1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.232/99 Ramesh Krishna Mukadam and Ors. Applicants Vs. The State of Maharashtra Respondent Mr.V.T.Tulpule, Sr.Advocate a/w Smt.Shilpa G.Joshi for the Applicants Ms.S.V.Gajare,APP for State CORAM: MRS.MRIDULA BHATKAR,J. DATE : 11th SEPTEMBER,2009 P.C. . This Criminal Revision is filed against the order of conviction for the offence punishable u/s 387 r/w 114 and 119 of the Indian Penal Code . All the four accused are police personnels who were posted at Mumbai and were assigned the duty of escort in L.A.-I . On 3/8/1996 while they were on duty of escorting one accused by name Mohammad Rafique Abdul Hanif Shaikh who is accused no.1 and whose case is separated being absconding, the offence of extortion was committed . The applicants/accused escorted the accused Mohammad from Arthur Road Jail to Vasai Court and they brought him back to Arthur Road Jail on the same day. However, after attending the Court while coming the accused Mohammad was allowed by these applicants /accused to visit the house of the original complainant and the accused Mohammad threatened the 2 original complainant of his life and demanded ransom to look after his family while he was in prison under TADA. The original complainant thereafter lodged complaint against accused Mohammad and these four applicants . Interalia the offence was registered. They were tried for the offence punishable u/s 387 r/w 114 and 119 of the Indian Penal Code .All the applicants were convicted for the offence punishable u/s 387 r/w 114 of the Indian Penal Code to suffer R.I.for five years each ,fine of Rs.5,000/- each i/d to suffer R.I.for one year each and for the offence punishable u/s 119 of the Indian Penal Code to suffer R.I.for one year each ,to pay fine of Rs.2,000/- each i/d to suffer R.I. for four months. 2] This judgment and order of learned Additional Chief Metropolitan Magistrate was challenged before the learned Sessions Judge who though confirmed the conviction u/s 387 r/w 114 and 119 of the Indian Penal Code , reduced the sentence from fives years to two years u/s 387 r/w 114 of the Indian Penal Code. The said judgment is under challenge. 3] The learned counsel Mr.Tulpule appearing for the applicants /accused has submitted that there is no evidence to show that the applicants have committed any act of extortion 3 punishable u/s 387 r/w 114 and 119 of the Indian Penal Code. It is submitted that accused no.1 Mohammad was absconding throughout the trial and he was the principal accused who actually threatened the original complainant.No evidence is tendered by the prosecution to fix the identity of accused no.1 as the same person who had visited the house of the complainant. He further submitted that though the offence had taken place on 3/8/1996 the complainant gave written complaint on 26/8/1996 to the police station and thereafter the offence was registered in September, 1996. He produced extract of the court register showing the entry of the production of accused no.1 Mohammad in the court at 13 hours and the entry of taking him out of the Court a 18 hrs. on 3/8/1996. The learned counsel further submits that there is lot of time consumed in going to Vasai Court from Arthur Road Jail which situates at Byculla. The timing which is given in F.I.R.as alleged by the prosecution of the extortion at 6.30 pm. was not possible in view of the distance and mode of transport i.e.public transport from Vasai to Malad where the house of the complainant situates are taken into account. He has further submitted that the after registration of the crime i.e. on 21/9/1996, supplementary statement of the complainant was recorded and in the said statement also he did not mention any role played by these 4 applicants /accused for the offence of extortion and no evidence is adduced against the accused. He has submitted that in this case no amount was handed over. 4] The learned A.P.P.after going through the record and the evidence has fairly conceded that on the point of extortion no evidence is found against the applicants/accused. She has submitted that there is evidence showing that the applicants / accused have deviated from their duty of escorting the accused. 5] Perused the evidence and the judgments of both the Courts. 6] There is evidence to show that the offence of extortion punishable u/s 387 has taken place. However, the complainant has taken the name of one Mohammad and nowhere in the complaint has mentioned the names of accused /applicants. No witness has attributed any act of utterance or any threat given to the applicants/accused to constitute the offence of extortion. It appears that the learned J.M.F.C. and the learned Sessions Judge while appreciating the evidence tendered by the prosecution on the point of section 387 r/w section 114 and 119 of the Indian Penal Code were 5 confused in assessing evidence of extortion and mixed up the conduct of the applicants /accused and the discipline expected from the police personnels while on duty of escort. It is to be noted that if there is any dereliction from the duty then it should not be replaced and cannot be considered as an offence under Indian Penal Code .Such appreciation of evidence on the wrong track leads erroneous and illegal conclusion .The learned Judges have committed mistake in holding the accused/ applicants guilty for the offence of extortion . 7] The Revision Application is allowed. 8] Judgment and order dated 22nd December,1998 passed by the learned Additional Chief Metropolitan Magistrate and dated 27th August, 1999 passed by the learned Additional Sessions Judge,Mumbai of convicting the applicants /accused is quashed and set aside. 9] The applicants /accused are acquitted from all the charges. Their bail bonds stand cancelled. (MRS.MRIDULA BHATKAR,J.)