SHIV OM Vs. STATE

JUDGEMENT

(1.) THIS criminal revision has been preferred under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Code of Criminal Procedure) against the judgment and order dated 30 -04 -1986 passed by Special Judge, Nainital in Criminal Appeal No. 79 of 1985, Shiv Om v. 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.PC. and sentenced for one year rigorous imprisonment.

(2.) THE prosecution story in brief is 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 at his shop on 6 -3 -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 I.B. 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. 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. Ill and he stated that letters Ex.I and II were not written by him. The learned 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. Feeling aggrieved against the judgment and order dated 30 -4 -1986, the revisionist has come up in revision before this Court.

(3.) 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 RM. 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 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 I.B. Nautiyal.