# Girish (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Criminal Appeal No. 157 of 1992
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girish-in-jail-v-state-of-u-p-47374
- **Pages:** 4

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Section 387 - Extortion - Firing shot
from country made pistol in air with a
view to threaten the complainant -
Victim/informant corroborated averment
of FIR by his examination-in-chief - One
another eye witnesses also corroborated
complainant - Trustworthiness of the
witnesses discussed - Witnesses were
found independent - Sentence of three
years rigorous imprisonment ordered -
Validity challenged - Held, there is no
material on record which establish any
enmity or ill will of these witnesses with
the accused-appellant and there is no
reason to disbelieve these witnesses. They
are trustworthy and reliable - Findings
recorded by the learned trial Court is well
reasoned - There is no infirmity or
perversity in the findings recorded by the
learned trial Court in holding the accused
guilty under Section 387 I.P.C. - However,
High Court modified the sentence of three
years R.I. and converted it into two years.
(Para 6, 9 and 10)
Criminal Appeal partly allowed. (E-1)

## Text

124 INDIAN LAW REPORTS ALLAHABAD SERIES
Meerut Region, Meerut is also directed to
ensure that the petitioner is allowed to join
in the Institution as Teacher in Lecturer
Grade in Music (Instrument) and be given
all
consequential
benefits. The
Joint
Director of Education, Meerut Region,
Meerut shall also ensure that the aforesaid
exercise is completed within two months
from today.

26. With the aforesaid directions, the
writ petition is allowed.

27. The Joint Registrar (Compliance)
shall send a copy of this order to the Joint
Director of Education, Meerut Region,
Meerut within 24 hours.
----------
(2021)09ILR A124
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 157 of 1992

Girish ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Vivek Shandilya, Sri Raj Bahadur, Sri
Sudama Ji Shandilya

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code, 1860
- Section 387 - Extortion - Firing shot
from country made pistol in air with a
view to threaten the complainant -
Victim/informant corroborated averment
of FIR by his examination-in-chief - One
another eye witnesses also corroborated
complainant - Trustworthiness of the
witnesses discussed - Witnesses were
found independent - Sentence of three
years rigorous imprisonment ordered -
Validity challenged - Held, there is no
material on record which establish any
enmity or ill will of these witnesses with
the accused-appellant and there is no
reason to disbelieve these witnesses. They
are trustworthy and reliable - Findings
recorded by the learned trial Court is well
reasoned - There is no infirmity or
perversity in the findings recorded by the
learned trial Court in holding the accused
guilty under Section 387 I.P.C. - However,
High Court modified the sentence of three
years R.I. and converted it into two years.
(Para 6, 9 and 10)
Criminal Appeal partly allowed. (E-1)

(Delivered by Hon'ble 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
9 All. Girish Vs. State of U.P.
125
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 appreciate the evidence on
record and finding of conviction is
perverse.

5. Learned A.G.A. submitted that
informant/victim has fully corroborated the
prosecution case and an independent
witness, Awadh Bihari has also supported
the informant. The accused has made a
demand of Rs.5,000/- and fired a shot in
126 INDIAN LAW REPORTS ALLAHABAD SERIES
the air and also threatened the informant
with death, so offence under Section 387
I.P.C. is made out. The judgment and
finding recorded by the trial Court is just
and proper and there is no illegality in the
impugned order.

6. To substantiate the charges,
prosecution has produced 03 witnesses.
PW-1
Ramesh
Chandra
is
the
victim/informant and he has corroborated
averments made in the First Information
Report by his examination-in-chief. He has
also proved the written information (Tehrir)
Ex-Ka-1. From his testimony, it is proved
that on 29.01.1991 at about 10:30 p.m. the
accused (appellant) came at the house of
informant and called him outside and
started
abusing
the
informant
and
demanded Rs.5,000/-, he also fired shot in
the air from a country made pistol and
threatened the informant to give Rs.5,000/-
by the next day failing with he will be
killed or any other member of his family
will be kidnapped. Accused has failed to
establish any enmity with complainant or
motive for false implication. Witness has
been cross examined at length by the
defence but there is no major discrepancy
or contradiction in his cross examination
which makes his testimony unreliable. PW2 Awadh Bihari is the eye witness and he
has also corroborated the complainant
Ramesh Chandra. This witness has also
been cross examined by the defence and
there is nothing in his cross examination
which makes his oral statement unreliable.
Although, he is not neighbour but he is
resident of same locality where the
occurrence has took place and it has come
in his cross examination that he lives 3 to 4
furlong away from the house of Ramesh
Chandra, so his presence on the spot cannot
be said to be unnatural or improbable. His
testimony cannot be discarded on the
ground that in his cross examination he has
said that some time he do the labour work
at complainant's Jaggery business. There
may be some minor discrepancy or
omission in the oral statement of the
witnesses but that is natural. There is no
material,
discrepancy
or
contradiction
which
shake
trustworthiness
of
the
witnesses.

The
remaining
witness
S.I.
Surendra Singh PW-3 is the Investigating
Officer who has proved the steps taken
during the investigation and the papers
prepared i.e. site plan and charge sheet. He
has also proved the Chik report and copy of
G.D.

Both the witnesses PW-1 Ramesh
Chandra and PW-2 Awadh Bihari are
independent witnesses. There is no material
on record which establish any enmity or ill
will of these witnesses with the accusedappellant and there is no reason to
disbelieve these witnesses. They are
trustworthy and reliable.

The effect of non production of
witness
Babloo
has
already
been
considered by the trial Court and accused
has been acquitted from charges under
Section 427 I.P.C. due to this.

7. Contention of learned counsel for
the appellant that the case is not covered by
Section 387 I.P.C. has no force. In order to
constitute an offence as laid down Under
Section 387 I.P.C., there ought to be some
visible overt act which may reflect the
natural and normal inference that the wrong
doer had, in fact, put a person or had made
an attempt to put any person in fear of
death or of grievous hurt. From the
evidence on record, it is established that
accused-appellant armed came at the house
of the complainant called him outside and
started
abusing
him
and
demanded
9 All. Kailashi & Anr. Vs. The State of U.P.
127
Rs.5,000/- and also fired a shot in the air,
he further threatened the complainant to
pay Rs.5,000/- by the next day otherwise he
will be shot or any member of his family
will be killed. So, it cannot be said that
there was no overact during the act of
extortion.

8. The defence taken by the accused
in his statement under Section 313 Cr.P.C.
that he has been falsely implicated at the
instance of hotel owners Iddu and Kailash
who are inimical to the accused does not
get any support from material on record.
The charge under Section 387 I.P.C. stand
proved against the accused.

9. The learned trial Court has fully
discussed
and
appreciated
the
entire
evidence. The findings recorded by the
learned trial Court is well reasoned. There
is no infirmity or perversity in the findings
recorded by the learned trial Court in
holding the accused guilty under Section
387 I.P.C. and there is no reason to
disagree with the aforesaid findings. So, the
judgment and order of conviction is just
and proper.

10. The learned trial Court has
sentenced the accused for 03 years rigorous
imprisonment
only
while
punishment
prescribed for offence under Section 387
I.P.C.
is
imprisonment
and
fine.
Considering the nature of the offence and
attending
facts
and
circumstances,
imposition
of
02
years
rigorous
imprisonment and fine of Rs.10,000/- will
be just. In default of payment of fine
accused will serve six month simple
imprisonment.
Sentence
is
modified
accordingly.

11. The appeal is partly allowed in
the aforesaid terms.

12. Lower court record along with
copy of the judgment be transmitted
immediately to the trial Court.
----------
(2021)09ILR A127
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 183 of 1986

Kailashi & Anr. ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Pt. Mohan Chand, Sri Satya Prakash
Tiwari

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code, 1860
- Sections 304(2) & 34 - Culpable
Homicide - Prompt FIR - Presence of eyewitnesses was found natural - Evidence of
witnesses of fact was fully corroborated
by medical evidence - As per prosecution
evidence, appellants gave blow to the
deceased in his chest, stomach and pelvis
(pedu) and if injuries are inflicted to any
person at chest, stomach and pelvis, it is
very much possible that liver and spleen
will sustain injuries - Sentence of three
years rigorous imprisonment ordered -
Validity challenged - Held, the injuries
sustained by deceased were sufficient to
cause his death - Learned trial court
appreciated the evidence on record in
right perspective and rightly convicted the
appellants. (Para 12, 13, 14 and 16)
B. Criminal Law - Offence under Sections
304 (2) & 34 - Partisan witness -
Reliability - Admittedly witnesses are
niece, wife and son of deceased - Held,