Delhi District Court
Sanjay Mittal vs The State on 14 December, 2010
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Appeal No. : 07/2010
Sanjay Mittal
S/o Late Sh. Purshottam Mittal
R/o 150-C, Govind Garh,
Dehradoon, Uttranchal. ............. Appellant/Accused
Revisionist
VERSUS
The State
Government of NCT of Delhi. ............ Respondent
Date of filing of Criminal Appeal : 23.02.2010
Date of conclusion of arguments : 03.12.2010
Date of order : 14.12.2010
Appeal under Section 374 of Code of Criminal Procedure
against the impugned Judgment dated 25.01.2010 and
Order dated 28.01.2010 passed by Sh. Ajay Garg, MM
(C-01), Tis Hazari Courts, Delhi in Serial No. 40/2A, titled
as State V/s Sanjay Mittal, in FIR No. 637/2002, under
Section 387/511 IPC, PS Karol Bagh, Delhi in which the
appellant Sanjay Mittal has to undergo Simple
Imprisonment of 03 years and to pay a fine of Rs. 1,000/-
in default imprisonment for 30 days.
JUDGMENT :
Appellant has challenged the Judgment dated 25.01.2010 and Order on Sentence dated 28.01.2010 passed by the Trial Court in Criminal Case No. 40/2-A with respect to FIR No. 637/2002, under Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 1 of 12 Section 387/120-B of the Indian Penal Code (hereinafter referred as "IPC"), PS Karol Bagh, titled "State V/s Sanjay Mittal", whereby the appellant (hereinafter referred as "accused" for convenience) has been held guilty and convicted for the offence punishable under Section 387 IPC and has been sentenced to Simple Imprisonment for 03 years with fine of Rs. 1,000/-, in default to undergo further Simple Imprisonment of 30 days. Accused has also been given benefit of Section 428 of the Code of Criminal Procedure (hereinafter referred as "Cr. P. C.").
2. Prosecution story in the charge sheet is that on 15.12.2002 a written complaint was given by Chetan Kohli (Complainant) to SHO PS Karol Bagh with respect to a telephonic extortion call received by him in the morning at about 11.00 am, which was marked to SI Manoj Sinha (IO) for necessary action. During investigation, Complainant informed the IO that extortionist had called him again at 03.00 pm to convey that he would come at about 06.00 O'clock in the evening and the maal (money) should be ready or else the consequences would be grave. SI Manoj Sinha laid a trap at the house of the Complainant and in the evening at about 06.35 pm accused came and demanded Rs. 10,000/- from the Complainant by oral threat to his life. This conversation was also heard by the IO and the accompanying staff, who overpowered the accused and apprehended him at the spot. FIR was registered on the basis of tehrir prepared by SI Manoj Sinha. On the disclosure and pointing out of the accused Sanjay Mittal (co-accused since discharged) was arrested. Charge sheet was filed against the two accused for trial.
3. The Trial Court framed the charge for committing the offence Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 2 of 12 punishable under Section 387/511 IPC against the accused vide order dated 03.07.2004 while the co-accused Sanjay Sharma was discharged vide the same order. Accused pleaded not guilty to the charge and thus prosecution was directed to lead evidence which examined five witnesses including the Complainant Chetan Kohli as PW-4, Inspector Manoj Sinha (IO) as PW-5 and the police officials who joined the investigation as PW-1 Ct. Raghubir Singh and PW-2 HC Ramdhar. PW-3 HC Subhash Chand is the Duty Officer, who registered the FIR.
4. After conclusion of the prosecution evidence, accused was examined by the Trial Court and his statement was recorded under Section 313 Cr. P. C. without oath, wherein he denied that he made any threatening calls for extortion to the Complainant. He claimed to be falsely implicated stating that he had gone to the Hotel Welcome Plaza belonging to the Complainant for meal and since he did not have the money and was under the influence of liquor, as a result of which Complainant called police officials and falsely implicated him in this case. He also desired to lead evidence in defence and examined one Dinesh and Rajiv Kumar as DW-1 and DW-2 respectively. It is however note-worthy that none of the defence witnesses have claimed to be present at the spot.
5. Ld. Trial Court vide the impugned Judgment found the evidence led by the prosecution credible and trustworthy, thereby held the accused guilty and convicted him for the offence punishable under Section 387 IPC, followed by the impugned Order on Sentence.
6. Appeal has been contested by the State.
Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 3 of 12
7. I have heard Mr. Ashok Kumar, counsel for the appellant/accused and Mr. Rajiv Mohan, Addl. PP for the State/respondent. I have gone through the Trial Court Record.
8. The impugned Judgment has been assailed on the grounds inter alia that Complainant did not identify the accused in the Court during trial; that uncorroborated testimony of police witnesses cannot be made the basis for conviction; that prosecution has failed to establish any link between the accused and the phone calls received by the Complainant; that there are substantial improvements in the statement of the Complainant; that no weapon has been recovered from the possession of the accused so as to cause apprehension of death in the mind of the Complainant; and lastly that Complainant was not cross- examined on behalf of the accused or lawyer as no opportunity has been given to the accused to bring the advocate to cross-examine the Complainant.
9. Firstly, I shall deal with the contention that no opportunity was given to cross-examine the Complainant as it goes to the root of the fair trial which is the fundamental requirement of the criminal trial proceedings.
10. On perusal of the Trial Court Record it is found that none of the five prosecution witnesses including the Complainant Chetan Kohli (PW-4) has been cross-examined by the accused. The record of proceedings reveal that all prosecution witnesses were tendered for cross-examination and opportunity was given to the accused, which was not availed. Though, accused was initially in the judicial custody but he Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 4 of 12 was released on bail in the year 2003, prior to the framing of charge and the record reveals that he was represented by a defence counsel in the beginning of the trial and since accused was on bail throughout the trial there was no obligation on the Trial Court to provide him the Legal Aid Counsel at the State expense. Accused was at liberty to engage the defence counsel on his own and if there were financial constraints, he could have approached the District Legal Services Authority for Legal Aid. The prosecution witnesses were examined over a period of three years on different dates commencing from 11.02.2005 till 25.03.2008. There is nothing on record to show that either capacity of the accused was restricted or he was stopped from cross-examining the witnesses. In these circumstances, no benefit can go to the accused, who did not avail the opportunity to cross-examine the witnesses. Just because the accused choose not to cross-examine the witnesses during trial is no reason for discarding their testimony as such a situation would lead to a scenario which would defeat the purpose of trial and would be used as a tool by the accused to defeat the ends of justice. There is no force in the contention raised on behalf of the accused on this account as due opportunity was given to the accused to cross-examine the witnesses during trial.
11. It is true that PW-4 Chean Kohli, the Complainant did not specifically identify the accused during trial in the Court, but his testimony does not give a clean chit to the accused about his involvement in the incident. It is note-worthy that Complainant has identified the accused by name in his deposition saying that the name Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 5 of 12 was revealed by the person who had come to his house, demanded money and was apprehended by the police. Complainant stated that he cannot recollect the face of the person apprehended by the police at the spot due to passage of time of about five-six years.
12. I am convinced with the reasoning given by the Trial Court while appreciating the testimony of the witnesses with respect to identification of the accused. The accused was not known to the Complainant, who saw him only on the date of the incident. The Complainant was examined in the Court in the year 2008 whereas the incident is of the year 2002 i.e. after about five years. It is pertinent to mention here that Complainant has nowhere stated that accused was not involved in the incident so as to rule out his involvement altogether. Testimony of Complainant is specific on the fact that the person who came to his house on 15.12.2002 at about 06.30 pm and demanded Rs. 10,000/- disclosed his name as Sanjay Mittal, who was apprehended at the spot by the police. Complainant is a witness of arrest which was made at the spot by IO PW-5 Inspector Manoj Sinha in the presence of two accompanying staff i.e. PW-1 Ct. Raghubir Singh and PW-2 HC Ramdhar, who have deposed on the lines of the prosecution story about identification of the accused and his arrest at the spot through Arrest Memo Ex. PW-1/B. Testimony of these witnesses has gone unassailed and there is not even an iota of doubt about identification of the accused as the person who was apprehended from the house of the Complainant on 15.12.2002 at about 06.35 pm when he demanded Rs. 10,000/- from the Complainant by extending threat.
Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 6 of 12
13. I am not convinced with the argument put-forth by the Ld. Counsel for the appellant/accused that testimony of the police witnesses cannot be relied upon without any corroboration because there is no law to support this argument and nothing has come on record to attribute any motive for the police to falsely implicate the accused. Moreover, testimony of police witnesses is corroborated by the Complainant PW-4 Chean Kohli about all material facts i.e. demand by the accused for money from the Complainant by threat and his presence at the spot followed by his apprehension to which effect there are documents in the form of Arrest Memo Ex. PW-1/B and Personal Search Memo Ex. PW-1/A.
14. It is true that no material on record about investigation to establish the identity of the person who made extortion calls to the Complainant but testimony of PW-4 Chetan Kohli, Complainant very specifically connect the accused with those calls through circumstances. PW-4 Chetan Kohli, Complainant has stated that he received an extortion call on 15.12.2002 at about 11.00 am about which he informed the Beat Constable of the area, on whose advise he made a written complaint to the police vide Ex. PW-4/A. His testimony is specific on the fact that on the same day at about 03.00 pm he received another call from the same person and the caller told him that he would come at about 06.00 or 06.30 pm to take money. Complainant gave this information to IO Inspector Manoj Sinha (PW-5) who alongwith the staff went to the house of the Complainant and laid the trap. Testimony of Complainant Chetan Kohli (PW-4) is specific on the fact that at about Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 7 of 12 06.30 pm one Sanjay Mittal rang the door bell and when he opened the door, the said person came in the drawing room, introduced himself as Sanjay Mittal and then told him that he had made calls to demand money and then asked the Complainant whether the money was ready. It was at this juncture that IO PW-5 Inspector Manoj Sinha alongwith the police party apprehended the accused. Despite the fact that there is no scientific material to connect the accused with the extortion calls received by the Complainant, but the fact that accused went to the house of the Complainant to demand money at the time, stated by the caller, is sufficient to connect the accused beyond any doubt with the calls made. Therefore, the circumstances which have come in the deposition of PW-4 Chetan Kohli, Complainant strongly indicate and rule out any other assumption that accused was connected with the extortion calls.
15. Though, it has been argued that Complainant has made improvements in the statement, none could be specifically pointed out by the counsel for the appellant so as to go to the benefit of the accused. Testimony of PW-4 Chetan Kohli, Complainant is on the lines of the prosecution story on material facts and has gone unassailed.
16. It has been argued that no effort has been made by the police to include any public witness at the time of arrest of the accused and other proceedings.
17. This argument has no merit because there was no public witness to the incident and arrest of the accused which took place in the house of the Complainant PW-4 Chetan Kohli, who has deposed Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 8 of 12 consistently on these facts and has been corroborated by the police witnesses as already discussed above.
18. The last contention raised by the counsel for the appellant is that there is nothing to show that threat extended by the accused through telephone or through words was in any manner capable of causing apprehension in the mind of the Complainant to cause death so as to attract the penal consequences of Section 387 of IPC. It is also submitted that as there is no actual delivery of money, the accused cannot be convicted for extortion on the basis of a failed attempt.
19. In order to appreciate the above contention, it is necessary to go through Section 387 of IPC, under which accused has been convicted, which reads as under :
Section 387 IPC - 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.
20. The plain reading of Section 387 IPC shows that this particular provision of IPC seeks to punish an attempt to commit extortion by putting a person in fear of death or of grievous hurt, when the attempt has failed. To constitute offence under this Section delivery of property is not required. The deciding factor to bring an attempt of extortion under the purview of Section 387 IPC is whether the victim could have come in fear of death or grievous hurt in the given circumstances.
Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 9 of 12
21. Complainant (PW-4 Chetan Kohli) has testified that in the first call received by him at 11.00 am on 15.12.2002 the caller threatened him by saying that his life is under threat and that he has been doing very well in the business and thus he must do something for the persons like them (caller) also. The caller is alleged to have then made a demand of Rs. 10,000/-. In the second call made at about 03.00 pm the caller informed the Complainant that he would come around 06.00 or 06.30 pm to take money. It has come in the testimony of the Complainant that at about 06.30 pm one Sanjay Mittal came to his house and told him that he was involved in a murder case and had made the calls to demand money and asked him to deliver the money with assurance that he would inform the people involved in the threatening call.
22. In my view, threat was given through words without any visible signs of physical act and therefore in the given facts and circumstances, an oral non-specific threat followed by demand of money cannot be believed to put a person of ordinary prudence in fear of death and hurt. Therefore, offence punishable under Section 387 IPC is not made out against the accused, but the act of the accused does fall in the category to attract the offence under Section 385 of IPC, which is about a failed attempt to commit extortion. The evidence on record clearly establish beyond any reasonable doubt that pursuant to the extortion calls to the Complainant, accused went to the house of the Complainant and demanded money. He is thus guilty for committing the offence punishable under Section 385 IPC. The impugned Judgment dated Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 10 of 12 25.01.2010 is modified to the extent that conviction of the accused under Section 387 IPC is converted to conviction under Section 385 IPC.
23. On the question of sentence, it has been submitted that accused has no history of previous involvement and has a family to look after.
24. Keeping in view the fact that conviction of the accused has been modified from graver offence under Section 387 IPC to milder offence under Section 385 IPC, I believe the the sentence awarded against the accused also needs to be modified.
25. Appellant/accused was arrested on 15.12.2002. He remained in judicial custody for a period of about 3½ months. In the facts and circumstances of the matter in my opinion interest of justice would be made if the appellant is sentenced to imprisonment for the period already undergone by him in the judicial custody. The imposition of fine as a part of sentence is not interfered with, however, imprisonment in default of payment of fine is reduced to Simple Imprisonment of 07 days. The impugned Order on Sentence dated 28.01.2010 is modified accordingly.
26. In view of the above observations and discussions, appellant/ accused is convicted under Section 385 IPC and he is sentenced to the period of imprisonment already undergone by him in the custody with fine of Rs. 1,000/-, in default thereof to undergo Simple Imprisonment of 07 days.
27. Copy of this judgment be given free of cost to the appellant/accused.
Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 11 of 12
28. Appellant/accused is sent to Central Jail, Tihar, New Delhi under appropriate Warrants to serve the sentence with direction that since he has already served the sentence, subject to deposition of fine, he be released from the custody henceforth, if he is not required in any other case.
29. Trial Court Record be sent back alongwith a copy of this judgment.
30. File be consigned to Record Room.
Announced in open Court (Santosh Snehi Mann)
on 14th December, 2010 Additional Sessions Judge (Central),
Tis Hazari Courts, Delhi
Criminal Appeal No. 07/2010; Sanjay Mittal V/s State 12 of 12