Delhi District Court
State vs Riyazuddin on 29 January, 2025
IN THE COURT OF SH. PANKAJ RAI, JMFC-01,
NORTH EAST DISTRICT, KARKARDOOMA COURT, DELHI
STATE Vs. RIYAZUDDIN & ORS.
FIR No. 505/2004
PS : BHAJANPURA
U/S : 384/506/507/511/120B/34 IPC
Date of institution of the case : 06.07.2006
Date of judgment reserved : 12.12.2024
CNR : DLNE020000432006
Date of commission of offence : 11.12.2004
Name of the complainant : Vinod Gupta
Name of accused and address : 1. Riyazuddin
S/o. Sh. Hasimuddin
R/o. V-145, Gali No.19,
Vijay Park, Maujpur, Delhi.
2. Akbar Saeed
S/o. Sh. Akhtar Saeed
R/o. V-284, Gali No.21,
Vijay Park, Maujpur, Delhi.
3. Maksood (discharged on 04.04.2008)
FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 1 /21
Digitally
signed by
PANKAJ PANKAJ
Date:
RAI
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+0530
S/o. Sh. Shaukat
R/o. V-17/7, Near Shiv Mandir,
Vijay Park, Maujpur, Delhi.
4. Nadeem (discharged on 04.04.2008)
S/o. Sh. Abdul Hakeem
R/o. Gali No.5, Kabir Nagar,
Behind Shamshan Ghat,
Welcome, Delhi.
5. Rifakat Ali (discharged on 04.04.2008)
S/o. Sh. Faiz Ahmad
R/o.V-716/B, Gali No.21A,
Vijay Park, Maujpur, Delhi.
6. Navprabhat@ Tinku
(discharged on 04.04.2008)
S/o. Sh. Satpal Singh
R/o.V-418, Gali No.27,
Vijay Park, Maujpur, Delhi.
7. Rahees Ahmad @ Langra
(discharged on 04.04.2008)
FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 2 /21
PANKAJ Digitally signed
by PANKAJ RAI
RAI Date: 2025.01.29
15:42:19 +0530
S/o. Sh. Hasimuddin
R/o. V-145, Gali No.19A,
Vijay Park, Maujpur, Delhi.
Offence complained of : 387/384/506/507/511/34 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 29.01.2025
Final order : ACQUITTED
JUDGMENT
CASE OF THE PROSECUTION :
1. The case of the prosecution in brief is that on 11.12.2004 the complainant Vinod Gupta received a threatening phone call on his landline number 22913155 wherein the caller introduced himself as Sanjeev Sabharwal having a reward of Rs.1 lacs over him and he asked the complainant about his son and demanded Rs.5 lacs from the complainant or otherwise he will shoot his son if the demand is not fulfilled. When the complainant asked from the caller as to from where he is calling, he told that he is in Yamuna Vihar and thereafter, the said caller disconnected the phone. The complainant noted the mobile number from which the said threatening call was received as 9416018119 from the caller ID of his landline number. That the complainant became frightened and he made a call to police.
Based on the above allegations present FIR was registered under sections 384/506/507/511/120B/34 IPC.
FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 3 /21 Digitally signed by PANKAJ PANKAJ Date:
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2. Upon completion of investigation, the chargesheet was filed against seven persons namely, Navprabhat @ Tinku, Maksood, Rifakat Ali, Rahees, Nadeem, Riyazuddin and Akbar Saeed. Cognizance was taken and all the said accused were summoned vide order dated 06.07.2006. Vide order dated 04.04.2008 five accused namely, Navprabhat @ Tinku, Maksood, Rifakat Ali, Rahees and Nadeem were discharged. On the basis of material filed along with the charge-sheet, initially Charge under section 384/506/507/511/34 IPC was framed against both accused Riyazuddin and Akbar Saeed (hereinafter referred to as "accused persons") on 04.04.2008 to which they both pleaded not guilty and claimed trial. Thereafter, on 15.05.2024 the additional charge for offence under section 387/34 IPC was also farmed against both the accused persons to which they both pleaded not guilty.
EVIDENCE OF THE PROSECUTION :
3. In order to prove its case, prosecution examined total 11 witnesses.
4. PW-1 is Duty Officer ASI Naubat Ram. He deposed that on 11.12.2004 he was posted in PS Bhajanpura as a duty officer from 4pm to 12 midnight when at around 9.15pm Constable Pramod came to him with a rukka, which was sent by HC Amar Singh. That he made endorsement on the rukka Ex.PW1/A bearing his signatures. That he recorded FIR Ex. PW1/B on the basis of rukka bearing his signatures. That he handed over copy of FIR as well as original rukka to Constable Pramod for handing over the same to HC Amar Singh for investigation. He brought original FIR register. He also brought original DD No. 66-B, dated 11.12.2004 Ex. PW1/C (OSR). He also deposed that the above mentioned DD No.66-B was recorded at about 7.55 PM through PCR Call/Wireless Call. That the said DD entry was handed over to HC Amar Singh. That HC Amar Singh alongwith Constable Parmod went to attend the call.
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5. PW-2 is Sushil Kaushik who was the owner of mobile repairing shop. He deposed that he was having a general store and mobile repairing shop. That in December, 2004, accused Riyazuddin came to his shop for repairing a mobile whose screen display was not working. That he checked the same by putting his own SIM card. That he told that its repair shall be expensive as the screen is defective and he removed his SIM from the said mobile phone and returned it to accused Riyazuddin, who left his shop. That police came to his house after 2-3 days and inquired from him about his number and that he narrated facts to the police. That he also disclosed the address of accused Riyazuddin to police. That police recorded his statement. He correctly identified accused Riyazuddin in the Court. He further deposed that he does not remember the model number of the mobile phone which was brought to his shop for repair purpose by accused Riyazuddin. He deposed that he does not remember the exact date when the accused Riyazuddin visited his shop to get the said mobile phone repaired as number of customers visits his shop and that there is long lapse of time. In the cross-examination by Ld. APP for the State he deposed that he does not remember whether the accused Riyazuddin visited his shop on 09.12.2004. He denied the suggestion that accused Riyazuddin visited his shop on 09.12.2004. He deposed that it is correct that he put his SIM bearing no. 9811813262 in the aforesaid mobile phone which the accused Riyazuddin brought before his shop. He denied that police reached at the house of accused Riyazuddin at his instance. He denied that accused Riyazuddin produced a mobile phone to the police. He stated that he does not remember whether the mobile phone was of Nokia 6100 model. He deposed that he can identify the case property i.e. mobile phone. The court has recorded observation during the evidence of PW-2 that the case property i.e. the mobile phone Nokia 6100 has already been destroyed and could not be produced before the Court.
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6. PW-3 is complainant Vinod Kumar Gupta. He deposed that on 11.12.2004 at about 07:00 PM, he received a call on his landline phone bearing No. 22913155 from a person namely, Sanjeev Sabarwal who told him that he is a wanted in concerned PS and that a price of Rs. One Lacs has been announced by the police against him and he threatened complainant that either he delivers Rs. 5 lacs to him or otherwise he will kill his son by shooting. That a caller ID was also fixed on his said landline phone. He deposed that he does not remember the phone number from which he had received the said call. That called the police at 100 number and police official visited his home and recorded his statement Ex. PW-3/A bearing his signatures. Ld. APP sought permission to ask some leading question from PW-3.
He then deposed that it is correct that he received call from mobile no. 9416018119 and that it is correct that said Sanjeev Sabarwal was also saying that he was calling from Yamuna Vihar and thereafter he cut the phone.
7. PW-4 is HC Parmod Kumar who took rukka to PS. He deposed that on 11.12.2004, he was posted at PS Bhajanpura as Constable and that he joined investigation of the present case with the IO HC Amar Singh and reached at the spot i.e. House No. 439, main 66 Futa Road, Vijay Park, where the complainant Vinod Gupta met with them. That IO recorded statement of complainant Ex. PW3/A and handed over the same to him with the direction to get the case registered at PS Bhajanpura. That after getting the case registered, he came back to the spot and handed over the copy of FIR and original rukka to the IO for further action. That, thereafter, he came back to the police station.
8. PW-5 is second IO Inspector Vikram Singh. He deposed that on 29.03.2005 he was posted at PS Bhajpura as SI when further investigation of the present case was handed over to him. That 5 accused persons were already arrested and NBWs of the accused Rahis Ahmad @ Langra was already issued. That during the FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 6 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:42:44 +0530 investigation, he got information that accused Rahis Ahmad made an application before the Ld. MM Court for his surrender and on 23.04.2005, he made a formal application for arrest and interrogation of accused Rahis Ahmad Ex.PW5/A. That after getting the permission of court, accused Rahis Ahmad was arrested vide memo EX.PW5/B and his personal search vide was also conducted vide memo Ex.PW5/C. That disclosure statement of accused was also recorded Ex. PW5/D. That, thereafter, he made a formal application for police remand of the accused Rahis Ahmad for two days Ex.PW5/E and one day PC was granted by the court. That at the instance of accused Rahis Ahmad they reached at his house for the search of sim/chip however, same could not got recovered and recovery instance memo Ex. PW5/F was prepared. That, thereafter accused was locked up at PS after getting his medical examination done and that on next day 24.04.2005, accused Rahis Ahmad was produced before the court concerned and he was sent to judicial custody. That after completion of investigation chargesheet was prepared and submitted before the court. He identified his signatures on arrest memo, personal search memo and recovery instance memo. Accused Rahis Ahmad was already discharged vide order dated 04.04.2008.
9. PW-6 is Darbara Singh whose mobile phone number was used in threatening the complainant. He deposed that on 07.12.2004 he was at a marriage function at Suraj Kund, Faridabad when his mobile phone of Nokia running with a BSNL number got stolen. He deposed that due to long lapse of time he does not remember the exact mobile number, however, the same was starting with the digit 94160 and that in this regard he also made a complaint. That he also informed the BSNL department where he requested to stop the services of his mobile number. That on 22.12.2004 he was called at PS Bhajanpura where he was inquired by the police with respect to aforesaid mobile number and that he narrated the whole FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 7 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:42:50 +0530 incident and made his statement to the SHO PS Bhajanpura which was Ex.PW6/A. H identified his signatures on the statement. That he also furnished the affidavit regarding the said mobile phone alongwith BSNL customer application form, ration card and copy of bill same which were marked as PW-6/A (colly 5 pages). That he got information from the police regarding the recovery of the aforesaid mobile phone and he got it released on superdari after furnishing superdarinama. He deposed that he cannot produce the aforesaid mobile as same has been destroyed. The court observation in his evidence is that the superdarinama is not traceable in judicial file.
10. PW-7 is Surender Kumar, Nodal Officer of Bharti Airtel. He was summoned to bring details of mobile number 9811813262. He deposed that as per their available record, for the period between 01.12.2004 to 20.12.2004 the mobile number 9811813262 does not belong to Airtel. His authority letter was exhibited as Ex. PW7/A. His detailed report was exhibited as Ex.PW7/B.
11. PW-8 is Ajeet Sing, Nodal officer of Vodafone. He deposed that he was authorized by the competent authority to produce the relevant record vide authority letter Ex.PW8/A. That as per record available with them, no record of Mobile No. 9811813262 for the period w.e.f. 01.12.2004 to 20.12.2004 was available. His report was exhibited as Ex.PW8/B.
12. PW-9 is Ravinder Kumar, SDE, BSNL Haryana. He deposed that as per their record CDR of mobile no. 9416018119 for the period 01.12.2004 to 20.12.2004 was not available. That report in this respect is given in his authority letter Ex. PW9/A.
13. PW-10 is Inspector Pramod Anand who is the first investigation officer and conducted the initial investigation. He deposed that on 11.12.2004, he was posted FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 8 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:42:56 +0530 at PS Bhajanpura as a SI when the present FIR was registered with regard to extortion called to the complainant Vinod Kumar. That FIR was marked for investigation to HC Amar Singh. That as per the directions of senior officer, he was also assisting the investigation of the case. That during the investigation, he alongwith HC Amar Singh and other police officials went to the house of complainant Vinod Kumar for making the inquiry. That during investigation of the case, he alongwith HC Amar Singh and Ct. Ravinder went to the office of BSNL at Panipat and collected the details of mobile number i.e 9416018119 from which the extortion call was made to the complainant. That the said number belonged to one Darbara Singh R/o Budhkalan, Yamuna Nagar, Haryana. That when they went to the Budhkalan, Yamuna Nagar, Haryana to the house of Darbara Singh who was a Chief Executive Engineer, Hydel Project, Haryana, he was not available at the house. That they directed his wife to inform him to visit the PS Bhajanpura, Delhi. That then they came back to Delhi. That he analysed the call details of the number 9416018119 and found that at the time of making the extortion call the said number was used in another mobile handset (IMEI No. 35089440065495) which was not that of Darbara Singh as the IMEI number of his handset was 35254900338290. That he put both IMEI number on observation. That on 20.12.2004, the investigation of the case was marked to him for further investigation. That he received details of both the IMEI number from different service provider and found that one mobile number 9811813262 was found to be activated in Darbara Singh's mobile handset. That he got the call details from the service provider i.e Hutch and the said number was registered in the name of Sushil Kumar R/o C-Block, Yamuna Nagar, Delhi. That on 22.12.2004, Darbara Singh came to the PS Bhajanpura and gave a written complaint Ex. PW6/A of his stolen mobile phone alongwith the document marked as Mark PW6/A (colly 5 pages). That he recorded his statement U/s 161 Cr.PC. That, thereafter, he FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 9 /21 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2025.01.29 15:43:01 +0530 alongwith HC Amar Singh and Constable Ravinder went to the place of Sushil Kumar Kaushik and inquired from him about the calls. That he informed him that he runs a mobile repairing shop and one person namely Riyazuddin, whom he knows personally, came to him to get a mobile phone make Nokia 6100 repaired. That he further stated that he checked the condition of the mobile phone by putting his own SIM Card (9811813262) only. That the screen of the said mobile phone was broken and was not in working condition. That seeing the higher repairing cost, accused Riyazuddin took the phone back without getting it repaired. That at his instance, they reached at the Gali no. V-21, Vijay Park, Maujpur, Delhi at the place of accused Riyazuddin where they found him. That they apprehended accused Riyazuddin and interrogated him about the extortion call made to the complainant namely Vinod Kumar to which he disclosed that he alongwith his other associates Nab Prabhat @ Tinku, Rahis Ahmed, Maqsood, Nadeem, Rifakat and Akbar hatched the conspiracy in furtherance of which Rahis Ahmed, Nav Prabhat and Riyazuddin went to the Sonipat and made the said extortion call. That he further disclosed that the said phone was to be disposed off by Nadeem after the extortion call. That they also recovered one mobile phone Make Nokia 6100 (grey colour with IMEI No. 35254900338290) from the pocket of his shirt which was identified by the Sushil Kaushik to be the same phone which was brought by the Riyazuddin at his shop for repair. That he seized the mobile phone vide seizure memo Ex. PW10/A. That he arrested the accused Riyazuddin vide arrest memo Ex. EX-A2 and conducted the personal search memo Ex. PW10/B. That he recorded his disclosure Statement of accused Ex. PW10/C. That he also recovered one mobile phone make Motorola Model C-300 (silver Colour) from accused Riyazuddin which he had seized vide seizure memo Ex. PW10/D. That during the investigation of the present case, he also arrested Maqsood, Nadeem and Rifakat (already discharge vide order dt. 04.04.2008). That on the same day, he also FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 10 /21 Digitally signed by PANKAJ PANKAJ Date:
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arrested accused Akbar from Gali no.21, Vijay Park, Maujpur, Bhajanpura, Delhi vide arrest memo and conducted his personal search vide memo Ex. PW10/E. That he recorded the disclosure statement of accused Akbar Ex. PW10/F. That on the same day, he also recovered from accused Akbar one mobile phone make Nokia 6610 (colour Red with IMEI No. 35089440065495) which was used in making the extortion call to the complainant Vinod Kumar. That he seized the said mobile phone vide seizure memo Ex. PW1/G. That they came back to the PS Bhajanpura alongwith all the accused persons arrested on that day. That he deposited the case property i.e seized mobile phone and jamatalashi in the malkhana in the PS. That on the next day, he produced accused persons in the Court from where they were sent to Judicial custody. That on 28.12.2004, he formally arrested other co-accused namely Nab Prabhat @ Tinku (already discharged vide order dt. 04.04.2008) in the PS Bhajanpura. He correctly identified both the accused persons in the court. He also identified his signatures on the arrest memo, personal search memo and disclosure statement of the accused persons. He deposed that he can identify the case property. At that stage, MHC(M) has submitted that case property was deposited with District Nazir. There is court observation that the other mobile phone was already destroyed as stated by Darbara Singh/Superdar in his evidence on 17.02.2020.
14. PW-11 is Pankaj Kumar, District Nazir, Tis Hazari (HQ). He brought the certified copies of the record from the Nazarat Branch, HQ, Tis Hazari regarding the case properties in the present matter. He deposed that as per record MHCM(CP/SHO) PS Bhajanpura deposited the case properties one mobile phone. Nokia, One mobile phone Motorolla C-300 and One D/L Ajaane Akbar, Rs. 20/- vide RC no. 39/21 dated 21.05.2013 (DN No. 397/2013) Ex. PW11/A for disposal /destruction in compliance of orders of the Hon'ble Court of Ms. Mayuri FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 11 /21 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2025.01.29 15:43:14 singh Ld. MM, KKD Court Ex. PW11/A1. That as per record the case properties i.e. one mobile phone Nokia, one mobile phone Motorolla C-300 had been disposed off through public auction in Rs. 46/- (Rs. 23/- each) Ex. PW11/B(Colly). That as per record the case property i.e. some documents (DL/kagjat) has been destructed/destroyed on 21/01/2014 to 24/01/2014 in the presence of OIC (nazarat), District Nazir and property Clerk with the approval of competent Authority Ex. PW11/C(Colly). That as per record the case property i.e. Rs. 20/- (Rupees Twenty only) had already been deposited in the Government Account on 23/05/2013 through Cashier (HQ) Vide TR Receipt no. 28095 dated 23/05/2013 Ex.PW11/D. The certificate from the concerned authority regarding the auction of case property was Ex. PW11/E. STATEMENT / DEFENCE OF THE ACCUSED :
15. After conclusion of prosecution evidence, statement of accused persons under section 313 Cr.P.C read with 281 Cr.P.C/351 BNSS was recorded by the court. Both the accused persons claimed innocence and pleaded false implication in the present case by the police.
16. Accused persons did not lead any defence evidence. Thereafter, matter was fixed for final arguments.
17. Ld. APP for the State has argued that the testimonies of the all the prosecution witnesses are corroborative of each other and guilt of the accused persons stands proved beyond reasonable doubt. Hence, it is prayed that the accused be convicted for the offences charged. On the other hand, it is argued by Ld. Counsel for accused that the accused persons have been falsely implicated in the present matter and they are entitled to be acquitted as the recovery is doubtful and that they never made any call to the complainant and that the case of prosecution was not believable due to material inconsistencies and contradictions.
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18. The respective submissions of Ld. APP for the State and Ld. Counsel for the accused persons have been considered. The record has been thoroughly and carefully perused.
ANALYSIS AND FINDINGS:
19. Both the accused persons have been charged under section 387/384/506/507/511/34 IPC. Before proceeding further, it is imperative to discuss the legal provisions in this regard.
20. Section 383 IPC deals with the offence of extortion. It provides that:
"whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
21. Section 387 IPC prescribes a punishment for a term which may extend to seven years and fine for putting a person in fear of death or grievous hurt to him or to any other person in order to commit extortion. One of the essential ingredients for the commission of offence under section 387 IPC is putting any person in fear and thereby dishonestly inducing for delivery of any property or valuable security or anything which may be converted into valuable security.
22. Section 387 IPC is an aggravated form of extortion and for constituting the offence under Section 387 IPC, the prosecution had to prove the necessary ingredients of the offence of extortion. To prove the offence of extortion, the prosecution must establish:
a. That the accused had put, or attempted to put, the complainant in fear of death or grievous injury.
b. That fear of death or grievous injury was aimed towards either the complainant or to some other person.
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2025.01.29 15:43:26 c. That the accused had done the above act, in order to commit extortion, i.e., that the accused thereby intended to induce the complainant, so put in fear, to deliver the valuable security or some property and lastly that the accused did such act dishonestly.
23. Section 503 IPC defines the offence of criminal intimidation. It provides that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. The offence is punishable under section 506 IPC.
24. Section 507 IPC is primarily a specie of the offence under section 503 IPC and is defined as follows:
"507. Criminal intimidation by an anonymous communication. -- Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section."
25. The prosecution must prove the ingredients of section 503 IPC before the proving the offence under section section 507 IPC, since it is clear from the words employed in section 507 IPC namely "Whoever commits the offence of criminal intimidation by an anonymous communication..."
26. Section 511 IPC makes attempt to commit an offence punishable. The offence attempted should be one punishable by the IPC with imprisonment. The conditions stipulated in the provision for completion of the said offence are: (a) The offender should have done some act towards commission of the main offence;
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(b) Such an attempt is not expressly covered as a penal provision elsewhere in the IPC. Thus, attempt on the part of the accused is sine qua non for the offence under Section 511.
27. The entire thrust during the trial by Ld. Counsel for accused persons remained on the aspect that it was not the accused persons who made any phone call to the complainant for committing any extortion and that no mobile phone was recovered from them. It is not the case of the accused persons as put forth during the trial that the complainant was not criminally intimidated or he was not put in the fear of injury to part with the money. The defence remains that both the accused persons did not commit any extortion or in other words, both accused persons did not make any extortion calls to the complainant and no recovery has been made from them.
28. It is important to note that during investigation it has emerged that the mobile number from which the threatening call was made belonged to Darbara Singh/PW-6, which was lost when he was attending a marriage on 07.12.2004 at Suraj Kund. When the call details of the said mobile number were obtained it was revealed that the said mobile number which was used for committing the offence in question was having two different IMEI numbers i.e.35254900338290 and 35089440065495 and that both the phones, one phone from which threatening call was made and the other phone of which chip was used, were recovered from accused Riyazuddin and Akbar Saeed. The case of prosecution primarily hinges on the recovery of mobile phone from the accused persons. The respective roles of both the accused persons have been analysed separately as follows.
29. Coming firstly to the role of accused Riyazuddin, it is the case of prosecution that mobile phone no.9416018119 belonging to PW-6 Darbara Singh was used in making the threatening call to the landline number of FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 15 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:43:37 +0530 PW-3/Complainant and that when the said mobile number 9416018119 alongwith stolen mobile handset Nokia 6610 grey colour, both belonging PW-6 Darbara Singh, bearing IMEI no.35254900338290 were put into surveillance by the police, it emerged that in the said stolen mobile handset of PW-6 one mobile sim bearing no.9811813262 belonging to PW-2 was activated later on and that PW-2 runs a mobile repairing shop and he disclosed that accused Riyazuddin came to his shop for getting stolen mobile handset Nokia 6610 grey colour bearing IMEI no.35254900338290 of PW-6 for repair. It is alleged against accused Riyazuddin that stolen mobile handset Nokia 6610 grey colour bearing IMEI no.35254900338290 of PW-6 was recovered from him and that he is involved in the crime in question. It is to be seen as to whether the prosecution has been able to connect the accused Riyazuddin to the extortion threat which was extended to the complainant or not. It is to be seen as to whether the prosecution has been able to prove that the mobile number 9416018119 was being used by the accused Riyazuddin or not. The CDRs cannot prove as to who made these phone calls from the number 9416018119.
30. In reference to above it is to be noted that PW-2 Sushil Kaushik who runs mobile repairing shop has not supported the case of prosecution in his evidence. He denied the suggestion in the cross-examination by Ld. APP for the State that accused Riyazuddin visited his shop on 09.12.2004. He also denied the suggestion that the police reached house of accused Riyazuddin at his instance. He also denied the suggestion that the accused produced the mobile phone to the accused. He also deposed that he does not remember as to whether the model number of mobile was Nokia 6100. In the cross-examination by Ld. Counsel for the accused he admitted that it is correct that accused Riyazuddin was not known to him prior to the present incident. It is not in dispute that no TIP of accused Riyazuddin was conducted. The FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 16 /21 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2025.01.29 15:43:42 arrest memo, disclosure memo or the recovery memo does not bear any signatures of PW-2 to corroborate his presence on the spot despite admission by IO/PW-10 in his cross-examination that PW-2 was with him at the time of arrest of accused Riyazuddin. Even the recovery memo Ex.PW-10/A does not bear signatures of any independent witness. Both the witnesses therein were police officials. Although, there is no impediment in believing the version of prosecution which is based solely on the testimony of the police officials, but for that the prosecution is first required to lay a very strong foundation to show that sincere efforts were made on their part to join independent witnesses. Present is the case where no sincere efforts were taken by the police officials to join any public person/independent witness in the case. PW-10 has admitted at the time of arrest of accused Riyazuddin there were certain passersby as it was a running road. It is not the case that no independent witnesses were available or that the recovery was made at odd hours when there is no possibility of availability of independent witness. It is thus evident that public witnesses were available and could have been associated to witness the recovery. PW-10 also admitted in his cross-examination that he had not obtained signatures of PW-2 on any document including recovery memo. There was no satisfactory explanation regarding non-joining of independent witness despite availability. Therefore, the recovery seems to be doubtful and hence, it would be unsafe to rely only on the alleged recovery from the accused Riyazuddin. The disclosure statement of accused Riyazuddin is hit by section 25 Evidence Act and not admissible in evidence. Pertinently, the case property i.e. mobile phone model number Nokia 6100 grey colour of PW-6 was never brought in the court for identification purpose during the trial. It has emerged in the evidence of PW-6 that it was released on superdari to him, however, he could not produce it during his evidence as the same has been destroyed. Even the superdarinama was not found on record to establish the identity of case property. When the mobile handset itself FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 17 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:43:47 was not proved, the possession of the accused of that mobile phone stands not proved. Even if for the sake of assumption, it is assumed that the recovery is proved, there is also no voice identification of accused Riyazuddin to show that he gave any threats to the complainant on the fateful day. From mere recovery itself the ingredients of alleged offences are not proved beyond reasonable doubt due to lack of any other corroborative evidence. The sim card of mobile number 9416018119 was never recovered by the IO. The complainant/PW-3 has not deposed anything incriminating against accused Riyazuddin. PW-7 to PW-9 have not produced CDRs as no record was available with them. Amidst such circumstances, there is nothing on record to connect accused Riyazuddin with the crime in question and the prosecution has failed to establish his role in the alleged act of threatening of complainant/PW-3 beyond reasonable doubt.
31. As regards role of other co-accused Akbar Saeed, it is the case of prosecution that the mobile phone number 9416018119 as used in giving threat to the complainant, belonged to PW-6 Darbara Singh and that it was found to be activated in mobile handset bearing IMEI no. 35089440065495 when the threatening call was made to the Complainant/PW-3 and that the aforesaid mobile handset which was used in giving threats, was recovered from co-accused Akbar Saeed. It has emerged in the evidence of PW-11 Pankaj Kumar, District Nazir, Tis Hazari (HQ), that the case property allegedly recovered from accused Akbar i.e. Mobile phone of Nokia 6610 make which was seized vide seizure memo Ex.PW1/G and deposited with District Nazir, Tis Hazari, has been disposed of in public auction and hence could not be produced in the court to establish its identity. It is not clear from record as to from where any of the accused made the alleged phone call. It is also not clear as to who actually made threatening phone call to the complainant. There was no effort to procure the location chart of the FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 18 /21 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2025.01.29 15:43:53 +0530 connected towers of the service provider. When there is no scientific evidence connecting the accused persons with the mobile phone then how it could be assumed that the accused persons were having the mobile phone bearing IMEI no.35089440065495 and used it for making a threat call. Even the alleged recovery as shown in recovery memo Ex.PW-10/G does not inspire any confidence for the reason that it does not bear signatures of any independent witness and both the witnesses therein were police officials and there was no satisfactory explanation as to why no independent public witnesses were not joined in the investigation and recovery proceedings despite their availability. IO/PW-10 has admitted in his cross-examination that he had not got any signature of any public witness on the arrest memo and recovery memo or any other document pertaining to accused Akbar Saeed and which makes the alleged recovery doubtful. The disclosure statement of accused Akbar Saeed is hit by section 25 Evidence Act and not admissible in evidence. PW-2, PW-3 and PW-6 have not deposed anything incriminating against him in their evidence. No CDR records were available with PW-7 to PW-9. The sole circumstance of recovery of mobile handset ipso facto is not sufficient to prove the ingredients of alleged offences beyond reasonable doubt without any other corroborative evidence. That being the position, the court has no option but to give benefit of doubt to accused Akbar Saeed as well as there is nothing on record to connect him with the crime in question and the prosecution has failed to prove its case beyond reasonable doubt against him as well.
32. Reliance is also placed upon the judgment in the case of State of Punjab v. Balbir Singh AIR 1994 SC 1872, wherein the Apex Court held that:
''It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 19 /21 Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:43:59 +0530 respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non- compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.'' (emphasis supplied)
33. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt.
34. In the instant case, there is a yawning gap between the charge against the accused persons and the evidence that the prosecution has adduced. The circumstances do not establish the guilt of the accused persons at all. The evidence adduced herein gives rise to doubts, improbabilities and inconsistencies and hence, the prosecution has not been able to prove its case beyond reasonable doubt. The prosecution has failed to prove that the alleged threatening call to the complainant was made by the accused persons in furtherance of their common intention to extort Rs. 5 lakhs from the complainant by putting him in fear of his son's life. FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 20 /21 Digitally signed by PANKAJ PANKAJ RAI RAI Date:
2025.01.29 15:44:04 +0530 Even the alleged recovery of mobile handset from accused persons remained doubtful. There is no other corroborative material on record to establish guilt of accused persons. Accordingly, the charge against the accused persons has not been proved beyond reasonable doubt and thus, they are entitled to be acquitted.
35. Therefore, accused Riyazuddin and Akbar Saeed are hereby acquitted of the charge under 387/384/506/507/511/34 IPC.
36. Bail bonds, if any, furnished by the accused persons at the time of commencement of trial stands cancelled. Surety, if any, stands discharged. Documents, if any, shall be returned to its rightful owner as per rules. Endorsement, if any, stands cancelled. Case property, if any, shall be disposed off as per rules after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court.
File be consigned to record room after necessary compliance as per rules.
Digitally signedPANKAJ by PANKAJ RAI Date:
RAI 2025.01.29
15:44:11 +0530
Announced in the (PANKAJ RAI)
Open Court on 29.01.2025 Judicial Magistrate First Class-01
NE, KKD Courts, Delhi
It is certified that this judgment contains twenty one (21) pages and each Digitally page bears my signature.
signed by PANKAJ PANKAJ Date:
RAI RAI 2025.01.29 15:44:15 +0530 (PANKAJ RAI) Judicial Magistrate First Class-01 NE, KKD Courts, Delhi FIR NO. 505/2004 STATE VS RIYAZUDDIN & ORS. PAGE NO. 21 /21