Delhi District Court
Mohd. Zahid vs State on 27 July, 2016
Mohd. Zahid v. State
IN THE COURT OF SH. VIMAL KUMAR YADAV,
ADDL. SESSIONS JUDGE-01:(CENTRAL)/THC:DELHI.
Crl. Appeal No. 23/15
New Case No. 54881/2016
ID No.: 02401R0294932014
Mohd. Zahid
S/o Sh. Ibrahim
R/o 7460, Gali Chhoti Masjid,
Quresh Nagar, Sadar Bazar,
Delhi - 110 006.
........... Appellant / Accused
Versus
State
.......... Respondent
Date of Institution : 02.07.2014
Date on which reserved for judgment: 16.07.2016
Date of judgment : 27.07.2016
Present: Mohd. Iqbal, Advocate, Ld. Counsel for appellant.
Ms. Madhu Arora, Ld. Addl. PP for the State.
JUDGMENT
1. Aggrieved by the impugned judgment dated 29.05.2014, and the sentence dated 06.06.2014, the appellant Mohd. Zahid has preferred the instant appeal, which is hereby disposed off through this judgment.
2. Before adverting to the grounds on which the appellant has assailed the judgment, the indispensable facts are required to be recapitulated which goes as under. Samiuddin, the resident of Quresh CA No. 23/15 Mohd. Zahid v. State Page No.1 of 9 Mohd. Zahid v. State Nagar, Idgah Road, Sadar Bazar, Delhi had received a telephonic call at about 10.30 p.m. (a.m.), on 09.02.2001, in which the caller demanded a sum of Rs. 10,000/- to be paid to him per month, failing which the caller threatened not only to complaint about the so called illegal slaughtering business of Samaiuddin, but also threatened to kidnap his children. The person who had purportedly made the call to the victim Samaiuddin met him, on that very day at about 01.30 p.m. (a.m.) in the park at Idgah Road, where the complainant's brother namely Wasaiuddin was also with him. According to the complainant / Victim, the appellant herein reiterated his demand and threats. These facts were reported by the complainant to PS Sadar Bazar, Delhi on that very afternoon and that is how FIR No. 51/01 came into existence.
3. The matter was taken up, and investigated upon which shaped up in a charge sheet filed under section 385 IPC. A notice was framed against the accused for the offence under section 385 IPC on 26.03.2004, after compliance of the provisions under section 207 Cr. P.C. Expectedly, the appellant pleaded not guilty to the allegations against him and that paved the way for trial in which, the prosecution, in order to substantiate the allegations against the appellant / accused, examined eight witnesses and thereafter statement of accused under section 313 Cr. P.C. was recorded in which he not only controverted the evidence against him, but also stated that he has been falsely implicated in this case. He had never made any telephonic call to the complainant nor for that matter he visited the park on the date and time stated by the witnesses, claimed the accused. He has been the victim of conspiracy in which the complainant has tried to settle his score with him in view of his friend's activism against the illegal slaughtering business going on in the area which was reported to the authorities.
CA No. 23/15 Mohd. Zahid v. State Page No.2 of 94. The trial Court after considering the evidence and the contentions raised by the contesting sides held the appellant guilty under section 385 IPC and convicted him through impugned judgment and sentenced him to undergo simple imprisonment for the period of six months and also imposed a fine of Rs. 500/-, in default sentenced to undergo Simple Imprisonment for two days.
5. Ld. Counsel for appellant assailed the judgment by stating that there is no evidence of the telephonic call allegedly made by the appellant to the victim. There is no cogent evidence with regard to what transpired in the afternoon on 09.02.2001 as three witnesses have been examined by the prosecution in order to bring on record about the happenings. All three are at variance on vital aspects. These facts if read in conjunction with the fact that the victim and his brother both were involved in illegal slaughtering business on the ground floor of their house and their premises was sealed also by MCD. Whereas, they could not give any reason as to how the premises was desealed. All this, goes on to show that the claim of the appellant that he has been falsely implicated on account of his association with Amzad and Babar and their activism to have a illegal slaughtering business contained and controlled in the area could be correct. It is also asserted by Ld. Counsel for the accused that the Ld. Trial Court has lost sight of this vital fact and considered the vital discrepancies as minor one and held the appellant guilty.
6. Ld. Addl. PP, on the other hand, maintained that the impugned judgment does not suffers from any infirmity as sufficient and cogent evidence is there, therefore, the judgment does not requires to be interfered with.
CA No. 23/15 Mohd. Zahid v. State Page No.3 of 97. Since, the case of the prosecution is entirely based upon the oral testimony and that both the victim and his brother and the third person happens to be the friend of the victim, therefore, in such circumstances, the testimony coming on record needs to be tested and interpreted on strict parameters. It should not only be unequivocal, cogent and credible showing the guilt of the accused but should have sufficient corroboration, too, as rule of prudence. The testimony coming on record i.e. of the Victim Samaiuddin, his brother Wasaiuddin and their friend Mukim examined as PW1, PW2 and PW3 respectively, if tested accordingly then, it emerges on record that the genesis of the issue is the illegal Slaughtering, which was being carried out in the area of Kasabpura / Idgah. According to the PW2 and PW3, Samaiuddin and Wassaiuddin both are involved in the Slaughtering business and the circumstances reflect that it was not legal. PW2 has admitted that no license of Slaughtering was there with them but still the same work was being continued.
8. It has also come on record that the premises of the victim and his brother, where the Slaughtering was being done by them, was sealed by MCD which fact has been, though denied by PW2, but PW3, Mukim is very clear and categorical on this issue and for that matter PW1 has also admitted that his godown, where Slaughtering was done by him, on the ground floor of his house was sealed by the MCD. Testimony of PW1, Samaiuddin further reflects that the premises was desealed but he could not give any reason as to why the seal was removed and on the aspect of extending assurance to the MCD, not to indulge into Slaughtering business anymore, he is evasive. PW1 has also admitted that lot of persons are engaged in illegal Slaughtering apart of him and the Doctors from the Health Department of MCD and police regularly raid the area and challan the violators. PW1 has also admitted that slaughtering was being done on the ground-floor of his house and that is why the premises was sealed by CA No. 23/15 Mohd. Zahid v. State Page No.4 of 9 Mohd. Zahid v. State the MCD for illegal slaughtering. PW1 has also admitted that there is no license for slaughtering business with him. The tone and tenor of the testimony of PW1, that he involved in illegal slaughtering in his premises was sealed by MCD which became functional again, but he has not clearly stated as to how it happened. The appellant has tried to bring on record that he alongwith his friend Amzad were crusaders against the illegal slaughtering and that is the reason why the appellant has been falsely implicated by the Victim in the instant case. This can be inferred from the cross-examination of PW2, who has denied any enmity with Amzad but admitted that Amzad had made complaints of illegal slaughtering and had also in a way conceded that the appellant happens to be the friend of the said Amzad. The conflict of interest is directly evident.
9. According, to the victim, and the case of the prosecution, threats were extended to the victim through two modes i.e. through telephone in the morning at about 10.30 a.m. or so are subsequently on that very day i.e. 09.02.2001 at 01.30 p.m. in the park at Idgah. So far as the telephonic call is concerned, the prosecution, despite re-investigating the case under section 173 (8) Cr. P.C. was not able to bring any cogent evidence showing that the appellant had any telephone connection or that the telephone call was made by the appellant to the victim and for that matter, the call record has also not been produced as in that eventuality, it would have been possible for Investigating Agency to zero in on the telephone number from which the threatening call allegedly emanated. Incidentally, in this context, the victim himself stated that he had a suspicion that the caller was the appellant which according to him was confirmed when the appellant met him at 01.30 p.m. on 09.02.2001 and reiterated his threat and demand. Nevertheless, so far as the telephonic conversation having threatening under tones, no cogent evidence have been brought on record.
CA No. 23/15 Mohd. Zahid v. State Page No.5 of 910. The only evidence, thus, remains against the appellant in the shape of what transpired in the park near Idgah, at 01.30 p.m. involving the appellant, victim and his brother and whether some other person or persons were present there or not is uncertain. In this context, the testimony of PW1, PW2 and PW3 has been relied upon by the prosecution but it seems to have collapsed under his own weight on account of the inherent contradictions which could not be termed as insignificant or minor, especially in view of the fact that the entire case is based on oral testimony. The incident took place in which the victim Samaiuddin was allegedly threatened for extortion by the appellant at about 01.30 p.m. on 09.02.2001 which incidentally was Friday and as all the persons involved happen to be Muslims, and, therefore, near Idgah possibility of presence of a number of persons could not be ruled out. Although, PW1 Samaiuddin does not say about the presence of anyone except his brother, rather in the cross- examination, he has categorically denied the presence of any other person which is apparently not possible on account of the day and time i.e. 01.30 p.m. of a Friday, near Idgah. However, he is contradicted by his own brother PW2, Wasaiuddin, where latter has stated that he was present alongwith his brother Samaiuddin and two other persons were standing at the park at Idgah and they were talking to each other. Although, he is silent about the presence of Mukim, PW3, but it could be presumed that out of those two other persons, one may be Mukim. Although, Mukim, being their friend, cannot be forgotten rather should have been named. According to PW2, the alleged threat were extended to Samaiuddin by the appellant after taking Samaiuddin away from the other persons who were standing there, whereas, the PW3, Mukim says that he was present at the spot with one Wasi and was joined by Samaiuddin and thereafter, the appellant came and had a discussion with Samaiuddin, albeit accused wanted to discuss in privacy. Samaiuddin had since asked appellant Mohd. Zahid to discuss in front of everybody there and according to Mukim, CA No. 23/15 Mohd. Zahid v. State Page No.6 of 9 Mohd. Zahid v. State Mohd. Zahid demanded money from Samaiuddin on account of the illegal slaughtering and thereafter, went away. He is silent about any other fact, whereas, the PW1 has testified that the appellant had not only threatened that he will report the illegal slaughtering business, but get his children kidnapped as well, if his demand of payment of Rs. 10,000/- is not fulfilled. PW2 Wasaiuddin, according to the case of the prosecution, was also present there at the relevant time and according to him Mohd. Zahid took Samaiuddin aside about a distance of 50-60 yards and he alone accompanied them, meaning thereby, that whatever transpired between Mohd. Zahid and Samaiuddin was in the knowledge of these three persons Samaiuddin, Wasaiuddin and Mohd. Zahid. Then how come Mukim comes into the picture, has not been explained by the prosecution. Incidentally, Wasaiuddin has gone a step further and introduced a new fact that appellant had threatened to implicate Samaiuddin in a false case, apart from the threat to kidnap his children and sealing of the slaughtering house run by Samaiuddin.
11. It, thus, is evident that the witnesses, including the victim are not corroborating and supplementing each other which puts a question mark on the credibility of their testimonies.
12. Again, on the procedural aspect also the testimony is not above-board in-as-much as according to PW1 after the so called threat was extended by the appellant / accused Mohd. Zahid, he went to PS Sadar Bazar and got the case registered. Testimony of PW1 reflects as, if he himself had gone alone to the Police Station. According to him he reached to the PS at about 02.30 / 03.00 p.m., and was accompanied by none except his brother Wasaiuddin and his statement Ex. PW1/A which formed the basis of the FIR was recorded at about 02.00 / 02.30 p.m., apparently, it is not possible that he will reach to the PS at about 02.30 / 03.00 p.m. CA No. 23/15 Mohd. Zahid v. State Page No.7 of 9 Mohd. Zahid v. State and have statement record at 02.00 / 02.30 p.m. In this context, the testimony of PW3 Mukim is to the effect that he alongwith Samaiuddin and probably with Wasaiuddin also went to the PS at about 05.45 in the evening and the FIR was registered in the presence of Samaiuddin. Apparently, afternoon and evening are two different timings which can be easily distinguishable even by a child.
13. According, to Mukim PW3, his statement was recorded by a Sub-Inspector at 04.45 p.m., whereas, in cross-examination he has categorically stated that he, that is Wasaiuddin and Samaiuddin went to the PS at about 05.45 p.m., if it was so, how can his statement was recorded by the SI at 04.45 p.m. in connection with this case. His statement was recorded at the spot i.e. at the park which further reflects that after reaching to the police station and having the FIR registered they all must have come back to the park, where, statement of Mukim was recorded. It must have apparently taken some more time. Evidently, these facts are in-conflict with each other and, therefore, comes under the cloud of doubt and suspicion. According to IO, he reached at the spot at 03.00 p.m. and prepared the site plan Ex. PW8/B and recorded the statement of the public witnesses and remained present there till 05.00 - 05.30 p.m., which further shows that what is being attempted to be portrayed is not the correct picture of what actually transpired.
14. The contradictions and inconsistencies referred above may not appear to be very vital and serious at the first look but when the same are appreciated against the background of the case and especially when the entire case of the prosecution is based upon the oral testimonies, then, they take a different shape and start appearing bigger and vital. What has come on record also reflects that the allegations of illegal slaughtering in the area of Kasabpura that too with the connivance of MCD and the police CA No. 23/15 Mohd. Zahid v. State Page No.8 of 9 Mohd. Zahid v. State authorities could not be thrown away or ruled out altogether. The traces of the fact that appellant Mohd. Zahid was friendly with one Amzad and Babar, one of whom, had probably filed a Writ Petition against illegal slaughtering and these facts coupled with the admissions on the part of Wassaiuddin and Samaiuddin, also narrated by the PW3, that illegal slaughtering was done in the area and that victim and his brother were also doing slaughtering business without there being any license, further consolidate the stand taken by the appellant and in the process cause a fatal blow to the case of the prosecution.
15. In view of the foregoing discussion, it would be unsafe to rely upon the testimonies of PW1 and PW2 who are real brothers and PW3 who happens to be their friend against the backdrop of the facts and circumstances of the case enumerated above. As such, the appeal is allowed and the conviction and the sentence against the appellant is set aside giving him the benefit of doubt. He stands acquitted of the charges.
16. Mohd. Zahid is directed to file bail bond in terms of section 437A Cr. P.C in the sum of Rs. 15,000/- with one surety in the like amount, with direction that he shall appear before the higher Courts, if and when he receives any summons/ notice during the said period, compliance by him be made within a week.
Trial Court Record be sent back.
File be consigned to Record Room.
Announced in the open Court
on this 27th day of July, 2016 (VIMAL KUMAR YADAV)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
CA No. 23/15 Mohd. Zahid v. State Page No.9 of 9