Delhi District Court
State vs 1. Ram Kishan on 9 November, 2022
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA
SPECIAL JUDGE: (PC ACT):(ACB-01):
RADC: NEW DELHI
CC No.123/2019
CNR No.DLCT11-000552-2019
FIR No. : 1447/2015
U/s : 384/342/34 IPC & 7/13(1) (d) PC Act
PS : Shakarpur
State VERSUS 1. Ram Kishan
S/o Sh. Tapesh Kumar
R/o H. No. D-919, D-
Block, East Gokalpuri,
Shahdara, Delhi-94.
2. Ashwani Kumar @
Ashwani Tyagi
S/o Sh. Brijeshwer Kumar
R/o Quarter no. 30, Police
Staff Quarters, Ashok Vihar,
Delhi.
Permanent address :
Village Chobli, PS Chaproali,
District Bhagpat, U.P.
3. Devi Shankar Mishra @
Pappu
S/o Sh. Shiv Balak Mishra
R/o 3/123, Lalita Park, Laxmi
Nagar, Delhi-92.
Permanent address :-
577, Manehrupure Gopal, PS
Bhadokar, Post:- Belakhara,
Rai Bareli, UP.
Date of Institution : 18.04.2017
Date of Arguments : 09.11.2022
Date of Judgment : 09.11.2022
____________________________________________________________________________________________
FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 1 of 73
JUDGMENT
1. Brief facts of the present case as per the chargesheet are that on 03.07.2015, the complainant Om Prakash approached the office of ACP/DIU, East District and informed that one of his known person namely Rahul is being detained at a PG Hostel situated in Gali No. 3, Lalita Park by HC Ram Kishan and HC Ashwani Tyagi. ACP Shiv Dayal asked the complainant to reach near PS Shakarpur and also asked Insp. D.P. Singh and Insp. Sunil to reach there. At about 08:30 pm, complainant reached near PS Shakarpur where Insp. D.P. Singh of DIU, East District also reached alongwith staff. They alongwith complainant reached at PG Hostel at about 09:00 pm, but Rahul was already released by HC Ram Kishan and HC Ashwani Tyagi. Thereupon, complainant got recorded his statement.
2. The gist of the complaint is that the complainant Om Parkash runs a manufacturing unit of readymade garments at Gali no. 3, Gandhi Nagar and on 03.07.2015 at about 01:00 pm, when he was near Palam Airport, he received a call of his employee Vijay on his mobile phone, who told him that Shakarpur police had apprehended his relative Deepak in some case and he gave him the mobile number of HC Ram Kishan i.e. 9013277463 and asked him to talk with him. Thereupon, complainant made a call from his mobile number i.e. 8826288091 to HC Ram Kishan and enquired from him about the matter of Deepak, on which, he told him that Deepak alongwith his two friends were ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 2 of 73 issuing fake receipt of Chanda (donation). HC Ram Kishan called the complainant at a PG Hostel, Gali No. 3, Lalita park and asked him to make a call after reaching at Gali no. 3. After reaching at Gali no. 3, complainant made a call to HC Ram Kishan and he brought him to a room situated in the backside of the office of PG Hostel, where he saw that Deepak was sitting alongwith his two friends who were not known to him. In the office which was towards outside, one police official was present in civil dress to whom Mishra, the manager of PG Hostel was addressing as Tyagi. HC Ram Kishan told him to talk with Deepak and his friends, on which Deepak told him that he alongwith his friends Bunty and Rahul had gone to a shop of Bisleri water supplier for taking Chanda for organizing a Bhandara at Hanuman Mandir, ITO but the owner of the shop called the police and two police officials brought them in a PG Hostel situated at Gali no. 3, Lalita Park.
3. Complainant told to the police official on whose uniform the name plate of HC Ram Kishan was appearing that there is no fault of Deepak and his friends and if they had done anything wrong, then to detain them in PS. Thereupon HC Ram Kishan brought him outside the office of PG Hostel and asked him that in case he wants to get Deepak and his friends released, he would have to pay Rs.50,000/-. Complainant refused to give the money and after coming on the road from the office he came near his vehicle, in the meantime, HC Ram Kishan sent one boy to call him. He again came to HC Ram Kishan in the same office. At that time, one person was watching TV while ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 3 of 73 lying on the sofa who was wearing pant and belt of police official and white colour t-shirt, enquired from HC Ram Kishan about the deal, on which HC Ram Kishan asked him while saying "Ashwani Tyagi tu khud hi puch le". On this Ashwani Tyagi asked HC Ram Kishan when the deal could not be done through him, how it can be done by him. Thereupon HC Ram Kishan and Tyagi started bargaining with him for releasing Deepak and his two friends. HC Ram Kishan in presence of Ashwani Tyagi enquired from him that how much money he can give for releasing Deepak and his friends and how much money he was carrying at that time. On this, complainant took out cash from his pocket and while counting informed them that at that time he was having only Rs.8,000/- and just thereafter, Tyagi snatched Rs.8,000/- from his hand and handed over the same to Mishra, Manager of PG Hostel. HC Ram Kishan and Tyagi both told him to take Deepak and Bunty with him and asked him to bring Rs.12,000/- more to get Rahul released who was detained by them. After about 1- 1½ hours, HC Ram Kishan made a call on his mobile phone and enquired from him why he had not come with money till that time, on which he told him that Bunty is coming to them with money. HC Ram Kishan made 2-3 phone calls during the said period to enquire why he had not reached there with money and every time he told him that Bunty is coming with the money. He also recorded the telephone call of HC Ram Kishan in his mobile phone. On the basis of this complaint, present case FIR was registered. Further investigation was carried out and the present chargesheet has been filed against them for offence ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 4 of 73 U/s 384/342/34 IPC and 7/13(1)(d) PC Act. Cognizance of the offence was taken against both the accused on 28.04.2017.
4. Thereafter, accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi were summoned and after hearing the arguments on charge, charge for the offence under Section 120B IPC, Section 384/120-B IPC, Section 342/120-B IPC and Section 7/13(1)(d) of PC Act r/w Section 120B IPC was framed against both the accused, vide order dated 04.09.2017, to which they pleaded not guilty and claimed trial.
5. The third accused Devi Shankar Mishra @ Pappu was summoned in the present case by Ld. Predecessor of this court, vide order dated 09.07.2018, on an application filed under section 319 Cr.P.C. by Ld. Addl. PP for the State. Thereafter, charge for the offence punishable under section 120B IPC r/w Section 384/342 IPC and Section 7/13(1)(d) of PC Act, Section 384/120B IPC, Section 342/120B IPC and Section 7/13(1)(d) of PC Act r/w Section 120B IPC was framed against accused Devi Shankar Mishra @ Pappu to which he pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined 20 witnesses. After framing charge against accused Devi Shankar Mishra @ Pappu, Ld. Defence Counsel for accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi as well as Ld. Defence counsel for accused Devi Shankar Mishra @ Pappu gave statement that they do not wish to recall PW-1 Vijay Singh for further cross- ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 5 of 73 examination. The brief summary of the evidence of prosecution witnesses is as under :-
7. PW-1 Vijay Singh deposed that he deals in property business and also used to look after the land of the complainant Om Prakash who owns land at Garh in Pipla Bandhpur, Syana, Bullandsahar which is his native place. He further deposed that on 03.07.2015, he received a call on his mobile phone no.8791434299 from his distant relative Deepak Sharma who informed that he alongwith his friends had been detained at PS Shakarpur by HC Ram Kishan and one other and HC Ram Kishan was demanding money for their release. He further deposed that he received a call on his mobile number and the caller introduced himself as Ram Kishan and asked from him whether he knew Deepak on which he replied that he knew him. PW-1 further deposed that Ram Kishan told him that he was calling from PS Shakarpur and that he had apprehended Deepak and his friends as they had committed theft, on which he replied that if they had committed any wrong, they be punished in accordance with law. He further deposed that thereupon he made a call to Deepak and enquired about the incident and Deepak told him that he had not committed any theft and in fact they were collecting Chanda and for that reason he alongwith his friends Rahul and Bunty had been apprehended by Ram Kishan and to release them police officials were demanding Rs.50,000/-. PW-1 further deposed that he called Om Parkash and apprised him about the demand and also gave him the number of Ram Kishan and asked him to talk to Ram Kishan.
____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 6 of 73 In his cross examination by Ld. Addl. PP for the State, PW-1 confirmed that the mobile number of accused Ram Kishan is 9013277463 and that Deepak had called him from mobile no.8587937685. He further confirmed that when he asked Ram Kishan that if Deepak and others had committed wrong, they should be sent to jail, accused Ram Kishan told him that such things cannot be discussed on phone and that if Deepak and his associates are to be released, he must arrange Rs.50,000/- immediately and should reach Lalita Park, Shakarpur and to call him after reaching Lalita Park.
In his cross-examination by Ld. Defence Counsel for accused Ashwani, PW-1 deposed that he received the phone call from Deepak at about 11:00-11:30 am on 03.07.2015 and volunteered that Deepak had made only one call to him on that day and the second call was not of Deepak but was of accused Ram Kishan. He further confirmed that he is parental uncle-in-law (Chachiya Sasur) of Deepak and that he does not know Rahul and Bunty personally.
In his cross-examination by Ld. Defence counsel for accused Ram Kishan, PW-1 deposed that he had stated to the police in his statement U/s 161 Cr.P.C. that Deepak had informed him that he alongwith his friends had been detained at PS Shakarpur by HC Ram Kishan and one another and the witness was confronted with statement Mark-PW1/DA where word "police station" is not so recorded.
8. PW-2 Om Prakash was initially examined on 06.10.2017 and after recording his evidence, he was again ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 7 of 73 summoned after accused Devi Shankar Mishra @ Pappu was summoned U/s 319 Cr.P.C. In his initial statement recorded on 06.10.2017, he deposed that he was running a readymade garment manufacturing unit at Gali no. 3, Dharampura, Gandhi Nagar in the name and style of J.D.K. Enterprises. He further deposed that on 03.07.2015, at about 12:00 noon, while he was in the area of Palam Airport, he received a call on his mobile phone no.8826288091 from his employee Vijay, who informed that his relative Deepak had been detained by HC Ram Kishan and one another of PS Shakarpur. He further deposed that Vijay had also given him one mobile number whose last three digits were 901 which was belonging to HC Ram Kishan and had asked PW-2 to talk to Ram Kishan on the given number. PW-2 called at the given number from his aforesaid mobile number and enquired from Ram Kishan whether he had apprehended Deepak and reason of apprehending, to which Ram Kishan replied that Deepak alongwith his two friends was collecting donation by issuing receipts and Ram Kishan also asked PW-2 to reach Gali no. 3, Lalita Park and instructed him to call him after reaching there. PW-2 further deposed that thereafter, he reached the aforesaid address and called HC Ram Kishan who asked him to reach PG Hostel, Lalita Park and provided location and accordingly, PW-2 reached PG Hostel and met Ram Kishan and other accused person whose name he subsequently came to know as Tyagi who was lying on a sofa and watching TV. During his deposition in the Court, PW-2 correctly identified accused Ram Kishan and Ashwani Kumar. He further deposed that ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 8 of 73 Manager Mishra of PG Hostel was addressing the second accused as Tyagi who was not wearing the uniform of police but wearing Khaki pant and white T-shirt. He further deposed that he was taken to one room located at the backside of the hostel where he found Deepak and his two friends namely Rahul and Bunty and thereafter, he talked to Deepak, who informed that he alongwith his friends were collecting donation for Bhandara at Hanuman Mandir, ITO. He further deposed that he told Ram Kishan to send those boys to jail if they had committed wrong otherwise they should be released and thereafter, PW-2 alongwith Ram Kishan came to the office of PG Hostel and accused Ram Kishan demanded Rs.50,000/- for releasing Deepak and his two friends and PW-2 refused to give money and came out from the office near his car where one boy came and told him that he is being called by accused persons and thereafter, again he went to the office of PG Hostel where accused Tyagi asked Ram Kishan "kya baat bani" to which Ram Kishan told Ashwani Tyagi to enquire himself. PW-2 further deposed that thereafter, accused Ashwani Tyagi told Ram Kishan that if he is not able to handle it, how can he handle the same and thereafter, both accused started negotiating with PW-2 and settled for Rs.20,000/-. He further deposed that accused Ram Kishan asked in presence of Ashwani Tyagi "aap inko chudwane ke liye kitne paise de sakte ho "
and how much money was in the pocket of PW-2 thereafter, PW-2 took out cash of Rs.8,000/- from his pocket and told them that he had Rs.8,000/- at that time, thereupon, accused Ashwani Tyagi snatched cash ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 9 of 73 Rs.8,000/- from the hands of PW-2 and handed over to Mishra, Manager of PG Hostel. Thereafter, accused persons asked PW-2 to take Deepak and Bunty with him and to bring remaining amount of Rs.12,000/- to take the custody of third boy Rahul who was kept with them. He further deposed that accused Ram Kishan made a telephonic call to PW-2 after one and a half hour and asked "paise leke abi tak kyu nahi aye " to which PW-2 replied that "Bunti paise le ke poch raha hai". He further deposed that accused Ram Kishan made him calls 2-3 times and PW-2 made efforts to record the conversation on telephone with accused Ram Kishan but the same could not be recorded. Thereafter, PW-2 went to office of DIU alongwith Deepak and Bunty and met ACP Shiv Dayal to whom he told about the entire incident. He further deposed that he alongwith ACP Shiv Dayal went near PS Shakarpur and from there went to PG Hostel but Rahul was not present there, thereafter, he alongwith Deepak, Bunty, ACP Shiv Dayal, Insp. D.P. Singh and other staff came to PS Shakarpur where his complaint Ex.PW2/A was written and the FIR was registered. He further deposed that at about 02:00 or 02:15 am, they went near PG Hostel where accused Ram Kishan was apprehended and brought to PS vide arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. PW-2 was cross-examined by Ld. Addl. PP for the State regarding mobile phone number of accused Ram Kishan and during the cross-examination by Ld. Addl. PP for the State, PW-2 admitted that accused Ram Kishan had called him from mobile phone no.9013277463 which he ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 10 of 73 was using on the date of incident.
PW-2 Om Parkash was again summoned and examined on 21.01.2019 in pursuance to summoning of third accused Devi Shankar Mishra @ Pappu U/s 319 Cr.P.C. wherein PW-2 had reiterated the facts as deposed by him in his earlier statement recorded in the court on 06.10.2017.
However, PW-2 had been cross-examined by Ld. Addl. PP for the State and during the cross-examination he denied the suggestion that accused Ashwani had snatched Rs.8,000/- from his hand and handed over the same to Manager of PG Hostel namely Devi Shankar Mishra. He further deposed that he is unable to identify Devi Shankar Mishra, Manager of PG Hostel. During the cross- examination by Ld. Addl. PP for the Sate, he confirmed that accused Ram Kishan and Ashwani Tyagi illegally detained Bunty, Deepak and Rahul in PG Hostel, Gali no. 3, Lalita Park and threatened to implicate them in a false case and on this pretext, they demanded Rs.20,000/- from PW-2, out of which they obtained Rs.8,000/- and demanded remaining Rs.12,000/- from him.
PW-2 was cross-examined on behalf of accused Ram Kishan and Ashwani and during the cross- examination, he denied that no PG hostel was situated in Gali no. 3, Lalita Park, Laxmi Nagar, Delhi. He further deposed that the recording of telephonic conversation was available in his mobile phone when it was taken by the police officials from him and the same was returned to him after 3-4 days. He further deposed that he, Deepak and ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 11 of 73 Bunty were made to sign some papers in DIU office but he does not remember the nature of those papers. He denied the suggestion that accused Ram Kishan was not arrested in his presence at any point of time or that Ram Kishan was not arrested outside from the guest house. However, he admitted that accused Ashwani was not arrested in his presence. He further admitted that he has seen accused Ram Kishan and Ashwani only during the court proceedings after 03.07.2015. He denied that Rahul, Deepak and Bunty were never confined by accused Ashwani and Ram Kishan at any point of time or any PG Hostel on 03.07.2015 or that they were not found present in any PG Hostel in Gali no. 3, Lalita Park, Laxmi Nagar on 03.07.2015 or that Bunty and Deepak were never sent alongwith PW-2 nor Rahul was ever detained further by both the accused. He further denied that accused Ashwani and Ram Kishan never stated him to take Deepak and Bunty from there and never asked to bring Rs.12,000/- or that no such amount of Rs.20,000/- was ever demanded by accused Ashwani and Ram Kishan for releasing anybody or for releasing Bunty, Deepak and Rahul. He denied that the telephonic conversation available in the mobile phone was deleted by the IO at his instance.
9. PW-3 Bunty Sharma was also initially examined on 12.02.2018 and after recording his evidence, he was again summoned after accused Devi Shankar Mishra @ Pappu was summoned U/s 319 Cr.P.C. In his initial statement recorded on 12.02.2018, he deposed that he was in the business of supply of biscuits and namkeen in the different ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 12 of 73 areas of Delhi. He further deposed that he does not remember the date, month and year but 2½ years prior to 12.02.2018, he alongwith his nephew Deepak and Rahul was collecting Chanda by issuing receipt for the Bhandara at Hanuman Mandir, ITO and had gone to Shakarpur area at shop of Water Supply Bisleri. He further deposed that the owner of aforesaid shop took them to some nearby unknown place in an office where he found two police officials whose names he came to know as Tyagi and Ram Kishan. PW-3 while deposing in the court has correctly identified both the aforesaid accused persons. He further deposed that the accused Ashwani Tyagi who was wearing white colour shirt with police uniform pant and accused Ram Kishan who was in police uniform, gave beatings to him, Deepak and Rahul and accused Ram Kishan had demanded Rs.50,000/- for releasing them from custody and had threatened to falsely implicate PW-3 and his friends in a theft case if the demand is not fulfilled. He further deposed that his nephew Deepak called his paternal uncle-in-law (Chachia Sasur) and accused persons talked to him over telephone and thereafter, uncle in law had sent one Sarvesh to the police station with money and Rs.8,000/- was given to accused Ram Kishan though the demand was of Rs.50,000/-. He further deposed that conversation between accused and Sarvesh was got recorded in the mobile by Sarvesh and thereafter, he and Deepak were released for arranging remaining amount demanded by accused but Rahul was detained by the accused persons. He further deposed that thereafter they had gone to police office ITO and complaint was made and ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 13 of 73 in the meantime, call was received from the accused and the same was made them to hear wherein the accused persons were demanding the money. He further deposed that they were confined in an office of either a property dealer or of a guest house at Shakarpur. He further deposed that they came back to that office at Shakarpur where they were confined alongwith police officials from PS Shakarpur, his uncle who had brought money, PW-3 and Deepak. He further deposed that accused Ram Kishan was present there. He further deposed that as they reached the spot, accused Ashwani Tyagi left the place and accused Ram Kishan was apprehended and was taken to PS. He further deposed that Rahul was found confined there.
PW-3 was cross-examined by Ld. Addl. PP for the State wherein he admitted that the occurrence is of 03.07.2015 when he alongwith his nephew Deepak and Rahul had gone to Lalita Park, Main Road Laxmi Nagar, Delhi and the shop owner had called the police and accused persons had come there. He further admitted that thereafter, accused persons took all three in a PG Hostel, Gali no. 3, Lalita Park and were made to sit in a small room behind the office and door was locked. He further admitted that when they asked about their fault, both the accused persons became angry and started to frighten them and told that they should arrange for Rs.50,000/- to save themselves from going to jail. He further admitted that accused Ram Kishan asked Deepak to get arranged Rs.50,000/- from any known person and made him to call in this regard. He further admitted that Deepak provided ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 14 of 73 telephone number of his relative Vijay on which Ram Kishan had called from his mobile number and told Vijay that Deepak and his two associates have been detained for committing crime for issuing fake receipt and if he wants to get them released, he will have to bring Rs.50,000/- in Gali no. 3, Lalita Park. He further deposed that Deepak had not called Vijay rather he had provided his number and this occurrence had taken place at about 12:00-12:30 noon. He further admitted that on the same day at about 02:00- 02:15 pm, Om Parkash had come there and not Sarvesh which he had stated earlier. He further admitted that Om Prakash took out Rs.8,000/- from his pocket and accused Ashwani Tyagi took the amount of Rs.8,000/- from Om Parkash and handed over the same money to Mr. Mishra, Manager of PG Hostel. He further admitted that accused Ram Kishan and Ashwani Tyagi had asked Om Parkash to take Deepak and PW-3 with him and to bring Rs.12,000/- after managing and thereafter to take Rahul and thereafter, Om Parkash left that place with PW-3 and Deepak.
PW-3 Bunty Sharma was again summoned on 11.11.2019 in pursuance to order dated 09.07.2018 U/s 319 Cr.P.C. and on that day, he deposed that he does not remember anything regarding the present case except that he alongwith his nephews Rahul and Deepak had gone to Laxmi Nagar to collect donation for Bhandara and where they entered in some office and demanded donation from the concerned person/attendant of the office who called the police and thereafter, 3-4 police persons came there and made enquiries from PW-3, Rahul and Deepak and that ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 15 of 73 they apprised the police officials that they had come to collect donation for Bhandara and thereafter, the police officials released them from the office.
As PW-3 did not support the case of the prosecution after he was re-called after summoning of co-accused Devi Shankar Mishra U/s 319 Cr.P.C. and resiled from his previous statement recorded in the court and therefore, he was cross-examined by Ld. Addl. PP for the State. During the cross-examination by Ld. Addl. PP for the State, he deposed that he does not remember the name of the accused persons/police officials were Ram Kishan and Ashwani Tyagi who had come to the office of water supplier, however, he had identified both the accused persons in the court today as well as on 12.02.2018. He admitted that accused Ram Kishan and Ashwani Tyagi had taken PW-3 alongwith Deepak and Rahul in an office of PG Hostel situated in Gali no. 3, Lalita Park and confined them in a small room behind the office. He denied the suggestion that both the police officials had threatened them to implicate them in a false case. He further denied that when they asked about their mistake, both the police officials became angry and threatened them and also asked to arrange Rs.50,000/- if they wanted to save themselves from going to jail.
10. PW-4 Rahul Sharma was also initially examined on 22.03.2018, 16.04.2018 and he was again examined after accused Devi Shankar Mishra was summoned U/s 319 Cr.P.C. In his initial statement, PW-4 Rahul Sharma deposed that on 03.07.2015, he alongwith his uncle Bunty ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 16 of 73 and maternal uncle Deepak was collecting Chanda to facilitate the function at Hanuman Mandir and at about 10:30 to 11:00 am, they reached in a shop of water supplier in the area of Laxmi Nagar but he called the police and on his call two police officials whose name later on revealed as Ashwani Tyagi and Ram Kishan, reached there and they took them firstly in another shop of same supplier where they were beaten with Danda, fists and kicks and thereafter, they were taken in a PG in the area of Lalita Park, Gali no. 3 and were taken in a small room at the backside of the office and were locked there and both the accused had demanded Rs.50,000/- bribe from them for their release, failing which they threatened them for sending in prison. PW-4 further deposed that they asked the accused persons as to what was their fault but they did not care and they persistently demanded the money and accused Ram Kishan told Deepak to give the telephone number of his known so that the demand could be communicated to him on which Deepak gave the mobile number of his father-in-law Vijay to accused Ram Kishan who made a call to him and asked him to arrange Rs.50,000/- and to come with the money at Lalita Park so that they can be released. PW-4 further deposed that they remained locked in the said small room and at about 02:30-03:00 pm, one Om Parkash came there and accused had also demanded Rs.50,000/- from Om Parkash for their release and finally Om Parkash gave Rs.8,000/- which was taken by accused Ashwani Tyagi and then only two persons namely Deepak and Bunty were released and he remained confined in the said room as accused told the ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 17 of 73 said Om Parkash that he would be released only after the receipt of Rs.12,000/-. He further deposed that thereafter, both the accused persons kept eating meat in the office and they were also torturing him and when for some time they went outside of the office, he on taking the opportunity fled away from the office.
In his cross-examination by Ld. Addl. PP for the State, PW-4 confirmed that when Om Parkash took out Rs.8,000/- from his pocket and was counting the money, accused Ashwani Tyagi took the amount of Rs.8,000/- from Om Parkash and handed over the same to the manager of PG namely Mr. Mishra.
PW-4 was again examined after summoning of accused Devi Shankar Mishra U/s 319 Cr.P.C. but he took U-Turn and deposed that when his uncle Deepak made a phone call to some known person, they were released from PG and that he has not seen accused Devi Shankar Mishra in the PG at any point of time. He was cross-examined by Ld. Addl. PP for the State at length after drawing his attention towards his deposition recorded in the court on 22.03.2018 and 16.04.2018 and to specific incriminating circumstance, the witness dared to reply that he had not deposed so. He denied the suggestion that he has been won over by the accused and therefore, denying his testimony recorded in the court on 22.03.2018 and 16.04.2018.
11. PW-5 HC Rahul Kumar deposed that on 03.07.2015, he was posted as constable/Chittha Munshi at PS Shakarpur and on that day HC Ram Kishan and HC Ashwani were deputed in the beat of Lalita Park. He ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 18 of 73 further deposed that according to record, both accused persons had not made their departure entries of that day in the PS and it was their sole responsibility to make their departure entries before leaving the PS for duty. He further deposed that on 06.07.2015, ACP Shiv Dayal had called PW-5 at DIU East office where he had informed him the address of HC Ashwani as village Chaubli, PS Chapraoli, District Baghpat, U.P. He further deposed that he had also handed over the copies of aforesaid Chittha of that day to ACP Shiv Dayal which had been seized through seizure memo Ex.PW5/A vide documents Ex.PW5/B. He further deposed that HC Ashwani was also known as "Tyagi".
On being asked a leading question by Ld. Addl. PP, PW-5 admitted that the PIS number of HC Ram Kishan was 28891675 and PIS number of HC Ashwani was 28061487. He further admitted that HC Ram Kishan was using mobile no.9013277463 and HC Ashwani was using mobile no.7838381858 on that day.
12. PW-6 ASI Sanjay Sharma deposed that on 14.07.2015 while he was posted as ASI in the SIP Branch, East District, he had handed over the posting details of accused Ram Kishan and Ashwani Kumar as per which, on 03.07.2015, both the aforesaid accused persons were posted at PS Shakarpur, vide bio-data Ex.PW6/A. He also produced the original record with regard to the said entries which are Ex.PW6/B and Ex.PW6/C of accused Ram Kishan and Ashwani Kumar respectively.
13. PW-7 ASI Munesh Kumar was the duty officer on 03.07.2015 at PS Shakarpur and he had recorded the ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 19 of 73 present FIR Ex.PW7/A on the basis of rukka handed over to him by ACP Shiv Dayal. He deposed that he had made endorsement Ex.PW7/B on the original rukka. He also proved the certificate under section 65B Indian Evidence Act regarding the present FIR which is Ex.PW7/C. He further deposed that on 03.07.2015, he had lodged a Kaymi DD entry with regard to registration of this case vide DD no.24. He further deposed that as per Rojnamcha- B, there was no arrival and departure entry of accused persons on 03.07.2015, vide copy of Rojnamcha-A and B Ex.PW7/A.
14. PW-8 ASI Vinod Kumar deposed that on 15.09.2015, IO had arrested Ashwani Kumar in DIU office, vide arrest memo Ex.PW3/DA and his disclosure statement Ex.PW8/A was also recorded by the IO.
15. PW-9 Retired ACP Shiv Dayal is the IO to whom firstly complainant approached and as per his testimony, on 03.07.2015, he was posted as ACP, DIU East and around 06:00/06:30 pm, Om Parkash complainant came to his office and informed him that his known one Rahul has been held captive by police officials of PS Shakarpur in a PG in Lalita Park. PW-9 further deposed that he directed complainant to meet him near PS Shakarpur and he also directed Insp. D.P. Singh and Insp. Sunil to reach near PS Shakarpur. PW-9 further deposed that at about 08:30 pm, they accompanied the complainant to PG house in Gali no. 3, Lalita Park, Shakarpur and on reaching there they came to know that the captive persons had already been released by the police officers at about 06:30 pm. He further ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 20 of 73 deposed that the statement of complainant Ex.PW2/A was recorded and he prepared the rukka and got the case FIR registered and thereafter, he again proceeded for the spot alongwith the complainant, Rahul, Bunty and Deepak alongwith police staff at the spot where accused Ram Kishan was arrested, vide memo Ex.PW2/B. PW-9 further deposed that during investigation, he also obtained the CDRs and CAFs of mobile numbers of concerned persons including accused persons.
In his cross-examination, he confirmed that Om Parkash was not known to him prior to 03.07.2015 and that he had not chargesheeted the accused Devi Shankar Mishra as there was no evidence against him. He further confirmed that he did not verify from the office of SHO, PS Shakarpur or from the duty officer as to whether copy of FIR of the present case was sent to the court of Ld. Special Judge within 24 hours or not. He confirmed that the printouts of the FIR were not possible to be taken out without freezing of FIR on CIPA/CCTNS. During cross- examination by Ld. Defence Counsel, the attention of the witness was drawn towards the photographs Ex.PW2/DA but the witness was unable to tell that day whether the said P.G. Hostel was situated in the building shown at point A in all the three photographs. To a specific question, PW-9 deposed that as the office of the sanctioning authority i.e. DCP, East was in the same building, hence, he took the file with all material documents himself to the office of DCP, East for seeking prosecution sanction in this case.
16. PW-10 W/SI Madhubala has proved the bio-data of ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 21 of 73 accused Ram Kishan Ex.PW10/A and bio-data of accused Ashwani Kumar Ex.PW10/B. She produced the posting register of police officials and proved the posting details of both the aforesaid accused persons, vide Ex.PW6/C and Ex.PW6/B.
17. PW-11 Deepak Sharma deposed that he supplies grocery items to earn his livelihood. He further deposed that he alongwith Bunty and Rahul went to Laxmi Nagar on 3rd July to collect donations for Bhandara at Hanuman Mandir, ITO where one person was sitting inside an office of supplier of bottled water to whom he asked for donations. He further deposed that the person who was sitting there asked him to sit down and called the police and two police persons came there and they asked from them as why they had come on which they told them that they had come to collect donations for the Bhandara. He further deposed that the two police officials made them to sit there and asked to provide the phone numbers of his known persons and to call them there. He further deposed that he made a telephone call to his father-in-law Sh. Vijay at Pilakhuwa and apprised him about the situation. He further deposed that the police officials also spoke to his father in law and told that they had apprehended them while collecting donations and asked his father in law to come to Lalita Park. He further deposed that his father in law spoke to his known person and that known person called the police official and spoke to him and one person who was supplying water and thereafter, they were let off at around 12-12.15 noon. He further deposed that the next ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 22 of 73 day again they were called at some office at Ghazipur and were asked to sign certain papers and they had signed those papers. He further deposed that two police officials are present in the court while pointing out towards accused Ram Kishan and Ashwani Kumar. However, he stated that he does not know their names.
PW-11 was cross-examined by Ld. Addl. PP for the State as he resiled from his previous statement. During the cross-examination by Ld. Addl. PP for the State, he has shown his ignorance about the identity of accused persons by name however identified them by face. He further deposed that he cannot admit or deny as to whether the name of the police official who was wearing the police uniform was HC Ram Kishan and the other police official who was in the white T-shirt and khakhi pant with police belt was HC Ashwani Kumar. He denied the suggestion that the police officials had taken them from the office of Water Supply to one P.G. Hostel situated at Gali no. 3, Lalita Park and made them sit in a small room on the back side of the office. He denied that those police officials threatened them and put them under fear to implicate them in criminal case or that when they asked about their mistake those police officials became furious and asked them to arrange Rs.50,000/- if they wanted not to go to jail. He further deposed that he cannot admit or deny that mobile number of his father in law Sh. Vijay was 8791434299 which he provided to HC Ram Kishan who made telephone call on the mobile number of his father in law and asked him as to whether PW-11 was known to him or not and also apprised his father in law that he was from ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 23 of 73 PS Shakarpur and also apprised his father in law that police had apprehended PW-11 alongwith his two friends for issuance of donation receipts.
18. PW-12 Insp. Sunil Kumar deposed that on 15.09.2015, while he was posted as Inspector, P.G. Cell, East District in his presence, IO/ACP Shiv Dayal arrested accused Ashwani Kumar and his personal search was also conducted, vide arrest memo Ex.PW3/DA and personal search memo Ex.PW9/B. Disclosure statement Ex.PW8/A of accused Ashwani Kumar was also recorded by IO/ACP Shiv Dayal in the presence of PW-12.
19. PW-13 Insp. D.P. Singh deposed that on 06.07.2015, while he was posted as Inspector, DIU, East District in his presence, Ct. Rahul, Chitha Munshi produced the copy of Chitha Register pertaining to duty of HC Ram Kishan and HS Ashwani Kumar for 03.07.2015, which was taken into possession by IO/ACP Shiv Dayal, vide memo Ex.PW5/A and copy of duty roster Ex.PW5/B. He further deposed that on 03.07.2015, he alongwith ACP Shiv Dayal and complainant Om Prakash reached in a PG Hostel, Gali No. 3, Lalita Park but no person was found hostage there and thereafter, they came back to PS Shakarpur where PW-13 recorded the statement of complainant Om Parkash Ex.PW2/A in his handwriting on the dictation of ACP Shiv Dayal and PW-13 also made an endorsement Ex.PW9/A. He further deposed that seizure memo Ex.PW5/A and personal search memo Ex.PW2/C dated 04.07.2015 of accused Ram Kishan are also in his handwriting which were prepared on the dictation of ACP Shiv Dayal.
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20. PW-14 Satya Prakash deposed that he is engaged in the work of property dealing at Laxmi Nagar and he has rented out some rooms in the aforesaid property. He further deposed that his office is also at 3/123, Lalita Park, Laxmi Nagar, Delhi and he work in the name of Krishna Properties. He further deposed that accused Devi Shankar Mishra was working with him for last 20 years and he is residing in the aforesaid building. In reply to leading question put by Ld. Addl. PP for the State, PW-14 denied that he has stated to police in his statement under section 161 Cr.P.C. dated 10.07.2015 that he was running a PG Hostel in the name and style of Krishna Hostel in the above mentioned property. He also denied that accused Devi Shankar Mishra was also helping him in running the PG Hostel apart from the business of property dealing.
21. PW-15 Sh. Vinod Kumar, Nodal Officer, MTNL proved the CAF Ex.PW15/A and CDR Ex.PW15/B for the period 01.07.2015 to 07.07.2015 of mobile no.9013277463 in the name of Ram Kishan. He has also proved the Cell ID Chart Ex.PW15/C and certificate under section 65B of Indian Evidence Act Ex.PW15/D in respect of above CDRs.
22. PW-16 Insp. Narender Tyagi deposed that on 30.08.2016, while he was posted as Inspector, DIU East, he had sent letter to the Nodal Officers, Vodafone, Airtel and Dolphin MTNL to provide certified copy of CDR, CAF and certificate under section 65B Indian Evidence Act, in respect of some mobile numbers which were required in the present case.
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23. PW-17 Saurabh Aggarwal, Nodal Officer, Vodafone Idea Ltd. proved the CAF Ex.PW17/A pertaining to mobile no. 7838381858 with CDR Ex.PW17/B for the period 01.07.2015 to 08.07.2015 and certificate under section 65B Indian Evidence Act Ex.PW17/C. He has also proved the CAF Ex.PW17/D pertaining to mobile no. 8791434299 alongwith CDR Ex.PW17/E for the period 01.07.2015 to 14.07.2015, certificate under section 65B Indian Evidence Act Ex.PW17/F as well as location Chart Ex.PW17/G.
24. PW-18 Pradeep Kumar deposed that he was doing the work of water supply. He further deposed that he does not remember the exact date however, it was 3-4 years ago, 3-4 boys entered his shop at about 10:00 am to 10:30 am and he asked them to go out from the shop but they told that they had come to collect donation for Bhandara in a temple. He further deposed that he asked them to sit for some time and in the meanwhile, he made a call to beat officer namely Ashwani Tyagi who had sent his associate Ram Kishan at his shop and Ashwani Tyagi also came after 10-15 minutes. He further deposed that both the police officials had some talks with these 3-4 boys and made some telephone calls to their known persons and after satisfaction, they allowed aforesaid 3-4 boys to leave his shop. He further deposed that after about 10 minutes, both the police officials had also left his shop.
PW-18 was cross-examined by Ld. Addl. PP for the State as he had resiled from his statement. During the cross-examination by Ld. Addl. PP for the State, PW-18 admitted that the aforesaid incident was dated 03.07.2015.
____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 26 of 73 However, he denied that Ram Kishan and Ashwani Tyagi had taken along with them aforesaid 3-4 boys who came to his shop to collect donation. He also denied that police had not recorded his statement. He also denied that those boys were not released by Ram Kishan and Ashwani Tyagi from his shop. He further denied that he has been won over by the accused persons and therefore, he is not deposing true facts.
25. PW-19 Surender Kumar, Nodal Officer Bharti Airtel Ltd. proved the CAF Ex.PW19/A pertaining to mobile no. 8826288091 with CDR Ex.PW19/B for the period 01.07.2015 to 07.07.2015 and certificate under section 65B Indian Evidence Act Ex.PW19/D. He has also proved the location chart Ex.PW19/C.
26. PW-20 Rishi Pal, Additional Commissioner of Police deposed that in April 2016 while he was posted as DCP, East District, Delhi, file containing statements of witnesses and other evidences collected during investigation in present case was placed before him for giving prosecution sanction qua HC Ram Kishan and HC Ashwani Tyagi. He further deposed that after perusing and carefully examining all the records produced before him, after applying his mind, he accorded prosecution sanction qua both accused persons namely Ram Kishan and Ashwani Tyagi vide sanction order dated 18.04.2016 Ex.PW20/A.
27. After completion of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to them ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 27 of 73 which they denied as false and incorrect and stated that they are innocent and have been falsely implicated in the present case.
28. Thereafter, accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi led evidence in their defence and examined 5 defence witnesses and accused Devi Shankar Mishra @ Pappu has examined himself U/s 315 Cr.P.C. as DW-6.
29. DW-1 SI Naresh Kumar was summoned to produce the record regarding list of license holder of PG Hostels/Guest house pertaining to the year 2015 of Laxmi Nagar Area, but he deposed that the record prior to 2016 had been destroyed in a fire incident which had taken place on 24.03.2016 and an FIR no. 209/16 in this regard was registered at PS Madhu Vihar, vide Ex.DW1/A.
30. DW-2 ASI Subhash Chand had brought the record pertaining to official vehicle bearing no. DL1CJ-6854 of Sh. Shiv Dayal, the then ACP, DIU East on 03.07.2015 and 04.07.2015 as well as certificate in this regard issued by SI Suresh Kumar Ex.DW2/A. He has also brought the DD register of DIU East dated 03.07.2015 and 04.07.2015 Ex.DW2/B and Ex.DW2/C.
31. DW-3 Sh. Sameer has brought the report under section 173 Cr.P.C. of FIR no. 326/15, U/s 354/451/452/323/427/506/34 IPC of PS Shakarpur and list of witnesses vide Ex.DW3/A (colly).
32. DW-4 HC Krishan deposed that no record regarding dispatch of copy of FIR of the present case to the ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 28 of 73 court concerned was maintained in the PS. He further deposed that record of dispatch of those FIR is maintained which are sent through special messenger and rest of the FIRs are sent through general Dak.
33. DW-5 HC Satish Kumar Rana had brought the case diary register of FIR no. 1447/15, PS Shakarpur, under section 7/13 PC Act, as per which no case diary was ever deposited by the IO of the present case, vide Ex.DW5/A.
34. DW-6 is Devi Shankar Mishra @ Pappu who was summoned U/s 319 Cr. P.C. as an accused. He deposed that he used to work with Sh. Satya Prakash who was running his property dealer office in property no. 3/123, ground floor, gali no.3, Lalita Park, Laxmi Nagar, Delhi. He further deposed that he used to assist Sh. Satya Prakash in his property business and also used to serve tea and water to the customers. He has produced the visiting card of Sh. Satya Prakash Ex.DW6/B. He further deposed that his name was Pappu and his mobile number was 9354332692 while he was working with Sh. Satya Prakash. He further deposed that Sh. Satya Prakash was not running a PG hostel or guest house in property no. 3/123, ground floor, gali no.3, Lalita Park, Laxmi Nagar, Delhi and no PG hostel was situated in entire gali no.3, Lalita Park till the time he worked with Satya Prakash. He further deposed that accused persons Ashwani Kumar and Ram Kishan were not known to him prior to his appearance in the present case. He further deposed that no police official had ever detained three boys in building of Sh. Satya Prakash ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 29 of 73 in July 2015 nor any money transaction had taken place in his presence between police officials or a third person.
35. Arguments on behalf of Ld. Addl. PP for the State as well as Sh. Sanjay Gupta, Ld. Defence Counsel for the accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi and Sh. Rohit Kumar, Ld. Defence counsel for accused Devi Shankar Mishra @ Pappu heard. I have also perused the written submissions filed on behalf of all the accused persons as well as additional written submission filed on behalf of accused Ram Kishan and Ashwani Kumar.
36. Ld. Addl. PP for State argued that the complainant i.e. PW-2 Om Prakash from whom bribe was demanded and obtained by accused persons has supported the case of prosecution. It has been submitted that PW-1 Vijay Singh, who firstly received call of his relative Deepak that he alongwith his friends i.e. Rahul Sharma and Bunty Sharma was wrongfully confined by accused Ram Kishan and Ashwani Tyagi in a room of PG hostel situated at gali no.3, Lalita Park, Laxmi Nagar, Delhi has also supported the case of prosecution. Ld. Addl. PP for State further argued that witnesses Deepak, Rahul and Bunty Sharma initially supported the case of prosecution and it is a settled law that evidence of a hostile witness can be considered to the extent it supports the case of prosecution. It has been submitted that the CDRs and cell location of mobile phone of complainant and accused Ram Kishan also corroborates the case of prosecution. Ld. Addl. PP for State further argued that prosecution has proved its case against accused ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 30 of 73 persons beyond reasonable doubt.
37. Ld. Defence counsel for accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi argued that mere demand is not an offence, unless there is acceptance and recovery of bribe amount. It has been submitted that the sanction u/s 19 of PC Act is defected and there is non- application of mind by the competent authority while granting sanction. Ld. Defence counsel further argued that even otherwise, no sanction for prosecution u/s 197 Cr.P.C. was obtained against accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi for prosecution of offence u/s 342/384/120-B IPC.
38. Ld. Defence counsel vehemently contended that FIR is ante timed and same is not proved in accordance with law. It has been submitted that evidence of Nodal Officers regarding the CDRs and cell location cannot be read in evidence simply for the reason that there is non- application of mind while issuing certificate u/s 65-B of Indian Evidence Act. Ld. Defence counsel further argued that prosecution has miserably failed to prove the existence of PG hostel in gali no.3, Lalita Park, Laxmi Nagar, Delhi as PW-14 i.e. the owner of the property wherein it was alleged that PG hostel was being run has denied running of any PG hostel in his property.
39. Ld. Defence counsel further argued that PW-9 i.e. ACP Shiv Dayal, who was posted in DIU East initiated the investigation, although as a matter of fact, PS Vigilance was already set up in Delhi for carrying out investigations in PC Act cases against officials of Delhi Police and furthermore, Insp. Narender, who conducted further ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 31 of 73 investigation was also not authorized to conduct the investigation of present case. It has been submitted that the presence of Insp. D. P. Singh and Insp. Sunil as well as the arrest of accused Ram Kishan at the given time and place is doubtful.
40. Ld. Defence counsel further argued that PW-3 Bunty Sharma, PW-4 Rahul Sharma and PW-15 Deepak Sharma, who were allegedly kept hostage by the accused persons took summer sault during their cross examination after an application u/s 319 Cr.P.C. as filed on behalf of State for summoning co-accused Devi Shankar Mishra @ Pappu was allowed and the totality of circumstances shows that their testimonies has destroyed the prosecution case in toto. It has been submitted that the defence witnesses are also entitled to equal treatment like prosecution witnesses. Lastly, it was submitted that continuation of present trial is of no use, even at this fag end as accused Ram Kishan and Aswhani Kumar, both were exonerated on merits by their Enquiry Officer.
41. Ld. Defence counsel for accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi in support of his arguments relied upon the following judgments:-
(i) State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) RCR (Cr) 217 SC , wherein it was held by Hon'ble Apex Court that before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
(ii) Mansukhlal Vithaldas Chauhan vs. State of Gujarat, JT 1997 (7) SC 695, wherein it was held that ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 32 of 73 the validity of sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority.
(iii) K. C. Singh vs. CBI, Crl. Appeal 976/2010, wherein it was held that the grant of sanction is a solemn function which, the sanctioning authority is required to perform with due care and due application of mind to the material placed before him/her alongwith the request for sanction for prosecution.
(iv) Omveer Singh & Anr. vs. State & Ors., 2014 (2) LRC 270 (Del), wherein it was held that cognizance of offence without sanction under section 197 of Cr.P.C. or section 140 of DP Act is expressly barred as the petitioners had acted in the course of their official duties.
(v) State (Govt. of NCT of Delhi) vs. Lallu Ram, 2016 (4) LRC 324 (Del), wherein it was held that the unexplained inordinate delay in sending the copy of FIR to the Ilaqa Magistrate may affect the prosecution case adversely or an adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there was every chance of manipulation in the FIR by roping innocent person as accused.
(vi) Ajay @ Chotu & Ors. vs. State, 2012 (4) LRC 273 (Del) (DB), wherein it was held that where no explanation has been offered or even attempted why the special report was given late to the Magistrate and on the other hand one of the eye witness i.e. dispatch writer stated ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 33 of 73 that he was given copies of the FIR to deliver at 11:00 pm and after delivering them he returned at 02:30 am. This introduce doubt and uncertainty about whether the FIR was recorded at the time claimed.
(vii) Ashwani vs. State, Crl. A. 323/2018 & 412/2018, wherein it was observed that the evidence and the form of CDR inadmissible in evidence where the Nodal Officer did not himself prepare the certificate u/s 65-B of Indian Evidence Act and merely identified the signature of one Vishal Gaurav, who had prepared it.
(viii) Rakesh Kapoor vs. State of Himachal Pradesh, 2013 (1) RCR (Cr.) 211 SC, wherein it was observed that except the oral testimony of PW-1 and PW-
3, there is no other proof in respect of demand of bribe money and the IO could not collect the Call details as stated by PW-1 from the department concerned.
(ix) Achhey Lal Yadav vs. State 2014 (8) LRC 236 (Del), wherein it was held that the computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65-B of the Indian Evidence Act.
(x) State vs. Sunil Kumar @ Sagar @ Rahul & Ors., 2015 (3) LRC 380 (Del) (DB), wherein it was held that the site plan is a vital part of investigation and that it should give a clear description of the spot to which it belongs.
(xi) Lalman vs. State, 1998 (3) CC Cases HC 208, wherein it was held that presence of a witness is doubtful who is not signatory of a document.
(xii) Hari Dev Sharma vs. State, AIR 1976 SC ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 34 of 73 1489, wherein it was held that having disbelieved an essential part of the prosecution case on which the other part were dependent should not have upheld the conviction.
(xiii) Mahinder Singh & Dhanpal vs. State, II (1992) CCR 1735, wherein it was held that if we pursue the statement we find that there is no information being given by Mahinder Singh regarding the said pajeb being given by him to any particular person or being concealed by him at any particular place from where he could get the same recovered.
(xiv) Surajmal vs. State, AIR 1979 SC 1408, wherein it was held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses.
(xv) Suryavir vs. State of Haryana, 2022 (1) RCR (Cr.) 866 SC, wherein it was held that identification by witnesses for first time in Court cannot by itself be relied upon to establish identity of assailants.
(xvi) Roshan Lal Saini & Anr. vs. CBI, 2011 (1) JCC 102 Delhi, wherein it was held that filing of complaint with CBI by the complainant cannot be taken as a substitute for the evidence of proof of allegations.
(xvii) Manmohan Singh vs. The State (GNCT of Delhi), 2012 [2] JCC 1350, wherein it was held that Section 172 Cr.P.C. provides that every police officers making an investigation shall have the duty to maintain a ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 35 of 73 day to day diary with the particulars specified in it.
(xviii) Anil Sharma and Ors. vs. State of Jharkhand, 2004 (3) RCR (Cr.) 774 SC, wherein it was held that in criminal trial equal treatment be given to evidence of prosecution and defence.
(ix) Johnson Jacob vs. State, W. P. (Cr.) 1279/2021, wherein it was held that when departmental proceedings and criminal proceedings are a mirror image of each other and the accused has been exonerated on merits in the departmental inquiry, and not due to minor technicalties or irregularities, the criminal proceedings on the same set of facts and circumstances cannot be permitted to be continued as the standard of proof in departmental proceedings is much lower than the standard of proof in criminal proceedings.
(xx) Lokesh Kumar Jain vs. State of Rajashtan, 2013 (3) LRC 763 SC, wherein the FIR was quashed as the criminal case and departmental proceedings were for identical charges and exoneration in departmental proceedings.
(xxi) Panalal Damodar Rathi vs. State of Maharashtra, 1980 SCC (Cr.) 121, wherein it was held that complainant to be regarded as an accomplice, to be corroborated in material particulars before being relied upon.
(xxii) M. K. Harshan vs. State of Kerala, 1997 SCC (Cr.) 283, wherein it was held that in all type of cases of bribery, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification.
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42. Ld. Defence counsel for accused Devi Shankar Mishra @ Pappu argued that accused Devi Shankar Mishra @ Pappu was cited as a prosecution witness but he was summoned u/s 319 Cr.P.C. without any evidence. It has been submitted that even after framing charge there is no evidence against accused Devi Shankar Mishra that he was in conspiracy with the accused persons or that he was working in the PG hostel.
43. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused must be proved beyond all reasonable doubts. In this regard, reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (supra) and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution. It was also held that even while invoking the provision of section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. In the case of Dnyaneshwar (Supra) it was also held that the demand of illegal gratification is sine qua non for constitution of an offence under PC Act. In the case of Madan Mohan (Supra) it was observed that mere receipt of the amount by the accused is not sufficient to fasten guilt in absence of any evidence with regard to ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 37 of 73 any demand and acceptance of the amount as illegal gratification.
44. It is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognized as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384).
45. Law is also well settled that for Section 7 of the Prevention of Corruption Act, 1988, demand and acceptance of bribe has to be proved beyond reasonable doubt. Demand is a sine qua non for a charge U/s 7 and 13(1)(d) of PC Act.
46. In State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242, it is held as follows:
"8. It is well settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. In B. Jayaraj v. State of A.P. [B. Jayaraj ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 38 of 73 v. State of A.P., (2014) 13 SCC 55: (2014) 5 SCC (Cri) 543], it was held as under: (SCC p. 58, para
7) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma vs. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1: (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1]".
47. With these principles in mind, let me examine as to what extent prosecution has succeeded in proving the charge against the accused persons:-
Sanction U/s 19 of PC Act for Prosecution of Accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi :
48. Ld. Defence Counsel for the accused persons argued that the sanction Ex. PW-20/A granted by PW-20 Rishipal, the then DCP (East) shows that same was granted without application of mind and in a mechanical manner. Ld. Defence counsel further argued that initially PW-20 in his cross-examination has categorically admitted that office file was maintained for grant of sanction, but when the office file was summoned by the Court on the request of defence, then it was found that except dispatch entry of sanction order Ex.PW-20/A, there was nothing in the office of PW-20 regarding the office file. It has been ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 39 of 73 submitted that PW-9 i.e. Retd. ACP Shiv Dayal has also admitted that every written physical communication from DIU (East) was to be routed through Dak Register but no such document is made part of the official record. As regards application of mind by sanctioning authority in State of Maharashtra through CBI Vs Mahesh Jain, 2013 (8) SCC 119 , following principles were culled out:-
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence. 14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
49. It was further held that :
____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 40 of 73 "True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
50. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
51. On 31.03.2021, PW-20 Sh. Rishipal, the then DCP (East) deposed that in the present case, a file containing statement of witnesses and other evidence collected during investigation was placed before him for giving prosecution sanction qua accused persons and after perusing and careful examination of all the records produced before him qua the investigation of both the accused and after applying his mind to the fact and circumstances of the present case, he accorded prosecution sanction qua both the accused persons vide sanction order dated 18.04.2016 i.e. Ex.PW-20/A. However, his cross examination was deferred on that day at the request of Ld. Defence counsel for want of office file of sanction maintained in the office ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 41 of 73 of DCP, East District. although, witness had not deposed that any file was maintained in his office regarding the sanction. On 29.09.2021, when this witness was recalled for his cross examination to a specific suggestion the witness deposed that he cannot admit or deny that any such office file regarding the present sanction was ever maintained or not,in his the then office. In this regard, PW- 9 IO/Retd. ACP Shiv Dayal to a specific question as put by Ld. Defence counsel as to whether copies of all the documents and material of the present case were sent by him to the sanctioning authority alongwith any forwarding letter for obtaining sanction, the witness replied that as the office of the sanctioning authority i.e. DCP (East) was in the same building, hence he took the file with the material documents himself to the office of DCP (East) for seeking prosecution sanction in this case. There is no categorical admission of PW-20 that any sanction file was maintained in the office of DCP, East District, but the cross examination of the witness was deferred at the request of Ld. Defence counsel as he wanted to call the office file of sanction of the office of DCP (East). Merely if the sanctioning authority has mentioned in the sanction that he also considered the CDRs of mobile phone of accused Ashwani which is also part of the chargesheet, it cannot be said that the sanctioning authenticity has not applied his mind as the same was not incriminating. There is nothing on record to suggest that PW-20 was under any obligation or compulsion to grant sanction or had not applied his independent mind. The accused persons have also not been able to show that the discretion vested in the Sanctioning ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 42 of 73 Authority was affected by any extraneous consideration or that the mind of sanctioning authority was under pressure from any corner. Only in view of taking the original file of the case alongwith all the documents regarding the investigation conducted by the IO in person to the office of sanctioning authority for grant of sanction as the office of the sanctioning authority was also in the same building, it cannot be said that the sanction was granted in a mechanical manner. Hence, this court is of the view that accused failed to show that failure of justice had occasioned by any error, omission or irregularity in the sanction order granted u/s 19 of PC Act.
Sanction u/s 197 Cr.P.C.
52. It was argued by Ld. Defence counsel for accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi that admittedly both these accused persons were posted as Head Constables at PS Shakarpur and they have also been chargesheeted for offence punishable u/s 384/342/120-B IPC but no sanction u/s 197 Cr.P.C. was obtained qua these offences. Ld. Defence counsel has also relied upon an authority reported as Omveer Singh & Ors. vs. State & Ors. (supra), wherein summoning order was quashed as the petitioners therein acted in the course of their official duties.
53. Hon'ble Supreme Court in Anil Kumar & Ors. vs. M. K. Aiyappa & Ors. (2013) 10 SCC 705, held as under:-
"Thus in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 43 of 73 paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.... If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio."
54. Hon'ble Supreme Court in a judgment titled as Indra Devi vs. State of Rajasthan & Anr, Crl. Appeal no. 593 of 2021, held as under:-
"Section 197 of the Cr.P.C. seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance [See Subramanian Swami vs. Manmohan Singh4]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties [See State of Maharashtra vs. Dr. Budhikota Subbarao5]. The real question, therefore, is ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 44 of 73 whether the act committed is directly concerned with the official duty."
55. Applying the test laid down above to the facts of present case, it is evident that the acts of both the accused, who were posted as Head Constables were neither integrally connected with nor attached to the discharge of their official duties as public servants, therefore, I am of the considered opinion that there is no need of sanction u/s 197 Cr.P.C. to prosecute accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi qua offences u/s 384/342/120-B IPC.
Admissibility of Certificate u/s 65-B of Indian Evidence Act issued by Nodal Officers of cellular service providers.
56. In support of its case, prosecution examined PW-15 Sh. Vinod Kumar, Nodal Officer, MTNL, who proved the CAF of mobile number 9013277463 issued in the name of accused Ram Kishan and proved the CAF, CDR and Cell ID Chart as Ex. PW-15/A to C and Certificate u/s 65-B of Indian Evidence Act in respect of the CDR as Ex. PW- 15/D. Similarly prosecution examined Sh. Saurav Aggarwal, Nodal Officer, Vodafone-Idea Limited, who proved the CAF, CDR and certificate u/s 65-B of Indian Evidence Act of mobile number 7838381858 issued in the name of accused Ashwani Kumar @ Ashwani Tyagi as Ex. PW-17/A to C and also the CAF, CDR, certificate u/s 65- B of Indian Evidence Act and location chart of mobile number 8791434299 issued in the name of PW-1 Vijay Singh as Ex. PW-17/D to G. Sh. Surender Kumar, Nodal ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 45 of 73 Officer, Bharti Airtel Limited proved the CAF, CDR, location chart and certificate u/s 65-B of Indian Evidence Act of mobile number 8826288091 issued in the name of PW-2 Om Prakash. These CDRs and location charts were brought on record by the prosecution to corroborate the version of the prosecution witnesses and the location/presence of witnesses as well as of accused at the relevant time.
57. Ld. Defence counsel vehemently contended that the evidences of these witnesses cannot be read in evidence simply for the reason that there is non application of mind while issuing certificate u/s 65-B of the Indian Evidence Act. It is submitted that these witnesses have admitted that performa of certificate u/s 65-B of Indian Evidence Act is fed in their computer and they are taking print out of the certificates after changing mobile numbers and duration of CDRs. It is submitted that such type of evidence have been discarded by our own High Court in Crl. Appeal no.323/18 and 412/18 titled as Ashwani & Anr. Vs. State. Thus, it is submitted that the prosecution story to the effect that accused Ram Kishan was in touch with PW-1 Vijay Singh and PW-2 Om Prakash on 03.07.2015 through telephonic calls is not legally proved on record as the Nodal Officers had not applied their mind while issuing certificates u/s 65-B of Indian Evidence Act.
58. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015, SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 46 of 73 only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activit;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 47 of 73 conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief.
Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A- Opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
59. Adverting back to the facts of present case, the Nodal Officers i.e. PW-15 Sh. Vinod Kumar, PW-17 Sh. ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 48 of 73 Saurav Aggarwal and PW-19 Sh. Surender Kumar, who have given their certificates u/s 65-B of Indian Evidence Act in support of these CDRs and Cell location of the particular mobile phones of prosecution witnesses as well as of accused persons have specifically stated about the four conditions, which are required u/s 65-B (2) of Indian Evidence Act. The certificate u/s 65-B of Indian Evidence Act as proved by PW-17 as Ex. PW-17/F reads as under:-
CERTIFICATE U/S 65B OF THE INDIAN EVIDENCE ACT, 1872 IN SUPPORT OF COMPUTERIZED PRINTOUTS This is to certify that the printouts of Call Data Records ("CDR") in respect of Mobile number
-8791434299 for the period from 01/07/2015 to 14/07/2015 till 15:37:51 has been produced from computer system using printer and its contents are true reproduction of the original to the best of my knowledge and belief and no alteration or any type of change has been done with the same.
We do hereby further certify the following conditions as laid down in this certificate.
1. It is certified that during the said period, CDR of above said mobile numbers are processed and contained in the electronic records and fed into the computer server in the ordinary course of providing telecom service by the company.
2. It is certified that the above information is a true extract in the printed from of CDR as lawfully created and processed in the usual and ordinary course of providing the telecom service and stored on server as maintained by the Company.
____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 49 of 73
3. It is certified that the Access to the server is made through Computer System and the data stored therein is controlled by pre-defined user permissions exercised through unique ID and associated password.
4. It is certified that throughout the said period, the server and the computer system was operating properly or, if not, then in respect of any period, in which it was not operating properly or was out of operation during that period also it was not such as to affect the electronic records or the accuracy of its contents.
5. It is further certified that to the best of our knowledge and belief, the server that stored and computer system that generated this information operated at the time of such generation/storage of the data and printouts are true copies of the original electronic records, retrieved from the computer system, which is in lawful control of the Company and is password protected.
Signature:-
Designation - Nodal Officer /Alternate Nodal Officer Vodafone Idea Limited
60. It is important to note that as per requirement of Section 65-B of the Indian Evidence Act, 1872, the person giving a statement pertaining to an electronic record, need only to state in the certificate that the same is to the best of his knowledge and belief. If the information contained in an electronic record is printed on a paper produced by a computer and if the four conditions mentioned under Sub-
section (2) of Section 65-B are satisfied, there is no further need of application of mind by the said person while ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 50 of 73 issuing such certificate. All the Nodal Officers i.e. PW-15, PW-17 and PW-19 in their cross-examination have stated that they have been given password and login ID for having access to the main server and if they have admitted that they have taken the printout of the certificate u/s 65-B of Indian Evidence Act after changing the particulars in the performa available in their computers, it does not mean that the electronic record produced by them is not fulfilling the four conditions mentioned in Sub-section (2) of Section 65-B of Indian Evidence Act, particularly when no question was put to these witnesses regarding fulfilling the conditions for producing such certificate. The judgment of Hon'ble High Court in case titled as Ashwani Vs. State, Crl. Appeal no. 323/18 is not helpful in the facts and circumstance of present case as in that case, the Nodal Officer admitted in his cross-examination that he does not possess the technical knowledge qua Master server, its operation, its maintenance and also whether at any time electricity failed during recording of the calls mentioned in the CDRs or not.
Whether FIR is ante timed and unproved.
61. Ld. Defence counsel argued that FIR of present case was freezed on CCTNS portal on 04.07.2015 and as per the CCTNS procedure, the printout of the FIR cannot be taken without freezing the FIR, which fact itself belies the statement of Duty Officer PW-7 that he had given the copy of FIR to PW-9 ACP Shiv Dayal on 03.07.2015 itself. It has been submitted that PW-7 ASI Munesh Kumar was not competent to issue certificate u/s 65-B of Indian Evidence ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 51 of 73 Act, 1872 i.e. Ex. PW-7/C as he was neither the custodian of computer of CIPA room nor he was the Incharge of CIPA, PS Shakarpur. It was also submitted that there is non compliance of Section 157 Cr.P.C. as the copy of FIR was not forwarded to Ld. Special Judge within 24 hours and for that the only one inference can be drawn that the FIR is ante timed.
62. PW-7 ASI Munesh Kumar, who was working as Duty Officer at PS Shakarpur on 03.07.2015 from 04 pm to 12 mid night deposed that at about 10:30 pm, a rukka was handed over to him by ACP Shiv Dayal of DIU for registration of the case FIR and he proved the copy of FIR as Ex.PW-7/A, his endorsement on the rukka as Ex. PW- 7/B and certificate u/s 65-B of Indian Evidence Act, 1872 as Ex. PW-7/C. With regard to certificate u/s 65-B of Indian Evidence Act, 1872 in support of printout of the computerized copy of FIR, PW-7 in his cross examination by Ld. Defence counsel has deposed that he was present near Ct. Mahavir, who was typing on the computer and denied the suggestion that Duty Officer has no control over the computer upon which FIRs are typed. A plea was raised that SHO is the custodian of the government properties of the police station and as such, Duty Officer was not competent to issue certificate u/s 65-B of Indian Evidence Act. In this regard, suffice it to say that no doubt that SHO is the custodian of the government properties of PS but the computer on which FIR are typed by the CIPA operator is regularly used to store or process the registration of FIRs in the PS by the Duty Officer. In view of the deposition of PW-7 that he was present near Ct. ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 52 of 73 Mahavir who was typing the FIR also shows that the computer was under his control when it was used for registration of FIRs and as such, PW-7 was competent to issue the certificate u/s 65-B of Indian Evidence Act, 1872 in support of the printout/copy of the FIR i.e. Ex.PW-7/A.
63. Admittedly, the CCTNS system for freezing the FIR was started w.e.f. 03.07.2015 and there were network issues for uploading the data on the portal for which a DD no. 45-A dated 03.07.2015 i.e. Ex. PW-7/D5 which was produced by Ld. Defence counsel, was recorded at 10:46 hours that attempts were made to update the case diaries of 3 FIRs registered on 01.07.2015, 02.07.2015 and 03.07.2015, but due to network issue, same could not be updated and an information in this regard was given to CCTNS officer as well as to the SHO, PS Shakarpur. It appears that PW-7 ASI Munesh Kumar had no idea as also admitted by him in his cross examination that the printouts of the FIR cannot be taken out unless the FIR is freezed at CIPA/CCTNS and for that reason, he has deposed that the copy of FIR was given to the IO on 03.07.2015, although, PW-9 ACP Shiv Dayal has admitted that he received the copy of FIR on 04.07.2015.
64. Section 157 Cr.P.C. provides that if, from information received or otherwise, an officer incharge of a police station has reason to suspect the commission of offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take cognizance of such offence. It was argued by Ld. Defence counsel that copy of the FIR which was sent to the Court of Ld. Special Judge ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 53 of 73 was received in the Court on 08.07.2015 in compliance of Section 157 Cr.P.C. and as such, only one inference can be drawn that the FIR is ante timed.
65. In Bijoy Singh & Anr vs State of Bihar, (2002) 9 SCC 147, the Hon'ble Supreme Court has held as under:-
"The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
66. PW-9 ACP Shiv Dayal in his cross-examination has admitted that he did not verify from the office of SHO PS Shakarpur or from the Duty Officer as to whether the copy of FIR of present case was sent to the Court of Ld. Special Judge within 24 hours or not. In this regard, Duty Officer PW-7 ASI Muneesh Kumar has deposed that it is the duty of MHC(R)to dispatch the copy of FIR for the court. The copy of FIR i.e. Ex. PW-7/D-4 was seen by the Ld. Special Judge on 08.07.2015. It is settled law that on account of ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 54 of 73 unexplained inordinate delay in sending the copy of FIR, an adverse inference can be drawn only if there are circumstances from which an inference can be drawn that there was every chance of manipulation in the first information report by roping innocent person as accused. Adverting back to the case in hand, as per complainant PW-2 Om Parkash, he received information on 03.07.2015 at about 12:00 noon that Deepak and his two friends who were collecting donations were apprehended by accused persons and lastly he approached the office of ACP, DIU around 06:00/06:30 pm. The defence of the accused Ram Kishan and Ashwani Tyagi that they were called by Pradeep Kapoor i.e. PW-18 on 03.07.2015 as he was suspicious about three boys who were collecting Chanda from him and they went there and after making enquiries, released them. Defence witness HC Ram Kishan i.e. DW-4 deposed that record of dispatch of those FIRs is only maintained in the police station which are sent through Special Messenger and rest of the FIRs are sent through general Dak. It is not in dispute that FIR of present case was not sent through special messenger by the concerned IO or SHO and rather it was sent through general Dak. No attending circumstances involved in the present case were pointed out by Ld. Defence counsel to show that there was any chance of manipulation in the FIR regarding the names of accused persons or time of the alleged incident. No doubt, the copy of FIR was not sent to the Ld. Special Judge within 24 hours but there are no circumstances on record from which an adverse inference can be drawn against the prosecution in this regard.
____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 55 of 73 Investigation by ACP, DIU for offence punishable under PC Act.
67. It was argued by Ld. Defence counsel for accused Ram Kishan and Ashwani Tyagi that police station Vigilance was set up in Delhi on 22.01.2013 for carrying out investigations in PC Act cases against officials of Delhi Police and therefore, the investigation conducted by PW-9 ACP Shiv Dayal being ACP at DIU/East is illegal. It was further submitted that Insp. Narender was made investigating officer, though an officer of the rank below ACP is not authorized to conduct investigation under PC Act, without permission of the court. Section 17 of the PC Act says that no police officer below the rank of an Inspector of police in the case of the Delhi Special Police Establishment and in the Metropolitan areas, an Assistant Commissioner of Police shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class as the case may be. Thus as per section 17, an Inspector of police in the case of Delhi Special Police Establishment and in Metropolitan areas of Bombay, Calcutta, Madras, Ahmadabad and in other notified Metropolitan areas, an Assistant Commissioner of Police is competent to investigate the case under PC Act. The investigation of present case was conducted by PW-9 Sh. Shiv Dayal who was at that time posted as ACP, DIU/East. Insp. Narender Tyagi who has been examined as PW-16 deposed that on the instructions of IO ACP Shiv Dayal, he sent letter to the Nodal Officers to provide the certified copy of CDR, CAF ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 56 of 73 and certificate U/s 65B of Indian Evidence Act. Except sending the aforesaid letters on 30.08.2016 as per instructions of the IO/ACP Shiv Dayal, Insp. Narender Tyagi did not conduct any investigation. Regarding the plea of Ld. Defence counsel that a Vigilance police station was in existence on the day when complainant lodged the complaint against accused Ram Kishan and Ashwani Tyagi i.e. police officials, it is suffice to say that grievance of the complainant was not only demand of bribe but also one of the friend of the known of the complainant was held captive by accused persons for payment of remaining balance of the demanded bribe. Furthermore, PW-2 in his cross-examination denied the suggestion as put by Ld. Defence counsel that he reached in office of ACP, DIU and lodged his complaint and volunteered that first he had gone to the office of ACB situated opposite to Trauma Centre from where he was instructed to go to the office of DCP, East. In these circumstances, investigation carried out by PW-9 Shiv Dayal being ACP of DIU/East,who is otherwise authorized as per section 17 of PCAct to investigate any offence under the Act is not illegal.
Non-preparation of Site plan.
68. It was argued by Ld. Defence counsel that site plan is a vital piece of evidence but in the present case no site plan of the PG Hostel where allegedly known of the relative of the complainant and his friends were kept was prepared and IO could not give any explanation for not preparing the site plan. Ld. Defence counsel relied upon the case of State Vs Sunil @ Sagar, 2015 (3) LRC 380 ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 57 of 73 (Delhi)(DB). PW-9 ACP Shiv Dayal confirmed in his cross-examination that he did not prepare any site plan of office of Pradeep Kapoor or the said PG Hostel of Lalita Park and that office of Pradeep Kapoor was not the place of occurrence but the PG Hostel spot was place of occurrence. To a specific question, PW-9 deposed that preparation of site plan for the identification of place of occurrence was not mandatory in this case.
69. Much was argued by Ld. Defence counsel for accused Ram Kishan and Ashwani Tyagi regarding the existence of any PG hostel in gali no.3, Lalita Park, Laxmi Nagar, Delhi. It was submitted that to run a PG hostel, license under Section 28 of the Delhi Police Act is required, but the IO i.e. PW-9 has shown his ignorance that PG hostel cannot be run without permission of the police. Reliance was also placed upon an authority Anil Sharma vs. State (supra) while arguing that defence witnesses are also entitled to equal treatment like prosecution witnesses and that DW-6 Devi Shankar Mishra @ Pappu has specifically deposed that no PG hostel was situated in gali no.3, Lalita Park, Laxmi Nagar, Delhi. In this regard, PW- 14 Satya Prakash deposed that he is engaged in the work of property dealing at Laxmi Nagar and rented out some rooms in the aforesaid property and his office is also at 3/123, Lalita Park, Laxmi Nagar, Delhi and that accused Devi Shankar Mishra (DW-6) was working with him for last 20 years. During cross-examination, Ld. Defence counsel had shown three photographs and SD card make Sandisk to the complainant i.e. PW-2 Om Prakash and the complainant after seeing those photographs and SD card ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 58 of 73 deposed that he is not sure, but probably the said guest house was situated in a building shown at point A of Ex.PW2/DA. No doubt that the defence witnesses are also entitled to equal treatment like prosecution witnesses if their testimonies appears to be truthful. DW-6 accused Devi Shankar Mishra when appeared in witness box deposed that there was no PG hostel in gali no.3, Lalita Park, but when his attention was drawn towards photographs Ex.PW-2/DA, he identified the building at point Y as office of Mr. Kapoor, who was water supplier and the same building was identified as PG hostel by the complainant and marked at point A in Ex.PW-2/DA. Interestingly, these photographs were not put to PW-14 Sh. Satya Prakash, who as per case of prosecution was running a PG hostel where PW-3 Bunty Sharma, PW-4 Rahul Sharma and PW-11 Deepak Sharma were illegally confined or to the PW-18 Pradeep Kapoor, who was running the shop of water supply and at whose shop, those three boys went to collect donation. PW-18 Pradeep Kapoor specifically deposed that those boys had entered in his shop to collect donation for bhandara in a temple, but the point A and Y on Ex. PW-2/DA is a portion of a building at upper floor where rooms can be seen and those rooms cannot be said to be a shop. Ld. Defence counsel although summoned DW-1 SI Naresh Kumar to produce the list of license holder of PG hostels/guest house of Laxmi Nagar pertaining to year 2015, but the said witness deposed that the record was destroyed in a fire incident. Thus, no list of licensed PG hostels running in the area of Laxmi Nagar was either produced by the prosecution or by ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 59 of 73 the defence and even otherwise, it cannot be said that no unauthorized/unlicensed PG hostels were running in the area of Laxmi Nagar at the relevant time.
70. Undoubtedly, site plan becomes material and crucial in cases of particular criminal nature such as murder etc. where the exact location of the injured, the witnesses and the accused is vital, still in the present case the site plan could have helped the prosecution to specify the location of PG Hostel where the three boys were kept hostage and the demanded bribe was paid. However, mere absence of site plan is not enough to throw away the entire case of prosecution.
Evidence of hostile witnesses.
71. PW-3 Bunty Sharma, PW-4 Rahul Sharma and PW-
11 Deepak Sharma are the material prosecution witnesses who, as per case of prosecution, went to collect Chanda from the shop of PW-18 Pradeep Kapoor, on which he made a call to accused Ashwani Tyagi and thereupon, accused Ashwani Tyagi alongwith co-accused Ram Kishan reached at his shop and therefrom they brought these three witnesses to PG Hostel situated at Lalita Park area Gali no. 3 where they were detained in a room and accused persons demanded bribe of Rs.50,000/- for their release from the complainant i.e. PW-2 Om Parkash. PW-3 Bunty Sharma was initially examined on 12.02.2018 and thereafter, cross- examined by Ld. Defence counsel for accused Ram Kishan and Ashwani Kumar on 07.05.2018 and he supported the case of prosecution on material aspects. However, after summoning the accused Devi Shankar Mishra @ Pappu ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 60 of 73 U/s 319 Cr.P.C., when PW-3 Bunty Sharma was recalled, he took a complete U-Turn and even denied what he had deposed earlier before the court. Ld. Addl. PP for the State put specific questions regarding his testimony dated 12.02.2018 but the witness answered that he had not deposed so even before the court. Similarly, PW-4 Rahul Sharma was initially examined in chief on 22.03.2018 and 16.04.2018 in which supported the prosecution case on material aspects including the demand of bribe as well as acceptance of bribe by the accused persons but after summoning accused Devi Shankar Mishra U/s 319 Cr.P.C. when he was recalled, he also took U-Turn and denied his testimony which was recorded on earlier occasions i.e. 22.03.2018 and 16.04.2018 by Ld. Predecessor. PW-11 Deepak Sharma has also not supported the case of the prosecution but he deposed that accused persons i.e. Ashwani Tyagi and Ram Kishan made them sit where they had gone to collect donations and asked them to provide the phone number of their known persons and to call them. He further supported the case of prosecution to the extent that he spoke with his father-in-law and asked him to come to Lalita Park.
72. In Vinod Kumar Vs State of Punjab, Crl. Appeal no. 554/2012, in the judgment dated 23.09.2014, Hon'ble Supreme Court observed as follows :
"The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 61 of 73 evincible that in examination in chief, he has supported the prosecution story in entirety and in the cross-examination he has taken the path of prevarication. In Bhagwan Singh Vs State of Haryana, (1976) 1 SCC 389, it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari Vs State of Madhya Pradesh, (1991) 3 SCC 627, the court after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar Dey Vs State of Orissa (1976) 4 SCC 233 and Syad Akbar Vs State of Karnataka, (1980) 1 SCC 30, opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof."
73. Thus, it is a settled law that the testimony of a hostile witness is not to be discarded altogether and the same can be accepted to the extent it is found reliable and that there is no legal bar to base a conviction on the testimony of a hostile witness, if corroborated by other reliable evidence.
Role of accused Devi Shankar Mishra @ Pappu.
74. Accused Devi Shankar Mishra @ Pappu was not chargesheeted but he was summoned U/s 319 Cr.P.C., vide order dated 09.07.2018, on an application filed by prosecution on the ground that the prosecution witnesses i.e. PW-2 Om Parkash, PW-3 Bunty Sharma and PW-4 Rahul Sharma have deposed that bribe money which was extorted by the accused persons from PW-2 Om Parkash was handed over to Devi Shankar Mishra, who was manager of the PG Hostel. Thus, it was the plea of the ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 62 of 73 prosecution that Devi Shankar Mishra @ Pappu had conspired with accused persons in commission of the offence and his act is of abettor to facilitate the commission of crime. However, after summoning Devi Shankar Mishra @ Pappu as an accused who was initially cited as a prosecution witness, no evidence has come on record to show that he was party to the conspiracy alongwith accused Ram Kishan and Ashwani Tyagi. PW-9 IO/ACP Shiv Dayal has admitted that he had not chargesheeted accused Devi Shankar Mishra @ Pappu as there was no evidence against him. None of the prosecution witnesses who were recalled after summoning accused Devi Shankar Mishra @ Pappu have deposed anything about his involvement in the entire incident.
Demand and acceptance of bribe by accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi.
75. It is well settled law that for section 7 of the Prevention of Corruption Act 1988, demand and acceptance of bribe has to be proved beyond reasonable doubt. Demand is sine qua non for a charge under section 7 and 13 (1)(d) of the PC Act. PW-1 Vijay Singh and PW-2 complainant Om Parkash are the star witnesses of the prosecution regarding demand and acceptance of bribe by accused HC Ram Kishan and Ashwani Kumar @ Ashwani Tyagi. Both these witnesses have deposed in a cogent manner. PW-1 Vijay Singh is relative of PW-11 Deepak Sharma, who alongwith PW-3 Bunty Sharma and PW-4 Rahul Sharma was detained by these accused persons, has deposed that on 03.07.2015, at about 11:00-11:30 am, he ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 63 of 73 received a call on his mobile no.8791434299 from Deepak Sharma that he alongwith his friends had been detained at PS Shakarpur by HC Ram Kishan and one other and that HC Ram Kishan was demanding money for their release. Thereafter, Ram Kishan called him on his mobile number and told him that he was calling from PS Shakarpur and that he had apprehended Deepak and his friends as they had committed theft and when he replied that if they had committed any wrong, they be punished in accordance with law on this Ram Kishan told him that such things cannot be discussed on phone and that if Deepak and his associates are to be released, he must arrange Rs.50,000/- immediately and should reach Lalita Park, Shakarpur and call him after reaching Lalita Park. PW-1 specifically deposed that Deepak also informed him that to release them police officials were demanding Rs.50,000/-.
76. PW-2 Om Parkash (complainant) to whom PW-1 Vijay Singh gave the number of HC Ram Kishan and asked him to talk with him, deposed that he made the call to Ram Kishan and enquired from him the reason of apprehending Deepak, on which Ram Kishan told him that Deepak alongwith his two friends were collecting donation by issuing receipts and asked him to reach at Gali no. 3, Lalita Park and instructed him to call him after reaching there. As per testimony of PW-2, he reached Gali no. 3, Lalita Park and called HC Ram Kishan from his mobile phone who asked him to reach at PG Hostel, Lalita Park and provided him the location. When PW-2 reached PG Hostel he met with accused Ram Kishan and co-accused Ashwani Kumar Tyagi who at that time was lying on a ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 64 of 73 sofa and watching TV. Thereafter, PW-2 was taken to a room where he saw that Deepak and his two friends were detained in one room located at back side of the hostel and they told him that they were collecting donation for Bhandara at Hanuman Mandir, ITO on which he also told Ram Kishan to send those boys to jail if they had committed wrong otherwise they should be released and thereupon, he alongwith Ram Kishan came to the office of PG Hostel where accused Ram Kishan demanded Rs.50,000/- for releasing Deepak and his two friends. PW- 2 further deposed that he refused to give money and came out from the office in the meantime one boy came near his car and told him that he was being called by accused persons and again he went to the office of PG Hostel where accused Tyagi asked Ram Kishan "Kya baat bani"
and thereafter, both accused started negotiating with him and accused Ram Kishan asked in the presence of accused Ashwani Tyagi "aap inko chhudwane ke liye kitne paise de sakte ho" and after negotiation they settled for Rs.20,000/-. PW-2 deposed that both the accused asked him how much money he was having in his pocket and he took out cash of Rs.8,000/- from his pocket and told them that he had Rs.8,000/- with him at that time and thereupon, accused Ashwani Tyagi snatched cash of Rs.8,000/- from his hand and handed over to Sh. Mishra, Manager of PG Hostel and both the accused asked him to take Deepak and Bunty with him and to bring remaining amount of Rs.12,000/- to take the custody of third boy Rahul who was kept by them. Thereafter as per PW-2, accused Ram Kishan called him after one and half hour and asked "paise lekar abhi tak ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 65 of 73 kyun nahi aaye" and he replied that "Bunty paise le ke pahuch raha hai" and that accused Ram Kishan called him 2-3 times and he made efforts to record the conversation on telephone with accused Ram Kishan but same could not be recorded as he was not much aware about the recording functioning of mobile phone.
77. Ld. Defence counsel cross-examined PW-1 Vijay Singh and PW-2 Om Parkash at length but nothing came on record which may diminish the evidentiary value of their testimony. Their testimonies appears to be reliable and trustworthy. There is no reason to disbelieve the same. The fact of demand and acceptance by accused Ram Kishan and accused Ashwani Tyagi is also corroborated by PW-3 Bunty Sharma and PW-4 Rahul Sharma in their testimonies recorded prior to summoning of accused Devi Shankar Mishra u/s 319 Cr.P.C. but thereafter, they did not support the case of prosecution and gone to the extent that they had not deposed before the court earlier regarding these facts. However, on careful scrutiny of their examination in chief and cross examination conducted prior to the date when they were recalled after summoning accused Devi Shankar Mishra u/s 319 Cr.P.C., it is found that they have corroborated the prosecution case regarding their illegal confinement by accused Ram Kishan and Ashwani Tyagi as well as the fact of demand of bribe for their release and acceptance thereof.
78. Complainant i.e. PW-2 Om Prakash has reaffirmed all the material facts regarding demand of bribe and acceptance thereof by accused HC Ram Kishan and Ashwani Kumar @ Ashwani Tyagi. When PW-2 was ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 66 of 73 recalled after summoning of accused Devi Shankar Mishra @ Pappu, he has specifically deposed that accused HC Ram Kishan and Ashwani Tyagi illegally detained Bunty, Deepak and Rahul in the PG hostel, gali no.3, Lalita Park and threatened to implicate them in a false case and on this pretext, they demanded Rs.20,000/- from him, out of which they obtained Rs.8000/- from him and demanded remaining Rs.12,000/- from him. Thus, the ingredients of extortion as defined in Section 383 IPC are also proved. Apart from the fact that accused Ashwani Tyagi handed over the snatched amount of Rs.8000/- to co-accused Devi Shankar Mishra @ Pappu, which he improved when he was recalled after summoning of accused Devi Shankar Mishra @ Pappu, the testimony of the PW-2 i.e. Om Prakash (complainant) has a ring of truth and trustworthy.
79. The testimonies of PW-1 Vijay Singh and PW-2 Om Parkash are also corroborated by the CDRs of mobile phone numbers of these witnesses as well as by the location chart regarding the place from where the calls were made. Ex.PW19/A is the customer application form of mobile no.8826288091 which was subscribed to PW-2 Om Parkash. Ex.PW19/B is the CDRs of mobile phone number of PW-2 from 01.07.2015 to 07.07.2015 and Ex.PW19/C is the location chart of the aforesaid mobile number of complainant. Similarly, Ex.PW15/A is the customer application form of mobile no.9013277463 issued in the name of HC Ram Kishan. Ex.PW15/B is the CDRs of the mobile phone number of HC Ram Kishan from 01.07.2015 to 07.07.2015 and Ex.PW15/C is the location chart. All these documents of aforesaid mobile ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 67 of 73 numbers are supported with certificates under section 65B of Indian Evidence Act i.e. Ex.PW19/D and Ex.PW15/D. Ex.PW17/D to Ex.PW17/G are the documents relating to mobile no. 8791434299 issued in the name of son of PW-1 Vijay Singh. Ex.PW17/A to Ex.PW17/C are the documents relating to mobile no.7838381858 issued in the name of accused Ashwani Tyagi.
80. The sequence of events and timings as deposed by PW-1 Vijay Singh and PW-2 Om Parkash have been corroborated by the way of electronic evidence i.e. CDRs and cell location. A perusal of CDRs of PW-1, PW-2 and accused HC Ram Kishan shows the following facts :
(i) As per Ex.PW17/E i.e. CDRs of mobile no.
8791434299 which was used by PW-1 Vijay Singh on 03.07.2015, he received a call on his mobile number from mobile phone no. 8587937685 from Deepak at 10:49 am. Thereupon, PW-1 received a call from mobile phone no. 9013277463 i.e. of accused Ram Kishan at 10:53 am. PW- 1 Vijay Singh then made a call to PW-2 Om Parkash on his mobile no. 8826288091 at 11:15 am.
(ii) As per Ex.PW-15/B, a call was made by PW-2 Om Prakash on the mobile phone of accused HC Ram Kishan at 12:02 pm and again a call from PW-2 was made to HC Ram Kishan at 01:47 pm and thereupon, HC Ram Kishan made a call to PW-2 Om Prakash at 01:53 pm and similarly calls were exchanged at 02:05 pm and 02:08 pm. Thereafter, on the same day, accused Ram Kishan made two calls at 05:45 pm and 05:46 pm to PW-2 Om Prakash and last call was made by HC Ram Kishan to PW-2 Om Prakash on 03.07.2015 at 06:47 pm. The cell location chart ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 68 of 73 i.e. Ex. PW-15/C and Ex. PW-19/C shows the location of the mobile phone of PW-2 Om Prakash when he made the first call to accused HC Ram Kishan on 03.07.2015 at Mahavir Enclave i.e. Palam Colony near Airport and Ex.PW-15/C shows that at the relevant time the location of mobile phone of accused HC Ram Kishan was at Vikas Marg-A. The Cell ID Chart of the mobile phone of accused Ashwani Tyagi i.e. Ex.PW-17/G also shows that location of his mobile phone on 03.07.2015 from 01:40 pm to 03:50 pm was at ED ODM Vikas Marg and the address of the site tower is at 1/50, Lalita Park, Vikas Marg, Delhi. These CDRs and Cell ID Charts of the mobile phones of PW-1 Vijay Singh, PW-2 Om Prakash, accused HC Ram Kishan and Ashwani Tyagi further establish the case of the prosecution and corroborates the version of prosecution witnesses. Reliance is placed upon the case titled as Shaukat Vs. State, Criminal Appeal no. 998/2012 , wherein Hon'ble Division Bench of Delhi High Court observed that "Error free CDRs with data like IMEI number give an equanimous assurance that the mobile phone instrument was used with the particular SIM card. CDRs with IMEI number, when authentic, would conclusively establish the calls made to and from the SIM card inserted and used in the mobile instrument for making or receiving calls. CDR data, therefore, lend great reliability and credibility as to the truth of the prosecution version".
81. On careful scrutiny of the evidence on record, it transpires that there is a direct evidence regarding demand and acceptance of bribe amount by accused HC Ram ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 69 of 73 Kishan and Ashwani Kumar @ Ashwani Tyagi which gives rise to the presumption under section 20 of the PC Act.
82. In my view, in the facts and circumstances of the present case, the events which followed in quick succession lead to the inference that accused HC Ram Kishan and Ashwani Tyagi conspired to demand bribe of Rs.50,000/- from PW-1 Vijay Singh and PW-2 Om Prakash for release of Bunty Sharma, Rahul Sharma and Deepak Sharma, who were illegally confined by them and after bargaining/negotiation, they finally agreed for Rs.20,000/- for their release and after accepting bribe of Rs.8000/-, they released Bunty Sharma and Deepak Sharma and held Rahul Sharma captive for getting the remaining bribe amount of Rs.12000/- from PW-2 Om Prakash and as such, prosecution has successfully proved the charge under Section 342/384/120-B IPC and Section 7/13 (1) (d) of PC Act r/w Section 120-B IPC against accused HC Ram Kishan and Ashwani Kumar @ Ashwani Tyagi beyond reasonable doubt.
Departmental Enquiry
83. Ld. defence counsel vehemently contended that continuation of present trial is of no use even at this fag end as both the accused persons were exonerated in the departmental enquiry on merits by Sh. Sameer Sharma, DCP, 1st Battalion. Reliance is placed upon a judgment titled as Johnson Jacob vs. State, W.P. Crl. no. 1279/2021, wherein Hon'ble High Court of Delhi held that "when departmental proceedings and the criminal ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 70 of 73 proceedings are a mirror image of each other and the accused has been exonerated on merits in the departmental inquiry, and not due to minor technicalities or irregularities, the criminal proceedings, on the same set of facts and circumstances, cannot be permitted to be continued as the standard of proof in departmental proceedings is much lower than the standard of proof in criminal proceedings. The same principle has been laid down by the Hon'ble Supreme Court in Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police (supra)".
84. In Radheshyam Kejriwal vs. State of West Bengal, (2011) 3 SCC 581, which was later affirmed by the judgment of "Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police (supra) the broad principles were culled out are as under:
"38. The ratio which can be culled out from these decisions can broadly be stated as follows;
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding.
If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue and ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 71 of 73
(vi) in case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
It finally concluded:
39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
85. Adverting back to the facts of present case, accused persons have not filed on record the findings/report of the Enquiry Officer, but have filed the final order passed by Sh. Sameer Sharma, IPS, DCP, 1st Battalion, DAP, which was passed pursuant to their joint representation against the finding of Enquiry Officer, wherein it is noted by the DCP, 1st Battalion that "I have evaluated the evidence adduced in the DE proceedings and find that EO has rightly prove the charge upon the delinquents". However, after looking into the overall facts DCP 1 st Battalion, Sh. Sameer Sharma exonerated both the accused persons without prejudice the final outcome of the criminal case pending against them. Therefore, it is not the case where the accused persons were exonerated by the Enquiry Officer on merits, rather the charge levelled against them was proved against them and they were exonerated when they filed joint representations against the finding of ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 72 of 73 Enquiry Officer, who also observed that in EO has rightly proved the charge upon the delinquents, but looking into the overall facts, exonerated them. Therefore, the judgment of Johnson Jacob (supra) as relied upon by Ld. Defence counsel is not helpful in the facts and circumstances of present case.
Conclusion.
86. In view of above reasons and discussion, I am of the considered opinion that prosecution has successfully proved the charge under Section 342/384/120-B IPC and Section 7/13 (1) (d) of PC Act r/w Section 120-B IPC against accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi beyond reasonable doubt. Accordingly, accused Ram Kishan and Ashwani Kumar @ Ashwani Tyagi are held guilty for offence punishable under Section 342/384/120-B IPC and Section 7/13 (1) (d) of PC Act r/w Section 120-B IPC.
87. There is no evidence against accused Devi Shankar Mishra @ Pappu and accordingly, he stands acquitted of the charges framed against him. His bail bond stands cancelled and surety is discharged. However, in view of Section 437-A Cr.P.C., he is directed to furnish personal bond in the sum of Rs.10,000/- with one surety within a week. Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2022.11.09 Announced in the open court 16:57:55 +0530 on 09 th November, 2022 (Sanjeev Kumar Malhotra) Special Judge (PC Act) (ACB-01) Rouse Avenue District Courts New Delhi ____________________________________________________________________________________________ FIR No. 1447/2015, PS Shakarpur State vs. Ram Kishan and Ors. Page 73 of 73