Delhi District Court
Judgments. In Case Law Reported As ... vs . State" on 19 March, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Rajesh Kumar Vashistha & Ors.
FIR No. 334/2000
P.S Malviya Nagar (EOW)
JUDGMENT
1. Sr. No. of case 2033928/2016
2. Date of institution 28.06.2000
3. Name of the complainant Sh. Trilok Singh
S/o Sh. Ajeet Singh
R/o 2077/162, Trinagar,
Ganeshpura, Delhi.
4. Date of commission of offence On or before 13.03.2000
FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 1 of 24
5. Name of accused 1. Rajesh Kumar Vashistha
S/o Sh. Devi Chand Vashistha
R/o Near bus stand, Village
Ramraj, District Meerut, UP.
2. Vijay Pratap Singh
S/o Late Lal Bahadur
R/o Village Makhtauli, Post
Makhtauli, PS Masrakh, District
Chhapra, Bihar
3. Bhupinder Singh Cheema
S/o Late Raseel Singh
R/o B-107, Swaran Park, Mundka,
New Delhi.
4. Dheeraj Kumar
R/o House No. 372, Sector-38A,
Chandigarh (PO since 03.12.2008)
5. Preetam Kumar @ P.K.
R/o Sector-16, Rohini, New Delhi
(Proceedings stood abated vide
order dated 06.06.2007)
6. Manoj Kumar @ Deepak
R/o Village Chhapra, District
Chhapra, Bihar (PO since
10.05.2014).
6. Offence complained of U/s 406/420/468/471/201/120 B
IPC read with section 12 Passport
Act.
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 17.03.2018
9. Final order Acquitted
FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 2 of 24
10 Date of such judgment 19.03.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a complaint was received from one Sh. Trilok Singh that he visited the office of Guide Line Channel through an advertisement for obtaining American Visa. He met one Deepak Sharma (Manoj), Rajesh Vashistha, Vijay Pratap and Prem Kumar and one Army Officer. They fixed his appointment with the American Embassy. When he reached outside the American Embassy, he met P.K. and Army Officer who took him inside and introduced to Madam Mary Gomes. He was asked to deposit Rs. 5000/- as Visa fees. He deposited the same. He was asked to come after one week to collect the visa. He handed over Rs.2,000/- and passport one week before 03.03.2000. They all asked to pay Rs. 1,00,000/- which he paid after arranging the same. He then received a call from P.K. to come on Wednesday and later they asked him to come on Friday and finally Deepak called him to come on 16.03.2000 to collect his passport and ticket. They also informed that his flight was at 2.30 pm by British Airways. On 16.03.2000 he reached the office of guide line channel. The same was found closed. FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 3 of 24 Later he met few people such Sandeep Makhija, Yash Pal Sharma, Kulwant Singh who informed him that Rajesh Vashistha had taken their passports and money as well. He showed them a photocopy of American Visa. Rajesh Vashisht did not give him the American Visa and cheated him. FIR was registered and accused Rajesh Vashistha was arrested at the instance of complainant. Rajesh Vashistha got passport recovered from Nala near Badkal lake, Faridabad. Upon his disclosure statement, co-accused Vijay Pratap Singh was arrested. During investigation, accused Vijay Pratap Singh pointed out to the house of accused Bhupinder Singh Cheema. Accused Bhupinder Singh Cheema was also arrested. The other co-accused Manoj and Preetam Kumar could not be arrested as they absconded. Upon conclusion of investigation, chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons namely Rajesh Kumar Vashisht, Vijay Pratap Singh and Bhupinder Singh Cheema before Court and prima facie case having been made out, charge for the offence of under section 420/120B IPC read with section 471 IPC and 12 Passport Act was framed.
3. In order to prove its case, the prosecution examined 13 witnesses in all.
4. Sh. Rohit Razdan was examined as PW1. He deposed that he FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 4 of 24 was running a small business of advertising with his friend. In the month of February, 2000, he saw an advertisement in a daily newspaper of Guide Line Channel and in the said advertisement it was mentioned that if anyone wants US Visa then they may contact the said office and after seeing the said advertisement, he contacted accused Rajesh Kumar Vashistha on phone on which he asked him to visit at his office at 41, Kalu Sarai. He further deposed that he met accused Rajesh Kumar Vashistha in the office and asked him to arrange US Visa. On this accused Rajesh Kumar Vashistha stated that he would arrange US Visa as he had approach in the American Embassy and Visa would be provided without any interview. He further deposed that accused Rajesh Kumar Vashistha and accused Vijay Pratap Singh used to take money from him for the purpose of visa, however, he had never given money to accused Bhupinder Singh Cheema. He had handed over the photocopy of visa and cutting of advertisement to police. Same was seized vide seizure memo Ex.PW1/A. He also marked the photocopy of the visa vide Mark A. Passports were seized vide seizure memo Ex.PW1/B. Pointing out memo was prepared vide Ex.PW1/C. Accused Rajesh Kumar Vashistha was interrogated and disclosure statement was recorded vide Ex.PW1/D. He also identified the case property i.e. one passport vide Ex.P1 and other passports vide Ex.P2 to Ex.P10. He further deposed that during the course of investigation, accused FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 5 of 24 persons were arrested and got documents recovered. The same were taken into police possession.
5. Sh. Yash Pal was examined as PW2. He deposed that in the month of March, 2000, he met accused Vijay Pratap Singh at Moti Bagh Gurudwara. Accused Vijay Pratap Singh told him that he would manage American Visa for him and also gave details of his office at Kalu Sarai. Thereafter, in the month of April, 2000, he visited their office at Kalu Sarai and met Manoj Kumar (since PO), accused Rajesh Kumar Vashistha and Vijay Pratap Singh. He further deposed that all the accused persons showed him one passport, on which one visa of USA was affixed and the accused persons told him that they would arrange/manage a USA visa for him. After one week, he received a telephonic call from accused Vijay Pratap Singh to come to US Embassy. Thereafter, he went to US Embassy and met with accused Vijay, who introduced him with accused P.K. (since expired). Accused P.K. took him inside the office of US Embassy, where he separately talked with two American Lady officers. Thereafter, above said two ladies said that his work was done and they shook hands with him. Both the above said ladies further told him that he had to visit the next day for collection of the documents and to talk with accused P.K. regarding payment. Thereafter, he alongwith accused P.K. came outside the above said office and FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 6 of 24 returned to his residence. After two weeks, he again received a telephonic call from accused Vijay that his visa was got ready and come to collect and check the same. Thereafter, he went to their office where accused Manoj, Vijay and accused Rajesh Kumar Vashistha were present and they showed a photocopy of his visa and asked him to arrange Rs.1,00,000/- as advance, thereafter, they would give him the date and details of the flight to USA. The accused persons also told him that he would show the original documents, if he paid Rs.4,00,000/- to them. Thereafter, he requested to his sister Babli at Punjab to arrange Rs.1,00,000/-. After two days, he went to office of accused with cash of Rs.1,00,000/- and gave the same to accused Manoj in the presence of accused Vijay and accused Rajesh Kumar Vashistha. Subsequently, his sister came to Delhi and gave Rs. 1,00,000/- to him at his residence. Thereafter, he went to office of accused Vijay Pratap and met him alongwith accused Manoj and Rajesh Kumar Vashistha where he gave Rs. 80,000/- to accused Manoj and asked them to show him the original visa. Upon which the accused persons asked him to first complete the payment of Rs. 2,00,000/-, then they would show him the original visa. On the evening of said day, accused Vijay and Manoj came to his residence and asked for money and he gave Rs.20,000/- to accused Manoj. Accused Vijay and Manoj assured him that they would show the original documents/visa to him tomorrow and asked him to come FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 7 of 24 to their office. On next day, he visited the office, there accused Manoj was present who told him that his air ticket has been sent for confirmation and asked him to come to his office to collect the air ticket, passport and visa after 2-3 days. On reaching the said office, where he found that the office was locked and mobile phones of all the accused persons were switched off. He filed a complaint in this regard with other victims. Witness correctly identified accused Rajesh Kumar Vashistha and accused Vijay Pratap Singh before the court.
6. Sh. Sandeep Kumar Makhija was examined as PW3. He deposed that in the year 2000, he had seen an advertisement regarding the visa consultancy in the newspaper namely Guideline. He called the phone number, given in the advertisement. He further deposed that one person who had attended the phone, told his name as Rajesh Kumar Vashistha. Accused Rajesh Kumar Vashistha showed him a receipt and he gave Rs.1,00,000/-.
7. Sh. Kulwant Singh was examined as PW4. He deposed that one day, he saw an advertisement in a newspaper regarding providing the visa. He alongwith his nephew Sh. Triok Singh reached at the address mentioned in the newspaper i.e. Kalu Sarai near ITI, where they met with accused Rajesh Kumar Vashistha and 2-3 other persons. He had given Rs. 8,000/- for obtaining the visa of America FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 8 of 24 to one Deepak, who was present in the office alongwith accused Rajesh Kumar Vashistha. Witness correctly identified accused Rajesh Kumar Vashistha before the court.
8. Ms. Kamana Mishra, DGM, TBS, Division of Times Internet Ltd. Times of India was examined as PW6. She exhibited the seizure memo Ex.PW5/1. She also identified the said stamped page of advertisement vide Mark 5/1.
9. Retired ASI Sant Raj was examined as PW6. He deposed that on 03.05.2000, in his presence and SI VKP Singh, accused Rajesh Kumar Vashistha made a disclosure that he had put 10 Indian Passports in the ganda nala near Faridabad. He also identified the case property i.e. passports vide already Ex.P1 to Ex.P10. Witness correctly identified accused Rajesh Kumar Vashistha before the court
10. HC Murari Lal was examined as PW7. He deposed that on 10.05.2000, he joined the investigation alongwith the IO SI VKP Singh and SI Sachinder Mohan, Ct. Ram Kewal Singh and complainant Rohit Rajdan went near Paras Cinema, Nehru Place in a govt. vehicle. IO alongwith the complainant went near Dhaba at Paras Cinema and instructed them to reach there when he gave signal. They waited there for half an hour and thereafter, IO gave them a signal so they went near him. They were asked to surround a person whose name was later on revealed as Vijay Pratap Singh. IO FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 9 of 24 briefed accused Vijay Pratap Singh about the case and disclosed his identity and then interrogated him. IO recorded his disclosure statement vide Ex.PW7/A. Accused Vijay Pratap Singh was arrested and his personal search was conducted vide Ex.PW7/B and Ex.PW7/B1. From his personal search, five fee collection slips of American Embassy were recovered from pocket of the shirt. Same were seized vide seizure memo Ex.PW7/C. Receipts vide Ex.PW7/P1 to Ex.PW7/P5. Accused Vijay Pratap Singh disclosed that the said fee collection slips were prepared from the original fee collection slips of accused Manoj @ Deepak (since PO) and accused Rajesh Kumar Vashistha by using computer. Accused Bhupinder Singh Cheema disclosed that he used to prepare fake visas. He was arrested and his personal search was conducted vide Ex.PW7/D and Ex.PW7/D1. Disclosure statement of accused Bhupinder Singh Cheema was recorded vide Ex.PW7/E. From his personal search one copy of fake visa of complainant Rohit Razdan and four fee collection slips of American Embassy were recovered. Same were seized vide seizure memo Ex.PW7/F. Receipts Ex.PW7/P6 to Ex.PW7/P9 and the copy of visa vide Ex.PW7/P10. Mobile phone make Nokia was also recovered from the house of accused Bhupinder Singh Cheema and same was seized vide seizure memo Ex.PW7/G. Thereafter, on 12.05.2000, his supplementary disclosure statement was recorded vide memo Ex.PW7/H. Passports were FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 10 of 24 seized vide seizure memo Ex.PW7/I. Disclosure statement of accused Vijay Pratap was recorded vide Ex.PW7/J. Pointing out memo was prepared vide Ex.PW7/K. He also identified the case property i.e. passports vide Ex.PW7/P11, mobile phone and battery charger vide Ex.PW7/P12 which were got recovered from accused Bhupinder Singh Cheema.
11. Inspector J.S. Mishra was examined as PW8. He deposed that on 30.04.2000, he joined investigation of this case along with SI V.K.P.S. Yadav who constituted the raiding party including HC Baldev Raj, Ct. Ram Keval, Complainant Trilok Singh and himself. IO after taking requisite permission from senior officers along with all the staff and complainant reached village Ramraj Dist. Meerut. After reaching the village IO informed the local police station regarding present case. Accused Rajesh Kumar Vashistha was present inside the house was identified by the complainant Trilok Singh. One car bearing no. DN C 1750 was also parked in the accused Rajesh Kumar Vashistha's house. Car was searched from inside and one delivery slip Ex.P1 was found inside the car. From the delivery slip it was revealed that car was purchased just a month back. Thereafter, accused Rajesh Kumar Vashistha was taken to PS Ramraj and a DD entry to this effect was made in PS Ramraj. Accused Rajesh Kumar Vashistha was interrogated. Disclosure FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 11 of 24 statement of accused Rajesh Kumar Vashistha was recorded. Thereafter, accused Rajesh Kumar Vashistha was formerly arrested vide arrest memo Ex. PW8/B. Thereafter, above mentioned car and delivery slip were seized vide seizure memo Ex. PW 8/C. Witness correctly identified accused Rajesh Kumar Vashistha before the court.
12. Inspector S.M. Sharma was examined as PW9. He corroborated the testimony of PW7. He further deposed that IO recorded his statement. Witness correctly identified accused Vijay Pratap Singh and you Bhupinder Singh Cheema before the court.
13. Inspector Satish Kumar was examined as PW10. He was duty officer who deposed that on 29.04.2000, he received a rukka and made endorsement on the said rukka vide Ex.PW10/A and on the basis of above said rukka, present case FIR vide Ex.PW10/B was registered by him.
14. Sh. Ashutosh Gupta, Branch Operation Manager, HDFC Bank was examined as PW11. He produced the bank account statements of account no.00321000051701 in name of accused Vijay Pratap for the period from 16.02.2000 to 05.10.2000 and A/c no.00321000051690 in the name of accused Rajesh Kumar Vashistha for the period from 16.02.000 to 19.05.2000 and exhibited both above said documents vide Ex.PW11/A and Ex.PW11/B. He FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 12 of 24 also produced the certificate u/sec 65 B of Indian Evidence Act vide Ex.PW11/C.
15. Sh. Ravi Anand Srivastav, Dy. Manager, Punjab National Bank was examined as PW12. He produced the certified copies of bank account statement of bank account no.944611 PNB Sansad Marg, New Delhi from 06.12.1999 to 21.07.2003 vide Ex.PW12/A, the bank account statement of the same account from 20.07.2003 to 05.09.2017 vide Ex.PW12/B. He produced certificate u/sec 2 of the Banker's Book Evidence, 1891 vide Ex.PW12/C. He produced the certified copies of bank account statement of bank account no.84749 PNB Sansad Marg, New Delhi from 06.12.1999 to 21.07.2003 vide Ex.PW12/D, the bank account statement of the same account from 20.07.2003 to 14.10.2006 vide Ex.PW12/E. He produced certificate u/sec 2 of the Banker's Book Evidence, 1891 vide Ex.PW12/F. He also exhibited authority letter vide Ex.PW12/G.
16. Inspector V.K.P. Singh was examined as PW13. He deposed that on 29.04.2000, a complaint was received from Trilok Singh regarding cheating on the pretext of providing US visa. He made an endorsement on the complaint and sent HC Baldev Raj alongwith rukka to the case registered which is Ex.PW13/A. Formal interrogation of accused Rajesh Kumar Vashistha was done at his house and Maruti Car was seized vide memo already Ex.PW8/C. FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 13 of 24 His personal search was conducted vide memo Ex.PW13/B. Verification report from US Embassy is Mark PW13/A. Search of Maruti Car was conducted and delivery slip was recovered. Accused confessed that Maruti Car purchased from cheated amount. He disclosed that he had thrown some passports near Badkal More. Passports were got recovered at his instance. Case property was deposited in Malkhana. Thereafter, accused Vijay Pratap Singh was arrested near Paras Cinema. From his personal search, five Visa collection slips were recovered. On the same day, accused Bhupinder Singh Cheema was arrested. Four Visa fee collection slips were recovered. One mobile phone was also seized. On 06.07.2000, accused Preetam came to the office of EOW. He was arrested vide memo Ex.PW13/C. His personal search was conducted vide memo Ex.PW13/D. His disclosure statement was recorded vide memo Ex.PW13/E. Search of accused Dheeraj and Manoj was made. Accused Dheeraj was arrested from Chandigarh vide memo Ex.PW13/F. His personal search was conducted vide memo Ex.PW13/G. His disclosure statement was recorded vide memo Ex.PW13/H. Accused Manoj could not be arrested and was declared PO.
17. The entire incriminating evidence brought on record against the accused were put to him and his statement under section 313 Cr.PC FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 14 of 24 was recorded separately. It is stated by accused Rajesh Kumar Vashistha that he has been falsely implicated in the present case. Nothing incriminating material was recovered from his possession. He was forced to make involuntarily statement.
It is stated by accused Bhupinder Singh Cheema that he is innocent and has been falsely implicated in the present case. He was kept in illegal detention and his arrest was shown later on.
It is stated by accused Vijay Pratap Singh that he has been falsely implicated on the basis of false complaint. No incriminating material was recovered from his possession and he was forced to make involuntarily statement.
18. I have heard Ld. APP for the State and Ld. counsel for the accused persons and have also perused the judicial file carefully.
19. The accused persons have been charged with the offence under section 420/120 B IPC for entering into criminal conspiracy to induce the complainant Trilok Singh to make the payment, Rs. 1,00,000/-, Rs. 5,000/- and Rs. 2,000/- and also for using forged Visa, collection fee slips and forged passport to induce the complainant to make the payment on false representation and thereby committed offence under section 471 IPC and 12 Passport Act.
FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 15 of 24
20. The accused persons have thus been called upon to face trial for offences committed against complainant Sh. Trilok Singh. This Trilok Singh has not stepped into the witness box to either prove his complaint or identify the accused persons as the ones who had allegedly committed offence against him.
21. Prosecution has examined other witnesses against whom the accused persons had allegedly committed offence by adopting similar modus operandi. Four independent witnesses i.e PW1 to PW4 have been examined to prove the alleged offence.
22. PW1 Sh. Rohit Razdan though stated at length about the offence committed by the accused persons. However, in his cross examination, he stated that "he has received the entire payment from the accused persons and that there Is no dispute between him and the accused persons." As far as accused Bhupinder Singh Cheema is concerned, he did not depose anything against him.
23. PW2 Sh. Yash Pal deposed that "he made the payment to accused Manoj in the presence of accused Vijay Pratap and Rajesh Vashistha. He does not talk about any payment having been made to accused Vijay Pratap and Rajesh. Moreover, the source of making the payment of Rs. 1 lac stands unexplained. This witness stated in his cross examination that "he has no grievance against accused Bhupinder Singh Cheema."
FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 16 of 24
24. PW3 Sh. Sandeep Kumar Makhija simply deposed that a receipt was shown to him by accused Rajesh Vashistha and he gave Rs. 1,00,000/-. Upon cross examination, he denied the suggestion of Ld. APP that accused Rajesh Vashistha asked him to pay Rs. 6,000/- per passport or that he alongwith Meenakshi Arora and Prince Arora visited the office of accused. He even denied the fact that accused Rajesh Vashistha told him that he would arrange Visa for him. He further denied the fact of paying of Rs. 19,500/- to accused. This witness failed to identify any of accused persons. Not much credence can be given to the testimony of this witness.
25. PW4 Sh. Kulwant Singh deposed that he handed over Rs. 8,000/-
to one Deepak who was present in the office alongwith accused Rajesh Vashistha. In his cross examination by Ld. APP he stated that he does not know what statement was recorded by the police as he is illiterate. He was asked to sign the papers by the police. He also denied the fact of handing over Rs. 50,000/- to accused Rajesh Vashistha. He even failed to identify accused Bhupinder Singh Cheema in Court. He resiled from his earlier statement under section 161 Cr.PC made to the police.
26. All these four witnesses were star witnesses of the prosecution who have not supported the version of the prosecution and have not deposed anything against the accused persons. From the testimony FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 17 of 24 of these witnesses, the guilt of the accused persons does not stand prove as far as the offence of dishonest inducement is concerned.
27. The accused persons have also been charged for offence under section 471 IPC for using forged passports and Visas.
28. In order to prove the offence committed by the accused, no witness has been examined to prove that the passports were forged or the Visas slips which were allegedly shown to the aggrieved persons in order to induce them to make payment were forged. It is stated by PW7 that "accused Vijay Pratap disclosed that he alongwith accused Rajesh Vashistha prepared collection fee receipts of American Embassy from one computer shop with the help of lady named Rizimal KM." This lady has not been examined to prove that the receipts were actually forged by the accused persons. In absence of any evidence for commission of offence by the accused persons, they could not have been charged for the aforesaid offence.
29. The other witnesses examined by the prosecution who were present at the time of accused persons or the alleged recovery affected in their presence. It is alleged against accused Rajesh Vashistha that at his instance, 10 passports were recovered which were kept in a blue colour polythene bag from the drain about 2-3 km away from Faridabad. It is stated by him that he alongwith IO, Trilok Singh, Rohit Kumar and accused were present at the time of FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 18 of 24 recovery. However, Rohit Kumar (PW1) has stated in his cross examination that "he had not gone to the ganda nala for recovery of passport."
30. Admittedly, no other public person has been joined at the time of recovery in compliance of section 100 (4) Cr.PC. Moreover, the recovery is effected from an open place which is accessible to the general public. It is quite interesting that the passports were thrown in the ganda nala few days before recovery and the same were found at the same place after the lapse of days.
31. Similarly, it has come in the evidence of PW7 that accused Bhupinder Singh Cheema disclosed that 5 passports were wrapped in black colour polythene and thrown in drain near IIT, ESSEX farm. Acused got recovered the said passports from the said drain. At the time of said recovery, one Trilok was stated to be present. This witness Trilok has not been produced in the witness box nor any independent witness has been examined to prove the alleged recovery. Moreover, as stated above, the recovery is effected after a lapse of few days from an open place which is accessible to the general public. Interestingly, the passports were found from the same place intact in the polythene bag.
32. The alleged recovery from the accused persons have been effected in the absence of any public witness and the witnesses as FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 19 of 24 stated by the raiding team to be present have denied their presence. Sh. Rohit (PW1) has categorically denied his presence at the time of recovery from ganda nala at the instance of accused Rajesh Vashistha. Witness Triok who is stated to be present at the time of recovery at the instance of accused Bhupinder Singh Cheema has not been produced in the witness box.
33. There is sheer non compliance of section 100 (4) Cr.PC which mandatorily require the public witness at the time of recovery.
Under these circumstances, there is absolute non compliance of Section 100 Cr.P.C. Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State"
FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 20 of 24 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 21 of 24 the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 22 of 24 can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
34. In view of the above discussion, the prosecution has miserably failed to prove that the accused persons induced either the complainant or the aggrieved persons to part with money. None of the prosecution witnesses has supported the story of prosecution in material particulars in order to prove the guilt of the accused persons. Neither the main complainant Trilok has been produced in the witness box nor any evidence has been led to prove that there was connivance between the accused persons except for the disclosure statement of co-accused.
35. In view of the aforesaid discussion, it is held that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubts, the benefit of which accrues in their favour. They are accordingly acquitted for the offence under section FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 23 of 24 420/471/120B IPC read with section 12 Passport Act.
Announced in the open
Court on 19.03.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 24 pages and each page is signed by me.
(POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 334/2000 PS Malviya Nagar (EOW) Page- 24 of 24