Delhi District Court
State vs Suresh Kumar on 7 May, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Suresh Kumar
FIR No. 324/2004
U/sec. 386/507 IPC
PS: Dilshad Garden
Date of institution of the case: 18.08.2005
Date for final arguments: 01.05.2025
Date on which judgment is delivered: 07.05.2025
CNR No. DLNE-02-000202-2005
JUDGMENT
a) Cr. No. of the case : 465045/2015
b) Date of commission of the offence : 14.11.2004
c) Name of the complainant : Mr. Anand Swaroop
d) Name of the accused and his parentage : Suresh Kumar
S/o Lt. Baldev Raj Anand
e) Offence complained of : Section 384/506/507 IPC
f) Offence charged of : Section 386/507 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 07.05.2025
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.05.07
16:39:32
+0800
FIR No.324/2004 1/12 State Vs. Suresh Kumar
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that complainant was a practicing doctor and was running a clinic by the name of Anand Ultrasound. Some one made extortion calls to him from mobile bearing no. 9891868577 and 911203948772 and threatened to kill him and family members. The name of the caller was stated to be Sonu Gaffar (Abu Salem). Thereafter, an FIR against accused Suresh was registered under section 386/507 IPC.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 386/507 IPC was filed before the court against the accused. The then Learned Magistrate took cognizance on 18.08.2005 and accused was summoned to face the trial. On his appearance in the Court, copies of documents, relied upon by the prosecution were supplied to him as per norms. Thereafter, vide order dated 17.12.2009 charge under sections 386/507 IPC was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 ASI Radha Kishan
2. PW2 Dr. Anand Swaroop
3. PW3 Retd.SI Nagender Singh
4. PW4 Sh. Ajit Sigh
5. PW5 Insp. Ajay Singh Negi
6. PW6 Insp. Ramesh Prasad Singh Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.05.07
16:39:42
+0800
FIR No.324/2004 2/12 State Vs. Suresh Kumar
7. PW7 Retd. SI Nawal Singh
8. PW8 ASI Arvind
9. PW9 Insp. Vijay Kumar Gupta
Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW1/A Seizure memo of notes
2. Ex. PW1/B Seizure memo of mobile phone
3. Ex. PW1/C Seizure memo of scooter
4. Ex. PW1/D and Arrest memo and personal search
Ex.PW-1/E memo of accused
5. Ex.PW-2/A Complaint
6. Ex. PW3/A Disclosure statement of accused
7. Mark-X CDR of Idea company
8. Mark-Y CDR of Hutch company
9. Mark-Z Report pertaining to CDRs
10. Mark-A Authorisation letter
11. Ex. PW6/A FIR
Statement of the Accused u/s 313 Cr.P.C
4. The accused u/s 313 Cr.P.C examined on 24.03.2025. The accused stated that mobile number 9873231235 does not belong to him. He never used mobile at that time. He have been falsely implicated in the present case and he is innocent. He has nothing to do with the alleged offence. He was residing in the same pocket near the clinic of the complainant i.e. Ultrasound Diagnostic Centre. Complainant along with group of other doctors used to nab patients for getting their ultrasound conducted for Rs.80/- and also offered tea and coffee. They also asked his relatives who used to visit his residence to get their ultrasound conducted. He opposed the same. Dr. Anand Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:01 FIR No.324/2004 3/12 State Vs. Suresh Kumar +0800 along with Dr. Rathore hatched a conspiracy against him and falsely implicated him. He did not know why the case is going on against him. No money was recovered from his possession at the time of apprehending him as per the allegations of the police. They seized some documents which were recovered from his possession.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on 01.05.2025. Ld. Counsel for the accused submitted that the case against the accused is false and frivolous and has prayed that accused be acquitted of the offence charged. He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the accused. This court has heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused persons, the prosecution had to prove the following ingredients of the offence punishable u/s 386 IPC and 507 IPC beyond reasonable doubt:
Section 386 IPC:-
"Section 386 IPC provide that "Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:09 +0800 FIR No.324/2004 4/12 State Vs. Suresh Kumar Section 507 IPC:-
"Section 507 IPC provide that "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."
8. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
9. PW2, who is the star witness, deposed in his examination in chief that on 14.11.2004 at about 2.30 Pm he received a call on his mobile no. 9811401729 from 9891868577. However, in his complaint Ex.PW-2/A he stated that he received calls from two numbers. In his initial complaint given to SHO PS Dilshad Garden he stated that call was made by some Sonu Gaffar but in his examination in chief he deposed that call was made from one Suresh threatening him that he is a member of Abu Salem Gang. In his examination in chief he deposed that accused Suresh demanded rupees one lakh, failing which his family would be killed.
10. He further deposed that accused told him that he has also threatened D.P.S. Rathore, owner of Park Ultrasound. D.P.S. Rathore was cited as a witness by the prosecution but his presence could not be secured. Hence, he was dropped from the list of witnesses. The veracity of version of PW1 could not be corroborated by PW D.P.S. Rathore as he was not examined by the prosecution. He further deposed that he switched off his mobile phone due to threats given by the accused. He deposed that he again called on the said number and assured him to give Rs.11 (eleven) lakhs and bank was closed due to holiday. Accused again called after fifteen minutes and Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:16 +0800 FIR No.324/2004 5/12 State Vs. Suresh Kumar threatened him by asking him to arrange the said amount. Thereafter, he called at 100 number. He further deposed that he switched off his mobile. Then he again switched on his mobile and received missed calls. He also received messages of threatening. The prosecution did not produce mobile phone to show the message of threats nor any proof of the messages received. The complainant has stated his mobile number as 9811401729. CDR's of complainant's phone were not obtained by the IO, which could have been a crucial piece of evidence.
11. PW2 deposed that he received call from no. 9891868577. CDRs of 9891868577 were on record but CAF of the said mobile is not on record. The identity of the caller could not be established by the prosecution. Moreover, CAF of the number of the complainant's phone number again was not placed on record by the IO. The party's name is also not reflected in the CDRs.
12. CDRs of phone bearing no. 9811129018 were found on record marked as Y. It is not clear whose number is 9811129018. PW2 has neither stated about this number in his examination in chief nor in his complaint Ex.PW-2/A. PW2 further deposed that he received a call on 15.01.2004 and threatened him regarding not being able to arrange the money. PW2 deposed in his examination in chief that accused called him and instructed him to bring Rs.11 (eleven) lakhs in yellow colour bag polythene riding in a rickshaw and meet in front of Green Field Public School. However, testimony of PW1 and PW3 is silent on that aspect.
13. The case properties were produced before the court in an unsealed condition, the chances of tampering with the case property cannot be ruled out. PW2 admitted in his cross-examination that he did not mention the name of the accused in his complaint dated 14.11.2004. He also admitted that call was made by Abdul Gaffar.
However, in his initial complaint he stated that call was made by Sonu Gaffar. It appears to be an inconsistency. He also admitted that he did not mention exact Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:24 FIR No.324/2004 6/12 State Vs. Suresh Kumar +0800 amount in his complaint. PW2 testified in his cross-examination that he did not remember if IO tried joining any independent witness during the investigation. PW1 deposed that he did not join any public person during the raid. PW3 deposed that IO tried joining 5-7 public persons at that time. PW4 testified in his cross-examination that IO requested 3-4 public persons to join the investigation. PW7 testified that IO tried to join two public persons in the investigation but none agreed. PW IO testified that there was no public person on the spot. All these witnesses have deposed different versions.
14. PW2 further testified that accused suddenly snatched bag from his hands and tried to escape. PW1 deposed that he started talking on mobile phone and accused took the said polythene. The testimony of PW1 is silent regarding any snatching of bag. PW5 deposed that complainant handed over the bag to the accused when he was apprehended, but the version of the complainant was different as he deposed that accused snatched the bag from him. PW2 deposed that accused tried to escape but PW1 has not stated so. It appears to be an inter se inconsistency. PW1 deposed that accused started talking to the doctor but PW2 deposed that accused did not communicate with him. No proof was filed by the prosecution to show that scooter belonged to accused Suresh and he came on that scooter. PW9/IO did not remember if he inquired about the ownership of the scooter.
15. PW1 deposed that complainant remained till 9.00 PM but PW2 complainant deposed that he left the spot immediately. PW1 testified in his cross-examination that IO conducted all the proceedings in presence of the complainant but PW2 deposed that IO did not conclude the written proceedings in his presence. IO testified that he recorded the statement of the complainant on the spot. He also testified that complainant was present on the spot along with the raiding party and left the spot at about 10.30 PM. However, complainant deposed that he immediately left the spot.
PW3 deposed in his cross-examination that they remained at the spot for about two Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:33 FIR No.324/2004 7/12 State Vs. Suresh Kumar +0800 hours forty five minutes and left the spot at about 11.00 PM. However, PW1 testified in his cross-examination that they remained at the spot for two to three hours and left the spot at about 9.00 PM. IO testified that he left the spot at about 10.30 PM. There is no independent witness to the seizure memo of the dummy notes, mobile phones.
16. PW3 testified on his examination in chief that they reached on the private vehicle at the spot. PW1 did not remember the vehicle which was used by them. PW5 deposed that they reached the spot by walking.
17. PW1 deposed in his examination in chief that IO took false currency bundles of Rs. 500/- in polybag. PW2 deposed that two bundles of dummy notes with original Rs.500/- currency notes on front and back side of the bundles were there in the polythene. PW7 deposed that complainant had put his signatures on original currency notes, however, testimony of PW1 & PW2 are silent on this aspect. PW3 testified in his cross-examination that complainant remained at the spot for about forty five minutes. However, PW2 testified that he left the spot immediately within three-four minutes.
18. PW4 deposed in his examination in chief that he verified the CDRs of Idea and Hutch company. He did not know who had given the records to the police officials. It is pertinent to mention that there is no customer application form along with the CDR. PW8 deposed in his examination in chief that IO instructed to get the CDRs of four mobile numbers but he could get the CDR of only one mobile number i.e. 9873231235. He testified in his cross-examination that he did not remember the name of service provider or the person who provided him the details.
19. PW5 testified that they reached at the spot at about 8.00 PM. However, PW2 testified that accused reached at the spot at about 8-9.00 PM. PW6 registered the FIR in the present case. In the cross-examination he denied the suggestion that FIR is ante Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:42 FIR No.324/2004 8/12 State Vs. Suresh Kumar +0800 time and ante dated.
20. PW7 did not remember whether IO recorded the statement of the complainant or not. PW7 admitted that IO did not prepare seal handling memo. IO also admitted the same. Further, as per evidence on record, the seal after use was not given to any independent public person. Even, no seal handing over memo is on record. IO himself testified in his cross-examination that he did not prepare the same. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh v. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore, the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
21. The non-joining of the public witness at the time of alleged incident of the article creates doubt in the story of the prosecution as was held in Pawan Kumar v. Delhi Administration (1987 CC 585) Delhi High Court. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:40:51 2025.05.07 +0800 FIR No.324/2004 9/12 State Vs. Suresh Kumar unfavourable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt. Reliance can be profitably placed on the judgment of Hon'ble SC of India in case of Pradeep Narayan vs. State of Maharashtra (AIR 1995 SC 1930) held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
22. It is evident that no handing over memo of the seal was prepared. Therefore, this court is of the considered opinion that link evidence concerning the seal movement was missing in this present case, which fact by itself is sufficient to cast a shadow a doubt on the authenticity of the prosecution case.
23. Further there is no independent witness to the sealing of the case property, the chances of tampering with the seal cannot be ruled out. It was an imperative task for the police officials to engage any public witness while sealing the case property. Further neither the IO nor the witnesses had made any reflection regarding the handing over memo of the seal. The seal was with in the possession of the police officials only and there is no clarity as to when the seal was handed over and to whom it was handed over. Therefore, it can be very well said that there are fair chances of tampering with the seal. Hence, it can be very well said that prosecution has failed to establish its case beyond reasonable doubt.
24. Perusal of the site plan reveals that the same has not been signed by the complainant. The evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act, 1872. It is well settled that every defect in the site plan cannot be fatal to the case of the prosecution though non-mentioning of the essential features in the site plan can create a doubt on Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:40:59 +0800 FIR No.324/2004 10/12 State Vs. Suresh Kumar the story of the prosecution. In the case of Shingara Singh v. State of Haryana (2003)12 SCC 758 it was held that any defect in the site plan creates a doubt regarding the place of occurrence and accused is entitled to get the benefit of doubt.
The site plan prepared by the IO was not even signed by the complainant.
25. There appears to be discrepancies in the version of prosecution witnesses. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the case of "Joseph v. State of Kerala (2003) 1 SCC".
26. PW-3 deposed in his examination in chief that IO recorded the disclosure statement of the accused Ex.PW-3/A. At this stage it is germane to mention section 27 of the Indian Evidence Act, 1872.
"Section 27 how much of information received from the accused may be proved- provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the facts thereby discovered may be proved.
In the case of Md. Inayatulla Vs. State of Maharashtra AIR 1976 SC483 it was held that for the application of section 27 of the IEA the statement must be split into its components and to separate the admissible portion. Only those components or portion which were the immediate cause of discovery would be relevant and rest must be rejected."
27. Disclosure statement cannot be admissible as there is no independent witness to the same. Derivative use of custodial statement is not permissible in law. Disclosure statement is admissible only in evidence if something is recovered from the accused which is not within the knowledge of the police Digitally signed by ISRA ISRA Date:
ZAIDI FIR No.324/2004 11/12 ZAIDI 16:41:07 State Vs. Suresh Kumar 2025.05.07 +0800 before recording the disclosure statement of the accused. In the present case nothing was recovered from the possession of the accused.
28. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovering and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529 it was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. The prosecution could not prove by the prosecution beyond reasonable doubt. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
29. For the reasons outlined above, this court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
30. Consequently, accused Suresh is acquitted in the present case for offence u/s 386/507 IPC.
File be consigned to record room after due compliance. Announced in the open Court today.
This judgment contains 12 pages and each page bears my signature.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.05.07 16:41:17 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 07.05.2025 FIR No.324/2004 12/12 State Vs. Suresh Kumar