IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT:SAKET COURTS: NEW DELHI In Re: STATE VERSUS VIJAY SHANKER SINGH [CASE NUMBER] U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 13.08.1999 Judgment Reserved for : 21.11.2011 Date of Judgment : 21.11.2011 JUDGMENT:
(a) The serial no. of the case : 116/2/99 (b) The date of commission of offence : 06.03.1999 (c) The name of complainant : Sh. [ENTITY] S/o Sh. [ENTITY], r/o H. No. D356, Defence Colony, New Delhi. (d) The name, parentage, of accused : [ENTITY] S/o Sh. Satya Dev Singh, r/o H. No. 618, Kalyan Vass, Mayur Vihar, Phase II, New Delhi. Present Address : As above (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 21.11.2011 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 06.03.1999 at about 5.15 pm at in the area of Defence Colony within the jurisdiction of police station Defence Colony, accused [ENTITY] criminally intimidated complainant [ENTITY] by threatening to kill him if he married Ms. [ENTITY] and thus thereby the accused committed an offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused was supplied the documents. Thereafter vide order dated 25.11.2002, charge u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution so examined eight witnesses. After the PE was closed in this matter, statement of accused u/[SECTION] [ACT] was recorded wherein he claimed himself to be innocent and also examined one witness in his defence.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW 1 SI [ENTITY] deposed that on 06.03.1999 he was posted at PS Tilak Marg and on that day, on the direction of senior officer he reached at Garhwal House, [ENTITY] road and there Sh. [ENTITY], Member of Parliament met him and told that one person namely [ENTITY] used to come there for the last 5/6 months and threatened them to not to marry his grand daughter namely [ENTITY] with [ENTITY] and he also told that accused [ENTITY] (correctly identified) had telephoned him on 06.03.1999 at about 5.30 pm and asked him that he would come there and met him. He further deposed that the accused came there at about 6.30 pm in his presence and he inquired from him about the matter. He further deposed that police from PS Defence Colony came there and he handed over the accused to the police and his statement was recorded by the IO.
5. During his cross examination he denied the suggestion that he did not go to Garhwal house or that the accused did not come there in his presence.
6. PW 2 [ENTITY] deposed that on 06.03.1999 he was posted at PS Defence Colony and joined the investigation with SI [ENTITY] and on receipt of DD No. 20 A, he along with SI [ENTITY] reached at D356, Defence Colony where complainant [ENTITY] met them and SI recorded his statement and got the case registered. He further deposed that the accused (correctly identified) was arrested in his presence from Garhwal house, [ENTITY] and his personal search was conducted vide Ex.PW2/A. He further deposed that two written papers were recovered from the accused and the same were seized vide Ex.PW2/B. He further deposed that one marriage invitation card was also seized in his presence and IO recorded his statement.
7. During his cross examination he stated that he reached at D356 at about 5.30 pm thereafter, they reached at Garhwal house at about 7.15 pm by TSR where MP [ENTITY], his son, SI [ENTITY] and the accused met them. He stated that the accused was arrested at about 7.45 pm. He stated that SI [ENTITY] recorded the statement of MP and his son there. He stated that they reached at the PS along with accused at about 8.30 pm. He denied the suggestion that he was deposing falsely at the instance of the IO or that he did not join the investigation and all the writing work was done in the PS.
8. PW 3 [ENTITY] deposed that in the year 1998, accused [ENTITY] threatened him on telephone that if he married [ENTITY] then he would kill him and his family members. He further deposed that even before his engagement, accused used to threaten him if he married to [ENTITY], he would kill him as well as his family members. He deposed that he used to receive threatening calls on his residential telephone nos. i.e. 4625850 and 4602781. He further deposed that he gave the information to the police in the month of Nov December regarding the threatening calls to him. He deposed that some time he told that he was [ENTITY], sometime he told that he was MP and sometime he used to use the word such as "Aapke naam ki supari nikal di hai". He deposed that on their information police inquired from him. He further deposed that he spoke to his fiance and she told him that [ENTITY] was trying to contact her and used to send her bouquet and contact her on telephone. He further deposed that in the month of March 1999 i.e. 56 days prior to the marriage, he personally received the telephone call and recognized the voice as the same person who used to threaten him earlier and he immediately informed the police. He further deposed that he was threatened by that person by use of words tum ghori per betoge to goli se uda diye jaoge". He further deposed that on the day of his marriage, while he was talking to him on phone, the police was already in action and they came to know that the said calls were made from public booth and the PCR officials reached at the spot from where the said call was being made. He deposed that the police officials were having the photographs of accused [ENTITY] which had been given to the police by the father of [ENTITY]. He further deposed that police officials inquired from the concerned shopkeeper by showing the photograph of accused [ENTITY] and it was confirmed to the police that he was the same person who was making the phone calls. He further deposed that after 12 days, police apprehended accused [ENTITY] while he was moving around the house of [ENTITY]. He deposed that his complaint to the police is Ex.PW3/A.
9. PW 4 [ENTITY] deposed that on 06.03.1999 he was posted as a Secretary of MP [ENTITY] at 5, [ENTITY] road and on that day, he had received telephone of one [ENTITY] who wanted to talk to Sh. [ENTITY] (MP) and he accordingly connected the line to Sh. [ENTITY]. He further deposed that after talking on telephone, accused [ENTITY] came at 5, [ENTITY] road and went to the office of Sh. [ENTITY]. He further deposed that after some time, police came at the spot and accused [ENTITY] (correctly identified) was arrested by the police.
10. PW 5 Retired ASI [ENTITY] deposed that on 06.03.1999 he was posted at PS Defence Colony as DO and he recorded the case FIR No. 231/99 i.e. Ex.PW5/A and made endorsement on the same i.e Ex.PW5/B.
11. PW 6 Sh. [ENTITY] deposed that since 1998 accused [ENTITY] regularly extended threat to his soninlaw ([ENTITY]) and warned him against marrying his daughter. He further deposed that he specifically told him that he will take necessary steps to stop the marriage of his daughter [ENTITY] with [ENTITY]. He further deposed that the threat was given to him 34 days prior to marriage of his daughter i.e. on 04.03.1999. He further deposed that the marriage card is Ex.PW6/A.
12. During his cross examination he denied the suggestion that no threat was extended or that he attended or the accused attended the call of tea party by him. He denied the suggestion that the accused had been falsely implicated in collusion with the local police and SHO concerned.
13. PW 7 [ENTITY] deposed that on 06.03.1999 he was posted at PS Defence Colony and he along with SI [ENTITY] and [ENTITY] went to D356, Defence Colony where one [ENTITY] met them, his statement was recorded and IO made endorsement on the same which he took to PS and got registered the case No. 231/99. He further deposed that he handed over the original rukka and copy of FIR to the IO. He deposed that they went to 5, [ENTITY] Road where one [ENTITY] and SI [ENTITY] along with the accused met them. He further deposed that accused [ENTITY] was arrested vide Ex.PW7/A. He deposed that certain documents were seized from the accused i.e. Ex.P1 & P2. He deposed that the personal search of the accused was conducted vide Ex.PW2/A.
14. During his cross examination he denied the suggestion that he was deposing falsely. He stated that he cannot say as to whether accused was called by the complainant for a cup of tea and thereafter, he had been falsely implicated.
15. PW8 SI [ENTITY] deposed that on 06.03.1999 he was posted as SI at PS Defence Colony and on receipt of DD entry no.20A he along with [ENTITY] and [ENTITY] reached at D356, Defence Colony where they met the complainant [ENTITY] and he recorded his statement i.e. Ex. PW5/B and prepared the rukka as Ex. PW8/A. He deposed that he handed over the rukka to [ENTITY] for registration of the case FIR which he took the same to the PS and came back to the spot along with copy of FIR i.e. Ex. PW5/A and original rukka. In the meantime, he traced the address from where the phone call was received by the complainant and recorded the supplementary statement of the complainant u/[SECTION] [ACT] Thereafter, they reached at Shop no.6, Bhagat Singh Palace i.e. place from where the complainant received the call which was a STD Booth so call could not be traced. Thereafter, they reached at 5 Bhagwan Das Road, where they met SI [ENTITY] who was interrogating accused [ENTITY] (correctly identified). He deposed that he recorded the statement of [ENTITY] and he also interrogated the accused. He deposed that he also informed the SHO PS Defence Colony telephonically who asked him to wait there as he was also coming to the spot. He deposed that he also recorded the statement of SI [ENTITY] at the spot. In meantime, the then SHO PS Defence Colony came to the spot and he briefed him about the investigation/proceedings conducted by him and on his instruction, accused was arrested vide arrest memo Ex. PW7/A and his personal search was conducted vide Ex. PW2/A. He further deposed that on his search, two documents were recovered from the pocket of his safari suit i.e. Ex. P1 &2. He deposed that he prepared the seizure memo of both the documents i.e. Ex. PW2/B and recorded the statement of two witnesses on the spot i.e. [ENTITY] and [ENTITY]. Thereafter, he came back to the PS and got the medical examination of the accused done at AIIMS hospital and recorded the statement of [ENTITY] and [ENTITY].
He further deposed that on the next day, he went to the complainant's house and received the invitation card of Sagai Ceremony of complainant [ENTITY] with grand daughter Ms. [ENTITY] of [ENTITY] i.e. Ex. PW6/A. Thereafter, he prepared the seizure memo of said invitation card i.e. Ex. PW8/B and also recorded the supplementary statement of the complainant on the spot.
16. During his cross examination he stated that he never seen the accused at the house of [ENTITY] before the incident. In fact, it was the first time he saw him at the time of incident. He stated that he reached at the spot for the purpose of investigation after receiving the DD entry. He stated that he reached at the spot at around 6.307.00 pm. He stated that he never spoke to [ENTITY] before the incident. He stated that no complaint was received by him from [ENTITY] or from his son before the incident. He stated that he does not have any call record before the incident except the DD entries of telephone call/details placed on record. He stated that he never spoke to [ENTITY] or [ENTITY] before the incident. He stated that he does not know whether both the M.P.(s) were relative of each other. He denied the suggestion that the FIR had been registered at the instance of [ENTITY] or [ENTITY] as they were in the power and the power had been misused by them to settle their personal score with the accused. He stated that he does not know whether the accused was called by them for the purpose of arranging marriage of Ms. [ENTITY] with the accused however, as the accused refused because she was having numerous affairs. He denied the suggestion that the accused was falsely implicated in the present matter as he refused to marry with her. He admitted that no public/independent witness was joined in the investigation.
17. The accused examined one witness in his defence as DW1.
18. DW 1 Sh. [ENTITY] deposed that on 06.03.1999 at about 4.00 pm Mr. [ENTITY] (MP) invited the accused for a tea party at his residence as well as for discussing some political issue. He further deposed that he asked the accused to marry his grand daughter [ENTITY] but as she was not of good moral character, the accused refused to marry her. In fact, he had been pressuring the accused to marry his grand daughter since long. He further deposed that he asked the accused not go there because he had already refused to marry [ENTITY] and hence, their relationship were not cordial. He further deposed that the accused stated that apart from refusal to marry [ENTITY] they were having good terms and he accordingly went there. When the accused went there, Mr. [ENTITY] (MP) called police from PS Tilak Marg and asked them to arrest the accused but they refused and thereafter, officials of PS Defence Colony were called. He further deposed that as far as he remembered, one Mr. [ENTITY] came there and probably he was paid Rs. 2 lacs by Mr. [ENTITY] to implicate the accused in the false case. He further deposed that Mr. [ENTITY] after the bail of the accused again approached him with the marriage proposal of [ENTITY] but he refused despite assurance of Mr. [ENTITY] that he will withdraw the present case which was in fact a false one. He further deposed that the accused has been falsely implicated in this case.
19. During his cross examination by Ld. APP for State he stated that he was the cousin brother of the accused. He stated that at the time of incident, he was not living with his brother. He stated that he was residing at Mayur Vihar and he was residing at Ashok Vihar. He stated that he was not present when the accused visited the house of Mr. [ENTITY] (MP). He further stated that he does not know what discussions Mr. [ENTITY] wanted to have with the accused. He further stated that the facts as deposed by him above were told to him by the accused. He admitted that Rs. 2 lacs were not paid in his presence. He denied the suggestion that accused was in love with [ENTITY] and wanted to marry her which relationship was opposed by Mr. [ENTITY] (MP). He denied the suggestion that the accused did not stop following [ENTITY] and also threatened to obstruct her marriage. He further denied the suggestion that the accused threatened Mr. [ENTITY] as well as [ENTITY] over the telephone. He admitted that he has come to depose just to save the accused.
20. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
21. In order to prove its case and establish the guilt of the accused the prosecution has to prove that on 06.03.1999 accused [ENTITY] had criminally intimidated complainant [ENTITY] and threatened to kill him if he married Ms. [ENTITY].
22. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has miserably failed to bring home the guilt against the accused.
23. I have minutely gone through the complaint of Sh. [ENTITY] as well as the other material on record and I am of the opinion that prosecution has failed to prove that on 06.03.1999 the accused had threatened to kill Sh. [ENTITY] over the telephone.
24. It is a matter of record and evident from the deposition of complainant [ENTITY] (PW3) and his complaint Ex. PW3/A which formed the basis of the present prosecution that the threats were extended to him/he was threatened over a period of time on telephone only by an unknown/unidentified person and the threats were never extended in person by the accused. It was only on 06.03.1999 i.e. after the arrest of the accused that the complainant came to know that the person who used to threaten him was accused [ENTITY]. The relevant portion of his complaint in this regard read as "Ek Vayakti Jiska Naam Aaj [ENTITY] Malum Hua Hai." The relevant portion of the deposition of PW3 complainant [ENTITY] in this regard read as "When we were receiving the threatening calls the person concerned did not tell his name. Sometime he told that he was [ENTITY], sometime he told that he was MP " Hence, it is very much apparent that complainant [ENTITY] was not aware about the identity of the person threatening him.
25. The only evidence led by the prosecution to connect the accused with the threatening calls is the hear say evidence of the police officials and there is no concrete/cogent material connecting the accused with the threatening calls. In fact, the circumstances in which the accused was arrested are highly doubtful and prosecution miserably failed to connect the accused with the threatening calls in question. The complaint of the complainant suggests that the accused was apprehended/identified/arrested as per the telephonic records. Complainant's telephone number 4625850 was put under the Surveillance and accordingly when a threatening call was made on the said number from telephone number 3363834, the caller was identified as accused [ENTITY] with the help of the shopkeepers/the PCO Owner of the above said telephone number. However, this part of the prosecution story/deposition of the complainant does not inspire any confidence.
26. It is a matter of record that call details of telephone number 4625850 and 3363834 are not on record as the same were never seized during the investigation by the IO. They were material piece of evidence, important link evidence and I find no justification on the part of the IO for not seizing and placing them on record. In the absence of these documents prosecution has failed to connect the accused with the telephone calls.
27. PW1[ENTITY] in his deposition had claimed that while he was talking to the caller on telephone the police was already in action and after the call was traced from a public booth/public shop the police reached there but the caller had already fled away. He further claimed that the police officials were having the photographs of [ENTITY] (accused) and when it was shown to the shopkeepers they confirmed it that he was the same person who was making the telephone calls from the PCO threatening some one and the threatening was heard by the shopkeepers. These shopkeepers who established the identity of the accused as the caller were never examined by the prosecution. Their statement was never recorded by the IO, they were never joined in the investigation and accordingly never arrayed as a witness. They are star/material witnesses and their deposition in the court was sine qua non for bringing home the guilt against the accused as as per the prosecution story it was they who had seen the accused while making the threatening calls. Apart from them there is nobody who had witnessed the accused making the threatening calls or extended the threat in person. Omission to join the shopkeepers/the PCO owner has proved fatal for the prosecution case because it is not the prosecution story that the threats were extended to complainant [ENTITY] in person.
28. As far as the deposition of Sh. [ENTITY] (PW6) is concerned wherein he makes claim that accused [ENTITY] was regularly extending threat to his soninlaw since end of 1998 that in case he married [ENTITY] he would kill him suffice would be to say that it is a hear say piece of evidence, very weak/insignificant and insufficient to nail the accused. As already discussed above till the date of registration of FIR and arrest of accused on 06.03.1999 complainant [ENTITY] was not aware about the identity of the person extending threats to him. In fact, there is no complaint either of complainant Sh. [ENTITY] (PW3) or of [ENTITY] (PW6) prior to the registration of the FIR regarding the threats. The relevant portion of the deposition of the IO in this regard read as "no complaint was received by me from [ENTITY] or from his son before the incident." If in deed the accused had threatened to kill [ENTITY] since 1998 and the threats were brought to the knowledge of Sh. [ENTITY] I fail to understand why none of them made complaint to the police. Even if any complaints were made to the police as I find copy of DD no.33B dated 12.07.1998 and DD no. 21B dated 02.08.1998 on record (though they have not been proved by the prosecution as per the provisions of [ACT]) they were not against the accused i.e. were unnamed and as discussed above none of the calls could be connected to the accused.
29. As far as threats to [ENTITY] is concerned as claimed by him in his deposition which read as "The accused specifically told me that in case I do not stop the marriage of my daughter [ENTITY] with [ENTITY] will take necessary steps to stop the marriage", this statement/so called threat does not bring the case within the ambit of [SECTION] [ACT].
30. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( [PRECEDENT]).
31. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in [PRECEDENT] that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In [ENTITY]ee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In [PRECEDENT] and [PRECEDENT] it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. ([PRECEDENT] relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
32. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
33. I order accordingly.
Announced in the open ([ENTITY]) Court today MM (SD)/Delhi/21.11.2011 [CASE NUMBER] U/[SECTION] [ACT] P.S. Defence Colony 21.11.2011 Pr: Ld. APP for state.
Accused is present on bail today along with his counsel.
Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds/personal bond furnished as per [SECTION] [ACT] and same are accepted vide separate endorsement.
File be consigned to record room after necessary compliance.
([ENTITY]) MM (SD)/Delhi.
21.11.2011