Allahabad High Court
Rahees Yadav @ Krishn Gopal And 2 Others vs State Of U.P. on 1 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 1028
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 90 Case :- CRIMINAL APPEAL No. 7 of 2021 Appellant :- Rahees Yadav @ Krishn Gopal And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Ray Sahab Yadav Counsel for Respondent :- G.A. ************* Hon'ble Ajit Singh,J.
Heard Sri Manish Tiwariy, learned Senior Advocate, assisted by Sri Ray Sahab Yadav, learned Counsel for the appellants and learned A.G.A. for the State.
The learned counsel for the parties submits that this appeal may be disposed of at the admission stage itself. Accordingly, it is being disposed of by this Court.
This criminal appeal has been preferred against the judgment and order dated 19.11.2020 passed by Special Judge (Dacoity Affected Area)/Additional District Judge, Jhansi in Session Trial No.114 of 2013, State Vs. Rahees Yadav & Others arising out of Case Crime No.91 of 2013, under Sections 147, 148, 386, 504, 506 I.P.C., Police Station Month, district Jhansi convicting the appellants under Section 147 I.P.C. for rigorous imprisonment for one year and also convicting the appellants under Section 384 I.P.C. for two years rigorous imprisonment and fine of Rs.10,000/- each in default of payment of fine, the appellants shall undergo three months of additional rigorous imprisonment and all the conviction shall run concurrently.
Prosecution story in brief is that the complainant, Arun Kumar Agarwal lodged first information report on the allegation that on 28.05.2013 in the evening at about 6.00 p.m., Bablu Yadav and Monti Yadav came to his shop and demanded some articles on credit. It was further alleged in the first information report that, earlier also, they had taken some articles without paying money. When the complainant refused to give the articles they committed marpit with the complainant and threatened to kill him. The complainant had earlier lodged the first information report in police station Month against the aforesaid persons and for this reason they were annoyed with the complainant. It was further alleged in the first information report that on 02.06.2013 at about 8.00 p.m. Rahees Yadav, Bablu and Monti Yadav and two-three unknown accused persons came to his house and started hurling abuses and started demanding Rs.50,000/- towards the legal expenses incurred by them in the earlier case within twenty four hours. They further warned if the complainant would not pay the aforesaid money they would not let him do the business and he would not be able to live in this area. They further asked the complainant to withdraw all the cases pending against them.
On the basis of the complaint, first information report was lodged under Sections 147, 148, 386 I.P.C.
The competent Court took cognizance on 20.01.2015 and charges were framed under Sections 147, 148, 386, 504, 506 I.P.C. and this case was committed to Sessions Court.
In order to prove its case, the prosecution has examined three witnesses. PW-1 Arun Kumar Agarwal, the complainant, PW-2 Santosh Kumar Yadav, Investigating Officer and PW-3, Avinash.
After the closure of the prosecution witnesses, the statements of accused appellants were recorded under Section 313 Cr.P.C. and the appellants denied the prosecution story and said that false evidence has been led against them due to village partibandi.
After considering the argument of the prosecution and the defence the trial court convicted the appellants by the impugned judgment and order narrated above in first paragraph of the judgment.
It is relevant to note down that PW-1, Arun Kumar Agarwal has asserted in court that on 28.05.2013 at 6.00 p.m. he was sitting in his shop. Accused Babloo and Monti came there and started to demand some articles. He further deposed that the aforesaid accused persons used to take the articles illegally from his shop. The complainant has further stated that he refused to give the articles, at which they assaulted him with knife and the said matter was reported to the police. For this reason the accused persons were having enmity with the complainant. The complainant has further deposed that in the evening of 02.06.2013 at 8.00 O'clock accused Rahees Yadav, Babloo Yadav and Monti Yadav came to his house along three unknown persons and started abusing and threatened to withdraw the case. They also made an illegal demand of Rs.50,000/- spent towards the litigation and said that if said amount is not paid within twenty-four hours, all the shops of the complainant would be closed down and he will not be allowed to reside at Month.
In his cross-examination, the PW-1, Complainant has stated that he reside at Month: accused persons reside at village Budhaoli. Budhaoli is a small village. The distance from village to Month is about 4 kms. PW-1 has further stated that his father has a shop at Month in his building. He used to reside on the first floor of that shop. Accused persons do not belong to his village. In the evening of 02.06.2013 the complainant had reached at his house at 7.00. His house is in the locality. He has further deposed in his cross-examination that it is true that all the doors are closed generally at 7-8 O'clock. It was further stated by the complainant that there is no window in his house except the shutter. At the time of incident there was no light in his house as it was out of order. At the time of incident some persons came together. It was further stated that some voice was made outside his house but he did not open the door. It was further stated that the complainant did not open the door and did not see the accused persons; he opened the door after half an hour of the incident.
The complainant has further stated in his cross-examiantion that since the gate was not opened at the time of incident he could not tell that accused were witnessed or not by the residents of locality. Accused persons had lodged a case against the complainant earlier and for that the complainant had moved an application against the accused persons. He has further stated that it is wrong to say that the complainant had made report against the accused persons having enmity because of the incident occurred earlier on 28.05.2013. He has further stated that it is true to say that at the time of incident complainant did not open the door, therefore, he could not tell that which of the accused person asked for the money. It is wrong to say that the report was got lodged by the complainant against the accused persons due to enmity.
PW-2 Santosh Kumar Yadav, Investigating Officer has deposed that he has investigated the matter on the basis of the first information report lodged against three unknown persons. He has recorded the statement of the complainant, Arun Kumar Agarwal and accused persons on Paper No.2, dated 13.06.2013. He has further stated that at the pointing out of the complainant the Paper No.6-A/1 was prepared by him, which is site plan of the incident; he has also recorded the statement of witnesses, Laxmi Kant and Anil.
In his cross-examination PW-2 Santosh Kumar Yadav, Investigating Officer has stated that after being entrusted with investigation he had gone to the place of incident ten days after. He had also gone through the complaint. It was alleged in the report that the incident took place in the night of 02.06.2013 at 8.00 O'clock; site plan of the incident was prepared, no source of light was mentioned. He has stated that he does not remember at what time he had gone to do the inspection of place of incident. He has also admitted in his cross-examination he has orally recorded the statement of complainant and he has not recorded the statement of any other witness of the locality. He has also stated that it is correct that the complainant has told that he did not open the door at the time when the accused persons came there. He has also stated that it is true that there is no window to see outside the complainat's house. He has also admitted that it is true that the complainant opened his gate half an hour after the incident and after the accused persons had gone.
Learned counsel for the appellant has submitted that no one was put in fear. Witness PW-1 has not seen the incident by his own eyes as he did not open the door and he has not seen the accused persons. He has stated in his statement that he recognized the accused persons by their voices and no person of the vicinity has supported the prosecution version. The complainant has not mentioned the names of the accused persons, who are alleged to have demanded the money from him.
He has further submitted that he wants to argue the appeal at the admission stage itself. He further submitted that only PW-1 complainant was examined as PW-1 in the trial court and no other person has corroborated the prosecution story set up by the complainant.
Learned A.G.A. has argued that the trial court has rightly passed the impugned judgment and order taking into consideration the evidence before it, hence no interference is called for by this Court.
From persual of the statements and cross-examiantions of PW-1 and PW-2, it transpires that the complainant has neither opened the door nor there was any window to see or identify any of the accused persons who have been implicated by the complainant. Thus, it can not be said that the learned trial court has found the accused persons guilty of the offence beyond all reasonable doubt. This Court also finds that Section 384 I.P.C. does not apply to the facts and circumstances of the case. It is relevant to mention here to prove the offence under Section 384 I.P.C., the prosecution prima facie has to establish the following ingredients as provided under Section 383 I.P.C.
To prove the offence under Section 384 of I.P.C., the prosecution prima facie has to establish the following ingredients :-
(i) intention to put a person under fear of injury,
(ii) thereby induces dishonestly to
(a) deliver any property, or
(b) valuable security, or
(c) anything signed or sealed which may be converted into a valuable security,
(iii) to any person.
Thus, what is necessary for constituting an offence of extortion is that the prosecution must prove that on account of being put into fear of injury the victim delivers any particular property or valuable security to the person who puts him into a fear. If there was no delivery of any property or valuable security, then the important ingredient of an offence of extortion stands excluded.
The existence of "valuable security" is also an essential ingredient of the offence of extortion. Valuable security has been defined in Section 30 of I.P.C., as follows:-
"30. "Valuable security".--The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right."
From bare reading of the said definition of valuable security, it is clear that valuable security comes into existence when a document creates extends, transfers, restricts, extinguishes or releases a legal right or where any person acknowledges that he/she lies under certain legal liability or that he does not have legal right.
Thus, valuable security can come into existence only when it has all the basic requisites recognized by law for a document to graduate into a valuable security. One of the essential features is that document should be signed by the maker since an unsigned document does not mature into a valuable security despite containing script pertaining to creation, extension, transfer, restriction, extinction or release of any legal right or acknowledgment of legal liability or absence of any right. The decision in the case of Dhananjay alias Dhananjay Kumar Singh Vs. State of Bihar and another (2007) 14 SCC 768 is worthy of reference in this context. Paras 5 and 6 of the said decision being relevant are reproduced below:-
"5. Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Indian Penal Code in the following terms:
"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"."
6. A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence :
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 in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly."
From the perusal of the evidence it transpires that no delivery of property was ensued in this case and there is no evidence on record which could show that any money was delivered to the accused by the complainant or any valuable security might have been delivered.
Hon'ble Apex Court had held that to convict a person under Section 384 I.P.C. The delivery of money or valuable security is essential ingredients and where there is no delivery of property in that case accused can not be convicted under Section 384 I.P.C.
In the instant matter, there is no delivery of property/money or valuable security, hence the judgment and order passed by the trial court is bad in the eyes of law and it can not be sustained.
This Court does not hesitate to hold that no case is found proved against the accused appellants for the offence under Section 384 read with Section 149 I.P.C. and this Court finds it a fit case to acquit the accused appellants from the charges levelled against them. The impugned judgment and order passed by the learned trial court 19.11.2020 is hereby set aside.
The appeal is allowed and the aforesaid order passed by the trial court is set aside.
The accused appellants are on interim bail, vide order 19.11.2020, granted by the learned trial court.
Their sureties and personal bonds stand discharged.
Office is directed to transmit a copy of this order to the learned Sessions Judge concerned for compliance.
Dt.01.02.2021 R./