Sidi Badshah Kalu Jahangir v. STATE — 1992 DIGILAW 409 (GUJ)

J. N. BHATT, J. ( 1 ) IN this conviction appeal, the accused, through jail, has assailed the legality and validity of the order of conviction and sentence recorded by the learned additional Sesssions Judge, at Junagadh in Sessions Case No. 60 of 1983 on 8. 12. 1983. The appellant/accused is found guilty for the offence punishable under Section 393 read with sections 397 and 394 of the Indian Penal Code ("ipc" for short ). He is also found guilty for the offence punishable under Section 25 (1 ) (a) of the Arms Act, 1959 ("act" lor short ). The accused is imposed sentence of rigorous imprisonment for 3 years and to pay a fine of Rs. 500 and in default to undergo further imprisonment for 3 months for the offence under Section 393 read with Section 397 of the IPC. He is also directed to pay a fine of Rs. 100 and in default to undergo rigorous imprisonment for 15 days for the offence under Section 25 (l) (a) of the Act. The aforesaid offences arc order to run concurrently. ( 2 ) A resume of the material facts leading to the filing of the present appeal may be stated at this juncture. According to the prosecution, on 10. 5. 1983 at about 7. 30 P. M. on the way between village Supra and Dhava, at village Dhava, in Talala Taluka of Junagadh District, the accused had stopped the bullock cart c. " one Mansukhbhai Ukabhai, wherein, the complainant-Kurji Tida and the injured witness-Ramji Nathu were sitting. It is alleged by the prosecution that, thereafter the accused at the point of gun, demanded an amount of rs. 5,000. Witness Mansukh Uka was in-charge of the bullock-cart and accused was told by the complainant-Kurji Tida that it was not possible to give that much amount. Thereafter the accused inflicted blows with the bull of the gun on Ramji Nathu and caused injuries on his person. In the meantime, village people had collected and the accused was beaten and taken to Panchayat Office of village Dhava. The police was informed-and the complaint was recorded and offence was registered against the-accused. On completion of the investigation, the accused was charge sheeted in the Sessions Court. Upon appreciation of the facts and circumstances and the evidence or record, the learned Additional Sessions Judge passed the impugned order of conviction and sentence. The police was informed-and the complaint was recorded and offence was registered against the-accused. On completion of the investigation, the accused was charge sheeted in the Sessions Court. Upon appreciation of the facts and circumstances and the evidence or record, the learned Additional Sessions Judge passed the impugned order of conviction and sentence. Hence this appeal at the instance of the accused through jail. Learned advocate Mr. M. J. Budhbhatti was appointed for the defence of the accused. ( 3 ) LEARNED counsel Mr. Budhbhatli, forcefully, contended that the guilt, of the accused is not established beyond reasonable doubt. He was also, alternatively contended that at the best the accused could be held guilty for the offence punishable under Section 385 of the IPC. He further contended that the accused had already undergone imprisonment for more than ten months and, therefore, it should be considered as sufficient sentence. The aforesaid contentions are countenanced by the learned A. P. P. Mr. Dave while appearing for the respondent-State. ( 4 ) AS regards the first submission, it may be noted that it is not acceptable in view of the evidence, on record. The prosecution witness No. 1, Kurji Tida, who is the complainant, is examined at Ex. 6. His evidence is found quite trust-worthy and reliable. His evidence has remained unshaken. His evidence is fully supported by the evidence of p. W. 2, Ramji Nathu, at Ex. 7. He is an injured witness, who had sustained serious injuries on his right hand. He had sustained fracture of right hand. His evidence is also fully reinforced by the evidence of Medical Officer, Dr. D. B. Goswami, who is examined at ex. 21. Medical certificate in respect of the injury is produced at Ex. 22. Dr. Goswami, at ex. 21, fully supported the version of the injured prosecution witness, Ramji Nathu. The prosecution version is also fully reinforced by the evidence of eye witness, P. W. 3, mansukh Oka, at Ex. 8. Thus, clear and consistent evidence of three eye witnesses supported by the medical evidence coupled with the promptitude in lodging the First promotion Report, go to show that the prosecution had established the guilt of the accused beyond any shadow of doubt. In view of the careful scrutiny of the evidence led by the prosecution, the first submission of the learned counsel for the appellant/accused is required to be rejected. In view of the careful scrutiny of the evidence led by the prosecution, the first submission of the learned counsel for the appellant/accused is required to be rejected. ( 5 ) THIS leads to the appreciation of the second submission with regard to the nature of offence. The trial court has found the accused guilty for the offence under Section 393 read with section 397 of IPC and also for the offence under Section 394 of the IPC. The question which requires to be examined is as to whether the prosecution has proved the guilt of the accused person for the aforesaid offence. Learned counsel Mr. Budhbhatti for the accused has contended that, at the best the accused could be held guilty for the offence punishable under Section 385 of the IPC. The learned A. P. P. Mr. Dave has contended that the accused is guilty for the offence punishable under Section 393 of the IPC. ( 6 ) IN order to appreciate the rival versions with regard to the nature of the commission of the offence against the accused, it would be necessary to refer to the relevant provisions of law in the light of the evidence on record. The offences against the property are mentioned in Chapter XVII of the IPC. In this Chapter, provisions against the offences against the property arc provided from Section 378 to Section 462. In other words, provisions relating to the offences against the property are provided in the aforesaid provisions. ( 7 ) THE learned Additional Sessions Judge has found the accused guilty for the offence punishable under Section 393 read with Section 397 of the IPC and also under Section 394 of the IPC. Section 393 of the IPC provides punishment for the offence of an attempt to commit robbery. Section 397 of the IPC prescribes punishment for the offence of robbery or dacoity with an attempt to cause death or grievous hurl. Section 394 of the IPC provides punishment for voluntarily causing hurt while causing robbery. It is an admitted fact in the present case that the accused at the point of gun had demanded an amount of rs. 5000. But the said amount was not delivered or taken as the complainant had no money at that time. Section 394 of the IPC provides punishment for voluntarily causing hurt while causing robbery. It is an admitted fact in the present case that the accused at the point of gun had demanded an amount of rs. 5000. But the said amount was not delivered or taken as the complainant had no money at that time. ( 8 ) IT would be, therefore, at this stage interesting to note the provisions made in section 390 of the IPC with regard to robbery. Section 390 or thc IPC reads as under :"390. In all robbery there is either theft of extortion. Theft is "robbery" if, in order to the committing of the theft, or in committing of the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, or instant hurt, or of instant wrongful restraint. "robbery is a special and aggravated form of either theft or extortion. "robbery" means, a felonious taking from the person of another or in his presence against his will, by violence or pulling him in fear. There could be no case of robbery which does not fall within the definilion either of theft or of extortion. The amount of Rs. 5000 demanded by the accused at the point of gun was, admittedly, not delivered. The question, therefore would arise as to whether the act of an extortion in respect of the said amount was complete. ( 9 ) SECTION 383 of the IPC defines "extortion". The amount of Rs. 5000 demanded by the accused at the point of gun was, admittedly, not delivered. The question, therefore would arise as to whether the act of an extortion in respect of the said amount was complete. ( 9 ) SECTION 383 of the IPC defines "extortion". It provides that 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 properly or valuable security, or anything signed or scaled which may be convened into a valuable security, commits "extortion". In the instant case, there was no delivery of the amount demanded by the accused. Thus, there was no completion of the offence of extortion, as contemplated by the provisions of Section 383 of the IPC. This aspect is not, unfortunately, seriously appreciated and examined by the learned Additional Sessions judge. If the extortion is not complete, the question of commission of the crime of robbery would not arise. If could very well be seen from the aforesaid provisions that exlortion must be completed so as to attract the vigours of Section 390 defines in the expression "robbery". Had the accused obtained or the prosecution witness had delivered the amount of Rs. 5000 as demanded by the accused at the point of gun, the position would have been different. In order to constitute an offence of robery either an act of theft or an act of extortion must be complete. It is evident from the facts of the present case that money had never been delivered as demanded by the accused, and therefore, the offence of extortion as contemplated under Section 383 of the IPC could not be said to have been completed. If no extortion is proved, there would not arise the question of offence of robbery. The prosecution is obliged to prove the following ingredients to complete the offence of extortion: (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 to deliver to any person any properly, valuable security or anything signed or sealed which may be converted into a valuable security, and (4) such inducement must be done dishonestly. As could be seen from the aforesaid ingredients, the delivery of the property or the valuable security by the person put in fear is essential to complete the offence of extortion. Thus the essence of extortion is complete only when the actual delivery of the property is made by the person put in fear and before that it could never be said to be complete. Extortion as defined in Section 383 of the IPC also covers the provisions of section 385 of the IPC which is a less serious offence which shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ( 10 ) SECTION 384 of the IPC provides for imprisonment for extortion whereas Section 385 of the IPC provides punishment for putting any person in fear of injury or to commit extortion. Section 385 of the IPC is less serious offence as compared to Section 383 of the ipc. There is a distinction between the inchoate and the consummated offence. It would be, therefore, interesting to reproduce the provisions of Section 385 of the IPC. Section 385 of the IPC reads as under:"385. Putting person in fear of injury in order to commit extortion whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "it could be very well seen from the aforesaid provisions of Section 385 of the IPC that by this section a distinction between the inchoate and the consummated offence is shown. Attempt to commit extortion has proceeded so far towards completion that a person has been put in fear of injury, or that mere has been an attempt to excite such fear; but the offence is incomplete because there has been no delivery of properly. Thus the offence of extortion could be said to be completed if the delivery of the property is effected. The court ought to be satisfied that the putting in fear was with an intention or extorting delivery of some properly. Thus the offence of extortion could be said to be completed if the delivery of the property is effected. The court ought to be satisfied that the putting in fear was with an intention or extorting delivery of some properly. In order to prove the rigorous of the provisions of Section 385 of IPC, the prosecution is obliged to prove the following ingredients : (1) that the accused put the complainant or witness in fear or attempted to put him in fear, (2) that the fear was regarding some injury, (3) that the accused did it so as to commit extortion. It is an admited fact in thecase on hand that the accused did demand, at the point of gun, an amount of Rs. 5000 but there was no delivery of the said amount. There is also no dispute about the fact that the complainant and the prosecution witnesses who were travelling in the bullock-cart at that time had no money, It is also an admitted fact that the accused had not used the gun. There is no evidence to show that the gun was in a useable position, or il was loaded so as lo use it. Apart from that, the prosecution has only alleged that the accused had used the bull portion of the gun and caused injuries on the finger of the witness- Ramji Nathu. In order to prove the offence of extortion, it must be proved by the prosecution that there was a delivery by the person put in fear as it is the essential ingredient to constitute and complete the offence of extortion. Thus, il may be reiterated that the assence of extortion is in the actual delivery of the possession of ihe property or any security by the person put in fear and the offence is not complete before such delivery. ( 11 ) THE conviction of the accused under Section 393 of the IPC for attempting to commit robbery read with Section 397 of the IPC for causing grievous hurl, recorded by the learned Additional Sessions Judge, cannot be sustained in the light of the aforesaid facts, and propositionof law. The trial court has also convicted the accused for the offence punishable under Section 394 of the IPC for voluntarily causing hurl while committing robbery. This conclusion is also erroneous. The trial court has also convicted the accused for the offence punishable under Section 394 of the IPC for voluntarily causing hurl while committing robbery. This conclusion is also erroneous. There was no question of committing robbery as the material ingredients attracting the offence of robbery were not established by the prosecution. Therefore, the accused can be convicted for the offence punishable under Section 385 of theipc for attempting to commit an offence of extortion at the point of gun from the complainant-Kurji Tida. Therefore, obviously, the conviction of the accused for the offence punishable under Section 393 read with Section 397 of the ipc recorded by the learned Additional Sessions Judge is required to be quashed. ( 12 ) THE learned Additional Sessions Judge has also convicted the accused for the offence punishable under Section 394 of the IPC. The accused was also charged for the offence punishable under Section 394 of the IPC or in the alternative for the offence punishable under Section 324 of the IPC for voluntarily causing hurl to witness-Ramji nathu. The trial court reached to the conclusion that the accused is guilty for the offence punishable under Section 394 of the IPC and not under Section 324 of the IPC In view of the facts and circumstances and the observations as aforesaid, the prosecution has failed to prove the offence of robbery. Therefore, conviction under Section 394 of the IPC which prescribes punishment for voluntarily causing hurl in committing robbery would not assume any survival value. It is established beyond shadow of doubt that the witness-Ramji Nathu had sustained injuries on his right index-finger. It is also supported by the medical evidence of Dr. Goswami and the medical certificate, produced at Ex. 22. The trial courl found that hurt was caused in committing the robbery. Though it is true that the hurt is caused to witness- Ramji Nathu, there was no offence of robbery. Therefore, the rigorous of provisions of Section 394 of the IPC will not be attracted. ( 13 ) NOW the question would arise as to what offence is committed by the accused by causing injury to witness - Ramji Nathu. Though it is true that the hurt is caused to witness- Ramji Nathu, there was no offence of robbery. Therefore, the rigorous of provisions of Section 394 of the IPC will not be attracted. ( 13 ) NOW the question would arise as to what offence is committed by the accused by causing injury to witness - Ramji Nathu. It is very clear from the evidence on record that the witness Ramji Nathu had sustained grievous injuries as he had sustained fracture on right index finger on account of the blows given by the accused with the but of the gun. Evidence of witness-Ramji Nathu is very much reinforced by the evidence of Dr. Goawami, at Ex. 21 and the Medical Certificate, at Ex. 22. section 325 of the IPC prescribes punishment for voluntarily causing grievous hurt. The posecution has successfully proved that the accused caused hurt, which is grievous in nature. Thus, the there is clear evidence lo show that Ramji Nalhu had sustained grievous hurt as defined in section 320 of the IPC. It would be interesting to refer the definition of grievous hurt provided in Section 320 of the IPC. Section 320 of the IPC reads as under:"320. Grievous hurt. The following kinds of hurt only are designated as "girevous. " First Emasculation. Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either car. Fourthly Privation of any member or joint. Fifthly Destruction or permanent impairing of the powers of any member or joint. Sixthly Permanent disfiguration of the head or face. Seventhly Fracture or dislocation of a born or tooth. Eighty Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. " seventhly is attracted. Witness Ramji Nathu had sustained fracture of right index finger. The medical evidence of Dr. Goswami at Ex. 21 and the medical certificate at Ex. 22 fully support the prosecution version in this regard. ( 14 ) SECTION 322 of the IPC provides that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt. 22 fully support the prosecution version in this regard. ( 14 ) SECTION 322 of the IPC provides that whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt. " In view of the evidence on record, it can safety be concluded that the accused voluntarily had caused grievous hurt as contemplated in Section 322 of the IPC, with the help of the butt of the gun and, therefore, the accused will be guilty for the offence punishable under section 325 of the IPC. Unfortunately, the accused was not specifically charged for the offence punishable under Section 325 of the IPC. The accused was charged for the offence under Section 324 of the IPC for voluntarily causing hurt to witness Ramji Nathu. Therefore, it would not be appropriate for this court in this conviclion appeal to hold the accused guilty for the offence under Section 325 of the IPC. Inslead of that the accused is now required 10 be held guilty in the peculiar circumstances of the cause of causing injury to witness Ramji Nathu under Section 324 of the IPC. ( 15 ) IN view of the facts and circumstances and the evidence emerging from the record of the present case, the accused is found guilty for the offence punishable under Section 385 of the IPC. He is also guilty for the offence punishable under Section 324 of the IPC for causing injuries to witness Ramji Nathu. The conviction of the accused for the offence punishable under Section 25 (1) (2) of the Arms Act is confirmed. Thus, the conviction order recorded by the trial court is modified. ( 16 ) SECTION 385 of the IPC provides punishment which may extend to two years imprisonment or with fine or with both. Section 324 of the IPC provides punishment for voluntarily causing hurt by dangerous weapon upto imprisonment of either description for a term which may extend to three years, or with fine, or with both. ( 16 ) SECTION 385 of the IPC provides punishment which may extend to two years imprisonment or with fine or with both. Section 324 of the IPC provides punishment for voluntarily causing hurt by dangerous weapon upto imprisonment of either description for a term which may extend to three years, or with fine, or with both. In so far as the question of quantum of sentence is concerned, it is submitted that the accused has undergone imprisonment for a period of ten months and the said period should be considered as sufficient and adequate for the offences established against the accused. In view of the peculiar facts and circumstances of the present and considering the intervening time lag of more than 8 years, the interest of justice will be satisfied if the period of ten months imprisonment already undergone by the accused is awarded by way of substantive sentence for the offence punishable under Section 385 of the IPC. No separate substantial sentence is passed in respect of the offence under Section 324 of the ipc and also for the offence under Section 25 (1) (a) of the Arms Act. ( 17 ) IN the result, the appellant/accused is held guilty for the offence punishable under sections 385 and 324 of the Indian Penal Code and also for the offence under Section 25 (1) (a) of the Arms Act. The conviction of the accused for the offence punishable under section 393 read with Section 397 of the IPC and for the offence punishable under section 394 of the IPC is quashed. In so far as the question of sentence under Section 385 of the IPC is concerned, the accused has already undergone ten months imprisonment and it is considered sufficient for the said offence. No separate sentence is awarded to the accused for the offence under Section 324 of the Indian Penal Code and also for the offence under Section 25 (1) (a) of the Arms Act. The appeal stands allowed, partly, to the aforesaid extent. .