Delhi District Court
State vs Rakesh Kumar & Anr. Ca No.54364/16 on 16 February, 2017
State Vs Rakesh Kumar & Anr. CA No.54364/16
IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 07/14 & Case No. 54364/16.
IN THE MATTER OF:
State (Govt of NCT of Delhi)
Through Public Prosecutor,
West Delhi. ....... Appellant
Versus.
1. Rakesh Kumar,
S/o Sh. Ajay Kumar Singh,
R/o Village and Post Office Tepri,
District Mujafferpur, Bihar.
2. Sandeep Kumar,
S/o Late Sh Narinder Parsad,
R/o Village & Post Office Satihara,
Pariha, District Sita Marhi, Bihar. ...... Respondents.
Date of Institution : 21.01.2014
Date of arguments : 14.02.2017
Date of Judgment : 16.02.2017
Result: Appeal dismissed. Page 1 of 10
State Vs Rakesh Kumar & Anr. CA No.54364/16
JUDGEMENT
1. The State through Public Prosecutor (West), Delhi has filed this appeal against the judgment of Ld. Trial Court below dated 24.10.2003 acquitting the respondents/accused persons from the charge of commission of offences punishable under Section 387/506/34 IPC.
2. The notice of appeal was issued to the respondents who have contested the same. Trial Court record was summoned.
3. As per charge sheet filed in Ld. Trial Court, it is averred that the complainant Sh Thakur Dass Gauba made a complaint to SHO, Police station Hari Nagar on 1.3.2004 stating to have been receiving threatening calls on his landline phone bearing no. 25530162 since 23.2.2004 from one mobile no. 9811870631 made by a person who disclosed his name as Ansari asking him to pay Rs. 6 lacs or else he would kill complainant's son namely Pankaj Gauba. Such call was also received on 27.2.2004 and the complainant fixed the date for appointment as 3.3.2004. Consequent to the complaint, FIR was registered. On 1.3.2004, the complainant was again called on telephone and the time of appointment was refixed as 11 p.m and the place at Hari Nagar Ghanta Ghar chowk. This was shared with the local police and a raiding party was prepared resulting into Result: Appeal dismissed. Page 2 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 apprehension of these two persons on the same day and recovery of one mobile phone make Nokia 2100 bearing IMEI no. 351344608087588 with chip no. 9811870631 from Sandeep and another mobile chip with no. 9811870631 and mobile phone make Siemens bearing IMEI no. 350019356660379 from accused Rakesh Kumar and another mobile chip with no. 9899136379. 3.1. As per the charge sheet, these mobile phone numbers were used for advancing the alleged threats. A visiting card of complainant was also recovered from Sandeep besides one diary and several greeting cards. During investigation, call record of three mobile numbers were obtained by the IO. Upon filing of charge sheet, an order of charge was passed on 13.9.2010 and a charge was formally framed on 16.5.2011 against both accused persons for above noted offences of which accused persons were eventually acquitted despite the prosecution having examined as many as six witnesses.
4. The judgment is impugned primarily on five broad grounds which are as under viz:
A. It does not appreciate that PW 3 supported the prosecution case in as much as, he had recognized the voice of accused Sandeep in telephonic conversation dated 1.3.2004. B. It does not properly appreciate the fact that accused persons were apprehended from the spot which was decided Result: Appeal dismissed. Page 3 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 for collecting extortion money.
C. That the judgment impugned does not appreciate the fact that at the time of apprehension, the mobile chips used for making extortion calls were also recovered from the possession of accused persons.
D. It is not appreciated that accused were identified correctly by PW3 who also provided the details of extortion calls; and E. That the judgment impugned ignores the CDRs of both mobile chips that indicate that outgoing calls were made from these phones on the landline number of the complainant.
5. The Ld. Addl. Public Prosecutor Sh B.B. Bhasin has accordingly argued that on account of the above factors, the judgment is against the settled law and prepositions. Conversely, ld counsel for respondents/accused persons has, per force, argued that all the five grounds taken in the appeal are not available to the appellant/State in as much as they have been not only considered in the judgment impugned but also duly analysed visavis the evidence on record. The hall mark of the argument is that the prosecution failed to connect that calls were indeed made from the mobile phones allegedly recovered from possession of accused persons.
6. The Court has carefully gone through the record including the entire charge sheet, statement of witnesses examined during investigation, Result: Appeal dismissed. Page 4 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 statement of witnesses recorded during the trial at the behest of prosecution, the defence taken by the respondents in their statement under Section 281 Cr. P.C recorded in accordance of Section 313 Cr. P.C as well as the statements of the witnesses produced by the defence/respondents in the Ld. Trial Court.
7. In my considered view, all the five grounds raised in the appeal are inter connected as any occasion to comment upon them distinctively would arise only if it is found that the prosecution did not leave any lacuna in proving its case and for that matter, it also established that the mobile telephones recovered from the possession of the accused persons were same that were actually used in making the extortion calls to landline number of the complainant.
8. In the Ld. Trial Court, the main incriminating evidence i.e. black colour Siemens mobile phone was produced as ExP3 while Nokia 2100 bearing IMEI no. 351344608087588 was produced as ExP4. PW 2 also exhibited two sim cards of Hutch company bearing no. H 220009796334 and H220007928939 as ExP5 and ExP6 respectively. SI Sunil Kumar produced call details of mobile no. 9818155315 as ExPW5/C and call details of cell no. 9811870631 as ExPW5/D. The call details of the above two numbers and also the third chip bearing no. 9899136379 were proved by PW6 as Result: Appeal dismissed. Page 5 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 ExPW6/A. As a matter of fact, the accused persons took a defence that they were called by the complainant at his house on 28.2.2004 where they were taken into illegal custody by one police official namely Naresh Malhotra whereafter which they were kept in custody in the office of Crime Branch at Chanakya Puri and shown to have been arrested on 1.3.2004. Interestingly, the complainant admits that he knew Naresh Malhotra through his son and thus he informed about the calls to Malhotra who was at his house on 27/28.2.2004. What this Court finds intriguing is an admission by the complainant that he called Sandeep on his chip no. 9899136379 and that on his instructions, Sandeep had come to his house. The matter does not end here. The complainant also admits that Sandeep had left his house with Naresh Malhotra. His testimony on this very vital aspect is directly opposite to the prosecution's case.
9. These facts have to be matched with the version of the prosecution which claims that the accused persons were arrested from Hari Nagar, Ghanta Ghar only on 1.3.2004. Perusal of arrest memos ExPW1/B and ExPW1/C reveals that the 'place of arrest' column and 'time of arrest' column have been left blank. As a matter of fact, there is also over writing on the date column on ExPW1/E. The IO has not explained as to why the above anamolies were left in such Result: Appeal dismissed. Page 6 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 crucial documents. In this context, the Ld. Trial Court has observed that the raiding party did not constitute of complainant's brother even though he was accompanying the complainant when he visited the police station at 10 p.m. The Ld. Trial Court has also analysed that the accused persons had not made any prior arrangement for their immediate exit from the spot after collection of alleged extortion money and that they did arrive there on foot. No weapon was recovered from them. It is also taken care of and observed that as per prosecution, the accused persons were taken, after arrest, to the room of accused Sandeep where recovery of greeting cards and one telephone diary was made in the presence of complainant. However, the complainant denied this fact and is also rightly so observed by the Ld. Trial Court. As a matter of fact, the complainant states that after arrest of accused persons, he had gone to his house and recovery of cards and diary was not made in his presence.
10. In this series of the facts, the accused persons also tried to establish their defence. DW 1 deposed that mobile no. 9818155315 as per ID chart of the said mobile ExDW1/A was under coverage at Australian High Commission, Shanti Path, Chanakya Puri, New Delhi. However, perusal of ExDW1/A does not show as to which date it connects to. DW 2 is the cousin of accused Sandeep who tried to Result: Appeal dismissed. Page 7 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 establish that phone of accused was either switched off or continuously out of coverage area and not picked up on some occasions when the call went through. He perhaps tried to establish that the accused was already in illegal custody on the said date.
11. DW 3, Nodal Officer, Vodafone Mobile Services Ltd also produced a Delhi Cell I.D Chart showing I.D code of Hari Nagar area which is also reflected in CDR ExPW6/A.
12. In my considered view, these three witnesses do not categorically disprove the version of the prosecution as they do not provide the complete details regarding these telephone numbers between 28.2.2003 uptil 1.3.2003. However, this does not absolve the prosecution of its liability to have connected the recovery of mobile phones with the fact that these very phones were used to call the complainant. The Court cannot be oblivious to the fact that as per record, the complainant and accused persons were familiar to each other as Sandeep used to deliver lectures at complainant's coaching institute. This Court agrees with the findings of Ld. Trial Court that perusal of CDR reveals that calls were made from telephone no. 9899136379, 9811870631 and 9818155315 to the landline of complainant and therefore, nothing incriminating can be presumed from presence of such calls between parties familiar to each other.
Result: Appeal dismissed. Page 8 of 10State Vs Rakesh Kumar & Anr. CA No.54364/16 Further, the contents of these calls were not attempted to be proved and this fact is rightly appreciated by the Ld. Trial Court. There is no iota of any material that extortion threats were also given directly without any intervening medium in between the accused and complainant. The contents of calls therefore, are not proved.
13. This Court has already observed that prosecution failed to connect that the mobiles recovered from accused persons were the same from which the calls were made. Accused Rakesh allegedly used numbers 9811870631 and 9899136379 in his Siemens mobile phone. This IMEI of Siemens phone shows that the above two numbers were not used in the same. The call detail shows that calls were made to complainant between 25.2.2004 to 1.3.2004 but with a phone having different IMEI number which is not either recovered or produced in the Court.
14. Accused Sandeep, as per record i.e. CDR of mobile no. 9818155315 had been using the said chip in a mobile having IMEI no. 35134460807580. This IMEI does not tally with IMEI of recovered mobile phone.
15. Thus, what the Court finds is the manner of arrest does not evoke confidence and in any case, charge of commission of alleged extortion stood unproved for want of connecting the IMEI of mobile phones with the chips used in them to call the landline number of the Result: Appeal dismissed. Page 9 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16 complainant.
16. The Ld. Trial Court has also noted various other circumstances that show missing links between the allegations levelled and the evidence produced to justify those allegations. However, these are not specifically agitated as grounds to impugn the judgment of Ld. Trial Court.
17. Suffice would be to say that identification of voice of one of the accused or even identification of accused persons in this Court can not be the sole ground for incriminating them when the commission of main offence itself stands unproved on both counts with which the accused persons were charged with.
18. In view of the above discussion, I find that there is no illegality or perversity or misappreciation of the evidence qua the facts in the judgment impugned. In these circumstances, the appeal stands dismissed.
19. Let copy of judgment in appeal be sent to the Ld. Trial Court/its successor Court for intimation alongwith TCR.
20. After compliance, file of appeal be consigned to record room.
ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 16.02.2017. ASJ05 (West), THC, Delhi.
Result: Appeal dismissed. Page 10 of 10 State Vs Rakesh Kumar & Anr. CA No.54364/16
Case No. 54364/16
CA No. 62/16
State Vs. Rakesh Kumar & Ors.
16.02.2017
Present : Sh B.B. Bhasin, Ld. Addl. PP for the State.
Ld. Counsel for accused/respondent.
Vide separate judgment of even date, the appeal stands dismissed.
Let copy of judgment in appeal be sent to the Ld. Trial Court/its successor Court for intimation alongwith TCR.
After compliance, file of appeal be consigned to record room.
(Manish Yaduvanshi) ASJ05(West)/THC 16.02.2017 Result: Appeal dismissed. Page 11 of 10