SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Kallu @ Narendra vs State Of M.P. on 26 July, 2018

1

THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************

SB:- Hon’ble Shri Justice G. S. Ahluwalia

Criminal Appeal 306/2012

Kallu alias Narendra

Vs.

State of MP

Shri D. K. Pathak, counsel for the appellant.
Shri Devendra Chaubey, Public Prosecutor for the respondent/ State.

JUDGMENT

(Delivered on 26/07/2018)
This Criminal Appeal under Section 374 of CrPC has been filed

against the judgment and sentence dated 02/04/2012 passed by

Second Additional Sessions Judge, Dabra, District Gwalior in Sessions

Trial No.162/2011, by which the appellant has been convicted under

Section 384 of IPC and has been sentenced to undergo the rigorous

imprisonment of two years and fine of Rs.1,000/-with default

imprisonment.

(2) The necessary facts for the disposal of the present appeal in

short are that the complainant lodged a report at Police Station

Dabra, District Gwalior on 12/11/2010 at about 16:00, on the

allegation that the appellant is her neighbor and the appellant has

continuously committed rape on her and had extended a threat that

he has prepared a film in his mobile, which he will disclose to her

husband and under this threat, he had taken an amount of

Rs.2,34,000/- in cash, as well as the gold ornaments including two

chains, one earring, one necklace, eight bangles, one ”mangalsutra”
2

and one ladies ring. The prosecutrix had given these articles to the

appellant without disclosing it to her husband. Later on, when the

prosecutrix informed her husband about it, then the husband of the

prosecutrix demanded his money and articles back, but the appellant

did not return the same, however, he had given in writing. The

husband of the prosecutrix managed to arrange an amount of

Rs.1,30,000/- after selling his property and got some of the articles

released from mortgage, however, the remaining articles and an

amount of Rs.2,34,000/- were not returned. Whenever the amount

and the articles were demanded, the appellant had extended a threat

to kill and had also extended a threat that the complainant should

leave the locality. On the report of the complainant, police registered

Crime No.913/2010 for offence under Sections 376, 384/34 of IPC

against the appellant and one Ramkumar Gupta. The articles were

seized. The appellant and the co-accused Ramkumar Gupta as well as

the prosecutrix were sent for medical examination and after

completing the investigation, the police filed the charge sheet. The

trial Court framed charges under Sections 376, 384, 506(II) of IPC

against the appellant and under Section 506(II) of IPC against the co-

accused Ramkumar Gupta.

(3) The appellant and the co-accused Ramkumar Gupta abjured

their guilt and pleaded not guilty.

(4) The prosecution,in order to prove its case, examined prosecutrix

(PW1), Dr. Smt.P. Saxena (PW2), Komal Jain (PW3), Hasan Khan

(PW4), Hottam Singh (PW5), Balveer Singh Jat (PW6), D.C.Arya

(PW7), Narendra Singh (PW8), Dr. Harish Arya (PW9), Ripudaman

Singh Rajawat (PW10), Munish Rajoriya (PW11) and RP Tiwari
3

(PW12). The accused persons did not examine any witness in their

defence.

(5) The trial Court by judgment dated 02/04/2012 passed in

Sessions Trial No.162/2011, acquitted the appellant of charges under

Sections 376, 506(II) of IPC and convicted him for offence under

Section 384 of IPC and sentenced him to undergo the rigorous

imprisonment of two years and fine of Rs.1,000/- with default

imprisonment. The co-accused Ramkumar Gupta was acquitted in

toto.

(6) The acquittal of the appellant for offence under Sections 376,

506(II) of IPC and acquittal of the co-accused Ramkumar Gupta in

toto, has not been challenged, either by the prosecution or by the

complainant. Therefore, any reference to the remaining allegations

made against the appellant as well as any reference to the co-accused

Ramkumar Gupta, would be for the purpose of disposal of the present

appeal without effecting their acquittal.

(7) The prosecutrix (PW1) has stated that the appellant was

residing behind her house. On 12/11/2011 at about 6 -7 pm she had

gone to the Kalimata Temple. On the said day, she went to the house

of one Meera Sahu as she was invited by her in her house for

prescribing certain Puja articles. When she went to the room, as

instructed by Meera Sahu, she found that it was completely dark and

the appellant and co-accused Ramkumar Gupta were already sitting in

the said room. Meera Sahu left the prosecutrix in the room with the

instruction that she should sit there. When Meera Sahu left the room,

the appellant caught hold of the prosecutrix and the co-accused

Ramkumar Gupta locked the door. The co-accused Ramkumar Gupta
4

tied her hands and gagged her mouth and the appellant committed

rape on her, without her consent. After throwing the prosecutrix on

the cot, when the appellant was committing rape on her, at that time,

the co-accused Ramkumar Gupta prepared a mobile film and

thereafter, the co-accused Ramkumar Gupta also committed rape on

her. At about 07:00 pm, the prosecutrix came back to her house and

the accused persons had threatened her, that in case if she narrates

the incident to anybody, then she would be defamed as they have

taken the photographs. After four- five days of the incident, the

appellant called the prosecutrix on the roof and asked that he is need

of certain money and when the prosecutrix replied that she does not

have money, then the appellant threatened that he would defame the

prosecutrix and would get her photographs printed in the newspapers.

An amount of Rs.1,04,000/- was kept in the house for the purpose of

plot and the said amount was given to the appellant by the

prosecutrix. Thereafter, the appellant had taken certain ornaments on

the pretext that he would return the same. One pair of earring, one

necklace, two chains, one mangalsutra, eight bangles of gold, etc.

were given. However, the atrocities of the appellant continued to

increase. Thereafter, the prosecutrix informed the incident to her

husband and the husband of the prosecutrix went to the house of the

appellant and demanded his money back, at that time, the appellant

informed that he has already mortgaged all the articles. The husband

of the prosecutrix sold his land for a consideration amount of

Rs.1,30,000/- and got certain ornaments released from mortgage.

When the husband of the prosecutrix went to the house of the

appellant for demanding his remaining ornaments as well as the cash,
5

then the appellant as well as the co-accused Ramkumar Gupta

refused to return the same and accordingly, they went to the police

station. At the instance of a police personnel, the appellant gave in

writing to the husband of the prosecutrix and the appellant also

admitted in front of the police personnel that he has taken the

ornaments from the prosecutrix. The prosecutrix, thereafter,

approached the higher authorities, but no action was taken and the

written document, which was executed by the appellant, was thrown.

The prosecutrix made a complaint in Jansunwai to IG (Police), who

instructed the SP to take action and accordingly, the FIR was lodged

which is Ex.P1. She was sent for medical examination. On the next

day, the police came on the spot. Spot map Ex.P2 was prepared and

the statement of the prosecutrix was recorded. She further stated

that, the appellant had committed rape on her twice, whereas the co-

accused Ramkumar Gupta had committed rape on her once.

(8) The prosecutrix (PW1) was cross-examined in detail. In cross-

examination,she admitted that in the FIR Ex. P.1 there is no reference

of Meera Sahu. There was also no reference in the FIR Ex.P1 that the

prosecutrix went to the house of Meera Sahu on the invitation of

Meera Sahu. She further admitted that the appellant and the co-

accused were sitting in the room of the house of Meera Sahu, was not

mentioned in the FIR Ex.P1. However, she could not explain the

reason. She further stated that she had informed the police that after

Meera Sahu came out of the room, the appellant caught hold of the

prosecutrix from behind and her hands were tied by the co-accused

Ramkumar Gupta and her mouth was gagged and the appellant

committed rape on her without her consent, but could not explain the
6

omission in the F.I.R., Ex. P.1. It was further admitted by her that, in

the FIR Ex.P1, the fact that the co-accused had prepared mobile clip,

is also not mentioned. She further admitted that the allegation of

committing rape by the co-accused Ramkumar Gupta is also not

mentioned in the FIR Ex.P1. She also admitted that there is an

omission in the FIR ExP1 that any threat was given by the appellant

as well as the co-accused Ramkumar Gupta. She further admitted

that there is an omission in her FIR ExP1 to the effect that the

appellant had called the prosecutrix on the roof after four- five days of

the incident and had asked for the money, with a promise that he

would return the same. She further admitted that there is an omission

in the FIR ExP1 that when she told the appellant that she is not in

possession of cash amount, then the appellant had extended a threat

to defame her. She further admitted that there is an omission in F.I.R.,

Ex.P.1, with regard to the fact that an amount of Rs.1,04,000/- which

was kept in the room for the purpose of plot, was given to the

appellant. She further admitted that there is an omission in her FIR

ExP1 to the effect that the appellant used to block her way in the

market. She further admitted that there is an omission in her FIR

ExP1 that the her husband had got certain ornaments released from

mortgage by selling of his land for consideration of Rs.1,30,000/-. She

further admitted in her cross-examination that on 24/05/2010, she

had filed a criminal complaint Ex.D.2 before the Court of JMFC, Dabra

against Meera Sahu, the appellant as well as co-accused Ramkumar

Gupta. She further admitted that in the complaint, Ex.D.2, she did not

make any allegation with regard to commission of rape. She also

explained that because of apprehension of defamation in the society,
7

the said allegation was not mentioned in the complaint Ex.D.2. She

further expressed her ignorance about the outcome of the said

criminal complaint Ex.D.2. She further denied that after registration of

FIR, she got the criminal complaint dismissed for want of prosecution.

She further admitted that the copy of the complaint is Ex.D2. She

further stated that the appellant had admitted in writing before the

police personnel that he had taken money as well as the ornaments

from the prosecutrix, however, she further stated that she has not

brought the said document. She also could not tell the name of police

personnel before whom the said written admission was made by the

appellant. She further stated that it is incorrect to say that the

appellant had committed rape on her frequently for a period of one

year and could not explain as to why such allegation was made in the

FIR ExP1. She further denied that the incorrect allegations have been

made because of civil transaction with the appellant. She further

denied that the co-accused Ramkumar Gupta had resolved their civil

dispute, by acting as a mediator.

(9) Dr.Smt.P.Saxena (PW2) had medically examined the prosecutrix.

As the appellant has already been acquitted of the charge under

Section 376 of IPC, therefore, the evidence of Dr. Smt. P. Saxaena

(PW2) is not to be considered in detail.

(10) Komal Jain (PW3) has stated that there was some civil

transaction between the husband of the prosecutrix and the appellant

and both were not relying each other and accordingly, the husband of

the prosecutrix Balveer Singh Jat (P.W.6) and Hottam (P.W.5) had

given an amount of Rs.1,30,000/- to this witness. Certain articles

were brought by the appellant as well as by the co-accused
8

Ramkumar Gupta which were checked by Balveer Singh Jat (P.W.6),

husband of the prosecutrix and Hottam (P.W.5). The husband of the

prosecutrix Balveer Singh Jat (P.W. 6) and Hottam (P.W.5) took away

their ornaments and the said amount of Rs.1,30,000/- was returned

to the appellant as well as to the co-accused Ramkumar Gupta in the

presence of this witness. In cross-examination, this witness has

stated that Balveer Singh Jat (P.W.6) had informed him that there is

some civil dispute with the appellant and had also informed that

certain articles were with the appellant and an amount of

Rs.1,30,000/- was given by the husband of the prosecutrix Balveer

Singh Jat (P.W.6) and Hottam (P.W.5) to the appellant and the

appellant had returned the gold ornaments to the husband of the

prosecutrix Balveer Singh Jat (P.W.6) and Hottam (P.W.5) and

thereafter, the matter came to an end.

(11) Hasan Khan (PW4) was posted as Head Constable in DRP Line,

Gwalior. Constable Kamta Prasad had brought a sealed packet from

CHC, Dabra which was seized by this witness by seizure memo Ex.P4.

Thereafter,Constable Pramod Sharma had also brought certain articles

from CHC, Dabra concerning co-accused Ramkumar Gupta, which

were seized by this witness, vide seizure memo Ex.P5.

(12) Hottam Singh (PW5) has stated that the husband of prosecutrix

Balveer Singh Jat (P.W.6) had called him at Dabra, where he was told

by the husband of the prosecutrix (P.W.6) as well as by the

prosecutrix (P.W.1), that the house of the appellant is situated behind

their house and the prosecutrix (P.W.1) used to visit the temple and

the appellant had committed rape on her and the co-accused

Ramkumar Gupta had taken the photographs and by threatening to
9

make the photographs public, both of them had committed rape on

her and they used to threat that in case if she does not give money,

then they would defame her and an amount of Rs.2,34,000/- as well

as some silver and gold ornaments were taken by the appellant and

the co-accused and when such articles were demanded back, then the

appellant and the co-accused informed that those articles have been

mortgaged by them. They also demanded money for return of amount

and demanded Rs.1,30,000/- and alleged that the ornaments will be

returned thereafter. This witnesses expressed his disbelieve and said

that he has no faith on the appellant and the co-accused, therefore,

an amount of Rs.1,30,000/- was given in front of Komal Jain (P.W.3)

for getting the ornaments released. Some ornaments were returned

back by Komal Jain (P.W.3) and he promised to return the remaining

ornaments and amount within 8-10 days. Thereafter, the appellant

and co-accused demanded further amount of Rs.70,000/- for

returning the remaining ornaments. In cross-examination, he

admitted that he has no relations with the husband of the prosecutrix.

He further stated that although he had told the police that the co-

accused Ramkumar Gupta had taken the photographs but could not

explain as to why the said fact is not mentioned in case diary

statement Ex.D3. He also could not explain the omission of threat

given by the appellant and the co-accused in his case diary statement

Ex.D.3. He also admitted that there is an omission in his case diary

statement to the effect that he was told by the prosecutrix that the

appellant and the co-accused had taken an amount of Rs.2,34,000/-

and could not explain the reason for the said omission in his case

diary statement Ex.D3. He also admitted that he does not know that
10

who had mortgaged the ornaments. He stated that he was informed

by the prosecutrix that the appellant and the co-accused have taken

the money from her. He further stated that the amount was given to

Komal Jain (PW3) for getting the ornaments released.

(13) Balveer Singh Jat (PW6) is the husband of the prosecutrix. He

has reiterated the allegation of rape, which was told to him by the

prosecutrix. He further stated that he was informed by the prosecutrix

that under the threat of making the photographs public, the appellant

and the co-accused have taken an amount of Rs.2,34,000/- as well as

the ornaments. He further stated that when he was informed by the

appellant and the co-accused that the ornaments have been

mortgaged, then he informed the appellant and the co-accused that

either they should get the ornaments released, otherwise he would

get the same released. The appellant and the co-accused when

refused to get the ornaments released and demanded money, then

this witness expressed that he does not believe the appellant and the

co-accused, therefore, through Hottam Singh (PW5) he got certain

articles released from Komal Jain (P.W.3) after giving some amount

and the appellant and the co-accused had informed that the

remaining amount will be returned after sometime and thereafter,

they refused to return the same. This witness was cross-examined in

detail and he also admitted certain omissions in his case diary

statement Ex.D4 with regard to preparation of MMS of his wife as well

as the rape by the appellant and co-accused Ramkumar Gupta.

(14) D.C.Arya (PW7) had medically examined the appellant and had

found that the appellant is capable of committing sexual intercourse.

The MLC report is Ex.P6.

11

(15) Narendra Singh (PW8) had seized the clothes, which were

brought by Lady Constable from CHC, Dabra, vide seizure memo

Ex.P7.

(16) Dr. Harish Arya (PW9) had medically examined the co-accused

Ramkumar Gupta. Since the co-accused Ramkumar Gupta has already

been acquitted, therefore, there is no need to consider the evidence

of Dr. Harish Arya (PW9).

(17) Ripudaman Singh Rajawat (PW10) has stated that Balveer Singh

Jat (PW6) along with wife (prosecutrix) had come to the police station

and had informed that the appellant had taken the ornaments and

Rs.2,34,000/- from his wife, but in order to protect their family pride,

they do not want to lodge the report. Then the appellant was called

and an affidavit was given by the appellant admitting the fact that he

would return the amount in instalments. Although this witness has

stated that the said affidavit has been filed in the case but it was not

marked as exhibit. This witness was cross-examined and in cross-

examination, he has specifically stated that the prosecutrix (P.W.1)

and her husband Balveer Singh Jat (P.W.6) had informed him about

some transactions but no allegation of rape was made against the

appellant.

(18) Munish Rajoriya (PW11) and RP Tiwari (PW12) are the

Investigating Officers.

(19) Thus, it would appear that in the FIR, it was mentioned by the

prosecutrix that she was sexually violated by the appellant and the

co-accused Ramkumar Gupta and the co-accused Ramkumar Gupta

had prepared an MMS and under the threat of making the said MMS

viral, the appellant had forced the prosecutrix to give an amount of
12

Rs.2,34,000/- and certain gold ornaments. However, in the criminal

complaint which was filed by the prosecutrix, there is no mention of

rape or preparation of MMS. She has also stated that she went to the

police station and had requested a police personnel to resolve the

dispute. In the complaint, she had alleged that Meera Sahu as well as

the appellant and the co-accused Ramkumar Gupta had convinced her

that in case if the prosecutrix visits a temple in the night all alone,

then her family would be benefited. Then, on 10/03/2010 some

”Vibhuti” (masculine) was given by Smt. Meera Sahu with an

instruction that one packet of ”Vibhuti” (masculine) should be

consumed by her and second packet should be put by her on her head

at the time of sleeping, then her wishes would be fulfilled. In case, if

the prosecutrix brings a cash amount and ornaments in the night and

put it in the temple, then the cash amount would get doubled and

accordingly, the cash amount of Rs.2,34,000/- and the ornaments

were kept in the temple but because of witchcraft played by the

accused persons, the mind of the prosecutrix stopped working and

they took away the ornaments as well as cash from the temple. Thus,

it is clear that that there is a serious dispute with regard to very

genesis of the incident and it is not clear that under what

circumstances the prosecutrix and her husband gave an amount of

Rs.2,34,000/- and ornaments to the appellant or to the co-accused. It

has also come on record that the husband of the prosecutrix, namely,

Balveer Singh Jat (PW6) had given an amount of Rs.1,30,000/- for

getting his ornaments released from mortgage. If the appellant had

forcibly taken away the ornaments and the amount from the

prosecutrix, then under no circumstance, the husband of the
13

prosecutrix would have given an amount of Rs.1,30,000/- to Hottam

Singh for getting it released from mortgage. Hottam Singh (PW5) has

stated that there was some civil dispute between the appellant and

the husband of the prosecutrix and, therefore, he had acted as a

mediator and since he did not have belief over the appellant,

therefore, they were required to do the transaction in the presence of

Komal Jain. Komal Jain (PW3) has also stated that Hottam Singh

(PW5) and Balveer Singh Jat (PW6) had come to his house and the

appellant as well as the co-accused Ramkumar Gupta had also come

to his house. The appellant and the co-accused Ramkumar Gupta had

brought certain ornaments which were identified by husband of the

prosecutrix Balveer Singh Jat (PW6) and Hottam Singh (PW5) and an

amount of Rs.1,30,000/- was given to the appellant and the co-

accused Ramkumar Gupta. Thus, it appears that there might be a civil

dispute between the appellant and the husband of prosecutrix. Some

ornaments might have been given to the appellant by the husband of

the prosecutrix or by the prosecutrix herself and when such dispute

could not be resolved amicably between the husband of the

prosecutrix or the prosecutrix and the appellant, it appears that the

exaggerated allegation of commission of rape and thereafter,

compelling the prosecutrix to give an amount of Rs.2,34,000/- along

with gold ornaments was made. The prosecutrix (PW1) and Balveer

Singh Jat (PW6) have specifically stated that before lodging a FIR they

had gone to the police station and had requested a police personnel to

intervene in the matter and accordingly, the appellant had executed a

document. Ripudaman Singh Rajawat (PW10) who was posted as ASI

at Police Station Dabra, has been examined by the prosecution itself.
14

He has stated that the prosecutrix and her husband had come to the

police station and had informed that an amount of Rs.2,34,000/- and

the ornaments were with the appellant and, therefore, the matter

may be resolved. He also admitted that the allegation of rape was not

disclosed either by the husband of the prosecutrix Balveer Singh Jat

(PW6) or the prosecutrix (PW1). Even the trial Court has disbelieved

the version of the prosecutrix so far as it relates to commission of

rape. It is the case of the prosecutrix that initially she was sexually

violated by the appellant and the co-accused Ramkumar Gupta and

the co-accused Ramkumar Gupta had prepared the MMS of the

prosecutrix and under the threat of making it viral, the appellant and

the co-accused Ramkumar Gupta had forced the prosecutrix to give

an amount of Rs.2,34,000/- as well as the ornaments. When the basic

allegation of commission of rape, preparation of MMS is disbelieved,

then it is clear that there was no pressure on the prosecutrix to give

away an amount of Rs.2,34,000/- and gold ornaments. Thus, it is

clear that the prosecutrix (PW1) and her husband Balveer Singh Jat

(PW6) had suppressed the basic genesis of transaction. Under these

circumstances, this Court is of the considered opinion that in the light

of the evidence of prosecutrix (PW1), Komal Jain (PW3), Hottam

Singh (PW5), Balveer (PW6) and Ripudaman Singh Rajawat (PW10), it

appears that there was some civil transaction between Balveer Singh

Jat (PW6) as well as the prosecutrix (PW1) and the appellant and it

appears that the appellant had refused to return the cash and the

ornaments to the prosecutrix (PW1) and to her husband Balveer

Singh Jat (PW6). There are material omissions and contradictions in

the criminal complaint Ex.D2 which was filed by the prosecutrix as
15

well as the FIR ExP1, which was lodged by the prosecutrix. Once the

allegation of commission of rape, preparation of MMS and pressurizing

the prosecutrix is disbelieved, then the very basis for taking away an

amount of Rs.2,34,000/- as well as the ornaments forcibly under the

pressure, from the prosecutrix also goes away, then only conclusion

which can be drawn is that because of some reason, the prosecutrix

(PW1) and her husband Balveer Singh Jat (PW6) might have given an

amount of Rs.2,34,000/- and the ornaments to the appellant and the

appellant might have refused to return the same. The question would

arise that whether it can be said that the appellant has committed an

offence under Section 384 of IPC or not ?

(20) Extortion has been defined in Section 383 of IPC which reads as

under:-

383.Extortion.–Whoever intentionally puts any
person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so
put in fear to deliver to any person any property or
valuable security or anything signed or sealed which
may be converted into a valuable security, commits
“extortion”.

Section 384 of IPC reads as under:-

”384.Punishment for extortion.–Whoever commits
extortion shall be punished with imprisonment of
either description for a term which may extend to
three years, or with fine, or with both.”

(21) Thus, it is clear that when the allegation of commission of rape

and preparation of MMS has been disbelieved by the trial Court itself,

then there was no opportunity for the appellant to extract an amount

of Rs.2,34,000/- and the ornaments from the prosecutrix. If the

prosecutrix (PW1) or her husband Balveer Singh Jat (PW6) had given

the said articles either voluntarily or under any promise, then it

cannot be said that the appellant had, in any manner, extorted the
16

amount as well as the ornaments from the prosecutrix (PW1). Even in

the complaint, Ex.D.2, there is no allegation, that the appellant had

extorted the amount of Rs.2,34,000 and the gold ornaments. The only

allegation made by her in the complaint, Ex.D.2 was that She was

allured by the appellant, the co-accused and Meera Sahu, that in case,

the prosecutrix brings the amount and cash to the temple and keep it

there, then the amount would get doubled, however, because of

witchcraft played by the appellant, the prosecutrix lost her mind and

thereafter, the amount and the articles were taken away by the

appellant from the temple. Thus, there is no allegation of extortion of

money and ornaments in the complaint Ex.D.2. Thus, it appears that

there might a civil dispute between the appellant and the prosecutrix,

and a colour of criminal case was given by the prosecutrix and her

husband.

(22) The Supreme Court in the case of Dhananjay Vs. State of

Bihar, reported in (2007) 14 SCC 768 has held as under :-

”5. Section 384 provides for punishment for extortion.
What would be an extortion is provided under Section 383
of the Penal Code in the following terms:

“383. Extortion.–Whoever intentionally puts any
person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so put
in fear to deliver to any person any property or valuable
security, or anything signed or sealed which may be
converted into a valuable security, commits ‘extortion’.”

6.A bare perusal of the aforementioned provision
would demonstrate that the following ingredients would
constitute the offence:

1. The accused must put any person in fear of
injury to that person or any other person.

2. The putting of a person in such fear must be
intentional.

3. The accused must thereby induce the person so
put in fear to deliver to any person any property,
valuable security or anything signed or sealed which
may be converted into a valuable security.

4. Such inducement must be done dishonestly.

17

7. A first information report as is well known, must be
read in its entirety. It is not in dispute that the parties
entered into transactions relating to supply of bags. The
fact that some amount was due to the appellant from the
first informant, is not in dispute. The first information
report itself disclosed that accounts were settled a year
prior to the date of incident and the appellant owed a sum
of about Rs 400-500 from (sic) Gautam Dubey (sic).

8. According to the said Gautam Dubey, however, a
sum of Rs 1500 only was due to him.

9. It is in the aforementioned premise the allegations
that Gautam Dubey and the appellant slapped the first
informant and took out Rs 1580 from his upper pocket
must be viewed.

10. No allegation was made that the money was paid
by the informant having been put in fear of injury or
putting him in such fear by the appellant was intentional.

11. The first informant, admittedly, has also not
delivered any property or valuable security to the
appellant.

12. A distinction between theft and extortion is well
known. Whereas offence of extortion is carried out by
overpowering the will of the owner; in commission of an
offence of theft the offender’s intention is always to take
without that person’s consent.

13. We, therefore, are of the opinion that having regard
to the facts and circumstances of the case, no case under
Section 384 of the Penal Code was made out in the first
information report.

(23) The Supreme Court in the case of R.S. Nayak Vs. A.R. Antulay

reported in (1986) 2 SCC 716 has held as under :-

60. “Extortion” is thus defined in Section 383, IPC:
“Whoever intentionally puts any person in fear of any injury
to that person, or to any other, and thereby dishonestly
induces the person so put in fear to deliver to any person
any property or valuable security, or anything signed or
sealed which may be converted into a valuable security,
commits extortion.”

The main ingredients of the offence are:

(i) the accused must put any person in fear of injury to
that person or any other person;

(ii) the putting of a person in such fear must be
intentional;

(iii) the accused must thereby induce the person so
put in fear to deliver to any person any property,
valuable security or anything signed or sealed which
may be converted into a valuable security; and

(iv) such inducement must be done dishonestly.

Before a person can be said to put any person in fear of any
18

injury to that person, it must appear that he has held out
some threat to do or omit to do what he is legally bound to
do in future. ”

(24) Thus,this Court is of the considered opinion, that the prosecution

has failed to prove that the appellant had intentionally put the

prosecutrix (P.W.1) in fear of injury and thus, dishonestly, induced her

to deliver the cash amount and ornaments to the appellant.

(25) Under these circumstances, this Court is of the considered view

that the prosecution has miserably failed in establishing the guilt of

the appellant for the offence under Section 384 of IPC. Accordingly, he

is acquitted of the charge under Section 384 of IPC.

(26) Resultantly, the judgment and sentence dated 02/04/2012

passed by Second Additional Sessions Judge, Dabra, District Gwalior

in Sessions Trial No.162/2011, is hereby set aside.

(27) The appellant is on bail. His bail bonds and surety bonds are

discharged.

(28) The appeal succeeds and is hereby allowed.

(G.S.Ahluwalia)
Judge

MKB
Digitally signed by MAHENDRA KUMAR BARIK

MAHENDRA
DN: cIN, oHIGH COURT OF M.P. BENCH
GWALIOR, ouP.S., postalCode474011,
stMadhya Pradesh,

KUMAR BARIK
2.5.4.20f592da990684fe30f8e1e29a4a1a9e3
451ee450d883083a8e4cc8020eee6f7cb,
cnMAHENDRA KUMAR BARIK
Date: 2018.07.26 12:56:26 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation