Delhi District Court
State vs . Vipin Kumar Shah & Rajkumar on 23 May, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04, WEST,
TIS HAZARI COURTS,DELHI
STATE Vs. VIPIN KUMAR SHAH & RAJKUMAR
FIR No. 169/2003
PS: MOTI NAGAR
U/S: 384/385/386/120-B/34 IPC
Sr. no. of the case : 678/2/10
Unique Case ID No. : 02401R0997672003
Date of commission of offence : 20.05.2003
Date of institution of the case : 04.07.2003
Name of the complainant : Sh. Paltan Jaiswal
Name and address of accused : 1). Vipin Kumar Shah
S/o Sh. Shatrughan Shah
R/o Village & PO Didhsara,
PS Shahput Katori,
District Samastipur, Bihar.
2). Rajkumar
S/o Sh. Upender Pandit
R/o Village & PO Baghra,
PS Mohdi Nagar,
District Samastipur, Bihar.
Offence complained of or proved : U/s 384/385/386/120-B/34 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment : 03.05.2016
Date of judgment : 23.05.2016
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JUDGMENT
1. The story of the prosecution in brief is that accused Vipin Kumar Shah was the employee in the factory of the complainant Sh. Paltan Jaiswal. The accused Vipin Kumar Shah threatening the complainant on phone that the complainant will not be allowed to start the factory at Manesar and son of the complainant will be killed unless the complainant gives Rs.5 Lac to him. The accused Vipin Kumar Shah extended these threats to the complainant on phone under a pseudo FIR No.169/2003, PS Moti Nagar Page 1/22 name. When the complainant reported the matter to the police, a raiding party was formed and employee of the complainant namely Sanjeev Kumar was included in the raiding party. Accordingly on the date, time and place given by the accused the raiding party including Sanjeev Kumar reached the spot with a cloth containing some books and newspapers with a view to trap the accused. The accused Vipin Kumar Shah was standing near a wall in the darkness while the another accused namely Rajkumar came to collect the money and was caught red handed by the police. The accused Vipin Kumar Shah, who was standing at some distance was also overpowered by the police. Accordingly after the investigation, police filed the present charge sheet against the accused persons namely Vipin Kumar Shah and Rajkumar.
2. The prima facie case U/s 384/385/386/120-B/34 IPC was found to be made out against both the accused persons. Accordingly, charges for the aforesaid offences framed against the accused persons. The accusation was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The prosecution got examined following witnesses in support of its case, which are as follows:-
4. PW1 Sh. Paltan Jaiswal stated that he used to run a plastic industry at Moti Nagar. It is stated that on 15.05.2003 he received a telephonic call in the evening hours, the person on phone asked him whether he is going to set up a factory in IMT, Manesar at Gurgaon to which he replied positively. The person on telephone informed him that he is man of of Akhilesh Singh and his name is Tripathi. The person on telephone informed that they are charging entry fee for establishing factory in Haryana. On that, this witness informed him that he is establishing the factory after obtaining loan from the bank. The caller on phone demanded Rs.10 Lac as entry fee and thereafter, he agreed on 5 Lac, amount for which this witness settled the matter. It is stated that on the same day he went to the police station Moti Nagar and met SHO, PS FIR No.169/2003, PS Moti Nagar Page 2/22 Moti Nagar, it is again stated by him that he had not gone to the police station on the same day rather he went to the police station on 20.05.2003, on which date he made complaint to the police. It is stated that he also informed the police on 19.05.2003. During the above four days gap the matter was bargained for amount of Rs.5 Lac. He exhibited his complaint as Ex.PW1/A. It is stated that the said complaint was handed over to ASI Zile Singh for investigation. Thereafter he also received telephonic calls for the ransom amount. This witness requested the caller not to made the calls on residence telephone and rather call him on his mobile phone no.9811032281. It is stated that he received several calls for the amount on his aforesaid mobile phone. The matter was settled for handing over the amount in Delhi in Punjabi Bagh area, earlier to that the caller was demanding the money in Haryana. It is stated that probably his staff member namely Sh. Sanjeev Kumar went with the police on 22.05.2003. It is stated that he had not accompanied the police to Punjabi Bagh. It is stated that he handed over a bag of black colour containing bundle of notes shape made of copies. It was around 10:00 or 11:00 PM. It is stated that he came to know regarding apprehension of those persons on 22.05.2003, time he could not recall. It is stated that he came to know from his accountant Sh. Sanjeev that one of the boy apprehended by the police was employed in the factory about one and half months earlier to the date of incident. It is stated that he was not having any knowledge regarding his name nor he had seen him. It is stated that he might have seen him once or twice in the factory. This witness pointed towards the accused Vipin Kumar and told that he had seen him in his factory. It is stated that police had shown to him the bag which was seized from those persons in the police station on 22.05.2003. The bag was containing some books and some papers. It is stated that the notes were not put in the bag when same were handed over nor the same were seen by him when shown to him by the police. This witness identified the books as Ex.P1 (colly) and raxine bag of black colour as Ex.P2. It is stated by him that the books were given by him to the police at his factory and FIR No.169/2003, PS Moti Nagar Page 3/22 bag was also given by him. It is stated that he also received threatening calls on his mobile phone, on his residential phone as well as on his office phone that if he will not give money, his children will be kidnapped and his family will have to face dire consequences. It is stated that Sanjeev as well as police officials went in his personal car make Tata Indica having no.2713. Police also recorded his statement besides complaint Ex.PW1/A. In his cross-examination it is stated by him that when accused was an employee in his factory he used to pay a salary of Rs.2,400/ to 2,600/- to unskilled workers and Rs.3,000/- to skilled workers. It is stated that accused Vipin Kumar Shah was not a permanent worker in the factory. He denied the suggestion that he was not paying salary to his workers properly and due to that there was resentment among his employees. It is stated by him that only a single worker, who was in fact his nephew had filed a case in Labour Court against him. It is stated that no other labour dispute was initiated by any of the other worker. It is stated by him that accused used to receive the salary of unskilled worker. He denied the suggestion that he used to take signatures from accused Vipin Kumar Shah on a salary of Rs. 3,500/- and he was paid only a sum of Rs.2,500/-. He denied the suggestion that workers of his factory went on strike. He also denied that he had some altercation with the accused due to the strike. It is further stated by him that police recorded his statement for the first time on 20.05.2003 or 20.06.2003, however, after that day his statement was not recorded again. He could not recollect whether he put his signature on his statement or not. It is stated by him that his statement was recorded in his office but he could not tell which one of the police official recorded his statement. It is stated by him that his statement was recorded by the police only after arrest of the accused persons. It is stated by him that on 15.05.2003 his employee Sanjeev accompanied him to the police station where he gave statement to the SHO, it is stated that his statement was in fact written by ASI Zile Singh. It is stated that in his statement dated 15.05.2003 he stated about the ransom call received by him. It is stated by him that before FIR No.169/2003, PS Moti Nagar Page 4/22 15.05.2003 all the threatening calls were received by him on his land line number installed at his office and not on his mobile phone. It is further stated that till 19.05.2003 he did not receive any threatening call on his mobile. It is stated by him that his land line phone installed at the office was not having caller ID facility. It is stated that he received threatening calls two or three times on 19.05.2003 and 20.05.2003. It is further stated by him that he gave his statement in Police station on 20.05.2003, which was recorded by ASI Zile Singh at about 08:00 PM. It is again stated by him that when his statement was recorded on 20.05.2003 both the accused persons have been arrested by the police. It is admitted by him that his statement Ex.PW1/A was recorded on 20.05.2003. This witness denied receiving any notice dated 07.04.2003 which might have been sent by the accused. It is stated by him that he was in police station till 10:30 to 11:00 PM on 20.05.2003 after knowing that accused persons have been arrested. It is stated by him that he alongwith Sanjeev reached the police station on 20.05.2003 at 08:00 PM thereafter after about 15 minutes. He left the police station with Sanjeev. He again visited the police station on the same day with Sanjeev between 10-11:00 PM. It is stated by him that when the second time he reached the police station with Sanjeev he was told by the police that accused persons have been arrested. It is stated by him that police had taken his signatures on a number of documents other than his statement. He denied the suggestion that he has falsely implicated the accused persons.
5. PW2 Rakesh Thakur stated that he was running a PCO booth. It is stated that he does not remember the date, however, it was year 2003, one person used to come to his shop to make a call. After some time some police official came to him alongwith that boy/person. Police told him that accused Vipin Kumar Shah demanded ransom money from one Jaiswal. It is stated that the police official had shown some telephone numbers and he had given two slips of the same telephone numbers, which was shown to him by the police but he could not recall that numbers. It is stated that on next day, the police official called him FIR No.169/2003, PS Moti Nagar Page 5/22 in the police station. The police obtained his signatures after recording his statement. It is stated by him that he can identify the boy who used to come at his shop for telephone. The witness correctly identified the accused present in the Court. In his cross-examination, it is stated by this witness that he knew complainant Mr. Paltan Jaiswan. It is stated by him that the police met him for the first time in respect of the present case at about 07:00 PM, however, he could not tell the date. It is stated by him that when police came to his shop, they were accompanied by Mr. Jaiswal who was known to him and one another person namely Mr. Vashishth. It is stated by him that except the said persons no one else was accompanying the police party. It is stated that his statement was recorded at the shop on the same day which was signed by him. It is further stated that even on the next day he was called in the police station, where his statement was again recorded which was also signed by him. It is stated that he met the accused persons, whose name he came to know later on as Vipin Kumar in the police station. It is stated by him that he had seen the accused Vipin for the first time in the police station. This witness was further cross-examined by Ld. APP for State. During cross-examination by Ld. APP, he denied the suggestion that the police had also taken accused Rajkumar besides accused Vipin Kumar on 20.05.2003. He further denied the suggestion that the co- accused present in the Court namely Rajkumar had also come with the police.
6. PW3 HC Raj Singh was the Duty Officer on 20.05.2003, who exhibited on record copy of FIR as Ex.PW3/A (OSR). In his cross- examination it is stated by him that tehrir was received by him at 09:30 PM.
7. PW4 Sanjeev stated that in May 2003, he was accountant in Jaiswal Industries at Rama Road and Mr. Paltan Jaiswal was proprietor of the company. They were working on a plant at Manesar, Haryana. It is stated that some extortion calls were received by Mr. Paltan Jaiswal. The person, who called, claimed himself as Tripathi known as a member of criminal gang of Akhilesh Kumar operating in U.P. The said FIR No.169/2003, PS Moti Nagar Page 6/22 person Tripathi told Paltan Jaiswal on telephone if he is installing a plant at Manesar, he has to pay the money for entering in Haryana as no one can enter or install a plant in Haryana without paying money. It is stated that due to the calls Mr. Jaiswal was shocked and remained upset, Mr. Jaiswal used to remain in the office till late hours and was under some fear, however, he did not disclose the threatening calls on the days when he received the same. It is stated that after 2-3 days, Mr. Jaiswal told him regarding the threatening extortion calls received by him. It is stated that on 19.05.2003 they conveyed the threatening calls received on phone to the police. Police advised them that whenever they received a call again, the should negotiate with the caller and try to get the extortion amount reduced and to settled the place of delivery of money. It is stated that initially the extortionist demanded Rs.10 Lac. On the next day i.e. 20.05.2003 the threatening call was received to Mr. Jaiswal from the same extortionist. Mr. Jaiswal acted upon the advise of police and negotiated the settled amount and got the same reduced to Rs.5 Lac. The place of delivery of money was settled in Punjabi Bagh Cremation Center at Parking. Mr. Jaiswal requested the extortionist to disclose the identity of the person to whom the money would be delivered. The extortionist told him that the person to whom the money has to be delivered will be wearing white shirt and blue jeans. Mr. Jaiswal told the extortionist that the money would be delivered by his employee (this witness), who would come in Indica Car No.DL-3CU-2713. It is stated that they immediately contacted the police who advised them that as soon as the money would be delivered to the extortionist, the person who delivered the money to the extortionist will give indication by putting his both hands on the head. It is stated that they were accompanied by police personnels in civil cloths for the delivery of money to the extortionist. It is stated that one police official wearing civil cloth accompanied this witness in the Indica car, however, the police official got down before the place of delivery. It is stated that one another car consisting of police officials was parked opposite the cremation center on the side of Punjabi Bagh Club. The whole incident FIR No.169/2003, PS Moti Nagar Page 7/22 took place at 09:30 to 11:00 PM for the delivery of money to the extortionist. It is stated by the witness that he parked the said Indica Car at the specified place, he saw that one person was approaching him, who was wearing white shirt and blue jeans i.e the description given by the extortionist. It is stated that the police had put some books in a black bag which was handed over to this witness for delivering the same to the extortionist. The said person approached this witness and demanded the money, accordingly, he handed over the black bag to the said person and gave signal by putting his both hands on the head to the police persons. The said person started walking towards Punjabi Bagh Club side, the extortionist to whom he handed over the bag went towards another extortionist who was standing near the club wall of Punjabi Bagh. Both extortionist were standing there and at the same time police conducted raid and apprehended both the extortionists. The witness identified both the accused persons present in the Court. It is stated that both the extortionists were found possessing the bag given by him. This witness identified accused Vipin Kumar Shah being an employee of Mr. Jaiswal in Jaiswal Industries. The bag was handed over to him by the police containing books and newspapers vide handing over memo Ex.PW4/A. It is stated that police had taken the bag from the possession of accused Vipin Kumar Shah in his presence near Punjabi Bagh Club wall vide seizure memo Ex.PW4/B. It is stated that both the accused persons confessed their crime as how they planned to extort the money. Disclosure statements of accused Vipin Kumar Shah is Ex.PW4/C and disclosure statement of accused Rajkumar is Ex.PW4/D. This witness stated that the phone number of Mr. Jaiswal are 9811032281 (mobile), 25457984, 25442102 and 25918036 (all three land line numbers). It is stated that the print outs of the calls made from STD booth belonging to Rakesh at Sudarshan Park was taken by the police in his presence which was seized vide seizure memo Ex.PW4/E. It is stated that from that telephone booth the extortionist made telephone calls to Mr. Jaiswal on 20/19.05.2003. It is stated that both the accused persons had taken him as well as police FIR No.169/2003, PS Moti Nagar Page 8/22 party to the telephone booth from where they made threatening calls. The pointing out memo is Ex.PW4/F. It is stated that co-accused Rajkumar received the bag from him who was wearing the white shirt and blue jeans and he handed over the bag to accused Vipin Kumar Shah. It is stated that he joined the investigation after confession of accused persons and they pointed out the place, they also disclosed how they made the conspiracy. It is stated that accused Rajkumar and accused Vipin Kumar Shah were personally searched and arrested vide memos Ex.PW4/G, PW4/H, PW4/I and PW4/J respectively. The site plan Ex.PW4/K was prepared at the instance of this witness, where the money was delivered and both the accused persons were caught. This witness correctly identified the case property i.e. the bag containing 4 books as Ex.P1. In his cross-examination it is stated by him that he knows complainant since 1997. It is stated by him that complainant was having factory at F-393, Sudershan Park. It is stated by him that accused Vipin Kumar was also working in the factory as a skilled labour. It is stated by him that there was no trade union in the factory. This witness shown his ignorance to industrial dispute in the factory. It is stated by him that his statement was recorded by SI Zile Singh on 20.05.2003 at about 10:30 PM in the police station. It is stated by him that Mr. Paltan Jaiswal was also present in the police station at that time. It is stated that he had signed his statement recorded at the police station. It is stated by him that he accompanied complainant Paltan Jaiswal to the police station on 20.05.2003 at about 09:20 PM, remained there for 10 minutes and thereafter he left the police station and returned at 11:00 PM. This witness was confronted with his statement U/s 161 Cr.P.C as he had made a number of improvements on the same as it was not mentioned in his statement that they had apprised the police officials about the extortion calls on 19.05.2003 or were advised by the police officials to get the extortion amount reduced. He was also confronted with the fact that he has not mentioned in his statement U/s 161 Cr.P.C that one civil cloth police official accompanied him in the car or that another car of the police officials FIR No.169/2003, PS Moti Nagar Page 9/22 was standing on the Punjabi Bagh side of the road. He was also confronted with the fact that he has not mentioned in his statement U/s 161 Cr.P.C the phone numbers of the complainant. It is stated by him that he remained at the spot for about 15 minutes, however, in his presence police did not prepare any document. It is stated that after staying at the spot for 15 minutes he alongwith other police officials came back to the police station. It is stated by him that his statement was recorded by the police only in the police station.
8. PW6 Ct. Vipin exhibited on record the relevant entry dated 15.05.2005 at serial no.615 vide which complaint was lodged by P. Jaiswal, photocopy of which is Ex.PW6/A (OSR).
9. PW7 Retired SI Zile Singh stated that on 15.05.2003, a complaint Ex.PW7/A was handed over to him. He investigated the same and kept the same pending. It is stated that he directed the complainant namely Paltan Jaiswal (owner of Jaiswal Industries, Najafgarh Road, Moti Nagar) to call them (extortionists) in Delhi and fix time and place by showing his personal problem to those persons who were demanding Rs.5 lacs as extortion money. It is stated that on 20.05.2003 complainant and his worker came to him at about 08:30 PM at PS and told that extortionists have threatened and demanded money from him. It is stated that complainant also apprised him that the extortionists have asked him to send a person alongwith money at Ring Road, Punjabi Bagh near Shamshan Ghat in his Indica Car bearing no.2317. On that he recorded the statement of Paltan Jaiswal i.e. Ex.PW1/A. He prepared rukka Ex.PW7/B and handed over the same to DO for registration of FIR. It is stated that he kept some books and papers in a black colour bag and handed over the same to the servant of complainant namely Sanjeev Kumar, a handing over memo was prepared in respect of the bag i.e. Ex.PW4/A. It is stated that he sent Sanjeev Kumar, the servant of complainant in Indica car to Ring Road, Punjabi Bagh near Shamshan Ghat. In the meantime, he arranged a private vehicle and he alongwith HC Paras Kumar, HC Rajbir, Ct. Sunil and Ct. Dharmender prepared raiding party in plain cloths and boarded FIR No.169/2003, PS Moti Nagar Page 10/22 in that private vehicle and went to Ring Road, Punjabi Bagh near Shamshan Ghat. They reached at the spot and took position. At about 10:30 PM one boy came to Sanjeev Kumar from Punjabi Bagh Club after crossing Ring Road, the bou took the bag from Sanjeev Kumar and as he reached back to his friend, who was standing at the wall of Punjabi Bagh Club, they apprehended those persons. On interrogation, he came to know the name of the accused who had taken the bag from Sanjeev Kumar as accused Raj Kumar (correctly identified) and his co- accused as Vipin Kumar Shah (correctly identified). It is stated that on interrogation he came to know that accused Vipin Kumar Shah was the employee of complainant Paltan Jaiswal. It also came in his knowledge that the threat was being given by accused Vipin Kumar Shah in the name of Tripathi, by showing himself as the man of Akhilesh Singh (who was a gangster of eastern UP). The bag was taken into possession vide seizure memo Ex.PW4/B. Accused persons were arrested and personally searched vide arrest memos and personal search memos Ex.PW4/G to PW4/J. It is stated that he prepared site plan Ex.PW4/K. Thereafter, they returned to PS. It is stated that he recorded disclosure statement of accused persons, which are Ex.PW4/C and PW4/D. Both the accused persons were sent up to lock- up. It is stated that both the accused persons were taken to the place from where accused Vipin Kumar Shah used to make calls to complainant, on his pointing out the STD booth a pointing out memo was prepared, which is Ex.PW4/F. It is stated that he collected the print outs of the call details/memory and the same were taken into possession vide seizure memo Ex.PW4/E. It is stated that he tried to take the call details of the mobile phone of the complainant but in vain. It is stated that he recorded the statement of witnesses and after completion of investigation, charge sheet was submitted in the Court for trial. He also exhibited the bag as Ex.P1. In his cross-examination it is stated by him that the complainant made the complaint in the police station for the first time on 15.05.2003 and the same was in the handwriting of the complainant. It is stated that the complaint was FIR No.169/2003, PS Moti Nagar Page 11/22 marked to him for further action, however, no entry in rojnamcha was made in respect of receipt of the complaint dated 15.05.2003. It is stated that complainant used to meet him and the SHO during the period between 15.05.2003 to 20.05.2003. It is stated by him that when he left the PS for spot FIR had already been registered and copy of the same was entrusted to him by the DO. It is stated by him that employee of the complainant namely Sanjeev Kumar had driven the Indica Car to the spot. It is stated that complainant did not accompany them and remained in the police station. It is stated that he alongwith other police officials reached at the spot in Maruti-800 which was driven by HC Rajbir and the same was belonging to HC Rajbir only, however, he could not tell the number of the car. It is stated by him that he prepared seizure memo, site plan, arrest memo, personal search memo, conviction slip sitting on a bench inside cremation ground. It is stated by him that he reached the police station at about 11:45 PM. It is stated that complainant Sh. Paltan Jaiswal was not present in the police station when he arrived there. It is stated that he had taken the accused persons on the next day at about 08:30 AM from the lock-up. He failed to remember if the accused persons disclosed in disclosure statement about the STD booth from where they used to make calls. He denied the suggestion that the accused persons were falsely implicated in the present case. He further denied the suggestion that accused persons were called to the police station and the present false case was foisted on them. He denied the suggestion that the accused persons did not point towards any STD booth.
10. PW5 HC Paras Kumar also deposed on the same lines as deposed by PW7 Retired ASI Zile Singh. In his cross-examination it is stated by him that departure entry was made at the time of leaving the police station, however, he could not tell who made the departure entry or the number of the same. It is stated by him that he engaged in the enquiry of the present case since 15.05.2003. It is stated that after registration of FIR on 20.05.2003 he alongwith ASI Zile Singh, HC Rajbir, HC Dharmender and Ct. Sunil left for the spot in a private car. The said FIR No.169/2003, PS Moti Nagar Page 12/22 vehicle was being driven by a private driver, however, this witness shows his ignorance to the name, parentage of the said private driver. This witness could not tell the make, number, colour of the vehicle in which they reached the spot. It is stated by him that the IO was in uniform. He could not tell if IO made entry of his departure. This witness could not tell from where the IO got the books and copies, which were kept in the bag to be delivered as money. It is stated by him that decoy witness i.e. Sanjeev Kumar was alone in his car and was driving the car himself. It is stated by him that he remained at the spot till 12:00 mid night. It is stated by him that his statement and statement of PW Sanjeev Kumar were recorded in the police station. It is further stated that statement of two police witnesses were recorded at the spot.
11. No other witness was left to be examined, hence PE was closed.
THE DEFENCE :
12. Statement of both the accused persons U/s 313 Cr.P.C. was recorded separately, in which all the incriminating evidences were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by them that accused Vipin Kumar had been employed as dye fitter in the company of the complainant in the year 2003. The other employees numbering around 100 including accused Vipin Kumar @ Bipin Kumar was having dispute with the complainant in respect of wages as the complainant used to make payment of lesser wages contrary to the government rules and on that account the trade union was formed by the employees of the factory to raise their voice against low wages being given by the complainant. Accused Vipin Kumar was the office bearer of the said trade union and being vocal in respect of the above said wages dispute against the complainant. The complainant became inimical towards him and with a view to suppress the agitation of the trade union, accused Vipin Kumar was taken to the police station from the office of the complainant situated at his factory by the police who were hand in glove with the complainant on 20.05.2003. Thereafter, accused Vipin Kumar called FIR No.169/2003, PS Moti Nagar Page 13/22 accused Raj Kumar in the police station to wriggle out the illegal act of the police and the complainant and after accused Raj Kumar reached at the police station Moti Nagar, he alongwith accused Vipin Kumar was falsely implicated in the present case and their signatures were obtained on certain blank papers forcibly by the police. It is stated by accused Vipin Kumar Shah that he had also issued legal notice dated 07.04.2003 to the complainant in respect of infirmity in the wages, which were to be paid to the employees of the company including him and the said notice was duly received and acknowledged by the complainant. Accused persons opted to lead defence evidence. Accused Vipin Kumar Shah examined himself as DW1.
13. DW1 accused Vipin Kumar Shah stated that he used to work in Jaiswal Industries from March 2002 till May 2005. At the time of joining he was assured by Mr. Paltan Jaiswal that he would pay a salary of Rs. 4,000/- per month however, Mr. Paltan Jaiswal did not pay Rs.4,000/- to him rather he only paid a sum of Rs. 2,500/- per month to him. It is stated that they used to make him work overtime every day but no overtime wages were paid to him. It is stated that after working for initial 5-6 months, he asked the complainant to pay the remaining 1,500/- per month salary. On that Mr. Paltan Jaiswal assured him that he would pay the outstanding as well as future amount. It is stated by him that he again asked Mr. Paltan Jaiswal for the outstanding salary after a month, on that occasion Mr. Paltan Jaiswal flatly refused to pay the outstanding amount. It is stated that there was a labour union in the Jaiswal Industries and he became its leader. It is stated that there used to be labour strikes in Jaiswal Industries, he also made complaints to the labour union. It is stated by him that he also sent a legal notice (Ex.DW1/A) to Mr. Paltan Jaiswal on 07.04.2003 through registered AD and UPC. The postal receipts are Ex. DW1/B and Ex. DW1/C. The official gazatte dated 20.06.2003 is Mark A (colly, running in 15 pages). It is stated that after service of the notice Mr. Paltan Jaiswal started giving him threats to withdraw the said notice. It is stated that on 19.05.2003, Mr. Paltan Jaiswal called him at his office at 10.00 AM, he FIR No.169/2003, PS Moti Nagar Page 14/22 reached there where three police officials were found in civil dress. It is stated that the police officials beaten and asked him to withdraw the said notice. On that he stated them that until and unless Mr. Paltan Jaiswal would pay his dues he will not withdraw the said notice. On that the police officials and Paltan Jaiswal took him to PS. It is stated that at police station they started beating him and threatening him that they will teach him a lesson and booked him in the above noted false case on the instance of complainant Paltan Jaiswal. It is stated that on 20.05.2003, he was produced before the concerned court and sent to JC. It is stated by him that he is innocent and has been falsely implicated by the police at the instance of the complainant. This witness was cross-examined by Ld. APP. In his cross-examination by Ld. APP it is stated by him that he was the secretary of Labour Union, however, there was no election for the secretary of Labour Union. It is stated by him that he cannot produce any document to prove that he was the Secretary of Labour Union. He could not tell on which date he became the secretary of the Labour Union. It is stated by him that he cannot produce any document to show that he was ever been a secretary of Labour Union. It is stated by him that he had not given any written complaint against the complainant to the labour union that the complainant is not paying Rs. 1,500/- to him. It is stated by him that he had given oral complaint to the union. It is stated by him that he had not lodged any complaint to the higher officials or anywhere regarding the beatings given to him by the police official. He denied the suggestion that he is deposing falsely as he was not beaten by the police officials or threatened by the complainant.
THE ARGUMENTS:
14. Ld. APP for state has argued that witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section U/s 384/385/386/120-B/34 IPC are proved beyond reasonable doubt.FIR No.169/2003, PS Moti Nagar Page 15/22
15. On the other hand, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons. It is argued that the prosecution witnesses are not reliable and there are a number of contradictions in their testimonies demolishing the entire case of the prosecution. It is argued that no case made out against the accused persons and they deserve acquittal in the present case.
THE FINDINGS:
Offence U/s 384/385/386/120-B/34 IPC:
16. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
17. In the present case PW1 Sh. Paltan Jaiswal has stated that he received threatening/extortion calls, he apprised about the same to the police officials. After negotiation date, time and amount was fixed by the extortionist, on the complaint of PW1 FIR was registered. A raiding party was constituted including PW4 Sh. Sanjeev, an employee of the complainant alongwith police officials. Sh. Sanjeev handed over a bag containing books and newspapers instead of cash to one of the accused Rajkumar at the place fixed by the extortionist, the other accused Vipin Kumar Shah was also present nearby the place fixed.
Accused Rajkumar handed over the bag to accused Vipin Kumar Shah, however, they both were arrested red handed on the spot. Accused Vipin Kumar Shah was an ex-employee of the complainant. The accused persons also pointed out the STD booth belonging to PW2 Sh. Rakesh Thakur from where they made the extortion calls. Call receipts were seized from that shop. Thus from an overall/cursory look it appears that the case of prosecution is water tight, however, from the meticulous examination of the testimony of the witnesses and documents available on record, following facts emerge which proves otherwise:-
a). It is accepted by PW7 IO/Retired SI Zile Singh that he received a handwritten complaint i.e. Ex.PW7/A from complainant Sh. Paltan FIR No.169/2003, PS Moti Nagar Page 16/22 Jaiswal on 15.05.2003 regarding the extortion calls received by him, however, no DD entry regarding receipt of that complaint was made.
Further, the complaint was kept pending without any apparent reason by IO Retired SI Zile Singh without registering an FIR. It is also to be noted that Ex.PW7/A is not a handwritten complaint rather it is a typed one. It is also to be noted that in the complaint Ex.PW7/A dated 14.05.2003 the complainant himself mentioned the location (Sudershan Park) and the number of PCO from where he was receiving extortion calls. Thus the IO was having a lead on which he should have started investigation by interrogating the owner of said PCO but he chooses to keep the complaint pending without any reason whatsoever. Surprisingly when finally the FIR was registered on 20.05.2003 within two hours of registration of the same both the accused persons were arrested by the police. Thus it is apparent that the police has not conducted the investigation in a proper manner. These anomalies raise a doubt on the story of the prosecution.
b). In his testimony before Court PW1/complainant Sh. Paltan Jaiswal has stated that he received the extortion call on 15.05.2003. He categorically mentioned that he did not receive any call prior to 15.05.2003, but surprisingly his complaint Ex.PW7/A regarding the extortion calls was typed on 14.05.2003, wherein it is stated by him that he was receiving extortion calls for last 10 days. It is also stated by him that while he received phone call on 15.05.2003 the extortionist demanded a sum of Rs.10 Lac, however, he informed the police on 19.05.2003 as during the period of 4 days he was trying to get the extortion money reduced. Similarly it is stated by PW4 Sh. Sanjeev that they informed the police on 19.05.2003 about the threatening call and police officials advised them to negotiate with the extortionist to get the extortion money reduced. On the other hand in letter Ex.PW7/A typed on 14.05.2003 it is categorically mentioned that the extortionist demanded a sum of Rs.5 Lac only, thus there was no question of conducting any negotiation at the advice of police to reduce the amount of extortion. These contradictions show that prosecution witnesses are FIR No.169/2003, PS Moti Nagar Page 17/22 not deposing truthfully before the Court.
c). PW1 Sh. Paltan Jaiswal, on whose statement rukka was prepared and FIR was registered, categorically stated in his cross-examination that his statement was recorded by the police only after the arrest of the accused persons. In his further cross-examination he again stated that when his statement was recorded on 20.05.2003 both the accused persons have already been arrested by the police. The witness pointed out that his statement recorded on 20.05.2003 is Ex.PW1/A, statement Ex.PW1/A is the one on the basis of which rukka was prepared. Thus, from the testimony of the complainant it is established that his statement was recorded after arrest of the accused persons, on the other hand case of the prosecution is that the accused persons were arrested only after registration of FIR. From these facts it appears that FIR of the present case is ante time and thus the investigation is tainted which further raises doubts on the case of the prosecution.
d). It is stated by PW1/complainant Sh. Paltan Jaiswal that till 19.05.2003 he had not received any threatening call on his mobile rather all the threatening calls were received by him on the land line phone installed at his office which was not having caller ID facility. This part of the testimony of PW1 Sh. Paltan Jaiswal is inconsistent with his complaint dated 14.05.2003 Ex.PW7/A, wherein he has mentioned that he received threatening calls on his mobile number and also apprised the number of PCO from where he was receiving threatening calls as well as the place where the PCO was situated. These contradictions show that letter dated 14.05.2003 might also be ante dated.
e). It is to be noted that in the letter dated 14.05.2003 the location and number of the PCO from where complainant was receiving threatening calls was mentioned. The PCO was in the vicinity of the factory of the complainant as the factory of the complainant was at F-393, Sudershan Park and the alleged PCO was at F-227, Sudershan Park. Despite knowing the location and the number of the PCO on 15.05.2003 itself police officials made no efforts to interrogate the owner of the PCO or to collect the print out of the records of the calls made prior to 15.05.2003.
FIR No.169/2003, PS Moti Nagar Page 18/22The alleged telephone receipts recovered by the police from the PCO owner are dated 19.05.2003 and 20.05.2003 while since 15.05.2003 police was aware that alleged extortionist was making calls from that PCO. In such situation fabrication of the evidence cannot be ruled out. It is also to be noted that owner of the PCO booth PW2 Sh. Rakesh Thakur has accepted in his examination that complainant Sh. Paltan Jaiswal was known to him.
f). The testimony of PW2 Sh. Rakesh Thakur, owner of the PCO booth is also showing that police has not conducted investigation in the present case in proper manner. This witness could not tell the date of the incident, however, it is stated by him that one day at about 07:00 PM police came to his shop with complainant Sh. Paltan Jaiswal and one another person namely Vashisth. Next day he was called to the police station where his statement was again recorded. In the police station he met the accused, whose name he later on came to know as Vipin Kumar. It is stated by this witness that he had seen accused Vipin Kumar for the first time in police station. Even in his cross-examination by Ld. APP he denied the suggestion that accused Rajkumar had also come with the police to his shop. Thus this witness in his cross- examination demolished the entire case of the prosecution that the accused persons pointed out his PCO booth. It is also to be noted that the pointing out of the PCO booth by the accused persons on 21.05.2003 has no value in the eyes of law when police was already aware about the PCO booth from where threatening calls were made since 15.05.2003. Apparently the entire proceedings of pointing out the PCO booth by the accused persons on 21.05.2003 and taking slip of call records from the PCO booth owner are just an eye wash.
g). Since it has already been observed that the FIR appears to be ante dated/ante time, thus the raid conducted pursuant to the registration of said FIR also comes under the cloud, apart from that, following facts also show that conducting of the raid as stated by the prosecution is doubtful:-
i). No DD entry has been proved on record to show that police FIR No.169/2003, PS Moti Nagar Page 19/22 officials left the police station for conducting any such raid to nab the extortionists.
ii). The police officials could not tell from where the books were arranged to be put in as cash in the bag prepared for handing over to the extortionist by PW4 Sh. Sanjeev, an employee of the complainant.
iii). It is stated by PW4 Sh. Sanjeev that a police official went nearby the spot fixed for delivery of money in his car, however, no police official examined before the Court has stated that he had accompanied PW4 Sh. Sanjeev in his car till nearby the spot fixed for delivery of money. On the other hand it is stated by PW5 HC Paras Kumar and PW7 IO Retired SI Zile Singh that PW4 Sh. Sanjeev went alone in his car.
iv). It is stated by PW5 that HC Paras Kumar, one of the member of alleged raiding party that Sh. Sanjeev Kumar went alone to the spot in an Indica car, while the entire police party reached the spot in a separate private car driven by a private person. PW5 HC Paras Kumar despite claiming to be a member of the raiding party could not tell the make, colour, number of the car in which the police party reached the spot or the name, parentage of the private person who was driving that car. On the other hand PW7 Retired IO SI Zile Singh stated in his examination-in-chief that he arranged a private car for the raiding party for reaching the spot, however, in his cross-examination he changed the stance and stated that they reached the spot in a Maruti-800 car belonging to and driven by HC Rajbir Singh. It is to be noted that HC Rajbir Singh though claimed to be a member of raiding party has not been named in the list of witnesses as a witness of the case.
18. From the above stated facts it is apparent that the case of prosecution is not truthful. From the entire circumstances of the case it appears that accused persons were not arrested from the place and at the time as alleged by the prosecution. The prosecution has failed to prove any record of the alleged threatening calls received by the FIR No.169/2003, PS Moti Nagar Page 20/22 complainant prior to 15.05.2003. It has already been observed that the record of telephone calls dated 19.05.2003 and 20.05.2003 can be fabricated as since 15.05.2003 police officials were aware about the location and number of the PCO booth from where complainant allegedly received the threatening calls. The above stated facts raise a serious doubt that the FIR in the present case is ante dated and ante time as complainant himself stated that his statement Ex.PW1/A, on the basis of which FIR was registered, was recorded only after arrest of the accused persons. In these circumstances the alleged story of conducting a raid and arresting the accused persons red handed while collecting the extortion money appears to be false. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. The accused is entitled to the benefit of reasonable doubt in the prosecution story.
19. The contention of Ld. APP for State that accused has taken a bald defence and has filed on record a fabricated letter purportedly dated 07.04.2003, it is contended that the letter came into light only two years after filing of the FIR. It is also pointed out that factory of the complainant was in Sudershan Park area, accused was residing in Sudershan Park area, however, the stamps on the postal receipts of that letter are of Civil Lines Post Office, which is generally used by Advocates practicing in Tis Hazari Court, thus apparently the letter and the alleged postal receipts of the same were fabricated as defence evidence on the ill advice of someone and that is why no witness has been examined from Postal Department or from the Department of Labour Commissioner to whom allegedly the copy of the letter was sent. It is also pointed out that accused Vipin Kumar Shah never filed FIR No.169/2003, PS Moti Nagar Page 21/22 any case before Labour Commissioner against complainant Sh. Paltan Jaiswal, which proves that his alleged defence and the letter dated 07.05.2003 are false. It is contended by Ld. APP that this malafide conduct of the accused is relevant U/s 8 of Indian Evidence Act to show malice of his mind. The contention of Ld. APP are not tenable firstly at the time of cross-examination of accused Vipin Kumar Shah U/s 315 Cr.P.C no question was put to him regarding the veracity of the letter dated 07.05.2003, thus it cannot be concluded that the letter is a fabricated one. Secondly it is accepted principle of criminal law that prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused.
20. In view of the above stated facts and discussion this Court is of the considered opinion that prosecution has failed to prove guilt of the accused persons beyond reasonable doubt. Accordingly, it is a fit case in which benefit of doubt must be given to accused persons, which is accordingly given. Hence, accused Vipin Kumar Shah and Raj Kumar are hereby acquitted from the charges of offences punishable U/s 384/385/386/120-B/34 of IPC.
21. Accused persons have furnished fresh bail/surety bonds in terms of Section 437-A Cr.P.C. The same have been accepted. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 23.05.2016 MM-04 (WEST)/DELHI
Containing 22 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No.169/2003, PS Moti Nagar Page 22/22