Delhi District Court
State vs Mohd Afzal on 7 September, 2024
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
PRESIDED BY: SH. VIPUL SANDWAR
STATE Vs. AFZAL & ANR.
FIR NO. : 256/2000, U/s 452/342/365/506/34 IPC
PS : Seelampur
1.FIR No. 256/2000
2.Unique Case no. 462884/2015
3.Title State Vs. Afzal & Anr.
3(A).Name of complainant Dr. Tarique Kamal S/o Shafiq
Alvi, R/o 3549, Jatwara Street,
Daryaganj, New Delhi
3(B).Name of accused (1) Afzal S/o Mohd. Iqbal Gazi,
R/o K-221, New Seelampur,
Delhi and (2) Mohd. Yameen S/o
Ibrahim, R/o A-198, Gali no.7,
Chauhan Bangar, Delhi
3 (C). Representation on behalf of Ms. Amandeep Kaur, Ld. APP
State
4.Date of institution of challan 23.01.2002
5.Date of Reserving judgment 05.08.2024
6.Date of pronouncement 07.09.2024
7.Date of commission of offence 01.05.2000
8.Offence complained of U/s 342/365/452/506/34 I IPC
9.Offence charged with U/s 342/365/452/506/34 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Acquitted
State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 1 of 23
JUDGMENT
1. The present prosecution case has been registered on the written complaint of the complainant Dr. Tarique Kamal Alvi dated 05.05.2000. As per his complaint he was working as a dentist at premise no.112/1, opposite gali no.13, main road Jafrabad for the last 30 years. The original owner of the property Mr. Tek Chand had sold the property to Mohd. Rafi. The rent was enhanced from ₹50/- to ₹100/-. It came to the knowledge of the complainant that Mohd. Rafi had received a sum of ₹1 lakh from Yamin and agreed to sell the property at higher rates. On 04.04.2000 at about 09:00 pm when the complainant closing his shop, 4-5 anti social elements alongwith Yamin came to the shop calling themselves associates of Afzal and started abusing and threatening him to vacate the shop. Again on 01.05.2000 at about 09:00 pm two persons came to the shop and asked him to accompany them as Afzal had called him for settlement. They forced the complainant to accompany them and took him to the house of Afzal. On reaching there complainant Yamin, Afzal and 8-10 other people. Afzal threatened him to vacate the tented premises as the same was purchased by Yamin. They also offered him ₹50,000/- for vacating the shop or he was asked to pay ₹9 lakhs for entire land. They showed him knives and kattas and threatened to murder him. Since 03.05.2000 the shop of the complainant had been closed and he has been unable to earned his livelihood.
2. On the basis of the complaint, FIR no.256/2000, U/s 452/342/365/506/34 IPC was registered. After completion of investigation, chargesheet was filed U/s 452/342/365/506/34 State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 2 of 23 IPC.
3. Cognizance was taken and thereafter, charge for the offence punishable u/s 452/506/342/365/34 IPC was framed against the accused persons. The accused persons pleaded not guilty for the charges against them and preferred trial.
4. Prosecution had named total 06 witnesses in the charge sheet, however, accused persons vide their separate statement dated 11.11.2024 under section 294 Cr. PC did not dispute the registration of FIR and the concerned witness was dropped from the list of witnesses. SI Santosh could not be examined as a witness as he had already expired. Prosecution examined only 04 witnesses. Their brief testimonies are as follows:
(i) PW1 Dr. Tarique Kamal is the complainant in the present matter. He has deposed that he is a practicing doctor at shop no.112/1, main road Jafrabad, Delhi. The said shop was on rent and belonged to Sh. Tek Chand Jain. In April 2000, one person Yameen alongwith his associates came to his house and told him that he had purchased the said shop and asked him to vacate the premises. He also offered ₹50,000/- in lieu of vacating the shop.
He also stated that by paying a sum of ₹9 lakhs the said shop would be his. He also told that Afzal had gone for pilgrimage he had to vacate the shop till the return of Afzal. Again in May 2000, two persons came to his shop at about 09:00 pm and told him that he was called by Mohd. Afzal as he wanted to meet him regarding the vacating of the premises. He told them that he will meet him personally but they took him forcibly to Seelampur to State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 3 of 23 the place of Mohd. Afzal. At that place he found accused Afzal and Haji Yameen alongwith 8-10 other people. Accused Afzal told him that Yameen had purchased the shop and either you take ₹50,000/- for vacating the premises or give him ₹9 lakhs so that the shop will be his. He refused the same. On this accused Afzal told him that he had already murdered four people and it would be one more. Accused persons showed him knife and kattas and threatened to kill him and his family. Accused persons detained him for two hours for that place. Before that incident they took him for nawaz, thereafter, he released from there. After the incident he did not open his shop for 15 days. On 03.05.2000 he made a complaint to DCP. Later on FIR was registered against Yameen and Afzal. On 15.05.2002 he also moved the complaint to ACP, Public Grievance Cell. He correctly identified the accused persons in Court. In his cross examination by Ld. counsel for accused he has stated that he was running the shop in the premises no.112/4 since 1971 without any Assistant or Compounder or Junior Doctor. He used to examine 50 patients in a single day. He is having good relations with Mateen Ahmed (ex-MLA) and Cabinet Minister H.K.L. Bhagat. He had known accused Hazi Afzal for last 10-15 years. He conceded that wife of accused is a councilor from Ward No.250 Seelampur. He denied the suggestion that at the instance of ex-MLA Mateen Ahmed he had falsely implicated the accused so that political career, family of accused is ruined. He did not remember the duration after which he made the complaint to the police. He got his first complaint typed in Hindi and second complaint typed in English, however, he does not remember the dates. He never made any call at 100. He conceded that he is familiar with one State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 4 of 23 advocate Mohd. Rauf, however, he does not know if he is the nephew of Mateen Ahmed. He has also denied the suggestion that complaints were written at the instance of Mateen Ahmed. No fact of the accused offering ₹50,000/- to the complainant was mentioned in the complaint Ex. PW1/A filed by the complainant. He conceded that shop was situated at a thickly populated area. He conceded that grand father of accused Hazi Afzal was an old resident of Seelampur. He conceded that no name of accused Hazi Afzal has been mentioned in the complaint dated 15.05.2000. He did not know when the FIR in the present matter was registered. His statement was recorded only once by Vigilance Department. He did not whether police had prepared any document regarding the case or taken his signatures on the paper. He conceded that when 4-5 people visited his shop and asked him to vacate he did not call the police or lodge any complaint at the police station. His brother Dr. Arif Kamaal went with him to the PS to the lodge complaint in the present case. He conceded that neither he nor his brother gave any complaint to the PS. As on date he is in possession of above stated shop as he is the owner of the aforesaid shop. He could not tell the date, month and year in which he became the owner of the above said shop. He purchased the said shop from accused Yameen. He conceded that in his complaint there is no mention of Yameen ever visiting his shop at any point of time. He also conceded that there is no mention of his ever meeting accused Yameen in his entire life. He has stated that perhaps he has filed three complaints in the present case. He conceded that he had not gone through their contents. He did not remember if he visited the PS on 02.05.2000 for making any complaint. He conceded that no State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 5 of 23 date, month and year is mentioned in his complaint. He conceded that he did not file any complaint in the month of April 2000. He conceded that public persons were present when he was taken away from his shop in May 2000 and he did not make any hue and cry. He did not ask anyone from neighbourhood for help or resist to go with those people. The mosque where he offered the nawaz is situated 500 yards away from the house of accused Afzal. He conceded that he did not raise any hue and cry in the mosque or tried to escape from the mosque. He conceded that prior to the present case he never met with the accused prior to the present case. He could not remember the date when police recorded his statement. He denied the suggestion that he has falsely implicated the accused persons just to grab the shop.
(ii) PW2 HC Satish Pal on 10.06.2000 he was posted at PS Seelampur as Constable and was handed over copy of FIR and asal tehrir by DO/ASI Jagbir to handed over to SI Sanjeev at Jafrabad. IO recorded the statement of the complainant at K-221, New Seelampur, Delhi in his presence. He came back to the PS. In his cross examination he has stated that he does not remember when he reached the spot. He remained at the spot for about 15- 20 minutes. He conceded that the spot was crowded. He had not got his departure recorded at PS. He conceded that place of incident is a residential area and surrounded by various shop, houses etc. IO recorded statement of complainant in his presence and prepared site plan. IO did not ask any public person to join the investigation. All the proceedings were conducted on the road. He could not state as to who brought the asal tehrir at the PS. State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 6 of 23
(iii) PW3 Ct. Nafish Mohd. on 17.06.2000 he alongwith SI Sanjeev reached at Karkardooma Courts. Accused Afzal was arrested by the IO after being identified by the complainant. In his cross examination he has stated that on 17.06.2000 they left the PS in the afternoon, however, he does not remember the exact time. IO had not apprised the court that the complainant is present outside the Court.
(iv) PW4 Inspector Sanjeev Kumar is the IO in the present matter. On 24.05.2000 complaint was received at the PS and on the very next date the same was marked to him by senior officer. He made inquiry on the complaint and after that on 10.06.2000 he prepared rukka on the said complaint, endorsed the same and handed it over to the DO for registration of FIR. He accompanied the complainant and proceeded to shop no.112/1, main road Jafrabad and K-221 Seelampur and prepared the site plan of both the places at the instances of complainant. He recorded statement under section 161 Cr. PC of formal witnesses. On 13.06.2000 he applied for the production warrants of accused Afzal and arrested him. He prayed for one day PC remand but the same was refused and accused Afzal sent back to JC. He came back to the PS recorded statement of Ct. Nafees. After some time he got transferred and handed over the file to MHC(R). He identified only accused Afzal. In his cross examination he has stated that he had conducted local inquiry from both the shop and house. He had met the complainant on 10.06.2000. Complainant came to the PS at about 06:00-06:30 pm. He had not recorded statement of any public persons while preparing the site plans. He conceded that both the spot area are thickly populated. Complainant had not stated about any eye witness to him. He remained at the spot State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 7 of 23 for about 20-25 minutes. He had not obtained the signatures of the complainant on both the site plans. Complainant had disclosed the name of the original owner, however, he could not remember the same. On 17.06.2000 he had not sent any notice to the complainant to join the proceedings before the concerned Ld. MM but complainant had come to identified the accused Afzal. He denied the suggestion that present FIR was registered faslely on the grounds of political pressure or pressure from higher officials. He had not obtained any receipt/agreement from the complainant pertaining to his tenancy. He had not examined or obtained any documents regarding the ownership of the property. In the month of June and July he was transferred from the PS. He made several attempts to record the statement of the neighbors of the shopkeeper but no one was interested. He denied the suggestion that he did not conduct the investigation in fair and partial manner.
5. PE was closed on 26.10.2023 and on 14.12.2023 statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C wherein they denied the allegations in toto. They stated that they do not wish to lead DE and they have been falsely implicated in the present case.
6. Final arguments were addressed by Ld APP for the state and by the Ld. counsel for the accused.
7. Accused Afzal and Yamin have been charged for committing offence punishable under section 452/34 IPC.
State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 8 of 238. The offence under S. 452 IPC, the section reads as follows:
"452. House-trespass after preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The genus can be found in S. 441 IPC which defines the term criminal trespass. The succeeding sections are the variations of the criminal trespass defined in s. 441 and are punished as per the requirements of the sections. Section 441 IPC defines criminal trespass and is as under:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass'."
9. In Rajinder v. State of Haryana [(1995) 5 SCC 187 : 1995 SCC (Cri) 852], hon'ble Supreme Court Court observed as under: (SCC pp. 198-99, paras 21-22) "21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case."
State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 9 of 2310. Dealing with the issue of trespass, Hon'ble Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath, (1991) 2 SCC 141 : 1991 SCC (Cri) 315 at page 147 has observed that:
"It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. The authors of the Code had the following words to say:
"We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed."
11. In Matiullah Sheikh v. State of W.B., (1964) 6 SCR 978 :
AIR 1965 SC 132 : (1965) 1 Cri LJ 126, it has been observed that:
"5. It is worth noticing also that house trespass, apart from anything else is made punishable under Section 448 of the Indian Penal Code the punishment prescribed being imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or both.
6. Higher punishment is prescribed where house trespass is committed "in order to" the commission of other offences. An examination of Sections 449, 450, 451, 454 and 457 show that the penalty prescribed has been graded according to the nature State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 10 of 23 of the offence "in order to" the commission of which house trespass is committed. It is quite clear that these punishments for house trespass are prescribed quite independent of the question whether the offence "in order to" the commission of which the house trespass was committed has been actually committed or not. In our opinion, there can be no doubt that the words "in order to"
have been used to mean "with the purpose of". If the purpose in committing the house trespass is the commission of an offence punishable with death the house trespass becomes punishable under Section 449 of the Indian Penal Code. If the purpose in committing the house trespass is the commission of an offence punishable with imprisonment for life the house trespass is punishable under Section 450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457 will apply the house trespass or lurking house trespass, or lurking house trespass by night or house breaking by night are committed for the purpose of the offence indicated in those sections. Whether or not the purpose was actually accomplished is quite irrelevant in these cases.
12. From the above discussion, it can be stated that every trespass does not amount to criminal trespass within the meaning of Section 441 IPC. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
13. In Rash Behari Chatterjee v. Fagu Shaw, (1969) 2 SCC 216, it was observed that:
"The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 11 of 23 merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
14. For proving the offence as defined in section 441 IPC it is required for the prosecution to prove that the victim/complainant was in the actual possession of the property. It is the case of the prosecution that the offence was committed on 01.05.2000 and 04.04.2000 at about 09:00 pm. Inadvertently, the date is mentioned as 04.04.2000 in the charge framed against the accused vide order dated 30.10.2010 instead of 04.05.2000. However, this cannot be considered as a material altercation to affect the rights/the defence on which the accused would have relied.
15. In the present case PW1 has stated that he was a practicing doctor in shop no.112/1, main road Jafrabad, Delhi which was rented to him by Tek Chand. In April 2000, Yamin alongwith associates came to his shop and asked him to vacate the shop. Again in May 2000, two persons came and took him forcibly to the place of Afzal. In his cross examination conducted on 29.10.2015 he has stated that he is in possession of the shop being the owner of the said shop, however, he could not tell the date, month or the year in which he became the owner of the shop. Also, he has deposed that he had purchased the shop from State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 12 of 23 accused Yamin.
16. As discussed above, the possession has to be proved at the time when the offence has been committed and not at a later date. As per the deposition of the complainant he was the tenant of the premise no.112/1, main road Jafrabad, on the date of incident, landlord being one Tek Chand. No rent agreement has been brought on record by the prosecution. The said Tek Chand has not been examined as a witness by the prosecution. No documents have been collected by the IO to show that the complainant was in possession of the property at the time of incident.
17. Next, the prosecution has charged the accused persons for offence punishable under section 342 IPC. The offence punishable under section 342 IPC has been defined in section 340 IPC and reads as follows:
"340. Wrongful confinement-
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person."
18. It is the case of the prosecution that the accused persons has wrongly confined the complainant Tarique and forced him to walk towards the house of the accused and detained him there for 2-3 hours.
19. PW1 in his deposition has stated that in the month of May 2000 two persons came to his shop and told him to meet Afzal and forcibly took him to his place against his consent. In his State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 13 of 23 cross examination dated 15.12.2015 he has deposed that when he was forcibly taken he did not ask anyone from neighbourhood for help or resisted going away with those two people. He also conceded that he did not raise any noise while from his shop to the house of the Afzal. He did not try to escape from the scooter on the way. He has also deposed that he offered nawaz on 01.05.2000 at a mosque situated at 500 yards from the house of Afzal. 100 of devotes are inside the mosque at the time of offering the nawaz but he did not raise any hue and cry or tried to escape.
20. As observed above for proving the offence define under section 340 IPC, the person has to be completely restrained from proceeding beyond certain circumscribing limits. In the present case the complainant after being confined was allowed to go to mosque, and offer prayers and meet other people. This cannot be considered a confinement as defined in section 340 IPC.
21. Thirdly, the prosecution has also charged the accused persons for having committed an offence under section 365 IPC for abducting the complainant and secretly/wrongfully confining him.
"365. Kidnapping or abducting with intent secretly and wrongfully to confine person.-- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 14 of 23
22. Every charge of section 365 IPC is an aggravated form of either the offence of kidnapping defined in section 361 IPC or abduction defined in section 362 IPC.
"361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.-- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.(Exception)-- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
362. Abduction.--
Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
23. In Anversinh v. State of Gujarat, (2021) 3 SCC 12 , Hon'ble Supreme Court has observed that:
"A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such "enticement" need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl.
However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home."
State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 15 of 2324. In Parkash v. State of Haryana, (2004) 1 SCC 339 , the apex court discussing the principle behind the enactment of S. 361 IPC has observed that:
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."
25. In Thakorlal D. Vadgama v. State of Gujarat (1973) 2 SCC 413 it was, inter alia, observed as follows :
"The expression used in Section 361 IPC is 'whoever takes or entices any minor'. The word 'takes' does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, 'to cause to go', 'to escort' or 'to get into possession'. No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 16 of 23 forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words 'takes' and 'entices', as used in Section 361 IPC are in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 IPC."
26. Abduction has been defined in section 362 IPC which reads as follows:
"362. Abduction: whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct said person."
27. PW1 in his examination in chief has stated that in the month of May 2000, two persons came to his shop when he was about to close his shop at about 09:00 pm and told him that he was called by Afzal who wanted to meet him regarding the vacating of his premises. They forcibly took him to the place of Afzal against his will and consent. At that place he found Afzal and Yamin alongwith 8-10 other people. They threatened him to vacate the premises. Detained him for about two hours. Took him for nawaz before that and thereafter, released him. The two persons who had come to the shop of the complainant were certainly not the accused persons as complainant was taken to the place where he met accused persons alongwith 8-10 others as per State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 17 of 23 his own deposition.
28. The complainant himself depose that prior the incident he was taken to mosque for offering nawaz and he was released within two hours. Moreover, he met many other people during that time while offering nawaz and it cannot be said that the intent was to secretly/wrongfully confined him.
29. Lastly, coming to offence punishable under S. 506 IPC. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is 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 threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
30. A reading of the definition of "criminal intimidation"
would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 18 of 23
31. In Manik Taneja v. State of Karnataka, (2015) 7 SCC 423 : (2015) 3 SCC (Cri) 132, it has been observed that:
"It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section."
32. Accused persons have been charged with offence punishable offence under section 506 IPC for threatening the complainant and his family members. PW1 has deposed that accused Afzal had told him that he had already murdered four people and it would be one more. They showed him knives and kattas and threatened to kill him and his family.
33. The present FIR was registered only on 10.06.2000 after the complainant had moved three different complaints to the police officials. The first complaint Ex. PW1/A is dated 03.05.2000, the second complaint Ex. PW1/B is dated 05.05.2000 and the third complaint Ex. PW1/C is dated 15.05.2000. In his cross examination the complainant was not familiar with the complaints or its contents. In the initial complaint Ex. PW1/A it is nowhere mentions that accused Yamin and others had come to the shop of the complainant. In the complaint Ex. PW1/B at paragraph 5 name of accused Yamin is mentioned as an addition. No name of accused is mentioned in the third complaint Ex. PW1/C. There has been apparent improvements in the deposition of PW2 in Court. As discussed above, the intention of causing threat to intimate the accused State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 19 of 23 must be present there. The details have not been provided by the complainant. Moreover, the complainant while deposing in his cross examination has himself stated on 29.10.2015 that he had purchased the shop from accused Yamin. However, he did not provide any details as to when the same was purchased, at what consideration or produced any documents.
34. To summarize, the present FIR was registered in the year 2000 and the trial in the present matter has lasted for almost 24 years. The prosecution has relied on its sole witness i.e. complainant to prove its case. The testimony of the complainant is a definite improvement on the initial three complaints filed by him on the basis of which the present FIR was registered. Moreover, the witness has been incoherent and have been unsettled in the cross examination. Certain discrepancies have been found in his testimony which has not been explained by the prosecution. The addition of the name of accused Yamin in Ex. PW1/B at para 4 seems to be an after thought. The shop no.112/1, Jafrabad regarding which the complainant was threatened to vacate has been bought by the complainant himself by the accused. No details or under what circumstances the said shop was purchased by the complainant has been mentioned by the complainant in his deposition. The complainant himself as stated in his deposition that he has been working in his shop for last 30 years and it is a public place with many people and neighbouring shops being present there. Despite that he did not raise any hue and cry when he was forcibly taken to the place of the accused Afzal. In his deposition complainant has also stated that he was taken to offer nawaz prior to being taken to meet the State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 20 of 23 accused persons. He offered nawaz alongwith many other devotees but did not inform any one about him being abducted. Altogether, the version of the complaint does not seem to be supporting the allegations of the prosecution.
35. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
36. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 21 of 23 criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
37. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
38. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 22 of 23 honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
39. Considering the aforesaid infirmities and inconsistencies in the prosecution version, I find that the prosecution has failed to prove the offences punishable under section 342/365/452/506/34 IPC against accused Afzal and Yamin. It is cardinal principle of criminal law that accused is presumed to be innocent until proven guilty. In view of no substantive evidence against the accused persons as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Afzal and Yamin are acquitted for the offence under section 342/365/452/506/34 IPC. Their bail bond stands cancelled and surety stands discharged. Digitally signed by VIPUL VIPUL SANDWAR SANDWAR Date:
2024.09.07 17:05:55 +0530 Announced in the open (VIPUL SANDWAR) Court on 07th September 2024 JMFC-02/NE/KKD COURTS State vs. Mohd. Afzal & Anr. FIR No.256/2000 PS Seelampur Page 23 of 23