Delhi District Court
State vs Amit Kumar on 11 March, 2014
IN THE COURT OF SH. AKASH JAIN, METROPOLITAN
MAGISTRATE06, PATIALA HOUSE COURTS, NEW DELHI
State vs Amit Kumar
FIR No : 78/02
U/s : 505/182 IPC
PS : Parliament Street
JUDGMENT
a) Sl. No. of the case : 62/02
b) Unique Case ID No. : 02403R0072332002
c) The date of commission of the
offence : 02.04.2002
d) Name of the complainant : Inspector G.L. Mehta
e) Name, parentage & address
of accused : Amit Kumar S/o Yogesh Kumar
R/o 3102, Kucha Tara Chand Gali, Darya
Ganj, Delhi.
f) Offences complained of : 505/182 IPC
g) The plea of the accused : Pleaded not guilty
h) Final Judgment : Acquitted
i) Date of institution of case : 13.09.2002
j) Date of final arguments : 15.02.2014
k) Date of Judgment : 11.03.2014
BRIEF FACTS AND REASONS FOR THE DECISION:
1. In the present case chargesheet was filed by the State under Sections 505/182 IPC against the accused Amit Kumar on 13.09.2002. The case of the prosecution is that on 02.04.2002 at 01:30 AM, at Delhi, accused Amit Kumar through mobile phone no.9810757148 gave a call to police control room that Parliament will be blasted tomorrow and that he had come from CC NO.62/02 FIR No.78/02 Page no. 1 of 14 Kashmir and residing as a tenant in Delhi and he had circulated this statement/ rumour with intention to cause or which was likely to cause fear or alarm to the public whereby any person may be induced to commit an offence against public tranquility and by circulating the above said statement/ rumour, accused gave false information to the police i.e. to public servant knowingly or believing to be false intending thereby to cause or knowing it be likely he would thereby cause such public servant to do or omit to do something which such public servant ought not to do if the true facts were known to him or omit to do something if the true state of facts were known to him or to use the lawful power of such public servant to injury or annoyance and thereby committed the offences punishable under sections 505/182 IPC.
2. On the basis of aforesaid chargesheet, this court took cognizance of the offences under section 505/182 IPC against the accused. Accused appeared before the court and documents were supplied to him in compliance of section 207 of Code of Criminal Procedure, 1973 (hereinafter mentioned as 'Cr.P.C.'). Thereafter, arguments on charge were heard and vide order dated 19.10.2005, charges were framed under section 505/182 IPC against the accused Amit Kumar. Subsequent to framing of charge the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
3. The prosecution examined as many as 13 witnesses in order to prove CC NO.62/02 FIR No.78/02 Page no. 2 of 14 its case against the accused. PW1 is HC Ansuya Prasad, who deposed that on 11.04.2002, he was posted as HC in PCR, DCP Office, PHQ. On that day IO of this case SI Sanjeev Mandal had given one application to Inspector Admn. PCR for the collection of voice recording. One audio cassette was brought by SI Sanjeev Mandal from the control room where voice was recorded which was sealed by him with the seal of Dy. Commissioner of Police, Delhi. The seizure memo of the cassette is Ex. PW1/A.
4. PW2 is SI Sanjeev Mandal, who deposed that on the intervening night of 01/02.04.2002, he was posted as SI at PS Parliament Street. On the said night, DD no.26A was received at about 02:10 AM, regarding hoax call. Carbon copy of DD is Ex. PW2/A, which was duly attested by him. The call was relating to bomb blast in Parliament House from number 9810757148. On receipt of the call, he alongwith his staff went to Parliament House for the search of bomb. The other teams including dog squad and police staff were called for search of bomb, however, nothing could be recovered. PW2 deposed that he found alarm of fear on the persons in the Parliament House. He made inquiry about the phone and came to know that call had been made by one Amit Kumar from his mobile. Thereafter, an application Ex PW2/B was filed by then SHO G.L. Mehta in the court for permission to investigate the matter u/s 155 (2) Cr.P.C. as the matter was relating to non cognizable offence and permission was duly granted. PW2 duly identified the signatures of SHO on Ex. PW2/B. The case was got registered and the investigation thereafter was handed over to him. During CC NO.62/02 FIR No.78/02 Page no. 3 of 14 investigation of the case he arrested the accused Amit vide memo Ex. PW2/C and conducted his personal search vide memo Ex. PW2/D. Disclosure statement of accused Ex. PW2/E was recorded. He seized the mobile cash card of above phone number in two small pieces as the same had been broken by accused vide memo Ex. PW2/E at pointing out of the accused vide memo Ex. PW2/F from the road of street of his house. He also seized the said phone alongwith charger from the house of accused vide memo Ex. PW2/G. He also collected call details of the above said phone vide memo Ex. PX1 vide memo Ex. PW2/H. He also recorded statement of PWs. PW2 further deposed that accused was produced in the court and was remanded to one day police custody vide his application Ex. PW2/I. During police custody of accused he was asked to get his voice recorded to which he offered voluntarily and accordingly his voice was recorded in the cassette with the help of tape recorder. After recording of the voice of accused, the cassette was taken out and was sealed with the seal of SM and the cassette was seized vide memo Ex. PW2/K. Thereafter, the accused was produced in the court and was remanded to JC. On 11.04.2002, PW2 collected the voice of accused Amit as recorded on ACD system at PCR on audio cassette which was sealed with the seal of Dy. Commissioner of Police, PCR, Delhi alongwith its sample seal vide memo Ex. PW1/A. During investigation he obtained and placed sanction u/s 195 Cr.P.C. PC Ex. PW2/K. He had also sent the cassette to FSL for actual comparison and seeking expert opinion. On 28.10.2002, PW2 obtained FSL result Ex. PX2 and placed it on record vide his application Ex. PW2/L. As per report the questioned voice in CC NO.62/02 FIR No.78/02 Page no. 4 of 14 cassette A was found to be similar with the specimen voice recorded in cassette B. PW2 thereafter identified the case property i.e. one mobile phone make panasonic Ex.P1 alongwith its charger Ex. P2, sim card in two pieces having no.8991100108012517029 written on the card which is Ex. P3. The card was of magic (Airtel). The case property also consisted of one envelope duly sealed with the seal of SJ having particulars of the present case written on the other side of envelope. Parcel A and CFSL no.as CFSL/2002/P0234 was written on envelope. The same was found consisting of one audio cassette having above CFSL number written on it alongwith Ex. A. The cassette alongwith cover which is of make Sony was identified by witness as Ex. P4. The case property also consisted of one big envelope which was duly sealed with the seal of FSL. Particulars of the present case and above FSL number alongwith parcel B was written on the other side of this envelope. The same was found consisting one another audio cassette of make Sony having above FSL number written on cassette alongwith Ex. B. This cassette was lying in a piece of cloth on which seal SM is visible. However, the same was lying in open condition. The cassette was identified by the witness as Ex. P5.
5. PW3 is ACP G.L. Mehta, who deposed on the similar lines of testimony of PW2.
6. PW4 is Ct. Chander Veer, who deposed that on 04.04.2002, he was posted as Ct. in PS Parliament Street and he had joined the investigation of CC NO.62/02 FIR No.78/02 Page no. 5 of 14 this case with IO SI Sanjeev Mandal. On the said day accused Amit Kumar was interrogated and was arrested vide memo Ex. PW2/C. His personal search was conducted vide memo Ex. PW2/D and his disclosure statement Ex. PW2/E was also recorded. At the instance of accused mobile cash card of phone no.9810757148 of Magic Airtel was recovered and seized vide memo Ex. PW2/E and mobile phone was seized vide memo Ex. PW2/G. Pointing out memo Ex. PW2/F was prepared at the instance of the accused of the place where he had thrown the card into pieces after its use in a street. The call list Ex. PX1 was taken into possession vide memo Ex. PW2/H. PW4 further correctly identified the case property.
7. PW5 is HC Rohtash, who deposed that on 01.04.2002, he was posted as HC in PCR, PHQ, Delhi and was on duty from 08:00 PM to 08:00 AM of 02.04.2002 in channel no.169. At about 01:30 AM, one call was reportedly received and some man was calling and he said hello hello, you take care of your police head quarter. Thereafter, no voice came from the other side and the phone was disconnected. PW5 informed this fact to IC Command Room and on listening the call from channel no.169 they came to know that the said person had said hello hello kal parliament udne wali hai. Apne police head quarter ki police bula lo or police heard quarter ko sambhalo, Kashmir se aya hoon or kiraye pe reh raha hoon. The phone was then disconnected. On verification, police came to know that the call was made from phone no.9810757148 and this information was processed further.
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8. PW6 is ASI Braham Pal Singh, who deposed that on 02.04.2002, he was posted at PS Parliament Street as DO from 08:00 AM to 04:00 PM. PW6 further deposed that on that day complaint alongwith endorsement on Ex. PW3/A was marked to him for registration of FIR. On the basis of same he got registered FIR Ex. PW6/A. Endorsement on rukka is Ex. PW6/B. After registration of case the investigation was handed over to SI Sanjeev Mandal through Ct. Praveen.
9. PW7 is HC Ram Mehar Sharma, who deposed that on 02.04.2002, he was posted at PS Parliament Street as DO/DD writer from 12 midnight to 08:00 AM. DD no.26 has been recorded by him pertaining to call in respect of blast at Parliament. He had brought the original DD register and exhibited relevant DD as Ex. PW7/A (OSR).
10. PW8 is Madan Lal Bhola, who is uncle (mama) of accused Amit. He did not support the case of prosecution and stated that he was made to sign blank documents by the police.
11. PW9 is Umesh, who deposed that accused Amit used to reside at Darya Ganj where he also used to reside. He further stated that he cannot say whether mobile no.9810757548 belongs to accused Amit or not.
12. PW10 is Anish Kumar, who deposed that he used to have a shop of STD bearing no.1009, Darya Ganj, New Delhi and used to sell cash cards of CC NO.62/02 FIR No.78/02 Page no. 7 of 14 Airtel and Essar. He deposed that he sold one cash card to accused Amit. On crossexamination by Ld. APP for State he stated that the number of the said cash card was 9810757148. PW10 during crossexamination by Ld. Counsel for accused stated that he does not have any record regarding sale of the above mentioned cash card to the accused.
13. PW11 is R.K. Singh, Nodal Officer, Bharti Airtel Ltd.. He deposed that police officials came to him for asking the call details which were duly given to them. The same is Ex. PX1. He further deposed that the details were given pertaining to number 9810757148 from the period 21.01.2002 to 05.02.2002. Since the witness did not fully support the case of prosecution, on request of Ld. APP for State, he was crossexamined by him wherein he stated that call on 100 number might had been made from the above said number on 02.04.2002. The witness identified the cash card as Ex. P3. During crossexamination by Ld. Counsel for accused, PW11 stated that the record pertaining to selling of cash cards was used to be maintained at their office and he did not remember, whether the said record was asked by the police officials or not.
14. PW12 is Rajesh Sethi, who deposed that he owns a shop bearing no.3738 at Daryaganj of mobile phones and pager. He stated that he sold the mobile phone which might be of Nokia to the accused. He further identified the said mobile phone as Ex. P1. During crossexamination by Ld. Counsel for accused, PW12 stated that he cannot exactly tell as to whether the same CC NO.62/02 FIR No.78/02 Page no. 8 of 14 phone was sold by him to the accused. He further stated that he does not have any cash memo or any other record regarding sale of the phone in question.
15. PW13 is Vinesh Jain, who deposed that accused Amit was his friend and they both used to study together. He further stated that the number of mobile phone of accused Amit was 9810757148.
16. Prosecution evidence was thereafter closed by Ld. Predecessor Court on 14.03.2007. Statement of the accused under section 281 r/w Section 313 Cr.P.C. was consequently recorded wherein all the incriminating evidence was put to the accused which was denied by him. After recording of statement of accused, the matter was fixed for defence evidence. Accused examined DW1 Smt. Neelam on his behalf. She stated that in April 2002, she was informed by police officials of PS Parliament Street regarding involvement of her son in the present case. She further submitted that the accused i.e. her son does not have the mobile phone in question and has been falsely implicated in the present case. Thereafter, defence evidence was closed. The matter was consequently fixed for final arguments.
17. Final arguments were heard on behalf of State as well accused. Record perused. In order to bring home guilt of the accused beyond reasonable doubt, the prosecution was required to prove the following :
i) That the mobile phone no.9810757148 belongs to accused.
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ii) That on 02.04.2002, at 01:30 AM, the accused through above
mentioned mobile number gave a call to police control room that Parliament would be blasted tomorrow and that he had come from Kashmir and has been residing as a tenant in Delhi.
iii) That the above said statement was made by the accused with intention to cause fear or alarm to the public whereby any person may be induced to commit an offence against public tranquility.
iv) That on the above said date, time and place the accused gave false information to the police/ public servant, intending to cause such public servant to do or omit to do something which such public servant ought not have done had the true facts were known to him.
18. With respect to the first point, prosecution has relied upon the testimony of PW2 and PW4 who reportedly seized the phone in question from accused vide memo Ex. PW2/G and also seized cash card/ sim card of the said mobile vide memo Ex. PW2/E. Prosecution further relied upon the testimonies of PW10 and PW13 who deposed that the mobile number 9810757148 belonged to accused Amit.
19. It is pertinent here to refer to the testimony of PW11, R.K. Singh, who was then Nodal Officer of Bharti Airtel Ltd.. He clearly deposed regarding giving call details of number 9810757148 to the police. However, he nowhere stated that the above mentioned mobile number was sold to accused Amit. He further stated that the record pertaining to selling of the CC NO.62/02 FIR No.78/02 Page no. 10 of 14 cash card in question was used to be maintained in their office and he did not remember, whether the said record was asked by the police or not. Perusal of the record shows that the above said record of sale of the cash card in question was not obtained by the IO from the office of Bharti Airtel Ltd.. Despite the said record being available in the office of Bharti Airtel, IO did not choose to collect the said record for fixing liability upon the accused and to show that the mobile phone number in question was in fact purchased by the accused. Mere statement of PW10 regarding sale of cash card in question to the accused is of no consequence as the said witness admittedly did not have any record of selling the said cash card to the accused.
20. For the sake of arguments, even if it is assumed that the mobile number in question belonged to accused, in order to prove offences in question against the accused, the prosecution ought to have shown that it was accused who actually called from the said mobile no. 9810757148 to the PCR on given date and time of incident. In order to prove the said fact, as also the second point, prosecution has relied upon the testimony of PW2 SI Sanjeev Mandal, who deposed that the mobile phone in question alongwith cash card was seized by him from possession of the accused vide memos Ex. PW2/G and PW2/F. PW2 further deposed that during the investigation voice sample of the accused was recorded by him in a cassette which was later on sealed and seized vide memo Ex. PW2/K. Also, the voice recorded on ACD system at PCR regarding phone call in question in this matter was CC NO.62/02 FIR No.78/02 Page no. 11 of 14 seized by PW2 vide memo Ex. PW1/A. It is argued on behalf of prosecution that both the above mentioned samples as sent to FSL were found to be similar in the FSL result Ex. PX2. It is therefore, argued that the phone call in question was made by the accused to the police on the given date and time of incident.
21. Contrary to the arguments of prosecution, it is argued on behalf of accused that due procedure was not followed by the IO for taking voice sample of the accused for matching the same with the alleged voice recorded at PCR. It is further argued that the actual voice sample of accused recorded by the IO was never sent to FSL. It is further argued that the original recording of the hoax call was also manipulated by the IO as well as senior police officials.
22. With respect to the argument raised on behalf of accused that due procedure was not followed by the IO for taking voice sample of the accused, Ld. APP for state relied upon the case of R.M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157, wherein it was held that even if the tape recording is obtained unlawfully, it will be admissible in evidence, as "detection by deception" is a form of police procedure. However, there is a word of caution that the tape recording must be genuine and free from tampering or mutilation and that the court should be satisfied of its accuracy.
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23. In the present matter, the main defence of the accused is that instead of his own voice sample, some other voice sample is sent to FSL by the police for comparison in order to secure conviction of accused. Suffice to say that from the material evidence adduced on record and the testimony of PW2, the prosecution has primarily linked the chain of events regarding seizure of case property, arrest of the accused, recording of voice sample of accused and seizure of the same, seizure of original recording of hoax call from PCR records and obtaining FSL result regarding the matching of the two voice samples to the satisfaction of the court. However, the case of prosecution is also dented with material infirmities, which fact is evident from the portion of crossexamination of PW2/ SI Sanjeev Mandal who is the IO and star witness of the prosecution. The same is reproduced as under :
".....The sample voice of the accused was recorded in the police station, in presence of my constable the name of whom I do not remember....."
24. Now, it is himself admitted by PW2/ IO SI Sanjeev Mandal that the voice sample of the accused as reported to be seized by him vide memo Ex. PW2/K, was not taken in his presence. Moreover, he failed to disclose the name of the police official in whose presence the said voice sample was recorded. Prosecution has further failed to bring on record the memo vide which the alleged voice sample of accused was taken by police. In the absence of such memo as mentioned above and the fact that the witness to recording of voice sample of accused is not examined by the prosecution, the possibility of tampering and manipulation in the voice sample of CC NO.62/02 FIR No.78/02 Page no. 13 of 14 accused cannot be ruled out. The aforementioned lapses in investigation are of serious nature and the same have rendered defence of the accused plausible according benefit of doubt to him. Thus, it is not proved beyond reasonable doubt that accused gave a hoax call to police control room on 02.04.2002 at 01:30 AM, regarding blast at Parliament.
25. In lieu of failure of prosecution to establish point 1 and 2 against the accused, to the satisfaction of the court, question of discussing point 3 and 4 does not arise as essential ingredients of offences in question are not made out. Keeping in view the facts, circumstances of the case and aforesaid observations it is concluded that the case of prosecution is not proved against the accused beyond reasonable doubt. Therefore, accused Amit Kumar S/o Yogesh Kumar is hereby acquitted of the offences under section 505/182 IPC.
Announced in the open Court (Akash Jain)
on 11.03.2014 Metropolitan Magistrate06,
Patiala House Court,
New Delhi
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