Noor Alam vs The State Of Jharkhand

Heard learned counsel for the petitioner as well as learned A.P.P.

Instant Criminal Revision is directed against the judgment dated 29.03.2016 passed in Cr. Appeal No. 29 of 2015 by the learned Addl. Sessions Judge-XII, Hazaribagh, whereby and whereunder, the conviction and sentence of the petitioner for the offence under Section 387 of the I.P.C. passed by learned Chief Judicial Magistrate, Hazaribagh in G.R. No. 2139 of 2013 / T.R. No. 2371 of 2015 arising out of Sadar (M) P.S. Case No. 430 of 2013 dated 28.06.2013, directing the petitioner to undergo R.I. for two years alongwith the fine of Rs. 2,000/- with default stipulation, has been upheld.

Factual matrix giving rise to this revision is that the informant Janardhan Singh, who is an employee of Shiv Shakti Cement Industries, Demotand, Hazaribagh and working on the post of Manager, has given written information to officer-in-charge of Muffasil police station Hazaribagh stating therein that a call from mobile no. 8339080858 to the mobile phone of his owner Raj Kumar Singhania bearing mobile no. 9431140641 who has revealed his name to be Rahul, demanded the amount of Rs. 5,00,000/- as extortion and threatened him if his demand was not fulfilled, his employees would be killed and factory would be ambushed. It is further alleged that subsequently on the mobile phone of the informant bearing mobile no. 9431500401, the miscreants again made a call and stated that his employer had switched off his mobile phone and ordered him to ask his employer to pay Rs. 5,00,000/-. Thereafter, again after some days, on mobile phone of another employee namely Sudhir Singh, supervisor of Shiv Shakti Cement Industries bearing his mobile no. 9431974331, the miscreants again made a call from mobile no. 08456913798 asking for the aforesaid extortion amount otherwise all the employees of Raj Kumar Singhania will be killed. Thereafter, in the night at about 10:00 P.M., the miscreants again called the informant on his mobile phone and threatened that if the demand is not fulfilled by 28.06.2013, they would come to the factory alongwith entire gang and be ready for dire consequences.

On the basis of above written report of informant, F.I.R. was registered being Sadar (M) P.S. Case No. 430 of 2013 dated 28.06.2013 for the offence under Sections 386 & 387 of the I.P.C. against unknown accused persons.

After completion of investigation, charge-sheet was submitted against the three named accused including this petitioner and charge under Sections 386/34 & 387/34 of the I.P.C. was framed against the accused.

The accused denied from the charges and claimed to be tried.

In the course of trial, altogether, 7 witnesses were examined by the prosecution.

Apart from oral evidence, following documentary evidence has been adduced by the prosecution:-

Mat. Ext-I: Nokia mobile with sim

Mat. Ext.-II: Spice mobile with two sim

Mat. Ext.-III: China mobile with two sim

Mat. Ext.-IV & IV/I: Two purse

Mat. Ext.-V: Hero Honda Motorcycle bearing registration no. BR2H-8531

On the other hand, no oral or documentary evidence has been examined by the defence.

The learned Trial Court after scrutinizing the evidence available on record, held the petitioner with other co-accused persons guilty for the offence under Sections 387 of the I.P.C. and passed sentence of imprisonment as stated above.

Against the judgment of conviction and sentence, Criminal Appeal No. 29/2015 was preferred by the petitioner Noor Alam before the learned Sessions Judge, Hazaribagh, where the same was heard and decided by the learned Addl. Session Judge- XII, Hazaribagh whereby, the judgment of conviction and sentence passed against the accused by the learned Trial Court was upheld and sentenced him as stated above.

Learned counsel for the petitioner has submitted that the learned Trial Court as well as the learned Appellate Court have committed serious error of law while appreciating the evidence available on record adduced by the prosecution. As per the prosecution, the petitioner alongwith two other accused persons, namely, Jawed Alam and Samsher Alam were apprehended from Sher-e-Punjab Hotel, where a motorcycle being its registration no. BR2H-8531 was also lying. The petitioner had neither acquaintance with the other co-accused persons nor he had any concern with the seized motorcycle. In this case, the police seized a mobile phone of the petitioner but the same has not been connected with the alleged occurrence of this case. The said mobile phone was also never used for making any demand or extortion money from Raj Kumar Singhania or his any employee including the informant. None of the witnesses has been able to prove that the mobile phone recovered from possession of the petitioner and seized in this case was used for making call for demand of extortion money as alleged. The other co-convict namely Md. Jawed Alam was the son of one of his employee and his mobile phone number has been alleged to be used for the purpose of demand of extortion money. Therefore, conviction of the petitioner in this case for the offence under Section 387 I.P.C. without addition of 34 or 120B I.P.C. is absolutely illegal, perverse and beyond the weight of evidence available against the petitioner. Therefore, concurrent findings of guilt of the petitioner for the offence under Section 387 is absolutely unjustified, perverse and improper, which is liable to be set aside allowing this revision.

On the other hand, learned A.P.P. has opposed the aforesaid contentions raised on behalf of the petitioner and has submitted that there is concurrent finding of guilt of the petitioner. The present petitioner alongwith other co-accused persons were arrestd at the same time and joint seizure list was prepared. Admittedly, different mobile phones were used and all the three accused persons were in possession of mobile phone and stolen motorcycle. Therefore, there is no reason to take different view from the learned Trial Court as well as learned Appellate Court and this revision, being devoid of merit, is fit to be dismissed.

I have gone through the record of the case alongwith the impugned judgment passed by the learned Trial Court as well as the learned Appellate Court in the light of contentions raised on behalf of both the parties.

The only point for consideration of this revision is, as to whether the impugned judgment of conviction and sentence passed by the learned Trial Court and upheld by the learned Appellate Court suffers from any serious error of law calling for any interference or not?

Before adjudicating the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

The important witness appears to be the informant of this case namely, PW-5 Janardhan Singh. He has deposed in his deposition that on 16.06.2013, a call was received by his employer Raj Kumar Singhania on his mobile No. 9431140641 demanding extortion money of Rs. 5,00,000/- calling himself to be a member of J.P.C. extremists group. The said incident was told to this witness by his employer. On 19.06.2013, a call was received on the mobile phone of this witness being mobile no. 9431500401 and told the miscreants that his employer has switched off his phone, asked him to fulfill demand of Rs. 5,00,000/- extortion money. Again, a call was received by the supervisor, to whom he was also demanded extortion money as his manager and employer has switched off their phone. On 28.06.2013, again call was received by this witness demanding extortion money or otherwise his factory may be ambushed. He reported the matter to the police and lodged F.I.R. against unknown. On investigation, police apprehended this petitioner alongwith two other co-accused.

In his cross-examination, this witness has deposed that he had reported the matter to police on 28.06.2013 at 6:00 P.M. He has further deposed that father of this petitioner was working in his factory. He has not recorded the voice call.

PW-1 Jagraj Singh has stated that before 28.06.2013, a call was received by Raj Kumar Singhania for demand of extortion money. The caller had named themselves Rahul and Jitendra and this fact was told to him by his manager Janardhan Singh. He has further stated that on 28.06.2013 at about 8:00 PM, a call was received by Janardhan Singh before him, where miscreants told that his employer has switched off his mobile phone, immediately arrange demanded extortion money. Janardhan Singh reported the matter to police station by phone and two securities came in white dress. In the night at about 9:00 to 10:00 PM, two miscreants came inside the factory and told to Janardhan Singh to pay whatever amount he has, otherwise he would shoot his staff and ambush the factory. Thereafter, the police came inside and apprehended the both miscreants.

In his cross examination, he has deposed that the police apprehended both the accused before him. This witness has further deposed that all information was given to him by Janardhan Singh.

PW-2 Vikash Kumar Singh has deposed that occurrence is of 28.06.2013 at about 6:00 to 7:00 P.M. When he came out from finishing his work at Shiv Shakti Cement factory, he saw there was crowd at Sher-e-Punjab Hotel. There were four persons in white dress and were interrogating three boys. After some time, he came to know that these three miscreants had motive to demand extortion from Shiv Shakti Cement factory. Sim cards, mobile phone and motorcycle of the miscreants were seized and his signature was obtained, marked Ext.-1.

In his cross-examination, he has deposed that at the place occurrence, 10-12 persons had already assembled. There is distance of 200m between Shiv Shakti Cement Factory and Sher-e-Punjab hotel. Sim card and mobile phone were seized before him. This witness has also deposed that the present petitioner was staff of his factory.

PW-3 Sudhir Singh has stated that a demand of Rs. 5,00,000/-was made from Raj Kumar Singhania, proprietor of Shiv Shakti Cement factory. A call was also received on the mobile phone of Janardhan Singh asking extortion money as his employer has switched off his mobile and threatened to ambush the factory. On 19.06.2013, he also received a call and miscreants stated to fulfill the demand by telling Janardhan Singh, thereafter, he reported the matter to police.

In his cross-examination, he has stated that on 19.06.2013, he has received a call of demanding rangdari and threatening call.

PW-4 Prabhunath Prasad is the investigating officer of this case. He has stated that on 28.06.2013, he was handed over the charge of investigation of this case. At 1:00 P.M., he went to investigate the place of occurrence with his team. He saw three persons on a motorcycle came at She-e-Punjab hotel, started looking at factory and on suspicion, he apprehended them. After interrogation, Sim nos. 8339080858 & 8051102086 and motorcycle were seized. He prepared seizure list and recorded their statement. He also received CDR of both sim cards, marked as Ext.- 4.

In cross-examination, investigating officer has stated that there is no mention in the diary with regard to lodging of sanha for demand of extortion before 28.06.2013. He did not find any prove of transaction of money in his whole investigation of this case.

PW-6 Raju Sao has stated in his deposition that on 28.06.2018, he was taking tea at Sher-e-Punjab hotel. There was crowd and police had apprehended three persons. He put his signature on seizure list, marked Ext. 1/4.

PW-7 Motilal Ram has produced the seized articles before the Court. There is Nokia mobile with Uninor Sim card marked as Ext.-I, a mobile of Spice company, marked as Ext.- II, one china mobile with two sim cards marked as Ext.-III, two purse marked as Ext.-IV & V IV/1. Hero Honda motorcycle registration no. BR2H-8531 marked Ext.-V.

It appears that the present petitioner has been convicted only on the basis of recovery of mobile phone and he was also found associated with other two co-accused persons at Sher-e-Punjab Hotel.

It is a case of demand of extortion (rangdari) and admittedly no amount or any part of extortion money has been paid to the accused persons. It also transpires that the mobile phone which was allegedly recovered from possession of the present petitioner has not been connected with any call made by said mobile phone demanding extortion money from the informant party. Therefore, except suspicion, there is nothing against the petitioner showing his involvement in the alleged occurrence. It is a settled principle of law that the suspicion, however, strong may be can’t take place of legal prove.

It further transpires that both the learned Trial Court as well as the learned Appellate Court have committed serious error of law in properly appreciating the prosecution evidence showing involvement of the present petitioner in the alleged occurrence. There is no whisper in the entire judgment as to how the present petitioner was involved in demand of the extortion money from the informant or the other employees of Raj Kumar Singhania, proprietor of Shiv Shakti Cement Industries. There appears to be some contradiction from the evidence of informant of this case namely PW-5 and the investigating officer, as the investigating officer states the time of occurrence at about 1:00 P.M. but the informant has stated occurrence to be happened in the evening. Raj Kumar Singhania, the proprietor of Shiv Shakti Cement Industries, on whose mobile phone first call received regarding demand of extortion, has not been examined in this case. One witness has stated the present petitioner happened to be son of one of the staffs of Shiv Shakti Cement industries but another witness claims that the present petitioner was also his staff. This fact is also contradictory. The suspicion initially raised against the petitioner was never culminated into legal prove. Therefore, in my considered view, the conviction and sentence of the petitioner is absolutely based on no evidence and suffers from perversity and non-consideration of materials against the petitioner.

In view of the above discussion and reasons, the conviction and sentence of the petitioner for the offence under Section 387 of the I.P.C. is hereby set aside.

Accordingly, this revision is allowed.

Pending I.A.(s), if any, also stands disposed of.

The petitioner is on bail. As such, he is discharged from the liability of bail bond and sureties are also discharged.

Let a copy of this order be sent through FAX to the concerned Trial Court for information and needful.

Let the trial court records also be sent back to the concerned Trial Court.