Girish vs State
2021 Latest Caselaw 10973 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
	A.F.R.		
 
Judgment Reserved on: 04.08.2021
 
Judgment Delivered on 27.08.2021
 

 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 157 of 1992
 

 
Appellant :- Girish
 
Respondent :- State
 
Counsel for Appellant :- Vivek Shandilya,Raj Bahadur,Sudama Ji Shandilya
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard Sri Raj Bahadur, Amicus Curie, for the appellant and learned A.G.A. for the State.

2. This criminal appeal arises out of judgment and order dated 13.01.1992 passed by the learned Special Judge (D.A.A. Act), Jhansi in Special Case No.11 of 1991, Case Crime No.16 of 1991, under Sections 387, 504, 506, 427 I.P.C., Police Station- Moth, District- Jhansi, convicting the appellant (accused) under Section 387 I.P.C. and sentencing him to undergo rigorous imprisonment for 03 years.

3. The prosecution story in brief is that on 29.01.1991 at about 10:30 P.M., accused Girish Kumar Tiwari along with one unknown person came at the house of the complainant Ramesh Chandra, situated in Mohalla Katra Bazar, Town and P.S. Moth and called the complainant. As soon as the complainant reached, then accused started to abuse him asked to pay Rs.5,000/-. The complainant showed his inability to pay such huge amount, then accused fired shot from country made pistol in air with a view to threaten the complainant. Hearing the noise the neighours came out of their houses but they again went inside their houses hearing the sound of firing made by country made pistol. At that time witnesses Awadha Bihari, Munna Khan and Babloo who were passing through from there tried to impress the accused. Accused and his associate threatened them. Accused threatened the complainant to pay the said amount by 4 P.M. tomorrow else he will be shot and any member of his family will be kidnapped. The witness Babloo again intervened, then accused went to Motor stand, Moth and threw the betel shop of Babloo on the ground causing damages to Babloo.

A written report to this affect scribed by the complainant himself submitted at Police Station Moth same day at 11:45 P.M., on the basis of which case got registered under Sections 387, 427, 504 and 506 I.P.C. The Investigating Officer recorded the statements of the witnesses inspected the site and prepared the site plan and after completing the investigation submitted the charge sheet against accused Girish.

The learned trial court framed charges against the accused Girish under Sections 387 and 427 I.P.C.. The accused denied the charges and claimed for trial. The prosecution produced four witnesses. In his statement under Section 313 Cr.P.C. the accused denied the prosecution allegations and claimed to have been falsely implicated due to enmity. He has further stated that he had a dispute with Iddu and Kailash the owners of the hotel. Ramesh is friend of Iddu and Kailash and all of them have falsely got implicated him in collusion with the police. No evidence in defence has been produced by the accused. The learned trial court after hearing the arguments by the impugned judgment held the accused guilty of charge under Section 387 I.P.C., while acquitted him from charge under Section 427 I.P.C.

4. Learned counsel for the appellant contended that in order to constitute an offence under Section 387 I.P.C. there are to be some visible over act. It is alleged that appellant firstly demanded Rs.5,000/- from the complainant and thereafter fired a shot in the air from country made pistol, hence, the case is not covered by Section 387 I.P.C.. It is further contended that all the witnesses named in the F.I.R. are chance witnesses and there is no witness of vicinity, hence the oral testimony of PW-2 Awadh Bihari is not reliable. It is further contended that Babloo was an important witness but he has not been examined by the prosecution and accused has been acquitted of the charge under Section 427 I.P.C.. The place of occurrence is a residential area but no person of the vicinity has been named as a witness nor examined. Accused has been falsely implicated at the instance of hotel owners Iddu and Kailash who are inimical to the accused and complainant being friend of Kailash and Iddu in collusion with the police has falsely implicated the accused. Lastly, it is contended that the trial Court has failed to appreciate the evidence on record and finding of conviction is perverse.

5. Learned A.G.A. submitted that informant/victim has fully corroborated the prosecution case and an independent witness, Awadh Bihari has also supported the informant. The accused has made a demand of Rs.5,000/- and fired a shot in the air and also threatened the informant with death, so offence under Section 387 I.P.C. is made out. The judgment and finding recorded by the trial Court is just and proper and there is no illegality in the impugned order.

6. To substantiate the charges, prosecution has produced 03 witnesses. PW-1 Ramesh Chandra is the victim/informant and he has corroborated averments made in the First Information Report by his examination-in-chief. He has also proved the written information (Tehrir) Ex-Ka-1. From his testimony, it is proved that on 29.01.1991 at about 10:30 p.m. the accused (appellant) came at the house of informant and called him outside and started abusing the informant and demanded Rs.5,000/-, he also fired shot in the air from a country made pistol and threatened the informant to give Rs.5,000/- by the next day failing with he will be killed or any other member of his family will be kidnapped. Accused has failed to establish any enmity with complainant or motive for false implication. Witness has been cross examined at length by the defence but there is no major discrepancy or contradiction in his cross examination which makes his testimony unreliable. PW-2 Awadh Bihari is the eye witness and he has also corroborated the complainant Ramesh Chandra. This witness has also been cross examined by the defence and there is nothing in his cross examination which makes his oral statement unreliable. Although, he is not neighbour but he is resident of same locality where the occurrence has took place and it has come in his cross examination that he lives 3 to 4 furlong away from the house of Ramesh Chandra, so his presence on the spot cannot be said to be unnatural or improbable. His testimony cannot be discarded on the ground that in his cross examination he has said that some time he do the labour work at complainant's Jaggery business. There may be some minor discrepancy or omission in the oral statement of the witnesses but that is natural. There is no material, discrepancy or contradiction which shake trustworthiness of the witnesses.

The remaining witness S.I. Surendra Singh PW-3 is the Investigating Officer who has proved the steps taken during the investigation and the papers prepared i.e. site plan and charge sheet. He has also proved the Chik report and copy of G.D.

Both the witnesses PW-1 Ramesh Chandra and PW-2 Awadh Bihari are independent witnesses. There is no material on record which establish any enmity or ill will of these witnesses with the accused-appellant and there is no reason to disbelieve these witnesses. They are trustworthy and reliable.

The effect of non production of witness Babloo has already been considered by the trial Court and accused has been acquitted from charges under Section 427 I.P.C. due to this.

7. Contention of learned counsel for the appellant that the case is not covered by Section 387 I.P.C. has no force. In order to constitute an offence as laid down Under Section 387 I.P.C., there ought to be some visible overt act which may reflect the natural and normal inference that the wrong doer had, in fact, put a person or had made an attempt to put any person in fear of death or of grievous hurt. From the evidence on record, it is established that accused-appellant armed came at the house of the complainant called him outside and started abusing him and demanded Rs.5,000/- and also fired a shot in the air, he further threatened the complainant to pay Rs.5,000/- by the next day otherwise he will be shot or any member of his family will be killed. So, it cannot be said that there was no overact during the act of extortion.

8. The defence taken by the accused in his statement under Section 313 Cr.P.C. that he has been falsely implicated at the instance of hotel owners Iddu and Kailash who are inimical to the accused does not get any support from material on record. The charge under Section 387 I.P.C. stand proved against the accused.

9. The learned trial Court has fully discussed and appreciated the entire evidence. The findings recorded by the learned trial Court is well reasoned. There is no infirmity or perversity in the findings recorded by the learned trial Court in holding the accused guilty under Section 387 I.P.C. and there is no reason to disagree with the aforesaid findings. So, the judgment and order of conviction is just and proper.

10. The learned trial Court has sentenced the accused for 03 years rigorous imprisonment only while punishment prescribed for offence under Section 387 I.P.C. is imprisonment and fine. Considering the nature of the offence and attending facts and circumstances, imposition of 02 years rigorous imprisonment and fine of Rs.10,000/- will be just. In default of payment of fine accused will serve six month simple imprisonment. Sentence is modified accordingly.

11. The appeal is partly allowed in the aforesaid terms.

12. Lower court record along with copy of the judgment be transmitted immediately to the trial Court.

Order Date :- 27.08.2021

Krishna*