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PETITIONER: GURSHARAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       10/09/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  JT 1996 (8)   189

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. Mukherjee.J.      By his  judgment  and  order  dated  June  12,1993  the Additional Judge,  Designated Court,  Amritsar convicted and sentenced the  appellant under  Section 387  and 392 IPC and Section  3   of  the  Terrorist  and  Disruptive  Activities (prevention) Act, 1987 (’TADA’ for short). Aggrieved thereby the appellant  has preferred this appeal under Section 19 of TADA.      The case of the prosecution is as under: 2(a).       Nirmal  Singh  carries  on  business  in  silver ornaments and  lives with his wife Kuldip Kaur in Gali No.1, Tej Nagar,  Amritsar.  Formerly the appellant was a resident of the  same locality  and was  known to Nirmal Singh. IN or about the  month of June 1990 Nirmal Singh received a letter from the  appellant demanding   a  sum of  Rs.  2  lacs  for purchase of  weapons for the terrorists and threatening that in case  the money was not paid he (Nirmal Singh) would have to face dire consequences. Nirmal Singh  talked with  his wife over the demand and went to meet  the appellant  who   had by  then shifted  to  Gali Beghwali and  was running a wheat bran depot.  The appellant took away  the letter  from him  and told that he would meet the members  of the  group at  whose instance he had written that letter.  A few  days later  the appellant  came to  the house of  Nirmal Singh  and asked  him to  accompany him  to settle the  amount to be paid in terms of his letter.  Along with the  appellant when  Nirmal Singh  went to the depot of the former  he found  a man sitting there with a revolver in his hand.  That man  asked Nirmal Singh after putting him in fear of  death, whether  he was  prepared to  pay the amount demanded.   On his  expressing inability to pay the demanded sum a  bargain was struck whereunder Nirmal Singh was to pay Rs.70,000/- to  the appellant within three days.  Within the stipulated time  Nirmal Singh  however  could  collect  only Rs.50,000/-; and   accordingly  with the  notes wrapped in a

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polythene bag and accompanied by Manohar Singh, Nirmal Singh went to  the depot of the appellant and handed over the same to him  and undertook to pay the balance of Rs.20,000/- with in two  months.   The appellant  told him to that in case he reported the  matter to  the  police  he  would  be  killed. Though, owing  to the  threat so meted out, Nirmal Singh did not lodge any complaint with the police about the extortion, Gurmit Chand,  Inspector of Police (Operation), Amritsar got that information  on  August  1,1990  and,  on  that  basis, registered a  case against  the appellant  and one Balwinder Singh. (b)       after registering  the case  Gurmit Chand  took up investigation and  rended the  house  of  the  appellant  on August 2,1990  and arrested  him. On interrogation he made a statement that  he had  kept concerned  currency notes worth Rs.20,000/- under  bundles of wheat bran in his deposit: and pursuant  thereto   two  bundles   of  currency  notes  each containing  Rs.10,000/-  were  recovered  therefrom.  Gurmit Chand seized  those  bundles  of  currency  notes    in  the presence of  Manohar Singh  (P.W.2), who had accompanied the police party.  On completion  of investigation  he submitted the charge sheet against the appellant. 3    To  prove   its  case  the  prosecution  examined  five witnesses, namely Kuldip Kaur (P.W.1), Manohar Singh (P.W.2) Nirmal Singh  (P.W.3), inspector  Gurmit Chand  (P.W.4)  and inspector Rattan Lal (P.W.5).  Of them P.W.1) wife of Nirmal Singh, did  not  fully  support  the  prosecution  case  and Manohar Singh  (P.W.2) To  all for  which both  of them were declared hostile. 4.    The  case made  out by  the appellant, earlier pleaded not qulity  to the  charges levelled against him and claimed to be  tried, in  his examination  under Section 313 Cr.P.C. was that  Nirmal Singh  was a habitual during and frequently best his  wife. A  few days before his arrest , Nirmal Singh had beaten  his wife while under the influence of liquor and he issue  he had  a quarrel with Nirmal Singh and his father in course  of which  they exchanged  blows.  Offended by his such interference  in their  family affairs NIrmal Singh and his father  got the case falsely registered against him with the help  of a  retired police  officer, in  support of  his above defence the appellant examined Surinder Singh (D.W.1) 5.   On perusal  of the  impugned judgment  we find that the trial judge  has discussed the entire evidence on record and given  detailed  reasons  for  accepting  the  case  of  the prosecution in preference to that of the defence. 6.    We  have the learned counsel appearing for the parties at length  and gone  through the  entire evidence on record. From the evidence of Nirmal Singh we find that he reproduced the prosecution case detailed earlier and that though he was cross   examined at length, the defence could not succeed in discrediting him  in any  way.   Though Kuldip Kaur (P.W.1), turned hostile she partly supported the prosecution case and corroborated the  evidence of  her husband  when she  stated that she  had found her husband disturbed and when asked the reason therefore, he disclosed that he had received a letter demanding money form him. She however did not state that her husband had  told the name of the person who made the demand but, later  on  she  testified  that  Gursharan  Singh  (the appellant) had  come to their house and that her husband had a talk  with the  appellant.   Her further evidence on being cross examined  by the  prosecution, is that her husband had told him that he had paid ransom to the appellant. 7.    To  prove the  alleged recovery of Rs.20,000/-, out of the amount  of Rs.50,000/-  paid to  the appellant  form his depot the  prosecution relied  upon the  evidence of the two

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Inspectors of Police as Manohar Singh who was a signatory to the recovery  memo, turned  hostile. The oral testimonies of the above  two witnesses  coupled with  the  contemporaneous documents which  they prepared  in respect of the disclosure statement of the appellant (Ext.PD)_ and the recovery of the currency notes  (Ext.PE) pursuant  thereto fully support the prosecution case  and we  find no reason to disbelieve their evidence. It  is, of course, true that in the absence of any marks of  identification on those currency notes in order to connect then with the notes which were handed over by Nirmal Singh  to   the  appellant,  it  cannot  be  said  that  the prosecution case  stands conclusively  proved solely  on the basis of  the above  recovery, but  the disclosure statement made by  the appellant  and the  recovery pursuant   thereto substantially   and    the   recovery    pursuant    thereto substantially corroborates the testimony of Nirmal Singh. 8.   Coming now  to the  defence case  and the  evidence  of Surindar  Singh   in  support  thereof,  we  find  from  the uncontroverted evidence of Kuldip Kaur, that at the material time the  appellant had  shifted his  residence  from  their locality and  the other evidence on record shows that he was then a  resident of Gali Baghwali.  There was, therefore, no opportunity for  the appellant  to see  Nirmal Singh and his wife fighting  in their  house and consequently the question of his  intervention therein  could not have arisen. It must therefore be  help that  the defence  story as  given out by D.W.1 is untrue. 9.   For the foregoing discussion we are of the opinion that the trial  judge was  fully justified in concluding that the prosecution succeeded  in proving  its case. The trial Judge however was  not justified  in convicting the appellant both under Section  387 and  Section 392  IPS, as Section 390 IPC lays down  that in  all robberies  there is  either theft or extortion: and  that necessarily means that is person cannot be convicted  both for  extortion and  robbery, which  is  a special aggravated  form of  the former.  As in  the instant case, Nirmal  Singh was  not induced to pay the money on the day he  was put  on fear  of instant  death but  a few  days later, he cannot be said to have committed ’’robbery’ within the meaning of Section 390 IPC for one of the ingredients of this offence  is that  the offender  ’induces the  person so put in fear then and there (emphasis supplied) to deliver up the  thing   extorted".     Consequently   the   appellant’s conviction under  Section 392 IPC for committing robbery has got to be set aside. 10.  For the  forgoing discussion  we uphold  the conviction and sentence  of the  appellant under Sections 387 IPC and 3 of TADA  but set  aside his  conviction and  sentence  under Section 392 IPC.      The appeal is thus disposed of.