaking to appear before the higher court as and when the court issues notice in respect of any appeal or petition filed against this judgment. As accused Rizwan is "Proclaimed Offender", case file be preserved with the Record Room with the liberty to the prosecution to get the same revived as and when said accused is apprehended.
52. A copy of this judgment be supplied to all the accused persons free of cost forthwith. A copy of this judgment be also sent to concerned Jail Superintendent forthwith.
Announced in the open court (Vinod Yadav)
on 23.01.2012 Chief Metropolitan Magistrate:
Delhi
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