Delhi District Court
State vs 1) Om Prakash Srivastav @ Babloo on 10 April, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0996082004
Session Case No. 113/2013
State Versus 1) Om Prakash Srivastav @ Babloo
S/o. Vishwanath Srivastava
R/o. C-9/1, Lal Colony, Nirala Nagar,
PS Hasanganj, Lucknow, U.P.
2) Pradeep Khurana @ Anand
S/o. Janak Raj Khurana
R/o. Nawab Ganj, Distt. Ghonda, U.P.
Also At:-
E-3, South City, PS Mohanlal Ganj,
Lucknow, UP.
3) Jitender Singh @ Jitu
S/o Ram Charan,
R/o. Village Umri, PS Akhand Nagar,
Distt. Sultanpur, UP.
4) Fazl-ur-Rehman,
S/o Abdul Basit,
R/o. Village Deora Bandholi,
PS Jaley, Distt. Darbhanga, Bihar.
FIR No. : 33/2003
U/s: 364A/387/120B IPC
PS: Special Cell
Date of institution of the case : 27.01.2005
Date when the case reserved for judgment : 08.04.2015
Date of announcement of judgment : 10.04.2015
JUDGMENT
1. Accused Om Prakash Srivastav, Pradeep Khurana and Jitender Singh are facing trial in this Court for offences alleged to have State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 1/42 been committed by them and punishable under Sections 120B, 364A, 387 of the Indian Penal Code (hereinafter referred to as the IPC). Accused Fazl-ur-Rehman is charged with the offences under Sections 120B and 387 of the IPC.
2. The case of the prosecution as emanating from the police report under Section 173 (2) of the Code of Criminal Procedure (herein after referred to as the Cr.P.C.) is that on 15.04.2003 a complaint Ex.PW4/A was made by the complainant Sheetal Prasad Singh (PW4) to the DCP Special Cell stating that he was in the business of applying gaseous fuel systems in vehicles and in the year 2001 he had entered the business of manufacturing and marketing of High Security Vehicle Registration Plates (HSRPS). One Nitin Shah wanted to monopolize the business of HSRPS. Several other companies entered this field and the complainant with such companies founded the 'Association of Registration Plates Manufacturers of India' (ARPMI) of which the complainant was General Secretary. The said association had successfully challenged the monopolistic designs of Nitin Shah in different High Courts, Supreme Court as well as the Parliamentary Standing Committee for transport.
3. It was further stated by PW4 in his complaint that to counter their efforts, Nitin Shah had also formed similar associations and tried to persuade the complainant to sell his company to him but having failed to do so, he engaged the services of accused Babloo Srivastav (accused Om Prakash Srivastav). Complainant stated that his relative Nagesh Kumar Singh (PW8) had informed him that one Bobby and Jitender @ Jittu (accused Jitender Singh) of the gang of accused State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 2/42 Om Prakash Srivastav were inquiring about him in Sultan Pur. Complainant stated that about four months ago (from the date of making the complaint) the accused Jitender Singh had called him on his phone and tried to persuade him to meet accused Om Prakash Srivastav in Lucknow Jail regarding the matter with Nitin Shah. He has stated that on 11.03.2003 while he was going from Lucknow Airport to the City, his taxi was intercepted by a red Maruti 800 car in which 3 to 4 persons were sitting. One of them who introduced himself as Jitender forced the complainant to go to main entrance of Luknow Jail where the accused Om Prakash Srivastav was standing inside its main gate. These persons asked the complainant to go inside the Jail but he remained outside. Complainant stated that Om Prakash Srivastav spoke to him firstly on his mobile phone and later when he came near gate, he spoke to him face to face and threatened him to pay Rs.25,00,000/- which had been spent by his men to locate him as per the instructions of Nitin Shah. Complainant stated that Om Prakash Srivastav directed him to participate in a meeting with Nitin Shah in his presence to decide the fate of business of HSRPS in India and it was his (Om Prakash Srivastav's) decision which was to be followed in future failing which the complainant would be killed. Complainant stated that on the next morning he took the first flight to Delhi without participating in his scheduled business activities.
4. Complainant had further stated that between 24.03.2003 to 26.03.2003 he received several SMS messages from the accused Jitender Singh from mobile no. 9415026225 on his on own mobile number 9810409181 asking him to come to Lucknow as Nitin Shah's men were in Lucknow and staying in Hotel Clark. These messages also State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 3/42 informed the complainant that the accused Om Prakash Srivastav had delayed his stay in Lucknow jail for the same meeting. Complainant stated that since then he had been receiving threatening phone calls and SMS messages from the accused Jitender Singh from mobile no. 9415026225 and from Babloo through through mobile no. 9415082565. He further stated that since last two weeks (of making said complaint) he was receiving threatening calls from one Fazloo (accused Fazl-ur- Rehman) from his telephone number 0060166507066 at his residence number 26114220 as well as on his mobile number.
5. Complainant alleged that yesterday i.e. 14.04.2003, the accused Fazl-ur-Rehman had called him on his mobile number and at his residence threatening him of dire consequences if he did not pay Rs.5,00,000/- on 15.04.2003. He further stated that he had received three SMS messages from the mobile phone of Jitender Singh which contained threats. He stated that about two weeks ago one Anand Srivastav from the gang of Om Prakash Srivastav had called up his business partner Ravi Somani (PW2) on his cell phone no. 9810111213 from mobile number 9415071534 with the same threats. Complainant further stated that his another associate Diwakar Singh (PW6) had received similar calls on his cell phone no. 9810530443 from Om Prakash Srivastav through phone number 9415157747 one week ago extending threats at the instance Nitin Shah. The complainant apprehended danger to his life as well as his business partner Ravi Somani and requested the DCP Special Cell to take action.
6. The complaint was marked to Sub-Inspector (SI) Hriday Bhusan (PW25) by Inspector (Insp.) Mohan Chand Sharma for State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 4/42 registration of a case and investigation. PW25 made an endorsement on the complaint and handed over the rukka Ex.PW25/A to the Duty Officer PW1 of PS Special Cell who registered the FIR Ex.PW1/A and also made an endorsement Ex.PW1/B on the rukka.
7. On 16.04.2003, PW4 was called to the office of the Special Cell by PW25 and was asked to make calls to the accused persons through his mobile number 9810409181. The details of the calls made / received by PW4 in the office of Special Cell on 16.04.2003 are as under:-
Srl. Time Number called / number Number belonging to No. from which call received 1 03:50:00 PM Called 0060166507066 Fazl-ur-Rehman 2 03:55:00 PM Received from 9415157747 Jitender Singh 3 04:35:00 PM Called 0060166507066 Fazl-ur-Rehman 4 06:10:00 PM Called 9415026225 Jitender Singh 5 06:30:00 PM Called 9415026225 Jitender Singh 6 06:35:00 PM Called 9415157747 Om Prakash Srivastav
8. The above mentioned calls were recorded in the presence Insp. Lalit Mohan (PW3) and PW25 in an audio cassette of make T- Series and also in a spare audio cassette. The transcripts of all the calls were prepared vide Ex.PW3/A. The original audio cassette was kept in an envelope and sealed further in a cloth parcel with the seal of HB and was marked as Mark C1. The spare audio cassette was marked as Mark CS1. The sealed audio cassette Mark C1, spare audio cassette Mark CS1 and the transcripts Ex.PW3/A were seized vide seizure memo Ex.PW3/B. The seal after use was handed over to PW4.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 5/42
9. PW25 thereafter checked the mobile phone instrument make Nokia 8310 IMEI number 350700408377258 containing SIM Card of mobile number 9810409181 of PW4 and found it to be containing 31 SMS messages in its 'Inbox' and sent from mobile number 9415026225 between the period 09.03.2003 to 15.04.2003. The transcripts of these 31 SMS were prepared and seized vide memo Ex.PW3/C. PW25 handed back the said mobile instrument to PW4 and instructed him to save other messages relevant to the case if received by him.
10. On 17.04.2003, PW4 went to the office of Special Cell and handed over to PW25 two audio cassettes make T-Series stating that he (PW4) had recorded six calls which were made / received by him on his mobile phone number 9810409181. PW25 played the audio cassettes and found the conversations to be relevant to the investigation of the case and prepared transcripts of the same vide Ex.PW3/D. PW25 thereafter re-recorded the calls in two spare audio cassettes make T-Series. Both the original audio cassettes were kept in two envelopes and thereafter in two cloth parcels and marked as Mark C2 and C3 and sealed with the seal of LMN. The sealed audio cassettes, spare cassettes and the transcripts of the calls were seized through memo Ex.PW3/E. The seal after use was handed over to PW4.
11. As per the prosecution, the Special Task Force (STF) of Uttar Pradesh Police was already monitoring the calls of the accused persons in respect of their own investigations relating to extortion calls being made by them to other persons. On 21.04.2003, PW25 along with SI Sanjay Dutt went to Lucknow. On 22.04.2003 SI Anil Kumar Singh of State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 6/42 STF Uttar Pradesh Police registered FIR No. 85 of 2003 in PS Alambagh Ex.PW25/B relating to the acts of extortion of Om Prakash Srivastav and his associates which had named the four accused persons of the present FIR and use of mobile numbers 9415026225, 9415071534, 9415157744 and 9415457747 and international number 0060166507066, apart from other numbers.
12. A joint police team comprising of police officials of STF of UP Police and of Special Cell Delhi Police was constituted and amongst others, the accused Pradeep Khurana was arrested from South City, Lucknow by this joint team on 23.04.2003. Two mobile phone instruments with BSNL numbers, diaries, medical slips, ration card, one handwritten paper slip bearing the name, address and telephone of PW4, 30 live cartridges of 7.62 bore, Maruti Car Red Colour bearing registration no. UPU-32-8008 were recovered from the accused Pradeep Khurana and were taken into possession by the UP STF in FIR No. 85 of 2003.
13. As the paper slip recovered from the accused Pradeep Khurana had the name and details of PW4 and was relevant for the present case, SI Dharmender Kumar PW23 along with Head Constable HC Ajeet Singh (PW18) went to PS Alambagh, Lucknow on 24.06.2003 to collect the same. PW23 moved an application Ex.PW23/A before the Ld. Jurisdictional Court for taking into possession the said paper slip. The application was allowed by the Court vide order Ex.PW23/B in pursuance of which Shiv Kumar Singh Chandel Sub-Inspector PS Alambagh (PW15) handed over the paper slip which was seized by PW23 vide seizure memo Ex.PW15/A and was handed over to PW25.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 7/42
14. During further investigation PW4 informed PW25 that he received calls from accused Fazl-ur-Rehman from some unknown number and an international number 008821621100144 which was a satellite phone. On 27.04.2003, PW4 came to the office of Special Cell and again produced his mobile handset Nokia 8310. Eight other SMS were found in the 'Archive Folder' of the hand set received from mobile numbers 9415026225, 9415046790 and an international number 0060166507066. Transcripts of these SMS messages were prepared and seized vide memo Ex.PW3/F and the mobile instrument was returned to PW4.
15. On 20.05.2003, Pradeep Khurana was produced in the Court of Ld. CMM, New Delhi upon issuance of production warrants. He was arrested vide memo Ex.PW24/A. An application Ex.PW26/A was filed for conducting Test Identification Parade (TIP) of Pradeep Khurana which was marked to Sh. Paramjeet Singh, PW26, Additional District & Sessions Judge (then posted as Metropolitan Magistrate in Tis Hazari Courts). Pradeep Khurana recorded his refusal to participate in the TIP proceedings vide Ex.PW26/B with a reason that he had been shown to PW4 and other persons before being produced in the Court. However on the same day, PW4 had identified the accused in the office of the Special Cell as the person who had forcibly taken him to Lucknow Jail in a red Maruti Car with accused Jitender Singh and made him converse with Om Prakash Srivastav in Central Jail Lucknow. PW24 SI Umesh Barthwal prepared an identification memo Ex.PW24/B in this regard. PW25 interrogated Pradeep Khurana and recorded his disclosure statement vide Ex.PW24/C. PW25 also took the voice sample of State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 8/42 Pradeep Khurana in an audio cassette make T-Series. The said audio cassette was kept in an envelope, put in a cloth parcel and marked as VS-1 and sealed with the seal of HB and seized vide memo Ex.PW24/D. Seal after use was handed over to PW24. Specimen handwriting of Pradeep Khurana was also obtained for the comparison of the handwriting on the paper slip recovered from him containing the names an details of PW4.
16. On 25.09.2003, Om Prakash Srivastav was produced in the Court of Ld. CMM Delhi against production warrants. PW25 arrested Om Prakash Srivastav vide memo Ex.PW24/F and recorded his disclosure statement Ex.PW24/G and supplementary disclosure statement Ex.PW24/H. PW25 obtained the voice sample of Om Prakash Srivastav in an audio cassette with Side-A having his natural and Side-B having the voice of the accused recorded through mobile phone. The said audio cassette was kept in an envelope and put in a cloth parcel and sealed with the seal of HB and seized vide memo Ex.PW3/G. Seal after use was handed over to PW24.
17. On 10.07.2003 (Assistant Sub-Inspector) ASI Ramesh Tyagi PW5 along with PW18 HC Ajeet Singh went to Lucknow during course of the investigation and reached the office of STF on 11.07.2003. PW5 met Anil Kumar Singh, Sub-Inspector STF Lucknow PW12 through whom PW5 took into possession one audio cassette containing tape recorded conversations of mobile numbers 9415157747, 9415066941, 9415157744 and 9415026225 which was relevant to the present FIR vide seizure memo Ex.PW5/A. On 17.07.2003, PW25 played the said audio cassette in the presence of State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 9/42 the complainant PW4 which was found to be containing 25 calls. Transcripts of the same were prepared vide Ex.PW4/B. The audio cassette was marked as C4 and a copy of the said cassette was prepared in another audio cassette Mark CS-4. The audio cassette Mark C4 was kept in a cloth parcel and sealed with the seal of HB and a footnote Ex.PW25/D was recorded in the seizure memo Ex.PW5/A regarding the same.
18. On 17.10.2003, accused Jitender Singh surrendered in the office of the Special Cell and produced a SIM Card of M/s Cell One BSNL number 9415026225 which was seized vide memo Ex.PW3/H. SIM Card was not in working order. Jitender Singh was arrested vide memo Ex.PW3/J and personally searched vide Ex.PW3/J1. His interrogation was conducted and his disclosure statement recorded vide Ex.PW25/E. PW25 obtained the voice sample of Jitender Singh in an audio cassette with Side-A having his natural voice and Side-B having his voice recorded through a mobile phone instrument. The audio cassette was kept in an envelope and then in a cloth parcel and sealed with the seal of HB and seized vide memo Ex.PW3/K. Seal after use was handed over to PW24. PW4 identified Jitender Singh in the office of the Special Cell as the person who had forcibly taken him to Lucknow Jail.
19. During investigation, S.K. Singh, DGM BSNL, PW10 gave a report Ex.PW10/A that mobile number 9415026225 against SIM Card No. 8991552100122011425 had been issued in the name of one Pradeep Kanojia of Lucknow PW7.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 10/42
20. Fazl-ur-Rehman was absconding and was declared as a proclaimed offender. On 06.08.2006 Insp. Lalit Mohan Negi PW3 arrested Fazl-ur-Rehman vide memo Ex.PW3/L and PW3 handed over the accused to PW25 on 07.08.2006. PW25 recorded the disclosure statement of Fazl-ur-Rehman Ex.PW20/A and two further supplementary disclosure statements Ex.PW20/B and Ex.PW20/C. PW25 obtained the voice sample of Fazl-ur-Rehman in an audio cassette with Side-A having his natural voice and Side-B recorded through telephonic conversation. The cassette was kept in a cloth parcel and sealed with the seal of HB and marked as Mark VS-4. Seal after use was handed over to SI Amul Tyagi PW20.
21. All the audio cassettes had been deposited in the Malkhana of PS Special Cell by the IO PW 25. PW16 SI Bhoop Singh on 02.11.2003 collected six parcels one sealed with the seal of LMN and other five sealed with the seal of HB from the MHCM Special Cell vide RC No. 79 of 21 with a forwarding letter and deposited the same with CFSL Chandigarh and deposited its receipt with the MHCM Special Cell. PW17 ASI Ashok Kumar on 15.09.2006 collected four parcels (three envelopes and one pullanda) from the MHCM Special Cell vide RC No. 105/21/06 and deposited the same with CFSL Chandigarh and deposited the receipt with the MHCM Special Cell. PW19 SI Rishi Pal Singh on 14.07.2003 collected one handwritten paper sheet affixed on a piece of paper and 11 other papers having specimen handwriting vide RC No. 44/21/03 and deposited the same with CFSL Lodhi Colony and deposited the receipt with the MHCM Special Cell.
22. During investigation, PW25 collected the travel details of State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 11/42 PW4 Complainant from M/s Jet Airways as per which he had traveled from New Delhi to Lucknow on flight 9W725 on 11.03.2003 vide report Mark PW25/A and PW25/B. The IO collected the telephone bill Ex.PA of the complainant in the name of his wife Smt. Rita Singh in respect of landline phone number 26144220 vide seizure memo Ex.PW4/C on 21.12.2003. Sanjay Garg, Technical Manager, Nokia Care PW13 had given a report Ex.PW13/A about the handset Nokia 8310 as per which original messages received on the instrument remain in its 'Inbox' and modified messages went to other folders. The report further stated that original messages saved in the 'Archive' contained details of the sender but such details would not be reflected in the edited messages saved in the Archive.
23. PW25 collected the report of CFSL, Lodhi Road regarding the handwriting on the slip of paper recovered from the accused Pradeep Khurana but as per the same, the handwriting on the slip did not match with the specimen handwriting of Pradeep Khurana. PW25 collected the FSL reports from CFSL Chandigarh regarding the voices on the tape recorded conversations of the complainant PW4 with the accused persons Om Prakash Srivastav, Pradeep Khurana, Jitender Singh and Fazl-ur-Rehman. As per the CFSL reports, the voice samples of the accused persons matched with the voices in the tape recorded conversations. PW25 also obtained the Call Detail Records (CDRs) of mobile number 9810409181 of the complainant PW4 which revealed receiving of calls and SMS from mobile numbers 9415026225, 9415082565, 9415157747 and international number 0060166507066 and 008821621100144. The analysis of the CDRs reveal that several calls and SMS had been made from number 9415026225 to State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 12/42 9810409181. It also revealed that 9415026225 had been in touch with 9415082565 and 9415157747. The CDR of mobile no. 9810111212 of Ravi Somani PW2 reflected receiving of calls from 9415071534 and that the mobile number of Diwakar Singh PW6 had received calls from mobile no. 9415157747. Upon completion of the investigation, PW25 initially had filed charge-sheet against Om Prakash Srivastav, Pradeep Khurana and Jitender Singh. After apprehension of Fazl-ur-Rehman, a supplementary charge-sheet qua him was filed.
24. Vide order dated 28.02.2006, charges were framed against Om Prakash Srivastav, Pradeep Khurana and Jitender Singh under Sections 120B, 364A, 387 of the IPC to which they pleaded not guilty and claimed trial. Vide order dated 18.12.2006, charges were framed against accused Fazl-ur-Rehman under Sections 120B and 387 of the IPC to which he also pleaded not guilty and claimed trial.
25. The prosecution has examined 26 witnesses to bring home its charges against the accused persons. The brief description of witnesses examined in the course of the trial are tabulated as under:-
SRL. NO. NAME RELEVANCY
PW1 ASI Daler He is the Duty Officer who registered the
Singh FIR.
PW2 Ravi Somani He is the business partner of the
complainant Sheetal Prasad Singh.
PW3 Insp. Lalit He had joined investigation with the IO SI
Mohan Hriday Bhusan.
PW4 Sheetal Prasad He is complainant of the case.
Singh
PW5 ASI Anil Tyagi He had gone to Lucknow along with HC
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 13/42
Ajeet to take possession of certain audio
cassettes from STF Lucknow.
PW6 Diwakar Singh He was Chief Executive Officer of M/s
Rare Fuel & Automobile Pvt. Ltd.
PW7 Pradeep He was running an establishment of dry-
Kanojia cleaning of clothes at Lucknow, U.P. and
per the prosecution had handed over his
photos and copy of identity card to
accused Jitender Singh used by the latter
to get a BSNL connection in the name of
PW7.
PW8 Nagesh Kumar He is the brother-in-law of the complainant
Singh Sheetal Prasad Singh.
PW9 R.K. Singh He is the Nodal Officer of M/s Bharti Airtel
Ltd. and had produced the records of
mobile no. 9810409181 of the
complainant, mobile no. 9810111213 of
Ravi Somani and mobile no. 9810530443
of Diwakar Singh.
PW10 S.K. Singh He is Deputy General Manager of BSNL
and produced the records of mobile no.
9415026225 of Pradeep Kanujia.
PW11 Dr. C.P. Singh He is Assistant Director (Physics), FSL
Delhi who had examined tape recorded
conversations, voice samples and
transcription of calls while he was working
at CFSL Chandigarh.
PW12 Anil Kumar He was posted as Sub-Inspector in STF-
Singh III, U.P. Lucknow who had kept certain
phone numbers on surveillance after
information was received of extortion calls
being made inside the jail including by
accused Om Prakash Srivastav.
PW13 Sanjay Garg In 2003, he was working as Technical
Manager, Nokia Care, HCL Infinet Ltd. and
had given a report about mobile handset
Nokia 8130.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 14/42
PW14 Abhay Kumar He was working in department of Telecom
Srivastav BSNL and deposed about supply of call detail records to Delhi Police.
PW15 Shiv Kumar He was posted as Sub-Inspector in PS Singh Chandel Alambagh, Lucknow and had investigated FIR No. 85/03 PS Alambagh. He had arrested the accused Pradeep Khurana and had recovered a slip from him bearing the name of the complainant and some telephone numbers which he handed over to SI Dharmender Kumar.
PW16 SI Bhoop Singh He was posted in Special Cell as ASI and had collected six pullandas from the MHCM vide RC No. 79/21 and deposited the same in CFSL Chandigarh.
PW17 ASI Ashok He was posted in Special Cell as ASI and Kumar had collected four pullandas from the MHCM vide RC No. 105/21/06 and deposited the same in CFSL Chandigarh.
PW18 HC Ajeet Singh He was posted in Special Cell as HC and had gone with SI Dharmender to Lucknow on 25.06.2003 for investigation and had collected a paper slip which had been seized from accused Pradeep Khurana.
He had also gone to STF Lucknow on 11.07.2003 which ASI Anil Tyagi and had taken into possession a audio cassette.
On 17.07.2003 he was present when the said cassette was played in the presence of the complainant and Insp. Hriday Bhusan in the office of Special Cell.
PW19 SI Rishi Pal He was posted in Special Cell as SI and Singh had collected a handwritten paper slip and specimen handwriting papers and deposited the same in CFSL Lodhi Colony vide RC No. 44/21/03.
PW20 SI Amul Tyagi He was posted in Special Cell as SI and had apprehended accused Fazl-ur-
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 15/42 Rehman along with Insp. Lalit Mohan and a secret informer and other police staff from Saloni Border, U.P. PW21 Ashok Singh, He was posted as STF Lucknow and had Insp. arrested accused Pradeep Khurana along with a police team of PS Special Cell from South City Lucknow on 23.04.2003.
PW22 Ashok Kumar He was posted as Senior SDO, BSNL, Shukla Lucknow, U.P. and examined in respect of call detail records of mobile numbers 9415026225, 9415157747 and 9415082565 for the year 2003 which he deposed had been destroyed.
PW23 SI Dharmender He was posted as SI in Special Cell and Kumar had gone to Lucknow and seized a paper slip recovered from the possession of the accused Pradeep Khurana from SI Shiv Kumar Chandel, U.P. Police.
PW24 Insp. Umesh Investigation of the case was marked to Barthwal him on 20.05.2003. He also joined the investigation on 21.05.03, 25.09.03, 26.09.03, 27.09.03, 17.10.03 and 21.10.03.
PW25 Insp. Hriday He is the IO of this case.
Bhusan
PW26 Sh. Paramjeet As MM in Tis Hazari Courts, he had
Singh, Ld. ASJ conducted the TIP proceedings in respect of the accused Pradeep Khurana.
26. After closure of evidence of the prosecution, statements of all the accused persons were recorded under Section 313 of the Cr.P.C. in which they claimed false implication. None of the accused persons desired to lead evidence in defence.
27. Arguments were addressed by the Ld. Addl. PP for the State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 16/42 State who submitted that there was sufficient evidence to bring home the charges against the accused persons. Arguments were also addressed on behalf of the accused persons. In addition to oral arguments, written submissions on behalf of the accused persons were also filed. Amongst others, it was strenuously argued by Ld. counsel for the accused that the material evidence in this case was in the form of electronic evidence. It was submitted that as per the prosecution, it had recorded the telephonic conversations of the accused persons with the complainant PW4. Such conversations were recorded in audio cassettes which along with the voice samples of the accused persons had been sent for forensic examination to CFSL Chandigarh. It was submitted that there is absolutely no evidence regarding the medium or the instrument in which these conversations were recorded. There was no evidence regarding the instrument used to record the voice samples of the accused persons. He submitted that there is no certificate issued in respect of recording of any of the tape recorded conversations or recording of the voice samples and in the absence of the same the entire electronic record regarding the tape recorded conversations was inadmissible in evidence. He further submitted that as per the prosecution, SMS messages were recovered in the mobile phone instrument of PW4 and were reduced into writing. The mobile phone instrument of PW4 in which these SMS had been stored was neither sent for any forensic examination nor produced before the Court. It has not even been seized by the IO.
28. It was further submitted that in order to prove that the phone calls were made and SMS messages sent to PW4 from the mobile phones of the accused persons, the IO had collected CDRs from State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 17/42 the concerned Telecom Companies. It was submitted that even though CDRs were produced, the same were not accompanied with any certificate under Section 65B of the Evidence Act rendering the CDRs to be inadmissible in evidence.
29. Apart from the submissions made regarding electronic evidence, the Ld. counsel for the accused persons also drew attention of this Court to the contradictions in the versions of material witnesses and submitted that it was also doubtful whether any incident as alleged on 11.03.2003 had taken place. He submitted that the complainant had stated that they had been extended threats by the accused persons who had acted on the behest of Nitin Shah, a business rival of the complainant but no investigation qua Nitin Shah had been carried out. It was submitted that PW4 had admitted that he had stood surety for Nitin Shah in a case at one point of time and that PW4 himself had several criminal cases registered against him. He submitted that PW4 had admitted that he had filed several cases including before the High Court and Supreme Court to counter the attempts of Nitin Shah allegedly trying to monopolize the business of HSRPS and it was apparent that the the complainant had used the criminal machinery as part of his rivalry with Nitin Shah.
30. I have heard the Ld. Counsel for the parties and have perused the record of the case. My findings are as under:-
ELECTRONIC EVIDENCE
31. As apparent, a substantial part of the evidence brought by State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 18/42 the prosecution to bring home the charges against the accused persons is based on electronic evidence. Before adverting to the nature and admissibility of the electronic evidence produced during the course of this trial, it will be pertinent to refer to the law regarding electronic evidence.
32. Section 29A of the IPC was incorporated by way of an amendment by Act 21 of 2000, Section 91 with effect from 17.10.2000. Section 29A IPC defines 'electronic record' to be having the same meaning as assigned in Section 2 (1) (t) of the Information Technology Act, 2000. Section 2 (1) (t) of the Information Technology Act, 2000 defines 'electronic record' to mean data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. Thus electronic record will include sound stored in electronic form or micro film or computer generated micro fiche.
33. Section 65B was also incorporated in the Evidence Act by way of an amendment by Act 21 of 2000, Section 92 with effect from 17.10.2000. In the case of Anvar PV vs. PK Basheer reported in (2014) 10 SCC 473 the Hon'ble Supreme Court was pleased to hold as under:-
"22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 19/42 Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
(emphasis supplied)
34. The judgment in the case of Anvar P.V. vs. P.K. Basheer (supra) was relied upon and followed by the Hon'ble High Court of Delhi in the case of Ankur Chawla vs. CBI, Crl. M.C. No. 2455 of 2012 decided on 20.12.2014 in which it was observed that the certificate under Section 65B of the Evidence Act was mandatory and the same has to be of the date when the electronic evidence is procured.
35. In the case of Anvar P.V. vs. P.K. Basheer (supra) and as followed by the Hon'ble High Court of Delhi in the case of Ankur Chawla vs. CBI, it has been categorically held that electronic evidence in the absence of any certificate under Section 65B of the Evidence Act was inadmissible in evidence. Moreover, if there is any such certificate it has to be of the date when the electronic evidence was procured.
36. In the case of Jagdeo Singh and Ors. vs. The State, Crl. A. No. 527, 529 and 607 of 2014 decided by the Hon'ble High Court of Delhi on 11.02.2015 the law on the subject of electronic evidence was State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 20/42 reviewed and the judgment in the case of Anvar P.V. vs. P.K. Basheer (supra) explained further. The relevant paras of the said judgement are reproduced as under:
"53. Among the critical pieces of evidence the intercepted conversations on the mobile phones allegedly used by the three accused and the call detail records (CDRs) of those phones. One of the questions that arose in considering the evidence in relation to intercepted calls, which is essentially electronic evidence, is whether the requirement of Section 65B of the Indian Evidence Act (EA) was satisfied.
54. A two-judge Bench of the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 had relied upon this question of law in this case, the CDRs of mobile phones used by the accused were relied upon by the prosecution. The print outs of the CDRs were taken from the computers/servers by mechanical process and certified by a responsible official of the service provider. Although the said official himself was not examined, the witness who identified the signatures of the certifying officer was examined. In the circumstances, it was observed that although the certificate containing the details in terms of sub-Section (4) of Section 65B was not filed in the instant case, that evidence can be led by using Sections 63 and 65 of the Evidence Act. It was further observed that Section 65B of the Evidence Act being a provision dealing with admissibility of electronic records, "there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65."
55. Recently, a three-judge Bench of the Supreme Court in Anvar P.V. (supra) overruled the above dictum of the judgment of the two-judge Bench in Navjot Sandhu (supra) by holding that Section 65B relating to electronic records being a special provision, "the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law." It was held that "Sections 63 and 65 State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 21/42 have no application in the case of secondary evidence by way of electronic record." Even "in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." In Anvar P.V. (supra), in relation to the CDs no certificate had been produced in terms of Section 65B EA. It was held that the electronic evidence in the form of CDs/DVD/Chip shall be accompanied by the certificate "in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
"68.At this stage, it is necessary to understand what should be done to satisfy the requirement of Section 65B EA. It has been reiterated by Mr. Katyal, learned APP, before the Court and in the written submissions that there was substantial compliance with Section 65B EA. This provision is inserted in the Chapter V titled Of Documentary Evidence. It occurs after Section 65 which permits secondary evidence to be given in relation to documents. Both Section 65A which is titled Special provisions as to evidence relating to electronic record and Section 65B regarding Admissibility of electronic records proceed on the major premise that as far as the electronic records are concerned, it may be difficult in many instances to produce original record which would be on a huge server or a server that is unable to be produced before the Court or on a major tower etc. The very purpose of Section 65B EA was to obviate this difficulty. What it essentially does is it brings secondary evidence to the level of primary evidence in order to make it admissible in accordance with law. All conditions set out in Section 65B (2) and Section 65B (3) EA have to be satisfied.
69. The mandatory requirement under Section 65B (4) is that the certificate produced should satisfy the requirement under Section 65B (4) (a), (b), and (c) and the requirement that they should be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 22/42 relevant activities (whichever is appropriate). The electronic evidence thus produced that is accompanied by such certificate "shall be deemed to be also a document", dispensing with the further proof of production of the original. In other words, there is no escape from the requirement of producing the signed certificate by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities."
"71. There is no certificate issued in terms of Section 65B EA either by PW-1 or anyone else. It is understandable that PW-1 being a police officer and not conversant with the operation of a device used to record the conversations which he was listening, may not be the person capable of giving such a certificate in the first instance. But then there is no certificate by any other person satisfying the requirement of Section 65-B (4), i.e., a person "occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities."
"There was no question of further secondary evidence to be produced in terms of Section 65B. Which is why the Supreme Court in Anvar P.V. held categorically that "Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B." The decision in Navjot Sandhu to the above extent was held to be no longer good law The Court in Anvar P.V. did not stop there. It further declared: "Thus, in the case of CD, VCD, chip, etc, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record is inadmissible."
"79. In other words, the law is now abundantly clear. If there is no certificate accompanying electronic evidence in terms of Section 65B i.e., such evidence is "inadmissible." This evidence is inadmissible because it does not satisfy the requirement of the law under Section 65B EA. Such State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 23/42 evidence cannot be looked into. Consequently, as far as the present case is concerned, the Court is satisfied that the intercepted telephone calls presented in the form of CDs before the trial court which were then examined by the FSL expert do not satisfy the requirements of Section 65- B EA. The net result is that the electronic evidence in this case in the form of the intercepted conversations and the CDRs cannot be looked into by the Court for any purpose whatsoever."
37. In the case of Jagdeo Singh (supra), the Hon'ble High Court reviewed the law regarding Section 65-B of the Evidence Act and applied it to the facts of the case before it. It was found in that case that the prosecution had relied on tape recorded conversations against the accused persons with their transcriptions. PW1 in the said case had been deputed to listen to those conversations and he handed over the intercepted conversation transcripts in a pen-drive to PW17. PW17 copied the tape recorded conversations in DVD and CDs and the computer system installed in the office of Special Cell was under the supervision and control of PW30. It was PW1 who had downloaded the transcripts and handed over them to PW17. PW17 thereafter downloaded the conversations in DVD and CDs. These CDs were tendered in evidence before the Trial Court. PW17 in cross-examination had deposed that the original device in which the intercepted calls were made had not been sent for FSL examination. PW17 deposed that he had copied the data in the pen-drive given to him in the hard-disk of the system which he was using. He heard all the calls and thereafter copied the same in DVD and CDs. The pen-drive was returned by the PW17 after copying the data in the computer system. PW17 had further deposed that he did not seize the hard-disk and the original computer system from which the intercepted calls were copied. The Hon'ble High State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 24/42 Court was pleased to hold that in the absence of any certificate under Section 65-B of the Evidence Act of a person occupying a responsible official post in relation to the operation of the relevant device or management of relevant activity, the evidence regarding tape recorded conversations had been rendered inadmissible. It was further held that in the absence of any such certificate no further secondary evidence in respect of such conversations could not have been given. Hence, the said evidence could not be looked into by the Court for any purpose whatsoever.
38. I shall now refer to the electronic evidence relied upon in this case by the prosecution. As per prosecution on 16.04.2013, the complainant PW4 had come to the office of the Special Cell and made / received six phone calls with the accused persons. These phone calls were made / received by PW4 in the presence of PW25 and PW3. In this regard PW3 has deposed that on 16.04.2003, he had joined the investigation with PW25 and it was in his presence the complainant had made / received the said phone calls. He deposed that these calls were recorded in an audio cassette marked as Mark-C1 and were re-recorded in another audio cassette marked as Mark-CS1. Both these cassettes were thereafter sealed and seized vide memo Ex.PW3/B. PW4 as well as PW25 have deposed similarly in this regard. There is no evidence produced by the prosecution as to the nature of the electronic equipment used for recording these calls in the audio cassette Mark C1 which was re-recorded in an another audio cassette Mark CS1. There is no certificate under Section 65B of the Evidence Act of any person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities in this State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 25/42 regard. In other words, no person within the meaning of Section 65 B of the Evidence Act has given any certificate in respect of the conversations of PW4 with the accused persons which were recorded and thereafter re-recorded in audio cassettes. In view of the law laid down in the case of Anvar PV vs. PK Basheer (supra) and as followed by the Hon'ble High Court in the cases of Ankur Chawla vs. CBI (supra) and Jagdeo Singh and Ors. vs. The State (supra), in the absence of any certificate under Section 65B of the Evidence Act in this regard, the tape recorded conversations contained in audio cassettes Mark C1 and Mark CS1 seized vide memo Ex.PW3/B are rendered inadmissible in evidence. As a consequence of the same the transcripts Ex.PW3/A in respect to contents of these conversations cannot be looked into.
39. As per the prosecution, on following day i.e. 17.04.2003, the complainant PW4 again come to the office of Special Cell and produced two audio cassettes which were stated to be containing tape recorded conversations of PW4 with the accused persons. These audio cassettes were produced by PW4 in the presence of PW3 and PW25. These audio cassettes were played and heard by PW3, PW4 and PW25. The audio cassettes were seized and sealed and marked as Mark C2 and C3. The contents of Mark C2 and C3 were re-recorded in spare audio cassettes marked as CS2 and CS3 and all of them were seized vide memo Ex.PW3/E. Their transcripts were prepared vide Ex.PW3/D. As per prosecution, the two audio cassettes brought by PW4 to the office of Special Cell had been recorded by him at his own level. There is no evidence as regards the electronic equipment used for recording of these conversations in the two audio cassettes brought by PW4. There is no evidence regarding the electronic medium used for State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 26/42 copying these audio cassettes in the office of Special Cell on 17.04.2003. There is no certificate under Section 65B of the Evidence Act of any person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities in this regard. In view of the law laid down in this regard even these audio cassettes, contents thereof and their transcripts are rendered inadmissible in evidence.
40. The IO had obtained CDRs of mobile nos. 9810409181 of the complainant PW4, 9810111213 of Ravi Somani PW2 and 9810530443 of Diwakar Singh PW6 from M/s Bharti Airtel, New Delhi. PW9 R.K. Singh, Nodal Officer of M/s Bharti Airtel had been summoned for this purpose with records of call details of these three phone numbers. He has deposed that CDRs of these numbers were provided by the said company to the IO. He exhibited the CDRs of mobile no. 9810409181 as Ex.PW9/A1 to A67, the CDRs of mobile no. 9810111213 as Ex.PW9/C1 to C10 and the CDRs of mobile no. 9810530443 as Ex. PW9/B1 to B22. None of the CDRs of any of the aforesaid numbers are accompanied with any certificate under Section 65 B of Evidence Act of any person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities in this regard. In the absence of any such certificate, the CDRs of mobile phone numbers 9810409181, 9810111213 and 9810530443 are too as inadmissible in evidence and cannot be looked into.
41. The IO had also obtained the CDRs of mobile phone numbers 9415026225 (belonging to Pradeep Kanojia PW7), 9415157744 and 9415082565 all of which are of M/s BSNL. PW22 State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 27/42 Ashok Kumar Shukla, Senior SDO, BSNL, Lucknow, U.P. was summoned in this regard. He deposed that he could not produce the CDRs of these three mobile numbers as they were destroyed as per norms. He saw the copies of the CDRs of these phone numbers in the judicial file and identified them as the same which were given to the IO and they were marked as Mark PW22/ B, Mark PW22/ C and Mark PW22/D. The original CDRs of these numbers were never produced before this Court. Even CDRs which had been obtained by the IO from BSNL which are on the judicial record are not accompanied with any certificate under Section 65B of the Evidence Act. Hence the CDRs of these mobile numbers on the judicial record too are rendered as inadmissible in evidence.
42. PW5 along with PW18 had gone to Lucknow and had taken into possession one audio cassette containing tape recorded conversation of mobile phone numbers 9415157747, 9415066941, 9415157744 and 9415026225 from PW5 vide seizure memo Ex.PW5/A. The contents of this cassette was played by PW25 in the presence of PW4 and the transcripts of these 25 calls were prepared vide memo Ex.PW4/B. The said audio cassette marked as Mark C4 and a copy of the said cassette was prepared marked as Mark CS-4. The audio cassette Mark C4 was kept in a cloth parcel and sealed with the seal of HB and a footnote Ex.PW25/D was recorded in the seizure memo Ex.PW5/A regarding the same. There is no evidence regarding electronic medium used for recording conversations in the cassette Mark C4. No certificate under Section 65 B is accompanied with the cassette Mark C4 which was handed over by PW12 to PW5 and PW18. There is no evidence regarding electronic equipment used to prepare State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 28/42 the copy of the said audio cassette Mark CS4. No certificate under Section 65B of the Evidence Act accompanies the audio cassette Mark CS-4. In the absence of any certificate under Section 65B of the Evidence Act, the contents of these audio cassettes Mark C4 and CS4 as well as its transcripts Ex.PW4/B are inadmissible inadmissible in evidence.
43. As per the prosecution and the evidence of PW25, the accused Fazl-ur-Rehman had talked with PW4 by using international number 0060166507066 and another international number 008821621100144. No evidence has been produced by the prosecution regarding the subscribers of these two international numbers so as to connect them with the accused Fazl-ur-Rehman. The CDRs of these numbers have not been produced. These two phone numbers had been used to converse with the complainant PW4 on his mobile phone number 9810409181, the CDRs of stand rendered as inadmissible in evidence in the absence of any certificate under Section 65 B of the Evidence Act.
OTHER EVIDENCE ADDUCED BY THE PROSECUTION
44. As per the prosecution, Nagesh Kumar Singh (PW8 and brother-in-law of the complainant PW4) had informed the complainant that one Bobby and Jitender @ Jittu (accused Jitender Singh) were making enquiries about PW4 from him. PW8 in his examination in chief had deposed that in December, 2002 his wife had told him that one Bobby had been asking for the telephone number of PW4. He deposed that he telephoned Bobby and asked him for the reason for seeking the State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 29/42 said phone number and Bobby told him that Jitender Singh wanted the same. He deposed that his wife gave the number of PW4 to Bobby. He deposed that the phone number of Bobby on which he talked to him was 9415046247 and he had saved the phone number in his mobile phone.
45. In cross-examination PW8 deposed that on 11.05.2003 he had told the police that his wife has informed him about Bobby enquiring about the number of PW4 but this fact was not recorded in his statement under Section 161 of the Cr.P.C. Ex.PW8/DA. He further deposed that he told the police that his wife had given telephone number to Bobby which fact again was not recorded in his statement Ex.PW8/DA. He could not remember whether he told the police that Bobby had him that the accused Jitender Singh had some personal work with PW4 which again was not contained in his statement Ex.PW8/DA. He admitted that the Bobby did not tell him as to on which date, month or year Jitender Singh had asked Bobby about the phone number of PW4.
46. There is nothing in the evidence of PW8 regarding any threats having been extended by the accused persons to PW4 except that accused Jitender Singh was enquiring about the number of PW4.
47. As per the prosecution and contents of the complaint Ex.PW4/A, two weeks prior to making of the said complaint, one Anand Srivastav of the gang of Om Prakash Srivastav had threatened Ravi Somani PW2 (business partner of PW4) on his mobile number 9810111213 through mobile phone number 9415071534. Ravi Somani was examined as PW2. In the initial part of his examination in chief, he deposed that PW4 was his business partner and that in December, State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 30/42 2002 / January, 2003, PW4 had informed him about receiving threatening calls regarding settlement of the dispute with Nitin Shah. He deposed that after some days, he received a telephone call on his mobile phone from one person named Anand Srivastav who asked why he had not gone to Lucknow. He deposed that the said caller told him that dispute between his company and Nitin Shah would be settled in Lucknow but he told the said caller that he had no knowledge in that regard. He deposed that 5-6 days thereafter he again received a call on his mobile phone that Anand Srivastav would telephone him. After 15 minutes thereafter he received a call on his mobile phone from Kerala and of some PCO and caller introduced himself as Anand Srivastav who asked him about further development in respect of his earlier call. PW2 deposed that he told the caller that he had talked with PW4 who would be looking after the matter. PW2 thereafter changed his mobile number and since then he did not have any contact with any person and had no knowledge about facts of his case.
48. PW2 was questioned by the Ld. Addl. PP after being allowed by the Court to put leading questions to him. PW2 thereafter admitted that his statement had been recorded by the police on 29.04.2003. He deposed it as correct that the calls had been received by him at his mobile number 9810111213 but he denied that he mentioned in his statement that the caller had introduced himself as Anand Srivastav and told him that he had been instructed by Babloo to call him. After confronted with the statement Mark P2-A where it was so recorded, he deposed that the caller had told him that he had been instructed by Bhai Sahab to call him. In cross-examination PW2 deposed that he could say anything about mobile phone from which he State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 31/42 had received a call on his mobile. He admitted that he had lodged an FIR against the complainant PW4 which subsequently was compromised.
49. I have already noticed that CDRs of mobile phone number of PW2 9810111213 was inadmissible in evidence as no certificate under Section 65 of the Evidence Act was accompanied with it. Even otherwise PW2 could not recall the phone number from which he had received the call.
50. As per complaint Ex.PW4/A, Diwakar Singh (PW6) a working associate of the complainant PW4 had also received a similar call (as received by PW2) on his cell phone no. 9810530443 from Om Prakash Srivastav through mobile no. 9415157747 one week before making of the said complaint. PW6 Diwakar Singh in his examination in chief deposed that he was working as Chief Executive Officer in M/s Rare Fuel & Automobile Pvt. Ltd. and that Piyush Kumar, son of PW4 was the Director of the said company. He deposed that Piyush Kumar had told him not to receive any unknown call on his mobile phone and that he did not know anything else about the case.
51. PW6 was cross examined by Ld. Addl. PP of the State as he had resiled form his statement made to the police. In cross- examination by Ld. Addl. PP, PW6 deposed that police had made inquiries from him in connection with the case and he was called to the office of Special Cell in Lodhi Road but he could not remember whether police had recorded his statement or not. He could not say whether in the year 2003 PW4 was Director of the said company. He deposed that State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 32/42 PW4 was related to him being brother-in-law of his cousin. He admitted that in March, 2003 PW4 told him that he had been receiving certain threatening calls from Babloo Srivastav but denied that the demand of Rs.25-30 Lacs had been made from him. He admitted that he had received a call on his mobile number 9810530443 but could not say whether the said call received on 08.04.2003 from mobile number 9415157747. He was confronted with his statement Mark-X where it was so recorded but he voluntarily deposed that after receiving the said call he had received a call from Special Cell asking him as to why he did not talk on the previous call received on his mobile phone. He denied all the suggestions of the Ld. Addl. PP. There is nothing material in his cross-examination on behalf of the accused persons.
52. The CDRs of mobile phone of PW6 viz. 9810530443 stands rendered as inadmissible in evidence in the absence of any certificate under Section 65 B of the Evidence Act accompanying the same. The CDR of mobile phone no. 9415157747 has also been rendered inadmissible for the same reason.
53. As per prosecution on 11.03.2003, the complainant PW4 had traveled from New Delhi to Lucknow by Air and was intercepted on the way to the City by the four persons in a Maruti 800 car in which accused Jitender Singh and Pradeep Khurana were sitting. PW25 had deposed that he had collected the details regarding travel of PW4 from New Delhi to Lucknow by Air. Mark PW25/A is a letter dated 02.12.2003 by M/s Jet Airways under the signature of Ashwani Khanna, Station Manager, M/s Jet Airways Delhi through which the police had been informed that there were two passengers by the name of S. Singh on State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 33/42 their flight 9W-725 of March 11, 2003 from New Delhi to Lucknow who traveled on seat nos. 11F and 17D. It was stated in the said communication that the said flight departed from New Delhi at 1605 hrs and arrived at Lucknow at 1655 hrs. Along with the said letter the passenger list is enclosed.
54. Mark PW25/B is another letter dated 15.12.2003 issued by Ashwani Khanna of M/s Jet Airways by which the photocopy of a flight ticket issued in the name of Sheetal Singh flight 9W-725 March 11, 2003 from New Delhi to Lucknow, had been enclosed. Just after the said letter, another communication in the form of a Certificate dated 04.12.2003 of M/s Jet Airways under the signatures of Archana Naik, Manager, Finance M/s Jet Airways is on file, as per which passenger by the name of Sheetal Singh had purchased a ticket dated 11.03.2003 of Sector Delhi to Lucknow of Flight 9W-7255 and Lucknow to Delhi of Flight 9W-742 dated 11.03.2003. After the said certificate, the photocopy of the flight ticket is enclosed.
55. Despite obtaining the said records, no witness was summoned from M/s Jet Airways to prove these communications. These communications were marked as Mark 25/A and Mark 25/B in the examination of the IO PW25. The authors of the letters dated 02.12.2003, 15.12.2003 and certificate dated 04.12.2003 were not summoned before this Court to be examined as witnesses.
56. Complainant was examined as PW4. In his examination in chief he deposed generally as per contents of his complaint Ex.PW4/A. As regards his travel to Lucknow, he deposed that he had gone State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 34/42 Lucknow on 10th or 11th March, 2003 and was going to the City Lucknow from Airport via Lucknow Jail. He deposed that one Maruti car had come in front of his taxi and asked him to stop. One of the occupants of the Maruti car asked him to met Babloo Srivastav at Lucknow Jail. He was made to talk to Babloo Srivastav on phone who asked him to talk him to settle the issue. He deposed that his Taxi and the Maruti Car reached near the Jail Gate and one person was standing at the gate and pointed out towards Babloo Srivastav and told him to talk to him. He was able to recognize Babloo Srivastav as he had seen him on television and photographs in the newspaper. He identified the accused Jitender Singh and Pradeep Khurana as the persons who were in the red Maruti Car and Om Prakash Shrivastava. He further deposed that he had received threatening calls on his mobile number 9810409181 and landline no. 26144220.
57. PW4 was cross examined by the Ld. Addl.PP as he had resiled from his earlier statement made to the police. In cross- examination by the Ld. Addl. PP, he generally admitted as correct the contents of his complaint Ex.PW4/A.
58. In cross-examination by the accused persons, PW4 deposed that he was in good terms with Nitin Shah between 1996 to 1997 and he had also stood surety for Nitin Shah on 25.02.1997 in FIR No. 298/92 PS Shakarpur, Delhi in a case under Section 302 / 120B IPC. He admitted that he had never applied for cancellation of his surety on behalf of Nitin Shah. He deposed that he had visited Lucknow on 10/11.03.2003 for business purposes in the Transport Department. He could not remember at what time he landed at Airport at Lucknow. He State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 35/42 could not even remember whether it was early morning, day time or later in the evening. He could not remember whether he had arrived at Lucknow Airport at 2pm, 3pm, 5pm or 6pm. He deposed that he had hired a taxi from the Airport for going to City and that he had not received any phone call at the Airport nor any of the accused contacted him in person. He deposed that he must traveled 2 to 5 kms when the Maruti Car came in front of his taxi. He admitted that there was vehicular traffic on the road when he was intercepted but he did not raise any alarm when he was asked to meet Babloo Srivastav in the Jail. He did not ask the taxi drive to divert the route. He did not note down the registration number of the Maruti Car. He did not ask the taxi driver to take him to the some police station.
59. PW4 in his cross-examination further deposed that he could not remember at what time he reached the Jail to meet Babloo Srivastav. He could not even say whether it was 2pm, 3pm, 5pm or 6pm. He deposed that he had remained few yards away from the gate of the jail from outside and talked with Babloo Srivastav for about 30-40 minutes. He deposed that jail officials were present at that time but he did not made any complaint to them. He was not aware as to by what time he got free from the said meeting or whether the date was 10 th or 11th March, 2003. He admitted that he did not inform the police at Lucknow about incident before leaving for Delhi. He had not discussed the matter with his family nor he informed the police at Delhi. He could not remember the dates when he started receiving SMS and ISD calls upon his return from Lucknow. PW4 deposed as correct that till he made the complaint in writing to the police he did not receive any threat from any of the accused persons.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 36/42
60. PW4 in his cross-examination admitted that working hours of the Transport Department were from 10am to 5pm and he could not remember if during March, 2003 the flights from Delhi to Lucknow used to land at 4:55pm. As regard the SMS messages received on his mobile no. 9810409181 Ex.PW3/A, he admitted that none of these 31 messages contained any threat. He admitted that few of the messages were wishing him 'happy holi'. He deposed that eight messages from phone no. 9415026225, 9415046790 and international no. 0060166507066 did not contain any threat. He admitted that the call details mentioned in Ex.PW3/B had been received / made by him from his mobile phone while he was present in the office of Special Cell. He admitted that there was no demand of Rs.25,00,000/- from the person to whom he was talking. He admitted that neither accused Jitender Singh nor any person on behalf of accused Babloo Srivastav had come to his house to extend any threat or to demand any money. He admitted that there were allegations against Nitin Shah in his complaint Ex.PW3/A but Nitin Shah was not an accused in the case.
61. PW4 in his further cross-examination deposed that he was himself facing a criminal case registered against him about one year of the incident regarding a dispute with a partner. He deposed that there were two other criminal cases registered again him, one of dacoity and other of conspiracy but deposed that both the cases were closed. He denied the suggestion that he knew the accused Jitender Singh 10-12 years prior to the incident but voluntarily deposed that his elder brother B.P. was known to him and had come to his house at Lucknow about 20-22 years back. He admitted that during the period 09.03.2003 to State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 37/42 11.03.2003, he had made one or two calls to Jitender Singh but not a number of calls. He deposed that he had made these calls as a precautionary measure as he was asked to talk under apprehension of danger.
62. PW7 Pradeep Kanojia had been examined by the prosecution in respect of mobile phone connection no. 9415026225 PW10 S.K. Singh, DGM, BSNL had proved his report Ex.PW10/A as per which the SIM Card of the said mobile phone had been issued in the name of Pradeep Kanojia. As per the prosecution PW7 in his statement under Section 161 of the Cr.P.C. had stated that the accused Jitender Singh was known to him for several years as he used to get his clothes dry-cleaned from the shop of PW7 at Lucknow in UP. As per the said statement the accused Jitender Singh had met PW7 in January, 2003 and had taken his two photographs and photocopy of his driving license with the assurance to procure Government employment under quota of SC / ST. These photographs and documents had been used by Jitender Singh to obtain the said mobile phone connection from M/s BSNL. However PW7 completely resiled from his statement and deposed that he did not know accused Jitender Singh and could not identify him. He further denied that the Delhi police ever contacted him in respect of this case. PW7 was cross examined by the Ld. Addl. PP for the State but he denied all the suggestion given to him by the Ld. Addl. PP. PW7 did not support the version of the prosecution even remotely.
63. The case of the prosecution was that the accused persons had extended threats to the complainant PW4 in order to extract money and also to settle his disputes with Nitin Shah. As per the prosecution State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 38/42 PW4 had received these threatening calls on his mobile phone from mobile phones of the accused persons. These conversations of the accused persons were recorded in the audio cassette and sent to CFSL Chandigarh along with voice samples of the accused persons for comparison. The report of the CFSL Chandigarh regarding voice sample of the accused persons was positive. However, in the absence of requisite certificates under Section 65 of the Evidence Act, electronic evidence produced by the prosecution i.e. tape recorded conversations, voice samples and CDRs of mobile phones connection have been rendered as inadmissible in evidence.
64. As per prosecution PW4 had traveled to Lucknow on 11.03.2003 through M/s Jet Airways on flight 9W725. Even though PW25 collected records from M/s Jet Airways regarding said travel, this record have not been proved as no witness from M/s Jet Airways was summoned in this regard. PW4 himself was not sure whether he had gone to Lucknow as he had claimed that he had gone to Lucknow either on 10th or 11th March, 2003. PW4 could not recall at all time when he landed at Lucknow on 11.03.2003. As per the prosecution PW4 was taken by the accused Jitender Singh and Pradeep Khurana to Lucknow Jail on 11.03.2003 when he was going from the Airport to Lucknow City and PW4 had a conversation with the accused Om Prakash Srivastav in Lucknow Jail on 11.03.2003. PW4 could not recall at all as to at what time he met the accused Om Prakash Srivastav in Lucknow Jail.
65. During course of investigation PW25 had sought information from the Jail Authorities at Lucknow regarding the presence of the accused Om Prakash Srivastav in the Jail on 11.03.2003 in order State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 39/42 to corroborate that PW4 had met Om Prakash Srivastav in the said Jail on 11.03.2003. Mark PW25/C is an original letter dated 24.06.2003 addressed by Superintendent District Jail Lucknow to Station House Officer of PS Special Cell Lodhi Colony, New Delhi. As per the same the accused Om Prakash Srivastav had not met any person in Lucknow Jail on 11.03.2003. It is further stated on 11.03.2003, the accused Om Prakash Srivastav was taken from Lucknow Jail at 10:50am to be produced before the Kanpur Court and had come back to the Jail at 3:19 pm from the said Court. The relevant entries that of records of Lucknow Jail were appended to the letter dated 24.06.2003 Mark PW25/C.
66. In these circumstances in opinion of this Court, the prosecution has failed to prove beyond reasonable doubt that the complainant PW4 had traveled from New Delhi to Lucknow on Jet Airways Flight No. 9W725 on 11.3.2003 and thereafter on his way to City of Lucknow was taken forcibly to Lucknow Jail by the accused Jitender Singh and Pradeep Khurana to met the accused Om Prakash Srivastav.
67. As per the prosecution a paper slip had been recovered from the accused Pradeep Khurana bearing name and details of the complainant PW4 at the time of his arrest by a joint police team of STF UP and PS Special Cell, Delhi Police. This paper slip was seized by PW23 after getting permission of the concerned Court at Lucknow vide seizure memo Ex.PW15/A. This paper slip along with specimen handwriting of the accused Pradeep Khurana had been sent to CFSL Lodhi Road New Delhi but as per said report, the handwriting on the State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 40/42 said paper slip did not match with that of the accused Pradeep Khurana.
68. As per the prosecution, the complainant had received certain SMS messages from the accused persons. The transcripts of these SMS messages were reduced in writing. These messages by themselves do not contain any incriminatory material. CDRs to prove that these SMS were sent from the mobile numbers of the accused are inadmissible in evidence. Even though PW13 deposed that the messages in the handset Nokia 8130 of the complainant could not be tampered with, the mobile handset as such was neither seized by the IO nor produced before the Court.
69. The electronic evidence relied upon by the prosecution regarding phone numbers from which calls were made / received by PW2, PW4, PW6 and PW8 with the accused persons have been rendered as inadmissible in evidence in the absence of any certificate under Section 65 B of the Evidence Act. All the tape recorded conversations of the accused persons with the complainant PW4 are also inadmissible in evidence for the same reason. The transcripts of the SMS calls cannot be looked into as there is no CDR corroborating such communication. The original mobile phone instrument of the complainant has not been produced in Court. The presence of PW4 in Lucknow on 11.03.2003 has not been proved beyond reasonable doubt. The handwriting on the paper slip alleged to have been recovered from the accused Pradeep Khurana does not match with his specimen handwriting. There is no evidence to connect the accused Fazl-ur- Rehman with the two international phone numbers alleged to have been used by him to talk with PW4.
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 41/42
CONCLUSION
70. in these facts and circumstances there is only only conclusion which can be reached at the end of this trial i.e. the prosecution has been unable to prove the charges made against the accused persons beyond any reasonable doubt. They are therefore acquitted of the charges framed against them. However in compliance of Section 437A of the IPC, the bail bonds furnished by the accused Pradeep Khurana and Jitender Singh shall remain in force for a period of six months from today. Accused Om Prakash Srivastav and Fazl-ur- Rehman be released from the judicial custody immediately if not required in another matter.
71. File be consigned to record room.
Announced in the open Court (REETESH SINGH)
on 10th April, 2015 ASJ-02/FTC, PHC/NDD
10.04.2015
State vs. Om Prakash Srivastav & Ors.
FIR No. 33/2003, PS: Special Cell 42/42