Delhi District Court
Mohd. Zakir vs State on 17 September, 2011
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IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0461142010
CA NO: 31/2010
MOHD. ZAKIR vs STATE
FIR NO: 96/02
PS JAMA MASJID
U/s 385 IPC
IN THE MATTER OF
MOHD. ZAKIR
S/o Mohd, Farooq
R/o 23241, Gali Dugdugi,
Shah Kallan,
Turkman Gate, Delhi. ..... Appellant / Accused
VS.
The State ......Respondent
Appeal against the Judgment of conviction dated 22.9.2010 and order on sentence dated 24.9.2010 Date of Institution : 11.10.2010 Date of final hearing : 16.09.2011 Date of final order : 17.09.2011 JUDGMENT ON APPEAL
1. This appeal is preferred by convict against judgment dated 22.09.2010and order on sentence dated 24.09.2010 whereby Ld. MM Central and sentenced the appellant for commission of an offence punishable U/s 385 IPC with sentence of one year SI apart from a fine of Rs. 10,000/ ID one month SI.
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2. I have heard arguments of Ld. Counsel for appellant Sh. Arun Sharma and Ld. APP for State Sh. G.S. Guraya and have perused the appeal file as well as trial court record.
3. Brief facts necessary for the disposal of this appeal are that on 03.04.2002 complainant PW1 Smt. Bushra Khatoon gave a written complaint Ex. PW 1/A to SHO PS Jama Masjid to the effect that she is residing a Gali Jagat Cinema Wali, Jama Masjid with her husband. She was a student of Jamia University about a year ago where she was introduced to accused Zakir by one of her schoolmate as his brother. Zakir met her couple of times being a resident of Jama Masjid area. One day he offered her a lift from outside her college for dropping her to her residence. He rather took her to one of his friend where she was offered some cold drink . It was perhaps mixed with liquor as she started loosing her senses. After about 23 days of this incident he offered to marry her . She flatly refused by stating that he is already married and she treats the accused as her brother. At this juncture accused showed to her some semi nude photographs of her and tried to blackmail her so as to make page 2/13 of appeal Mohd.Zakir vs State dated 17.9.2011 3 her agree to marriage under a threat that in case his demand is not met he would expose her to give her bad name. After some days she got engaged to one Sh. Parvej of Mumbai. But her engagement got broken as accused sent her above photographs to Parvej. Her father could not bear this shock and started remaining ill. Her father tried to make the accused understand but he continued to insist to marry her apart from threatening that she would be defamed in case his demands are not met. He alternatively asked for Rs. 5 lacs for return of photographs. Since the amount was huge her father could not accused to the same. Her father discussed the matter with one Mr. Ashraf Qurashi . Thereafter accused Zakir agreed to not to pressurise her and she finally married her husband Hazi Shahjad Qurashi.
4. But on 01.04.02 at around 4:50 PM accused Zakir went to neighbour of her husband's shop Sh. Naved and handed over the photographs to him and asked him to pursue his demand of Rs. 5 lacs under a threat that in case he is not paid he will defame her. She apprehended danger to her life. On this statement FIR in hand U/s 374 IPC was registered. Investigation was taken page 3/13 of appeal Mohd.Zakir vs State dated 17.9.2011 4 by SI Abdul Karim. Accused Zakir was arrested on 04.04.02 . IO seized the said four photographs vide Memo Ex. PW 4/A four photographs collectively being Ex. P1 which belongs to complainant and are in a semi nude condition. Statement of witnesses were recorded and upon conclusion of investigation charge sheet U/s 384 IPC was recorded.
5. After framing of charge on 23.11.05 prosecution examined four witnesses followed by recording of 313 Cr. P.C. statement of accused . In her deposition as PW1 complainant deposed on the lines of complaint and correctly identified the convict as well as her photographs Ex. P1. PW3 is her brother in law Khalid Khurashi while PW4 is Sh. Naved Irshad who was handed over the objectionable photographs of the complainant by the convict and is neighbour of complainant's husband's shop. Arguments on both the sides were heard by Ld. MM before impugned judgment and order on sentence was passed. Hence this Appeal.
6. While opening his arguments Ld. Counsel for the appellant/convict raised the first plea that there is an unexplained delay of 78 yrs. in lodging of the FIR.
page 4/13 of appeal Mohd.Zakir vs State dated 17.9.2011 5 However perusal of record shows that not only as per Asal Tehrir Ex. PW 1/A but also deposition of complainant PW1 and PW4 Sh. Naved Irshad the st offence was continuing till 1 April 2002 when the convict is shown to have visited shop of PW4 Naved for handing over copy of above said photographs while repeating his demand of Rs. 5 lacs. As per the record ordeal of the complaint continued for long till couple of days prior to lodging of the complaint Ex. PW 1/A. In this scenario it cannot be stated that there is delay of 78 yrs. in lodging of FIR simply because the offence continued upto 01.04.02 while the FIR is dated 03.04.02.
7. Another plea taken is that even though as per record, PW4 Naved had handed over only four photographs to the police but there are 10 photographs available on record as Ex.P1 collectively. On this score perusal of trial file reveals that although PW4 Naved handed over only four photographs but the remaining six photographs were got recovered by accused after he was arrested by the police . Separate seizure memo dated 4.4.2002 is available on record according to which he got the six photographs recovered from his page 5/13 of appeal Mohd.Zakir vs State dated 17.9.2011 6 briefcase in his residential house. However, since IO of the matter could not be examined, this memo could not be formally exhibited on record. But in this backdrop defence is not justifying in claiming that recovery of remaining six photographs has remained unexplained.
8. Another plea taken is that as per cross examination of PW4 Naved, when he handed over photographs to IO vide memo Ex.PW4/A, the photographs were sealed by the IO. On this score record reveals that there is nothing in the above memo to show that photographs were sealed in any manner after they were seized. Close scrutiny of the cross examination shows that witness deposed about keeping the photographs in an envelop. Even though he is shown to have used the word "sealed", it does not quantify the technical sealing with lax and seal impression. The words sealed might be indicative of seizure by closing of the envelop. Be that it may , it is not a legal mandate that such photographs also have been necessasrily sealed. The photographs are not stolen property in its technical sense U/s 410 IPC and were rather used as the tool by the accused to extort money.
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9. It goes without saying that in order of make out a case of extortion under Section 383 IPC punishable U/s 385 IPC, necessary ingredients which are supposed to be proved are as under:
Ingredients of offence U/s 383 Cr. P.C.: The essential ingredients of the offence U/s 383 are as follows:
(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; and (4) Such inducement must be done dishonestly
10.Plain reading of the above statutory conditions reveals that all what the prosecution is supposed to establish is that the victim was put under fear of injury which can be in the nature of defamation, wrongful confinement or physical hurt. In the matter in hand convict is shown to have used photographs to threaten the victim and her family so as to extort money. In this scenario , photographs are just a tool to commit the offence and existence page 7/13 of appeal Mohd.Zakir vs State dated 17.9.2011 8 of photographs does not itself constitute an offence of Section 385 IPC. Once armed with the photographs Ex.P1 accused used them to extort Rs.5 lacs from the complainant and her family.
11.Another plea taken is that even though as per PW3 , Khalid Qureshi, brother in law of complainant, convict was telphonically blackmailing complainant and her family , no call records were preserved or proved on record. On this score it is observed that the FIR in hand was lodged on 3.4.2002 and it primarily pertains to extortion committed on 1.4.2002. The incidents of telephonically blackmailing mentioned by PW3 pertain to earlier attempts made by convict to blackmail complainant Ms. Bushra Khatoon. She belongs to a middle class family of middle class values and had all the apprehension of her being defamed and her reputation being ruined. Initially they tried to get the matter sorted out socially, in December'2001, when convict is shown to have initially agreed to return the photographs and the negative but only when he is paid Rs.5 lacs.
12.It is only when the convict did not mend his ways and rather handed over 4 page 8/13 of appeal Mohd.Zakir vs State dated 17.9.2011 9 semi nude photographs of complainant through PW4 Naved, that complainant's family finally decided to lodge a Criminal complaint against him. As per charge framed by Ld. Magistrate on 23.11.2005, the accusation is only qua extortion committed on 1.4.2002 which was done orally. Hence non filing of telephone record is of no adverse consequence to the prosecution.
13.Another plea taken is that as per the prosecution's story no direct demand of extortion money of Rs.5 lacs was made directly to complainant PW2 Bushra Khatoon. I find no strength in this plea, simply because once a dishonest inducement has been made by the convict, it is immaterial whether it was made directly or though a neighbouring shopkeeper. The idea is to convey the demand which stood conveyed so as to make out an offence.
14.Another plea taken is that no independent witness was joined in this case. I also find no strength in this plea since PW4 Naved is necessarily an independent person. He is simply a neighbouring shopkeeper and not a family relative of complainant's side. But for the handing of four photographs by the convict, PW4 had no occasion to get access to semi nude photographs page 9/13 of appeal Mohd.Zakir vs State dated 17.9.2011 10 of the complainant.
15.Another plea taken is that even though as per complainant and PW3 initially Rs.5 lacs were demanded from the father of complainant but he has not been made a witness. I find this plea inconsequential because, as mentioned supra, the charge of extortion proved against the convict was primarily qua extortion committed on 1.4.2002 while the previous demand from the father of complainant were so mentioned only to give the background of the continuous ordeal faced by the complainant.
16.Another plea taken is that convict was falsely implicated since he had given a loan of Rs. 2 lacs to father of complainant and her father was not desirous of returning it back. I find no absolutely no logic in this plea not only because not even a figment of evidence has been led by the defence in this regard but also because no father would himself circulate semi nude photographs of his daughter in the manner alleged.
17.Perusal of the impugned judgment reveals that Ld. MM has painstackingly covered each and every aspects of the matter while passing a well reasoned page 10/13 of appeal Mohd.Zakir vs State dated 17.9.2011 11 and well penned judgment.
18.In view of the for the foregoing discussion , I have no hesitation in concluding that there is no merit in the appeal. I find no legal and factual infirmity in the impugned judgment dated 22.9.2010.
19.As far as order on sentence dated 24.9.2010 is concerned, offence U/s 385 IPC punishable with imprisonment of two years apart from fine . Ld. Magistrate has already been considerate in so far as he had awarded only one year SI with fine of Rs.10,000/ I/D one month SI. At this stage convict has stated that his order on sentence may be reconsidered in lieu of compensation to the victim.
20.In case titled Bodhisattwa Gautam Vs. Subhra Chakarborty, AIR 1996, SC 922 Hon'ble Supreme Court invented a new path breaking concept of interim compensation to victims of crime while observing:
" This decision recognises the right of the victim for compensation by providing that it shall be awarded by the court on conviction of offender subject to finalisation the scheme by the Central Government. If the court trying an offence of page 11/13 of appeal Mohd.Zakir vs State dated 17.9.2011 12 rape as jurisdiction award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation, which should also be provided in scheme."
21.This judgment was thereafter followed in Delhi Domestic Working Womens Forum Vs. UOI matter, 1994 (3) Crimes 597(SC) (FB) where grant of compensation as well as interim compensation to the victim of crime was treated as part of over all jurisdiction of the courts trying offences of rape which was regarded as an offence against basic human rights as well as Fundamental Constitutional Rights of Personal Liberty and Life. In this judgment Hon'ble Supreme Court observed, " It is necessary, having regard to the Directive Principles contained under Article 38 (1) of the Constitution of India to set up a Criminal Injuries Compensation Board..... Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place.
The Board will take into account pain, suffering and shocks as well as loss of earning due to pregnancy and the expenses of child birth if this occurred as a result .... ."
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22.As such in view of the above observation coupled with the prayer of appellant/convict the substantive sentence is reduced to six month from one year only subject to his placing on record bank draft in the name of complainant Ms. Bhushra Khatoon to the tune of Rs. 1 lac U/s 357 Cr.P.C within four weeks from today before Ld. Trial Court, I/D to undergo additional four months SI. Benefit of 428 Cr.P.C. be given to the convict as he remained in J/c from 4.4.2002 to 17.5.2002.
Convict is taken into custody and remanded to jail for undergoing sentence. Copy of this order be sent to complainant through SHO Ps Jama Masjid agaisnt due receipt for information. Upon deposit of draft , Ld. Trial Court shall take steps to get it duly delivered to victim complainant Ms Bhushra Khatoon. One copy be supplied to convict free of cost. File be consigned to RR. TCR be sent back with copy of this order.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 17.9.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi page 13/13 of appeal Mohd.Zakir vs State dated 17.9.2011