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Uttarakhand High Court · body

2007 DIGILAW 305 (UTT)

Shiv Om v. The State

2007-05-28

DHARAM VEER

body2007
Judgment – This criminal revision has been preferred under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 30-04-1986 passed by Special Judge, Nainital in Criminal Appeal No. 79 of 1985, Shiv Om Vs. State, confirming the judgment and order dated 23-04-1985 passed by the learned Additional C.J.M., Kashipur in Criminal Case No. 164 of 1985 whereby the revisionist was convicted under Section 387 I.P.C. and sentenced for one year rigorous imprisonment. 2. The prosecution story in briefis that on 24/25th February, 1982, a letter was received by the complainant Harbans Lal at his shop by post in which the sender of the letter had asked him to keep eight thousand rupees in a pit 3 or 4 meters north-east of the statue at Drona Sagar and to keep a brick marked by chalk over it and had threatened him that if he did not do so, he would be killed. The sender had warned the complainant to keep it secret. Again a letter EX.2 with the same content was received by the complainant by post It his shop on 63-1982. The complainant did not take any action in the matter. On 9-3-1982 at 8:00 A.M., when he opened his shop, he found letter EX.3 having been thrown in it with the warning that at 11 :00 A.M., on that day eight thousand rupees must be kept at the place mentioned earlier failing which he shall be murdered. The complainant Harbans Lal went to the Police Station, Kashipur along with three letters and lodged written report EX.Ka.1 at 8:45 a.m. regarding the receipt of above letters. The sub-inspector LB. Nautiyal directed him to keep a letter Ex.4 inside a tin and keep it at the place directed by the miscreant and go away. The Sub-Inspector called witnesses Mohan Lal and Tasaduk Hussain at the police station and told them to sit in ambush near the statue at Drona Sagar. The Sub-Inspector started from the police station by a motorcycle and the witnesses along with a constable started on foot from the police station. The sub-inspector and the constable were in plain clothes. The sub-inspector, constable and the two witnesses sat in ambush towards north-east of the statue within three or four meters. The Sub-Inspector started from the police station by a motorcycle and the witnesses along with a constable started on foot from the police station. The sub-inspector and the constable were in plain clothes. The sub-inspector, constable and the two witnesses sat in ambush towards north-east of the statue within three or four meters. At about 1 :30 p.m., the revisionist came at that place where the tin had been kept and after removing the marked brick took out the tin containing paper Ex.4 from it. The sub-inspector and the witnesses at once rushed and arrested him and recovered the said articles from his possession and thereafter he was brought to the police station. The police gave an application in the court of Judicial Magistrate, Kashipur for summoning the revisionist and taking his specimen handwriting so that it may be compared with the letter Exs. I and II to Ex. III. The revisionist by his application on record alleged that the court was not competent to direct the revisionist to give his specimen so long as the case was under investigation and also said that he was not willing to give his handwriting. After the investigation, the police submitted charge sheet. Revisionist pleaded not guilty to the charge under Section 387 I.P.C. and stated that an altercation had taken place between him and the complainant regarding charges of repairs of cycle which he had got done from the complainant and so he was falsely implicated. He further alleged that on 9-3-1982, the police called him at the police station and forcibly got a letter and address written by him at the police station which was Ex. III and he stated that letters EX.I and II were not written by him. The 1earned Addl. C.J. M., Kashipur after appreciating the evidence on record vide his judgment and order dated 23-4-1985 convicted the revisionist under Section 387 I.P.C. and sentenced him to undergo one year rigorous imprisonment. Being aggrieved by the said order dated 23-4-1985, the revisionist preferred an appeal before Sessions Judge, Nainital, which was later on transferred for hearing in the court of Special Judge, Nainital. After appreciation the evidence on record, the learned Special Judge has dismissed the appeal of the appellant and maintained the conviction of the revisionist under Section 387 I.P.C. vide his judgment and order dated 30-4-1986. After appreciation the evidence on record, the learned Special Judge has dismissed the appeal of the appellant and maintained the conviction of the revisionist under Section 387 I.P.C. vide his judgment and order dated 30-4-1986. Feeling aggrieved against the judgment and order dated 30-4-1986, the revisionist has come up in revision before this Court. 3. I have heard Ms. Pushpa Joshi, learned counsel for the revisionist and Mr. Amit Bhatt, learned Additional GA for the State. 4. The complainant of the case has lodged the F.I.R. in the Police Station, Kashipur on 9-3-1982 with the allegation that he has a shop in the main market with the name of Harbansh Cycle Store. Before some days, he received two letters regularly by post by which Rs. 8,000/- was demanded from him and he was threatened that in case of failure, he would be murdered. He do not take care of these letters but on 9-3-1982, when he has opened his shop then he received a letter at 8:30 a.m. in which he was directed to dig Rs. 8,000/- at 11 :00 A.M. at Drona Sagar near the statue in a polythene bag. Thereafter, the complainant after taking the letter received by him on 9-3-1982 and two other letters received by him earlier, went to the police station at 8:45 A.M. and lodged first information report EX.Ka.1. On the basis of this F.I.R., a Chik Report was prepared in the police station EX.Ka-3. Later on, the revisionist was arrested by the police on 9-3-1982 at 13:30 P.M. and a Fard was prepared i.e. EX.Ka.-2. The Investigating Officer has prepared the site plan i.e. EX.Ka-5. After the arrest, the revisionist was taken to police station and the entry was made in the G.D., the copy of the G.D. is on record i.e. EX.Ka-6. On 15-3-1982, a letter was submitted by the Investigating Officer in the court of Judicial Magistrate, Kashipur for taking the specimen handwriting of the revisionist so that it may be ascertained that the handwriting in the letters Ex.1, 2 and 3 are of the same person or not. The revisionist has objected for the same and he was not ready to give his signatures. The revisionist has objected for the same and he was not ready to give his signatures. The learned Magistrate has framed the charge against the revisionist on 22-2 1985 under Section 387 I.P.C. In order to prove his case, the prosecution has examined P.W.1 Harbans Lal, P.W.2 Mohan Lal, P.W.3 Tasaduq Hussain and P.W. 4 LB. Nautiyal. 5. P.W.1 Harbansh Lal has stated that he has a shop in the main market in the Park Road with the name of Harbans Cycle Store. He has stated that before March, 1982, he received letters on the address of his shop which are Ex.1, EX.2 and Ex. 3. By way of these letters, an amount of Rs. 8,000/- was demanded form him and in case of failure, he was threatened to be murdered. On 9-3-1982 in the morning when he had opened his shop, then he received a letter EX.3 inside the shop in which he was asked to pay Rs. 8,000/- in a polythene bag and he was also asked to dig that money in the Drona sagar in a box 3/4 mts away from the statue. He has lodged the F.I.R. of the said incident in the police station and he has also submitted three letters in the police station. He had proved the report EX.Ka.1. He has also stated that the letter Ex A is written by him. In the cross-examination he has stated that first time, he had seen the revisionist on 9-3-1982 at about 2:30 p.m. in the police station. He has also stated that he has received letter EX.1 on 24/25-02-1982 and EX.2 letter on 6-3-1982 and EX.3letter on 9-3-1982. He has also stated that Ex A letter was written by him on the dictation of sub-inspector LB. Nautiyal in the police station. He has also stated in cross-examination that about 12:30 P.M. in the day, he has received the information from the police station about the arrest of the revisionist 6. P.W.2 Mohan Lal was also examined by the prosecution in support of his case. He has stated that he along with Tassaduq Hussain on 9-3-1982 went to Dronasagar statue along with the constable and they hid in the bushes near about the statue at Dronasagar and the revisionist was arrested in Dronsagar near the statue. P.W.2 Mohan Lal was also examined by the prosecution in support of his case. He has stated that he along with Tassaduq Hussain on 9-3-1982 went to Dronasagar statue along with the constable and they hid in the bushes near about the statue at Dronasagar and the revisionist was arrested in Dronsagar near the statue. He has also stated that from 11 :00 A.M. to 1 :30 P.M., they were in the Dronasagar near the statue and were remain sitting in the bushes. He has also stated that the revisionist was arrested at 1 :30 P.M. in the day by the police at Dronasagar near the statue. 7. P.W.3 Tassaduq Hussain was also examined by the prosecution who has stated that he along with Mohan Lal and constable were sitting inside the bush and in the day at about 1 :00 o'clock, the revisionist was arrested near the statue. In the cross-examination he has stated that on the date of the occurrence, he was serving in the shop of complainant Harbansh Lal. 8. PW. 4 is S.I., LB. Nautiyal, who has stated that on 9-3-1982, he was posted as sub-inspector in the Police Station, Kashipur. On that day, Harbansh Lal has lodged an F.I.R. which was registered under Section 386/387 I.P.C. and the complainant has also filed three letters EX.1 to 3 in the police station. He has also stated that on the date about 1 :30 P.M., the revisionist was arrested in Dronasagar near the statue. He was also the Investigating Officer of the case. He has also stated that he has also prepared the Map EX.Ka-5 and after the investigation, he has submitted the chargesheet EX.Ka-4. 9. After that the statement of the revisionist under Section 313 Cr.P.G. was recorded. He denied the allegations made against him and he has stated that the witnesses are in relation and servant of the complainant, hence they are giving the false evidence against him. He has also stated that some alteration took place between him and the complainant on the payment of the cycle repairing and for this reason he has been falsely implicated. After appreciating the evidence, the learned Additional C.J.M., Kashipur vide his judgment and order dated 23-04-1985 convicted the revisionist under Section 387 I.P.C. and sentenced him for one-year rigorous imprisonment. He has also stated that some alteration took place between him and the complainant on the payment of the cycle repairing and for this reason he has been falsely implicated. After appreciating the evidence, the learned Additional C.J.M., Kashipur vide his judgment and order dated 23-04-1985 convicted the revisionist under Section 387 I.P.C. and sentenced him for one-year rigorous imprisonment. Against the said order dated 23-4-1985, the revisionist went in appeal before the Sessions Judge who later on transferred the appeal to the Special Judge, Nainital. The learned Special Judge, Nainital by his judgment and order dated 30-41986 dismissed the appeal of the appellant/revisionist and maintained the conviction of the appellant under Section 387 I.P.C. 10. Learned counsel for the revisionist has urgued that the complainant has stated in his statement that he received the information at 12:30 P.M. on 9-3-1982 at his shop from the police station that the revisionist was arrested but in the police records and as per the statement of the P.WA 1.8. Nautiyal, it shows that the revisionist was arrested at 1 :30 P.M. in Dronasagar near statue. Then how it is possible that the revisionist have received the information at 12:30 P.M. in his shop. It creates a doubt in the prosecution story whether the incident was happened as stated by the prosecution. If the revisionist was arrested at 1 :30 P.M. then how the complainant had got the information at 12:30 P.M. that the revisionist was arrested and it creates a doubt in the prosecution case. In my opinion also, the time of the arrest of the revisionist creates a doubt in the prosecution story. 11. Learned counsel for the revisionist has also submitted that the letters Ex.1, 2 and 3 were not examined by the handwriting experts and there is no proof at all that the letters Ex.1, 2 and 3 have been written by the revisionist. It is true that there is no evidence in the file to prove that the letters Ex.1, 2 and 3 have been written by the revisionist. The same also creates a doubt in the prosecution case. It was the duty of the prosecution to have proved the letters Ex.1, 2 and 3 against the revisionist that these letters were written by the revisionist. In the absence of this evidence, the prosecution story is doubtful. 12. The same also creates a doubt in the prosecution case. It was the duty of the prosecution to have proved the letters Ex.1, 2 and 3 against the revisionist that these letters were written by the revisionist. In the absence of this evidence, the prosecution story is doubtful. 12. Learned counsel for the revisionist further submitted that there is no independent witness against the revisionist, though the arrest was made in a locality where there are so many houses, Ashrams and temples near about the place of occurrence. She also submitted that the eye witness Mohan Lal is related to the complainant Harbansh Lal and the witness Tassaduq Hussain is the servant of the complainant. No doubt, near about the place of occurrence, there isAbadi and Ashrams and temples and witnesses can easily be taken from there but there is no evidence from the side of the prosecution that they have tried to take the witness and the witness have refused to give the evidence. In absence of this, it also creates a doubt in the prosecution case. 13. For the reasons discussed above, the prosecution is not able to prove its case against the revisionist under Section 387 I.PC. beyond reasonable doubt. The learned Special Judge and Add I. C.J.M. have committed irregularity by not considering the above said arguments on the basis of the evidence discussed above. Hence, the order dated 30-4-1986 passed by Special Judge, Nainital as well as judgment and order dated 23-4-1985 passed by Addl. C.J.M., Kashipur, are not correct and justified as discussed above. 14. In view of the above, the revision is allowed. The judgment and order dated 30-41986 passed by Special Judge, Nainital as well as judgment and order dated 23-4- j 985 passed by learned Additional C.J.M., Kashipur are hereby set aside and the conviction made under Section 387 I.P.C. and sentence for one year R.I. against the revisionist Shiv Om is also hereby set aside. He is on bail. His bail bonds are cancelled. He need not surrender.