Delhi District Court
State vs Ajay Etc on 10 July, 2014
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN: ASJ
( ELECTRICITY):NW DISTRICT:ROHINI: DELHI
FIR no. 74/07
Unique Case ID no. 02404R0044282008
Police station : Prashant Vihar
U/S 170/171/465/471/474/384/34IPC & 120BIPC
& 138 of the Electricity Act, 2003
State V/s Ajay etc
1. Session Case no. : SC no. 121/08
2. Name of the accused 1. Mahipal S/o Shri Richpal R/o 185
and parentage : West Sant Nagar, Burari, Delhi
2. Panna Lal @ Raj Bhatia S/o Shri Jai
Singh R/o House no. 12, Surender
Colony, PartII, Village Jharoda,
Delhi.
3. Sunil S/o Raju R/o H. no. 16, Gali
no. 15, Bangali Colony, Sant Nagar,
Burari, Delhi.(declared proclaimed
offender vide order dated
26/05/2010)
4. Ajay Kumar S/o Shri Salik Chand
R/o Gali no. 12, Jharoda Village,
Delhi.(expired, proceedings
dropped vide order dt. 22/09/2010)
3. Date of commission of : 22/01/2007
offence
4.Arguments concluded : 22/05/2014
on
5. Date of Judgment : 10/07/2014
6. Final Order : Acquitted
JUDGMENT
(1) The prosecution case in brief is that on 22/01/2007 at about 1.00pm, four persons came to the residence of complainant FIR no. 74/07 State Vs Ajay etc Page no. 1 / 22 Shri Deepak Jain at 675, Vir apartment, Sector13, Rohini, Delhi and told his mother that they were from NDPL. At that time Smt.Kamlesh Jain, mother of the complainant and Smt. Shilpi Jain wife of the complainant were present in the house. Smt.Shilpi Jain on ringing the door bell opened the gate on which two of the boys showed her their identity cards of NDPL and told her that they had come to check their meter. In the presence of Smt Shilpi Jain those two persons broke open the seals of the meter and thereafter claimed that the meter was tampered. When mother of the complainant asked those boys as to why they have broken the seals of the meter, they told that it was their routine work. Thereafter, they took the mother of the complainant to her flat and told that there would be a bill of Rs. 8 lacs and in case an amount of Rs. 4 lacs were paid to them, no action would be taken in the matter otherwise police case will be registered and the complainant would go to jail. In the meantime complainant Sh. Deepak Jain reached to his home and those boys extended threats to him and compelled to give Rs.75,000/ in cash. Those persons again came to Vir apartment on 27/01/2007 and he heard a noise in the society and came there and found that many persons gathered there and identified one of those boys namely Ajay who was the same person who has taken Rs.75,000/ from FIR no. 74/07 State Vs Ajay etc Page no. 2 / 22 him. Complainant thereafter lodged the complaint with the local police and on the basis of which an FIR has been registered under Section 384/34 IPC.
(2) On receiving DD no. 30A, SI K.P.Tomar alongwith Ct.Surender reached at Vir apartment where they found a crowd already gathered and among the crowd two persons namely Ajay and Sandeep were handed over to him. Complainant Sh. Deepak Jain also met him at the spot who gave the written complaint as Ex.PW2/A to him and a case was got registered by Ct. Surender. From the possession of accused Ajay (now expired) one identity card of NDPL as Ex PW8/C was recovered.
(3) During further investigation, both the accused made their disclosure statements and on the basis of disclosure made by accused Ajay, accused Mahipal was arrested. Accused Mahipal got recovered a sum of Rs. 1200/ in cash and Sandeep got recovered a sum of Rs. 1300/ in cash from their respective houses which were taken into possession. Both the accused were put for test identification parade but they refused it. (4) After completion of investigation a chargesheet for the offences under section 384/34, 147, 171, 465, 471 IPC and section 138 of the Electricity Act, 2003 was filed before the Ld MM, Delhi on 28/03/2007.
FIR no. 74/07 State Vs Ajay etc Page no. 3 / 22 (5) Accused Sunil and Panna Lal who were shown in column no. 2 in the chargesheet were also summoned and NBWs were also issued against them for 12/04/2007. (6) Accused Panna Lal@ Raj Bhatia has appeared before the Ld MM,Delhi on 13/05/2007 in pursuance to NBWs and with the permission of the court he was arrested by the IO. (7) On 17/5/2008 Shri Amit Bansal, Ld MM, Delhi sent the case to the Ld Judge Incharge, Rohini court, Delhi for assigning it to the Special Electricity Court. (8) On 19/05/2008, Ld Judge Incharge, Rohini, Delhi assigned the case to the Predecessor of the Court Shri D.K.Malhotra.
(9) NBWs of accused Sunil were issued by the Ld Predecessor remained unexecuted and thereafter proceedings u/s 82/83 CrPC were issued against accused Sunil. (10) On 26/05/2010 Ld Predecessor of this court has declared accused Sunil as Proclaimed offender. (11) Accused Ajay Kumar was expired and proceedings against him were dropped on 22/09/2010. (12) On 19/04/2012 after hearing Ld counsels for accused persons, a charge for the offence u/s 120B, 170/384 IPC and Section 135 (d) of the Electricity Act, 2003 framed against them FIR no. 74/07 State Vs Ajay etc Page no. 4 / 22 to which they pleaded not guilty and claimed trial. (13) In support of its case prosecution has examined in total 10 witnesses.
(14) PW1 HC Rishi Prakash has proved the DD no. 30A as Ex. PW1/A regarding the apprehending of some persons impersonating themselves as NDPL employees. (15) PW2 Shri Deepak Jain is the complainant who has fully supported his compliant in his deposition by proving his complaint as Ex. PW2/A. (16) PW2 HC Banwari Lal has recorded the FIR and proved the same as Ex.PW2/A. (17) PW3 Ct. Raja Ram has proved the DD no. 58B as Ex.PW3/A. (18) PW4 Satish Yadav has verified the identity cards of the NDPL which were recovered from the possession of the accused persons by writing a letter as Ex. PW4/A to the SHO. He has further proved the copy of inspection report as Ex. PW 4/B, show cause notice as Ex. PW4/C and action taken report as Ex.PW4/D and verification report of Ajay Kumar Chauhan as Ex.PW4/E, report of genuineness of NDPL identity cards as Ex.PW4/F and list of employees by the name of Ajay Kumar and Sandeep Kumar as Ex.PW4/G. FIR no. 74/07 State Vs Ajay etc Page no. 5 / 22 (19) PW5 Smt. Kamlesh Jain is the mother of the complainant who has fully supported the prosecution case and corroborated the version of PW2 Deepak Jain (complainant). (20) PW6 Ct. Rishipal has joined the investigation with the IO at the time of recovery of Rs. 1300 i.e 13 currency notes of Rs. 100/ denomination from the possession of accused Ajay Kumar (since expired).
(21) PW7 HC Chanderpal has proved the arrest memo, personal search memo and disclosure statement of accused Mahipal vide Ex. PW7/A, Ex. PW7/B and Ex. PW7/C. He has further proved the recovery of currency notes of Rs. 1200/ i.e Rs.100 denomination from the possession of accused Mahipal as Ex.PW7/D and proved the currency notes as Ex. P7/P1 (collectively).
(22) PW8 Inspector K.P. Tomer is the IO of the case. He has fully proved the prosecution by preparing a tehrir as Ex. PW8/A, site plan Ex. PW8/B, seizure memo of recovered Identity card from the possession of accused Ajay Kumar as Ex. PW8/C, arrest memo of Ajay Kumar as Ex. PW8/D and his personal search Ex.PW8/E and disclosure statement as Ex. PW8/F and seized the recovered amount of Rs. 1300/ vide seizure memo Ex. PW8/G. (23) PW9 Ct. Surender Dev has joined the investigation FIR no. 74/07 State Vs Ajay etc Page no. 6 / 22 alongwith SI K.P. Tomar on 27/01/2007 and has fully supported the prosecution case and has corroborated the version of IO on all material points.
(24) PW10 Shri D.K. Jangala, Ld ADJ, Tis Hazari Courts, Delhi has conducted the TIP proceedings of accused Mahipal vide Ex. PW10/A. (25) In their statements u/s 313 CrPC, accused persons have denied all the allegations stating that they were innocent and falsely implicated in this case and accused Sandeep in support of his defence examined DW1 Smt Savitri and other accused did not desire to lead evidence.
(26) I have heard Shri S.K. Tyagi advocate, Ld counsel for accused Mahipal who has argued that accused persons have falsely implicated and case of the prosecution is not proved against them because of the following reasons: I. There are contradictions in the statement of the complainant with the IO as complainant stated that he gave the complaint in the Police Station whereas IO stated that complaint was given on the spot.
II. Complainant did not name accused Mahipal in his examination inchief and he was shown to the witnesses in the Police Station when FIR no. 74/07 State Vs Ajay etc Page no. 7 / 22 complainant lodged the complaint there.
III. Accused Mahipal was not arrested at the spot and was falsely arrested from his house and was shown to the witnesses in the Police Station when complaint allegedly given there to lodge a complaint.
IV. Recovery of Rs. 1200/ from accused Mahipal was planted as nothing was recovered from his possession.
V. Mother of the complainant did not identify accused Mahipal in evidence.
(27) Shri L.S.Saini Advocate, Ld counsel for accused Panna Lal @ Raj Bhatia and Sandeep Garg who has argued that the accused persons have been falsely implicated in this case and the prosecution has not proved its case against them because of the following reasons: i. No evidence against accused Sandeep because PW9 Ct.Surender stated that accused Sandeep was not accused in case and PW8 SI K.P.Tomar also stated same things in his crossexamination.
ii. PW8 SI K.P.Tomar stated that he has not carried out investigation FIR no. 74/07 State Vs Ajay etc Page no. 8 / 22 against accused Panna Lal except issuance of NBWs iii. PW2 Sh. Deepak Jain has stated that the incident was on 22/01/2007 but compliant was lodged on 27/01/2007 and he remained silent for about 5 days and there is no explanation in that regard which cast a shadow of doubt in the prosecution case.
iv. Complainant PW2 Deepak Jain is not reliable as he indiscriminated and cleverly implicated the accused persons.
v. PW2 Deepak Jain was not the witness to the alleged incident and whatever he has deposed is hearsay as told to him by his mother and wife.
vi. His wife Smt Shilpi Jain has not been examined as witness and his mother Smt Kamlesh Jain has deposed nothing against accused persons.
Hence, entire case is false and not proved as per law by proving cogent evidence.
vii. No TIP was got done by accused Panna Lal @ Raj Bhatia and his identification for the first time in the court is not admissible in the eyes of law.
viii. Identity of accused Panna Lal is disputed in the light of deposition of FIR no. 74/07 State Vs Ajay etc Page no. 9 / 22 Deepak Jain PW2 because he has identified him as Ajay and on the next date i.e 18/10/2012 he has identified accused Panna Lal at the instance of IO who has concocted him as he was examined after 5 months.
ix. The chowkidar register of the
society gate was not seized to find out
if entries by the accused persons were
made or not.
x. PW5 Smt Kamlesh did not
identify the accused persons in her
deposition.
xi. PW8 IO/SI K.P.Tomar admitted
that he did not seize the register of the society gate regarding entries which shows that no investigation was carried out and nothing was recovered from the spot.
(28) I have considered the rival submissions and carefully examined the evidence on record.
(29) In this case four persons i.e Sunil, Panna Lal @ Raj Bhatia, Ajay and Mahipal were made accused in the chargesheet. Proceedings against accused Ajay Chuahan abated on 22/09/2010 as he has expired. Accused Sunil was declared Proclaimed Offender vide order dated 26/05/2010 by Ld Predecessor. Thus only accused Mahipal and Panna Lal @ Raj Bhatia are facing FIR no. 74/07 State Vs Ajay etc Page no. 10 / 22 trial and has been chargesheet for the offence u/s 120B IPC, u/s 170, 171, 465, 471, 384 IPC and u/s 138 of the Electricity Act, 2003.
(30) I have carefully examined the evidence led by the prosecution to find out whether the prosecution has succeeded in proving its case. I proceed to discuss the charge one by one . (31) Charge u/s 120B IPC i.e criminal conspiracy : It is alleged that accused persons have entered into criminal conspiracy to extort money from the bonafide consumers of the NDPL by tampering their meters and pretending themselves as NDPL employees by showing their fake identity cards and further under threats used to extort money from the bonafide consumers and in that process accused persons reached the house of the complainant where his mother and wife were present and has shown their identity cards that they were from NDPL and they have to check their meters. It is deposed by PW5 Smt Kamlesh Jain, mother of the complainant that on 22/01/2007 when she was present in her house at about 12.30pm four boys came to her house and told that they had come from NDPL and then she asked them to show their identity on which they have shown their identity cards to her and they told her to get her electricity meter checked; she came down stairs where their meter was installed; FIR no. 74/07
State Vs Ajay etc Page no. 11 / 22 on checking the meter they broke the seals of the meter and thereafter told that the seals of their meter were broken; she told them that seal of their meter were intact and they had broken the same; she called her son Deepak Jain by making a phone; the said four boys told her to pay Rs. 8 lacs and if they want to make a settlement, they have to pay Rs. 4 lacs to them; they have also threatened that if they did not make the payment then six months imprisonment may also be possible; they become afraid and under compulsion they arranged money of Rs. 75,000/ and her son Deepak Jain handed over the same to the said four boys. PW5 Smt Kamlesh Jain has partially identified accused Mahipal stating that he may be one of them but she was not sure. She could not identified accused Panna Lal and third accused Ajay who has already expired during trial.
(32) PW2 Deepak Jain/complainant has supported the deposition of his mother PW5 Smt Kamlesh. He further deposed that he reached to his home within 1015 minutes when called by his mother; when he reached his house those four persons told him that if he paid a sum of Rs. 4 lacs, then the matter would be settled; when he told them that he was not in a position to pay a sum of Rs. 4 lac and they have broken the seals of the meter then they threatened him to call their seniors for registration of an FIR FIR no. 74/07 State Vs Ajay etc Page no. 12 / 22 against him. He further stated that out of fear he arranged a sum of Rs. 75000/ within one and half hour and paid the same to those four persons. He further deposed that on 27/01/2007 he heard notice in the society and he came downstairs and found many persons present there and they were searching one person and after apprehension of the said person he identified him as he had visited his house also on 22/01/2007 and he revealed his name as Ajay. PW2 Deepak Jain correctly identified accused Mahipal stating that he had demanded money from him and as Ajay took away the said amount of Rs. 75000/ from him. Complainant has identified accused Panna Lal as Ajay. His further examination in chief was deferred as Ld Addl. PP for the State wanted to call the IO. On 18/10/2012 while recording further examinationinchief PW2 Deepak Jain identified accused Panna Lal stating that accused Mahipal and Panna Lal were the same persons who were involved in the incident dated 22/01/2007. In his crossexamination by Ld counsel for accused Mahipal he has stated that he handed over Rs. 75000/ to Mahipal or Ajay after arranging from one his known person. In his cross examination by Ld counsel for accused Panna Lal @ Raj Bhatia, he has admitted that he was not present in his house at the time of incident and all the facts were narrated by his wife only. He FIR no. 74/07 State Vs Ajay etc Page no. 13 / 22 further deposed that he himself visited the police station when his statement was recorded on 27/01/2007. He further stated that his wife and mother never visited the Police Station and he was not aware about the names of the accused persons at that time and names of the accused persons were disclosed to him by the police. He further admitted that he has not given any complaint regarding the incident on 22/01/2007 on the same day. He further stated that two boys Ajay and Sandeep were having their identity cards and the names and their photos were affixed on the same. It is thus clear that accused Panna Lal and Mahipal were not having identity cards. Even during investigation no such identity card has been recovered. PW5 Smt Kamlesh Jain mother of complainant who was present at the time of incident has not clearly identified accused Mahipal and she has failed to identify accused Panna Lal.
(33) The deposition of PW2 Deepak Jain regarding identity of the accused persons is not coherent and straight forward because in his crossexamination he has admitted that he did not know the names of the accused persons and their names were told to him by the police when he visited at Police Station on 27/01/2007. He has also admitted that he was not present at the time of incident and all the facts were narrated to him by his wife FIR no. 74/07 State Vs Ajay etc Page no. 14 / 22 only. Moreover, there is no explanation given by the complainant as to why complaint was not lodged with the police on the same date i.e 22/01/2007. Therefore, in the absence of sufficient evidence brought on record, the prosecution could not establish that accused Panna Lal, Mahipal, Ajay and Sandeep had committed the offence in furtherance of criminal conspiracy hatched by them. It is so because prosecution has failed to prove the incident dated 22/01/2007 beyond reasonable doubt as material witness i.e PW5 Smt Kamlesh Jain could not identify accused persons properly and her deposition is not coherent with regard to the entire incident. Wife of complainant Ms. Shilpi Jain who was present at the time of incident was cited as witness, has not been examined as witness as she was dropped by the prosecution being repetitive witness. (34) Offence u/s 170 IPC r/w/s 120B IPC: It is deposed by PW5 Smt Kamlesh Jain that after breaking the seals of the meter all the four boys demanded Rs. 8 lacs and in case they wanted to settle the matter they had to pay Rs. 4 lacs and otherwise they had to face imprisonment of six months. She further deposed that she called her son by making a phone. Out of fear they paid Rs. 75000/ and handed over the same to those four boys. She further deposed that four boys came to her house and stated that they FIR no. 74/07 State Vs Ajay etc Page no. 15 / 22 were NDPL employees and she asked them to show their identity and they have shown their identity cards and then she allowed them to check the meter and in that process of checking the meter they have broken the seals. She admitted in her crossexamination that she has seen the identity cards from a distance and not minutely and no identity card was recovered from the possession of accused Mahipal and Panna Lal. The identity cards were recovered in case FIR no. 75/07 from accused Ajay Chauhan and Sandeep Garg and accused Ajay has already expired and proceedings against him has already been abated. Accused Panna Lal is not at all identified by any of the witness in this case because on 23/05/2012 PW2 Deepak Jain has identified accused Panna Lal as accused Ajay and Ld Addl. PP for the State got his examination in chief deferred to call the IO and when he deposed on 18/10/2012 after appearance of IO, he has moreover identified accused Panna Lal and Mahipal stating that they were the same persons who were involved in the same incident on 22/01/07. This identification of accused persons on 18/10/2012 can not be said to be beyond reasonable doubt because witnesses have been tutored by the IO and they have identified the accused persons at the instance of IO who was called by the Ld Addl. PP for the State while seeking adjournment for examinationinchief. It is FIR no. 74/07 State Vs Ajay etc Page no. 16 / 22 further argued that in his crossexamination complainant/PW2 has clearly stated that on 22/01/2007 he was not aware of the names of any accused persons and their names were told to him by the police on 27/01/2007 when he went in the Police Station for recording statement. PW5 Smt Kamlesh Jain, mother of the complainant who was present at the time of incident could not identify both the accused persons correctly and Ms. Shilpi Jain wife of complainant who was also present at the time of incident has not been examined as witness as she was dropped by the Ld Addl. PP for the State being repetitive witness. In the light of above deposition of the witnesses charge u/s 170/120B IPC has not been proved against the accused beyond reasonable doubt. (35) Extortion u/s 384 IPC: PW5 Kamlesh Jain deposed that the said four boys told her that they have to pay Rs. 8 lacs and if they want to make a settlement they have to pay Rs. 4 lacs to them otherwise six months imprisonment may also be possible. She further deposed that they become afraid and under compulsion they have made the payment of Rs. 75000/ and her son Deepak Jain handed over the same to those said four boys. But the witness could not identify accused Mahipal, Panna Lal as she has simply stated while seeing towards accused Mahipal that he may be one of them.
FIR no. 74/07
State Vs Ajay etc Page no. 17 / 22 (36) PW2 Deepak Jain in that regard deposed in his
examinationin chief that accused Mahipal demanded money and accused Ajay took a sum of Rs. 75000/ from him. He further stated that accused Panna Lal who was present in the court may be Ajay but he was not able to correctly identified him. This witness identified accused Panna Lal as Ajay. In his cross examination by Ld counsel for accused Mahipal he has stated that he handed over a sum of Rs. 75000/ to Mahipal or Ajay after arranging from one of his known person. The said witness was confronted with his statement Ex. PW2/A where the word "four persons" is mentioned and he has clarified that he has simply stated that Rs. 75000/ were taken by them. In his complaint Ex.PW2/A it is stated that one person who has told his name as Ajay Chuahan had taken away Rs. 75000/ from him. Thus, no complaint was made to the police on the date of incident against accused Panna Lal and Mahipal. This statement was made by him in the Police Station when name of the accused persons, admittedly, told by the police. In case accused Mahipal had taken away money from him, he must have named the accused in his complaint Ex.PW2/A. Moreover, it is argued on behalf of accused persons that name of the person from whom Rs. 75000/ was arranged by the complainant has not been mentioned for the FIR no. 74/07 State Vs Ajay etc Page no. 18 / 22 reasons best known to him which shows that no such transaction has taken place and no incident took place on 22/01/2007. It is further argued that in case the incident of breaking open the seals and extortion of Rs. 75000/ took place there is no explanation by the complainant as to why police complaint was not lodged on the said date. Ld Addl. PP for the State pointed out that a sum of Rs. 1200/ and Rs. 1300/ were recovered from the possession of accused Mahipal which was extorted amount. Neither the said currency notes have been identified by the complainant nor complainant claimed the said amount. As there is no evidence on record therefore contention of Ld Addl. PP for the State is not tenable.
(37) The evidence as discussed above shows that the charge u/s 384 IPC has not been established beyond reasonable doubt against accused persons.
(38) The offence u/s 138 (d) of the Electricity Act, 2003:
PW5 Smt Kamlesh Jain is the only eye witness to the alleged incident of breaking the seals of the meter of the complainant by the accused persons. She has failed to identify the accused Mahipal and Panna Lal as the persons who might be involved in the said breaking of seals/tampering of the meter. Complainant PW2 Deepak Jain has admitted in his crossexamination that he FIR no. 74/07 State Vs Ajay etc Page no. 19 / 22 was not present in the house at the time of incident and all the facts were narrated to him by his wife Ms. Shilpi Jain who has not been examined and she was dropped being repetitive witnesses and whatever deposed by PW2 Deepak jain/complainant is hearsay with regard to the tampering of the meter by breaking the seals by the accused persons. No reasons have been given by the complainant or his mother as to why complaint was not lodged on the same date regarding the incident of tampering of the meter and extortion of Rs. 75000/. (39) The Hon'ble Apex Court has recently in case Sujit Biswas Vs State of Assam, AIR 2013 SC 3817 was pleased to hold in para no. 6 as under: "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved' . In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions.
In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take FIR no. 74/07 State Vs Ajay etc Page no. 20 / 22 the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on recored. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. "
(40) Thus, the deposition of both the witnesses and material on record is of such nature which does not establish the FIR no. 74/07 State Vs Ajay etc Page no. 21 / 22 tampering of the meter by the accused persons beyond reasonable doubt.
(41) In the light of the above discussions, the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and they are given benefit of doubt and hence they are accordingly acquitted.
(42) File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
th
ON 10
July, 2014
(RAJ KUMAR CHAUHAN)
ASJ (ELECTRICITY)
NORTH WEST DISTRICT
ROHINI :DELHI
FIR no. 74/07
State Vs Ajay etc Page no. 22 / 22