Delhi District Court
State vs . Pawan Kumar Arora on 27 March, 2023
IN THE COURT OF SH. SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020116492019
State Vs. Pawan Kumar Arora
FIR No. : 77/2003
U/s : 384 IPC
PS : Dwarka North
JUDGMENT
a) Sl. No. of the case : 7962/2019
b) Unique Case ID No. : DLSW020116492019
c) The date of commission of : 31.01.2003
the offence
d) Name of the complainant : O.P. Miglani S/o Sh. Bahadar Chand
R/o 249R, Model Town Panipat (Haryana)
e) Name, parentage & address : Pawan Kumar Arora s/oSubhash Chand Arora
of accused R/o WZ-5B, Phase-II, Om Vihar, Uttam
Nagar, New Delhi.
f) Offences complained of : 384 IPC
g) The plea of the accused : Pleaded not guilty
h) Final Judgment : Acquitted.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 1 of 24
i) Date of institution of case : 04.06.2003.
k) Date of Judgment : 27.03.2023.
BRIEF FACTS AND REASONS FOR DECISION:-
1. In brief, the case of the prosecution is that on or about 31.01.2003 at about 07.30 a.m. at main Najafgarh road, infront of Ganesh plywood, near Sahil music, mohan garden, the accused intentionally put the complainant O.P. Miglani and his son-in-law Dr. Shiv Chopra in fear of an adverse publicity to their hospital and maligning them on the pretext that the accused was a journalist working with a reputed media channel and thereby dishonestly induced the complainant O.P.Miglani to deliver to the accused an amount of Rs. 1,00,000/-.
2. The background of the prosecution case emanates from the facts that on 05.01.2003 one lady namely Smt. Radha visited the hospital of the son-in-law of the complainant and while she was waiting at the hospital waiting area, her health deteriorated and she fainted. Thereafter, due to some medical condition the said lady expired and later a case under Section 304-A Indian Penal Code, 1860 (hereinafter for brevity 'IPC') was registered against the son-in-law of the complainant, on the complaint of husband of the deceased. It is further alleged by the complainant that thereafter a few days later his son-in-law was contacted over mobile by someone who introduced himself as Pawan Arora, a reporter of news channel 'Aaj Tak' and threatened him that he was in possession of some material which if published would create trouble for the son-in-law of the complainant. It was upon the said threats of the accused that the son-in-law of the complainant got under fear FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 2 of 24 and contacted the complainant and also shared with him the mobile number of the said person.
3. It is thereafter, that the complainant got into touch with the accused and they met at a place namely 'Himalaya Sagar' on 24.01.2003 at 02:00 PM and upon being asked about his identity the accused refused to share with him his identity card and told him that he has been entrusted by none other than Prabhu Chawla with the instant case. It is further alleged by the prosecution that the accused threatened the complainant with words and induced him to handover an amount of Rs. 1,00,000/- failing which he would malign the image of his son-in-law and his hospital to the extent that he would be forced to close down his hospital.
4. It is thereafter that the matter was conveyed to the police authorities by the complainant and on 31.03.2003, a team was formed by Inspector Satyender Vashisht to nab the accused red handed. The complainant was thus asked by the police team to proceed as per the instructions of the accused and he was given two different bundles of Rs. 500/- rupee notes along-with four notes which were earmarked with signatures of Inspector Somender Tyagi, Incharge Special Staff and also two white paper slips were inserted in the said bundles of the notes, as an identification mark of the said bundles. Thereafter, the complainant reached the spot as per the instructions of the accused and a police team as aforesaid followed the complainant and nabbed the accused after he had taken the extorted amount from the complainant and the complainant had given the signal as previously directed by the police officials.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 3 of 24
5. Thereafter, on 04.06.2003 charge-sheet was filed in the court for offence under section 384 IPC and the accused was supplied complete set of documents. Thereafter, vide order dated 12.10.2007, charge for the offence punishable under Section 384 IPC was framed against the accused, to which, he pleaded not guilty and claimed trial.
6. In order to prove the charge against the accused, the prosecution has examined 07 witnesses. O.P.Miglani, who is the complainant, was examined as PW-1, HC Rajpal who was the Duty Officer, was examined as PW-2, ACP Someder Tyagi, Inspector Special Staff- West District was examined as PW-3, Inspector Satuender Vashisht IO of the case, was examined as PW-4, ASI Rajbir Singh, who was a part of the raiding team prepared by Inspector Satyender Vashisht was examined a PW-5, HC Kuldeep, MHCM who produced the register number 19, was examined as PW-6, and Dr. Shiv Chopra, son-in-law of the complainant who was the owner of the hospital was examined as PW-7 after an application under Section 311 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC') moved by Ld. APP for the State was allowed by the undersigned. The following documents were exhibited in the prosecution evidence:
(i) Complaint Ex.PW-1/A
(ii) Seizure memo containing bundle of notes recovered from the
accused Pawan Kumar Arora Ex.PW-1/B
(iii) Copy of the FIR Ex.PW-2/A
(iv) Endorsement on the rukka Ex.PW-2/B
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 4 of 24
(v) Handing over memo of the bundle of notes given to the
complainant to give to the accused upon demand Ex. PW-3/A
(vi) Personal search memo and seizure memo of identity cards and mobile phone recovered from the accused upon his arrest Ex.PW-3/B
(vii) Arrest memo of the accused Ex.PW-3/C
(viii) Rukka Ex.PW-4/A
(ix) Disclosure statement of the accused Ex. PW-4/B
(x) Register entry number 2225/03 of register number 19 produced by MHCM as per which case property of the instant case i.e., one ID card of Police Samachar Seva reporter, one ID card of Press Anubhavi Ankhey and one ID card of Shri Manav Sharam Ram Leela Committee and one nokia phone were seized by the IO. The register entry was Ex. PW-6/A
7. One prosecution witness namely SI Mahavir who was also a part of the raiding team was dropped from the list of witnesses as his role was already covered in the testimony of PW-3 and PW-4. Thereafter, after all the prosecution witnesses were examined PE was closed on oral submission of Ld. APP of the State vide order dated 24.11.2022. However, later on 14.12.2022 Ld. APP for the State moved an application under Section 311 CrPC for calling Dr. Shiv Chopra as prosecution witness as he had never been joined in the investigation by the IO and upon the application being allowed FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 5 of 24 he was examined, cross-examined and discharged on 24.02.2023. Thereafter, again the PE was closed on oral statement of Ld. APP for the State.
8. The statement of accused under section 313 CrPC was recorded on 17.03.2023 wherein he denied deposition of witnesses against him being false and interested witnesses. Accused did not lead any defence evidence.
9. Arguments heard. Record perused and considered carefully. I have also gone through Section 384 IPC which provides as under:
"Punishment of extortion. - Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
10. As per the prosecution story PW-1, PW-3, PW-4, PW-5 and PW- 7 are the material prosecution witnesses. Testimony of PW-1 and PW-7 being the complainant Sh. O.P.Miglani and Dr. Shiv Chopra, incident at whose hospital is at the center of the instant case is being discussed hereinbelow for a better appraisal of the issue at hand.
11. PW-1 Sh. O.P.Miglani deposed that his son-in-law used to operate a clinic in mohan garden in Delhi in 2003 and on 05.01.2003 one lady Ms. Radha who visited the said hospital, fainted while waiting in the OPD and was also given first-aid by him but she later succumbed to her medical problem and a case under Section 304-A IPC was also registered against Dr. Shiv on the complaint of husband of the deceased. PW-1 further deposed that on 20/21.01.2003 one person who disclosed his name as Pawan Kumar Arora visited the said nursing home, which was found closed and then the accused FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 6 of 24 contacted the minor grand-son of the complainant namely Aman and introduced himself as a reporter of AajTak and also gave his contact number to the said child and asked him to inform his father to contact the said number otherwise he will broadcast news and ruin him. It was further deposed by PW- 1 that the accused thereafter again telephonically contacted Dr. Shiv Chopra and threatened him that he was having sufficient material against him and that he would come to the hospital and malign him through media. PW-1 also deposed about a meeting between himself and the accused on 24.01.2003 at 'Himalaya Sagar Restaurant' wherein the accused even upon being asked did not show his credentials to the complainant. On the said date, the accused also threatened the complainant that if he was not given Rs. 1,00,000/- he would give adverse publicity to the PW-1's son-in-law. Upon being shown inability by the complainant he agreed to give him two day time to arrange the money. PW-1 further deposed that he contacted Prabhu Chawla regarding the identity of the accused and he was informed by him that they are not genuine reporters. PW-1 further deposed that on 29.01.2003 he contacted the accused over phone and also tapped the said conversation in his pencil recorder and thereafter a meeting was fixed for 31.01.2003 for 7 PM and the accused also gave an address to him and also threatened him that if did not turn up to the appointment 10 persons will approach the clinic of his son-in-law and do negative publicity. It was thereafter that the complainant gave his complaint in writing to the DCP, West exhibited as Ex. PW1/A. PW-1 further deposed that after receiving the complaint he was sent to police office, Tagore garden where he met Inspector Satender Tyagi and Inspector Surrender. He further deposed that thereafter a raiding party FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 7 of 24 was formed by Inspector Tyagi consisting of the complainant, HC Mahavir, Ct. Ravi and Ct. Tejbir. He further deposed that the Inspectors made two bundles of currency with five hundred rupees notes on either side of the two bundles, wrapped them in white paper and gave the same to PW-1 and thereafter the complainant was asked to go to the appointed place near Sahil music shop, Najafgarh road where the accused had asked the complainant to meet. He further deposed that the raiding party also followed him and he reached the spot at about 6:30 PM on the appointed day i.e., 31.01.2003. He further deposed that the accused came to the spot about 7:10 PM and asked the complainant to handover the money, which was then handed over to him by the complainant. PW-1 further deposed that thereafter as previously agreed upon by the police officials he gave an indication to the raiding party by touching his head, who rushed to the place and caught hold of the accused. PW-1 further deposed that the raiding party also recovered the said bundles from the right pocket of the pant of the accused after a cursory search. He further deposed about the documentation of arrest of the accused and thereafter came back to the PS. PW-1 correctly identified the rupee five hundred notes in the Court and also correctly identified the mobile phone recovered from the accused.
In his cross-examination by Ld. defence counsel PW-1 deposed that he was informed about the threatening in the second week of January, 2003 by his son-in-law at which time he was in Panipat, Haryana, he further deposed that he was informed telephonically and a mobile number was also shared by his son-in-law. He further deposed that on 24.01.2003 he came to Delhi to meet the accused at the 'Himalaya Sagar restaurant' for a meeting, FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 8 of 24 where he went alone. He further deposed that his son-in-law had not given any complaint to the police in this regard and that he only informed the complainant. PW-1 further denied the suggestion that lady named Radha had expired in the hospital of his son-in-law and when there was no compromise arrived with the deceased's family the accused was falsely implicated in the instant case. He further deposed that his son-in-law was discharged in the said case. However, he was not able to recollect the FIR in which his son-in-law was discharged. PW-1 further deposed that the IO had not recorded the statement of his son-in-law in his presence. He also deposed that he did not produce his grand-son before the police as the accused had first met him as he was not asked by the police to do so. He further deposed that as far as he knew Prabhu Chawla was never contacted by the police regarding this case. He further stated that his son-in-law is running a clinic by the name of Shiv Om clinic. He further deposed that he had not provided any document to the police regarding the treatment given to her at his son-in-law's clinic. He further deposed that at the time of the incident his grand-son was about 13-14 years of age and further stated that he did not know if his grand-son had noted down the number given by the accused in a diary or not. He further deposed that on 24.01.2003 he had given the bill at Himalaya Sagar restaurant and had not provided the said bill to the IO. He further deposed that one Ct, one HC were in uniform in the raiding party and one Inspector was in civil dress. He further deposed that he went to the spot in his own vehicle and the police in its own vehicle. He further stated that the raiding party took about an hour to reach the spot and stated that the place of occurrence was a market. He further deposed that he did not know if the IO had asked any public person to join the raiding team or not. He further deposed that he had not attached the CD of the FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 9 of 24 conversation recorded by him along-with his complaint. He voluntarily stated that he had offered to give it at the time of recording of his evidence. He further stated that he had not provided the said CD to the IO during the investigation. He further deposed that he had no knowledge if the number provided to him actually belonged to the accused or not. PW-1 lastly denied the suggestions of false implication of the accused.
12. PW-3, Inspector Somendra Tyagi deposed that he was posted as Inspector, Special Staff, West district when he was approached by the complainant along-with one complaint relating to extortion, which was marked to SI Satyendra Vashisht by him. He further deposed that he called SI Satyendra Vashisht to his office and gave to him four rupee five hundred currency notes, however he did not remember the exact serial numbers on the said notes. He stated that he had put his signatures on the said notes and then handed over the same to SI Satyendra Vashisht, who in turn made two bundles and put the said notes at bottom of each bundle. He further deposed that handing over memo of the said bundle was prepared vide Ex. PW-3/A consisting his signature at point A. He further deposed that thereafter a raiding party was constituted consisting of himself, HC Rajbir, HC Mahavir, SI Stayender and the party proceeded to Uttam Nagar in Govt. vehicle. It is further deposed by PW-3 that when they reached near the spot as instructed by the accused to the complainant, he further deposed that the IO/ SI Satyender Vashisht asked the public persons to join the raiding party but they refused without stating their names and addresses. He further deposed that SI Satyender Vashisht had asked the complainant to give an indication by keeping a hand over his head after he had given he extorted amount to the FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 10 of 24 accused. He further deposed that thereafter they parked their vehicles at a safe distance and about half an hour later a person came to the complainant, talked to him for a few minutes and thereafter the complainant gave the indication as previously agreed. He further deposed that thereafter they came at the spot and apprehended the accused. PW-3 further deposed about the apprehension and personal search of the accused and deposed along the same lines as that of PW-1.
PW-3 in his cross-examination by Ld. defence counsel deposed that the complaint was addressed to DCP West initially and was later as per the directions of the DCP was put in touch with the PW-3. PW-3 further deposed that he personally did not make any enquiries from the son-in-law and daughter of the complainant. He further deposed that the white plain papers which were put in between the currency no sign nor any identification mark was left in the said paper. He further deposed that IO did not ask any public persons in his presence to join the raiding party. He further deposed that his statement was recorded by the IO at the spot and the site plan was also prepared at the spot. He further deposed that he had not signed at the site plan and neither on any of the memos. He lastly denied the suggestion that the accused has been falsely implicated in the instant case.
13. PW-4 IO/ Inspector Satyender Vashisht deposed along the same line in his examination-in-chief as that of PW-3. Hence, his examination-in- chief is not being reiterated herein for the sake of brevity.
In his cross-examination by Ld. defence counsel PW-4 deposed that he did not know as to who had marked the complaint to Inspector FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 11 of 24 Somendra Tyagi. He further deposed that the complaint was marked to him for investigation on 31.01.2003 only. He further deposed that he did not have any idea whether the said complaint mentioned about Radha or not. He further deposed that he had not joined Dr. Shiv Chopra in the investigation of the case at any point of time. He further deposed that he had no personal knowledge as to the details about the incident of one Radha. He further submitted that no records as to the details of the mobile number were collected by him during the course of the investigation. He further deposed that he prepared the 98 plain papers which were kept along-with the currency notes and it took him merely an hour to complete the said work. He further deposed that Inspector Somendra Pal Tyagi was not part of the raiding team and no public witnesses were made part of the raiding team. He further deposed that he reached the spot at about 6:30 PM and accepted as correct the suggestion that there is a market nearby the place of incident. He further deposed that he requested 4-5 public persons to join the raiding team but they all refused citing their personal difficulties. He further deposed that he did not remember the number of private car in which O.P.Miglani came to the spot. He further deposed that he did not know if the complainant was using his mobile at the time of the incident or not. He further deposed that he did not remember if the complainant had made a call to the accused or not. He further denied the suggestion that the accused was apprehended from his home and later on the instant case was falsely implicated upon him. He further denied the suggestion that there was no transaction of money between the accused and the complainant.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 12 of 24
14. PW-5 ASI Rajbir deposed along the same lines as that of PW-4 and his role was only of assistance of the IO/ PW-4. In light of the same, the testimony of PW-5 is not being discussed hereinbelow in detail. In his cross- examination by Ld. defence counsel he deposed that supplementary statement of the owner of Shivam hospital was recorded by the IO in his presence. He further deposed that the raiding team left the office at 6:00 PM and reached the spot at about 07:00 PM. He further deposed that the IO did not request any public person to join the investigation and also stated that he did not sign on the personal search memo of the accused. He further deposed that the IO had not told the accused that he is about to search him or did not even give the accused an opportunity to search the IO prior to his search. He further deposed that the IO informed the father of the accused about his arrest in his presence at about 10:40 PM. He further deposed that he did not know whether the arrest memo of the accused bears the signature of his father.
15. PW-7, Dr. Shiv Chopra deposed in his examination in chief that he did not remember the exact date of the incident, but it was around 2003. He further deposed that he received a telephonic call on his landline in the clinic and the person revealed the name as Pawan Kumar Arora and the said person disclosed that he had some material information with regard to the patient who came in the OPD in his clinic and was sent to DDU later on, where she expired. He further deposed that thereafter he was threatened by the said person with dire consequences and he was told that the person is a reporter from Aaj Tak. He further deposed that the accused revealed the mobile number to him, which he in turn gave to his father-in-law and also narrated the entire facts to him.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 13 of 24 In his cross-examination by Ld. defence counsel he deposed that he remembers the name of the patient with regard to whose death he was being extorted. He further deposed that she was examined in OPD and thereafter sent to DDU hospital. He further deposed that he had not made any call at number 100 upon receipt of the said call nor had he given any written complaint to his father in law or the police. He further deposed that he had never joined the investigation in the instant case and was never interrogated by the police in regard to this case.
16. For a better appraisal of the issue at hand, the gravamen of the offence of extortion needs be enunciated. The ingredients of the offence of extortion are the following: (i) That the accused must have put the complainant in fear, (ii) of injury, (iii) to the complainant or to any other person, (iv) to dishonestly induce the person, and (v) to deliver to any person any property or valuable security or anything that may be converted to valuable security.
17. PW-1 deposed regarding the factum of background of the case and also deposed in court that one person namely Pawan Kumar Arora visited his son-in-law's clinic and when it was found locked the person contacted the minor son-in-law of the complainant and gave him his number and also asked him to tell his father to call him. He also deposed regarding the factum of his son-in-law receiving a threatening call telling him that he will be ruined if he did not comply with the demands of the accused. It was further deposed by PW-1 that thereafter his son-in-law informed the complainant/ PW-1 and he got in touch with the accused on the mobile number provided by him and FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 14 of 24 thereafter the accused was nabbed by a covert plan executed by police personnels and the IO. At this stage, it is pertinent to note that the complainant himself is a resident of Panipat, Haryana and he was told about the threatening by his son-in-law on phone. It is incomprehensible as to how and why a person who is a resident of Panipat would come all the way from his home town for registration of complaint and still the main individual i.e., his son-in-law never joined in on the complaint.
18. Another aspect of prosecution story that raises question regarding the same is that the complainant himself told in his examination-in- chief that the accused firstly met his minor grand-son who was 13-14 years of age at that time and gave him his number. However, the IO for the best of his understanding chose not to join the said child in the investigation of the case, nor got a TIP of the accused conducted by the said child. Furthermore, there is not even a word about the investigation of the case from the grand-child of the complainant.
19. This court also fails to understand as to why the IO has not placed on record any CAF details of the mobile number of the accused on record, which was allegedly used by him to threaten the complainant and his son-in-law. Furthermore, the IO has also chosen not to place on record the CDR of the accused's or the complainant's mobile number showing that there was exchange of calls between the said mobile numbers. Furthermore, Dr. Shiv Chopra who was allegedly threatened in the first place and never joined in investigation of the case by the IO was summoned by the Court on the application of Ld. APP for the State and he deposed that he received a call on clinic's landline number, from a person stating himself to be Pawan Kumar FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 15 of 24 Arora. However, the landline number of the clinic and its CDR was never examined by the IO or placed on record to show that threatening call was actually made to him. Furthermore, that also shows the contradiction between the deposition of PW-1 and PW-7 as PW-1 deposed that he contacted the accused on his mobile number provide by him to his grand-son.
20. Furthermore, there are other glaring inconsistencies in the prosecution story as PW-3 Inspector Somendra Tyagi deposed that he was a part of the raiding team formed by the IO/ SI Satyender Vashisht whereas it was deposed by the IO that the PW-3 was not a part of the raiding team formed by him and did not join them at the place of apprehension. Furthermore, PW-3 also appears to be a planted witness as there is no signature by him on any memos made by the IO after the arrest of the accused or any documents prepared by the IO.
21. It also needs to be appreciated that there is no other witness qua the offence of Section 384 IPC other than PW-1/ the complainant. However, as discussed above there are various inconsistencies in the deposition of PW- 1 compared to that of other PWs and also to that of the prosecution story. It is not clear as to why the PW-1 never told the IO about the threat given by the accused to his grand-son. PW-1 also deposed in his cross-examination that he had earlier met the accused at 'Himalaya Sagar restaurant' where the alleged threat was extended by the accused and had also paid the bill at that place however, he never showed or placed on record any bill of the same showing that there was any prior meeting between the two parties. Furthermore, the complainant/ PW-1 also deposed that he had tapped the conversation with accused over the phone in a pencil recorder and also deposed in his cross- FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 16 of 24 examination that the same or its CD was not provided by him to the IO. This court fails to understand as to why the complainant will hold back such a peculiar piece of evidence which may help in establishing the guilt of the accused. However, the same has never been placed on record or seized by the IO and thus the question of sending the same for examination of voice sample by an expert does not arise at all. PW-1 also deposed that he had no personal knowledge that the mobile number provided to him actually belonged to the accused or not.
22. It is clear from the testimony of prosecution witnesses that they had joined the raiding team formed by the IO with other police officials and on the date of incident, they left the PS with other police officials for reaching the place where the complainant was called by the accused. After reaching the said place, accused was arrested by the police party at the instance of the complainant. Be that as it may, now if the said police officials were not present within the office at the time of the alleged recovery/ apprehension and rather admittedly were outside the police station, then as per Punjab Police Rules, they being on duty were required to enter their departure & arrival in the D.D. Register.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No.II - The following matters shall, amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 17 of 24 whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note:- The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
Now, in the present case clearly the above said provision appears to have not been complied with in respect of the departure and arrival of the said police officials of the raiding team. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the required D.D. entries, so as to establish the presence of the said police officials at or near the place of the recovery. It is also worth mentioning that as per the case of the prosecution that police officials who apprehended the accused were posted at PS Uttam Nagar at the time of incident. However, no DD entry in support of this fact has been placed on record which the said police officials had left the office/ PS before the recovery and by which they had arrived at PS after the apprehension of accused and recovery from him, so as to inspire the confidence of the Court regarding their joint availability/presence at the place of apprehension of the accused and the recovery of the bundle of notes from him, since the said police officials were under bounden duty to enter their departure & arrival entries in that respect as per the aforesaid mentioned Punjab Police Rule.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 18 of 24 At this juncture, it would be relevant to refer to a case law reported as Rattan Lal Vs. State (1987 (2) Crimes 29), wherein the Hon'ble Delhi High Court had observed as under:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery"
23. Moreover, another aspect of the prosecution story that raises sufficient doubt in the mind of this court is that though the incident of apprehension of accused and forming of raiding party is stated to be around 07:00 PM at a busy marketplace but no public person has been joined in the investigation or in the raiding party by the IO. All prosecution witnesses in their cross-examination stated that there were public persons present at the place of incident at the time of incident however they were not joined in the investigation by the IO; furthermore they were also not given any notice to join the investigation. From a perusal of the record, no serious effort for FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 19 of 24 joining public witnesses appears to have been made. It is a well-settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of Cr.P.C also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 20 of 24 joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
24. The testimony of the recovery witnesses of the police have also brought nothing on record so as to even remotely suggest that before effecting the recovery of the case property i.e., bundle of notes from the accused, the said police officials had offered their own personal search, either to accused person or to any other member of the public/family members of accused present at the spot of the respective recoveries.
At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa wherein the following was held :-
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 21 of 24 personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cr. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by above said case law, the possibility of false planting of the case property by the police party against accused cannot be ruled out beyond doubt, which makes the story of prosecution qua the recovery of the case property from the person of the accused highly doubtful.
This court also cannot lose sight of the fact that the white paper sheets which were put in between the currency notes by the IO in the bundle prepared by him also did not have any identification mark on them and thus it cannot outrightly be said that the ones produced in court were actually the case property of the instant case.
FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 22 of 24
25. In the judgment titled as S. L. Goswami v. State of M.P reported as 1972 CRI. L. J. 511 (SC) the Hon'ble Supreme Court held :
"......In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. ....."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 23 of 24 Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC).
26. After considering the deposition of PW-1 and all other witnesses, which have glaring inconsistencies, I am of the considered view that the depositions of witnesses raise serious doubts and it is difficult to believe their deposition.
27. In view of above discussions, I am of the considered view that the prosecution failed to prove its case against the accused beyond reasonable doubts. It is well settled law that benefit of doubt always goes in favour of the accused.
28. Accordingly, accused Pawan Kumar Arora is acquitted of the charge of offences u/s 384 IPC. File be consigned to record room after due compliance.
Digitally signedAnnounced in the open Court SANKALP by SANKALP KAPOOR today i.e. on 27th March 2023. KAPOOR Date: 2023.03.27 16:49:12 +0530 (Sankalp Kapoor) Metropolitan Magistrate-06, South-West District/Dwarka Court New Delhi FIR No. 77/2003 State Vs. Pawan Kumar Arora Page No. 24 of 24