Point of Law: Criminal Law - Extortion - Conviction Modified - It is established that appellant went at house of complainant called him outside and started abusing him and demanded money and also fired a shot in air - Effect of non production of witness has already been considered by trial Court and accused has been acquitted from charges under Section 427 I.P.C. due to this.

JUDGMENT :

Syed Aftab Husain Rizvi, J.

1. Heard Sri Raj Bahadur, Amicus Curie, for the appellant and learned A.G.A. for the State.

2. This criminal appeal arises out of judgment and order dated 13.01.1992 passed by the learned Special Judge (D.A.A. Act), Jhansi in Special Case No.11 of 1991, Case Crime No.16 of 1991, under Sections 387, 504, 506, 427 I.P.C., Police Station-Moth, District-Jhansi, convicting the appellant (accused) under Section 387 I.P.C. and sentencing him to undergo rigorous imprisonment for 03 years.

3. The prosecution story in brief is that on 29.01.1991 at about 10:30 P.M., accused Girish Kumar Tiwari along with one unknown person came at the house of the complainant Ramesh Chandra, situated in Mohalla Katra Bazar, Town and P.S. Moth and called the complainant. As soon as the complainant reached, then accused started to abuse him asked to pay Rs.5,000/-. The complainant showed his inability to pay such huge amount, then accused fired shot from country made pistol in air with a view to threaten the complainant. Hearing the noise the neighours came out of their houses but they again went inside their houses hearing the sound of firing made by country made pistol. At that time witnesses Awadha Bihari, Munna Khan and Babloo who were passing through from there tried to impress the accused. Accused and his associate threatened them. Accused threatened the complainant to pay the said amount by 4 P.M. tomorrow else he will be shot and any member of his family will be kidnapped. The witness Babloo again intervened, then accused went to Motor stand, Moth and threw the betel shop of Babloo on the ground causing damages to Babloo.

A written report to this affect scribed by the complainant himself submitted at Police Station Moth same day at 11:45 P.M., on the basis of which case got registered under Sections 387, 427, 504 and 506 I.P.C. The Investigating Officer recorded the statements of the witnesses inspected the site and prepared the site plan and after completing the investigation submitted the charge sheet against accused Girish.

The learned trial court framed charges against the accused Girish under Sections 387 and 427 I.P.C.. The accused denied the charges and claimed for trial. The prosecution produced four witnesses. In his statement under Section 313 Cr.P.C. the accused denied the prosecution allegations and claimed to have been falsely implicated due to enmity. He has further stated that he had a dispute with Iddu and Kailash the owners of the hotel. Ramesh is friend of Iddu and Kailash and all of them have falsely got implicated him in collusion with the police. No evidence in defence has been produced by the accused. The learned trial court after hearing the arguments by the impugned judgment held the accused guilty of charge under Section 387 I.P.C., while acquitted him from charge under Section 427 I.P.C.

4. Learned counsel for the appellant contended that in order to constitute an offence under Section 387 I.P.C. there are to be some visible over act. It is alleged that appellant firstly demanded Rs.5,000/-from the complainant and thereafter fired a shot in the air from country made pistol, hence, the case is not covered by Section 387 I.P.C.. It is further contended that all the witnesses named in the F.I.R. are chance witnesses and there is no witness of vicinity, hence the oral testimony of PW-2 Awadh Bihari is not reliable. It is further contended that Babloo was an important witness but he has not been examined by the prosecution and accused has been acquitted of the charge under Section 427 I.P.C.. The place of occurrence is a residential area but no person of the vicinity has been named as a witness nor examined. Accused has been falsely implicated at the instance of hotel owners Iddu and Kailash who are inimical to the accused and complainant being friend of Kailash and Iddu in collusion with the police has falsely implicated the accused. Lastly, it is contended that the trial Court has failed to ap