Delhi District Court
Cbi vs . Ram Kishan Malik & Ors. on 9 August, 2010
IN THE COURT OF SH. SANJAY BANSAL ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-02 (NORTH) DELHI
Case No. 625/94
Unique Case ID : 02401R0007921994
CBI Vs. Ram Kishan Malik & Ors.
RC No. RC-3(S)/93-DLI dt. 24.2.93
PS : CBI SCB, New Delhi
U/s. 193/218/220/343/348/34 IPC
Date of institution: 30.06.1993
Judgment Reserved on: 05.08.2010
Date of Judgment: 09.08.2010
JUDGMENT
a) Serial No. of the case 02401R0007921994
b) Date of commission 21.5.92 to 27.5.92
of the offence
c) Name of the complainant Sh. N.C. Sharma
d) Name of the accused person, and 1. Ram Kishan Malik
his parentage and address. S/o Sh. Rampat Malik
R/o Q.No.2, Police Station, Civil Lines, Delhi
2. S.K. Giri
S/o Late Sh. Bhramjeet Giri
R/o 12/192, Lodhi Colony, New Delhi
3. Badal Singh Kaushik
S/o Sh. Birbal Kaushik
R/o A-18, HIL Coop. H-Society, Sector-13,
Rohini, Delhi
4. Intezar Hussain
S/o Late Sh. Ishtiakh Hussain
R/o 27/99, Trilok Puri, Delhi
5. Bakhtawar Singh
S/o Sh. Gurcharan Singh
R/o Q.No.21, PS Civil Lines, Delhi
6. Yashbir Singh
S/o Late Sh. Brahm Singh
R/o Baurli, PS Baroot, Bagpat, UP.
7. Narender Singh
S/o Sh. Dharam Singh
R/o V&PO-Bhambeewa, PS Beri,
Tehsil - Jhajjar
CBI Vs. Ram Kishan Malik & Ors. Page 1 of 38
RC-3(S)/93-DLI dt. 24.2.93
e) Offence complained or proved U/s. 193/218/220/343/348/34 IPC
f) Plea of the accused Pleaded not guilty and claimed trial
g) The final order All the accused are acquitted
h) Date of such order 09.08.2010
BRIEF STATEMENT OF THE REASONS FOR THE DECISION OF THE CASE:
1. The allegations are that one Sh. N.C. Sharma had filed a petition of Habeas Corpus in Hon'ble Delhi High Court seeking production of his son Sh. Sunil Sharma. It was alleged that the said Sh. Sunil Sharma was being illegally detained by Special Staff Cell, Preet Vihar, Delhi w.e.f. 21.5.92. Hon'ble Delhi High Court appointed one Sh. R.S. Chhabra, Joint Registrar, Delhi High Court to ascertain the said facts. Sh. Chhabra visited the Special Staff Cell, Preet Vihar on 27.5.1992 and found Sh. Sunil Sharma there. Two constables who were present there allegedly confirmed the illegal detention of Sh. Sunil Sharma. Upon the report of Sh. Chhabra, Hon'ble High Court passed an order directing CBI to register the case.
2. The CBI registered the case and conducted the investigations. It was found that there was a case FIR No. 123/92 u/s. 397 IPC at PS Krishna Nagar which was being investigated by accused Insp. Ram Kishan Malik. It is alleged that on 21.5.92 accused Bakhtawar Singh visited house of Sh. N.C. Sharma alongwith other officials at 6.00 a.m. and Sh. Sunil Sharma was present in the house. The police officials made some inquiries regarding one Ajay Rastogi from Sunil Sharma and Sunil Sharma took them to the house of Ajay Rastogi but he was not found there. However, Sh. Sunil Sharma was brought to the office of Special Staff Cell at Preet Vihar, Delhi. Complainant Sh. N.C. Sharma came to know about this when he returned to home. He CBI Vs. Ram Kishan Malik & Ors. Page 2 of 38 RC-3(S)/93-DLI dt. 24.2.93 contacted accused Ram Kishan Malik and Bakhtawar Singh and both of these two police officials allegedly made demand of Rs.50,000/- for releasing Sunil Sharma and threatened to implicate him in false cases if money was not paid. Further allegations are that Sh. N.C. Sharma contacted his Counsel and sent telegrams to the Commissioner of Police and the Chief Justice, Delhi High Court on 21.5.92 itself. On 22.5.92 Sh. N.C. Sharma again visited the office of the Special Staff and expressed his inability to pay the money. Thereafter, he contacted his Counsel and a petition was drafted. The petition was filed in the court of Ld. MM at Shahdara. Accused SI S.K. Giri gave reply to the court on 23.5.92 that the said Sunil Sharma had already been released. The petition was disposed of. However, Sunil Sharma did not return to his house. The complainant Sh. N.C. Sharma then again sent letters. He again met police officials who again demanded some money. Sister of the Sunil Sharma alongwith her friend met Sunil on 24.5.92 and 26.5.92. On 25.5.92 Sh. N.C. Sharma had met accused SI Badal Singh Kaushik who again demanded the money. Thereafter complainant filed the petition in Hon'ble Delhi High Court. As noted above, on 27.5.92 the Joint Registrar visited the office of the Special Staff and found Sunil Sharma there.
3. It is further alleged that when the accused persons came to know about the visit of Joint Registrar, they gave beatings to Sunil Sharma and forced him to sign on four notices u/s. 160 Cr.PC and also on Daily Diary at entry No.25 on 27.5.92. They forced him to write name of himself, his sister and his father to show that he was released in their presence. In the CBI Vs. Ram Kishan Malik & Ors. Page 3 of 38 RC-3(S)/93-DLI dt. 24.2.93 chargesheet it is mentioned that FSL result has confirmed that those words are in the handwriting of Sunil Sharma.
4. It is further alleged that accused HC Intezar Hussain, HC Yashbir Singh and HC Narender Singh had also beaten Sunil during illegal confinement. After completion of the investigation the chargesheet was filed against Insp. Ram Kishan Malik, SI S.K. Giri, SI Badal Singh Kaushik and Bakhtawar Singh. The other accused namely HC Intezar Hussain, HC Yashbir Singh and HC Narender Singh were not chargesheeted. However, they were also summoned by the Court.
5. My Ld. Predecessor vide order dt. 10.4.95 discharged all the accused. This order was challenged by the CBI by filing revision petition before Hon'ble High Court which by order dt. 26.7.01 set aside the said order and proceedings were reopened against all the seven accused. Thereafter vide order dt. 25.2.02 charge was ordered to be framed against all the seven accused for the offences punishable u/s. 218/34, 220, 343, 348/34 IPC. All the accused pleaded not guilty and claimed trial. Accused SI S.K. Giri challenged this order of charge. Hon'ble Sessions court vide order dt. 8.10.02 discharged accused S.K. Giri from the case. Again this order was challenged by the CBI and was set aside.
6. The prosecution, thereafter, has examined as many as 20 witnesses. These are PW1 Sh. Raj Singh Bahot, PW2 HC Raj Singh, PW3 Insp. Pramod Kumar, PW4 Sh. R.S. Chhabra, Joint Registrar, PW5 Ct. Nand Kishor, PW6 Sh. Rakesh Aggarwal, PW8 Sunil Sharma, PW9 Sh. N.C. Sharma, PW10 Anita Sharma, PW11 Insp. Vinod Kumar, PW12 Sh. C.L. Gupta, Adv., CBI Vs. Ram Kishan Malik & Ors. Page 4 of 38 RC-3(S)/93-DLI dt. 24.2.93 PW13 Sh. S.S. Sidhu, Adv., PW14 Sh. Shivraj Singh, PW15 HC Attar Singh, PW16 Sh. R.K. Joshi, Retd. Addl. DCP, PW17 Dr. M.M. Kutty, PW18 Sh. K. Sudarshan Malhotra, PW19 Sh. N.C. Sood, PW20 HC Dinesh Kumar, PW21 IO Sh. Harikesh, Addl. S.P. CBI. There is no PW7.
7. Statements of all the seven accused were recorded u/s. 313 Cr.PC. None of the accused led any defence evidence.
8. I have heard Sh. V.N. Ojha, Ld. Spl. PP for CBI, Sh. Harish Khanna, Adv. for accused Ram Kishan Malik, Sh. Sandeep Sharma, Adv. for accused S.K. Giri and Intezar Hussain, Sh. R.C. Chopra, Adv. for accused Bakhtawar Singh and Sh. R.K.Thakur, Adv. for accused Badal Singh Kaushik, Yashbir Singh and Narender Kumar. I have perused the record.
9. PW9 is the complainant. He is the father of Sunil Sharma. He deposed that in May 1992, two constables alongwith one sardar took away his son Sunil from his house in the morning. The police officers told Sunil to show them the house of one Ajay Kumar. Thereafter the constables took Sunil to the police station. PW9 came to his house and came to know about this. He deposed that he went to Preet Vihar police station to see his son. There was an old man taking hukka who told PW9 to arrange money if he wanted release of his son. PW9 came back as he was not having the money because the money had been taken by the lawyer. He deposed that 2 or 3 days after that, his daughter Anita Sharma (PW10) visited the police station and she told that she could meet Sunil with difficulty. PW9 deposed that he came to Tis Hazari Court and met his lawyer Sh. C.L. Gupta who advised him to send telegrams to the Chief Justice and the Lt. Governor. He sent the CBI Vs. Ram Kishan Malik & Ors. Page 5 of 38 RC-3(S)/93-DLI dt. 24.2.93 telegrams which are Ex.PW1/A and B. Ex.PW9/A are the receipts issued by the postal department. Ex.PW9/B is an application. He deposed that the police officers attending the court told the court that Sunil had already been allowed to go home. He deposed that he again met his lawyer who advised him for raid. Accordingly, he filed application in the Delhi High Court and thereafter Registrar of the High Court visited the police station and recovered the Sunil in police station. He deposed that the Registrar told police officers to produce Sunil in the High Court on next day. He deposed that thereafter somebody left Sunil on the road near his house. At about 2.00 p.m. Sunil came to the house and he (PW9) telephoned his lawyer who advised PW9 not to allow Sunil to enter his house and further advised that rather Sunil should come by way of jumping the walls of the house. He deposed that he does not remember whether Sunil remained in the police station for 6 days or 5 days. He also deposed about giving specimen of handwriting which are S11. He was not sure about other specimen.
10. This witness was declared hostile. In cross-examination by Ld. Spl. PP he denied making any statement to the CBI to the effect that money was demanded by the accused persons namely Insp. Ram Kishan Malik or ASI Bakhtawar Singh for release of his son. He does not remember the dates. The witness did not identify any of the accused, even on being specifically so suggested by Ld. Spl. PP. He denied his signature on Ex.PW8/J at point Q2/Mark C. In cross-examination by the accused, he stated that Sunil was not taken away in his presence.
CBI Vs. Ram Kishan Malik & Ors. Page 6 of 38 RC-3(S)/93-DLI dt. 24.2.93
11. PW 8 is Sunil Sharma who is the alleged victim. He deposed that on 21.5.92 at about 6.00 a.m. a police team visited his residence and asked about house of one Ajay Rastogi. He took the police team to the house of Ajay but Ajay was not there. He deposed that the police team did not allow him to return to his residence and took him to the PS Preet Vihar, Spl. Cell. He deposed that on 21.5.92 he was kept in the police station and was also beaten. In the night also he was kept in the same room. He further deposed that on 22.5.92 the police officers released him but as soon as he came out of the PS, three police officials caught him and told him to accompany them for food. They took him here and there and kept him in the night of 22.5.92 in the backside of the police station. He did not identify any of the accused who had allegedly abused him or beaten him on 21.5.92. He further deposed that on 23.5.92 some police officials one Pandit, one Singh and one Khan brought him to the same room and directed him not to talk to anybody. He deposed that he was given food on 21.5.92, 22.5.92 and 23.5.92. He deposed that the police officials told him that as his father has not paid money, he would not be released and threatened to implicate him in false cases.
12. He further deposed that on 24.5.92 his sister Anita Sharma (PW10) alongwith her friend Kuljeet Kaur came to see him. He met them and they had gone away. He was kept in the night in PS. On 25.5.92 also same story was repeated. He deposed that none of the accused persons said anything to him. He further deposed that on 26.5.92 his sister met him in police station alongwith her friend Kuljeet Kaur. He deposed that on the night of 27.5.92, the police officers told him that as money has not been given, he would be CBI Vs. Ram Kishan Malik & Ors. Page 7 of 38 RC-3(S)/93-DLI dt. 24.2.93 killed in an encounter. He further deposed that at about 3/4.00 p.m., his sister, father, one advocate Siddhu alongwith Registrar of the High Court came inside the room. He further deposed that he told the Registrar about his detention since 21.5.92 and the beatings being given to him. He identified his signatures on Ex.PW4/D which is a statement recorded by the Registrar. He also deposed that when the Registrar came to the PS and told the purpose of his visit, all the police officials ran away. He deposed that those who were in civil dresses stated that they were not police officials. When the Registrar had gone, three police officers who had run away came back and during the night he was beaten. He deposed that his signatures were obtained on 7-8 blank papers. He deposed that he was asked to sign on some papers in the name of his brothers and sisters. These are Ex.PW3/D3. He deposed that he had signed blank papers as Ex.PW2/B1, Ex.PW8/A, Ex.PW8/B, Ex.PW8/C, Ex.PW8/D, Ex.PW8/E and Ex.PW8/F. He identified his specimen signatures which are S1 to S10 and are Ex.PW8/G1 to G10.
13. This witness was also declared hostile and was cross-examined by Ld. Spl. PP. In the said cross-examination, he denied making statement to the CBI as put to him by Ld. PP. He denied naming any of the accused in the said statement. He did not identify any of the accused. He also denied that he was beaten by Ram Kishan Malik or Bakhtawar Singh or Intezar Khan. He denied other suggestions of Ld. Spl. PP.
14. In cross-examination by the accused, he denied seeing any person by the name of Badal Singh. Further in the cross-examination on behalf of other accused he was confronted with various facts which were stated by him in CBI Vs. Ram Kishan Malik & Ors. Page 8 of 38 RC-3(S)/93-DLI dt. 24.2.93 the examination-in-chief but not so stated in the statement u/s. 161 Cr.PC.
15. PW10 is Anita Sharma who is sister of Sunil Sharma. She deposed about incident. She deposed that Sunil was taken away by police officials. When he did not return she told her father. Her father (PW9) had gone to the PS but could not meet Sunil. She deposed that her father visited the PS for 2- 3 days. She deposed about visiting the PS herself on the 4th day. She met Sunil in the police station and she gave some clothes to him. She deposed that her friend Kuljeet with also with her. She deposed about her father moving various applications before various authorities. She deposed about visiting the PS with the Registrar. She told the date as 27 or 28.5.92. She deposed that Sunil was still there. She further deposed that the Registrar told them that Sunil would come home later. In the late hours of the night Sunil also came back. She identified her specimen signatures which are Ex.PW10/A1 to A5. She denied her handwriting on Ex.PW8/J at Q1/Mark B. She also, however, did not identify any of the accused. In cross-examination by the accused persons she stated that her statement was not taken in writing by CBI but some inquiries were made.
16. PW4 was the Joint Registrar, Delhi High Court. He deposed about visiting police lock up at Spl. Staff Cell, Preet Vihar police station on 27.5.92. His report is Ex.PW4/A. He deposed that during his inspection he had recorded statement of one Ct. Shambhu Dayal and Nand Kishor photocopies of which are Ex.PW4/B and C. He also deposed that Sunil Sharma had also given statement to him which is Ex.PW4/D. He deposed that he had recorded name, parentage and address of Sunil in his own CBI Vs. Ram Kishan Malik & Ors. Page 9 of 38 RC-3(S)/93-DLI dt. 24.2.93 handwriting and rest of the statement was written by Sunil himself. In cross- examination, he stated that he does not remember whether Room No.19 which he had visited was waiting room or not. He stated that the room in which Sunil Sharma was found was not locked. On Ex.PW4/B, regarding one correction of the word 'Bahadur' to 'Badal', he stated that the word 'Badal' does not appear to be in his handwriting.
17. PW5 is Ct. Nand Kishor. He deposed that in 1992 he was posted as constable in Spl. Cell, Preet Vihar, Insp. Ram Kishan Malik was in-charge at that time. He deposed that one officer of Delhi High Court had come to make inquiries. He stated that Munshi Shambhu Dayal was also present at that time which was at 5.00 p.m. He deposed that his statement was recorded but it was not recorded completely. Ex.PW4/C is the said statement. He stated that he had stated to PW4 that, "he was deputed for the day duty and as he was not available, he was not aware as to what had happened" but this sentence was not added in Ex.PW4/C. He also admitted to have made a statement during an inquiry which is Ex.PW5/A which also bears signature of accused Ram Kishan Malik at point B. Ex.PW2/D2 is the Chitha which pertains to 20.5.92 to 28.5.92. In cross-examination by the accused he stated that the statement was not read over to him nor he had read the statement. He stated that he had not seen Sunil Sharma during the night at any point of time in the office of Spl. Staff. However, he had seen him during day time once or twice. He denied meeting father of Sunil or his sister. He further stated that the persons including Sunil Sharma who had been called by notice u/s. 160 Cr.PC used to sit in the waiting room.
CBI Vs. Ram Kishan Malik & Ors. Page 10 of 38 RC-3(S)/93-DLI dt. 24.2.93
18. This witness was thereafter cross-examined by Ld. Spl. PP with permission of the court. In said cross-examination he again reiterated that he and Shambhu Dayal were present when Joint Registrar had visited the office of Spl. Staff. He denied that when Joint Registrar raided the Cell, Sunil Sharma was present there. He denied the suggestion that Sunil was in his protection. He denied making statement to CBI. He further again confirmed his signatures on statement Ex.PW4/C given to the Registrar and stated that he had told Registrar that Sunil Sharma was present in the Spl. Cell since 25.5.92. He again stated that it was not read over to him before he signed it. He also stated that he had given a written statement to accused Ram Kishan Malik which is Ex.PW5/A. In further cross-examination by the accused he denied the suggestion that he had not given the said written statement Ex.PW5/A.
19. PW6 is friend of Sunil Sharma but he does not remember anything and was declared hostile. Nothing has come out in cross-examination by Ld. Spl. PP.
20. PW2 is HC Raj Singh. He deposed that he was posted as Reader of accused Ram Kishan Malik. On 19.3.93 he had given some documents to the CBI which were seized vide memo Ex.PW2/A. Ex.PW2/B1 to B8 are the notices which were prepared by accused Ram Kishan Malik and bears signature of Ram Kishan Malik at point A. Similarly, Ex.PW2/C bears signature of Ram Kishan Malik at point A and that of accused S.K. Giri at point B. Ex.PW2/D is copy of affidavit which was also given to CBI and which bears the signature of Ram Kishan Malik at point A. PW2 identified CBI Vs. Ram Kishan Malik & Ors. Page 11 of 38 RC-3(S)/93-DLI dt. 24.2.93 all the accused persons. In cross-examination, he stated that his statement was not recorded u/s. 161 Cr.PC. He also admitted that accused Ram Kishan Malik had instructed him to get prepared the reply of bail application from any SI who was available and further told that in the reply it be mentioned that Sunil Sharma was called in the office for the purpose of interrogation and was released. He stated that he met accused SI S.K. Giri and SI Pramod Kumar and gave them the copy of bail application and also told about the instructions of Insp. Ram Kishan Malik. Accused SI S.K. Giri prepared the reply. He brought the reply to Ram Kishan Malik.
21. PW3 Insp. Pramod Kumar deposed that in 1992 he was posted in the Spl. Staff and he knows accused Ram Kishan Malik. Case diaries of case FIR No.123/92 PS Krishna Nagar from 20.5.92 to 29.5.92 was shown to PW3 and he identified signatures of accused Ram Kishan Malik thereon. The case diaries are Ex.PW3/1 collectively. Similarly, a report was also shown to him on which also he identified signatures of accused Ram Kishan Malik. The document is Ex.PW3/2. In cross-examination, it was stated by him after seeing the document DD No.11 dt. 21.5.92 which is Ex.PW3/D1 that accused Badal Singh had joined duty with Spl. Staff on 21.5.92 at 8.10 p.m. Further, after seeing duty roster which is Ex.PW3/D2, he stated that accused Badal Singh was not the member of Spl. Staff on 21.5.92 and was not assigned any specific duty. He admitted that the case diary of a case investigated by Spl. Staff goes to the SHO of the concerned PS firstly and thereafter they are forwarded to the concerned ACP. The concerned PS in the present case was Krishna Nagar.
CBI Vs. Ram Kishan Malik & Ors. Page 12 of 38 RC-3(S)/93-DLI dt. 24.2.93
22. After seeing DD No.25 which is Ex.PW3/D3, PW3 stated that same was written by duty officer. However, he does not remember who was the duty officer at that time. He admitted that Ex.PW3/D4 was written by some other person. He also admitted that from 23.5.92 to 29.5.92, he alongwith accused SI S.K. Giri, Intezar Hussain and other officials as mentioned in DD No.10 dt. 23.5.92 (Ex.PW3/D5) were on out station duty. He came to know about visit of the Joint Registrar Delhi High Court on returning to the office on 29.5.92. He also admitted that he had seen Sunil Sharma being called to join investigations but was never detained in the Spl. Staff Cell. He also admitted that the case diaries had been forwarded to SHO PS Krishna Nagar on the same day on which they were written. He identified initials of the said SHO at point X on these case diaries. He was also shown the Duty Roaster Ex. PW3/D6. He admitted that there was mention of 'outstation duty' in that document.
23. PW11 deposed that in March 1993 he was posted as SI in the Spl. Staff. On 16.3.93 he had handed over some documents to the CBI on instructions of Insp. B.L. Meena vide seizure memo Ex.PW11/A. Those documents were CDs which are Ex.PW3/1 collectively, Daily Diary Register which is Ex.PW8H and photocopy of Chitha/duty roster which is Mark PW3/D2. In cross-examination, he stated that the original of the Chitha was not brought by him. He denied giving any undertaking to the CBI for producing the original in the court. The witness could not produce it even after searching the same. He stated that there was a cutting in the Chitha. However, when he had handed over the photocopy of the same, the word CBI Vs. Ram Kishan Malik & Ors. Page 13 of 38 RC-3(S)/93-DLI dt. 24.2.93 'Outstation' was there and there was no cutting.
24. PW12 is Advocate C.L. Gupta who was Counsel of complainant. He deposed that the complainant alongwith his son contacted him in the month of May 1992. He deposed that complainant told that his son who was with him was wanted in robbery case and asked PW12 to help him. PW12 advised him that his son should surrender. PW12 deposed that his statement was never recorded by the IO of this case. He was cross-examined by Ld. PP. He denied making the statement u/s. 161 Cr.PC which is Mark PW12/A. He denied all the contents of the said statement.
In cross-examination by the accused, PW12 stated that the son who used to accompany complainant was Sunil Sharma
25. PW13 is also an Advocate. He is completely hostile. He stated that CBI never contacted him during investigation of this case. In cross- examination by Ld. Spl. PP he denied making statement u/s. 161 Cr.PC which is Mark PW13/A. He denied all the contents of the said statement.
26. PW14 deposed that on 24.5.92 he was transferred to Spl. Staff Cell, Preet Vihar and accused Ram Kishan Malik was incharge of the same. He could not identify writing of the person who had written Ex.PW8/J. He denied making any statement which is Mark PW14/A. In cross-examination by Ld. Spl. PP he denied all the contents of the said statement. In the cross- examination by the accused he stated that there is no lockup in the Spl. Staff and Room No.19 was waiting room. He also stated that he had not seen Sunil Sharma sitting there in illegal detention either in night or in the day.
27. PW15 also deposed that accused Ram Kishan Malik was incharge of CBI Vs. Ram Kishan Malik & Ors. Page 14 of 38 RC-3(S)/93-DLI dt. 24.2.93 the Spl. Staff, Preet Vihar. He also expressed his ignorance about writer of portion A to A on Ex.PW8/J against Sr. No.25. In cross-examination by Ld. Spl. PP, he denied giving any statement to CBI which is Mark PW15/A though he admitted that he was interrogated but also stated that the statement was not reduced into writing. He admitted that DD No.26 portion B to B on Ex.PW8/J is in his handwriting but he cannot say whether accused Badal Singh had written portion A to A of DD No.25 on this document. He identified signature of accused Ram Kishan Malik on Ex.PW2/B1, B2, B3, B6 and D.
28. PW16 deposed that he was working as ACP (HQ) in May 1993 East District. He deposed that letter Mark PW16/A was signed by officials of Office of DCP East Delhi and enclosures of letter are Mark PW16/B. IN cross-examination by accused, he stated that he could not identify the signature on letter Mark PW16/A.
29. PW 18 deposed that he was working as Insp. in East District in May 1993. He had sent some enclosures with letter Ex.PW18/A. This witness was declared hostile. In cross-examination by Ld. Spl. PP he denied ever meeting CBI Inspector.
30. PW20 brought the FIR register regarding FIR No. 123/92 u/s. 397/395/342/398/34 IPC PS Krishna Nagar. Photocopy of the FIR is Ex.PW20/A.
31. PW17 deposed about grant of sanction for prosecution of the accused persons namely Ram Kishan Malik, S.K.Giri, Badal Singh Kaushik and Bakhtawar Singh. The sanction was granted by the Hon'ble Lt. CBI Vs. Ram Kishan Malik & Ors. Page 15 of 38 RC-3(S)/93-DLI dt. 24.2.93 Governor. Ex.PW17/A is the sanction order which was conveyed vide letter Ex.PW17/B.
32. PW19 is the handwriting expert. He had given opinion regarding some documents. His report is Ex.PW19/A. He identified signatures of Sh. Santokh Singh on the said report. The letter through which the documents and opinion were returned to CBI is Ex.PW19/B. He also deposed about the reasons for giving such opinion. In cross-examination it has come that there is no signature of Sh. Santokh Singh, Govt. Examiner on Ex.PW19/B. He deposed that he was the main examiner and Sh. Santokh Singh is his senior.
33. PW21 is the IO of the case. He has deposed about investigation of the present case. He deposed that the case was registered on directions of Hon'ble High Court on 24.2.93. Copy of the FIR is Ex.PW21/A. The order of Hon'ble High Court alongwith annexure is Ex.PW21/B. He deposed that he had seized some documents from SI Vinod Kumar vide memo Ex.PW11/A. He also deposed about seizure of other documents. Some documents were seized vide memo Ex.PW21/C. He deposed about seizure of acknowledgment which are Ex.PW21/D1, D2, D3. He deposed about obtaining opinion of the handwriting expert. He also deposed about seizing some more documents vide memo Ex.PW21/E. Ex.PW21/F is the reply of show cause notice of Shambhu Dayal. Ex.PW21/G is the certified copy of reply filed by accused S.K. Giri in the court of Ld. MM. He deposed that portion A to A on Ex.PW8/J was written by accused Badal Singh. He deposed that he had correctly recorded statements of witnesses namely PW5, PW6, PW8, PW9, PW12, PW14, PW15 and PW18. Ex.PW21/H is the CBI Vs. Ram Kishan Malik & Ors. Page 16 of 38 RC-3(S)/93-DLI dt. 24.2.93 statement recorded by PW21 of PW5. Similarly, PW21/H1 is statement of PW6, Ex.PW21/H2 is statement of PW8, Ex.PW21/H3 is statement of PW9, Ex.PW21/H4 is statement of PW12, Ex.PW21/H5 is statement of PW13, Ex.PW21/H6 is statement of PW14, Ex.PW21/H7 is statement of PW15, Ex.PW21/H8 is statement of PW18.
34. In cross-examination PW21 stated that he had not got any of the accused identified by way of Test Identification Parade before any Judicial Magistrate. He admitted that there is no lock up in the Spl. Cell but there was only office. He further stated that he did not make any inquiry from SHO PS Krishna Nagar. Further, he had not sealed the DD register and other documents. It has come that he had not filed any application before the court for taking specimen handwriting and specimen signature of witnesses or the accused persons. Further, no independent witness from locality was called to join the investigation for this purpose.
35. Statements of all the accused were recorded. All the accused stated that they were innocent. None of them, however, led any defence evidence.
36. After perusing the evidence, there cannot be any doubt that PW8 Sunil was found in the Spl. Staff Cell on 27.5.92 when PW4/Joint Registrar had visited the said office. However, the material question is whether PW8 Sunil was being illegally detained since 21.5.92 to 27.5.92 there; and if so, by whom? And whether any money was demanded for his release?
37. The accused have been charged for the following offences with the aid of Sec. 34 IPC:
"218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiting - Whoever, being a public servant, and CBI Vs. Ram Kishan Malik & Ors. Page 17 of 38 RC-3(S)/93-DLI dt. 24.2.93 being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law. - Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
343. Wrongful confinement for three or more days. - Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
348. Wrongful confinement to extort confession, or compel restoration of property. - Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
38. Ld. Spl. PP argued that there is enough evidence on record to prove guilt of all the accused persons. Ld. PP highlighted the relevant portions of the testimonies of witnesses and also the documents and submitted that there is enough evidence, oral as well as documentary, to convict the accused persons. He referred to 1962 SCR 38 titled "Maulud Ahmad v. State of Uttar Pradesh" in reference to offence u/s 218 IPC and 1941 Cri.LJ 460 titled "Mansharam Gianchand & Anr. v. Emperor" in reference to offence u/s 220 CBI Vs. Ram Kishan Malik & Ors. Page 18 of 38 RC-3(S)/93-DLI dt. 24.2.93 IPC. He further referred to 2003 Cri.LJ 115 titled "Amba Lal v. State of Rajasthan"; 2000 Cri.LJ 1401 titled "State of Madhya Pradesh & Ors. v. Sh. Ram Singh". He argued that the prosecution has proved the circumstances which point towards the guilt of the accused persons.
39. Ld. Spl. PP also highlighted role of the accused persons. He submitted that accused Ram Kishan Malik (A1) was IO of the case FIR No.123/92 PS Krishna Nagar. He had written the case diary. He had also written the notices which were fabricated later on. Ld. Spl. PP referring to role of accused S.K. Giri (A2) submitted that he was working under A1. He had prepared reply dt. 23.5.92. Regarding accused Badal Singh Kaushik (A3), Ld. Spl. PP submitted that he was also working under A1 and had connived with him. It was A3 who had manipulated the daily diary. Regarding accused Intezar Hussain (A4), Bakhtawar Singh (A5), Yashbir Singh (A6) and Narender (A7), Ld. Spl. PP submitted that they had also connived with the other accused. They had given beatings to the victim.
40. On the other hand, Ld. Counsels for all the accused argued to the contrary and submitted that prosecution has failed to prove the case beyond reasonable doubt. They prayed for acquittal of all the accused persons.
41. Ld. Spl. PP referred to the daily diary which is Ex.PW8/H. He referred to entry No. 25 dt.27.5.92 which is Ex.PW8/J. By this entry it is shown that PW8 Sunil Sharma was handed over to his father PW9 and his sister PW10 at 7.20 (written as 7.20 Baje Din) on 27.5.92. He argued that this entry does not contain the true facts. According to him this DD entry was made by the accused Badal Singh Kaushik in order to save all the CBI Vs. Ram Kishan Malik & Ors. Page 19 of 38 RC-3(S)/93-DLI dt. 24.2.93 accused persons. At this DD entry there are signatures of Sunil Sharma (PW8), N.C. Sharma (PW9) and Anita Sharma (PW10). Ld. Spl. PP submitted that these signatures were written by PW8 under compulsion and on directions of the accused persons which has been confirmed by PW19.
42. Ld. Spl. PP referred to the telegrams Ex.PW1/A and B. He submits in these telegrams it has been clearly mentioned that PW8 was being detained by the police officials. He also referred to Ex.PW2/C (also exhibited as Ex.PW9/B and Ex.PW21/G) which is the reply filed by accused S.K. Giri on 23.5.92 in the court of Ld. MM where PW9 had filed an application. In this report it was mentioned that Sunil Sharma had already been released. Ld. Spl. PP thus submits that this shows that Sunil was in custody of accused persons on 21.5.92 and 22.5.92. He also referred to testimony of PW5 and of PW4. PW4 had recorded the statements of PW5 when PW4 had visited the Spl. Staff Cell. The said statement is Ex.PW4/C. In that statement PW5 had stated that Sunil was being kept in the office for the last two days. Ld. Spl. PP further submitted that the fact of detaining of Sunil is corroborated from the case diary which is Ex.PW3/1. Ld. Spl. PP also referred to testimony of PW8 and submits that PW8 has categorically deposed that he was held captive from 21.5.92 to 27.5.92.
43. Ld. Spl. PP referred to the testimony of PW8. He argued that though PW8 has not identified any of the accused, but still it has been proved that he was held captive from 21.5.92 to 27.5.92 as he has categorically deposed to this effect. He explains that non-identification might be because of the reason that PW8 felt frightened because all the accused are police officials. He CBI Vs. Ram Kishan Malik & Ors. Page 20 of 38 RC-3(S)/93-DLI dt. 24.2.93 submitted that though PW8 is hostile regarding identification, but his evidence can be considered and relied upon as he has supported case of the prosecution in other aspects. Similar was his arguments regarding testimony of PW9.
44. On the other hand, Ld. Counsels for the accused persons argued that testimonies of PW8 and PW9 as well as PW10 are not reliable. They argued that these witnesses are hostile on material aspects and therefore even part of their testimony cannot be accepted. They argued that the testimony of PW9 who is father of Sunil (PW8) is hearsay evidence because even as per PW9, PW8 was picked up by the accused in his absence. Therefore, they argued that PW9 cannot be relied upon as to who has taken PW8. They argued that PW8 himself has not named any accused as the officer who had taken him on that day. In fact PW8 and 9 have not identified any of the accused. They submit that PW10 who is sister of PW8 is also silent as to who had taken PW8 in the morning of 21.5.92. They further argued that in the application filed before Ld. MM, there is no mention of any of the accused. Similarly in the writ petition also there is no name of the accused. The affidavit of PW9 filed with the writ petition also does not contain any such allegations. He submitted that PW9 nowhere had deposed that PW8 was detained from 21.5.92 to 27.5.92. PW10 also does not say so in the witness box.
45. PW8 is totally silent regarding the persons who had allegedly detained him. He has not identified any of the accused as the person who had detained him. However, PW8 does say that he was detained from 21.5.92 to 27.5.92. Whether PW8 is to be believed regarding the fact of detention when CBI Vs. Ram Kishan Malik & Ors. Page 21 of 38 RC-3(S)/93-DLI dt. 24.2.93 he is totally hostile as to the identity of the persons who had detained him?
46. Ld. Spl. PP argued that PW8 can be believed in this respect. He submits that from his testimony it has been proved that he was held captive. As far as identity of the accused is concerned, Ld. Spl. PP submits that the documents on record prove that they were the accused persons. On the other hand, Ld. Counsels for the accused vehemently argued that PW8 cannot be given any credit as his testimony does not inspire any confidence. They submit that this witness cannot be believed at all. They urged that there is no force in the contention of Ld. Spl. PP that PW8 did not identify the accused because of fear of the accused persons. They argued that there is not even a single complaint to any authority or the court by PW8 Sunil to this effect. They highlighted that had it been so, PW8 Sunil must have made some kind of complaint to any authority. The case is pending since 1993 but there is no complaint at all. They argue that PW8 had made several improvements from his statement u/s 161 CrPC and thus cannot be believed. They relied upon 2007 (2) JCC 1189 titled "Nand Lal @ Nandu v. State (Delhi)".
47. The defence of the accused Ram Kishan Malik is that PW8 Sunil was being called for interrogation after serving upon him notices u/s. 160 Cr.PC and was not being illegally detained as alleged by prosecution. Ld. Counsels for the accused referred to the said notices which are Ex. PW2/B1 to B8. From these notices it is amply clear that PW8 Sunil was called for interrogation. Ld. Spl. PP argued that had it been so, there must have been some kind of statement recorded u/s. 161 Cr.PC. To this, Ld. Counsels for the accused argued that it is not necessary to always record statement u/s. CBI Vs. Ram Kishan Malik & Ors. Page 22 of 38 RC-3(S)/93-DLI dt. 24.2.93 161 Cr.PC.
48. Ld. Spl. PP submitted that had it been case of calling PW8 by serving notices u/s. 160 Cr.PC upon him, there must have been some kind of entries in the daily diary and / or case diary. Ld. Counsels for the accused referred to Punjab Police Rules which are applicable in Delhi and submitted that according to these rules the details of investigations are to be mentioned in case diaries and not the daily diary. They submit that as per these rules the daily diary is supposed to contain arrival and departure of police officers to and from the police station and similar other facts.
49. Ld. Spl. PP argued that from the testimonies of witnesses and the documents, it has been proved that PW8 Sunil Sharma was illegally detained from 21.5.92 to 27.5.92 by all the accused persons acting in furtherance of their common intention. On the other hand, Ld. Counsels for the accused submitted that there was no illegal detention nor there was any common intention. They referred to 2006(4)RCR (Criminal) 120 titledd "Surinder Singh @ Chhinda & Anr. v. State of Punjab"; AIR 2004 SC 1808 titled "Girija Shankar v. State of U.P."; AIR 2005 SC 2989 titled "Harbans Kaur & Anr. v. State of Haryana"; AIR 1955 SC 287 titled "Ramayya v. State of Bombay"; and argued that presence of all the accused at one place and at the same time is required for forming of common intention. And further that such common intention must be formed before the commission of the offence. As per them this is not the case. They also argued that there is no charge of conspiracy and therefore evidence if any and against any accused cannot be read against the other accused.
CBI Vs. Ram Kishan Malik & Ors. Page 23 of 38 RC-3(S)/93-DLI dt. 24.2.93
50. To show that there was illegal detention, Ld. Spl. PP referred to several documents. Ex.PW1/A and B are the telegrams sent by PW9 on 21.5.92. The contents of Ex.PW1/A are as under :
"THE COMMISSIONER OF POLICE, DELHI POLICE, DELHI SIR, MY SON SUNIL SHARMA C.A. ILLEGALLY TAKEN INTO CUSTODY BY SPL. STAFF, PREET VIHAR, DELHI POLICE, DEMANDING ILLEGAL GRATIFICATION, THREATENING FALSE IMPLICATION HIM OR OTHER FAMILY MEMBER IN CRIMINAL CASE.
NARESH CHANDER SHARMA, F/4/26 KISHAN NAGAR, DELHI-51"
51. The contents of Ex.PW1/B are similar but this telegram was sent to the Chief Justice Delhi High Court. In both the telegrams the complainant PW9 has not named any of the accused as the persons who had taken his son Sunil Sharma in illegal custody.
52. Ld. Spl. PP referred to the reply/report prepared by accused S.K. Giri which is Ex. PW2/C. This is also forwarded by accused Ram Kishan Malik. Ld. PP submitted that it has been reported in this report that the Sunil Sharma was released when the matter came up before the court. Ld. Counsels for the accused argued that this is only a photocopy and has not been proved according to law and cannot be considered. They submitted that merely putting exhibit mark on a document cannot be taken as that the document has been proved. They referred to 1995 (34) DRJ titled "Sudir Engineering Company v. Nitco Roadways Ltd.". In the alternative they argued that there is nothing incriminating against any of the accused in this report. In my considered opinion, a photocopy of a document cannot be said to have been proved without following the formalities of the law. There is no doubt that this document is only a photocopy. It has not been proved CBI Vs. Ram Kishan Malik & Ors. Page 24 of 38 RC-3(S)/93-DLI dt. 24.2.93 according to law. Merely putting exhibit mark does not mean that the document has been proved. Even otherwise, if this document is considered, as there is an attested copy also (Ex. PW21/G), there is nothing incriminating against any of the accused. It was reported that a dacoity was committed on 8.5.92 in the area of PS Krishna Nagar. One Ashwani Sharma who is brother of Sunil Sharma was the suspect and he was absconding. Sunil Sharma was called for interrogation to know whereabouts of said Ashwani Sharma. It was also reported that Sunil Sharma was directed to go after interrogation. I find nothing incriminating in this report.
53. Ld. Spl. PP referred to affidavit of accused Ram Kishan Malik. It was filed in Hon'ble Delhi High Court which is Ex.PW2/D. He submits that in this affidavit accused Ram Kishan Malik had admitted that Sunil Sharma was in custody when the Joint Registrar/PW4 had visited the office of Spl. Staff Cell at Preet Vihar. The answer of Ld. Counsels for the accused was that this document also has not been proved as per law. This is only a carbon copy and not a certified copy. They further argued that even if considered, there is nothing against the accused. They argued that the whole affidavit has to be read and understood and not one line being picked up and used by the prosecution. They highlighted that after perusal of the whole affidavit, it would be revealed that there is no admission on the part of accused Ram Kishan Malik regarding custody of Sunil Sharma.
54. I have perused the affidavit this document is also a carbon copy and has not been proved as per law. Even otherwise, if it is considered, I find that there is no admission at all regarding custody of Sunil Sharma. Though the CBI Vs. Ram Kishan Malik & Ors. Page 25 of 38 RC-3(S)/93-DLI dt. 24.2.93 word 'Custody' has been used but its meaning has to be deduced by the context in which it has been used. He has clearly stated that Sunil Sharma was called to the police station under due process of law. Perusal of the affidavit would reveal that the accused Ram Kishan Malik had called Sunil Sharma by serving notices for the purpose of interrogation to ascertain whereabouts of the suspect Ashwani Sharma.
55. Ld. Spl. PP referred to the report of PW4 who had visited the office of Spl. Staff Cell on 27.5.92. He also referred to statements recorded by him which are Ex.PW4/A, B and C. Ld. Spl. PP laid great stress on this report and these statements. He argued that at the time of visit of PW4, Sunil Sharma was found present in the Spl. Staff Cell. He argues that this proves that Sunil Sharma was being illegally detained since 21.5.92. He relied upon 2000 Cri.LJ 29 titled "Sukhar v. State of Uttar Pradesh" and contended that this statement of PW8 given to PW4 can be considered as res gestae. Ld. Counsels for the accused persons contended that the report of PW4 has not been proved according to law. They also submit that the statements allegedly recorded during the proceedings conducted by PW4 also have not been proved as per law. They submit that those statements are of no value.
56. In my view, the report of PW4 which is Ex.PW4/A is a certified copy and therefore can be considered. However, as far as the statements are concerned those are only photocopies. A photocopy cannot be considered unless proved as per law to be correct and exact copy of the original. No effort was made by the prosecution to produce the originals of these statements which are Ex.PW4/A, B and C. As these are only photocopies, it CBI Vs. Ram Kishan Malik & Ors. Page 26 of 38 RC-3(S)/93-DLI dt. 24.2.93 must be held that these have not been proved as per law. However, even if the same are considered, they do not help the prosecution in any manner. Statement Ex.PW4/B is that of Shambhu Dayal who has not appeared in the witness box. He had died prior to his examination in the court. This statement, therefore, is of no value. Further, in this statement there is some cutting. The word 'Bahadur' has been cut and rewritten as 'Badal'. PW4 has admitted that he had not made this cutting. This implies that there was some interpolation later on. Thus, this statement is of no use. Ex.PW4/C is statement of PW5 Nand Kishor. He had deposed that the statement bears his signature but had also stated that the statement was not correctly recorded. In this statement he purportedly stated that he had seen Sunil Sharma in the office and Sunil was there for the last two days. However, in his evidence he had denied that Sunil Sharma was in the office of Spl. Staff for the last two days. Ld. Counsels for the accused persons have rightly argued that the deposition made in the court is to be considered and not a statement purportedly recorded during the said proceedings of the Joint Registrar. Ld. Counsels argued that there is no attestation by PW4 on this statement itself that it was rightly recorded. I find force in this argument. Similarly, statement of Sunil Sharma which is Ex.PW4/D is also unattested. In this statement he stated that he was being detained since 21.5.92 and accused Intezar Khan, Bakhtawar Singh and Jasbir Singh had interrogated him and had abused him and given beatings also. This statement is also a photocopy and therefore cannot be read. Even otherwise, this statement being unattested by PW4 is of no use. Further PW8 in his evidence in the court has not named CBI Vs. Ram Kishan Malik & Ors. Page 27 of 38 RC-3(S)/93-DLI dt. 24.2.93 any accused who had allegedly abused him or beaten him. He has not even identified any of the accused as the persons responsible for his illegal detention. Further, there is controversy regarding name of accused Intezar Hussain. His name is mentioned as Intezar Khan in Ex. PW4/D. PW8 is not even sure of his name at the time of recording of the said alleged statement.
57. Ld. Spl. PP also argued that as accused S.K. Giri had failed to show that he was outstation from 23.5.92 to 29.5.92, this should be taken as a circumstance against the accused persons and an inference must be drawn against them that they had illegally detained Sunil Sharma. Ld. Spl. PP, in order to show that accused S.K. Giri has failed to prove his defence, referred to the case diary and daily diary. At this stage let me first deal with the contention of Ld. Counsels for the accused that the case diary cannot be looked into. Ld. Defence Counsels argued that since there is no charge of fabrication of a case diary, therefore, the case diary cannot be looked into. They also contend that since the application of the prosecution for amendment of charge i.e. for inclusion of case diary in the narration of charge already stands dismissed, this further fortifies their arguments for not considering this case diary. In my view, though it is correct that application for amendment of charge is dismissed, it cannot be said that case diary cannot be looked into. The application for amendment of charge was dismissed for separate reasons. This does not make the case diary a redundant document. It is piece of evidence and has to be looked into.
58. Ld. Spl. PP referred to case diary of 25.5.92 relating to case FIR No. 123/92 PS Krishna Nagar. He also referred to DD No. 10 dt. 23.5.92 from CBI Vs. Ram Kishan Malik & Ors. Page 28 of 38 RC-3(S)/93-DLI dt. 24.2.93 Ex. PW 8/H wherein it has been recorded that accused S.K. Giri alongwith others were leaving for outstation duty in connection with investigation of some other case. In the CD dt. 25.5.92 it has been shown that accused S.K. Giri was present in the office of Spl. Staff whereas as per DD entry he was out of station. Ld. Spl. PP thus submits that the CD was later on prepared by the accused in order to save themselves and further shows that the accused were guilty of illegally detaining Sunil Sharma. He also submitted that the case diaries were submitted in the office of ACP much later which further casts doubt about its genuineness. His argument is therefore two pronged attack on the case diary. As per Ld. Spl. PP whatever is there in the case diary in favour of the accused persons has been manipulated; and the contradictions which he has pointed out regarding presence of S.K. Giri in the office of Spl. Staff on 25.5.92 is evidence of manipulation. He also referred to the Chitha Ex. PW3/D6. He pointed out that in this duty roaster, the word 'outstation' has been cut and re-written as 'raid'. This, according to him, means that accused SI S.K.Giri was not on outstation duty.
59. On the other hand, Ld. Counsels for the accused stressed that there was no delay in sending the case diaries. They have drawn my attention to the testimony of PW3 who has admitted that the case diaries bear initials of the SHO PS Krishna Nagar acknowledging receipt of the case diaries. It shows that case diaries were deposited with the SHO promptly. They submit that it was duty of the SHO to forward the case diaries to the office of ACP and accused are not responsible for delay in that respect. Ld. Spl. PP contended that the accused persons did not call SHO PS Krishna Nagar as a CBI Vs. Ram Kishan Malik & Ors. Page 29 of 38 RC-3(S)/93-DLI dt. 24.2.93 defence witness to prove this fact. He also contended that these initials may be forged one. He relied upon AIR 1975 SC 1703 titled "Gajender Singh v. State of U.P." In this case it was held that non-examination of most material evidence to prove the defence version in a criminal case is the strongest possible circumstance to discredit the defence version. I am not impressed with this argument. A witness of the prosecution has admitted that the case diaries bear initials of SHO. This witness was not even cross-examined by the prosecution on this aspect. In these circumstance, failure of the accused persons to examine SHO PS Krishna Nagar as a defence witness does not affect their defence. There was no requirement for the defence to examine the SHO. In my view it cannot be said that there was any delay in submission of the case diaries to the SHO.
60. Regarding the contradiction coming up in the case diary as against the daily diary, Ld. Counsels for the accused submit that there is clear admission on the part of witnesses proving that accused S.K. Giri was out of station. They referred to testimony of PW3. Explaining the contents of the case diary, they submit that as it was prepared by accused Ram Kishan Malik, it might be a result of inadvertence. In the alternative they submit that it was a document prepared by one accused and thus cannot be considered against co-accused. Per contra Ld. Spl. PP submitted that accused S.K. Giri did not produce any documentary evidence regarding his being out of station and therefore adverse inference must be drawn against him. Regarding the cutting in the duty roaster, Ld. Counsels submitted that the cutting was made later on. They referred to testimony of PW11 who has admitted that when CBI Vs. Ram Kishan Malik & Ors. Page 30 of 38 RC-3(S)/93-DLI dt. 24.2.93 copy of the duty roaster was given to the I.O./PW21, the word 'outstation' was there.
61. In my view, the facts mentioned in the case diary which was prepared by accused Ram Kishan Malik cannot be considered against other accused. It can only be considered against him only. The reason is simple and that is that it was prepared by him. Even if this document is considered against other accused, at the most it shows that accused S.K.Giri was in Delhi on 25.5.1992 as against his defence of being out of Delhi from 23.5.92 to 29.5.92. This document does not prove any other fact. This does not take prosecution case anywhere. The prosecution is still required to prove the facts that Sunil Sharma was being illegally detained. Failure of accused to prove any fact in their defence does not benefit the prosecution. Further, PW11 has categorically admitted that the word 'outstation' was there when copy of the duty roaster was given to the I.O. This casts great deal of doubt on this document. Ld. Spl. PP submitted that the original of the duty roaster was to be produced by PW11 as per his undertaking given to the I.O. which is contained in Ex. PW11/A. But as PW11 has not produced the same, he should not be believed regarding what he says in respect of the word 'outstation'. Per contra, Ld. Counsels for the accused have pointed out that PW11 has straightway refused to have ever given this undertaking to the IO. They read out the testimony of PW11 to this effect. In my considered opinion, when PW11 has himself denied giving any such undertaking, the prosecution must suffer the consequences. Why the IO did not seize the original duty roaster during investigation? He could have easily done so. CBI Vs. Ram Kishan Malik & Ors. Page 31 of 38 RC-3(S)/93-DLI dt. 24.2.93 Why he left it to be produced later on? Seizure at that time could have saved the prosecution from this situation. This document is full of doubts and cannot be considered against the accused.
62. The prosecution has to stand upon its own legs. Ld. Counsels for the accused have rightly relied upon AIR 1972 SC 716 titled "Dr. S.L. Goswami v. The State of Madhya Pradesh"; 2009(4) RCR (Criminal) titled "State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede"; and 2001(3) RCR (Criminal) 766 titled "Ronal Kiprono Ramkat v. State of Haryana".
63. Ld. Spl. PP also highlighted that accused Badal Singh Kaushik had written the portion A to A on Ex.PW8/J. He argued that if it was not Badal Singh, the accused have also failed to examine the duty officer who might have written this DD entry. He submitted that PW21/IO has deposed that this DD was written by accused Badal Singh. He contended that as the IO is a CBI officer, he must be given more credit than an ordinary police official. He relied upon AIR 1974 SC 989 titledd "Som Prakash v. State of Delhi"; and AIR 1974 SC 1024 titled "Gian Singh v. State of Punjab". He also referred to AIR 1980 SC 873 titled " Hazari Lal v. The State (Delhi Admn.)". Ld. Counsels for the accused argued that accused Badal Singh has not written the DD. They also submitted that PW21 is not competent to depose regarding handwriting of accused Badal Singh.
64. Ld. Spl. PP also highlighted that in this DD NO.25 Ex.PW8/J, the accused have written the time as "7.20 Baje Din" which means 7.20 a.m. He submits that the Joint Registrar had come at 5.00 p.m. It was only thereafter that Sunil Sharma was released by the accused persons and therefore this CBI Vs. Ram Kishan Malik & Ors. Page 32 of 38 RC-3(S)/93-DLI dt. 24.2.93 shows that the DD entry was written later on and adverse inference must be drawn against them. He also pointed out the testimony of PW9 where PW9 stated that Sunil Sharma/PW8 had returned home at about 2.00 p.m. Ld. Spl. PP submitted that it was in fact 2.00 a.m. and not 2.00 p.m. According to him it could not have been 2.00 p.m. because it was only in the night that Sunil was released. He also referred to the case diary dt. 27.5.92 where the time of releasing Sunil is written as 7.20 pm. On the other hand, Ld. Counsels for the accused argued that this contradiction is of no use for the prosecution. They submit that the words "7.20 Baje Din" are of no consequence. In my view also, too much importance cannot be given to this aspect. On the contrary, from the case diary it is apparent that Sunil was allowed to go at 7.20 pm. It is also not the case of prosecution that Sunil was released in the day time.
65. There are several factors which are in favour of the accused persons. First of all, the victim PW8 has miserably failed to identify any of the accused as the offender. In his evidence in the court, he has not even spoken the names of any of the accused as the guilty persons. He further did not depose that any of the accused had kept him in custody or that any of the accused demanded any money for his release. The witness, however, has deposed that he was detained in the office of the Spl. Staff Cell from 21.5.92 to 27.5.92. The defence of the accused persons is that he was called for interrogation by serving notices on him u/s. 160 Cr.PC. These notices are Ex.PW2/B1 to B8. These bear signature of PW8 as a recipient. PW8 has explained that he was made to sign on these notices after the Joint Registrar CBI Vs. Ram Kishan Malik & Ors. Page 33 of 38 RC-3(S)/93-DLI dt. 24.2.93 had gone. But again he flatly refused to tell as to who had got these notices signed from him. Thus the witness is not speaking the complete facts. He has not deposed the whole facts before the court. I could not find any justified reason for his such behaviour. I find no force in the contention of Ld. Spl. PP that the witness felt frightened because accused persons are police officials. As already indicated above, PW8 did not make any complaint whatsoever against any of the accused regarding any threat being given to him. Thus this contention has no force. PW8, in my view, is not a witness to be believed. His testimony does not carry any weight. When PW8 is not telling as to who had got those notices signed from him or when he is not identifying any of the accused, how can he be believed when he says that he was made to sign these notices later on? How can he be believed when he says that he was being detained there illegally from 21.5.92?
66. The handwriting expert has confirmed that the names of PW8 Sunil Sharma, PW9 N.C. Sharma and PW10 Anita Sharma have been written by PW8 on Ex.PW8/J. Ld. Spl. PP had argued that this shows that PW8 was forced to write these names by the accused persons later on. Ld. Counsels for the accused referred to 2004(1) JCC 110 titled "Rakesh Kumar v. State"; and (1994) 5 SCC 152 titled "Sukhvinder Singh & Ors. v. State of Punjab". Relying upon Rakesh Kumar's case (supra), they argue that the specimen of handwriting were not taken before any court and thus the report of the handwriting expert cannot be relied upon. Hon'ble Delhi High Court in that case had held that when specimen handwriting or signatures are not taken before a Magistrate, the report of the handwriting expert cannot be acted CBI Vs. Ram Kishan Malik & Ors. Page 34 of 38 RC-3(S)/93-DLI dt. 24.2.93 upon. Hon'ble High Court relied upon the judgment of Hon'ble Supreme Court in Sukhvinder Singh's case (supra). Ld. Counsels also referred to Sec. 311-A of Cr.P.C. which provides for taking of specimen of handwriting or signatures before a Magistrate. In answer, Ld. Spl. PP referred to 1983 Cri.LJ NOC 124 (Orissa) titled "Patitapaban Panda v. State"; and 1983 Cri. LJ 1482 titled "Sher Chand v. State". In these judgments, it was held that the Magistrate had no power to obtain specimen of handwriting or signatures. In my view, now in view of the judgment of Hon'ble Supreme Court in Sukhvinder Singh's case (supra), these two judgments cannot be considered as good law. Ld. Spl. PP further argued that the judgments cited by the defence cannot be applied to the old cases and those will apply only to the new cases. This argument is also without any merit. In those cases itself, the law was applied to the pending cases. However, Ld. Spl. PP also argued that the provisions of Sec. 311-A Cr.P.C. are not to be applied in case of witnesses. As per him, it only applies to the accused. I have doubts about this submission also. The section uses the term 'any person' and not 'accused'. But, as there is no authoritative pronouncement on this issue, it will not be appropriate to express any opinion on that. Taking the contention of Ld. Spl. PP as correct; and taking into consideration the report of the handwriting expert; the prosecution case is still not completely proved. It only shows that Sunil Sharma had written all the three names. Whether this is enough? Is there no explanation from the side of the accused persons? In fact, there is.
67. The accused persons have explained that the DD register was CBI Vs. Ram Kishan Malik & Ors. Page 35 of 38 RC-3(S)/93-DLI dt. 24.2.93 manipulated later on. Ld. Counsels argue that there was no need for the accused to resort to this i.e. obtaining signatures from Sunil Sharma. There is one important fact which cannot be overlooked. This is that the DD register was not sealed when it was seized by the IO. Ld. Counsels for the accused argued that there was manipulation on the part of CBI rather than forced signatures being obtained by the accused persons. They submitted that the DD register was available with the IO of the CBI all through. The DD register was sent in unsealed condition to the handwriting expert. In my considered opinion a doubt has certainly been raised regarding this. It is unbelievable that the accused who are police officials would not have known the consequences of obtaining forced signatures of different persons by Sunil Sharma. They were not so ignorant that they did not know that this could be detected by the handwriting expert. Moreover, there was no requirement of obtaining signatures in the DD register. A certain amount of doubt does exist regarding this document. It cannot be said that there was any fabrication of DD register on the part of the accused persons. This fact has not been proved beyond reasonable doubt. I have already expressed my doubts about the testimony of PW8.
68. The prosecution has not examined Kuljeet Kaur who is the friend of PW10 and who had also gone to the PS Preet Vihar with her. There is no explanation regarding this. Another important fact is that there is no Lock Up in the Special Staff Office. There is only waiting room. The allegations were that Sunil Sharma was detained in the Lock Up at Special Staff Cell.
69. The prosecution has also failed to prove that PW8 Sunil Sharma was CBI Vs. Ram Kishan Malik & Ors. Page 36 of 38 RC-3(S)/93-DLI dt. 24.2.93 illegally detained from 21.5.92 to 27.5.92. Prosecution has also failed to prove that any demand of Rs.50,000/- was made from PW9 N.C. Sharma for releasing Sunil Sharma. PW9 has miserably failed to identify any person who had allegedly demanded any money for release of PW8. PW12 who was counsel for the PW9 has categorically deposed that son of PW9 who used to come to him between the period 21.5.92 to 27.5.92 was Sunil Sharma. This clearly shows that Sunil Sharma was not detained in the office of Spl. Staff. The defence version is also that Sunil was called for interrogation by serving notices. Thus a doubt has been created about illegal detention of Sunil Sharma. It cannot be said that prosecution has proved beyond reasonable doubt that Sunil was illegally confined.
70. PW8 deposed that he was beaten and abused during alleged illegal confinement but has not spoken the names of those who abused him and gave beatings to him. Prosecution has also miserably failed to bring any material evidence on record to show that he was beaten during said illegal confinement.
71. There is no complaint from PW8 regarding obtaining forcible signatures in the daily diary or on the notices u/s. 160 Cr.PC. Because of this reason, PW8 cannot be believed when he says that he was made to sign on that daily diary and the notices u/s. 160 Cr.PC.
72. It is also worth noting that when PW4 had visited the office of the Spl. Staff, he had left Sunil Sharma there after making inquiries. He did not produce or caused to be produced the said Sunil Sharma before any Magistrate. Had the Sunil Sharma been produced before a Magistrate, his CBI Vs. Ram Kishan Malik & Ors. Page 37 of 38 RC-3(S)/93-DLI dt. 24.2.93 detailed statement could have been recorded. It is also to be kept in mind that the statement recorded by PW4 of Sunil Sharma is not a detailed statement. As noted above it is an unattested statement. To make the matters worse, PW8 has not named any of the accused in his deposition in the court nor identified any of them. All these factors create doubt about the case of the prosecution. Benefit of this has to be given to the accused persons.
73. Taking into account the entire material on record, I hold that the prosecution has failed to prove the charges. All the accused are hereby acquitted of all the charges. Their bail bonds are cancelled and sureties are discharged. However, they are directed to furnish fresh bail bond in the sum of Rs.20,000/- each with one surety each in the like amount in terms of Sec. 437-A Cr.P.C. These bonds shall remain in force for a period of six months. Announced in Open Court today on 9th day of August, 2010 (SANJAY BANSAL) Additional Chief Metropolitan Magistrate-02/North/Delhi CBI Vs. Ram Kishan Malik & Ors. Page 38 of 38 RC-3(S)/93-DLI dt. 24.2.93