Delhi District Court
State vs . Kailash Chand on 22 May, 2013
IN THE COURT OF MS. JYOTI KLER: METROPOLITAN MAGISTRATE
(MAHILA COURT) SOUTH DISTRICT, SAKET COURTS:NEW DELHI
State Vs. Kailash Chand
FIR No. : 104/96
U/S : 506/507/509 IPC
PS : Hauz Khas
Case ID : 02403R0443682003
Details of the Case:
a) Sl. No. of the case : 59/2/09
b) Date of commission of offence : 06.02.1996
c) Date of institution of the case : 28.09.1996
d) Name of the complainant : Smt. Betty Farnandes
e) Name & address of the : Kailash Chand
accused S/o Sh. Harbans Lal Bakshi,
R/o B1/162, Malka Ganj, Delhi.
f) Offence complained of : 506/507/509 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 20.04.2013
i) Date of Judgment : 22.05.2013
j) Final Order : Acquittal
Judgment:
1.This matter pertains to the year 1996. Victim of this case was a young married lady, and the accused, a middle aged Indian Male. The case is based upon a complaint dated 06.02.1996 lodged before the SHO PS Huaz Khas by the victim / complainant Smt. Betty Farnades. FIR was registered on the same day at about 11:25AM for the offences punishable U/s 506/507/509 IPC. Investigation was handed over to SI Bansi Lal.
Obscene Calls
2. Complainant in this case was allegedly the victim of obscene calls. FIR No. 104/96 PS: Hauz Khas Page 1 of 24 Hence, on 13.12.1995, her husband, namely Sh. Harun Riaz, lodged a complaint before the SHO PS Hauz Khas. On the same day, he also sent an application addressed to Sh. S.L. Maggu, Sub Divisional Engineer, Telephone Exchange, Hauz Khas, for tapping of his phone so that the caller could be traced and apprehended. Thereafter, on 06.02.1996 second complaint was lodged by the complainant alleging that she was receiving obscene calls on her telephone number 6967812 for past four months. Caller used to identify himself with different names. He first introduced himself as Anil Bhandari, thereafter Vinod Kapoor and then Vinod Sharma. He used to utter words like "Darling", "Dear", "Kiss", "Sex", "orgasmic rhythm" etc. He used to compel the complainant to meet him either at her residence or at places like Dear Park, Shyama International Guest House and Rainbow pastries. He used to call up almost 20 to 25 times a day and would threaten to kill the complainant whenever she refused to meet him.
Raid
3. On receiving the investigation of this case, IO SI Bansi Lal, constituted a raiding party consisting of himself, HC Azad Kumar, HC Krishan Pal and Ct. Ram Niwas. Raiding team was briefed about the plan after which it left for the residence of the complainant situated at X28, Hauz Khas, Delhi. IO advised the complainant to invite the caller to her residence as and when she receives the call. As per instructions of the IO, complainant invited the caller to meet her at her residence on receiving his call. Thereafter, the raiding party took its position. HC Azad Kumar stood on the right side of the main gate, HC Krishan Pal stood on the left side of the main gate and Ct. Ram Niwas took his position in FIR No. 104/96 PS: Hauz Khas Page 2 of 24 the kitchen. At around 1.10PM to 1.15PM accused reached at the house of the complainant on his scooter make Bajaj Chetak, colour Grey, bearing registration No. DLISD1056. He removed his helmet and took out a camera and reached at the first floor of the house. He rang the door bell. Complainant opened the door. Accused introduced himself and the complainant took him inside. As soon as the accused entered in the house he was apprehended and arrested by the Police staff. His disclosure statement was recorded. The scooter and camera were seized vide seizure memo and personal search memo respectively.
4. During further investigation, IO received the copy of complaint dated 13.12.1995, application to MTNL dated 13.12.1995 and call detail records of 13.12.1995 and 14.12.1995 of phone No. 6967812 belonging to the complainant from SI O.P. Kaushik to whom the first complaint was marked. These documents were made a part of the chargesheet of the present case. Trial
5. The chargesheet was filed in the court on 28.09.1996. Copy of chargesheet was supplied to the accused in compliance of Section 207 Cr.P.C. Arguments were heard on the point of charge. Accordingly, on 13.03.2002 on the basis of prima facie case, charge u/s 506II/507/509 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
6. Prosecution has examined total Nine witnesses in support of its case. These can be categorized as under:
i) Public Witnesses:
PW1: Harun Riaz; Husband of the Complainant. PW2: Betty Fernandez; Complainant / Victim. FIR No. 104/96 PS: Hauz Khas Page 3 of 24
ii) Raiding Team:
PW3: HC Azad Kumar, PW4: SI Babu Lal, PW7: SI Krishan Pal, PW8: HC Ram Niwas
iii) Official Witnesses:
PW5: SI O.P. Kaushik; Inquiry Officer of the Complaint dated 13.12.1995 lodged by PW1. PW5 (hereinafter referred PW5A to avoid confusion): Shakeel Ahmed; Official of MTNL. PW6: SI Sajjan Singh; Duty Officer
7. Following documents were relied upon by the prosecution during the examination of its witnesses:
i) Ex.PW1/A - Copy of complaint dated 13.12.1995 lodged by PW1.
ii) Ex.PW1/B - Copy of application dated 13.12.1995 addressed to Sh. S.L. Maggo, SDE, MTNL, signed by PW1.
iii) Ex.PW1/C - Personal Search Memo of the accused.
iv) Ex. PW1/D - Disclosure Statement of the accused.
v) Ex.PW1/E - Seizure Memo of scooter No. DL1SD1056.
vi)Ex.PW4/A (also Ex.PW2/A) - Complaint dated 06.02.1996 lodged by PW2.
vii) Ex.PW4/B - Copy of FIR.
viii) Ex.PW5/A1 to Ex.PW5/A6 - Call detail records of 13.12.1995 and 14.12.1995 for telephone number 6967812.
ix) Ex.PW4/A (hereinafter referred as Ex.PW4/A1 to avoid FIR No. 104/96 PS: Hauz Khas Page 4 of 24 confusion) - Rukka.
8. The following documents were relied upon by the defence during the cross examination of the witnesses of the prosecution:
i) Ex.PW1/DA - statement of PW1 recorded u/s 161 Cr.P.C.
ii) Ex.PW2/DA - statement of PW2 recorded u/s 161 Cr.P.C.
iii) Ex.PW3/D1 (also Ex.PW4/D8 and Ex.PW7/D1) - DD No. 20B PS Hauz Khas dated 06.02.1996 recorded at 10:16AM showing the departure of HC Krishan Pal with Ct.
Suresh, Ct. Narender Pal and Ct. Allauddin for Lal Bahadur Sanskrit Academy.
iv) Ex. PW3/DA (also Ex.PW4/D5) - DD No. 13B dated 06.02.1996 (year inadvertently recorded as 2001) recorded at 9:45AM showing the departure of HC Azad Kumar, Ct.
Megh Raj, Ct. Virender and Ct. Suresh for duty at Siri Fort.
v) Ex.PW3 (also Ex.PW4/D9) - DD No. 64B dated 06.02.1996 of PS Hauz Khas recorded at 9:25PM showing arrival of HC Krishan Pal. This DD entry refers to the departure of HC Krishan Pal vide DD No. 20B.
vi)Ex.PW3/D3 (also Ex.PW4/D7) - DD No. 14B dated 06.02.1996 (year inadvertently recorded as 2001) PS Hauz Khas recorded at 10:00AM showing the departure of Ct.
Ram Niwas with Ct. Kanwar, Ct Kabul and Ct. Satish for patrolling.
vii) Ex.PW3/D4 - DD No. 15A dated 06.02.1996 recorded FIR No. 104/96 PS: Hauz Khas Page 5 of 24 at 3:30PM to the effect that the raiding team returned from the spot i.e. residence of the complainant and brought the accused to PS after arrest and thereafter IO along with the accused in custody of HC Azad and Ct. Ram Niwas, left to Patiala House.
viii) Ex.PW4/D1 - caller identification apparently furnished by MTNL, Nehru Place, but does not bear any date, time or signature of the concerned official of MTNL.
ix) Ex.PW4/D1 (hereinafter referred as Ex.PW4/D1A to avoid confusion) - Statement of SI O.P. Kaushik recorded u/s 161 Cr.P.C. on 06.02.1996.
x) Ex.PW4/D2 - statement of SI O.P. Kaushik recorded u/s 161 Cr.P.C. on 07.02.1996.
xi) Ex.PW4/D3 - DD No. 34B dated 06.02.1996 recording the departure of SI Babu Lal for raid at 12:25PM with HC Azad, HC Krishan and Ct. Ram Niwas.
xii) Ex.PW4/D4 and Ex.PW4/D6 - DD No.14A dated 06.02.1996 recorded at 3:10AM in the form of a intimation to the Additional SHO. It is not relevant to the present case. In Ex.PW4/D6 the number of the DD entry is inadvertently noted as 14B instead of 14A.
xiii) Ex.PW4/D10 - DD No. 13A dated 06.02.1996 recorded at 2.40AM to the effect that the situation was critical at Lal Bahadur Sanskrit Vidhyapeeth and more force was required FIR No. 104/96 PS: Hauz Khas Page 6 of 24 to handle the students who were sitting on a Dharna.
xiv) Ex.PW5/D1 - subscriber details of phone No. 6967812.
xv) Ex.PW5/D2 - subscriber details of phone No. 5766540 and 5727185.
xvi) Ex.PW8/X1 - statement of Ct. Ram Niwas recorded u/s 161 Cr.P.C.
xviii) Mark 'A' Copy of DD No. 21A dated 06.02.1996 registered at PS Subzi Mandi qua the missing report of the accused. Original of this DD entry was produced by HC Dharambir PS Subzi Mandi before the Court on 10.05.1999 and it was returned after retaining a copy on record.
9. Entire incriminating evidence was put to the accused on 23.04.2011. He admitted the personal search memo but denied all the other evidence. He stated that he was posted as Personal Assistant to the Chairman of Agriculture Scientific Recruitment Board. Two months prior to this FIR, SI Babu Lal approached him and asked to provide certain documents regarding examination conducted for the recruitment of scientist as wife of some senior officer of Police was appearing. Accused refused to help him due to which SI Babu Lal bore a grudge against him and falsely implicated him in this case. He further stated that he was picked up at 5:40PM on 05.02.1996 and was detained illegally in the PS for the whole night. He was not allowed to inform his wife who lodged a missing report which was registered vide DD No. 21A dated 06.02.1996 at 6.40AM at PS Subzi Mandi. On 06.02.1996 Special Assistant to the Chairman i.e. Sh. Amar jeet visited PS Hauz Khas at about 10:30AM but no information about the accused FIR No. 104/96 PS: Hauz Khas Page 7 of 24 was given to him. At 1.15PM, he was falsely implicated in this case. Accused sought time to lead defence evidence.
10. During defence, accused examined two witnesses i.e. DW1 Sh. Hans Raj Bajaj and DW2 Sh. Amarjeet Singh. Accused relied upon the following documents during defence evidence:
i) Mark X - Copy of identity card of DW2 Amarjeet Singh.
ii) Ex.DW2/A - Report of Amarjeet Singh regarding detention of the accused and the proceedings conducted by the department thereupon which record that no information of arrest of the accused or copy of FIR was provided to the Department by the Police and hence, proceedings were filed without any action.
iii) Ex.DW1/A - Circular of Director General, MTNL elaborating the procedure for recording the obnoxious calls.
11. The testimony of the witnesses of prosecution and defence is discussed, in nutshell, in the forthcoming paragraphs. Public witnesses:
12. PW1, Haroon Riyaz, husband of the complainant deposed that his wife started receiving obscene calls in December 1995. Caller used to utter words like "Darling" and that "he wanted to have sex". Hence, he filed a written complaint at PS Hauz Khas on 13.12.1995. This complaint was identified by him as Ex.PW1/A. SHO advised him to get his phone tapped and therefore, he also filed an application Ex.PW1/B at the office of the MTNL. Phone calls were tapped and police advised his wife to invite the caller at their residence. She FIR No. 104/96 PS: Hauz Khas Page 8 of 24 accordingly invited the caller who agreed and visited their residence on a scooter on 06.02.1996. He and his wife identified the caller, who is the accused in this case, by his voice. Thereafter, accused was apprehended by the raiding team which was standing in plain clothes in and around their residence. He identified the personal search memo of the accused which is Ex.PW1/C, seizure memo of the scooter Ex.PW1/E and disclosure statement of the accused Ex.PW1/D. Accused was also identified.
13. During cross examination he deposed that the conversation between the accused and his wife was taped and he had told the IO that he shall produce the cassette in the Court but later on he handed it over to the IO SI Babu Lal without any acknowledgment. He admitted that the Cassette was never played before an independent witness though denied the suggestion that no cassette was ever prepared and that is why it was not produced before the Court. When questioned about his application to MTNL for observing the telephonic conversation, he first stated that the application was handed over by him to Sh. S.L. Maggu but again deposed that he handed it over to a Police Official who sent it to MTNL and he never entered in the office of MTNL. He deposed that his phone was taped by HC Ram Niwas in the presence of Police. He was confronted with the statement Ex.PW1/DA recorded u/s 161 Cr.P.C. about the taping of phone by HC Ram Niwas and about the presence of police outside his house. He denied the suggestion that the accused was forced to sign on his confessional statement; or that the accused was detained on 05.12.1996 and not on 06.02.1996 as recorded; or that he made a false complaint against the accused in order to extort money from him; or that he told the Chairman of FIR No. 104/96 PS: Hauz Khas Page 9 of 24 Agriculture Scientist Recruitment Board (ASRB), of whom the accused was a Personal Assistant, that he should send someone to Police Station for settling the matter or else he shall get the news of detention of his Personal Assistant published in the newspaper and reputation of ASRB shall be at stake. However, he deposed that he had called the Chairman, ASRB on 06.02.1996 (again said 07.02.1996) at 9:05AM introducing himself as Harun Riaz, Press Reporter. He deposed that he had called the Chairman to inform that one of the employee of his office was detained in PS Hauz Khas. He denied that he was tutored by the IO.
14. PW2 Betty Fernandes reiterated the contents of her complaint dated 06.02.1996 on oath and identified the same as Ex.PW2/A (also Ex.PW4/A). In addition, she deposed that the caller used to say that he wanted to have sex with her. She further deposed that after she moved the complaint, she was directed to record the conversation on tape recorder and Police was deployed at her house in plain clothes. When the accused made a call to her on 06.02.1996, she asked him to come over to her residence. Accused followed and rang the door bell at around 1:00PM. He was called inside and was arrested by the Police.
15. During cross examination she deposed that on 06.02.1996 she visited PS Hauz Khas twice. Once for lodging the complaint and again in the evening for completing certain formalities after arrest of the accused. She deposed that the accused used to call her countless times almost every day and duration of talk sometimes was half an hour or more than that. When she was further questioned on duration she deposed that initially she used to disconnect the phone after getting calls but later on she continued to talk at the directions of FIR No. 104/96 PS: Hauz Khas Page 10 of 24 Police. She deposed that she had never seen the accused prior to the date of incident. She was confronted with Ex.PW2/DA, her statement recorded u/s 161 Cr.P.C., upon the manner of arrest of the accused. She showed forgetfulness when questioned about the papers signed by her in the PS or at her residence and articles recovered during the personal search of the accused. She denied the suggestion that on 06.02.1996 she made a call to the Secretary, ASRB stating that he should either settle the matter or else news of detention would be published. She denied that she was deposing falsely under the influence of IO. Raiding Team
16. PW3 HC Azad Kumar deposed about the constitution of raiding party by IO SI Babu Lal and manner in which raid was conducted. He reiterated the version of charge sheet narrated in Para No.3 of this judgment. He also identified the disclosure statement of the accused Ex.PW1/D, seizure memo Ex.PW1/E and personal search memo Ex.PW1/C.
17. During cross examination he deposed that on 06.02.1996 he was on duty at Hauz Khas market and he came to the Police station at around 11:00AM to 12:00 Noon for taking a break, when IO SI Babu Lal informed him about the matter, after which he along with the IO went to the spot on foot, and other two members of the raiding party also reached on the spot from different directions within 10 minutes. He was confronted with the contents of DD No.13B dated 06.02.1996 (inadvertently recorded as 06.02.2001 in the document as is apparent from the admission of PW3 during cross examination to the effect that he remained in PS Hauz Khas till 2000, which leads to the inference that this DD entry No. 13B, cannot be of the year 2001), which is Ex.PW3/DA (also FIR No. 104/96 PS: Hauz Khas Page 11 of 24 inadvertently marked as Ex.PW4/D5) which shows that he had left the PS at about 9:45AM for Siri Fort. He showed forgetfulness about the contents of the said DD entry. This witness was further confronted with the contents of DD No. 20B, Ex.PW3/D1 (also inadvertently marked as Ex.PW7/D1 and Ex.PW4/D8) recording the departure of HC Krishan Pal at 10:16AM to Lal Bahadur Shastri Academy to which he showed unawareness but denied the suggestion that HC Krishan Pal did not accompany him for raid. He first deposed during cross examination that after conducting the raid, he had returned to the Police Station alone but later on said that he returned to the Police Station along with the entire team. He was confronted with DD No. 64B dated 06.02.1996 which is Ex.PW3 (also Ex.PW4/D9), showing arrival of HC Kishan Pal to the Police Station at 9:25PM to which he did not give an answer. He was also confronted with DD No. 15A which is Ex.PW3/D4 to which he reiterated that he had returned to the Police Station with the raiding team, and not alone.
18. PW4 SI Babu Lal deposed in sync with the testimony of PW3 about receipt of complaint and constitution of raiding party pursuant to registration of FIR. He identified the complaint Ex.PW2/A (inadvertently marked as PW4/A as well). He also identified the copy of FIR Ex.PW4/B, complaint dated 13.12.1995 Ex.PW1/A, personal search memo of the accused Ex.PW1/C and seizure memo of the scooter Ex.PW1/E.
19. During cross examination he deposed that he did not conduct any enquiry in the complaint dated 13.12.1995 as it was handed over to him subsequent to registration of present FIR. He admitted that he did not place on record any request moved by him to the Office of MTNL for obtaining the call FIR No. 104/96 PS: Hauz Khas Page 12 of 24 details of the phone on which complainant used to receive obscene calls. He also admitted that the call detail records Ex.PW5/A1 to Ex.PW5/A6 did not bear stamp and signatures of the official of the concerned telephone department by whom this record was handed over to the IO. He further admitted that the calls were never intercepted by him. Moreover, it was deposed by him that an enquiry into the ownership of phone from which obscene calls were made, revealed that the subscriber were Sh. R.L. Pandey and Sh. Nisar on behalf of Secretary, Anusandhan Bhawan, Pusa Road, where accused was working.
20. When questioned about the complaint Ex.PW1/A, he admitted that this did not bear any registration number though as per the practice in the police station the registration number is assigned to each of the complainant received. He also admitted that it did not bear any signature / endorsement of the SHO to the effect that it was handed over to SI O.P. Kaushik. However, he denied the suggestion that the complaint did not bear registration number or endorsement as it was created on 06.02.1996 in order to falsely implicate the accused. He further deposed that the complaint dated 13.12.1995 was handed over to him on 06.02.1996 by SI O.P. Kaushik after registration of FIR. He identified the statements of SI O.P. Kaushik dated 06.02.1996 and 07.02.1996 recorded u/s 161 Cr.P.C. and these are Ex.PW4/D1A and Ex.PW4/D2 respectively. He denied the suggestion that Ex.PW1/A bore his signatures at point X and deposed that these signatures are of Sh. Bhanwar Lal, Reader to the SHO.
21. When questioned about Ex.PW4/A, he deposed that the same was handed over to the SHO and he was not present when the SHO endorsed it for lodging of FIR. He deposed that he had visited the residence of the complainant FIR No. 104/96 PS: Hauz Khas Page 13 of 24 at around 12:30PM on 06.02.1996 along with the raiding team which reported at around 12:35PM. He admitted all the DD entries Ex.PW4/D3 to Ex.PW4/D10 contents of which have already been mentioned in paragraph No. 7 of the judgment.
22. Regarding the cassette of the obscene conversation, he deposed that the same was not handed over to him by the husband of the complainant though stated that such a cassette was prepared. He also admitted that Ex.PW1/C, which is personal search memo of the accused, does not bear the signature of HC Krishan Pal and Ct. Ram Niwas but stated that it was prepared at the spot. He denied the suggestion that HC Krishan Pal and Ct. Ram Niwas were not present on the spot and therefore the document Ex.PW1/C did not bear their signatures. He admitted that he did not get either of the documents signed by these two members of the raiding team. He also admitted that he did not try to check as to whether the Camera seized from the possession of the accused was working or not. He further admitted that the public persons were not invited to join the raiding party but clarified that the matter related to the dignity of a woman and therefore none of the neighbourers were informed about the raid. It was moreover admitted by the witness that he did not visit the office from where the caller was making the obscene calls.
23. This witness did not answer the question relating to missing report lodged by the wife of the accused at 6:40AM on 06.02.1996 at PS Subzi Mandi vide DD No. 21A copy of which is Mark 'A'. He denied that he demanded certain documents from the accused two months prior to the registration of the FIR, which he refused to supply and therefore, he was falsely implicated. He also FIR No. 104/96 PS: Hauz Khas Page 14 of 24 denied that accused was picked up on 05.02.1996 at about 5:30PM from his office and illegally detained in the PS for the whole night. He admitted that on 06.02.1996 a Senior Officer from the office of the accused had visited the Police Station but showed unawareness to the fact that he was Sh. Amar Jeet from ASRB.
24. PW7 HC Krishan Pal and PW8 HC Ram Niwas corroborated the version of PW3 and PW4 during examination in chief. During cross examination, both PW7 and PW8 admitted that none of the documents on record bore their signatures but denied that their signatures were not there as they did not join the raiding team and their names were added later on.
25. PW7 was confronted with the contents of Ex.PW3/D1 (also Ex.PW4/D8 and Ex.PW7/D1) and Ex.PW3 (also Ex.PW4/D9). He admitted the genuiness of these two documents but stated that he did not depart to Lal Bahadur Sanskrit Academy as he was stopped by the Duty Officer. However, when questioned about the reason, why he was stopped, he could not answer.
26. PW8 was questioned about the interiors of the house of the complainant where raid was conducted to which he showed unawareness. He also admitted that no public persons were invited to join the raiding party. He was confronted with Ex.PW8/X1, regarding signing of disclosure statement and personal search memo of the accused but admitted that as per record none of these documents bore his signatures.
Official witnesses
27. PW5 SI O.P. Kaushik, Enquiry Officer of the complaint dated 13.12.1995 lodged by PW1 deposed that the complaint on the said date was FIR No. 104/96 PS: Hauz Khas Page 15 of 24 received by him and he had got the telephone calls observed and obtained the report which is Ex.PW5/A1 to Ex.PW5/A6, from the office of Divisional Engineer, MTNL, Nehru Place, and he handed over the same to IO SI Babu Lal.
28. However, during cross examination this witness could not identify the letter from the record which was given to the Divisional Engineer for observation of phone calls. He deposed that he made an enquiry from the Telephone Exchange from time to time but when he was confronted with the Roznamcha Register from December 1995 to February 1996, he admitted that there was no departure or arrival entry in the said Roznamcha Register, showing the fact that he had conducted repeated enquiries from the Telephone Exchange. When further questioned about the name of the person from whom enquiries were made, place where that person was sitting and the capacity in which he was holding the office, this witness showed unawareness.
29. PW5A Sh. Shakeel Ahmed proved the call details of the phone belonging to the complainant as Ex.PW5/A1 to Ex.PW5/A6 and stated that these were true and correct as per the record of the MTNL. However, he did not bring the original record. On insistence of Ld. Counsel for the accused, he brought the subscriber details of phone No. 6967812 and 5766540 which are Ex.PW5/D1 and Ex.PW5/D2 respectively. During cross examination, he deposed that he had no knowledge of the complaint on the basis of which the phone was observed. He also admitted that he had no knowledge of the order of Divisional Engineer and that there is a procedure to record the obnoxious calls but there was no record revealing the fact as to on whose instructions the number 6967812 was observed. He also deposed that he had no personal knowledge of FIR No. 104/96 PS: Hauz Khas Page 16 of 24 the case as he was not the divisional Engineer in the year 1996.
30. PW6 SI Sajjan Singh, the Duty Officer proved the FIR Ex.PW4/A and endorsement on the rukka Ex.PW4/A. He was not cross examined by the accused.
Defence Witnesses:
31. DW1, Sh. Hans Raj Bajaj, deposed that he had worked as Deputy General Manager, MTNL till 31.03.1996 and hence, he was aware of the procedure for observing the obnoxious calls. He deposed that when any such complaint is received, the Asst. Engineer puts the phone on observation and traces the origin of obnoxious calls. After this he is required to submit a report to the Divisional Engineer. The Divisional Engineer will record his satisfaction and would give a notice to the subscriber of the phone from which the call was originating and he can disconnect the phone if the subscriber does not desist from making the call. He relied upon a circular issued by the Director General of MTNL, copy of which is Ex.DW1/A, to support his claim about the procedure narrated above. The documents Ex.PW4/D1 and Ex.PW5/A1 to Ex.PW5/A6 were also put to him to which he stated that the documents could not be relied upon as these did not bear stamp and signatures of the official of MTNL, who issued the same and that there was no forwarding letter attached with these documents.
32. He was cross examined by the Ld. APP for the State. During cross examination he admitted that Ex.DW1/A does not say anything about the fact that call detail reports are required to bear the stamp and signatures of the official of MTNL and that he had no document to show that he was working at MTNL. FIR No. 104/96 PS: Hauz Khas Page 17 of 24 He denied the suggestion that he was showing only that procedure which was in favour of the accused.
33. DW2 Amarjeet Singh deposed that on 06.02.1996 he had received a call from the wife of the accused at around 5:00AM enquiring about the accused. She stated that the accused had not returned home since the evening of the last day. At around 9:05AM when he was in the office, he received a phone call from a person introducing himself as Harun Riyaz. The call was forwarded to the Chairman, who summoned him at 9:40AM and directed him to visit PS Hauz Khas, where accused had been detained. When he went to PS Hauz Khas, he found that the accused was sitting there in the custody of SI Babu Lal, who did not inform him about the case in which the accused had been apprehended despite request and stated that he will fix him in some case. DW2 returned to his office thereafter and prepared a report Ex.DW2/A which was submitted to the Chairman. He further deposed that no notice was received from MTNL regarding misuse of the phone.
34. During cross examination he placed on record his identity card Mark X and admitted that he did not make any complaint about the false implication of the accused to any of the higher authorities. He further admitted that he did not make any entry in the official record while leaving for the Police Station. He denied that he was deposing falsely.
Arguments:
35. Ld. APP for the State argued that all the witnesses of the prosecution have corroborated each other in material particulars and the call detail records were also proved by the official of MTNL. Hence, the accused should be FIR No. 104/96 PS: Hauz Khas Page 18 of 24 convicted.
36. Ld. Defence counsel submitted that there are contradictions in the testimony of the witnesses who participated in the raid and the call detail records were also not proved as per law and hence the accused should be acquitted. Appreciation of Evidence:
37. I have considered the rival contentions. Record has been perused carefully.
38. In the present case, prosecution was required to prove that obscene calls were received by PW2; that these calls originated from the number in possession of the accused; and that these calls were made by the accused.
39. On careful perusal of record certain inconsistencies have been found in the evidence which could not be reconciled. These are discussed in forthcoming paragraphs.
Proper record of the complaint Ex.PW1/A and application Ex.PW1/B not produced.
40. Complaint Ex.PW1/A was not registered in the police station properly. The said complaint does not bear any registration number but only stamp of the police station. There is no endorsement on the said complaint to the effect as to whom it was marked for enquiry. PW5 deposed that the enquiry was marked to him and since 13.12.1995 till the date of registration of the FIR, he had made number of enquiries from the office of MTNL regarding the origination of obscene calls. However, he could not show any arrival or departure entry pertaining to this fact in the Rojnamcha register from December 1995 till February, 1996.
41. As per the record available with the MTNL, original of Ex.PW1/B FIR No. 104/96 PS: Hauz Khas Page 19 of 24 could not be traced. This document does do not bear any receipt regarding filing of the original in the office of MTNL. Sh. S.L. Magu, Divisional Engineer, to whom this complaint was addressed was not examined by the prosecution. It is not clear from the testimony of either of the prosecution witnesses as to whom the complaint was handed over. No specific answers qua this question were given by PW1 and PW5. PW5 could not identify from the record as to which application was handed over by him to the officials of MTNL for taking the call detail records.
42. PW5A also deposed that he was not in possession of the original record on the basis of which call detail record were handed over to the IO. He did not produce any application or order of any superior official under whose instructions the phone was taped. These inconsistencies raise a doubt on the genuiness of Ex.PW1/A and Ex.PW1/B. It becomes doubtful as to whether these two documents were ever moved or filed before the appropriate authority.
Call detail record not in proper format
43. The call detail record Ex.PW5/A1 to Ex.PW5/A6 and Ex.PW4/D1 does not bear stamp and signatures of the authority in possession of the record. There was no forwarding letter of the officer who handed over these documents to the police. The person who was incharge of the instrument from where the call details were traced and print out was taken, was not examined by the prosecution. The original record was not produced before the court and infact, PW5A admitted that the call detail record was never handed over by him to any of the police officials. As the call detail records were not proved as per the standards of Indian Evidence Act, there is no document to say that the obscene FIR No. 104/96 PS: Hauz Khas Page 20 of 24 calls originated from phone No. 5766540 or 5727185.
Constitution of raiding party is doubtful
44. Various DD entries proved on record and discussed above suggest that the police officials allegedly part of the raiding team were on duty somewhere else. There are DD entries which show departure of the police officials to somewhere else than the spot but no DD entries showing the arrival of these police officials from their respective duty before constitution of raiding team, have been proved on record.
45. IO deposed that he had left the police station at 12.25 P.M., for the spot. This is apparent from Ex.PW4/D3 which is a copy of DD No.34B. As per his own deposition, IO reached at the spot at 12.30 P.M and thereafter, he asked the complainant to invite the accused to her residence as and when she receives the call. Call was received after some time and the complainant invited the caller. As per the story of the prosecution, this call was made from Pusa Road. Caller reached at Hauz Khas at 1.15 P.M. The time gap between all these events alleged in the story of the prosecution is too short. It is unimaginable that within 45 minutes, accused made a call, he was invited, he started from his office at Pusa road and reached at Hauz Khas, considering quite a long distance between the two places. This again makes the story of the prosecution doubtful.
Phone call made by PW1 on 06.02.1996 in the morning
46. PW1, during his crossexamination, first admitted that he had made a call to the Chairman of Agriculture Scientific Recruitment Board, where the accused was employed as Personal Assistant to the Chairman on the morning of 06.02.1996 and informed him that an employee of his office was detained in the FIR No. 104/96 PS: Hauz Khas Page 21 of 24 police station Hauz Khas. However, he again immediately said that the call was made on the morning of 07.02.1996. This improvement of PW1 is not supported by record. As per record, the accused was released from custody by the court on the evening of 06.02.1996 and hence, there was no occasion for PW1 to make a call to the Chairman in the morning of 07.02.1996. Further, DW2 also deposed that a call regarding detention of the accused was received in the morning of 06.02.1996.
47. This inconsistency further strengthens the doubt raised upon the constitution of the raiding party from the various misleading DD entries dated 06.02.1996 and it strengthens the stand of the accused that he was apprehended in the evening of 05.02.1996.
Missing Report and Office Report
48. The doubt is further strengthened from Ex.DW2/A, which is a report prepared by DW2 after he returned back from the police station, regarding the absence of the accused from duty. This contemporaneous entry in the documents cannot be doubted unless and until some plausible reasons is shown. This report suggests that DW2 had visited the police station Hauz Khas in the morning of 06.02.1996, where he found that the accused had been detained.
49. The doubt is also strengthened from the contents of Mark A, which is DD entry of the missing report lodged by the wife of the accused at PS Subzi Mandi in the morning of 06.02.1996 stating that her husband i.e. the accused did not return home on the evening of 05.02.1996 though he had attended the office on the said date.
50. As the obscene calls or constitution of raiding party has not been FIR No. 104/96 PS: Hauz Khas Page 22 of 24 proved by the prosecution beyond reasonable doubt, the benefit of doubt must be extended to the accused, who is accordingly, acquitted of the offence charged.
Legal Action for Perjury
51. Ld. defence counsel during arguments prayed that a preliminary inquiry u/s 340 Cr.P.C be conducted and all the prosecution witnesses be tried for giving false evidence, as it has been established from the record that no raid was ever conducted and the call details are forged and were created only to falsely implicate the accused.
52. I have considered the submissions made by the ld. defence counsel.
53. First and foremost, the accused has been acquitted in this case giving him benefit of doubt. While appreciating the evidence, Court never concluded that the evidence produced by the prosecution was per se false and fabricated. A doubt was raised on the Constitution of raiding team, as no DD entry were filed to show the arrival of the police officials from their respective duties in the morning. However, non filing of such DD entries does not lead to the presumption that such entries never existed on the record. This fact could have been ascertained by summoning the Rojnamcha register, however, the matter is very old and the Rojnamcha register must have been destroyed by now. Hence, there is no record of DD entries for the year 1996, which can help the court in ascertaining that no arrival entry actually existed on the Rojnamcha register. Benefit of this fact definitely goes in favour of the IO and other police officials.
54. Mark A was not proved by accused by summoning original record or by examining his wife and hence, it cannot be said beyond reasonable doubt that the accused had gone missing on the evening of 05.02.1996. FIR No. 104/96 PS: Hauz Khas Page 23 of 24
55. As per Ex.DW2/A, the witness Amarjeet Singh was told by the IO that "he shall fix the accused in some case". However, the witness did not make any complaint to any superior authority, which is an unnatural conduct. Similarly, the accused did not lodge any complaint against the IO when he allegedly demanded certain documents pertaining to examination of the accused two months prior to the registration of the FIR. This conduct of the accused is also unnatural.
56. The accused has also been acquitted on the ground that the call detail record was not filed in proper form. However, the court did not observe in the judgment that the call detail record was forged and fabricated. Nonexistence of a document is one aspect and the fact that this document was not proved as per law is another aspect. In the first case, presumption of fabrication can be raised. However, in the second situation, it is not the existence of document which is in denial but the authenticity due to imperfect evidence. The offence of perjury shall not lie in the second situation, which is the case in the present matter.
57. Hence, I do not find sufficient grounds to invoke my powers under section 340 Cr.P.C and hold a preliminary inquiry. The request is declined. Ordered accordingly.
Pronounced in open court
on 22.05.2013 (Jyoti Kler)
M.M Mahila Court (South),
Saket, New Delhi
FIR No. 104/96 PS: Hauz Khas Page 24 of 24