Delhi District Court
State vs . Mohd. Naseer on 31 July, 2023
IN THE COURT OF MS. MANU SHREE, MM-01, SOUTH-
SAKET, NEW DELHI
CrC No. 2031444/2016
State vs. Mohd. Naseer
FIR No. 424/2010
PS Hauz Khas
JUDGMENT
Date of the Commission of 26.12.2010 and 27.12.2010 offence Date of Institution of the case 27.07.2011 Date of reserving the judgment 24.07.2023 Date of pronouncement of 31.07.2023 judgment Name of the Complainant Sandeep Singh, S/o Late Major Amarjit Singh, R/o H.No. 57, Uday Park, New Delhi.
Name of Accused, their Mohd. Naseer, S/o Sh. Mohd.
Parentage Muneer, R/o H.No. 19, Gali
No.5, Block-D Sangam Vihar,
New Delhi.
Offences complained of or Sections 385/387/511/120B/
proved 34 IPC
Plea of accused Not guilty
Final order Acquittal
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. As per prosecution, on 26.12.2010, wife of complainant namely Rupali Singh along with her family was at her residence situated at H.No. 57, Uday Park, within the jurisdiction of PS Hauz Khas when she received a phone call 1 from number 9717557439 on her cell phone (having number 9811091573) and the caller spoke to her in abusive language and also threatened to harm her and her family and then hung up. On the following day i.e. on 27.12.2010, Rupali Singh received a threatening SMS wherein the sender demanded Rs. 67 Lakhs from her and in case his demands were not met, he threatened to kill her family. On the basis of complaint of Sandeep Singh h/o Rulai Singh to the aforementioned affect, FIR was registered u/s 385/387 IPC and during investigation, the call details and copy of customer application form was procured from the mobile service operator and the number from which threatening message was received by Rupali Singh was found registered in the name of one Sunita, W/o Subhash. Thereafter, IO met Subhash who stated that the number belonged to him but he had given his cell phone with the SIM for the said number for repair to one Manoj and thereafter, the said person namely Manoj was questioned and he stated that he had given the cell phone with the SIM to one Santosh Kumar for repair and consequently, the said person namely Santosh Kumar was questioned who stated that he had returned the phone to Manoj but inadvertently, forgot to return the SIM which was misplaced by him within his shop. He then stated that he had handed over the SIM to a boy namely Vishal who ran his shop of mobile repair at Adhchini so that the latter could speak to his girlfriend. Thereafter, the boy namely Vishal was questioned who stated that one Mohd. Naseer who was working at the office of Rupali Singh had come to his shop and both became friendly whereafter, Mohd. Naseer induced him to threaten Rupali Singh for which he offered him money and due to the said allurement, he called Rupali Singh on 26.12.2010 and 2 threatened her and her family but he then became apprehensive about the consequences of the same and told Mohd. Naseer that he was afraid to call her again but Mohd. Naseer assured him that no action would be taken by Rupali Singh as he knew her nature and on 27.12.2010, Mohd. Naseer again visited shop and dictated to him the message to be sent to Rupali Singh and on his instruction, he sent the same to Rupali Singh and on the same day he was informed by Mohd. Naseer that Rupali Singh had made a complaint to the police. Thereafter, accused Mohd. Naseer was arrested who stated that he planed to extort money from the complainant by extending threats to kill her son and since he could not materialized the plan alone, he took help of the boy Vishal.
After investigation, charge-sheet was filed against accused Mohd Naseer u/s 385/387/34/120B/511 IPC.
2. On the basis of the aforesaid charge sheet and annexed documents, cognizance of offences were taken and accused Mohd. Naseer and was summoned to face trial. On appearance of the accused person, provision of Section 207 of the Criminal Procedure Code (hereinafter referred to as "the Code") was complied with and after hearing arguments, charge qua the offences punishable under Section 357/511/34 of IPC was framed against the accused Mohd. Naseer to which he pleaded "Not Guilty" and claimed trial instead and accordingly, the case was fixed for prosecution evidence. Co-accused Vishal was a Juvenile and his trial ran separately.
33. To prove its case against the accused persons, prosecution examined eight witnesses.
3.1 Complainant/Sh. Sandeep Singh was examined as PW- 1 and deposed that on 26.12.2010, he was sitting with his wife and at about 06:00 PM, a call was received on her wife's cell number 9811091573 from no. 9717557439 and the caller started using filthy language against his wife and he took the phone and talked to the caller who stated that he knew his wife, his son and himself and he is well familiar with his family members and also stated that he knows that where his son was present. Thereafter, he disconnected the call. Thereafter, he tried calling back the number but it was found to be switched off. On 27.12.2010, one SMS was received by his wife on her cell phone making demand of Rs.67 lacs failing which the sender threatened to kill his son and threatened the receivers not to go to the PS. PW1 then made a complaint to the police, Ex.PW1/A. During investigation, police arrested the accused Mohd. Naseer as he was the employee of his wife who ran a boutique where accused worked as a tailor. On 31.12.2020, police seized the mobile phone of his wife make Samsung which was handed over by her to the police vide memo Ex.PW1/B. 3.2. Victim/Mrs. Rupali Singh was examined as PW2 and deposed that on 26.12.2010, she was sitting with her husband and at about 06:00 PM, a call was received on her mobile number 9811091573 from another mobile phone, the number of which she did not remember and the caller started using filthy language and stated that 'hello tu rupali bol rhe hai, tujhe pta hai tera beta kha ha', thereafter, her husband picked up the phone as the caller was shouting and speaking rudely and talked with the caller who 4 stated that he knew his wife, his son and himself and he is well familiar with his family members. Thereafter, the caller disconnected the call. Her husband then again rang up on the said mobile phone but it was found switched off. On 27.12.2010, one SMS was received on her cell phone making demand of Rs. 67 lakhs against threat to kill her son. Thereafter, she and her husband informed the police, her husband submitted his complainant and the police assured to take necessary action. During investigation, she handed over her mobile on which she had received the alleged extortion call and the SMS and police took the same in their possession vide seizure memo, Ex.PW1/B. 3.3 Witness/Sh. Santosh Kumar Sharma was examined as PW3 and deposed that he did not know accused Mohd. Naseer, however, he knew CCL Vishal who had a mobile recharge shop at Adhchini market where he was also running a mobile repair shop. He stated that CCL Vishal did not sell SIM cards at his shop but in November or December 2010, he requested PW3 to arrange for a SIM card for him to talk to his girlfriend and PW3 gave him one SIM card of Airtel network, whose number he did not remember. Thereafter, police of PS Hauz Khas visited his shop and enquired about the aforementioned, SIM card, which he had given to Vishal and PW3 accepted that he had given SIM card to Vishal to talk to his girlfriend. Later PW3 came to know that police apprehended the present accused Md. Naseer in connection with present case.
3.4 Witness/Sh. Ramesh Mukhia was examined as PW 4 and deposed that in the year 2010, he was living in the New Friends Colony at 5B/7, Khirzabad, NFC, New Delhi. At that time he was working as a driver with his employer Rocky Singh 5 and he used to leave wife of Rocky Singh namely Rupali Singh at her office from home and used to take her back to home. He also used to leave the children of his employer to school and collect them to home. PW4 along with accused used to have lunch at the office of Rupali Singh where accused made enquiries about the school of children of Rocky Singh. Police did not record statement of PW4.
3.5 Witness/ Subhash was examined as PW5 and deposed that in the winter season of 2010, he kept his mobile of Nokia company at his address and since the said mobile was not in a working condition, he gave the same to his cousin namely Manoj for repairs. After about a week, he told his cousin that he needed the SIM which was in his mobile phone who went to the mobile repair shop and asked the shopkeeper for the SIM but the shopkeeper replied that he had kept the SIM somewhere but could not find it and that he would find the same at the time of cleaning. After about 15-20 days, police came at his house from PS Hauz Khas and police took him to PS Hauz Khas and inquired him about the SIM and he told them that the SIM alongwith mobile were at the mobile repairing shop. Thereafter, PW5 along with his cousin and police officials went to PS and after taking down his address, police allowed him to leave. 3.6 Witness/Manoj Kumar was examined as PW6 and deposed that his cousin Subhash gave him a mobile make Nokia for repairs and he gave it for repairs at shop and theSIM went missing from the shop. Thereafter, police arrested his brother from Tughlakabad and the next morning, he along with police reached the mobile repair shop where police made enquiries from the shopkeeper and police had recorded his statement at the PS. 6 3.7 Witness/Chander Shekhar who was examined as PW7 deposed that he had brought the original CAF of mobile no. 9717112438 and 9717557439 and copies of the same are Ex.PW7/A and Ex.PW7/B. The certified copies of CDR of mobile no. 9717112438 and 9717557439 are Ex.PW7/C and Ex.PW7/D. He could identify the signature of Sh. Vishal Gaurav as he worked with him and saw him writing and signing during the course of his official duties. The certificate u/s 65B of IEA was tendered as Ex.PW7/E. 3.8 Witness/SI Inderjeet was examined as PW8 and deposed that on 28.12.2010, he was posted as SI at PS Hauz Khas and on that day, complainant Rupali Singh alongwith her husband came to the PS with respect to her complaint which was given on 27.12.2010. PW8 formally inquired the complainant and a rukka was prepared, Ex.PW8/A and after registration of FIR, he inquired from the complainant and on the basis of call records, he reached Dakshinpuri, where he met one Subhash and thereafter, reached at Sarvodaya Enclave and met one Manoj. Statements of both the witnesses were recorded. During further course of investigation, he also recorded statement of other witnesses and during investigation, it was revealed that the SIM card which was used for the offence was in the name of Sunita W/o Subhash and the SIM card was used by one Vishal who was later discovered to be a juvenile. It was also revealed that threatening phone calls and messages were made by Vishal on instruction of accused Mohd. Naseer and during the course of investigation, accused Md. Naseer was interrogated and arrested. SIM card and piece of papers were also recovered vide memo already Ex.PW2/B, complainant's mobile was seized vide seizure memo already 7 Ex.PW 1/B and SIM card were seized from Vishal vide memo Ex.PW 8/B and during the course of investigation, notice u/s 91 Cr.P.C. was given to Nodal Officer and call records including CAF were obtained which were exhibited as Ex.PW8/C (Colly.) along with 65B certificate, Ex.PW7/E. After completion of investigation, charge-sheet was filed before the court.
Vide order dated 28.11.2022, PE was closed at the submission of Ld. APP for State.
4. On 28.11.2023, statement of accused Mohd. Naseer u/s 313 Cr.P.C. was recorded wherein he denied the case of the prosecution and stated that he was falsely implicated in the case. Accused chose not to lead evidence. DE was closed and matter was fixed for final arguments.
5. During final arguments, it was argued by Ld. APP for the State that the case against accused Mohd. Naseer stood proved in view of the evidences led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 387/511/34 IPC.
On the other hand, the Ld. Defence counsel argued that the prosecution had failed to bring out a case against accused and he had been falsely implicated in the case by the former employer of accused, Ms. Rupali Singh and is liable to be acquitted.
6. This Court has gone through the evidence of the prosecution witnesses, perused the other material on record and duly considered the arguments advanced.
87. Section 383 IPC defines the offence of 'Extortion' as:
383. Extortion--- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence of Extortion:
1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly.
Another relevant provision for the disposal of this case is section 387 IPC which is reproduced thus:
387. Putting person in fear of death or of grievous hurt, in order to commit extortion.--Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.9
The other relevant provision invoked against the accused is section 511 IPC which has been invoked in the present case with section 387 IPC. Section 511 IPC is reproduced hereunder for ready reference:
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. --
Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison- ment provided for that offence], or with such fine as is provided for the offence, or with both.
Pertinently, the provisions from Sec. 383 to 389 IPC are essentially divided into two categories of extortion. The offence of Extortion, as defined in S. 383, when complete by satisfaction of all the three aforesaid ingredients, is dealt with and made punishable u/s. 384, Sec. 386 or 388 IPC subject to fulfilment of additional ingredients mentioned therein and difference being in degree of gravity. The other category of extortion relates to those acts where the transaction of extortion is not complete due to the last ingredient of delivery of property/valuable or valuable security being missing, despite the former two ingredients of fear of injury and inducement being 10 satisfied. These sections are Sec. 385, 387 and 389. The common thread running through the said three sections is the expression "whoever in order to the committing of extortion ..........." which is employed in these three sections making the legislative intent clear that they relate to a situation where the accused, in order to commit extortion, puts the victim in fear of injury to cause inducement but not leading to any delivery of property/valuables in favour of accused. Therefore, it is obvious that the provision from Sec. 385, 387 and 389 of IPC relate exclusively to instances of attempted extortion where entire transaction of extortion as defined in Sec. 383 IPC is not complete. Consequently, since the commission of extortion and an attempt to commit extortion are both provided for in the sections from Sec. 383 to 389, the resort to residuary provision mentioned u/s 511 of IPC is uncalled for.
8. Before proceeding ahead, it would be relevant to revert to the scheme of IPC, which reveals that three types of acts are punishable therein which are: preparation to commit offence, attempt to commit offence and commission of offence. It is noticeable that IPC separately prescribes punishment for mere preparation to commit those offence which are of grave nature e.g. dacoity. Thereafter, comes the category of offences which are comparatively less grave where not preparation but attempt is independently punishable. Lastly, there are minor offences where the IPC does not independently prescribe punishment for preparation or attempt, but leaves it for each case as per facts and circumstances for the prosecution to allege and Courts to prove an attempt by resorting to the residuary section 511 of IPC.
119. The offence in question of extortion is a serious offence which is considered to be graver than theft but not as grave as robbery. However, the seriousness of the offence of extortion, is evident from the very fact that attempt to commit extortion is separately punishable u/s. 385, 387 and 389 of IPC.
10. Testing the attending factual matrix on the anvil of legal provision and the analysis made (supra), it is seen that charge-sheet reveals that the first two foundational ingredients of extortion i.e. of putting the victim/Rupali Singh in fear of hurt to her/her family and thereby inducing her to part with property/valuable security have been alleged. However, the fact remains that the victim did not part with any money. What is equally damaging is the fact that the prosecution never brought on record the alleged threatening text message or the cell phone. Apart from the fact the custody of the cell phone allegedly used in the commission of crime could not be established with Mohd. Naseer, his location at the time of sending of the alleged threatening text/call could not established with the Juvenile Vishal, who had allegedly sent the said message at the behest of accused Mohd. Naseer. There is no chain of evidence whatsoever, direct or circumstantial linking the accused Mohd. Naseer with the alleged offence. Juvenile Vishal never testified against the accused Mohd. Naseer. No threat emanated directly from accused Mohd. Naseer to victim Rupali Singh. There was no proof of common intention to commit the alleged crimes established between accused Mohd. Naseer and co-accused JCL Vishal. Merely insinuating that accused Mohd. Naseer had 12 anything to do with the offence alleged without cogent and clear proof would not satisfy the burden cast upon the prosecution.
11. From the observations made after appreciation of the facts and evidences relied upon by the prosecution, it can safely be concluded that the charge for the offence u/s 387/511/34 IPC against accused Mohd. Naseer could not be established by the prosecution. Accused Mohd. Naseer is hence, acquitted in the present case. Accused is directed to furnish bail bonds in a sum of Rs.10,000/- with one surety of like amount under Section 437A Cr.P.C. Digitally signed MANU by MANU SHREE Announced in open court SHREE Date: 2023.08.01 17:18:10 +0530 on 31.07.2023 (Manu Shree) MM-01/South-Saket/31.07.2023 Certified that this judgment contains thirteen pages and each page bears my signature.
(Manu Shree) MM-01/South-Saket /31.07.2023 13