Delhi District Court
State vs Bharat Chaudhary @ Nikki on 6 October, 2023
IN THE COURT OF SH. ANUBHAV JAIN,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
SHAHDARA, KKD COURTS, DELHI.
JUDGMENT
A. SL. NO. OF THE CASE : 77454/2016
B. DATE OF INSTITUTION : 22.07.2008
C. DATE OF OFFENCE : 26.08.2007
D. NAME OF THE ACCUSED : 1. Bharat Chaudhary
@ Nikki S/o Sh.Rakesh
Chaudhary
2. Umesh S/o Sh. Moti
Lal Mittal
3. Manish S/o Sh. Ram
Kumar
4. Arun Kumar S/o
Late Sh.Net Ram
E. OFFENCES CHARGED FOR : 387/506/34 IPC
F. PLEA OF ACCUSED : Pleaded not guilty and
claimed trial
G. FINAL ORDER : Acquitted.
H. DATE OF FINAL ORDER : 06.10.2023
I. STATE REPRESENTED BY : Sh. Arun Kumar Mavi,
Ld. APP for the State
FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 1 Of 24 Brief Statement of Reasons for Decision:
1. Present accused persons namely Bharat Chaudhary @ Nikki, Umesh, Manish and Arun Kumar are produced before the court to stand trial for the offence punishable u/s 387/506/34 IPC.
2. In brief, it is the case of the prosecution that on 28.08.2007, one complaint was filed by complainant namely Rajneesh Gupta, wherein he stated that on the 26.08.2007, he received a phone call on his mobile number 9810771015 from mobile no. 9911219725.
He further stated that the said caller threatened to kill the complainant, his son and the children of his brother.
Upon the said complaint of the complainant, IO got the FIR lodged for the offence punishable u/s 506 IPC.
During the course of investigation, IO further recorded statement of the complainant, wherein complainant informed that on 28.08.2007 he again received a call and SMS from number 9818128935 and the caller has also asked to pay an amount of Rs. 2,00,000/-, failing which he threatened to kill the complainant and his family. Complainant further provided SMS with regard to the same.
Upon the said statement of the complainant IO added Section 387 IPC during investigation.
Further, IO obtained the CDR & CAF record of mobile FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 2 Of 24 no. 9911219725 and it was found that same was running in two IMEI nos. i.e. 35327101904312 and 35088430826564. Further, during investigation it was found that mobile no. 9911219725 was obtained on a fake address and one mobile no. 9818088534 was also found running on the abovesaid IMEI numbers.
IO further obtained the CDR of 9818088534 number and after perusal of the same, it was found that one similar number 9311088534 was contacted from the said number. IO contacted the said number 93110088534 and same was attended by one Rakesh Chaudhary who informed that the number 9818088534 was being used by his son Bharat Chaudhary.
That thereafter, IO formed a raiding party and arrested the accused Bharat Chaudhary. Further, one mobile make Nokia 1600 and SIM having mobile no. 98180088534 was recovered from his possession & same was seized by the IO. It is further stated that accused Bharat Chaudhary in his disclosure statement disclosed the name of co-accused Manish, Umesh and Arun. That thereafter, upon the instance of the Bharat Chaudhary, accused Manish and Umesh were arrested. Further, one mobile phone make Nokia 3610 without SIM was recovered from Umesh and it was found that it was the same mobile phone which was being used to extend threats to complainant. Further, phone no. 9911219725, which was being used to threaten the complainant, was recovered from the possession of accused Manish.
Further, during the investigation IO arrested the accused FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 3 Of 24 Arun and one mobile phone was recovered from his possession.
Further during course of investigation, IO prepared the site plan, seized the items so recovered from possession of accused persons, recorded the statement of witnesses and disclosure statement of accused, obtained the CDR records of the mobile numbers, seized the mobile of the complainant and after completion of investigation filed the charge sheet against the accused Bharat Chaudhary, Umesh, Manish and Arun for the offences punishable u/s 506/387/34 IPC.
3. Upon filing of charge sheet, Ld. Predecessor court took cognizance of offence u/s 506/387/34 IPC against the accused persons and summons were issued. Accused persons appeared before the court on 03.10.2008 and copy of charge sheet was supplied to them in terms of Sec 207 Cr.P.C.
4. Ld. Predecessor court, vide order dated 25.11.2014, charged all the accused for the offences punishable u/s 387/506/34 IPC to which all accused persons pleaded not guilty and claimed trial and matter was listed for prosecution evidence.
5. Prosecution in order to prove it case has examined following witnesses:
PW-1/Rajneesh Gupta deposed that on 26.08.2007 at around 07:30-08:00 am, one call came at his mobile phone having FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 4 Of 24 SIM card no. 9810771015 and the caller demanded an amount of Rs. 2 lakhs from him and threatened to kill his son if amount is not paid to him. He further deposed that he frequently received 10-15 calls for next 2-3 days regarding demand of amount from and futher threats were given to kill his son and nephew. He further deposed that he also received threatening SMS on his phone. He further deposed that he was receiving threatening call from phone no. 9911219725 and after 2-3 days he received threatening calls from phone no.
9818128935(witness informed the same after going through the pages brought by him). He further deposed that he firstly informed to PS Anand Vihar on 26.08.2007 and thereafter he gave complaint to the SHO PS Anand Vihar Ex. PW1/A. He further deposed that thereafter he received calls that if he did not give Rs. 2 lakhs within 2-3 days then he would have to give amount of Rs. 10 lakhs. He further deposed that the abovesaid calls were recorded on his phone and police used to visit at his house and heard recordings of the threatening calls. He further deposed that after 2-3 days, he came to know that police had arrested three persons. He further deposed that police seized his mobile phone through which he received threating calls Ex. PW1/B. He further deposed that he could not recognize the voice of the caller at the time of receiving the call. He further deposed that later on he recognized accused Bhart Chaudhary after his arrest.
PW-2/W/HC Indu Bala proved FIR Ex.PW2/A(OSR) FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 5 Of 24 and rukka Ex PW2/B. PW-3/SI Majeed Khan (examination-in-chief dated 03.08.2016) deposed that on 30.08.2007, he alongwith SI Mahender Pratap Singh, SI Vinay Yadav, Ct. Ashok, Ct Jatinder and Ct. Munish had gone at house in Jawala Nagar, Pandav Nagar, Delhi where they met accused Bharat Chaudhary & apprehended him. He further deposed that IO took formal search of the accused Bharat Chaudhary and one Nokia phone was recovered from his possession and it was checked by SI Vinay Yadav and it was found same is involved in the present case. He further deposed that IO seized the mobile phone vide memo Ex PW3/A and arrested the accused vide memo Ex. PW3/B and conducted personal search vide memo Ex. PW3/C. He further deposed that accused had disclosed that he can get apprehended other accused persons whose name and house he knew but he cannot tell the address of their houses. He further deposed that IO recorded disclosure statement of the accused Ex. PW3/D & accused Bharat Chaudhary took them to 18 Chowk, Viswas Nagar/Delhi where two persons whose name later on disclosed as Manish and Umesh were standing and on the identification of accused Bharat Chaudhary, both accused were apprehended by them. He further deposed that accused Bharat Chaudhary had disclosed that the SIM card which was used by him to give threat to complainant was with accused Manish and IO took the formal search of accused Manish and one mobile phone was recovered from the possession of accused Manish. He further deposed FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 6 Of 24 that SI Vinay Yadav checked the mobile phone and it was found containing SIM card of Idea and it was found used in the present case. He further deposed that one mobile phone was recovered from the possession of accused Umesh. He further deposed that IO seized the case property vide memo Ex. PW3/E and Ex. PW3/F, arrested the accused persons vide memo Ex. PW3/G, Ex. PW3/H, recorded the disclosure statement vide memo Ex. PW3/I and Ex. PW3/J. During the examination dated 11.01.2018, the witness stated that only SIM card was recovered from possession was recovered from accused Manish and no mobile phone was recovered form his possession and that on 03.08.2016, he inadvertently stated that mobile phone was recovered from Manish. He further deposed that only one SIM of Idea was recovered from the posession of accused Manish and SIM was kept by the IO in a matchbox and said box was sealed into a pullanda with the seal of 'MPS'. He further deposed that one mobile phone was recovered from the possession of accused Mukesh and said mobile phone was make of Nokia-3610. He further deposed that on 01.09.2007, he again joined the investigation of present case alongwith IO/SI M. P. Singh and Ct. Ashok and went to PS Vivek Vihar and from the lock up, accused Bharat Chaudhary was taken out and thereafter at his instance they arrested accused Arun Kumar from JB-6/52m, Welcome, Seelampur, Delhi. He further deposed that they apprehended accused Arun Kumar and on his formal search one mobile phone make Nokia-3230 FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 7 Of 24 was recovered from his possession and seized the same vide Ex PW3/K. He further deposed that IO arrested accused Arun Kumar vide memo Ex.PW3/L, conducted his personal search vide memo Ex. PW3/M and recorded his disclosure statement vide Ex. PW3/N Witness correctly identified the accused Bharat Chaudhary, Umesh and Arun Kumar in the court and case property so recovered from him.
PW-4/HC Munesh Kumar deposed along the lines of PW-3 and same is not reiterated here for the sake of brevity. He further deposed that accused Manish was personally searched vide Ex PW4/A and accused Umesh was personally searched vide memo Ex PW4/B. Witness correctly identified the accused Bharat Chaudhary, Umesh and Arun Kumar in the court.
PW-5/SI Vinay Yadav, beside deposing similar to the lines of PW-3 and 4 further deposed that on 29.08.2007, he was posted at Special Staffs, East District as SI and was also working as Nodal Officer for Liasioning with mobile companies and on that day he received an application by SI Mahender Pratap regarding some call details related to the present case. He further deposed that SHO Anand Vihar moved an application to Nodal Officer, East District Delhi for providing call details of mobile no. 9911219725 FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 8 Of 24 9818128935 and 9891030940 & of IMEI No. 35327101904312-1 from period 01.08.2007 to the date of said application. He further deposed that said application was marked to him and said application is Ex. PW5/A. He further deposed that he applied for the call details of mobile number and IMEI no., mentioned in the above said application and after receiving the call details he analysed the same.
He further deposed that mobile number of the complainant was 9810771015 and he was receiving threatening call and SMS on his mobile no. from the mobile no. 9911219725. He further deposed that after analyses of abovesaid call details, he found that complainant was receiving calls as well as SMS on his mobile no. from the mobile no 9911219725. He further deposed that after further analyses of abovesaid call details, he found that mobile no. 9911219725 was running on two IMEI numbers i.e. 35327101904312 & 35088430826564, which means that accused used SIM No. 9911219725 in two different mobile phones. He further deposed that he further sent both abovesaid IMEI Numbers on which mobile number 9911219725 was found running to the concerned mobile company for verifying as to whether any other mobile phone/SIM No. was also running on the said IMEI Number and he received report that another mobile No./SIM No 9818088534 was also found active on IMEI No. 35327101904312. He further deposed that he also analysed the call details of SIM No 9818088534 and found that calls were exchanged from a very similar number i.e. 9311088534 on said FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 9 Of 24 SIM No. He further deposed that from the user information record of abovesaid similar number i.e. 9311088534, it was found used by one Rakesh Chaudhary and his address was also mentioned in the said report. He further deposed that IO was intimated about this fact and through him he came to know that mobile no. 9311088534 was being used by one Rakesh Chaudhary and it was found that the mobile no. 9818088534 was being used by his son Bharat Chaudhary.
He further deposed that they came to know in this regard through the CDR and user information of mobile no. 8311088534 as user information of above said other mobile numbers were found to be fake.
Witness correctly identified the accused Bharat Chaudhary, Umesh and Manish in the court.
PW-6/Inspector MP Singh, PW-7/HC Jitender Singh and PW-8/HC Ashok deposed similar to the lines of PW-3 and PW- 5 and same is not being reiterated here for the sake of brevity.
Witness correctly identified all the accused persons as well as case property in the court.
PW-9/Inspector RP Meena deposed that on 28.08.2007 at about 12:30 PM, complainant Rajnish Gupta came to the PS and gave a written complaint that he has received threat of death calls on his mobile number 9810771015 from the mobile number 9911219725 FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 10 Of 24 of accused persons and complainant had also shown the threat call details and threat SMS. He further deposed that complainant was provided security from PS Anand Vihar as complainant was a trader in share market. He further deposed that on the next day, complainant again visited the PS and told that accused persons also threaten to kill his niece Vipul and brothers Dinesh Gupta, Rakesh Gupta and Ashwani Gupta. He further deposed that as per complainant and SMS received on complainant's mobile, the complainant was asked to deliver Rs. 2 lakhs within three days to a person having mobile number 9818128935 and thereafter, on the direction of SHO, Section 387 IPC added in the present case and also recorded supplementary statement of complainant. He further deposed that complainant also handed over transcript of SMS to him Ex. PW-9/A. He further deposed that CDR details of above said suspect number alongwith mobile number 9891030940 were sent to the concerned mobile service provider company through Nodal Officer of Delhi Police alongwith one IMEI number having last four digit of 4312. He further deposed that further investigation was marked to SI Mahendra Pratap Singh on 30.08.2007. He further deposed that on 15.09.2007, investigation of the present case was again marked to him and he obtained the CAF of mobile number used by accused persons from Nodal ACP Vivek Vihar Ex. PW-9/B and Ex. PW-9/C. He further deposed that upon verification, the CAF were found to be fictitious and the person whose name provided in the CAF were not found. He FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 11 Of 24 further deposed that during his investigation, he has not seen the accused persons and as such he cannot identify the accused.
6. After examination of all the prosecution witnesses, prosecution evidence was closed vide order dated 06.09.2022 and matter was listed for recording of statement of accused persons u/s 313 Cr.P.C.
7. Statement of all the accused u/s 313 Cr.P.C was recorded on 08.07.2023, wherein all the accused, beside denying the allegations levelled against them stated that they have been falsely implicated in the present case.
Accused Bharat Chaudhary in his statement u/s 313 Cr.P.C stated that he knew complainant from before, since he used to study alongwith son of the complainant and that he has some quarrel with the complainant with regard to some money. He further stated that he was using he was using mobile no. 9818088534, however, denied threatening the complainant. All accused, except Bharat Chaudhary did not lead seek liberty to file any defence evidence.
8. That thereafter, accused Bharat Chaudhary failed to lead any evidence in defense and final arguments were led.
9. It is argued by Ld. APP for the state that that the complainant has supported the case of prosecution. It is further argued FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 12 Of 24 that the mobile phones as well as Sim card used to threaten the complainant were recovered from the possession of accused persons and as such, prosecution has proved its case beyond reasonable doubts and accused persons are liable to be convicted for the offences he is charged for.
10. On the other hand, it is argued by Ld. Counsel for the accused persons that there are several contradictions in the testimony of the police witnesses. It is further argued that no public witness was made to join the investigation by the IO at the time of alleged recovery from the accused persons. It is further argued that prosecution has failed to prove its case beyond reasonable doubts and accused persons are entitled to be acquitted for the offence they are charged for.
11. I have heard the arguments so led by Ld. APP for the state and perused the case file carefully.
12. It is settled proposition of law that burden lies upon the prosecution to prove its own case beyond reasonable doubts. It is further settled proposition of law that case of the prosecution has to stand on its own legs and prosecution cannot be benefitted from the short comings in the defense.
FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 13 Of 24
13. Before proceeding further with present case in hand on merits, this court deems it appropriate to re produce in her facts alongwith evidence brought forth by prosecution, for better appreciation of evidence. It is the case of prosecution that:
a. Complainant Rajneesh Gupta stated to have received threatening calls for extortion on his mobile phone bearing number 9810771015 from 26.08.2007 to 28.08.2007.
b. That the said calls are stated to have been received from mobile phone bearing number 9911219725 and 9818128935.
c. That from the CDR Records of the abovesaid mobile numbers 9911219725 was found to be working on mobile having IMEI No. 35327101904312 and 35088430826564 from 26.08.2007 to 28.08.2007.
d. That from the CDR Records of the mobile number 9818128935 it was found to be working on mobile having IMEI No. 354553014432510 from 26.08.2007 to 28.08.2007.
e. Further, from the CDR Records of the abovesaid mobile numbers, it is reflected that calls were made from mobile number 9818128935 to mobile number of the complainant i.e. FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 14 Of 24 9810771015 on 28.08.2007.
f. That during investigation, it was found that another mobile number 9818088534 was running in above stated IMEI numbers i.e. 35327101904312 and 35088430826564 and same was being used by accused Bharat Chaudhary.
g. That, thereafter accused Bharat Chaudhary was arrested and one mobile phone make Nokia-1600 having IMEI No. 35327101904312/4 and one SIM having number 9818088534 was recovered from his possession.
h. That thereafter, at the instance of Bharat Chaudhary, co-accused Manish, Umesh and Arun were arrested.
i. That from the possession of accused Manish, SIM No. 9911219725(number which is used to make the threatening call) was recovered.
j. Further, from possession of accused Umesh, one mobile phone make Nokia-3610 having IMEI No. 350884/30/826564/7(mobile phone on which SIM number 9911219725 was activated from 26.08.2007 to 28.08.2007) was recovered.
FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 15 Of 24 k. Further, from the possession of accused Arun, one mobile phone make Nokia-3230 having IMEI No. 354553/01/443251/2 was recovered having Airtel SIM bearing No. 9818128935.
14. Prosecution in order to prove its case has placed on record, CDR record of mobile number 9911219725 and 9818128935 and IMEI No. 35327101904312-1. Prosecution has further placed on record seizure memo of the property recovered from the possession of the accused person, disclosure statement and arrest memo of the accused. Prosecution has further examined complainant Rajeev Gupta as PW-1 who during the course of his testimony have stated that he received threat calls from mobile no. 9911219725 and 9818128935 on his mobile no. 9810771015, whereby the caller, threatened to kill the complainant and his son and his nephew namely Vipul. The complainant further stated that he recognized accused Bharat Chaudhary, since he was his neighbor.
15. Prosecution has further placed on record copy of certain threatening messages alleged to have been received by the complainant from 26.08.2007 to 29.08.2007. Perusal of said messages reveals that the sender has threatened the receiver and is further seeking money from the receiver. The sender of the said messages has FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 16 Of 24 also asked the receiver to contact at number 9818128935 in the name of Arun Ravi.
16. In light of the facts and evidence so brought forth by prosecution herein, the question which is required to be determined by this court is whether prosecution, by evidence so brought forth by it, has proved its case beyond reasonable doubt.
DELAY IN LODGING OF COMPLAINT
17. It is pertinent to state in here that as per the allegations leveled by the complainant, he started receiving threatening calls on his mobile number 9810771015 on 26.08.2007, however the complaint so lodged by the complainant before the police was only after delay of 02 days i.e. on 28.08.2007.
18. The allegations so levelled by the complainant against the accused are serious in nature. Despite stating to have received threatening calls on 26.07.2007, complainant lodged the complaint after 2 days. The entire testimony of the complainant does not explain the reasons for delay in filing of the said complaint after the lapse of two days. It is further pertinent to state in here that although complainant during the course of his testimony has stated that he informed at PS Anand Vihar regarding the alleged call on 26.07.2007 FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 17 Of 24 itself, however, there is no such complaint etc. placed on record by the prosecution to prove the same.
NON-PRODUCTION OF BEST EVIDENCE
19. The complainant during the course of his testimony before the court have stated that the said calls were recorded in his mobile phone and his mobile phone was seized by the police.
20. Recorded calls would have been the best evidence for the prosecution to prove that the caller was threatening the complainant on his phone. As per the complainant, he has also recorded the said calls. Further, IO is also stated to have seized the mobile phone of the complainant. However for the reasons unknown, the IO has not placed on record any such audio recording from the mobile phone of the complainant nor have attempted to sent any such audio recording to FSL.
SMS STATED TO BE RECEIVED ON MOBILE OF COMPLAINANT
21. It is further stated by the complainant he received threat messages on his mobile phone. IO, alongwith charges sheet has also placed on record print out of certain threat messages received in mobile phone of the complainant.
FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 18 Of 24
22. It is pertinent to state in here that from bare perusal of messages so placed on record, same are stated to be have been received from one Shakir. Mobile number from which said messages were send in neither mentioned in the entire charge sheet, nor the same is clear from the testimony of the complainant. Although PW5 SI Vinay Yadav during the course of his testimony has stated that upon analysing the CDR record, he found that the call record SMS were received from mobile number 9911219725, however, again there is nothing on record to suggest the same. Furthermore, had that been the case, there is no explanation as to why the said number 9911219725 was saved by the complainant by the name of Shakir.
23. Again, there is no mention by name of Shakir in the entire charge sheet. There is no accused by name of Shakir. Nor, it is clear as to how the number from which said messages are stated to have been received by the complainant is saved by the name of Shakir.
24. Furthermore, although the said messages are referred to one Gupta Ji, however it is not clear as to on which mobile number the said messages were sent. Even if for the sake of arguments, it is believed that the said messages were sent to the complainant herein, however in the absence of any mobile number from which the said messages were sent, it cannot be deduced that the said messages were FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 19 Of 24 sent by accused person herein.
25. Furthermore, the printout of said messages were not seized by the IO vide any separate seizure memo nor the mobile phone of the complainant was sent to FSL in order to ascertain the genuinity of the said messages.
IO/Inspector RP Meena, further during the course of his cross-examination has admitted the fact that he has not seized the said SMS details nor has conducted any investigation from the service provider regarding SMS provided by the complainant.
CDR RECORDS
26. Other evidence so placed on record by the prosecution in order to prove its case is CDR and CAF record of mobile number from which the alleged threat calls are stated to have been received i.e. Mobile Sim No. 9911219725 and 9818128935 and recovery of mobile phone and SIM Cards from the accused person.
27. It is further pertinent to state in here that, as per the version of the complainant, he was using mobile phone no. 9810771015, however there is nothing placed on record by the IO to show that the said number was issued in the name of the complainant or that the same was being used by him.
28. Further, both the IOs namely Inspector MP Singh and FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 20 Of 24 Inspector RP Meena have stated during the course of testimony before the court that mobile number 9911219725(from which the threatening calls have stated to be made) was found to be taken at fake address, however the entire charge-sheet is completely silent as to in whose name, the said number i.e. 9911219725 was issued and as to whether any efforts were being made to trace out the person in whose name the said number was issued or the person who has issued the said number. Apart from vague averments, there is no investigation done by the IO with regard to mobile number 9811219725.
29. Further, perusal of record reveals that IO has obtained CDR records of mobile no. 9891030940, however, involvement of said number in the present case is not clear. It is no where mentioned as to who was using the said number or as to for what purpose said number was used in the entire offence.
30. It is further pertinent to state in here that the prosecution has not summoned any witness from concerned Airtel / Idea so as to prove the alleged CDR and CAF record which are being heavily relied upon by the prosecution in order to prove its case.
NON JOINING OF INDEPENDENT WITNESS
31. It is further pertinent to state in here that, although all of the accused person were apprehended during the day time from the FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 21 Of 24 public place, however not even a single witness of the alleged recovery has been made by the police officials. Non-joining of independent witness raises suspicion with regard to alleged recovery. Hon'ble High Court in Delhi in Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi :
77.The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses.
Parrot-like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 22 Of 24 in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78.In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
32. As such, from the entire discussion made above, it is clear that the investigation so conducted by the IO in the present mat- ter is in most callous manner and the IO for the reasons best known to him has either not placed on record the best evidence so available with him i.e. phone recording nor has proved the evidence which is already placed on record i.e. the alleged messages. With regard to faulty investigation, Hon'ble Apex Court in State of U.P. v. Wasif Haider, (2019) 2 SCC 303
23. This Court in Kailash Gour v. State of Assam [Kailash Gour v. State of Assam, (2012) 2 SCC 34 : (2012) 1 SCC (Cri) 717] , has held that : (SCC pp. 50-51, para 44) "44. The prosecution, it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 23 Of 24 of whether the crime is committed in the course of communal disturbances or otherwise. In short, there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for anything specially applicable to a particular case or class of cases."
(emphasis supplied)
24. In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocencein favour of the respondent-accused. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favour of the accused.
33. In light of law and facts discussed above, considering that there are serious lapses on the part of the prosecution in proving its case against the accused persons beyond reasonable doubt, the prosecution has failed to prove its case against the accused person beyond reasonable doubt, all the accused persons namely Bharat Chaudhary, Umesh, Manish Yadav and Arun Kumar stand acquitted for the offences they are charged for.
Announced in the Open Court (ANUBHAV JAIN)
th
on dated 06 October, 2023 ACMM/SHAHDARA DISTRICT/
KARKARDOOMA COURTS/
DELHI/06.10.2023
Present judgment consisted of 24-pages and each page bears my signatures.
(ANUBHAV JAIN) ACMM/SHAHDARA DISTRICT/ KARKARDOOMA COURTS/ DELHI/06.10.2023 FIR No.498/2007 State vs. Bharat Chaudhary & Ors. PS Anand Vihar Page no. 24 Of 24