Tasim & Ors vs State Nct Of Delhi
2014 Latest Caselaw 1529 Del

$~A-42
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Judgment reserved on: 19.3.2014
                                      Judgment delivered on:24.3.2014

+      CRL.A. 144/2006
       TASIM & ORS.                               ..... Appellants
                         Through      Mr.Pankaj Kumar, Advocate.
                         versus
       STATE NCT OF DELHI                         ..... Respondent
                         Through      Ms.Fizani Husain, APP.
       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellants are aggrieved by the impugned judgment and order

of sentence dated 28.01.2006 and 30.01.2006 respectively wherein they

have been convicted under Sections 387/34 of the IPC and have been

sentenced to undergo RI for two years and to pay a fine of Rs.2000/- In

default of payment of fine to undergo SI for 3 months. The appellant

Tasim has been additionally convicted under Section 25 of the Arms Act

and had been sentenced to undergo RI for a period of 1 year for the said

offence. The sentences were to run currently; benefit of Section 428 of

the Cr.P.C. had been granted to them.

2 Nominal rolls of the appellants have been called. They reflect

that as on the date of the grant of bail Tasim had suffered imprisonment

for about 11 months and 6 days out of the total period of incarceration of

2 years awarded to him. Mohd. Hasan and Mohd. Irfan has undergone

a period of 4 months and 29 days as on the date of their release from the

jail.

3 Record shows that the incident had occurred at 9.45 a.m. on

22.2.2005. Mohd. Irshad-complainant (PW-1) had filed his complaint

on the same day pursuant to which the present FIR had been registered.

His version was that on the fateful day when he was ready to go to his

office and had opened the back door of his house, he noted that it was

very cold. He asked his wife Abida Begum (PW-8) to bring his cap; he

continued to stand at the door; at that time three boys came from the side

of the park and all of a sudden surrounded him; they were between the

age group of 25-30 years. Out of them Tasim gave him push; he took

out a knife from his apparel and extorted him to hand over all the

articles which he had; meanwhile his wife (PW-8) reached also the spot;

his son Mohd. Javed (PW-2) who was inside the house also came out.

The other two persons namely Mohd. Hasan and Mohd. Irfan took out

kattas and pointed them at the complainant party asking them to remain

silent. PW-2 and PW-8 started crying loudly; Mohd. Hasan and Mohd.

Irfan attempted to fire their kattas but they could not succeed; they

thereafter fled away; accused Tasim who was armed with the knife was

apprehended by PW-1 with the help of his wife and son. Neighbours

and other public persons gathered.

4 This complainant PW-1 reiterated his version on oath in court. In

his cross-examination, he stuck to his stand; he deposed that his son had

not gone to school on that day as he was preparing for his examination.

This part of the examination of PW-1 was reiterated by PW-2 and

PW-8 as well. PW-1 further reiterated that his complaint was recorded

by the investigating officer on 22.02.2005. Police had been informed by

the PCR who reached the spot; the knife which was in the hand of Tasim

was taken into possession; he was arrested at the spot. PW-1 reiterated

that the accused Mohd. Hasan and Mohd. Irfan had aimed the katta on

them; none had however received any injuries; no articles were also

robbed from their persons. He denied the suggestion that Tasim had

come to their house to collect a payment and he has been falsely

implicated in the present case.

5 PW-8 the wife of the complainant has toed the version of PW-1

and has deposed on the same lines. She reiterated that Tasim was

arrested at the spot. He was having a 'Chhura' with him. She denied

the suggestion that the accused has been falsely implicated and he had

come to collect a payment which was due to him for purchase of clothes.

6 Mohd. Javed (son of PW-1 and PW-8) has been examined as

PW-2; his version is also to the same effect as that of PW-1 and PW-8.

He also reiterated that no article was robbed from them and none of

them received any injuries.

7 Inderjeet an independent witness has been examined as PW-4.

His deposition is to the effect that on the fateful day at 10.00 a.m. he

heard a noise in his house and came out; he saw PW-1 had apprehended

one man; he had a knife in his hand. His wife was also present there. In

his cross-examination he admitted that he is a neighbor of PW-1; they

have a common wall. Relevant would it be to state that this witness is

an independent witness and there is no reason for the Court to disbelieve

him and rightly so as admittedly he being a close neighbour and in

natural course heard a commotion and on coming out saw PW-1

holding Tasim who was having a 'Chhura' in his hands; he then learnt

about the incident.

8 Investigation was marked to ASI Vikram Singh (PW-10). He has

prepared the site plan; he had also sent Tasim for his medical

examination as at the time of his apprehension he was beaten up by the

public persons; this has been reiterated in the oral version of PW-1 and

PW-2 as also PW-10. The MLC of Tasim has also been perused. This

shows that he had been taken to Guru Teg Bahadur Hospital for a

medical check up on that day at 11.20 a.m. and was accompanied by

constable Vinod; this is also the version of the PW-10. The history of

the patient notes that he had been beaten up by public. This document is

unrebutted and unchallenged.

9 PW-10 has further deposed that the other two co-accused i.e.

Mohd. Hasan and Mohd.Irfan had been arrested on 24.02.2005 i.e. two

days after the date of incident which was on the pointing out of co-

accused Tasim. Their arrest memos were proved as Ex.PW-7/C and

Ex.PW-7/D. Both were found in possession of a loaded katta with a live

cartridge which were taken into possession. The fact that they had

refused TIP on 03.3.2005 is an undisputed fact. Their refusal

proceedings have also been proved in the version of the investigating

officer.

10 On the basis of the aforenoted evidence collected by the

prosecution both oral and documentary the trial court had convicted the

appellants for the offence under Section 387/34 of the IPC. Accused

Tasim had been separately convicted under Section 25 of the Arms Act

as well for being in illegal possession of a knife.

11 On behalf of the appellants arguments have been addressed in

detail. It is pointed that PW-1, PW-2 and PW-8 are interested witnesses

and there is every reason for them to have falsely implicated especially

accused Tasim as a dispute had arisen when he asked for his money

from PW-1; this was the reason for this false implication. Attention has

been drawn to the versions of PW-1, PW-2 and PW-8 to substantiate

this submission. It is pointed out that Mohd. Hasan and Mohd. Irfan

were also arrested later at the pointing out of Tasim; their identity has

not been established. It is submitted that even otherwise the offence is

very old and appellants have already undergone a substantial portion of

the sentence which has been awarded to them; leniency accordingly be

awarded in the sentence.

12 Arguments have been refuted by the learned public prosecutor. It

is pointed out that on no count does the impugned judgment suffer from

any infirmity. Leniency should also not be granted in the sentence as

admittedly accused Tasim was armed with a knife and the threats to the

complainant party are writ large.

13 Record has been perused and arguments have been heard.

14 The trail judge has convicted the accused for the offence under

Section 387 read with Section 34 of the IPC. Section 387 reads herein

as under:

"387. Extortion by putting a person in fear of death or grievous hurt- Whoever commits extortion by putting any person in fear of death or of grievous hurt or that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

15 This section necessarily entails the ingredients of extortion which

have been defined in Section 383 of the IPC. Section 383 reads as

under:

"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".

16 There are four illustrations appended to this section. All of them

show that there must be a delivery of a property or a valuable security or

anything signed or sealed which may be converted into a valuable

security. Thus to complete the offence of extortion the person who was

put in fear must have been induced to deliver a property. In other

words, to constitute extortion, it is not enough that the wrong doer had

done his part; it must produce the result also. It if fails to produce the

requisite effect, the act would remain only at the stage of attempt. In

AIR 1953 Sau. 42 Labhshanaker Vs. State; Chief Justice Shah and

Judge Baxi in this context had observed that the essence of the offence

of extortion is in the actual delivery of possession of the property by the

person put in fear and the offence is not complete before such a delivery.

Tested on this touchstone testimonies of PW-1, PW-2, PW-4 and PW-8

have been scrutinized. PW-1 and PW-2 have categorically stated that in

this incident none of them received any injury and their articles were

also not stolen; admittedly there was no delivery of any property by the

victims. Threat had undoubtedly been extended by the accused persons

and out of the three accused, accused Tasim was armed with a 'Chhura'.

This version of PW-1 and PW-2 is in fact the version of the prosecution.

The essential ingredients of the offence of extortion which encompasses

not only intentionally putting a person in fear of death or injury but also

dishonestly inducing that person by putting him in fear to deliver to any

person any property or valuable security is an ingredient which is

missing. It is clear from the version of PW-1 and PW-2 that they were

threatened by the accused at the point of knife but no theft or robbery

had taken place in the incident and no loss had accrued to them. The

ingredients of Section 387 of the IPC having not been fulfilled the

conviction of the appellants under this Section is not sustainable.

17 Criminal intimidation which has been defined under Section 503

of the IPC has many ingredients which are common with extortion.

Section 503 IPC reads herein 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."

18 Section 503 contemplates threatening another with any injury to

his person, reputation or property or to the person or reputation of any

one in whom the person is interested, with an intention to cause alarm to

that person or to cause that person to do an 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 a means of avoiding the execution of such a threat.

19 In this case, the accused persons had threatened PW-1 at the point

of knife to hand over to him whatsoever was in his possession; Tasim at

that point of time was armed with a knife; the other two persons namely

Moh. Irfan and Mohd. Hasan had kattas. The intent of the accused was

to cause injury to his person asking him to deliver whatsoever was with

him which he was otherwise not legally bound to do.

20 This Court is thus of the view that the conviction of the appellant

is called for under Section 503 of the IPC. The Apex court in AIR 1960

SC 154 Romesh Chandra Arora Vs. The State had an occasion to deal

with ingredients of both Section 383 and 503 IPC and in this context it

had noted that as far as Section 503 of the IPC is concerned, it is

mentioned in two parts. It had observed as follows:

"......the first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested; the second part refers to the intent with which the threatening is done and it is of two categories: one is intent to cause alarm to the person threatened and the second is 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. On the findings arrived at against the appellant, the first part of the section is clearly fulfilled; and as to the intent, it comes more properly under the second category, that is, to cause X to do any act (in other words, to pay hush money) which he was not legally bound to do, as a means of avoiding the

execution of the threat. It is perhaps correct to say that the threat of publication of the photographs must have also caused alarm to X; but the real intention of the appellant appears to have been not so much to cause alarm only as to make X pay "hush money" to him. It is not unoften that a particular act in some of its aspects comes within the definition of a particular offence in the Indian Penal Code, while in other aspects, or taken as a whole, it comes within another definition. There are obvious differences between the offence of extortion as defined in s.383 and the offence of criminal intimidation as defined in s.503. It is unnecessary to dilate on those differences in the present case. All that we need say is that on the finding of the learned Magistrate, which finding was affirmed by the High Court, the appellant was clearly guilty of the offence of criminal intimidation. We, therefore, hold that the conviction of the appellant under s.506 is correct. We further agree with the High Court that no prejudice was caused to the appellant by reason of the defect, if any, in the charge as to the intent of the appellant. He was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him." 21 The charge in the present case had been framed against all the

accused persons under Section 397 and Section 393 of the IPC. They

had been convicted by the Sessions Judge under Section 387 of the IPC

noting that the ingredients of Section 397 and Section 393 of the IPC

had not been fulfilled. This court is of the view that the conviction of

the appellant for the lesser offence under Section 506 of the IPC (which

is lesser than Section 383 of the IPC) is fully sustainable. The penal

provision for a conviction under Section 503 of the IPC is contained in

Section 506 IPC. This offence is punishable with imprisonment which

may extend to 2 years or with fine or with both.

23 The conviction of accused Tasim under Section 25 of the Arms

Act is also maintained; that offence stands fully proved.

23 Accordingly for the offence under Section 503 of the IPC each of

the accused are sentenced to undergo RI for a period of 1 year and to

pay a fine of Rs.500/- in default of payment of fine to undergo SI for 5

days. The sentence of Tasim under Section 25 of the Arms Act is

unaltered. As noted supra the appellant Tasim has undergone a period

of 11 months; Mohd. Irfan and Mohd.Hasan have undergone 4 months

and 29 days; the offence is old relating back to the year 2002 i.e. almost

9 years ago. All the appellants were present in the court on the date of

hearing. This court has been informed that Tasim is aged about 35

years; Mohd. Hassan as on date is in his late 20s and so also

Mohd.Irfan; all are married they have settled life with settled jobs and

settled families. As rightly pointed out by learned counsel for the

appellants no useful purpose would be served in sending the appellants

back to jail. Accordingly, noting the fact that the fine amount stands

paid; the period of incarceration already suffered by each of the

appellants shall be treated as the sentence imposed upon them. Appeal

is disposed of in the above terms. Bail bonds cancelled. Sureties

discharged.

INDERMEET KAUR, J MARCH 24, 2014 ndn