Delhi District Court
State vs . Anand Singh And Others on 9 September, 2021
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-7, WEST DISTRICT, TIS HAZARI COURTS,
DELHI
STATE
VERSUS
ANAND SINGH AND OTHRS.
Computer ID No. 72445/16
FIR No. 92/2003
P.S. Paschim Vihar
U/S 170/385/34 IPC
Sh. J.K. Sharma
S/o Sh. Jagdish Kumar Sharma
R/o A-1/ 102, Paschim Vihar,
New Delhi.
........ Complainant
VERSUS
1. Anand Singh
S/o Sh. Shri Kishan Yadav
R/o Jhajjhar,
Haryana.
2. Satish Chander Jain
S/o Sh. Kalyan Singh,
r/o Gurgaon,
Haryana.
......... Accused Persons
Date of Institution : 27.01.2009
Date on which judgment was reserved : 06.09.2021
Date of judgment : 09.09.2021
Final Order : Convicted
FIR No.92/03 Page 1 of 26
P.S. Paschim Vihar
State Vs. Anand Singh and others
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, accused persons namely Anand Singh and Satish Chander Jain have been set up by the prosecution to face trial on the allegations that on 06.03.2003 at about 08:30 pm, at A-
1/102, Paschim Vihar, the accused persons had along with co-accused namely Rajender Kaushik (who has since absconded and is PO), in furtherance of their common intention had attended to hold office of a CBI officer as a public servant and in such assumed character, the accused persons attempted to extort money to the tune of Rs 15 lakhs from the complainant under the colour of such office and therefore, alleged to have committed offence punishable u/s 170/34 IPC. At the same time, both the accused persons were alleged to have attempted to put the complainant in fear of injury/ alarm in order to committing of extortion and therefore, both the accused persons were also alleged to have committed offence punishable under section 385/ 34 IPC.
2. The FIR in the instant case was lodged in respect of offence punishable under sections 385/ 170 IPC against unknown accused by the complainant namely Sh. J.K. Sharma on the allegation that some unknown person(s) had extorted him on telephone and have sent him a fax message claiming themselves to be CBI officers and have demanded a sum of Rs 15 lakhs from him, failing which, the complainant had been threatened with raids at his offices. Investigation commenced and final FIR No.92/03 Page 2 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others report in the form of charge sheet under section 173 Cr. P.C. was filed against the accused persons namely Anand Singh, Satish Chander Jain and Rajender Kaushik in respect of offences under section 170/385/34 IPC.
3. After condoning delay, in the filing of the chargesheet by the IO/ police, cognizance was taken against the accused persons vide order dated 17.12.2012 and the accused persons were summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr. P.C vide order dated 29.06.2013, charges under section 385/ 170/ 34 IPC were framed against the accused persons namely Anand Singh and Satish Chander Jain, to which they pleaded not guilty and claimed trial. During the course of hearing of the instant case, prior to the stage of framing of charge, the accused namely Rajender Kaushik had failed to appear before the court and therefore, vide order dated 13.09.2012, the accused namely Rajender Kaushik was declared as an absconder. The matter was thereafter proceeded against accused persons namely Anand Singh and Satish Chander Jain .
4. Thereafter, the matter was fixed for prosecution evidence. Prosecution examined 7 prosecution witnesses to prove the charge against the accused.
5. PW-1/Sh. Umesh Goel deposed that at the relevant FIR No.92/03 Page 3 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others time, he had been residing at A-3/4, Paschim Vihar, Delhi with his family and that the incident in question relates to the year 2003. He deposed that on one night at about 07:00-08:00 pm, in the year 2003, he was accompanied by his friend namely Sh. J.K. Sharma and they were present near Huda Gymkhana Club, Gurgaon. There they saw one white colour Maruti Van and one Santro Car which was behind and that two persons were sitting on the back seat of the said Van and that one person was sitting on the driver seat. It was his version that at that time, they were also accompanied by the police officials and that police asked him to hand over one bag/suitcase to the persons, sitting in the said Maruti van. He deposed that he does not remember the complete facts but that he can recall that the persons, who were sitting in van were apprehended by the police and after interrogation, the said persons sitting on the back seat were arrested by the police. He proved the arrest memos Ex.PW-1/A and Ex.PW-1/B and personal search memos Ex.PW-1/C and Ex.PW-1/D of the accused persons respectively. It was his version that the said persons had handed over to him one cigarette pack when he gave them the suitcase and subsequently, the suitcase and the cigarette pack were seized vide seizure memo Ex.PW-1/E and Ex.PW-1/F. He also proved the seizure memo of the Maruti Van Ex.PW1/G. During his examination-in- chief, PW1 correctly identified the accused persons namely Anand Singh and Satish Chandra Jain, to be the ones, who were apprehended on the said day in the year 2003. PW1 further deposed that apart from the above- stated facts, he cannot recall the remaining facts/proceedings that took place on the said day/ day of the incident. Therefore, PW1 was cross-
FIR No.92/03 Page 4 of 26P.S. Paschim Vihar State Vs. Anand Singh and others examined by Ld. APP for the State after taking permission of the court. In his cross-examination at the instance of the state, PW1 admitted the fact that the accused persons namely Anand Singh and Satish Chander were apprehended on 08.03.2003 at near Huda Gymkhana Club, Haryana. He also admitted the fact that on that day, he had along-with with his friend namely J.K. Sharma and other police officials went to aforesaid place as per the fax message received. He also admitted the fact that the Maruti Van was not having any real number plate and that he went to the van, when the van gave them the signal of five dippers and that, when he handed over the suitcase to the persons sitting in the van, he was told a code 'JK2003', and that he gave signal to the police by raising hands. PW1 also admitted the fact that one original paper was found in cigarette box found in packed paper. However, PW1 was not having any knowledge regarding the contents of the said original paper. He also admitted his signatures on the disclosure statement(s) of the accused persons namely Anand Singh (Ex.PW-1/H) and Satish Chandra (Ex.PW- 1/I) and also on the seizure memo (Ex.PW-1/11) vide which original papers were seized by the police. He also admitted the fact that on the intervening night of 08/09.03.2003, he had joined the investigation of the present case and on that night, he along-with his friend namely J.K. Sharma and other police officials went to Punjabi Bagh Transport Centre on the basis of a secret information and there the complainant J.K. Sharma pointed towards the accused namely Rajender Kaushik, who was standing in front of Gill and Sandhu Transport Co. and that the accused namely Rajender Kaushik was found in possession of one polythene bag FIR No.92/03 Page 5 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others containing three original written papers kept in a diary and that the diary and original papers were seized by the police. PW1 admitted his signatures on seizure memo Ex.PW-1/J, on the arrest memo of the accused namely Rajender Kaushik (Ex.PW-1/K) and also on his personal search memo (Ex.PW1/L), and also on the disclosure statement of accused Rajender (Ex.PW-1/M). PW1 also admitted his signatures on seizure memo (Ex.PW-1/N) vide which the fax message papers produced by complainant Jai Karan Sharma to the police were seized by the police. He also admitted the fact that the accused namely Anand Singh had led them to Jitesh Communication, Gurgaon by stating that he had along-with accused Rajender Kaushik had sent fax (three papers) to J.K. Sharma from there. He also admitted his signatures on the seizure memo (Ex.PW- 1/O), vide which the complete page photocopy dated 07.03.2003 of fax from daily record book, which was produced by the attendant of Jitesh Communication seized by the police. PW1 also admitted his signatures on the seizure Memo Ex. PW1/P.
6. In his cross examination, at the instance of the accused Anand Singh, PW-1 deposed that as the incident in question is 16-17 years old, therefore, PW1 is not able to recall the exact month and year or the name of any police official(s) involved in the present case. He admitted the fact that the police officials had recorded his statement and that the said statement was recorded in the PS and that he had signed the said statement. He deposed that he was accompanied by J.K. Sharma at the time of incident. In his cross examination, at the instance of the FIR No.92/03 Page 6 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others accused Satish Chander, PW-1 was again asked by Ld. Counsel to identify the accused persons. However, during his cross-examination, PW1 was not able to identify the accused persons. PW1 categorically denied the suggestion of the accused that he had not joined the investigation of the present case and that he was deposing falsely. After his cross-examination, PW1 was re-examined by Ld. APP for the state on the point of identification of the accused persons. However, PW1 again failed to identify the accused persons and he deposed that he cannot identify the accused persons, as the matter is old.
7. PW-2/Sanjay Jain deposed that till December 2003, he had worked as a Computer Operator at Jitesh Communication. During the course of his testimony, PW2 turned hostile and deposed that he had never joined investigation of the present case and that he does not know anything about the present case. Though, PW2 was cross-examined by Ld. APP for the state after taking permission of the court, however, during his cross-examination, PW2 categorically denied the suggestions, which were put to him by Ld. APP for the State. However, PW2 admitted his signatures on the original cash bill dated 07.03.2003 (Ex.PW-2/A), when the same was shown to the witness and which was already on record. PW2 categorically denied the suggestion of Ld. APP for the State to the effect that he was intentionally not admitting the contents of his statement, made to the police under section 161 Cr. P.C. and that he was deposing falsely as he had been won over by the accused persons. In his cross examination, at the instance of the accused persons, PW2 admitted FIR No.92/03 Page 7 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others the fact that that Jitesh Communication never maintained any record in respect of cash memo, fax messages, telephonic call etc. and that the bill book was issued on demand. He further deposed in his cross-examination, that he cannot identify the person, present in the Court, who had made request to him for any cash memo.
8. PW-3/Complainant namely Sh. Jai Kumar Sharma deposed that at the relevant time, he was residing at A-1/102, Paschim Vihar, New Delhi with his family. He deposed that on 06.03.2003, at about 08:30 pm, he had received a call on his telephone number (i.e. 2526616) from Gurgaon (from telephone No.2221022) and that the persons speaking from other side had told him that the said person was an officer from CBI and that they are going to conduct raids in his different offices and had also demanded Rs.15 lacs from him. When PW-3, had asked from the said person, regarding the reason for his demand, then he was told by the said person that tomorrow morning, PW-3, will get a fax. Subsequently, on 07.03.2003, at about 08:30 am, he received another phone call from Phone No.2339466 and the person speaking from other side had threatened PW-3 for life and he was told to go to his office and check the fax. PW3 was further directed to do the same as was written in the fax and PW3 was warned to not to disclose anything to the police regarding the said call. It was the version of PW3 that after receiving the fax, he talked with his family members and thereafter, he went to PS Paschim Vihar with the fax message. PW3 further deposed that as per the contents of the fax message, PW-3 was asked to come at about 07:00- FIR No.92/03 Page 8 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others 07:30 pm at Gymkhana Club, near Signature Tower, in the car bearing No.5555, Accent car. It was further written, in the said fax message that a van would be there, which would give dipper to PW-3 and thereafter, PW-3 was to handover money amounting to Rs.15 lacs to the person sitting in the said van. PW3 deposed that when they had reached at the spot, the accused persons, after seeing them in the car got suspicious and started to run. Thereafter, they apprehended the car of the accused persons while overtaking with their car. During the course of his examination-in-chief, PW3 correctly identified the accused persons namely Anand Singh and Satish Chander, who were over powered by PW-3 at the spot and who were arrested by the accompanying police persons at the spot. He also proved his statement (Ex.PW-3/A) given to the police at PS Paschim Vihar. He deposed that the police initiated proceedings against the accused persons in the PS and he was told by police to go home by saying that he/PW-3 would be informed about the progress of the investigation later on. Thereafter neither the police approached him/PW-3 nor he/PW-3 had approached them. PW3 also correctly identified the car (Maruti Van) through its photographs (Mark X1 to X4).
09. In his cross examination, PW-3 deposed that he is a transporter by profession since 1979 and that he was Matric Pass. He deposed that he had first gone to PS Paschim Vihar from where he had taken the police officials to Gurgaon, Gymkhana Club, Gurgaon. He deposed that he had along-with Umesh Goel and the driver left for FIR No.92/03 Page 9 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others Gurgaon and that they reached at the spot in about one hour and that two police officials also accompanied them. However, PW-3 was not able to recall the exact name of the police officials. He further deposed that they started for Gurgaon, Gymkhana Club at about 05:00 pm and that they reached the spot at about 06:00 pm and remained at the spot for about an hour. It was his version during his cross-examination that they reached at PS Paschim Vihar at about 09:00 pm and that the police officials had not conducted any written proceedings at the spot. All the proceedings with regard to the present case were conducted at PS. He deposed that the police had recorded the disclosure statement of the accused persons in his presence and his signatures were taken thereupon on 07/08.03.2003 and that no other document was prepared in the presence of PW-3. He also deposed that the photographs (Ex. X1 to X4) were taken in the presence on 06.03.2003. However, PW-3 was not able to recall, the name of the person who had taken the said photographs. PW3 categorically denied the fact that the accused namely Satish had been falsely implicated in the instant case, as he had nothing to do with the alleged offence.
10. PW-4/SI Pritam Raj deposed that on 07.03.2003, he was posted as Duty Officer at PS Paschim Vihar and that his duty hours were from 04:00 pm to 12:00 midnight. He deposed that at about 08:30 pm, he received a rukka through Ct. Ami Chand sent by SI Prahlad Singh and that on the basis of rukka, he had registered the FIR bearing No.92/2003 under section 385/170 IPC. During the course of his testimony, PW-4 brought the original FIR which was written in his hand.
FIR No.92/03 Page 10 of 26P.S. Paschim Vihar State Vs. Anand Singh and others The Carbon copy of the same is Ex.PW-4/A. He also proved the endorsement made by him on the rukka (Ex.PW-4/B). He deposed that after registration of the FIR, he had handed over the carbon copy of FIR and original rukka to Ct. Ami Chand for handing over the same to SI Prahlad Singh. Despite opportunity, PW4 was not cross-examined by the accused persons.
11. PW-5/ASI Dhanvir deposed that on 07.03.2003, he was posted as HC at PS Paschim Vihar. On that day, he along-with IO, Ct. Ravinder, Ct. Ami Chand and SI Prahlad Singh, were present as a raiding party at Gurgaon. He deposed that at the spot, after sometime, a van came from the side of National Highway, on which there was no number plate was affixed. The aforesaid van firstly, went near to the place where complainant was standing and slowed its speed and crossed the complainant. After sometime, the said van returned near the complainant and stopped. Subsequently, the complainant and his friend went near the van and handed over a suitcase to the accused persons and recited a code word. During the course of his examination-in-chief, PW-5 correctly identified the accused namely Anand Singh, however, PW5 failed to identify the other accused namely Satish Chander. He deposed that the IO had apprehended, the accused persons and had arrested them. Thereafter, they all had returned to PS. PW5 was also cross-examined by Ld. APP for the state, after taking permission from the court. In his cross-examination, at the instance of the prosecution, PW5 admitted the fact that the IO had seized the said suitcase and the packet of gold flake king sized cigarette FIR No.92/03 Page 11 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others box/ packet vide seizure memos (Ex.PW-1/F). He also admitted the fact that the IO had opened the said cigarette packet and found papers in it. IO had seized the same vide seizure memo (Ex.PW-1/1). PW5 also admitted the fact that they came to know later that the registration number of said Maruti Van, which was seized by the IO was HR-26M-8718. He also admitted the fact that on 08/09.03.2003, he was also present along-with the IO for the investigation of the present case. He also admitted the fact that the IO had received a secret information that the co-accused namely Rajender Kaushik will come to the Punjabi Bagh Transport Center and that he along-with the complainant J.K. Sharma, his friend Umesh Goyal and IO, went to Punjabi Bagh. He admitted the fact that the complainant had identified the accused Rajender Kaushik and the accused Rajender Kaushik was apprehended with the help of staff. He also admitted the fact that the IO had recorded the disclosure statement of accused namely Rajender Kaushik and that the case property was deposited in the malkhana. During the course of his cross-examination at the instance of prosecution, PW5 correctly identified the accused Satish Chander. PW5 also correctly identified the Maruti Van, through its photographs. PW5 also correctly identified the suitcase (Ex.P-2) and one cigarette packet make Gold Flake King size (Ex.P-3). In his cross examination, at the instance of the accused Anand Singh, PW-5 deposed that he had not attended any call on the date of incident. He deposed that he was called in the PS, at about 07:00 pm, on the relevant day and that there were 6-7 persons including complainant in the raiding party. He further deposed that the IO had told the facts to IO, who was present in the PS and that FIR No.92/03 Page 12 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others they left the PS in two cars. And that both the cars belonged to the complainant. One car was Hyundai Accent and the make and model of other car, could not be recalled by PW5. He deposed that they stopped near Gymkhana Club, Gurgaon on left side. He deposed that there was one person who was accompanying the complainant, and that the complainant has medium height. He deposed that he cannot recall as to whether the IO had requested any public persons to join investigation. He deposed that on the said day, they were in Civil Dress and that they reached back to the PS at about 10:00 pm. PW-5 further deposed that he had joined investigation on next day also, when they reached Punjabi Bagh at about 10:00 PM.
12. PW-6/Ct. Ravinder Singh deposed on same lines as PW-5 and deposed regarding the manner of investigation of the instant FIR. He deposed that on 07.03.2003, he was posted as Constable at PS Paschim Vihar. On that day at about 07:18 pm, IO sent Ct. Ammi Lal for registration of FIR in PS. He deposed that he had along-with IO, HC Dhanvir, complainant J.K. Sharma and Umesh Goel went to Gurgaon in a private vehicle. At about 08:00 PM, they reached at Gymkhana Club, Signature Tower.. It was his version that there the IO had briefed them and they were told to remain in the car i.e. Hyundai Accent in which HC Dhanvir and Umesh Goel were present. The other Hyundai Accent Car in which other staff members were sitting was parked ahead of gate of the Singature Tower. IO had instructed them to remain in the car and to watch over. He deposed that after about 5 minutes, one Maruti Van without FIR No.92/03 Page 13 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others number plate affixed on the back side, came from the side of NH-8 Highway and it slowed its pace near the Accent Car and suddenly cross the same. After about five minutes, the said Maruti Van came again and stood behind their car. The said Maruti Van signaled five times as it was the code. As agreed, Umesh Goel took one suitcase and went to the accused persons. Umesh Goel signaled them by raising his hands that the deal has been made. Thereafter, the raiding party ran towards the said Maruti Van and the driver of the said van started the said car for running away but they managed to stop the said car. They apprehended the accused persons namely Anand Singh and Satish Chander. He further deposed that the IO recovered from the possession of accused persons, one suit case and one packet of cigarette make Gold Flake. Thereafter, the IO checked the said Van and found one number plate bearing registration No. HR-26M-8718. Subsequently, the IO arrested the accused persons and conducted their personal search. He deposed that his statement was recorded by the IO. PW6 also correctly identified the Maruti Van, through its photographs. PW6 also correctly identified the suitcase (Ex.P-2) and one cigarette packet make Gold Flake King size (Ex.P-3). Though PW-6 was extensively cross-examined by both the accused persons, however, nothing substantial could be elicited from his mouth, which could throw doubts on his testimony.
13. PW-7/Insp. Prahlad Singh/IO deposed that on 07.03.2003, he was posted at PS Paschim Vihar as an SI. On that day, he was marked a complaint (Ex.PW-7/A), for enquiry. He deposed that FIR No.92/03 Page 14 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others accordingly, he went to transport Centre, Punjabi Bagh where he met the complainant namely Sh. J.K. Sharma and that, he had recorded the statement of complainant. Thereafter, PW-7/IO prepared the rukka (Ex.PW-7/B) on the basis of the statement of the complainant and the said rukka was sent to PS through Ct. Ami Lal for getting the FIR registered. Thereafter, PW-7 along with the complainant, one witness namely Umesh, Ct. Dhanvir, Ct. Sukhbir, Ct. Ravinder went to Huda Gymkhana Club, Gurgaon. He deposed that after reaching at the spot, they parked their cars as per the fax message and Ct. Dhanvir was sent to the main gate of Gymkhana Club to keep a watch over the activity. He deposed that after few minutes, one Maruti Van which was without any number plates on both sides, came on the spot, slowed down near the Hyundai Accent Car in which they were sitting and went ahead. After few minutes, it returned back and the same was parked in front of their car and it gave five times dipper. After confirmation, the witness Umesh got out of the car with suitcase and went towards Maruti Van. After few minutes, Umesh had sent them, a signal about the finalization of deal and thereafter, immediately they conducted the raid and found two people were sitting in the Maruti car. He deposed that the witness Umesh had handed over to him/PW-7, one gift packet stating that same was given to him by the accused namely Anand. The said gift packet was subsequently opened and was seized vide seizure memo (Ex.PW-1/F). PW7 also proved the seizure memo of the suitcase (Ex.PW-1/E). Subsequently, PW- 7 took the cursory search of both the accused persons and during the said search, from the pocket of accused namely Anand, two written papers FIR No.92/03 Page 15 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others were found and they were seized by him, vide seizure memo Ex.PW-7/C. He further deposed that both the number plates of the vehicle were found inside the vehicle only and they were also seized vide seizure memo (Ex.PW-1/G). Thereafter, both the accused persons were arrested by PW7 vide arrest memos (Ex.PW-1/A and Ex.PW-1/B) and the personal search of the accused was conducted vide personal search memos (Ex.PW-1/C and Ex.PW-1/D). PW7 deposed that he had also recorded disclosure statement of both the accused persons. The same are Ex.PW-1/H & Ex.PW-1/I. During his testimony, both accused persons, who were present in the Court were correctly identified by PW7. PW7 also proved the seizure memo (Ex.PW-1/N) of three pages of the fax message which was given by complainant to him and was seized by him. PW7 also proved the seizure memo (Ex.PW-1/P) of the copy of fax confirmation receipt, issued by Jitesh Communication, which was also recovered from the pocket of accused Anand Singh. and the fax receipt, i.e. the bill (Ex.PW-2/A).
14. PW7 further deposed that he had also seized the Maruti Van along-with its number plates vide seizure memo Ex.PW-1/G. PW7 deposed that thereafter, he/PW-7 along-with staff and the arrested accused persons along with the case property came back to PS, where he had recorded the statement of witness. PW7 further deposed that on next morning i.e. 08.03.2003, PW-7 had along-with staff, and the accused namely Anand Singh, again went to Jitesh Communication, Gurgaon and there, he had seized the record register of Jitesh communication vide FIR No.92/03 Page 16 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others seizure memo Ex.PW-1/O and the copy of record book page is Mark-X. Thereafter, PW-7 returned back to PS and in the evening of the same day, third accused namely Rajender Kaushik was arrested from Punjabi Bagh Transport Centre and on his cursory search, three original pages were recovered from his possession, in his diary, which he was carrying and which were sent through fax from Jitesh Communication. The same were seized vide seizure memo (Ex.PW-2/J). He proved the arrest memo of the accused namely Rajender Kaushik (Ex.PW-1/K), the personal search memo of the accused Rajender Kaushik (Ex.PW-1/L) and his disclosure statement Ex.PW-1/M. PW7 further deposed that the admitted signatures and handwriting of the accused Anand Singh and Rajender Kaushik were also taken, and the same are Ex.PW-7/D(Colly). Subsequently, the admitted signatures and handwriting were sent to FSL for examination. PW7 also proved the site plan prepared by him (Ex.PW-7/E). PW7 correctly identified the Maruti Van, through its photographs (Ex. P-1). PW7 also correctly identified the suitcase (Ex.P-2) and one cigarette packet make Gold Flake King size (Ex.P-3). He deposed that during the course of investigation, he was transferred and therefore, he handed over the case file to MHC( R). During the course of his examination-in-chief, PW7 correctly identified the entire case property and proved the documents namely fax pages (Mark-X), the admitted writing of accused Anand Singh (Ex.P-4), the original fax message and diary which was recovered from the possession of accused namely Rajender Singh (Ex.P-5 & Ex.P-6), diary (Ex.PW-5/J), the documents which were kept in Gold Flake Cigarette box and were seized (Ex.PW-1/1), documents Ex.P-4, FIR No.92/03 Page 17 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others Ex.P-5 and Ex.P-6. PW7/ IO was not cross-examined by the accused persons despite opportunity and therefore, his testimony has gone unrebutted.
15. The accused persons had admitted the genuineness of the FSL report dated 30.05.2003 (Ex. A-1) vide proceedings carried out under section 294 Cr. P.C. on 26.03.2018. Thereafter, at the request of Ld. APP for the State, PE was directed to be closed as all the relevant prosecution witnesses had been examined and the matter was fixed for recording of statement of accused persons under section 313 Cr. P.C.
16. In their respective statements under section 313 Cr. P.C., both the accused persons claimed to be innocent and pleaded that they have been falsely implicated in the instant case. At that stage, the accused persons submitted that they do not wish to lead defence evidence and consequently, the matter was fixed for addressing Final arguments.
17. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons and perused the record carefully in light of the arguments advanced.
18. In the instant case, apart from the witness PW1, PW2 and PW3/Complainant, the other cited prosecution witnesses were related to the investigation of the present case. Admittedly, both PW1 as well as PW2 had turned hostile and they were cross-examined at the instance of FIR No.92/03 Page 18 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others the State by Ld. APP. Perusal of their respective testimony reveals that the material/ substantial part of their respective testimony has been recorded in the form of leading questions and therefore, their testimonies have to be eschewed from consideration. Thus, the only issue which arises for consideration is whether the testimony of the complainant/PW3 is worthy of credence and can be relied upon by the prosecution for bringing home the guilt of the accused persons.
19. PW3/Complainant is the informant of the case and his version is not a deviation from the facts divulged in his original complaint Ex. PW3/A, on the basis of which the subject FIR was registered except a few minor discrepancies. Though, Ld. Counsel for the accused persons has vociferously argued that there are material contradiction(s) in the testimony of the complainant/PW1 and the same goes to the root of the case, however, in my opinion, the alleged discrepancies in the testimony of PW3, if any, cannot be considered as material discrepancy(s). The alleged discrepancies are trivial in nature and cannot be considered as material. At the same time, despite extensive cross-examination by the accused persons, nothing has been elicited from the mouth of PW3 by either of the accused persons, which could throw doubts on the credibility of PW3. In Shivappa Vs. State of Karnataka, AIR 2008 SC 1860, the Hon'ble Supreme Court of India held that the minor discrepancies or some improvements also would not justify rejection of testimonies of the eye witness if they are otherwise reliable. Some discrepancies are bound to occur because of the social background FIR No.92/03 Page 19 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in the court. At the same time, in my opinion, the evidence of PW3 is reliable and trustworthy, especially in light of the fact that all the police witnesses especially the IO/PW7 have corroborated the testimony of PW3 on all material aspects. The entire documentary evidence (including the original fax message, fax message as received by the complainant, fax bill issued by Jitesh Communication, the FSL report etc.) also supports the version of facts proffered by the prosecution.
20. In "Namdeo vs State of Maharashtra", Crl. Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in "Vadivelu Thevar vs State of Madras"
1957 SER 981 wherein it was observed by the Hon'ble Court as under:-
1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances FIR No.92/03 Page 20 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
21. Thus, the Hon'ble Supreme Court has time and again held that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
22. In the case at hand, through the testimony of the eye witness/PW3/complainant, prosecution has been able to proffer a trustworthy and reliable account of the incident in question and the defence has not been able to raise doubts on the prosecution version. At the same time, the testimony of the IO/PW7 has gone unrebutted. The same has to be accepted at its face value. Therefore, in light of the testimony of PW3 and the PW7/IO, the court is of the view that no further corroboration is required to prove the facts which form the gravamen of the charge framed against the accused persons.
23. It has been argued on behalf of both the accused persons by their Ld. Counsel, that there is not even an iota of evidence to suggest that the accused persons were the ones, who had allegedly sent FIR No.92/03 Page 21 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others the alleged fax message. It has been submitted by Ld. Defence counsel that the identity of the accused persons has remained under a shadow of doubt. The learned counsel would submit that without strict proof of the identity, the accused persons cannot be convicted in this case.
24. It is beyond any cavil that the identity of the accused persons is required to be proved by the prosecution beyond reasonable doubt. It has to be proved by the prosecution that both the accused persons had along with co-accused namely Rajender Kaushik (since absconded) had sent the alleged fax message threatening the complainant and demanding the extortion amount. By bringing on record, the uncontroverted testimony of PW7/IO and the admitted forensic report/ opinion (Ex. A-1), the prosecution has been successful in establishing the fact that the alleged threatening fax message, demanding the extortion amount of Rs. 15 Lakhs was sent by the accused persons, and thus, the identity of the accused persons, stands proved beyond doubt by the prosecution.
25. In the present case, both the accused persons have also been charged for committing offence punishable under Section 170 IPC. The said Section reads as under:
"Whoever pretends to hold particular officer as a public servant, knowing that be does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall FIR No.92/03 Page 22 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others be punished with imprisonment of either description, for a term which may extend to two years, or with fine or with both".
26. Thus, to bring home the charge under section 170 IPC, the prosecution, has to prove the following points, (1) that the accused falsely pretended to be or personated to be a public servant, (2) that he did so knowingly, and (3) that when assuming such character he did or attempted to do something under colour of such office.
27. A mere perusal of Section 170 IPC, reveals that before an accused is convicted for this offence, the prosecution has to prove beyond doubt that the act done or attempted to be done by the accused must be associated with the office assumed and unless the prosecution succeeded in proving that the act done, or attempted to be done had some relation to the office, the accused persons pretented to hold. Mere assumption or pretention to be a public servant (CBI Officer in this case) will not be sufficient in the eyes of law for a conviction under Section 170 of the Indian Penal Code.
28. Thus, even if the evidence of all the prosecution witnesses is taken at its face value and is accepted as gospel truth, in such case also, no offence under Section 170 of the Indian Penal Code has been committed in the instant case, by either of the accused persons, FIR No.92/03 Page 23 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others inasmuch as nothing was done or attempted to be done "under colour of such office".
29. In the facts of the instant case, it has been successfully proved by the prosecution that both the accused persons had falsely pretended themselves to be CBI Officers, which they were not and that they did so knowingly. However, no act was done or was attempted to be done, "in such assumed character", which was "under colour of such office". The clause "under colour of such office" apparently means making use of such office and an act done or attempted to be done "under colour" must be an act having some relation to the office which the accused pretends to hold. Mere act of the accused persons in telephonically threatening the complainant or sending the alleged fax message has no relation to the office of an CBI officer and to that extent ,the offence charged can hardly be said to have been committed by the accused persons by making use of his pretended office. It is relevant to mention here that the relevant portion of the section not only speaks of "in such assumed character" but further adds that "the act done or attempted to be done must be under colour of such office". Mere assumption of the office would not be sufficient but the act done or attempted to be done must be under colour of such office. Any contrary interpretation, as suggested by Ld. APP for the state, if accepted, would virtually make the clause "under colour of such office" redundant as the section not only provides that the act shall be done in such assumed character but also under colour of such office.
FIR No.92/03 Page 24 of 26P.S. Paschim Vihar State Vs. Anand Singh and others
30. Mere assumption of a character without any attempt to commit any official act is not sufficient to attract Section 170 IPC. There is nothing on record to suggest that the accused persons did any official act under the colour of the office. Mere act of sending the alleged fax message to the complainant, demanding illegal gratification/ bribe does not amount to an act under the colour of the office. The acts of the accused persons of demanding or attempting to receive the bribe/ illegal gratification cannot be said to be under colour of office, as this act of demand of illegal gratification/ bribe has no relation to the duties of an CBI Officer and thus, the ingredients for an offence under Section 170 Indian Penal Code are not satisfied. I am therefore, of the view that the prosecution has failed to prove that the alleged acts were done under colour of the pretended office and thus, no offence under Section 170 Indian Penal Code was therefore committed by either of the accused persons.
31. However, at the same time, as discussed above, on the basis of facts which have been established/ proved by the prosecution, both the accused persons can be said to have committed the offence punishable under section 385/34 IPC.
32. In view of the discussions made above, it is held that the prosecution has been able to associate the accused persons with the commission of the offence punishable under section 385/34 IPC and thereby, they are liable to be convicted for an offence u/s 385/34 IPC.
FIR No.92/03 Page 25 of 26P.S. Paschim Vihar State Vs. Anand Singh and others
33. Both the accused persons are, therefore, found guilty u/s 385/34 IPC and are convicted there-under.
34. Let both the convicts be heard on the quantum of sentence.
35. Copy of judgment be given to both the convicts, free of cost and copy of judgment be placed on case file.
Digitally signedDecided on 09.09.2021 PUNEET by PUNEET NAGPAL Announced through VC (CISCO WEBEX) NAGPAL Date: 2021.09.09 16:26:39 +05'30' (PUNEET NAGPAL) MM-7, West District THC/Delhi. FIR No.92/03 Page 26 of 26 P.S. Paschim Vihar State Vs. Anand Singh and others