PW3/A is that the complainant Mohd.Irshad, aged about 25 years was a rickshaw puller who was living on rent alongwith some Crl.A. No.105/2012 Page 1 of 12 other persons in house No.14/36, Gali No.1 in front of Arvind Rickshaw Garage, Arya Nagar.He is native of Distt.Madhey Pura, Bihar.On 05.09.2009, after having dinner at Dhaba in Jagat Puri, he was returning home and when he was walking on the pavement of drain (nala) side across Parwana Road, at about 10.00 or 10.15 pm, one motorcycle No.DL-13S-A-2134 stopped near him and two boys, whose names were subsequently revealed as Varun Kumar and 'R' (name withheld being juvenile), showed him a knife and made him to sit on the motorcycle.While Varun Kumar was driving the motorcycle, 'R' was sitting behind him with a knife on his back and they took him to Manglam Marg, AGCR colony.They stopped in front of the house next to Manglam Hospital and after getting down from the motorcycle, they started beating him with belt.Varun also took knife from 'R' and showed the same to him and thereafter 'R' also started beating him with belt and asked him to handover whatever he had or otherwise he would be killed.When Varun tried to put his hand in his pocket, the complainant also put his hand on his pocket and in the meantime, police arrived and saved him.A perusal of the testimony of these two witnesses would reveal that all material aspects including the place of occurrence where the offence was committed, there are material contradictions.As per PW-2 Mr.Sheel Sharma, he was going in his Car bearing registration No.DL-1C-F-0277 and at about 10.15/10.30 PM when he reached near Bus Stand, Jagat Puri, he saw two boys forcibly taking one Crl.A. No.105/2012 Page 4 of 12 boy on the point of khukhri on motorcycle No.2134 make Hero Honda Splendor of blue-black colour.He informed the PCR at number '100' and PCR reached.Local police from PS Preet Vihar also reached and they started searching the assailants in the direction in which they had left that place.Across the drain (nala) at some distance they saw both the boys (appellant and the juvenile) giving beating to that boy who was taken away forcibly and both the boys were apprehended.Some other police officials also came there who conducted the proceedings.Police recovered the Khukri with wooden cover from the possession of accused Varun Kumar and sealed and seized the same.He also stated that all the writing work was done in the police station.From his statement, the vital details regarding the incident are :-A. No.105/2012 Page 4 of 12(i) He had seen two boys taking away third boy when he reached in his car near Bus Stand, Jagat Puri.(ii) He saw from the running car that a boy was being taken on the point of Khukri and note complete registration number of the motorcycle i.e. DL-13S-A-2134 make Hero Honda Splendor of blue-black colour as recorded in DD No.38-A (Ex.PW5/A)He also handed over the knife to his associate who put the knife on his (PW-3) back and took him towards AGCR Colony at Manglam Marg where appellant Varun Kumar gave beating to him with belt.The younger boy asked him as to what he was seeing and he replied that he was simply going.The younger boy gave him two-three Crl.A. No.105/2012 Page 6 of 12 slaps and the latter one took out a knife and asked him to sit on the vehicle.He was forced to sit on the vehicle.He raised alarm 'bachao- bachao' but he was told that nobody would come to save him.Then the younger boy was handed over the knife and the elder one drove the vehicle.The younger boy continued putting knife on his back and he was brought to Manglam Marg Road, Industrial Area where he was made to get down and beaten with belts 2-4 times.They demanded the money and when he said that he was not having the money, he was shown the knife.After half-an-hour, police arrived and he was saved.It is worthwhile to mention that the DD No.38-A Ex.PW5/A recorded at 10.35 pm at PS Preet Vihar does not contain the name of informant PW-2 Sheel Sharma or his mobile number from which he informed the PCR.Rather DD No.38-A is the information given by Operator through Intercom and from the information recorded, it can be made out that two boys on knife point had taken away towards Preet Vihar.There is no mention of PCR officials leaving for the spot.As per this DD, only ASI Shankar Lal left for the spot to whom this DD was assigned.How the police party reached the spot near Manglam Hospital is again a mystery.In the instant case, even if the offence of extortion is held to be not made out for want of delivery of the property atleast, the offence of attempt to commit extortion is clearly made out.' Crl.A. No.105/2012 Page 11 of 12A. No.105/2012 Page 11 of 12The appellant Varun Kumar is aggrieved by the order dated 30.11.2011 vide which the learned ASJ has convicted him for committing the offence punishable under Section 365/398/34 IPC.The appellant was sentenced under Section 365/34 IPC to undergo RI for three years with fine of Rs.500/- and also under Section 398/34 IPC to undergo RI for seven years with fine of Rs.1000/- and both the sentences were ordered to be run concurrently.In brief, the case of the prosecution as made out from the complaint Ex.He prayed for legal action against the offenders.Crl.A. No.105/2012 Page 1 of 12A knife was also recovered from the spot.On the basis of endorsement made by ASI Shankar Lal, who alongwith Ct.Satender Kumar reached the spot on receiving DD No.38-A Ex.PW5/A, case FIR no.505/2009 under Sections 365/323/506/34 IPC was registered at PS Preet Vihar and after completion of investigation, chargesheet was filed.The appellant was charged by the Trial Court for the offence punishable under Sections 392/511/34 r/w 397 IPC and Section 367/34 IPC.In order to prove its case, the prosecution examined five witnesses Crl.A. No.105/2012 Page 2 of 12 in all i.e. PW-1 HC Johnson - the Duty Officer, PW-2 Mr.A. No.105/2012 Page 2 of 12- the public witness, PW-3 - the complainant/victim, PW-4 HC Satender Kumar who accompanied the IO to the spot and PW-4 ASI Shankar Lal- the Investigating Officer.During his examination under Section 313 CrPC, the appellant/accused has taken the plea that on 05.09.2009 at about 8.00 pm when he was going to Preet Vihar, he was stopped by the police at Jagat Puri Barricade and was asked to show the documents.As he was not having the documents, he was sent home to bring the documents.When he reached the police station alongwith the documents to take back his bike, on his inability to pay Rs.3,000/-, he was put in lock-up and falsely implicated in this case.Believing the testimony of the prosecution witnesses especially the public witness i.e. PW-2 Mr.Sheel Sharma and the complainant PW-3 Mohd. Irshad, learned Trial Court was of the view that the testimony of PW-2 and PW-3 did not suffer from any infirmity and guilt of the accused was proved beyond any reasonable doubt.On behalf of the appellant, it has been submitted that the entire testimony of prosecution witnesses has to be discarded for the reason that material contradictions have appeared on record which are sufficient to disbelieve them.Not only that, the complainant has also deposed in an unnatural manner.The MLC of the complainant revealed that there was no fresh injury at the time of his medical examination, so the testimony of the complainant that he was given beating with belts and Crl.A. No.105/2012 Page 3 of 12 attempt to rob him at knife point, has to be rejected in view of the fact that as per the police witnesses, a knife was recovered from the hand of Varun whereas the statement of the complainant PW-3 Mohd. Irshad is that knife was thrown and later on searched by the police officials and recovered.It has been further submitted that about the place of occurrence also there are material contradictions as to whether attempt to rob him was made near drain (nala) or near Manglam Hospital and apart from that while PW-2 has referred to presence of other police officials also near Bus Stand, Jagat Puri when the local police has arrived, no such police official has been examined or cited as a witness by the prosecution.The manner in which the entire story has been concocted makes it unbelievable and appellant is entitled to be acquitted.Crl.A. No.105/2012 Page 3 of 12On behalf of State, it has been submitted that the prosecution case has been duly supported by the statements of public witness i.e. PW-2 Mr.9. Learned ASJ has convicted the appellant for the offence punishable under Sections 365/398/34 IPC believing the testimony of the complainant PW-3 Mohd. Irshad as well the public witness PW-2 Mr.Sheel Sharma.(iii) He did not raise any alarm or made an effort to save the victim from the offenders, instead, he preferred not to chase them from safe distance, rather the three left the spot and he continued waiting at the same place for the police to arrive and then the police party and he left in search for them in the direction in which they left.(iv) When he witnessed the occurrence, the victim was given beating by the offenders before taking him away forcibly.(v) Khukri/knife was recovered from the possession of the appellant Crl.A. No.105/2012 Page 5 of 12 Varun Kumar.A. No.105/2012 Page 5 of 12Statement of PW-3 Mohd.Irshad, the complainant is to the effect that he was a rickshaw puller.On 05.09.2009 at about 10.00/10.15 pm after taking meal from a Dhaba, he was returning home.When he reached near Bus Stop across the road near drain, two boys came there on motorcycle.Appellant Varun Kumar was carrying a knife who slapped him and made him to sit on the motorcycle.While giving beating to him, the appellant and his associate asked him to handover the money and whatever he was carrying.At that point of time, the police arrived at the spot, apprehended the appellant and his associate, took the keys of the motorcycle and recovered the knife with cover from the pocket of accused Varun Kumar.Thereafter all of them were taken to the police station.He also stated that he made statement under Section 164 CrPC Ex.PW3/B before learned Magistrate.In cross examination, PW-3 Mohd. Irshad has stated that the distance from the place he was taken on the motorcycle and the place where he was beaten is about 750 meters and there was no public person present there.The statement under Section 164 CrPC made by this witness regarding the occurrence is to the effect that when he was returning after having his food, he was stopped by two persons on motorcycle.On seeing the police, the knife was thrown behind.When he informed the police about the knife, police made search for the knife and thereafter they were brought to the police station.Crl.A. No.105/2012 Page 6 of 12The MLC of the complainant Mohd. Irshad shows that he was taken to Lal Bahadur Shashtri Hospital, Khichri Pur, Delhi on 06.09.2009 at 7.34 AM with alleged history of assault.Absence of any fresh injury on the body falsifies the statement of the complainant Mohd. Irshad that he was repeatedly given beating with belt by the appellant.Causing injuries with a belt leaves the mark which cannot vanish within 7-8 hours which is the time gap between the occurrence and medical examination.It is relevant to mention here that if three grown up persons are riding on motorcycle, the person on whose back the knife has been put, during driving, the point of knife is bound to Crl.A. No.105/2012 Page 7 of 12 leave some injury mark on the back of the victim especially for the reason that date of occurrence is night intervening 5/6-09-2009 when woolen clothes are not worn and if a person is wearing ordinary summer clothes, while riding on motorcycle with force of knife put on the back by another pillion rider, likelihood of being hurt from the point of knife, are very strong.But as already referred, as per MLC there is no injury mark on any part of the body and there was no fresh injury on the person of Mohd. Irsahd.So the entire case of prosecution regarding use of knife in an attempt to commit robbery is falsified from the MLC.A. No.105/2012 Page 7 of 12Statement of PW-4 HC Satender Kumar and PW-5 ASI Shankar Lal regarding who reached the spot whether any police official from PCR was also present there at the spot where Sheel Sharma was waiting for the police or when the local police arrived, is also full of contradictions and in total contrast to what PW-2 and PW-3 stated about the proceedings being conducted which as per them was at the Police Station and as per PW-4 sand PW-5 was at the spot.As per PW-3 the police arrived there of its own and Crl.A. No.105/2012 Page 8 of 12 saved him.As per the rukka Ex.PW5/B, the time of arrival of the police near Manglam Hospital is 11.15 pm when they apprehended the appellant and his associate while they were beating the complainant.Crl.A. No.105/2012 Page 8 of 12PW-2 Mr.Sheel Sharma in his cross examination has stated that SHO also arrived there in Gypsy.Some police officials were on private motorcycle.One police official sat with him in his car, they left in different directions, the policeman sitting in his car was carrying wireless set and he received the message on wireless set about the apprehension of the appellant and his associate near Manglam Hospital.It is nowhere stated by PW-4 HC Satender Kumar and PW-5 ASI Shankar Lal that one of them was travelling in the car of PW-2 Sheel Sharma or one of them, was carrying wireless set and the other police official conveyed the message on wireless set.The two site plans Ex.PW5/C which is of the place from where the appellant was stated to be apprehended and another Ex.PW5/D which is of the place near Bus Stand, F-Block, Jagat Puri, Delhi have been placed on record.Both are the main roads and place of apprehension is shown in front of house No.A-8 adjoining Manglam Hospital.PW-2 Mr.PW3/B or it was recovered from the pocket of the appellant or it was being used at the time of apprehension of the appellant from the spot.The evidence against the appellant, so far as offence punishable under Section 398 IPC is concerned, is so weak that no conviction could have been passed by learned ASJ for committing the offence punishable under Section 398 IPC.A. No.105/2012 Page 9 of 12The appellant has also been convicted under Section 365 IPC which deals with kidnapping or abduction with intent to secretly and wrongfully confine a person.PW5/C and D, the complainant was allegedly taken from near Bus Stand, Jagat Puri.The appellant and the complainant were found seen by the police in front of the house adjoining Manglam Hospital which is a main road leading to Karkardooma Court which is at a distance of 750 meters from Bus Stand, Jagat Puri.Thus, it cannot be said that there was any intention on the part of the appellant to abduct the complainant with intent to secretly and wrongfully confine him.There is no evidence to prove the guilt of the appellant for committing the offence punishable under Section 365 IPC.Even if reference to the Section under which the appellant was convicted is ignored, from the Crl.A. No.105/2012 Page 10 of 12 statement of PW-3 Mohd. Irshad at the most the case of the prosecution falls under Section 385 IPC.In order to complete the act of extortion the person who was put in fear, must have been induced to deliver the property.If the act of inducement caused by the wrong doer should bring forth its result at least by the victim consenting to deliver property even if actual delivery does not take place due to any fortuitous circumstances which would constitute extortion, but if it falls to produce the requisite effect, the act would remain only at the stage of attempt to commit extortion.The statement of PW-3 Mohd. Irshad at the most proved that while he was returning home after taking food from nearby Dhaba, an attempt was made to commit extortion by asking him to handover whatever he had by putting him in fear of injury.So, believing the testimony of PW- 3 Mohd. Irshad to the extent that the appellant came near him and after putting him in fear of injury asked him to handover whatever he had but the offence could not be completed because of the arrival of the police near Manglam Hospital, the appellant can be convicted only for committing the offence punishable under Section 385 IPC.In view of above discussion, the conviction of the appellant for committing the offence punishable under Section 365 and 398 IPC is set aside and he is convicted for committing the offence punishable under Section 385 IPC.The maximum punishment provided for committing the offence punishable under Section 385 IPC is two years or fine.The appellant is sentenced to undergo RI for one year for the offence punishable under Section 385 IPC.The appellant be released from custody on the completion of sentence of one year.Appeal stands disposed of in above terms.A copy of this order be sent to the Jail Superintendent for necessary compliance.PRATIBHA RANI, J September 14, 2012/'st' Crl.A. No.105/2012 Page 12 of 12A. No.105/2012 Page 12 of 12

Cited provisions: Section 34 in The Indian Penal Code; Section 365 in The Indian Penal Code; Section 506 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 392 in The Indian Penal Code; Section 511 in The Indian Penal Code