Delhi District Court
State vs . Ishrar @ Vasim & Ors. on 25 February, 2023
IN THE COURT OF SH. RAHUL VERMA, METROPOLITAN
MAGISTRATE, SOUTHEAST DISTRICT, SAKET COURT COMPLEX,
NEW DELHI
FIR No.115 /2019
PS - Sunlight Colony
U/s - 420/365/506/34 IPC
State vs. Ishrar @ Vasim & Ors.
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case : 22631/2019 B. Date of Commission of offence : 08.05.2019 C. Date of Institution of Case : 23.08.2019 D. Name of the Complainant : Shri Ajay Pratap Singh S/o Shri S Ram Bharosi.
E. Name of the Accused 1. Ishrar @ Vasim S/o Shri Bhure Khan R/o House No. 34/385, Trilokpuri, Delhi.
2. Pradeep @ Fozi S/o Shri Kishan Lal R/o House No. 28/306, Trilokpuri, Delhi.
3. Ajay Kumar @ Bhole S/o Shri Raja Ram R/o House No. 156, Khichdipur, Delhi.
F. Offence charged of : U/s. 365/420/506 (PartII)/34 IPC
G. Plea of the accused : Pleaded not guilty
H. Final Order : Convicted u/s. 506 (PartII)/34
IPC.
Acquitted u/s. 365/420/34 IPC
I. Judgment reserved on : 24.02.2023
J. Date of judgment : 25.02.2023
State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.1 of 22
Part B - A brief statement of reasons for the decision
(As mandated u/s 355(i) of the Code of Criminal Procedure, 1973)
1. It is the case of the prosecution that on 08.05.2019 at about 04:00 AM at DND flyover towards Noida Road within the jurisdiction of PS Sunlight Colony, accused persons namely Israr @ Vasim, Pradeep @ Fozi and Ajay Kumar @ Bhole in furtherance of their common intention, abducted the complainant namely Ajay Pratap Singh by deceitfully inducing him to sit in Santro car (white colour) bearing no. DL 3CAB 5817 being used by accused Pradeep (registered in the name of mother in law of Pradeep and used by accused Pradeep) under the pretext of taking him to Agra and with the intention to wrongfully confine him. Further, on the aforesaid date, time and place, accused persons in furtherance of their common intention fraudulently and dishonestly induced the complainant to part with his cash of Rs.7,800/ and ATM card of SBI and deliver it to accused which was eventually used for withdrawing a sum of Rs.20,000/ (in two transactions of Rs.10,000/ each from ICICI Bank ATM Noida UP) from account no. 33081850573 of SBI Bank, Agra. It is further the case of the prosecution that on the aforesaid date, time and place, accused persons in furtherance of their common intention, criminally intimidated the aforesaid complainant by threatening to kill him and used the said threat to cause the aforesaid complainant to part with the PIN number of his ATM card linked to account no. 33081850573 of SBI Bank, Agra, and thereby committed offences made punishable u/s. 365/420/506(II)/34 IPC.
2. After completion of investigation, chargesheet was filed against the accused persons Ishrar @ Vasim, Pradeep @ Fozi and Ajay Kumar @ Bhole and the cognizance of offence was taken. Documents were supplied to the accused persons in compliance of Section 207 of The Criminal Procedure Code, State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.2 of 22 1973 (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under Section 365/420/506 (PartII)/34 IPC was framed upon the accused persons, to which they all pleaded not guilty and claimed trial.
3. Vide statement recorded under Section 294 of Cr.P.C., the accused persons admitted the genuineness of following documents:
(i) FIR (without contents) registered in the present case Ex. PA1.
(ii) DD no. 55A dated 14.07.2019 Ex. PA2.
(iii) TIP proceedings already exhibited as Ex. PW1/G to Ex. PW
1/I of all accused persons.
4. In order to substantiate its case, prosecution examined the following witnesses:
(i) PW1 Ajay Pratap Singh deposed that on 08.05.2019 he took a cab from airport to Sarai Kale Khan bus stand for catching an early morning bus for Agra. He further deposed that he could not find the bus and went to a taxi stand to take a taxi to Agra. He further deposed that as he could not find taxi, at around 4 AM in the morning he came under the flyover in front of Sarai Kale Khan bus stand and looked for a conveyance. He further deposed that after waiting for about 5 - 10 minutes, one person approached him and started interacting with him. Initially, he was disinclined to talk to him. The said person told him that he was "fouji"
and hails from Firozabad. He also told him that he also had to go to Agra and that for Agra they should move a bit further towards Ashram from where they could get a taxi. He further deposed that he assured him that he was aware about the location from where the taxi can be caught for Agra. He further deposed that he and the said person who introduced State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.3 of 22 himself as Fouji moved for about 15 - 20 steps. He further deposed that they had hardly stopped for a minute when one white santro car came and stopped by. He further deposed that at that time, it had 2 occupants (one driver and another person sitting by the side on the seat next to the driver) who asked them as to whether they knew the way to Agra. The 'fouji guy' immediately opened the back door of the said car and sat inside. He told them that he was aware of the way to Agra and can show them the way. He further deposd that the 'fouji guy' told him that he should immediately sit in the car as the car occupants can give them a lift to Agra. One other person was also present on the road who also wanted to sit in the car at that time but, the person sitting next to the driver refused to take him inside the car and thus, the said person did not sit in the car. He further deposed that he, on the insistence of the 'fouji guy' sat in the car and the driver started driving. He was carrying a bag with him which he had kept on his lap. He correctly identified all three accused persons as the ones who had caused him to sit in the car are present in court. The witness had pointed out towards the three accused present in court and deposed that the person standing in the middle (Wasim @ Ishrar) was the person who introduced himself as 'fouji' and had sat in the car with him. He further deposed that person standing on the extreme left (Ajay) was the person who was driving the Santro car and the other accused (Pradeep) was the person who was sitting on the seat next to the driver of the santro car. He further deposed that after the car started moving, the accused persons were talking on a device which looked like a wireless set available with the police. They were talking in a manner which initially made him to think that the said accused persons were from police. He further deposed that they were talking about a murder case recovery and initially accused Pradeep asked him to hand over any liquor bottle etc. which he may be State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.4 of 22 carrying. He told him that he was not carrying any such article. He further deposed that after a short while, they started changing their attitude towards him and then accused Pradeep told him to put all his articles in one envelope. He further deposed that the car was moving at the insistence of accused Pradeep, he placed Rs.7,800/ in cash and ATM card of SBI bank, Chipitola main branch Agra in the said envelope. He further deposed that he maintained a saving bank account with the said bank and branch. He further deposed that accused Pradeep kept the envelope with him. Thereafter, accused Pradeep pulled out an envelope and did not give it to him but asked him to open his bag and he placed it inside his bag. He further deposed that he asked him not to open it. As the car moved ahead, accused Pradeep started asking his PIN number of the ATM card. He was surprised as to why his PIN number was being asked by the accused persons. When he questioned them, accused Pradeep abused him and said "madarchod PIN number bata warna yahin per tere ko maar denge". He got frightened and told his ATM PIN number to the accused persons. Thereafter, the accused persons stopped the car about 20
- 22 steps ahead of a toilet in Sector 144 Noida. He was taken out of the car and accused Pradeep pushed him and told him to run and not to look back. Because of the pushing, he fell down with his bags. The accused persons drove away with the car. He further deposed that after he got up, he pulled out the envelope kept inside his bag and on opening it, he found one white plastic card (which was completely blank) alongwith some papers. It did not have his money or his ATM card. Thereafter, he asked for help from one person present at the toilet (care taker) and called the police at 100 number. Thereafter, he started making call to the helpline number of the bank for getting his ATM blocked. Soon, he received a message for withdrawal of Rs.10,000/ from his account which was State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.5 of 22 followed by another message qua withdrawal of another Rs.10,000/. Thus, a total of Rs.20,000/ were withdrawn from his account linked with SBI by the accused persons. Thereafter, his card was blocked. He identified one yellow colour envelope Ex. P1 and deposed that this was the same envelope which was kept in his bag by the accused Pradeep. He further identified one white colour blank plastic card Ex. P2, a 05 newspaper shreds Ex. P3 (colly.) and deposed that the same were found inside the said envelope when he opened it. He further deposed that the police seized the envelope, white card and paper shreds (Ex.P1 to Ex.P3) from him vide seizure memo Ex.PW1/B, prepared site plan Ex.PW1/C at his instance. He further deposed that later, police showed him photographs of accused persons on phone from which he identified the accused persons and confirmed to the police that the said persons were the persons responsible for the offence in question. He further deposed that the Noida police came to the spot where he was stood for about ½ an hour. He further deposed that the Noida police took him to the concerned chowki and later told him that he should approach the Delhi police. He borrowed money from the Noida police personnel and came to Sarai kale khan police chowki and made a written complaint Ex.PW1/A. He identified one Santro car bearing no. DL 3CAB 5617 Ex. P4 and deposed that it appeared to be the same vehicle in which he was made to sit and articles from him were taken by the accused persons. He further identified the said car from its two photographs Ex.P5 (colly). He further deposed that he duly identified the accused persons during TIP proceedings and identified his signatures on 03 sets of TIP proceedings Ex.PW1/G (accused Ajay), Ex.PW1/H (accused Pradeep) and Ex.PW1/I (accused Wasim). He further deposed that his account number of SBI bank, Chipitola main branch Agra is 33081850573 and his ATM card taken State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.6 of 22 from him was linked to this account from which Rs.20,000/ was withdrawn. This witness was duly cross examined by the Ld. Defence counsel for the accused.
(ii) PW2 Mohd. Akbar Ali, Assistant Manager, SBI Bank, deposed that as per their record, one SBI account number 33081850573 was being maintained with SBI, Agra main branch in the name of Ajay Pratap Singh and the copy of his accounts statement Ex.PW2/A (colly.) borne signatures of Ms. Mohini alongwith. He further deposed that she was working with their bank as an accountant and he had seen her signing in her official capacity. He further deposed that the said documents were supplied to the IO by their branch head in response to a notice u/s. 91 CrPC received by their bank Ex.PW2/B. He further deposed that as per their record, two withdrawal transactions of Rs.10,000/ each took place on 08.05.2019 at around 5 AM using an ATM card with card number 5103720191929213 which was linked to the aforesaid SBI account number. He further deposed that the said ATM card was used for withdrawing money in ICICI Bank ATM with ATM ID S1CWK351. The said card was eventually blocked on 08.05.2019 at around 05:15 AM. He identified the signature of Mr. Sachin on copy of statement available on their computer Ex.PW2/C . This witness was duly cross examined by the Ld. Defence counsel for the accused.
(iii) PW3 Rajesh Kumar Saini deposed that on 11.06.2019, notice u/s. 91 CrPC Ex.PW3/A was received by Ms. Nisha Kumari, Deputy Branch manager, ICICI Omega 1 Branch, Greater noida. He further deposed that he could identify the signatures of Ms. Nisha Kumari as he was working with her. He further deposed that in pursuant to the notice u/s. 91 CrPC to State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.7 of 22 deputy branch manager, Ms. Nisha Kumari replied vide letter dated 29.07.2019 Ex.PW3/B. This witness was duly cross examined by the Ld. Defence counsel for the accused.
(iv) PW4 Man Mohan produced details / particulars of vehicle bearing no. DL 3CAB 5617 make Santro. He deposed that as per their record, the same was registered in the name of one Sadhran w/o Suresh Kumar. The computer printout of the registration details of the said vehicle exhibited as Ex.PW4/A borne the signatures of Naveen Kocher, inspector RTO, whose signatures he identified as he had seen him signing. This witness was not cross examined despite availing opportunity.
(v) PW5 SI Ashok Tomar deposed that on 28.05.2019, accused Ajay Kumar was arrested from khichripur village in FIR no. 104/19 u/s. 420/34 IPC by him vide arrest memo Ex.PW5/A. Accused Ajay Kumar during interrogation disclosed that one Pradeep @ Fouji and Israr @ Vasim were also involved in many crimes with him. Thereafter they verified the address of both Pradeep and Israr. However, they were found missing from their respective addresses. He further deposed that they came to know that accused Israr was in Rampur UP jail in another offence and accused Pradeep was running in Mandoli Jail in some other case. Thereafter, he visited the Mandoli jail on 05.06.2019 and arrested him vide memo Ex.PW5/B and also recorded disclosure statement of accused Pradeep Ex.PW5/C. He also arrested the accused Israr vide memo Ex.PW5/D. Thereafter, he recorded the disclosure statement of abovesaid accused persons Ex.PW5/E, Ex.PW5/F and Ex.PW5/G respectively. He further deposed that the abovesaid accused persons disclosed that one month earlier, they robbed / cheated one person in the car of acused State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.8 of 22 Pradeep @ Fouji by obtaining ATM card and another articles. He further deposed that on 09.06.2019, at the instance of accused Israr one santro car bearing no. DL 3CAB 5617 was recovered from Trilokpuri, Delhi and he seized the same vide memo Ex.PW5/H. On the same day, one duster car was also recovered at the instance of accused Pradeep from Mayur Vihar metro parking and he seized the same vide memo Ex.PW5/I. Thereafter, at the instance of accused Pradeep one walkie talkie and envelope containing some plain cards similar to ATM card were recovered from the house of accused Pradeep at 28 Block trilokpuri. He further deposed that he did not remember the complete address of accused Pradeep due to lapse of time. He further deposed that he seized the said articles vide memo Ex.PW5/J. He admitted his signature on disclosure statement of accused Israr Ex.PW5/K and deposed that he had recorded the said disclosure statement at PS on 06.06.2019 and that the earlier disclosure statement Ex.PW5/F was recorded at court. He further admitted his signatures on disclosure statement of accused Ajay Kumar Ex.PW5/L and deposed that he had recorded the said disclosure statement at PS on 28.05.2019 and the earlier disclosure statement Ex.PW5/E was recorded at PS on 06.06.2019. He correctly identified accused Ajay and Israr in the court. Identity of accused Pradeep was not disputed. He further identified walkie talkie make Kechaoda bearing IMEI no. 863816028736739 and 863816028736747 alongwith 02 SIM Cards and one memory card inserted therein and deposed that it was the same walkie talkie Ex.P6 which was recovered from accused Pradeep. He further identified 07 envelopes (02 big and 05 small) of yellow colour. One of the said envelopes (small) contained 07 white paper stripes in rectangular shape Ex.P7 (colly.). He correctly identified the same as the property recovered from accused Pradeep. He further identified the said Santro car bearing State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.9 of 22 no. DL 3CAB 5617 from its two photographs Ex.P5 (colly) and deposed that it was the same car which was recovered from the accused Israr. This witness was duly cross examined by the Ld. Defence counsel for the accused.
(vi) PW6 Santosh Ganshela prodcued the judicial file of case bearing FIR no. 104/19 PS Lodhi Colony titled as State Vs. Ajay @ Bhole & Ors. including the documents i.e. Disclosure statement of accused Israr Ex.PW6/A (OSR) already Ex.PW5/K, arrest memo of accused Israr dated 06.06.2019 Ex.PW6/B (OSR) already Ex.PW5/D, disclosure statement of accused Ajay Ex.PW6/C (OSR) already Ex.PW5/L, disclosure statement of accused Ajay Ex.PW6/D (OSR) already Ex.PW5/E, arrest memo of accused Ajay Ex.PW6/E (OSR) already Ex.PW5/A, disclosure statement of accused Israr dated 06.06.2019 Ex.PW6/F (OSR) already Ex.PW5/F, drrest memo of accused Pradeep dated 05.06.2019 Ex.PW6/G (OSR) already Ex.PW5/B, disclosure statement of accused Pradeep Ex.PW6/H (OSR) already Ex.PW5/C, disclosure statement of accused Pradeep Ex.PW6/I (OSR) already Ex.PW5/G, seizure memo of santro car bearing no. DL 3CAB 5617 Ex.PW6/J (OSR) already Ex.PW5/H, seizure memo of duster car bearing no. DL 8CZ 5917 Ex.PW6/K (OSR) already Ex.PW5/I, and seizure memo of walkie talkie and envelopes Ex.PW6/L (OSR) already Ex.PW5/J. This witness was not cross examined despite availing opportunity.
(vii) PW7 Ct. Hemraj deposed that on 06.06.2019 accused Ajay Kumar, Pradeep and Mohd. Israr were brought to the PS after arrest and were interrogated by the IO Ashok Tomar, who recorded their disclosure statements. He further deposed that he was witness to the disclosure State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.10 of 22 statement Ex. PW6/A (OSR) made by the accused Israr. He further deposed that on 09.06.2019, he alongwith ASI Ashok Tomar went to the house of accused Israr at Trilokpuri and they were led by the accused Israr. He further deposed that accused Israr produced key of car and handed over the same to IO. Thereafter the accused Israr took them to block no. 12, lodhi colony, parking behind mother dairy and pointed out towards one santro car bearing no. DL 3CAB 5617 colour silver. Thereafter IO ASI Ashok Tomar seized the same vide memo Ex.PW6/J (OSR). All the 03 accused persons were correctly identified by the witness. He further correctly identified santro car bearing no. DL 3CAB 5617 from its two photographs Ex. P5 (colly)., and deposed that it was recovered at the instance of accused Israr. This witness was not cross examined despite availing opportunity on behalf of accused Pradeep. This witness was duly cross examined on behalf of the accused persons Israr and Ajay Kumar.
(viii) PW8 ASI Praveen Kumar deposed that on 08.05.2019 upon receipt of DDs no. 14A and 15A at about 05.30 AM, he called on mobile number of the caller of PCR caller and he disclosed that he was at noida sector 144. Thereafter he advised the said caller to visit PP Sarai Kale Khan. Thereafter, at about 4 PM, caller Ajay Pratap Singh came to PP Sarai Kale Khan and handed over a written complaint Ex.PW1/A. Thereafter, he prepared rukka Ex.PW8/A and handed over the same to DO PS Sunlight Colony for registration of FIR. After registration of FIR, he came back to spot i.e. below sarai kale khan flyover with complainant where he prepared the site plan Ex.PW1/C at instance of complainant. He further deposed that complainant handed over yellow colour envelope containing one white colour blank plastic card and 05 papers shreds and State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.11 of 22 he seized the same vide memo Ex.PW1/B. During investigation, he served notice u/s. 91 CrPC Ex. PW2/B to SBI branch at Sunlight Colony in order to obtain account statement of complainant. Concerned bank officials replied the same on notice Ex.PW2/B and also handed over the statements of the complainant Ex.PW2/A (colly.). He further deposed that after statements of the complainant they came to know that certain amounts were withdrawn from the account of complainant from ICICI bank ATM, Omega shopping centre, Noida. Thereafter he served notice u/s. 91 CrPC Ex. PW3/A upon ICICI Bank manager to obtain CCTV footages of the relevant time. He received the reply of the ICICI bank Ex.PW3/B in which it was stated that the CCTV footages of relevant time was not available due to hardware issue. He further deposed that on 09.06.2019, he received DD no. 11B PS Sunlight Colony which was received from PS Lodhi Colony about the arrest of the accused persons involved in the present case. Thereafter, he visited the PS lodhi colony and collected the documents of FIR no. 104/19 in which the accused persons were arrested and he also recorded the statement of the IO and other witnesses of FIR no. 104/19 PS lodhi colony. On 24.06.2019, he interrogated the said 3 accused persons and arrested them vide memos Ex.PW8/D to Ex.PW8/F respectively, and also recorded their disclosure statements Ex.PW8/G to Ex.PW8/I respectively. He further deposed that on 06.07.2019, TIP proceedings of abovesaid 03 accused persons was conducted and all 03 accused persons were identified by complainant Ajay Pratap Singh in TIP proceedings Ex.PW1/D to Ex.PW1/F. He further deposed that on 08.07.2019, he obtained PC remand of aforesaid 03 accused and thereafter the aforesaid accused led them to the spot i.e. Sarai Kale Khan and said accused pointed out the place of incident and he prepared the pointing out memo Ex.PW8/L. Thereafter he prepared the State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.12 of 22 site plan Ex. PW8/M of place of incident at instance of accused persons. Thereafter all the accused persons took him to sector 144 noida and they disclosed that they had thrown out the complainant from the car and pointed out the said place. Thereafter, he prepared the pointing out memo Ex PW8/N of the said place. He also prepared the site plan Ex.PW8/O of the said place. Thereafter, all the accused persons led him to ATM ICICI Bank omega 1 shopping centre and pointed out the ATM from where they withdrew the money from ATM of the complainant. He further deposed that he prepared the pointing out memo as well as the site plan of the said ATM Ex.PW8/P and Ex.PW8/Q. During investigation, he recorded the supplementary statement of the complainant in which complainant stated that the accused persons had taken his ATM card and also obtained the PIN number of the ATM by threatening him. Thereafter, he added section 365/506 IPC. During investigation, he verified the santro car which was used by the accused persons in the said incident and the same was in the name of mother in law of accused Pradeep. He obtained the ownership documents Ex.PW8/R of the said car from concerned authority and placed it on record. He correctly identified the car bearing no. DL 3CAB 5617 from its photographs Ex. P5 (Colly). He correctly identified one yellow colour envelope containing one blank white plastic card and 5 newspaper shreds Ex. P1 to Ex. P3 (colly) and deposed that he had seized the photographs of the same vide memo Ex. PW1/B. He further deposed that during investigation, he recorded the statement of witnesses and after completion of investigation, he filed the chargesheet before the court. He correctly identified the accused persons in the court. This witness was duly cross examined by Ld. Defence counsel for accused persons.
State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.13 of 22
5. Prosecution evidence was closed vide order dated 07.03.2020.
6. Statement of accused persons u/s. 313 r/w 281 of Cr.P.C was recorded on 22.07.2022 wherein the accused persons denied the incriminating evidences appearing against them. Accused Ajay Kumar did not opt to lead DE. Accused Israr @ Vasim and Pradeep opted to lead defence evidence. They examined the following witness:
(i) DW1 Smt Nafeesa deposed that she was the mother of accused Israr @ Vasim. She deposed that at 02.00 AM, some police officials came to her house and forcefully opened the door of the house. They asked her to send the accused Israr @ Vasim for investigation. She further deposed that they took the accused with them and did not release him. After 34 days, she came to know that the accused had been sent to jail and that he had been implicated in the two three false cases. She was duly cross examined by Ld. APP for the State.
(ii) DW2 Kanchan deposed that she was the wife of the accused Pradeep. She further deposed that in the month of May 2019, in the morning time, three police officials came to her house and told them that they had come for enquiry purpose. He asked to join them but they refused and arrested the accused Pradeep. She further deposed that thereafter, they took him to PP Sarai Kale Khan. She was duly cross examined by the Ld. APP for the State.
7. Subsequently, final arguments from all the counsels for accused persons and Ld. APP for the State were heard.
8. In the present matter, the accused has been charged for the offences punishable under Section 365/420/506 (PartII)/34 IPC. Section 365 IPC State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.14 of 22 provides for punishment for offence of kidnapping or abducting any person with intent to cause that person to be secretly and wrongfully confined. Section 506 provides for punishment for the offence of criminal intimidation when the threat to cause death or grievous hurt is given. Further, Section 420 IPC provides for punishment for offence of cheating. The offence of Cheating is defined under section 415 IPC as under:
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
9. In case of Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712, the ingredients of offence of cheating were elaborated as under at Para 25:
25. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
"(i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or
(iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.
State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.15 of 22 Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Penal Code is existence of an intention (sic a fraudulent or dishonest intention at the time) of making initial promise or existence thereof from the very beginning of formation of contract.
10. In order to prove its case, the prosecution examined total 8 witnesses including the complainant as PW1. Firstly, coming to the charge of section 365 IPC, bare reading of this provision shows that it is attracted when the kidnapping or abduction is committed with intent to secretly and wrongfully confine the victim. PW1 Ajay Pratap Singh is victim in the present matter, who deposed in his testimony that on 08.05.2019 at about 04.00 AM at DND Flyover towards Noida Mor, in order to go to Agra he went to Sarai Kale Khan bus stand, where he met one person namely "fouji". He told him that he also had to go to Agra and for that they should move a bit towards Ashram from where they could get a taxi. He further deposed that after moving for about 15 - 20 steps one white Santro car stopped by which had 2 occupants. He further deposed that the 'fouji guy' immediately opened the back door of the said car and sat inside and told him that he should immediately sit in the car as the car occupants can give them a lift to Agra. He further deposed that he, on the insistence of the 'fouji guy' sat in the car. After some time he was asked to put his article in an envelop and was also threatened to give his ATM PIN. Thereafter, near Sector 144 Noida, the car was stopped and he was pushed out of the car.
11. It is clear from the testimony of PW1 that he nowhere deposed that at any point of time he wanted to get out of the car but was prevented by any of the accused persons or that he had any reasonable apprehension in his mind that he State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.16 of 22 was confined in the car. There is nothing on record to prove that the accused persons intended to cause the complainant to be secretly and wrongfully confined in the car. In such circumstances the ingredients of section 365 IPC are not satisfied, and in opinion of this court, the evidence against the accused persons is not sufficient to convict them under this section.
12. Next, the accused persons have also been charged under Section 420 IPC on the allegation that they, in furtherance of their common intention, fraudulently and dishonestly induced the complainant to part with his cash of Rs.7,800/ and ATM card of SBI, which was eventually used for withdrawing a sum of Rs.20,000/ from his account.
13. Perusal of complaint Ex. PW1/A shows that the complainant had alleged in the said complaint that after he sat in the aforesaid car, one of the occupants told him that there is going to be police checking ahead and that he should put all his cash and valuable items in an envelop for that purpose. Then he kept all his belongings in the envelop given by the said occupant and gave it to him who then put his signature on it. On the other hand, in his testimony before the court, the complainant PW1 merely deposed that the accused persons asked him to keep all his valuables in an envelop and thereafter they placed that envelop in the bag of the complainant. When the complainant was pushed out of the car, he found that his articles were missing from the envelop. Clearly, the elements of inducement and deceit, though apparent from the complaint, are not alleged in the testimony of PW1. No cross examination was conducted by the state on this aspect either. Prosecution failed to explain as to what deception was played upon the complainant so as to induce him to deliver his valuables to the accused persons. From the testimony of PW1 it appears that he simply followed the directions of the accused persons and kept his belongings in an envelope. The State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.17 of 22 same were found to be missing from it later. In order to convict the accused persons under Section 420 IPC, it was incumbent upon the prosecution to show that the complainant was fraudulently and dishonestly induced to part with his belongings. However, since the testimony of PW1 itself does not allege any fraudulent and dishonest inducement in clear terms, accused persons cannot be held guilty under Section 420 IPC.
14. Here, it is pertinent to note that though the offence of cheating is not made out, it is proved that the valuables kept in the bag of the complainant were found missing after he was pushed out of the car. Though, PW1 himself did not see any accused person taking his articles out of the bag, the circumstances clearly show that the same were taken out of his possession in the car itself. It is thus argued by Ld. APP for the state that the offence of theft under Section 379/34 IPC is made out and the accused persons may be convicted under the same accordingly. Though, this court cannot be oblivious of the fact that the ingredients of offence under Section 379 IPC are present, at the same time court also cannot ignore the fact that the charge under Section 379/34 IPC itself was not framed against the accused persons. Hence, at this stage this court cannot go into the question as to whether the accused persons acted in furtherance of their common intention to steal the belongings of the complainant.
15. Now, moving forward to the charge under Section 506 (II) IPC, it was alleged by the complainant/PW1 in his testimony that the accused Pradeep told him to put all his articles in an envelope. Thereafter, he placed Rs.7,800/ in cash and ATM card of SBI bank, Chipitola main branch Agra in the said envelope. Thereafter, accused Pradeep started asking his PIN of the ATM card. He abused him and said "madarchod PIN number bata warna yahin per tere ko maar denge". PW1 further deposed that he got frightened and told his ATM State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.18 of 22 PIN number to the accused persons. Thereafter, he was pushed out of the car and then he found that all his articles were missing from his bag. Subsequently, he also received two separate messages for withdrawal of total of Rs.20,000/ from his account linked with his SBI card which was taken away by the accused persons.
16. Perusal of section 506 (Part II) IPC shows that it provides punishment for criminal intimidation where the threat was to cause death or grievous hurt. Criminal intimidation is defined under Section 503 IPC as under:
503. Criminal intimidation 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 threats, commits criminal intimidation.
17. With regard to the charge under Section 506 IPC, perusal of testimony of PW1 Ajay Pratap Singh shows that he kept his articles including his ATM card in an envelope upon the insistence of accused Pradeep and thereafter he was threatened to be killed if he did not disclose his ATM PIN to the accused. Testimony of PW1 shows that the accused Pradeep clearly intended to cause alarm to the complainant and to cause him to share his ATM PIN which he is was not legally bound to do. Clearly, the ingredients of Section 506 Part II IPC are satisfied. Further, the manner in which the complainant was let in the car, asked to part with his belongings including the ATM card, and the manner in which the car was driven away after he was pushed out of the car after he had disclosed his ATM PIN, clearly shows that all the accused persons acted in State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.19 of 22 furtherance of their common intention.
18. The principal ground of challenge to the testimony of PW1 Ajay Pratap Singh is that the identification of the accused persons is liable to be discarded because the complainant/PW Ajay Pratap Singh had been shown the photographs of the accused persons during the course of investigation. However, I do not see merit in this argument on behalf of the accused persons. Perusal of testimony of PW1 Ajay Pratap Singh shows that in his cross examination he deposed that he was shown photographs of large number of persons by the police from which he identified the accused persons. Thus, testimony of PW1 clearly shows that he identified the accused persons from a large number of photographs relying upon his own memory. Situation would have been different if the complainant was shown photographs of the accused persons alone and had identified them on that basis. However, that is not the case here.
19. It is further pertinent to note that not only did the complainant identify all three accused persons, he also assigned specific roles to them without any inconsistency. In dock identification he pointed out towards the three accused persons present in court and deposed that the person standing in the middle (Wasim @ Ishrar) was the person who introduced himself as 'fouji' and had sat in the car with him. He further deposed that the person standing on the left (Ajay) was the person who was driving the Santro car and the other accused (Pradeep) was the person who was sitting on the seat next to the driver of the Santro car. He categorically deposed that accused Pradeep had told him to put all his articles in one envelope, and that it was the accused Pradeep who abused him and forced him to share his PIN and subsequently pushed him out of the car. Nowhere it has come in evidence that the police showed the complainant the photographs of the three accused persons and told him which accused performed State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.20 of 22 which role. In such circumstances it cannot be said that the complainant was able to identify the accused persons only because the photographs of the accused persons were shown to him. Thus, in opinion of this court, the identification of the accused persons by the complainant is genuine and cannot be discarded. The complainant was crossexamined at length by the counsels for the accused persons, however, nothing came on record to impeach his credit or disbelieve his testimony. His testimony is free of blemish and inspires confidence.
20. Next, the accused persons further raised the defence that though the complainant alleged that he was forced to share his ATM PIN and subsequently Rs. 20,000/ were withdrawn from his account, the bank statement relied upon by the prosecution is not accompanied with Section 65 B of Indian Evidence Act. Hence, it is argued that the allegation of withdrawal of Rs. 20,000/ has not been corroborated by the bank statement. I do not find any merit in this argument of accused persons as far as offence under Section 506 IPC is concerned. For the purpose of conviction under Section 506 IPC it is irrelevant in the circumstances of this case as to whether any amount was actually withdrawn from the bank account of the complainant. Offence of Section 506 (Part II) IPC was complete the moment the accused Pradeep threated to kill the complainant with intent to cause him to share his ATM PIN.
21. It is pertinent to note that the issue whether the prosecution is able to prove the withdrawal of money from the bank account of the complainant or not, would have been relevant if the accused persons were tried for the offence of extortion under Section 384 IPC. However, since the accused persons were neither chargesheeted nor charged under Section 384 IPC, the issue of failure to prove withdrawal of money from the ATM of bank account of complainant is not relevant.
State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.21 of 22
22. In view of the foregoing discussion, I am of the opinion that the prosecution has successfully proved beyond reasonable doubt that the accused persons in furtherance of their common intention committed offence of criminal intimidation punishable under Section 506 Part II IPC. Hence, accused persons Ishrar @ Vasim, Pradeep @ Foji and Ajay Kumar @ Bhole are held guilty of the offence punishable under Section 506 Part II/34 IPC and are accordingly convicted under Section 506 Part II/34 IPC.
23. Since the prosecution failed to prove its case qua Section 365/420/34 IPC against the accused persons beyond reasonable doubt, they are acquitted of the offences punishable under section 365/420/34 IPC.
24. Let the copy of the judgment be supplied to the convicts free of cost.
Announced in open
Digitally signed
court on 25.02.2023 RAHUL by RAHUL
VERMA
VERMA Date:
2023.02.26
16:19:32 +0530
(RAHUL VERMA)
Metropolitan Magistrate07,
South East, Saket, New Delhi
State Vs. Israr @ Vasim & Ors; FIR No.115 /2019 PS Sunlight Colony Page No.22 of 22