Delhi District Court
State vs . Daya Nand @ Anand on 13 April, 2022
1
IN THE COURT OF MS. SURBHI
METROPOLITAN MAGISTRATE-12, SOUTH WEST,
DWARKA COURTS, DELHI
FIR No.60/15
PS Jaffarpur Kalan
State Vs. Daya Nand @ Anand
U/s 387/506 IPC
CIS No. 28205/18
JUDGMENT
(a) CIS No. 28205/18
(b) Date of offence 14.03.2015
(c) Complainant Sh. Bijender Singh S/o Sh. Balwan Singh
(d) Accused (1)Daya Nand @ Anand
S/o Mahabir Singh
R/o VPO Mitrao, Shiv Mandir Wali gali, New
Delhi
(e) Offence 387/506 IPC
(f) Plea of accused Plead not guilty
(g) Date of Institution 26.09.2018
(h) Final Order Acquitted
(i) Date when judgment was 02.04.2022
reserved
(j) Date of judgment 13.04.2022
FIR No. 60/15 State Vs. Daya nand Page no.1 of 11
Digitally signed by
SURBHI SURBHI
Date: 2022.04.13
16:27:30 +05'30'
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, I shall dispose of the case of the prosecution based on FIR no.
60/15 PS Jaffapur Kalan against the accused namely Dayanand @ Anand S/o Mahavir Singh for the offence U/s 387/506 IPC.
FACTUAL MATRIX
2. The allegations against the accused as per the story of prosecution are that on14.03.2015 at around 10:45am to 11:15am within the jurisdiction of PS JP Kalan, he committed extortion through his mobile phone number 8010895592 by calling on the phone of complainant Bijender S/o Sh. Balwan Singh (mobile no.9968218436) and put him in fear of death or grievous hurt and thereby he dishonestly induced the complainant to deliver Rs.25lac and also criminally intimated him and thereby he committed an offence punishable u/s 387/506 IPC within the cognizance of this court.
INVESTIGATION AND APPEARNACE OF ACCUSED
3. After completion of the investigation, charge-sheet was filed u/s 387/506 IPC.
Cognizance was taken vide order dated 26.09.2018 and the accused was supplied with copies of challan along with annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 387/506 IPC was put to the accused persons vide order dated 10.12.2021 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 3 witnesses and the following documentary evidences.
Ex. PW1/A Original complaint
Ex.PW1/B as of the Arrest memo
original tehrir)
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Digitally signed by
SURBHI SURBHI
Date: 2022.04.13
16:27:50 +05'30'
Ex.PW1/C Personal search memo
Ex. PW3/A Documents in reference to recovery of mobile SIM card
Ex.PW3/B Disclosure statement of accused
5. Sh. Bijender Singh has been examined as PW1. He deposed that on 14.0302015, at about 10:54am and then again at 11:00am his paternal uncle Sh. Narender Singh had received a call demanding Rs. 25 lacs from him on his mobile no. 9968218436. He further deposed that he does not know from which number call was received and his uncle Sh. Narender Singh asked him to file complaint. He further deposed that He had informed me that the call was from a person named Anand. PW1 further deposed that he does not know who is Anand neither he had seen him.
5.1 PW1 was cross examined by Ld. APP for the State as he was resiling from his earlier statement. In his cross examined, he denied the suggestion that he had received a threat call of being shot at from mobile phone bearing no.8010895592 and that he gave complaint as Ex.PW1/A bearing his signature at point A. He denied the suggestion that he was deposing falsely as he have been won over by the accused and that accused Anand was threatening him with respect to a piece of land at Surakhpur which belonged to his grandfather and which had been divided into half acre each or accused was threatening him with respect to residual land or that inspite of PW1 having nothing to do with the land. PW1 further denied making any such statement. He further denied the suggestion that he was deposing falsely as he had been won over by the accused. PW1 further stated that he stated to the police that Anand asked him to purchase the property which was in the name of his grandfathers namely Hetram and Chetram. He further stated that Anand asked him to purchase the property of Hetram at a consideration amount of Rs.25lac or that he denied for the same. PW1 further denied the suggestion that on 15.05.2014 Anand had told him that he was lodged in Jail or that he called him and threatened to kill him if he did not pay Rs.25 lac to him. PW1 further denied making any such statement or that he was deposing falsely as he had been won FIR No. 60/15 State Vs. Daya nand Page no.3 of 11 SURBHI Digitally signed by SURBHI Date: 2022.04.13 15:49:38 +05'30' over by the accused. He further denied the suggestion that accused was arrested on his identification in his presence. PW1 stated that his signatures were obtained on a blank form. PW1 further stated that he was deposing falsely as he had been won over by the accused. PW1 further denied that accused was personally searched in his presence. He further denied the suggestion that he was deposed falsely as he had been won over by the accused. PW1 was denied making any such statement. PW1 further denied the suggestion that mobile no.9968218436 was being used by him or that he had received threat call from accused on the said number. PW1 was shown a man wearing sweatshirt of white light blue, dark blue and black having parallel stripes and white jeans. (The witness has failed to identify the accused). PW1 further denied the suggestion that he was deliberately not identified the accused as he have been won over by the accused. PW1 was discharged after Nil Cross examination.
6. Sh. Narender Singh has been examined as PW2, who deposed that on he was working as a Driver at Taj Catering, Palam and he got issued a mobile no. bearing 9968218436 which was given to his niece namely Vijender in the year 2006. PW2 was discharged after cross examination.
7. SI Mukesh Kumar has been examined as PW3 who deposed that on 15.03.2015, he was posted at PS JP Kalan as SI and on that day after registration of FIR, the present case was marked to him for investigation. He further deposed that he recorded the statement of complainant and also moved an application for collection of CDR and CAF of the complainant as well as accused. He further deposed that he had also made request of interception of the mobile number of the accused through proper channel. He further deposed that on the basis of the record of the CAF of the mobile phone number from which the offence was committed he inquired from Dharambir on whose name the number was issued but he did not remember the mobile number due to lapse of time. He further deposed that he had collected the details of CDR and CAF of the FIR No. 60/15 State Vs. Daya nand Page no.4 of 11 SURBHI Digitally signed by SURBHI Date: 2022.04.13 15:49:55 +05'30' mobile phone numbers of complainant as well as the caller from which the offence was committed. He further deposed that at the time of call of extortion, the accused who was present in the court today, was in judicial custody at Tihar Jail. He further deposed that complainant was known to the accused and identified the voice of accused himself also. He further deposed that also moved notice u./s 91 CrPC to office of the Superintendent, Central Jail no.1, Tihar, New Delhi. The said report in judicial file which was placed by him during investigation as Ex.PW3/A (running in 4 pages). He further deposed that on the basis of the statement of the complainant that he had identified the voice of the accused on his mobile phone and the circumstances PW3 arrested the accused vide arrest memo already as Ex.PW1/B bearing his signature at point B. He further deposed that personal search of accused was got conducted as already Ex.PW1/C bearing his signature at point B. PW3 further deposed that disclosure statement of accused was recorded as Ex.PW3/B bearing his signature at point A.
8. PW3 cross examined by Ld. Defence counsel. In his cross examination, he stated that he had not checked any identity documents of the complainant. He further stated that he does not remember remember whether he had issued notice u/s 160 CrPC or not to any person in this case and whether he had kept on record any identity document qua the ownership of the alleged number from which the alleged call was made. He further stated that he does not remember whether he had interrogated the person who made call or received call to the alleged number. PW3 denied the suggestion that the number on which the alleged call came was not belonging to Dharambir or that the said was belonging to Narender. He further stated that he had not seized the mobile phone as well as SIM card of the complainant or the alleged person. PW3 further stated that complainant had not placed any voice record of accused person before him or that nothing was recovered from accused. He further denied the suggestion that the complainant had never stated to him that he had identified the FIR No. 60/15 State Vs. Daya nand Page no.5 of 11 Digitally signed by SURBHI SURBHI Date: 2022.04.13 15:50:10 +05'30' accused from his voice. He further denied the suggestion that accused falsely arrested in the present case and that he was deposing falsely. PW3 was discharged after Nil Cross examination.
STATEMENT OF ACCUSED
9. Prosecution Evidence was thereon closed by the Court vide order dt. 26.03.2022 and statement of accused persons u/s 313 r/w 281 Cr.P.C was dispensed with vide order dated 26.03.2022.
ARGUMENTS
10. Final arguments were heard at length. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
11. Ld. APP for the State argued that though the complainant/PW1 has turned adverse to the Prosecution, however, his testimony can be read on material points. On the other hand, Ld. Counsel for accused argued that the state has failed to establish a case beyond all reasonable doubts against the accused persons. Ld. Counsel for accused argued that the star witness in the present matter i.e PW1, the complainant himself turned hostile and no incriminating evidence has been led out in his testimony against the accused person. The Ld. Counsel for accused further submitted that as nothing has been proved against accused, he shall be acquitted in the present matter.
12. To prove Section 387 IPC, the following ingredients need to be proved:-
(1) that the accused puts or attempts to put any person in fear of death or grievous hurt;
(2) the fear of death or grievous hurt has to be to the person put in fear or to any other person;
FIR No. 60/15 State Vs. Daya nand Page no.6 of 11
Digitally signed by
SURBHI SURBHI
Date: 2022.04.13
15:50:21 +05'30'
(3) the act of putting someone in fear of death or grievous hurt has to be done in order to committing of extortion.
13. To prove Section 506 IPC, the following ingredients need to be proved:-
(1) that the accused threatened the person with injury to his person, reputation or property;
(2) the above threatening has to be done in order to alarm the person or to cause that person to do any act which he is not legally bound to do or abstains from doing any act which he is legally entitled to do; (3) the person threatened has to do the above acts as a means of avoiding the execution of such threat given by the accused.
14. Needless to say that the burden of proof in the criminal matter on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidences pointing towards the guilt of the accused.
15. The story of the prosecution is that a call was received by the complainant on the fateful day on which a demand of Rs 25lacs was made to the complainant failing with he was threatened to be shot dead. The CDR and CAF of the alleged mobile number from which the threat call was made were obtained as per which the alleged mobile number was found to be registered in the name of one Dharambir, Statement of Dharambir was recorded in which he denied of having the alleged number. As the complainant recognized the voice of the person making the threat call, the present accused was arrested and was made an accused in the present matter. It is pertinent to mention here that when the alleged threat call was received by the complainant, the accused Dayanand was confined in Tihar Jail. A notice u/s 91 Cr.P.C. was served upon the Jail Superintendent to provide the details of the alleged Sim Number and mobile. As FIR No. 60/15 State Vs. Daya nand Page no.7 of 11 Digitally signed by SURBHI SURBHI Date: 2022.04.13 15:50:33 +05'30' per the report received from the Jail Superintendent, the mobile phone and the alleged Sim number were recovered in the general search of the jail cells, however as the investigation progressed, the alleged Sim number was found not available with the Jail Superintendent.
16. The prosecution to prove its case examined 3 witnesses. The star witness in the present matter is PW1 i.e., the complainant himself who has received the threat call and who also recognized the voice of the threat caller and on whose instance, Dayanand was made an accused in the present matter. PW1 in his testimony turned adverse to the prosecution and did not support the prosecution theory. PW1 denied having received any threat call himself and deposed that the threat call was received by his uncle namely, Sh. Narendra Singh who asked him to register an F.I.R. PW1 also denied knowing the present accused Dayanand.
17. PW1 was cross examined by Ld. APP for the state and in his cross examination, he denied making complaint to the police and in fact denied making any statement to the police even under section 161 Cr.P.C. PW1 in his cross examination stated that his signatures were obtained on some blank papers and that no proceedings whatsoever has been conducted qua the accused in his presence. PW1 also failed to identify the accused.
18. It is pertinent to mention that under Indian Evidence Act, the evidence of hostile witness is not discarded completely and can be relied upon in part as the legal maxim, "false in uno false in omnibus" is not applicable in India. The Apex Court in the case of Rohtash Kumar Vs. State of Haryana (2013) 14SCC 434, held as under:-
25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected FIR No. 60/15 State Vs. Daya nand Page no.8 of 11 Digitally signed by SURBHI SURBHI Date: 2022.04.13 15:50:51 +05'30' in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
19. In the present case, the evidence available on record is not sufficient to help the prosecution. PW1 only stated that on 14.03.2015 around 11:00am his uncle received a call demanding Rs.25 lacs. He further stated that he does not know from which number the call was received and that he has lodged the complaint on instruction of his uncle namely Sh. Narender Singh who told him that the said was received from one person named Anand . He denied having known or seen the person named Anand. In his cross examination by the Ld. APP for the State, he denied making complaint to the police or making any statement u/s 161 CrPC to the police. He also denied the fact that accused was arrested or personally searched in his presence. The PW1 also failed to identify the accused.
20. PW2 in his deposition stated that he has got issued mobile number 9968218436 however, the same has been given to his niece namely Bijender in the year 2006. This is the same mobile number on which the threat call was received and as per the testimony of PW2, this mobile number was in possession of the complainant on the fateful day.
21. PW3, the IO concerned in the present matter deposed in his examination in chief that he has collected CDR and CAF of mobile phone numbers of the complainant as FIR No. 60/15 State Vs. Daya nand Page no.9 of 11 Digitally signed by SURBHI SURBHI Date: 2022.04.13 15:51:03 +05'30' well as the threat caller from which the offence was committed. PW3 in his deposition stated that complainant had identified the voice of the accused and therefore, the present charge-sheet was filed against him. In his cross examination, PW3 stated that he does not remember whether any ownership document qua the alleged number has been taken on record by him neither he remembers whether the person on whose name the alleged number was registered is being interrogated by him or not. He also deposed that he has never seized the mobile phone or the SIM card of the complainant or the alleged person. PW3 further deposed that no voice sample whatsoever has been taken qua the accused by him.
22. On the basis of the testimony of PW2, and taken into consideration the CDR and CAF, even if it is taken that a call from the alleged number was received by the complainant on the fateful day, however how that alleged number is connected to the present accused is not clear. There is no link of the present accused with the alleged number. Further, PW1 in his deposition specifically stated that he did not receive any threat calls whatsoever. PW1 also denied knowing the present accused and failed to identify him in the court. It is the story of the prosecution itself that the present accused was implicated in the present matter only on the instance of PW1 as he stated in his complaint that he recognized the voice of the threat caller. Though as per the documents received from the Jail Superintendent, the alleged mobile number was recovered in the general surprise search conducted in the ward number 1 of Tihar Jail, however no proof whatsoever has come on record to prove that the same was recovered from the possession of the present accused only. It is undisputed that beside the statement of PW1, there is no evidence on record which connects the accused with the alleged mobile Number and therefore, even if the testimony of hostile witness is considered partly, the identity of the accused as well as the link of the accused with the alleged number was not at all established by the Prosecution, let alone establishing it beyond reasonable doubt.
FIR No. 60/15 State Vs. Daya nand Page no.10 of 11
Digitally signed by
SURBHI SURBHI
Date: 2022.04.13
15:51:19 +05'30'
23. No incriminating evidences have come on record against the accused person let alone proving the present case beyond reasonable doubt. Rather, the PWs did not depose anything to suggest the complicity of the accused in the present offences. Nothing fruitful could be elicited from the cross examination of PWs by the prosecution so as to impute any motive against them regarding their hostile testimonies.
Conclusion
24. As nothing come on record against the accused in the present matter, the prosecution failed to prove the guilt of the accused beyond all reasonable doubts, resultantly, the accused Dayanand @ Anand is hereby found not guilty and stands ACQUITTED for the offence u/s 387/506 IPC. The B/B & S/B, if any stands discharged.
25. The original documents of the sureties, if any on record, be released to the said surety after cancellation of the endorsements thereupon as and when so applied.
26. File be consigned to record room after due compliance.
Digitally signed by SURBHI Announced and Signed in the Open Court SURBHI on 13.04.2022 Date: 2022.04.13 15:51:34 +05'30' (Surbhi) MM-12/DW/SW/New Delhi 13.04.2022 FIR No. 60/15 State Vs. Daya nand Page no.11 of 11