Delhi District Court
Fir No. 95/2007 Ps : New Ashok Nagar State vs . Sanjeev Etc. on 28 January, 2021
FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc.
IN THE COURT OF ACMM (EAST DISTRICT)
KARKARDOOMA COURTS, DELHI.
Presiding Officer: Pankaj Arora , DJS.
IN THE MATTER OF :
State Vs. Sanjeev etc.
FIR No. 95/2007
PS : New Ashok Nagar
U/s 506/507/387 IPC
Date of Institution : 07.05.2007
Date of reserving of order : 23.12.2020
Date of Judgment : Oral
CNR No. DLET020006702007
JUDGMENT
1. Serial No. of the case : 11332/2016
2. Name of the Complainant : Sujoy Kumar Sanadar
3. Date of incident : 05.03.2007 to
08.03.2007
4. Name of accused person :
(1) Sanjeev Kumar son of Sh. Madan
Singh r/o H. No. 3/14, Gali no. 71, Kachi
Colony, Moladband, PS Badarpur, Delhi.
Page 1 of 35 ACMM (East)/KKD/Delhi/28.01.2021
FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc.
(2) Ajay Sharma s/o Late Ram Swaroop,
r/o House no. 279B, PocketN, Sarita
Vihar, Delhi.
(3) Pradeep Kumar @ Tinku s/o Sh.
Narender Kumar r/o House no. GA14, 15,
Bridge Prehladpur, Delhi.
5. Offence for which chargesheet
was filed :S. 506/507/387/120B
IPC
6. Offence for which charge
has been framed : S. 506(II)/507/387/120
B IPC
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 28.01.2021
BRIEF REASONS FOR ORDER:
1. Mr. Shailender, Sanjeev, Ajay Sharma and Pradeep Kumar @ Tinku, the accused herein, have been chargesheeted for committing offence punishable under Section 506/507/387/120B Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). During the trial, accused Shailender has expired and proceedings against him are abated.
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2. The case of the prosecution is that between 10.25 pm on 05.03.2007 to 08.03.2007, on various occasions, the accused persons in criminal conspiracy with each other voluntarily criminally intimidated the complainant Sujoy Kumar Sanadar through different mobile phones i.e. an anonymous communication having taking precaution to conceal their identities with a threat to cause his death with intent to cause Sujoy Kumar Sanadar to deliver Rs. 3 crores to the accused persons, which they were not legally bound to do. During the said period, all the accused persons in criminal conspiracy with each other intentionally put Sujoy Kumar Sanadar in fear of death in order to committing of extortion of Rs. 3 crores which was subsequently reduced by the accused persons to 20 lakhs. Further, during the said period, all the accused persons agreed with each other to commit the aforesaid offences punishable with imprisonment and in pursuance of the said agreement, all the accused persons made anonymous telephonic calls to Sujoy Kumar Sanadar thereby threatening him to cause his death with intent to cause him to deliver the money demanded by the accused persons. On the basis of complaint of complainant Sujoy Kumar Sanadar, present FIR Page 3 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. was registered. The accused persons were arrested After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused persons were chargesheeted for the offences punishable under Section 506/507/387/120B IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused persons. Accused persons appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 506(II)/507/387 IPC r/w Sec. 120B IPC was framed upon the accused persons. It was read over to them to which they pleaded not guilty and claimed trial.
4. The prosecution has examined 10 witnesses to prove its case against the accused.
5. PW1, Aditya Kumar Jha deposed that on 02.03.2017, he went to Noida for the supply of poly bags. While he was returning to his home in his Wagon R, at about 7 8 pm and when he reached at Kalindi Kunj flyover, his car slightly struck against one Zen like car. 34 persons came out Page 4 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. of the said car and an altercation took place between them. They started manhandling him and took out his two mobile phones from the dash board of his car. He was using mobile no. 9911226686 on one mobile phone and no. 9891190491 on other mobile phone. Those persons took out said mobile phones with them. Thereafter, he came back to his home and on 03.03.2007, he reported the matter to PS Saket, vide his report Ex. PW1/A. He identified his signatures on his complaint at point A. He also reported the loss of his said phones to Idea Cellular Company, which in turn issued two sim cards to him of the respective numbers. As he was having only one mobile phone set and he used the sim card having no. 9891190491 on the said phone He never used the sim card having no. 9911226686 on his mobile phone after it was re issued.
6. PW2 Sujoy Kumar Samadar is the complainant in the matter and he deposed that on 5/3/07, he was coming from his office at Sarita Vihar to his residence on his Hondacity Car bearing no. DL3CAF0069. At about 8.30 pm while he was crossing Sector 15A, Noida, he heard loud noise like blast inside his car. He stopped his car at the left side of the road.
Page 5 of 35 ACMM (East)/KKD/Delhi/28.01.2021FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. He came down out of his car and saw that a right hand side glass of his car behind the driver's seat was broken. Initially he thought that the said glass was broken due to some stone. He went to his house. At about 10.4010.45 pm, he received one call on his mobile phone bearing no.9810044921 from the mobile no. 9911652349. The caller of that phone told him that the incident was a trailer and he demanded Rs.three crore from him, otherwise he would kill him. The caller also told him that he would call him on the next day. In the morning, he checked his car along with the society members and he found that there was a hole of bullet near the beading in his car. He went to Police station at Sector 20, Noida for lodging complaint alongwith his car. While he was at the police station and making his complaint, he received another call on his above said mobile at around 11.43 am. The mobile from which he received call at 11.43 am was 9911226686. The caller of the mobile told him that he had made a call to him yesterday and if he would not receive Rs.three crore from him then he would kill him and his family members. The caller also told him that he had fired on his car yesterday. On 6/3/07, he received another call from a PCO in the evening. The same threat was Page 6 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. given to him. The caller inquired as to whether he had made arrangement for the money or not. He also told him not to take his threat lightly and arranged the money otherwise he would kill him. On 7/3/07 at about 8.30 am, he received first call in the morning. On the same day, he received almost five calls from different PCOs. In all the calls, some other threats were also added like "I know where your girl child is studying. I will kidnap the girl from the school". He also told him "not to come out of your house otherwise my men are scattered around your house, they will kill you". He also told him "not to inform the police otherwise his men will kill me." On 7/3/07, he informed Delhi Police regarding the threat received by him. I provided all the call details to the police from which he had received the threats and the contents of the threats. On 8/3/07, he again received one call in the morning at about 10 am. The call was from mobile no.9911226686. He told the caller that he could not arrange Rs.three crore but he could arrange only Rs.twenty lakhs. He inquired from the caller as to where he was to pay the money and how. The caller told him that he would call him later and tell him about the place and the manner as to how the money was to be delivered. He received another call from Page 7 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. mobile no. 99902439231. The caller asked him to come on 9/3/07 alongwith the money near the Appollo Hospital. He inquired from the caller as to how he knew him. The caller told him that he was well familiar with him and his family members and he would recognize him. He informed the same thing to the Delhi police. Next day on 9/3/07 the police officials from Delhi police came at his house. He gave his one brown colour brief case to the police officials in which they put some newspapers and closed the same. He alongwith the police officials went to the Apollo hospital. The police officials told him to stand aside near the Apollo hospital and they will be standing a nearby place. After some time a red colour TVS motorcycle bearing no.DL3SAS3580 came in front of him. The person who was sitting behind the driver's seat came to him. In the meantime that one silver colour Maruti Zen bearing no. DL~9CM8504 came and stopped at some place behind the motorcycle. A placard of Vice Chairman, Human Rights Commission was fixed below the vehicle number. He recognized the car and the person sitting in the car was Ajay Sharma and he identified accused Ajay in the court. One person was also sitting beside Sh. Ajay Sharma. He could not identify Page 8 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. the person who was sitting beside Ajay Sharma. The pillion rider who came to him and he handed over the brief case to him, was identified by him as accused Shailender. The pillion rider told him that they were the persons who were making calls to him. When he was going back with the brief case, in the meantime the police officials came and overpowered him. Subsequently the police party went to apprehend the persons who were sitting inside the car but they ran away. The police officials took into possession whatever was in the possession of accused Shailender and Sanjeev. Accused Shailender was found in possession of one hundred Ruppee note, one mobile phone make Nokia no.6600 and one pistol on which Indian Ordance Factory was engrossed. 10 bullets and one licence of the pistol was also recovered from his possession. The brief case which was handed over by him to accused Shailender Kumar was also recovered from his possession. A ring, purse. Rs. 310/, handkerchief and reliance mobile 131 Classic were recovered from the possession of accused Sanjeev. The police officials also took into possession the motorcycle make TVS Star City and helmet from possession of accused Sanjeev. The silver car which was found at the spot was also taken in possession in his Page 9 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. presence by the police officials. Some documents were also seized which was found in the dash board of the car by the IO in his presence. . The documents contained retail invoice of Rana Motors, receipt of the vehicle, delivery challan of the vehicle. All documents were in the name of Ajay Shanna. One insurance paper of Bajaj Allianz was also found in those documents. One photocopy of ration card of Kailash Chand, bills of Tata lndicom, two visiting cards one of Ganesh Associates and another of International Human Rights Associations, Vice Chairman were among the documents which were also recovered from the dash board of the car. The confessional statement of the accused persons who were apprehended at the spot was taken in his presence and some notes of the recoveries were also prepared. He went along with the police officials to the shop of Deepak Arora at Sarita Vihar for inquiry in respect of mobile phone no. 9990243923. Sh. Deepak Arora met them at the shop and he handed over some documents i .e form of prepaid connection bearing the number 9990243923, photocopy of ration card in the name of Kailash Chand and a photocopy of the note book of the details of the persons to whom the mobile numbers were issued to the police officials Page 10 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. Sh. Arora also informed the police officials that accused Ajay Sharma along with bodyguard came to his shop and gave him photocopy of ration card in the name of Kailash Chand to get the mobile number. He further deposed that on 10.03.2007, he was told by the police that accused Ajay Sharma would probably be at New Delhi Railway Station on the side of Paharganj. In the evening of the same day i.e. on 10.03.2007, he went along with the police party to New Delhi Railway Station. At around 11.30 pm, they spotted Ajay Sharma near gate no. 1, at New Delhi Railway Station. Police arrested the accused Ajay Sharma in his presence and some formalities were also completed. Some articles including around Rs. 118, some visiting cards, credit cards of ICICI and one mobile of Samsung Company were recovered from his possession and same were seized and taken into possession by the police official in his presence. He identified his complaint as Ex. PW2/A, which was in his handwriing. He proved various documents by identifying his signatures at point A such as suit case handing over memo as Ex. PW2/B, seizure memo of pistol, live round and gun license as Ex. PW2/C, seizure memo of mobile phone nokia as Ex. PW2/D, seizure memo of suit case as Ex. PW2/E, Page 11 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. seizure memo of mobile phone make classic 131 reliance as Ex. PW2/F, seizure memo of motor cycle bearing no. DL3SAS 3580 make TVS Star City as Ex. PW2/G ; seizure memo of Maruti Zen Car bearing no. DL9CM8504 and the documents recovered from the Dash Board as Ex. PW2/H, sketch of the pistol and live cartridges as Ex. PW2/I, arrest and personal search memo of accused Shailender as Ex. PW2/J and Ex. PW 2/K respectively ; arrest and personal search memo of accused Sanjeev as Ex. PW2/L and Ex. PW2/M respectively, seizure memo of the copy and prepaid connection form as Ex. PW2/N, arrest and personal search memo of accused Ajay as Ex. PW 2/O and Ex. PW2/P respectively and seizure memo of the mobile phone make samsung as Ex. PW2/Q. PW2 correctly identified the case property and seizure articles as Ex.P1 to P
12. (Brief case along with newspaper cuttings as Ex. P1 ; pistol along with holster as Ex. P2 ; jar containing 10 empty cartridges as Ex. P3, gun license in the name of accused Shailender as Ex. P4, mobile phone recovered from the possession of accused Shailender as Ex. P5, one silver mobile phone of classic as Ex. P6 ; mobile phone make Samsung along with charger as Ex. P7, documents recovered from Page 12 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. Maruti Zen as Ex. P8, one prepaid connection form as Ex. P 9, Motorcycle bearing no. DL3SAS3580 make TVS Star City as Ex. P10, one red colour helmet as Ex. P11 and one maruti zen car bearing no. DL9CM8504 as Ex. P12.
He was crossexamined by ld. APP as he was not able to identify the fourth accused person, who ran away from the maruti car and he stated that he was in state of shock and the incident happened in a split of second that is why, he was not able to see the other person properly or remembering him. He further stated that accused Ajay Sharma was known to him prior to the date of incident as his office was situated below his office at Sarita Vihar.
During crossexamination by ld. Defence counsel, he admitted that on 06.03.07, he had given a written complaint at PS Sector 20, Noida, Gautam Budh Nagar regarding happening happened with him on 05.03.07 at about 08:30 PM. He further admitted that copy of written complaint dt. 06.03.07 is Ex. PW2/DA (OSR). He also admitted that on 03.11.08 he had appeared as a witness before the court of Sh. Mohd. Ibrahim ASJ, District Court, Page 13 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. Gautam Budh Nagar and copy of his statement is Ex. PW 2/DB (OSR). He further admitted that in the above mentioned case there were four accused namely Ajay Sharma, Shailender Kumar, Sanjeev Kumar and Pradeep and that he had not identified the accused persons named above in the District Court, G.B. Nagar. He further stated that in spite of the cross examination done by Ld. APP, he had not identified accused persons named above in District Court, G.B. Nagar. He termed it correct that he had not produced any public witness in above mentioned case. He further admitted that when he had not identified the above accused persons in the District Court, G.B. Nagar all accused persons were acquitted by that court. He further admitted that present case is also connected with that case. He further admitted that he had filed his affidavit in quashing proceeding in Delhi High Court regarding quashing of present FIR. Affidavit is Ex. PW2/DC. He also admitted that he had filed the compromise deed before the Hon'ble High Court and copy of the same is Ex. PW2/DD. He further admitted that even today he could not identify Page 14 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. the accused persons who made threatening calls to him that that he could not tell that the accused persons who are present in the court today were the same persons who had made threatening calls to him in order to extort money. He further admitted that he did not remember whether the police officers obtained his signatures on blank papers or written papers in PS or at any other place. He further stated that he could not admit or deny the suggestion that the accused persons who were falsely implicated in FIR No. 273/07 u/s 307 IPC PS Sector 20, Noida had been made accused persons in the present case also by the police officers. All the accused persons in the present case never arrested by the police at my instance.
He was reexamined by ld. APP and during the said re examination, he denied that he had been won over by the accused persons and in collusion with them he is resiling from his previous statement. He further denied that he has amicably settled this matter out of the court therefore he was deliberately not identifying the accused persons. He admitted that the incident had taken place with him, however he cannot identify Page 15 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. the accused persons today.
7. PW3 Sh. Kailash Chand was put forth as a public witness in the matter and he deposed that he did not know anything about this case. He was crossexamined by ld. APP at length, but nothing favourable to the prosecution case, could come out from the said crossexamination.
8. PW4 HC Pawan Kumar deposed that on 09.03.2007, he was posted at PS New Ashok Nagar and on that day, he along with Ct. Pawan was on PSO duty with complainant Aditya Kumar Jha as he had received threatening call from accused and he demanded ransom from complainant. On that day, he along with Insp. Ram Kishore and Ct. Pawan and SI Dharampal and Complainant also reached Mathura Road, in front of Hospital Appollo, IO Ram Kishore instructed them regarding the above said ransom. Thereafter, they reached flat of complainant and took a brown colour suit case and put old newspaper inside the suit case and handed over to the complainant vide handing memo Ex.PW2/B, having his signature at Point B. IO constituted a raiding party and instructed it regarding the case. Thereafter, they reached near the gate of Appollo Hospital and IO instructed complainant to Page 16 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. stand near the Gate of Appollo Hospital and they took their position. After some time, two persons came on motorcycle of red colour make TVS Star City. In between one car make Maruti Zen Colour Silver stopped at some distance from the Gate and two persons were sitting inside the Car. One person who was the pillion rider came from the above said motorcycle, reached near the complainant and took the suitcase from the complainant. Thereafter. they immediately chased them Ct. Pawan chased the persons who took the suitcase and IO tried to apprehend both persons who were sitting in the above said car(Maruti Zen) but both persons ran away in a separate direction. He apprehended that person/accused Sanjeev who was riding the motorcycle. He identified accused Sanjeev in the court. He further deposed that thereafter, they interrogated both the accused and IO recorded their disclosure statements Ex.PW4/A, having his signature at Point A. IO also arrested accused Sanjeev vide arrest memo Ex.PW2/L, having his signature at Point B and conducted his personal search vide memo Ex.PW2/M, having his signatures at Point B. They recovered one purse containing some visiting card and cash of Rs 310/and one handkerchief and one ring and one mobile Page 17 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. phone and also recovered one pistol along with gun license from accused Shailender and seized it vide seizure memo already Ex.PW2/C, having his signature at Point B. IO also seized the mobile phone which was recovered from accused Shaiender vide seizure memo Ex.PW2/D, having his signature at Point B. IO also seized mobile phone from accused Sanjeev vide seizure memo Ex. PW2/F having his signatures at point B. he further deposed that one Nokia phone and 100 rupees were recovered from accused Shailender and 10 live cartridges and one pistol were also recovered from his possession. Thereafter, both the accused were brought to PS. The case property was deposited in the Mal khana. The accused were put up in the lock up. He identified the accused Sanjeev in the court.
9. PW5 SI Vinay Yadav deposed that on 06.03.2007 he was posted in the Special Staff East Dist. Mayur Vihar Phase 2 as SI. On that day, he had received one application from SI Dharampal to provide CDR of Mobile No. 9911226686. He provided all detail of Mobile phone of complainant Sujoy Kumar i.e. 9810044921 and 9990243923 to SI Dharampal. He identified the copy of CDR collectively Page 18 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. mark as Mark A (running into 16 pages).
10. PW6 Sh. Chander Shekhar, is the Nodal Officer, Bharti Airtel Ltd, 224, Okhla Phase III, New Delhi. He deposed that he was summoned for call details of Airtel mobile numbers i.e. 9810044921, 9910615629, 9910034747 and 9871372374. He identified the CDR of mobile number 9810044921 marked as Mark XA running into 4 pages. He also identified the the CDR of mobile number 9910615629 on record marked as Mark XB running into 2 pages. He also identified the CDR of mobile number 9910034747 marked as Mark XC running into 1 page. He also identified the CDR of mobile number 9871372374 marked as Mark XD running into 2 pages. (objected by Ld. Defence Counsel). He further deposed that he could not produce certificate u/s 65(B) Indian Evidence Act regarding abovesaid CDRs as same were sent through mail to IO and same were not preserved as there were no directions given to concerned office regarding the same.
11. PW7 Sh. Pawan Singh is the Nodal Officer, IDEA Cellular Ltd, A68, Sector64, Noida, UP. He deposed that he was summoned for call details of IDEA mobile number i.e. 9990243923. He had seen the CAF of mobile number Page 19 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. 9990243923 on record and identified it as Ex. P4. As per CAF the said number was registered on the name of Kailash Chand. He identified the supported documents i.e. Ration Card of Kailash Chand. He identified the CDR of mobile number 9911226686 as Mark XE running into 5 pages. He further deposed that he could not produce certificate u/s 65(B) Indian Evidence Act regarding abovesaid CDR and CAF as same were sent through mail to IO and same were not preserved as there were no directions given to concerned office regarding the same.
12. PW8 Sh. Amit Sharma is the Nodal Officer, Reilance Communications Ltd., Reliance Center, Maharaja Ranjeet Singh Marg, Delhi02. He deposed that he was summoned for call details of SIM No. 9313287700 and he identified the same on record as Mark YA (running into 2 pages). He further deposed that he could not produce certificate u/s 65B Indian Evidence Act regarding abovesaid CDR. He further deposed that he could not produce CAF of abovesaid mobile number as IO did not request to preserve the same and as per letter dt. 24.07.2018, mobile service provider was required to preserve data for about 13 months and same was not Page 20 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. available. He identified the said letter marked as Mark YB.
13. PW9 Ins. Ram Kishore Meena deposed that on 08.03.07, he was posted at PS New Ashok Nagar and on that day, he joined the investigation. He further deposed that on 09.03.07, he along with IO SI Dharampal, Ct. Pawan Baliyan No. 664/E and Ct. Pawan Kumar No. 1858/E reached the house of complainant at 10/403, Eastend Apartments where SI Dharampal handed over one suitcase containing old newspapers to complainant vide handing over memo Ex. PW2/B bearing his signature at point C. Thereafter, they left for Apollo Hospital main gate, Mathura Road. SI Dharampal briefed all staff and they took position. Complainant also took position alongwith briefcase near gate. After sometime, one motorcycle bearing regn. no. DL3SAS3580 red colour on which two persons were sitting, stopped near the gate of hospital. One of them took abovesaid briefcase from the complainant. Meanwhile, one Maruti Zen bearing no. DL9CM8504 silver colour stopped near the motorcycle, in which two persons were sitting. Ct. Pawan No. 664/E caught hold Sanjeev who was motorcycle rider and Ct. Pawan No. 1858/E apprehended Shailender who was pillion rider. When the police officials tried Page 21 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. to apprehend the persons sitting in the Zen Car, they escaped from the car after leaving the car at the spot. Sanjeev and Shailender were searched by SI Dharampal. During the search of Shailender one pistol and 10 live cartridges were recovered from his possession. Both accused were arrested at the spot vide memo Ex. PW2/L (accused Sanjeev) which bears his signature at point B and Ex. PW2/J (accused Shailender) which bears his signature at point B. Personal search of both accused persons were conducted vide memo Ex. PW2/K and Ex. PW 2/M both bears his signature at point B. The disclosure statement Ex. PW4/A of accused Sanjeev Kumar was recorded by the IO which bears his signature at point B and disclosure statement Ex. PW9/A of Shailender was recorded by the IO bearing his signature at point A. IO prepared sketch Ex. PW2/I of recovered Pistol bearing his signature at point B. IO seized mobile phone which was recovered from accused Shailender Kumar vide seizure memo Ex. PW2/D bearing his signature at point C. IO also seized mobile phone from accused Sanjeev Kumar vide seizure memo Ex. PW2/F bearing his signature at point B. IO seized abovesaid suitcase vide seizure memo Ex. PW2/E bearing his signature at point B. IO also seized Page 22 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. abovesaid Maruti Zen Car vide memo Ex. PW2/H bearing his signature at point B. IO seized abovesaid motorcycle vide seizure memo Ex. PW2/G bearing his signature at point B. IO also seized the abovesaid pistol and 10 live cartridges vide seizure memo Ex. PW2/C bearing his signature at point C. They also went to Shop No. 7A, Pocket M, Janta Flats, Sarita Vihar which was in the name and style of Deepak Communications. Deepak Arora handed over one note book Ex. P9 and one photocopy of Ration Card Ex. P9 (colly) and same were seized vide seizure memo Ex. PW2/N bearing his signature at point B. He identified accused Sanjeev in the court.
14. PW10 SI Dharampal is the investigating officer of the case and he deposed that on 06.03.07, he was posted at PS New Ashok Nagar. Complainant Sujoy Kumar gave complaint at PS. SHO made endorsement on the same and investigation was marked to him. Then, he sent request letter to Nodal Officer to provide call details of mobile number 9810044921 which belongs to complainant. On 09.03.07, complainant came at PS and informed him that he received call on his mobile phone and accused demanded Rs. 3 Crore and after negotiation they demanded Rs. 10 Lacs. On which, he prepared a raiding Page 23 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. party consisting himself, Ct. Pawan Sharma, Ct. Pawan Baliyan, complainant, Insp. Ram Kishore Meena. Complainant arrange one brown colour suitcase and they put newspapers inside the same. he prepared handing over memo regarding the suitcase which was Ex. PW2/B having his signature at point X and handed over the said suitcase to complainant. Thereafter, they all went near Apollo Hospital, Mathura Road. He deputed the staff nearby the spot. At about 06:30 PM, one motorcycle came at the spot on which two persons were sitting. Pillion rider of the motorcycle came towards complainant. The said person took suitcase from the hand of the complainant. They immediately apprehended both persons. During abovesaid process, one car came at the spot. They tried to apprehend those persons who were inside the car but they left the car and ran away from the spot. The person who took suitcase from complainant his name was revealed as Shailender Kumar @ Fauji. Formal search of accused Shailender was conducted. He prepared seizure memo regarding abovesaid suitcase which was in the possession of Shailender and same was seized vide seizure memo Ex. PW2/E having his signature at point A. During formal search of accused one pistol containing 10 live Page 24 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. cartridges and license of abovesaid pistol was recovered. He prepared sketch of abovesaid pistol which was Ex. PW2/I having his signature at point X. He converted abovesaid pistol and cartridges into pullanda and same was seized vide seizure memo Ex. PW2/C having his signature at point X. The name of person who was driving the motorcycle was revealed as Sanjeev Kumar. One mobile phone was also recovered from accused Sanjeev Kumar which was seized vide seizure memo Ex. PW2/F having his signature at point X. He seized abovesaid motorcycle bearing no. DL3SAS3580 make TVS Star City vide seizure memo Ex. PW2/G having his signature at point X. He also seized abovesaid Maruti Zen bearing no. DL9CM8504 and various documents kept in the car which were in the name of Ajay Sharma vide seizure memo Ex. PW 2/H having his signature at point X. He arrested accused Sanjeev Kumar and Shailender vide arrest memo Ex. PW2/L & PW2/J having his signature at point X. Personal search of both accused were conducted vide personal search memo Ex. PW2/K and PW2/M having his signatures at point X. Disclosure statement of accused persons were Ex. PW4/A & PW9/A having his signature at point X. Case property was Page 25 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. deposited in malkhana. Thereafter, he received secret information that accused who was wanted in present matter could be arrested from New Delhi Railway Station Gate No. 1. Then, he alongwith Ct. Pawan and complainant went to New Delhi Railway Station Gate No. 1. Complainant identified accused and he apprehended him and arrested him vide arrest memo Ex. PW2/O having his signatures at point X. Personal search memo of accused Ajay was Ex. PW2/P having his signature at point X. Disclosure statement of accused Ajay was Ex. PW10/A having his signature at point A. He recorded statement of all witnesses. Accused Pradeep surrendered before court and he arrested accused Pradeep vide arrest memo which was Ex. PW10/B having his signature at point A. Disclosure statement of accused Pradeep was Ex. PW10/C and PW10/D bearing his signature at point X. He filed charge sheet regarding accused persons. He identified the accused persons in the court as well as case property.
15. The witnesses were cross examined by Ld. Defence Counsel.
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16. The prosecution evidence was closed. The accused persons had furnished their WS separately in compliance of Section 313 Cr.P.C
17. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
18. It is submitted by Ld. APP for the State that on the basis of material on record, the prosecution has proved its case beyond reasonable doubts. The prosecution has proved all the ingredients of the offences punishable under Section 506 II/507/387 IPC and the guilt of the accused persons have been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
19. Ld. defence counsel on the other hand, has argued that the prosecution has failed to prove its case against the accused beyond reasonable doubts. The complainant is the star witness in the matter, but he did not support the prosecution case at all and has failed to identify the accused persons. Hence, it is prayed that the accused persons may be acquitted.
20. I have heard the rival submissions and carefully perused the material available on record.
Page 27 of 35 ACMM (East)/KKD/Delhi/28.01.2021FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc.
21. Perusal of the record shows that the entire police machinery was set into motion by the complainant Sujoy Kumar Sanadar, who had made the complaint Ex. PW2/A stating therein that on 05.03.2007, at around 8.30 pm, he was coming from office at Sarita Vihar on vehicle no. DL3CAF0069 Honda City, to his residence 10/403, East End Apartment, Mayur Vihar, PhseI Ext., Delhi. While, he was passing through Sector15/A, Noida, some unknown persons fired on his car, which pierced through the car glass window. At 10.25 pm, he received a call on his mobile from mobile no. 9911652349. He was threatened to pay 3 crores. He stated that he fired at his car. Again on 06.03.07 at 11.43 am, he was called and threatened to pay 3 crores within one day or else he would kill him and his family. He called from mobile no. 9911226686.
22. It is pertinent to mention here that he had not mentioned about the entire sequence of events in the original complaint Ex. PW2/B, as deposed by him in his deposition dated 22.09.2007 and 29.09.2007. He had even failed to identify the accused persons in his crossexamination and re examination dated 06.04.2018. It is not out of place to mention Page 28 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. here that it has come on record that on the same day, the complainant has made one complaint Ex. PW2/DA at PS Sector20, Noida also resulting in registration of FIR no. 273/2007, PS Sector20, Gautam Budh Nagar, UP for the offence punishable u/s 307 IPC. The complainant has admitted in his crossexamination the fact that the accused persons in the said FIR are Ajay Sharma, Shailender Kumar, Sanjeev Kumar and Pradeep. (who are also accused herein). He has also admitted that the present case is also connected with that case and the accused persons therein, were acquitted as he has failed to identify the accused persons. He has also admitted that he could not identify the accused persons, who made threatening calls to him. Even in his reexamination by the ld. APP for the State, the complainant has failed to identify the accused persons. Another public witness namely Kailash Chand has completely disowned the prosecution case and he has denied all the incriminating facts suggested by ld. APP for the State in his crossexamination.
23. Vide order dated 05.07.2007, the charge has been framed against the accused persons for the offences punishable u/s 506(II)/507/387 and 120B of IPC.
Page 29 of 35 ACMM (East)/KKD/Delhi/28.01.2021FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc.
24. Section 506 IPC reads as under : Whoever commits the offence of criminal intimida tion shall be punished with imprisonment of either de scription for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
25. Section 507 IPC reads as under :
507. Criminal intimidation by an anonymous communication.--Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.
26. Section 387 IPC reads as under : Page 30 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc.
387. Putting person in fear of death or of grievous hurt, in order to commit extortion.--Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
27. 120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
28. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
29. Admittedly all the abovementioned offences in the present case were made by way of telephone calls. In this regard, the prosecution has relied upon the call details records for mobile phone numbers 9810044921, 9910615629, 9910034747, 9871372374 and 9990243923. To prove those Page 31 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. call records, the prosecution got examined PW6, PW7 and PW8. However, PW6, 7 and 8 had failed to produce the certificate u/s 65B (4) of Indian Evidence Act, without which call details records, being electronic evidence, are not admissible in evidence as per the judgment dated 18.09.2014 of Hon'ble Supreme Court of India titled as Anvar PV vs. PK Basheer & others in Civil Appeal No. 4226 of 2012.
30. It has also come on record that some independent public persons were also available on record as reflected from the crossexamination of PW9 Ins. Ram Kishore Meena and PW10 Retd. SI Dharampal. However, the prosecution has failed to give any cogent explanation as to why those independent public witnesses were not joined in the investigation.
31. Considering the fact that PW2 had not mentioned the complete facts in his original complaint Ex. PW2/A, which facts were deposed by him in detail in his examinationinchief before this court and the fact that the complainant has failed to identify the accused persons in his crossexamination and re examination, this court is of the opinion that the testimony of Page 32 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. PW2 is not of sterling quality and it is not proper to base conviction merely upon his testimony.
32. Sterling witness was defined by Hon'ble Supreme court in the case of Rai Sandeep vs. State (2012) 8 SCC 21, which is as under : "In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a wit ness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the wit ness makes the initial statement and ultimately be fore the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the ver sion of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the per sons involved, as well as, the sequence of it. Such a version should have corelation with each and Page 33 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consist ently match with the version of every other wit ness. It can even be stated that it should be akin to the test applied in the case of circumstantial evid ence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be ap plied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain in tact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
33. On the anvil of the above principles, when we test the version of PW 2, the complainant, it is unfortunate that the said witness has failed to pass any of the tests mentioned above. There are material variations as regards the identification of the Page 34 of 35 ACMM (East)/KKD/Delhi/28.01.2021 FIR No. 95/2007 PS : New Ashok Nagar State Vs. Sanjeev etc. accused persons, as well as, the manner in which the occurrence took place. The socalled eye witnesses did not support the story of the prosecution.
34. After going through the entire material on record, I hold that the prosecution has failed to prove all the ingredients of offence punishable under Section 506(ii)/507/387/120B IPC against the accused. Hence, all the accused persons have been acquitted of the charged offences. Their bail bonds canceled. Sureties dicharged.
35. File be consigned to Record Room.
Pronounced in the open Court on (Pankaj Arora )
this 28th day of January 2021 ACMM (EAST)
KKD Courts, Delhi.
Digitally
signed by
PANKAJ
PANKAJ ARORA
ARORA Date:
2021.01.28
18:14:45
+0530
Page 35 of 35 ACMM (East)/KKD/Delhi/28.01.2021