Delhi District Court
Fir No. 10/19 State vs . Mohd. Mukhtar Ali 1 Of 12 on 2 February, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE,
WEST-05, TIS HAZARI COURTS, DELHI,
PRESIDED BY- SHUBHAM DEVADIYA
FIR No. : 10/2019
P.S. : Anand Parbat
Cr. Case No. 3745/2019
CNR No. DLWT02-006917-2019
JUDGMENT
(a) Sr. No. of the case 3745/2019
(b) Date of offence 17.01.2019
(c) Complainant ASI Raj Kumar
(d) Accused persons Mohd. Mukhtar Ali
S/o Late Mohd. Nasruddin
R/o H. No. 168B, Gulshan Chowk,
Baljeet Nagar, Anand Parbat, Delhi.
(e) Offences U/s 506(II) IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquittal.
(h) Date of institution 26.04.2019
(i) Date of judgment 02.02.2023
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly put, the facts of the case as per Prosecution are that on 17.01.2019 at 11:00 AM at 168/B, Gulshan Chowk, Baljeet Nagar, Anand Parbat, Delhi, within the jurisdiction of PS Anand Parbat, accused had SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:25:45 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 1 of 12 PS Anand Parbat used abusive language and threatened to kill PM Modi. FIR was registered under Section 506(II) IPC. After completion of investigation chargesheet was filed in the Court. The cognizance of the offence was taken and summon was issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC was supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 506(II) IPC on 28.09.2022 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the Prosecution evidence.
3. In Prosecution evidence, the Prosecution has examined 03 witnesses. The registration of FIR alongwith certificate u/s 65B of Indian Evidence Act, endorsement on rukka Ex.AD-2, GD No. 22A dated 17.01.2019 Ex.AD-3, CDR and CAF of mobile No. 8860535271 Ex.AD-4 were admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below.
4. PW1 HC Arun appeared and deposed that on 17.01.2019, he was posted at PS Anand Parbat as Const. and on that day, he was on emergency duty and his duty timings were from 8:00 AM to 8:00 PM. He further deposed that DD No. 22A with regard to threatening to kill and abusing Prime Minister Narender Modi which was marked to ASI Raj Kumar for investigation and thereafter, he alongwith ASI Raj Kumar went to the house of the caller which was situated at 873, Gali No. 15, Nehru SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:25:54 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 2 of 12 PS Anand Parbat Nagar, Anand Parbat but they could not find the caller and thereafter, IO got the call detail records of the mobile phone of the accused. He deposed that as per the call detail record, there was one number on which accused had made calls frequently and thereafter, IO called on that number and came to know that it was his brother's number. He deposed that the brother of accused told them that he would come at Nehru Nagar Police Booth and after sometime, the brother of accused came at Nehru Nagar police booth and told them the correct address of accused Mohd. Mukhtar Ali and thereafter, the brother of accused lead them to house of accused i.e. House No. 168B, Gulshan Chowk, Baljeet Nagar, Delhi. He deposed that they found the accused present in the house and IO interrogated accused Mohd. Mukhtar Ali and on interrogation he revealed that he was in anger and the call with regard to threatening to kill and abusing Prime Minister Modi was made by him and thereafter, IO made endorsement on DD No. 22A and prepared one tehreer and handed over same to him for registration of FIR and thereafter, he left the house of accused and went to PS Anand Parbat for registration of FIR and after getting FIR registered, he came back at the house of accused and handed over the copy of FIR and original tehreer to the IO. He further deposed that one mobile phone make Lava was also recovered from accused and IO seized the mobile phone vide memo Ex.PW1/A and thereafter, accused was arrested and personally searched vide memos Ex.PW1/B and Ex.PW1/C and thereafter, accused was brought to PS Anand Parbat and thereafter, IO recorded his statement. He admitted that the mobile number from which the call was made is 8860535271.
During cross examination, PW1 deposed that DD No. 22A Digitally signed by
SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2023.02.02
15:26:02 +0530
FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 3 of 12
PS Anand Parbat
was marked to IO ASI Raj Kumar at about 11:00-11:15 AM. He deposed that he know from which mobile number accused had made call at number 100. He deposed that he does not know whether IO had obtained signature of brother of accused on any paper or not. He deposed that the rukka was handed over to him at around 10:15 PM and he returned back to the house of accused after getting FIR registered at around 12:00 midnight. He further deposed that he had not signed any paper before the FIR and he had signed seizure memo, arrest memo and personal search memo. He deposed that IO had signed the documents in his presence. He deposed that IO had sealed the case property with the seal of APRVT-I. He deposed that he remained for about 45 minutes - one hour in total at the house of accused. He deposed that the documents were prepared by the IO in his presence. He deposed that IO had asked some public persons to join the investigation. He deposed that he does not remember whether notice was given to those persons to join the investigation. He denied the suggestion that IO had not carried out investigation properly or that he had signed the documents while sitting in PS.
5. PW2 ASI Raj Kumar appeared and deposed that on 17.01.2019, he was posted at PS Anand Parbat as an ASI. On that day, he was on emergency duty and his duty timings were from 8:00 AM to 8:00 PM alongwith Const. Arun and DD No. 22A with regard to threatening to kill and abusing Prime Minister Narender Modi was marked to him for investigation. He deposed that the mobile number through which the call was made was 8860..... He further deposed that thereafter, he alongwith Const. Arun went to the house of the caller which was situated at 873, SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date:
+0530 2023.02.02 15:26:12 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 4 of 12 PS Anand Parbat Gali No. 15, Nehru Nagar, Anand Parbat but they could not find the caller and thereafter, he got the call detail records of the mobile phone of the accused and as per the call detail record, there was one number on which accused had made calls frequently and thereafter, he called on that number and came to know that it was his brother's number and the brother of accused told them that he would come at Nehru Nagar Police Booth and after sometime, the brother of accused came at Nehru Nagar police booth and told them the correct address of accused Mohd. Mukhtar Ali and thereafter, the brother of accused lead them to house of accused i.e. House No. 168B, Gulshan Chowk, Baljeet Nagar, Delhi. He deposed that they found the accused present in the house. He deposed that he interrogated accused Mohd. Mukhtar Ali and on interrogation he revealed that he was in anger and the call with regard to threatening to kill and abusing Prime Minister Modi was made by him and thereafter, he made endorsement on DD No. 22A and prepared one tehreer Ex.PW2/A and handed over same to Const. Arun for registration of FIR and thereafter, Const. Arun left the house of accused and went to PS Anand Parbat for registration of FIR and after getting FIR registered, Const. Arun came back at the house of accused and handed over the copy of FIR and original tehreer to him. He deposed that one mobile phone make Lava was also recovered from accused. He deposed that he seized the mobile phone vide memo Ex.PW1/A and thereafter, accused was arrested and personally searched vide memos Ex.PW1/B and Ex.PW1/C. He deposed that thereafter, accused was brought to PS Anand Parbat. He deposed that he also prepared site plan where the accused was arrested which is Ex.PW2/B and thereafter, the case property was deposited in malkhana and accused was SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA +0530 Date: 2023.02.02 15:26:20 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 5 of 12 PS Anand Parbat taken to hospital for his medical examination and after medical examination accused was sent to lockup. He deposed that on the next day, he produced the accused before the Court from where the accused was released on bail. He admitted that the mobile number from which the call was made is 8860535271.
During cross examination, PW2 deposed that DD No. 22A was marked to him at about 11:00 AM. He deposed that he had not made any public person as a witness at the time of arrest of the accused. He deposed that they came to know about the address of the accused from CDR and customer application form and the mobile phone No. 8860535271 was issued in the name of Surad Ali and the proper address of accused was told to him by the brother of accused. He deposed that he does not remember the number of the brother of accused on which the call was made frequently by the abovesaid number. He deposed that he did not collect the PCR form from the police record. He deposed that accused had called at number 100 at around 10:30 AM. He deposed that they came to know the address from the customer application form filled by the person in whose name mobile No. 8860535271 was issued. He denied the suggestion that accused had not called at number 100 from the abovestated mobile number. He deposed that he did not collect the customer application form of mobile No. 8860535271. He deposed that he never met the person namely Surad Ali in whose name the number 8860535271 was issued. He deposed that they made efforts to search the said Surad Ali but could not find him. He deposed that the mobile phone was seized alongwith the SIM No. 8860535271 from the possession of accused. He denied the suggestion that neither accused abused or SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:26:29 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 6 of 12 PS Anand Parbat threatened to kill P.M. Modi by calling at number 100.
6. PW3 Sh. Ajit Singh appeared and brought the customer application form alongwith a certificate u/s 65B of Indian Evidence Act. He deposed that as per their record, the mobile No. 8860535271 was issued in the name of Surad Ali and copy of customer application form alongwith a certificate u/s 65B of Indian Evidence Act is Ex.PW3/A. During cross examination, PW3 admitted that he did not bring CDR of mobile No. 8860535271. He deposed that he cannot bring the call details record of mobile No. 8860535271 for the period from 11.01.2019 to 17.01.2019 as the same has been destroyed. He admitted that the CDR of mobile No. 8860535271 placed on the judicial file does not bear seal or signature of any person or any service provider. He admitted that there is no certificate of Section 65B is attacked alongwith the CDR of mobile No. 8860535271.
7. After the Prosecution evidence was closed, the statement of accused under Section 281 r/w 313 CrPC was recorded on 07.12.2022. The accused did not opt to lead the defence evidence. Thereafter final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond all reasonable doubts.
Per contra, Ld. Defence Counsel argued that prosecution has miserably failed to bring any record on record so as to even establish a case against the accused and accordingly, he prayed that accused deserves to be acquitted in the present case. SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:26:36 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 7 of 12 PS Anand Parbat Section 506 IPC . Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
8. It is a settled proposition of criminal law that the Prosecution is supposed to stand its own legs and to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled law that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the Prosecution. It has to be seen whether the Prosecution had been able to establish the guilt of the accused beyond reasonable doubt. In the cases of offences of sexual nature the testimony of the victim (s) needs to be scrutinized with sensitivity and understanding of the implication of such offences. However, it is the duty of the Courts to remain cautious and has to be careful while deciding the cases wherein offences of sexual nature has been alleged to have been committed so that SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:26:44 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 8 of 12 PS Anand Parbat the Criminal Law is only used for the purpose of aiding the victim and not to harass the accused.
ANALYSIS AND FINDINGS
9. The Prosecution was required to show by way of evidence that the accused has committed acts or uttered words by way of which he threatened to kill the Hon'ble Prime Minister with an intent to cause alarm.
10. In the instant case, the prosecution has examined PW1 HC Arun, PW2 ASI Raj Kumar and PW3 Sh. Ajit Singh, Nodal Officer, Vodafone Idea Ltd. All the prosecution witnesses have deposed against the accused and have supported the case of the prosecution. Evidently, the PW1 has deposed and proved the seizure memo of mobile phone as seized from the accused. PW2 during his deposition has proved the endorsement made on DD No. 22A and the tehreer which is Ex.PW2/A. In view of the same, the only material evidence that could come on record against the accused is the GD entry No. 22A dated 17.01.2019 Ex.AD-03, tehreer Ex.PW2/A and seizure memo Ex.PW1/A. The said witnesses were duly cross examined by the Ld. LAC of the accused. During their cross examination, PW1 and PW2 both have admitted that they have never served any notice to any public person so as to join them in the investigation of the present case. Moreover, PW2 has admitted that he did not collect the PCR form from the police record and no explanation has been put forth by the said witness regarding the non collection of PCR form which was material to SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:26:51 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 9 of 12 PS Anand Parbat prove the exact conversation / statement as made by the person who made the call at number 100 on the alleged date. PW2 has also deposed that the call regarding the threats to kill P.M. Modi was made by mobile No. 8860535271, however the PW3 who had appeared and proved the customer application form regarding the abovesaid number had deposed that the said number was issued in the name of one Surad Ali and the role of the said person namely Surad Ali has not even been investigated by PW2, and PW2 merely states that he made efforts to search the said person but could not find him. PW2 further states that the mobile phone from which the alleged call was made had been seized from the possession of accused alongwith the SIM of abovesaid number, however, the seizure memo Ex.PW1/A nowhere reflects that any SIM was ever recovered from the possession of the accused.
11. The prosecution has failed to prove that any serious effort was made by recovery witnesses who were police officials to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, there is nothing on record to show that recovery witnesses / police officials had served any notice under Section 160 CrPC upon the persons who refused to join the investigation Same has not been done in the present case. Joining of independent witnesses would have given credibility to the recovery proceeding. Therefore, non joining of independent witness casts a doubt on the fairness of the investigation. Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:26:58 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 10 of 12 PS Anand Parbat
12. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
13. The perusal of all the evidence led by the prosecution as well as the defence put by the Ld. LAC, this Court is of the opinion that the prosecution has failed to bring on record any evidence which could have shown that the offence of Section 506(II) IPC has been committed by the accused. The GD entry Ex.AD-3 is the only piece of evidence that substantiate the allegations put forth by the prosecution, however, the perusal of GD entry Ex.AD-03 reflects that the said G.D. entry is the hand written GD entry and in the absence of PCR form the evidentiary value of the said GD entry is feeble in nature. Moreover, the prosecution has failed to prove the ingredients of Section 506(II) IPC as the prosecution has not been able to show the intention of the accused to cause alarm to the victim. The Hon'ble High Court of Delhi in case titled as Amitabh Adhar v. NCT of Delhi 2000 SCC Online Del. 292 has held that mere bald and general assertions of threats to kill anyone are not sufficient in itself to bring a case under Section 506(II) IPC.
14. The whole case of the Prosecution that a call was received from Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:27:05 +0530 FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 11 of 12 PS Anand Parbat mobile No. 8860535271 at the 100 number wherein statements in the form of threats to kill P.M. Modi were made by the accused does not appears to be reliable as the PW2 has clearly stated that he implicated the present accused after he called at abovesaid number and the receiver of the abovesaid number, who is the brother of the accused, led him to the discovery of the present accused shows the callous way of investigating the present case and does not inspire much confidence into the Prosecution story. Accordingly, this Court finds that the Prosecution has miserably failed to bring on record any evidence which could have shown or proved any statement in the form of threats to kill anyone has ever been made.
15. In light of the above discussion, this Court is of the opinion that Prosecution has failed to prove the guilt of accused beyond all reasonable doubts and accordingly, accused Mohd. Mukhtar Ali stands acquitted of charge u/s 506(II) IPC.
16. This Judgment contains 12 pages and all the pages have been digitally signed.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2023.02.02 15:27:11 +0530 Announced in open Court (SHUBHAM DEVADIYA) on 02nd day of February 2023 Metropolitan Magistrate West-05, Delhi FIR No. 10/19 State Vs. Mohd. Mukhtar Ali 12 of 12 PS Anand Parbat