CRIMINAL APPEAL No.98 OF 1989 Against the judgment of conviction and order of sentence dated 23.02.1989 passed by 13th Additional Sessions Judge, Munger, in Sessions Case No. 447 of 1986 relating to G.R. No. 407 of 1984. Rajendra Chauhan, Son of Shri Ram Peyare Chauhan Resident of Village Ferpar, P.S. Ariari, District Munger. --------Appellant Versus The State of Bihar -------Respondent For the Appellant :Mr. Nawal Kishore Singh, Adv. :Mr. Jitendra Nath Tiwary, Adv. :Mr. Upendra Mishra, Adv. For the State :Mr. Shashi Bala Verma, APP. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * S.K. Sharma & Akhilesh Chandra, J.J. The criminal appeal has been filed by sole appellant Rajendra Chauhan against judgment of conviction and order of sentence dated 23.02.1989 passed by the learned 13th Additional Sessions Judge, Munger in Sessions Case No. 447 of 1986 relating to G.R. No. 407 of 1984 ‘Ariyari P.S. Case No. 59 dated 29.10.1984’ whereby and whereunder the sole appellant was found - 2 - guilty under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. 2. The prosecution case is a sequence of a written report (Exhibit – 1) filed by Suresh Paswan (P.W. 1) alleging therein that he alongwith his grand mother Sukri Devi, Amrica Devi (P.W. 2), Jilevi Devi (P.W. 3), Sohagwa Devi and Mundrika Manjhi - all residents of Diha Panchayat were returning from village Ferpar after receiving Rs. 360/- each by way of old age pension, then accused namely, Rajendra Chauhan and other named accused persons forcibly took Rs. 200/- each from them and returned the residual amount of Rs. 160/-. 3. According to allegation at the time of occurrence Rajendra Chauhan was assisted actively in the offence by Hazari Chauhan, Kishori Chauhan and Ayodhya Chauhan and two to three others. 4. The aforesaid statement resulted in ‘Ariyari P.S. Case No. 59 dated 29.10.1984 under Sections 341, 379, 384 & 34 of the Indian Penal Code and the case - 3 - led to investigation. The investigation made out a case under Section 395 of the Indian Penal Code and charge-sheet was submitted against named accused as well as Ramashish Chauhan. Cognizance was taken and the case was committed to the Court of Sessions where charges against five named accused person including the present accused/appellant was explained. All the accused persons including the appellant denied their complicity and so the trial proceeded. The defence of the appellants was of false implication on account of enmity of appellant Rajendra Chauhan with Goberdhan Chauhan, who had also unsuccessfully contested election of Mukhiya against the appellant Rajendra Chauhan. 5. The Court after considering the evidence as well as material brought on record and after hearing the submissions of the prosecution as well as defence, found the appellant Rajendra Chauhan guilty under Section 395 of the Indian Penal Code, whereas the Court found other accused - 4 - persons not guilty and so the judgment of conviction was passed against the appellant. 6. This Court is required to see as to whether the materials collected during investigation are sufficient to prove the complicity of the evidence beyond all reasonable doubt or not. In order to prove the case the prosecution has examined altogether thirty witnesses, they are P.W. 1 Suresh Paswan, P.W. 2 Amrica Devi, P.W. 3 Jilevi Devi, P.W. 4 Baso Paswan, P.W. 5 Jhablu Ravidas, P.W. 6 Sudamiya Devi, P.W. 7 Aghanu Manjhi, P.W. 8 Sohagiya Devi, P.W. 9 Chanda Devi, P.W. 10 Basmatiya Devi, P.W. 11 Ram Chandra Prasad, P.W. 12 Prabhu Singh, P.W. 13 Uchit Singh, P.W. 14 Saheb Manjhi, P.W. 15 Sugiya Devi, P.W. 16 Nunuwati Devi, P.W. 17 Sita Devi, P.W. 18 Jageshwar Manjhi, P.W. 19 Prabhu Manjhi, P.W. 20 Pano Devi, P.W. 21 Sabitri Devi, P.W. 22 Bandhya Devi, P.W. 23 Baso Devi, P.W. 24 Fulwa Devi, P.W. 25 Bidya Devi, P.W. 26 Munsi Manjhi, P.W. 27 Gouli Devi, P.W. 28 Fuleshwari Devi, P.W. 29 Ram Bilash - 5 - Chauhan & P.W. 30 Naresh Sharma. The defence has also examined four witnesses, they are D.W. 1 Govind Paswan, D.W. 2 Mangari Devi, D.W. 3 Gauri Devi & D.W. 4 Ram Gahau Paswan. Those are the oral evidence. Besides the oral evidences, the prosecution has proved fardbeyan (Exhibit – 1), formal F.I.R. (Exhibit – 2), endorsement on the fardbeyan (Exhibit – 3), application (Exhibit – 4) & a letter (Exhibit – 5). The defence has also brought on record an application which has been marked as ‘X’ for identification. 5. P.W. 1, the informant, has not supported the prosecution case and he was declared hostile. Similarly, P.W. 2 has not supported the prosecution case and she was also declared hostile. P.W. 3 is a hostile witness who has not supported the prosecution case. P.W. 4 has been tendered for cross-examination. P.W. 5, the formal witness has proved the writing of officer- in-charge of the fardbeyan (Exhibit – 2) and endorsement on the fardbeyan (Exhibit – 3). P.W. 6 has supported the prosecution - 6 - case that she alongwith others were returning after receiving their old age pension up to Rs. 360/- which was granted to them at the rate of Rs. 30/- per month. According to the deposition of the witness, while she was returning and in the way she reached near a tube well then the entire money was snatched by the accused but the accused returned Rs. 160/- and kept Rs. 200/-. She has not identified other accused persons. Therefore, the evidence of this witness is only to the extent that the amount was taken by the appellant. She has replied in cross-examination that she was asked to depose by Goberdhan Chauhan. Learned counsel for the appellant has argued that since beginning the defence of the appellant is that the implication is behest of Goberdhan Chauhan. The evidence of P.W. 6 shows that it was not her voluntary statement and it should not be replied upon. 6. The evidence of P.W. 6 is very precise and brief. She is a dependent lady and beneficiary of old age pension. - 7 - She in her evidence has specifically stated that out of Rs. 360/- which was snatched from her by the appellant, the amount of Rs. 200/- was kept and Rs. 160/- was returned. It cannot be said that this witness had any motive at all to implicate the appellant. Anyhow, because she has not alleged anything which is beyond the allegation made out in earlier version which was lodged by way of fardbeyan. She has described the denomination of the currencies which was given to her from the office and the currencies which was kept by the accused/appellant. Therefore, testimony of all the witnesses cannot be discarded only on the basis of one suggestion regarding interest of Goberdhan Chauhan. 7. P.W. 7 is another beneficiary of old age pension scheme and he has deposed similarly as of P.W. 6. He has stated that he has deposed voluntarily and he has denied the suggestion that he brought by Goberdhan Chouhan. Other contents of his deposition are identical that the appellant snatched Rs. 360/- - 8 - initially and after keeping Rs. 200/- he returned Rs. 160/- to him. There is no inconsistency or contradiction in the deposition of P.W. 7, so it is relied upon. 8. P.W. 8 Sohagiya Devi, P.W. 9 Chanda Devi, P.W. 10 Basmatiya Devi, P.W. 11 Ram Chandra Prasad, P.W. 12 Prabhu Singh, P.W. 13 Uchit Singh, P.W. 14 Saheb Manjhi, P.W. 15 Sugiya Devi, P.W. 16 Nunuwati Devi, P.W. 20 Pano Devi, P.W. 21 Sabitri Devi, P.W. 23 Baso Devi, P.W. 24 Fulwa Devi, P.W. 25 Bidya Devi, P.W. 27 Gouli Devi, P.W. 28 Fuleshwari Devi have also supported the contention of the fardbeyan as well as the version of other witnesses that on the date and time of occurrence they were returning after receiving Rs. 360/- by way of their old age pension and in the way they were intercepted by the mob and the amount was snatched by the person, accused/appellant. Though, they have stated that others were also involved in the occurrence, but they have not identified any person except the appellant. Demeanour of some of the - 9 - witnesses have been noted by the trial court who has observed that these witnesses are quite infirm and are of old ages and most of them are illiterate. No doubt, some witnesses have given a slight variation when they have stated about the number of persons present at the time and the manner of theft, but they are consistent so far to the extent that Rs. 200/- out of Rs. 360/- was taken forcibly by the appellant. No doubt, in course of cross-examination some discrepancies are bound to occur in the statement of witnesses, but discrepancies affect the prosecution case only when those are to the extent of contradicting each other or making the prosecution version in unreliable. Minor variations in the deposition of the pensioners do not affect the gist of the version of the witnesses. Considering the nature of the witnesses, it was normal that some discrepancies would occur, but if discrepancies are considered then these are very minor error and does not affect the discrepancies of those - 10 - witnesses. Hence, it is held that those witnesses examined on behalf of the prosecution had made out a case that at the time of occurrence, they were returning after receiving Rs. 360/- from the block office and in the way they were intercepted by the accused/others and the appellant, who kept Rs. 200/-. Other witnesses have been tendered so their evidence is not required to be discussed in detail. 9. Though, P.W. 18 wad tendered by the prosecution, but in cross- examination on behalf of the accused persons the entire version of the prosecution was brought on the record and he has also supported that this accused had taken Rs. 200/- and returned Rs. 160/-. 10. The case was investigated initially by P.W. 30, but it appear that he has handed the charge only after a few days of investigation as in which he has stated that he has handed over the charge of investigation to another person on 31.12.1984, but he is the person who has initially recorded the statements of the - 11 - witnesses under Section 161 of the Code of Criminal Procedure. He has inspected the place of occurrence which has been described by him and the witnesses have stated in one version and one voice that their amount of Rs. 200/- each was extorted by the accused/appellant alone. 11. Learned counsel for the appellant has assailed the finding to the court below and it has been submitted that Court has erred in accepting the deposition of the witnesses who were neither consistent nor reliable. At best, evidence has come that the amount kept by the appellant was for public purposes, namely, for the construction of roads etc. It has been argued on this basis that the prosecution has not been able to prove the charge under Section 395 of the Indian Penal Code as none of the ingredients were present for arriving at the conclusion that the dacoity has been committed. 12. On the other hand, learned counsel for the State has supported the finding of the Court and it has been - 12 - submitted that all the ingredients under Section 395 of the Indian Penal Code has been proved. 13. For proving the charge under Section 395 of the Indian Penal Code it has to be proved that the offence was committed by a mob consisting of five or more persons. Offence under Section 395 differs from the offence under Section 392 of the Indian Penal Code, only with regard to number of accused. Other terms and conditions for arriving at the conclusion are almost the same. The prosecution is required to prove that theft was committed after having been made preparation for making hurt or wrongful restraint to any person in order to committing such theft or in order to extorting. If those ingredients are proved then the offence under Section 395 of the Indian Penal code shall be complete, but after analyzing the materials on record, it appears that all the ingredients which are required to be proved by the prosecution for reaching at conclusion that it came under the category - 13 - of Section 395 of the Indian Penal Code has not been proved. The prosecution has been able to prove that the accused has intentionally put the witness in the fear or injury and thereby he dishonestly intimidated those persons, so put them in fear to deliver the amount. So according to the evidence, findings of extortion has been fully proved in the case. The prosecution on the basis of evidence has been able to prove that the witnesses were put in fear or harm and under that fear they were forced to deliver Rs. 200/- each to the appellant. Those ingredients are sufficient to prove the charge under Section 384 of the Indian Penal code and not under Section 395 of the Indian Penal Code. So, we are of the view, that the prosecution instead of establishing the charge under Section 395 of the Indian Penal Code has been able to prove charge of extortion which has been defined in Section 384 of the Indian Penal Code and the appellant is liable to be punished only for extortion and not for dacoity. Hence, the - 14 - conviction of the appellant is altered to Section 384 of the Indian Penal Code. 14. It has been submitted by learned counsel for the appellant that the appellant has suffered much due to long disposal of the case and appeal and so he should be allowed to be released under Probation of Offenders Act or he should be released. 15. We have heard the submissions and we are of the view that the victims of the case are at the lowest end of the society, they are very poor and of advance age and a major part of their earning was extorted, so we are not inclined to grant benefit of probation of offenders Act or under Section 360 of the Code of Criminal Procedure and we are of the view, that the period undergone by him as under trial and during appeal in custody is deemed to be sufficient for the ends of justice. Accordingly, the conviction under Section 395 of the Indian penal Code is altered to under Section 384 of the Indian Penal Code and the sentence of the - 15 - appellant is modified to the period already undergone by him and it shall be deemed to be sufficient for the ends of justice. 16. With the aforesaid modification in the conviction and sentence the appeal is dismissed. The appellant is discharged from the liability of his bail-bonds. Patna High Court Dated : The 03rd January,2011 Praveen/- N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)