GURSHARAM SINGHversusSTATE OF PUNJAB

                          GURSHARAM SINGH                                        A
                                      v.
                           STATE OF PUNJAB

                          SEPTEMBER 10, 1996

           [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.)
                                                                                 B

       The India Penal Code, 1860 : Sections 387, 390 and 392-Accused
committing extortion of money putting the victim in fear of death-Trial Court
convicting the accused under both Sections 387 and 392-0n Appeal held a
person cannot be convicted of both the offences, the latter being the aggravated C
f om1 of the fomier-Offender should have induced the person to deliver money
then and there--Otherwise Extortion not proveti:-Conviction under Section
387 upheld and conviction under Section 392 set aside.

     The Te"orist And Dismptive Activities (Prevention) Act, 1987: Section D
3-Sentence and conviction upheld.

      The Appellant was prosecuted under S. 387 and S. 392 IPC. The
appellant had been victim's neighbour earlier. He wrote a letter to the
victim to pay Rs. 2 lacs for funding terrorist activities or face dire-conse-
quences. Meanwhile, the appellant shifted to some other locality. Later on, E
the victim met the appellant to negotiate the amount and he was put in
fear of death by a revolver-wielding man in the company of the appellant
and asked to pay the amount. Finally a bargain was struck and the amount
sought was reduced to Rs. 70,000. However, the victim paid only Rs.
50,000.
                                                                                 F
      A case was registered against the appellant and he was arrested. In
pursuances of the information provided by the appellant, two bundles of
currency notes were recovered from his premises. Subsequently, he was
convicted and sentenced for committing not only Extortion but Robbery as
well. Hence this appeal.                                                         G
      The appellant had contended that he was falsely implicated in this
case, as he had earlier intervened in a fight between the victim and his wife.
In support of his above defence the appellant examined D~W, 1.

      Partly allowing the appeal, this Court                                     H
                                     705
    706                    SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A         HELD : 1. The prosecution case cannot be said to have been proved
    conclusively on the basis of the recovery of the currency notes from the
    appellant, but the disclosure statement made by the appellant and the
    recovery pursuant thereto substantially corroborate the testimony of the
    victim. [709-D]

B         2. Regarding the evidence of D.W. 1, there was no opportunity for the
    appellant to see the victim and his wife fighting in their house as the
    appellant had shifted his residence from their locality at the material time
    and consequently the question of his interventi_on therein could not have arisen.
    Therefore the defence version as given out by D.W. 1 is untrue. [709-E-F]
           ;
c         3:1. The designated Court was not justified in convicting the appel-
    lant of offences both under S. 387 and S. 392 as the latter is an aggravated
    form of the former. [709-G]

          3~~ In the instant case, the victim was not induced to pay the money
D . on the very day he was put in fear of instant death but a few days later.
    Therefore he cannot be said to have committed Robbery within the mean-
    ing of S. 390, IPC for one of the ingredients of this offence is that the
            r
    offender. "induces the person so put in fear then and there to deliver up
    the thing extorted." The conviction of the appellant under S. 392 IPC for
E   committing robbery is set-aside. The conviction and sentence under Ss. 387




                                                                                  "
    IPC and 3 of TADA are upheld. (709-H; 710-A-B]
               ;,

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    lli~·
        '

         From the Judgment and Order dated 12.6.93 of the Addi. Judge
F
    Designated Court, Amritsar in Sessions Case No. 193 of 1991.

          R.S. Sodhi for the Appellant.

           R.S. Yadave for R.S. Suri for the Respondent.
G                                                                                       ...,'
          The Judgment of the Court was delivered by
               ... !

           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 Sections 387 and 392 IPC and Section 3 of
H    the Terrorist and Disruptive Activities (prevention) Act, 1987 ('TADA' for
        GURSHARAN SINGH v. STATE [M.K. MUKHERJEE,J.)                  707

short). Aggrieved thereby the appellant has preferred this appeal under A
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 B
 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 C
with his wife over the demand and went to meat the appellant who had by
then shifted to Gali Baghwali 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 or Nirmal Singh and asked him D
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 whcreunder Nirmal Singh was to E
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 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 within two F
months. The appellant told him 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.                             G

      (b) After registering the case Gurmit Chand took up investigation
and raided the house of the appellant on August 2, 1990 and arrested him.
On interrogation he made a statement that he had kept concealed currency
notes worth Rs. 20,000 under bundles of wheat bran in his depot; and        H
    708                  SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A 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.

B        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) at all, for which both of them were
C   declared hostile.

           4. The case made out by the appellant, who had earlier pleaded not
    guilty tci 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 drunkard and frequently beat his wife. A few days before his
D   arrest, Nirmal Singh had beaten his wife while under the influence of liquor
    and he (the appellant) had intervened to save her. On this 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 a~d his father got the case falsely registered against him with the
E   help of. a retired police officer. Jn support of his above defence the
    appella~t examined Surinder Singh (D.W. 1).

           5. On perusal of the impugned judgment we find that the trial Judge
     has discussed that entire evidence on record and given detailed reasons for
     accepting the case of the prosecution in preference to that of the defence.
F
           6.'·We have heard the learned counsel appearing for the parties at
     length and gone through the entire evidence on record. From the evidence
     of Nirmill 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)
G    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 therefor, he disclosed that
     he had received a letter demanding money from him. She however did not
     state that,her husband had told the name of the person who made the
H    demand:but, later on, she testified that Gursharan Singh (the appellant)
         GURSHARAN SINGHv. STATEjM.K.MUKHERJEE,J.)                       709

 had come to their house and that her husband had a talk with the appellant.    A
 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 from his depot the prosecution relied upon    B
 the evidence of the two 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   C
 evidence. It is, of course, true that in the absence of any marks of any
 identification on those currency notes in order to connect them 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          D
 appellant and the recovery pursuant thereto substantially corroborates the
 testimony of Nirmal Singh.

        8. Coming no\' to the defence case and the evidence of Surinder
· Singh in support thereof, we find, from the uncontroverted evidence of
  Kuldip Kaur, that at the material time the appellant had shifted his          E
  residence from their locality and the other evidence on record shows that
  he was then a resident of Gali Baghwali. There was, therefore, no oppor-
  tunity 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 held that the defence story as given out    F
  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 G
 appellant both under Section 387 and Section 392 IPC, as Section 390 IPC
 lays down that in all robberies there is either theft or extortion; and that
 necessarily means that a person cannot be convicted both for extortion and
 robbery, which is a special aggravated from 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 H
    710                  SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A 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'them & there (emphasis supplied) to deliver up the thing extorted".
    Consequently the appellant's conviction under Section 392 IPC for com-
    mitting robbery has got to be set aside.
           '~

B         10. For the foregoing discussion we uphold the conviction and sen-
    tence of the appellant under Section 387 IPC 1nd s.3 of TADA but set
    aside his conviction and sentence under Section 392 IPC.

          1he appeal is thus disposed of.

C S.S.                                                     Appeal disposed of.



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