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2017 DIGILAW 1671 (JHR)

Mahadeo Keshari v. State Of Jharkhand

2017-09-14

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. P.P.N. Roy, learned senior counsel appearing for the petitioners and Mr. Moti Gope, learned A.P.P. 2. This application is directed against the order dated 04.06.2005 passed in Criminal Appeal No. 36 of 2005 by the learned Additional Sessions Judge, F.T.C.-I, Gumla whereby and where-under the judgment and order of conviction and sentence dated 18.05.2005 passed by the learned Sub Divisional Judicial Magistrate, Gumla in Palkot P.S. Case No. 32 of 2004 whereby and where-under the petitioners have been convicted for the offence under Section 386 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years as also a fine of Rs. 2,000/- has been affirmed. 3. The prosecution story in brief is that on the basis of a telephonic call received on 28.09.2004 the informant proceeded towards Gobarsilli where he met two persons. It is alleged that the petitioner no. 1 demanded Rs. 1,50,000/- as extortion money. Further allegation has been levelled that the informant managed Rs. 25,000/- and proceeded to give the same near Gobarsilli Rock. It has further been alleged that the petitioner no. 1 was accompanied by the petitioner no. 2 who demanded the rest amount and also threatened the informant. It has also been alleged that about one and half months prior to the occurrence the informant was compelled to give a sum of Rs. 40,000/-. 4. Based on the aforesaid allegations Palkot P.S. Case No. 32 of 2004 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken charge was framed under Section 386 of the Indian Penal Code and trial proceeded. In course of trial eight witnesses were examined on behalf of the prosecution. 5. P.W.-1, Ram Narayan Keshri and P.W.-2, Shankar Keshri were the seizure list witnesses. P.W.-3, Om Prakash Keshri, P.W.-4, Gopal Sao and P.W.-5, Dayanand Keshri did not support the prosecution case and were declared hostile by the prosecution. P.W.-6, Biju Baraik, is the informant of the case who was declared hostile on the point of identification of the petitioners. In cross-examination this witness had disclosed that a compromise had taken place between him and the accused. P.W.-7-Binod Kumar, is the Investigating Officer who in course of investigation had recorded the confessional statement of both the accused persons and on the basis of confession an amount of Rs. 11,000/- and Rs. In cross-examination this witness had disclosed that a compromise had taken place between him and the accused. P.W.-7-Binod Kumar, is the Investigating Officer who in course of investigation had recorded the confessional statement of both the accused persons and on the basis of confession an amount of Rs. 11,000/- and Rs. 10,700/- were recovered from the house of the petitioner nos. 1 and 2 respectively. P.W. - 8, Ramashish Baitha, was the Malkhana In-charge of Palkot Police Station. This witness had produced a sealed envelope bearing Malkhana No. M.R. 24 of 2004 which was opened in the court. 6. It has been stated by Mr. P.P.N. Roy, learned senior counsel appearing for the petitioners, that there is no evidence substantive in nature so as to convict the petitioners for the offence punishable under Section 386 of the Indian Penal Code. Learned counsel submits that the matter has been compromised between the petitioners and the informant and since the informant did not support the identification of the petitioners as being the perpetrators of the offence both the petitioners deserve acquittal. Learned senior counsel further submits that most of the witnesses examined by the prosecution have been declared hostile and merely on the confessional statement of the petitioners they have been convicted. 7. Learned A.P.P. has opposed the prayer made by the petitioners. 8. It appears from the evidence of the informant who had been examined as P.W.-6 that a compromise has been effected between the petitioner and the informant and the informant had failed to identify the petitioners as having taken part in the commission of the offence. P.Ws. 3, 4, 5 and 6 have been declared hostile. The only evidence of substance, therefore, is of P.W.-7 the Investigating Officer. P.W.-7 had stated in very categorical terms that after institution of the case he had apprehended both the petitioners and on their confession an amount of Rs. 11,000/- and Rs. 10,700/- were recovered. The confessional statement of the petitioners thus had led to recovery of the amount which was taken as extortion money from the informant and no satisfactory explanation had been given by the petitioners regarding they being in possession of the money. Although the informant had turned hostile on the point of identification of the petitioners but in the First Information Report instituted by the informant specifically mention had been made about the name and address of the petitioners. Although the informant had turned hostile on the point of identification of the petitioners but in the First Information Report instituted by the informant specifically mention had been made about the name and address of the petitioners. The informant may out of fear had entered into a compromise or had been gained over in order to give the benefit of doubt to the petitioners. In the background of the evidence of the informant as well as the other witnesses the evidence of the Investigating Officer being P.W.-7 attains all the more significance. 9. As has been stated above, on the confession of the petitioners the amount of Rs. 21,700/- was recovered from the petitioners. Such circumstance, therefore, clearly indicates the involvement of the petitioners in demanding and accepting extortion money from the informant and taking into consideration such facts and circumstance, the petitioners had rightly been convicted for the offence punishable under Section 386 of the Indian Penal Code which was affirmed in appeal. 10. There being no reasons to conclude otherwise the order of conviction passed against the petitioner is, hereby, sustained. 11. However, with respect to the sentence which has been imposed upon the petitioners, it appears they have remained in custody for a considerable length of time. The petitioners are facing the rigors of the prosecution case for more than a decade. On consideration of the circumstances enumerated above, the period of sentence imposed upon the petitioners is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in sentence.