Delhi District Court
State vs . Narbir Singh on 13 February, 2012
IN THE COURT OF MS. NAMRITA AGGARWAL
METROPOLITAN MAGISTRATE, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
STATE Vs. Narbir Singh
FIR No.: 123/00
U/s. : 506 IPC
P.S. : Vasant Vihar
JUDGMENT :
1. Sl. No of the case : 108/1 2. Date of institution : 02.11.2000
3. Date of the commission of the offence : 14.12.1999
4. Name of the complainant : Sh. Prem Sagar Gangotra, S/o Sh. R.K. Gangotra, R/o H. No. 204, Munirka Enclave, New Delhi.
5. Name of the accused : Narbir Singh S/o Sh. Sher Singh, r/o Village Degh, Teh. Ballabhgarh, Dist. Faridabad, Haryana.
6. Offence complained of or proved : u/s 506 IPC
7. Plea of accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of reservation of order : 08.02.2012
10.Date of such order : 13.02.2012 FIR No. 123/00 PS: Vasant Vihar 1/11 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Accused Narbir Singh was charged u/s 506 IPC for criminally intimidating the complainant Lieutenant General Prem Sagar by means of a telephone call made by the accused at the house of the complainant between 08:30 to 08:45 p.m.
2. The prosecution story is that on 14.12.1999 at about 08:30 to 08:45 p.m. a threatening call was allegedly received from the accused Narbir Singh from telephone No.2718321 at the land line phone of the complainant which was allegedly recorded by him. Accused in that call threatened the complainant that he would murder him before the Ld. Magistrate on the very next date of hearing in another matter. The complainant sent a written complaint to DCP South on 14.12.1999 itself on the basis of which FIR was registered on 25.04.2000 u/s 506 IPC.
3. Charge U/S 506 IPC was framed against the accused Narbir Singh, to which he pleaded not guilty and claimed trial.
4. Prosecution examined eleven witnesses in its support. Complainant FIR No. 123/00 PS: Vasant Vihar 2/11 Prem Sagar was examined as PW1. He reiterated the story of the prosecution as stated by him in his complaint Ex.PW1/A. He further stated that he had handed over the cassettes of telephonic conversation with the accused which were seized vide memo Ex.PW1/B. He had further written the conversation according to the recording in the cassette which was Ex.PW1/C. He was at length crossexamined by the Ld. Counsel for the accused wherein he was not sure that the cassette given by him to the police was the same as produced in the court. He further admitted that he had not mentioned his telephone number in his complaint.
5. Smt. Kumkum wife of complainant was examined as PW2. She stated that her husband was telephonically threatened in December 1998. She further admitted in her crossexamination that her family was terribally infuriated at the accused as he was helping Sh. B.K. Bhandari against her husband.
6. Ms. Aparna, the daughter of the complainant was examined as PW3. She reiterated the facts as stated by her mother.
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7. PW4 ASI Sudesh Kaushik recorded the FIR.
8. PW5 Jhuter Singh stated that the complainant had recorded a cassettes which was played before him in the police station wherein he recognized the voice of Narbir Singh threatening the complainant to kill him. In his crossexamination, he admitted that he had been made an accused along with the complainant in a case regarding the purchase of land of trust by him.
9. Sh. D.K. Tawar was examined as PW6 to prove the CFSL report prepared by Sh. C.K. Jain which was Ex.PW6/A. He was recalled for crossexamination but he did not appear.
10. PW7 Sh. Ram Kumar deposed in sync with PW5. In his cross examination, he stated that the cassette in question was played before him in the PS on 08.09.2000.
11. Ct. Tahar Singh was examined as PW8 wherein he stated that on 01.09.2000 he had taken two Pullindas to FSL.
12. PW9 Ct. Naresh Stated that he collected the report from CFSL.
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13. HC Baleshwar was examined as PW10. He stated that he recorded the voice of Narbir Singh at kept the mini audio cassette in a white colour pullinda sealed with the seal of SD. The seal was handed over to the complainant thereafter. He stated that he had recorded the said voice of the accused at the house of the complainant at the ground floor.
14. SI Rajesh Maurya was examined as PW11. He stated that on 14.12.1999 he had received a complaint Ex.PW1/A on the basis of which FIR No.123/2000 was registered vide memo Ex.PW11/A. He transcript of the conversation was recorded which is Ex.PW1/C. On 01.06.2000 complainant handed over a black colour audio cassette containing telephonic conversation between him and accused Narbir Singh which was seized vide memo Ex.PW1/B and sealed with the seal of RK. The seal was handed over to complainant after use. Thereafter, on 16.06.2000 accused Narbir Singh's sample voice was recorded in the audio cassette and was sealed with the seal of SD. This seal was also handed over to the complainant. Accused was arrested and his personal search was conducted vide memos Ex.PW11/B and Ex.PW11/C respectively. In his crossexamination PW11 admitted that there was no mention of FIR No. 123/00 PS: Vasant Vihar 5/11 complainant's telephone number on the complaint. Further, neither the telephone instrument was seized nor the recording machine by which the conversation of the accused with the complainant was recorded was seized. Further, no inquiry was made from MTNL regarding the alleged call. He further admitted that the sample voice of the accused was recorded at the house of the complainant and the seal was given to the complainant after use.
15. The accused denied all the incriminating evidence put to him in his statement U/S 313 Cr.P.C stating that they were wrong and pleaded innocence. The main defence taken by the accused was that one Mr. B.K. Bhandari is the real brotherinlaw of the complainant and is a Canadian National. On 05.01.1987 Bhandari and Sagar Charitable Foundation Trust was created and in the name of said trust, agricultural land was purchased in Haryana. According to the accused, the said land was sold by the complainant without the consent of Sh. B.K. Bhandari for which four registries were made out of which the first registry of the land did not have the signatures of Mr. Bhandari who was also one of the trusties. After coming to know the same, Mr. Bhandari came to India and filed several cases against the complainant through his authorized representative Narbir FIR No. 123/00 PS: Vasant Vihar 6/11 Singh who is the accused in the present case. Since, the complainant wanted to put pressure on the accused to desist him from pursuing the cases filed against the complainant, this false case has been planted upon him.
16. Accused examined one defence witness Sh. Sita Ram, record clerk of the court at Faridabad in his support. He filed the judgments on those cases against the complainant as well as PW5 and PW7. The certified copies of the same are collectively Ex.DW1/A. Thereafter, the Defence Evidence was closed and final arguments were heard.
17. The case of the prosecution stands upon the admissibility of tap recorded conversation between the accused and the complainant wherein accused has allegedly threatened the complainant of murder before the Ld. MM.
18. In R.M. Malkani Vs. State of Maharashtra CA No.229 of 1969, it has been held that tape recorded conversation is admissible provided:
(a) the conversation is relevant to the matters in issue.
(b) there is identification of the voice.
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(c) the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act.
19. In the present case, the audio cassette containing the specimen voice of accused had only the words "Janab Aisa Hai", " Faridabad" and "Patiala House" which was compared with the parallel words in the audio cassette containing the recording of alleged threat by the accused. On comparison, these words in both the cassettes were found to be a same person. The words "murder" and "court", which constitute the main allegations against the accused were not compared. A possibility of tempering of the second half of the audio cassette Ex.P1 containing the alleged threat of murder cannot be ruled out as only the words in the first half were got compared. Further, the accuracy of the tape recorded conversation is not proved by eliminating the possibility of the record being FIR No. 123/00 PS: Vasant Vihar 8/11 erased or mutilated, as is required according to the above cited land mark judgment.
20. Ld. Counsel for the accused has also drawn the attention of the court towards the various lecunas in the investigation conducted by the IO in the present case, for which no explanation has been given by the prosecution witnesses. The biggest lecunas is that the sample voice of the accused was recorded at the house of the complainant and not in the PS. Further, the seal of the IO, after sealing cassettes was given to the complainant without any reason as if the IO wanted to give all the leverage to the complainant to deseal the cassettes, tamper with them and then re seal them. Moreover, neither the recording machine used by the complainant to record the call of the accused was seized nor any inquiry was made from the MTNL Office regarding the said call of the accused or the record of the said call.
21. The complaint written by the complainant which is Ex.PW1/A nowhere contains the phone number of the complainant on which the alleged threat call was made by the accused. The call records of the phone FIR No. 123/00 PS: Vasant Vihar 9/11 number of the complainant have also not been traced to prove as to whether any call was made by the accused on 14.12.1999 from the alleged phone number.
22. Ld. Counsel for the accused has also argued that it is stated by the complainant and his wife that they had signed the Pullinda carrying the cassette as alleged but the Pullinda when produced before the court did not have their signatures and therefore, possibility of tampering cannot be ruled out. Perusal of the FSL report also bring out the fact that the Pullinda containing the alleged cassette was not bearing the signatures of the complainant and his wife.
23. Keeping in view the above discussed facts and circumstances and the fact that there were sufficient reasons with the complainant for falsely implicating the accused Narbir Singh as he used to represent Mr. Bhandari in various cases against the complainant in the present case, no prima facie case is made out against the accused Narbir Singh.
24. Keeping in mind the discussion made above, I find that prosecution is not able to prove its case beyond reasonable doubt. Thus, accused FIR No. 123/00 PS: Vasant Vihar 10/11 Narbir Singh is acquitted of offences punishable U/s 506 IPC. The bail bond of accused Narbir Singh stands extended for a period of six months u/s 437A Cr.P.C, as amended, since the accused has failed to furnish fresh bond.
File be consigned to record room after necessary compliance.
Announced in the open court (NAMRITA AGGARWAL)
on 13.02.2012 METROPOLITAN MAGISTRATE
Judgment contains 11 pages SOUTH DISTRICT/SAKET COURTS
and all pages are signed NEW DELHI
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