JUDGMENT
J.D. Jain, J.
1. Ashok Kumar and Ramesh Chand, petitioners were convicted of offences under Sections 387 and 507, Indian Penal Code (hereinafter referred to as ‘IPC‘) by a Metropolitan Magistrate vide judgment dated 8th September 1983 and were sentenced to rigorous imprisonment for two years and a fine of Rs. 1000/- each for offence under Section 387 IPC and rigorous imprisonment for six months on the second count. However, the sentences of imprisonment on both the counts were directed to run concurrently. In default of payment of fine, they were awarded further rigorous imprisonment for three months each. Feeling aggrieved, they preferred an appeal against their conviction and sentences but met with no success. The same was dismissed by an Additional Sessions Judge vide judgment dated 22nd November 1984 who maintained the conviction as well as sentences of both the petitioners for both the aforesaid offences. Hence, they have come up in revision against their conviction and sentences.
2. The prosecution case succinctly is that the complainant-Krishna Murari (PWI) resides at quarter No. 127, Raksha Bhawan, Man Singh Road, New Delhi. He is running a kerosene oil depot. Ashok Kumar-petitioner also resides in the same complex, the number of his quarter being 146. However, Ramesh Chand-petitioner is a resident of 1/10, Prem Nagar, New Delhi. It appears that both the petitioners were known to the complainant Krishan Murari prior to the occurrence in question.
3. On the morning of 14th February 1979, an infant daughter of Krishan Murari aged about 1 1/2 year disappeared while she was playing outside the residence of Krishan Murari. The latter and has made a frantic search for their infant daughter but with no success. Feeling perturbed, they lodged a report at Police Station Tilak Marg in the afternoon of 14th February 1979 (Ex. PW 1/A) that their infant daughter was missing since morning. At about 7.00 P.M. on the same day Subhash Chand (PW 4) who is resident of Hakikat Nagar, Kingsway Camp and happened to visit Gurdwara Bangla Sahib notice that an infant girl was sitting and weeping near the counter of the Gurdwara and there was nobody to look after her. He made a search for her parents and also got an announcement made through a land speaker about the lost child. Eventually he took her to Police Station Connaught Place at about 9.30 P.M. and she was left in the custody of the police vide report Ex. PW4/A.
4. At about 9 P.M. on the same day, Krishan Murari was called by Chowkidar Prem Singh of Raksha Bhawan to attend a telephonic call. Someone told him on the telephone that his daughter would be returned if he paid Rs. 5,000/- as ransom to him at the Children Park near India Gate as soon as possible. He was stunned to receive the message and he conveyed the same to his wife. At about 11 P.M. on the same evening Krishan Murari received a message from Police Station connaught Place about the recovery of a female infant. Thereupon he went to the Police Station Connaught Place and brought his daughter back.
5. Nothing untoward happened on 15th February 1979, but on the morning of 16th February 1979, Smt. Shakuntla Devi (PW 2), wife of Krishan Murari, found a hand-written note, Ex. PW 2A, hanging on the door of her house. She informed her husband about the same. The hand-written note contained a threat that in case he was desirous of safety of himself and his children he should deliver the amount of Rs. 5,000/- at the Piao (water stall) near Children Park, India Gate. Krishan Murari then went to the Police Station Along with the letter and lodged another report Ex. PW 16/A. He also delivered letter Ex. PW 2/A to the police vide memo Ex. PW 1/B. The investigation of the case was entrusted to SI Arjun Singh (PW 16). The latter went to India Gate on the same day Along with the complainant but they did not find any person at appointed place. However, on getting a clue from Chowkidar Prem Kumar (PW 14) of Raksha Bhawan that both the petitioners had come to him to inquire the number of telephone installed at Raksha Bhawan both of them were arrested and interrogated. They made their disclosure statements Ex. PW 11/A and PW 11/B. Pursuant to his disclosure Ashok-petitioner produced one letter-pad and a ball pen (Ex.PA and PB) from his house which were taken into possession vide memo Ex. PW 11/C. Ashok also pointed out a shop in the Khan Market from where he had made the telephonic call on 14th February 1979, Ex. PW 11/D, being his pointing out memo. On the same day Ramesh-petitioner pointed out a restaurant at Mohan Singh Place from where he had taken milk to fee the infant child. On the basis of the investigation carried out by SI Arjun Singh, he sent Rukka to the Police Station for registration of a case and a case under Section 384, 506 and 507 IPC was registered on its basis, Ex. PW 12/A being carbon copy of the FIR.
6. On the next following day, viz. 20th February 1979, both the petitioners were produced before the concerned Magistrate and at the request of the Investigating Officer specimen handwriting of Ramesh-petitioner was obtained on four sheets of paper, the same being Ex. PW 9/B, C, D and E. The specimen handwritings of Ramesh and the threatening letter Ex. PW 2/A, the writing pad and the ball pen which had been recovered from the house of Ashok were sent to the Central Forensic Science Laboratory for comparison by an expert. On receipt of the opinion of the handwriting expert and completion of investigation, both the petitioners were challaned.
7. The defense of the petitioners is of total denial. They contend that they have been falsely implicated by Krishan Murari on account of enmity with Ashok Kumar, who had made complaints against him for selling kerosene-oil in black. Ashok asserted that on 14th February 1979 he had appeared for interview in connection with the post of a messenger in Lok Sabha Secretariat, Parliament House. He was taken by the police from his house on 16th February 1979 and falsely implicated in this case. The contention of Ramesh is that he had gone to Saharanpur on 12th February 1979 and was back to Delhi on 16th February 1979 on which date he was arrested by the police from the house of Ashok Kumar. He asserted that Krishan Murari had told him earlier that he would get him arrested Along with his friend Ashok Kumar. However, they have led no evidence in defense.
8. The learned counsel for the petitioners has canvassed with considerable force that the prosecution case rests on circumstantial evidence as there is no direct evidence to connect any of the petitioners with the commission of the alleged offences and the circumstances established on record even if considered cumulatively are not incompatible with the innocence of the accused. He has pointed out that the only evidence against Ashok Kumar is (1) recovery of the ball pen and the letter-writing pad from his house pursuant to his disclosure statement Ex. PW 11/A, (2) his pointing out the public telephone booth in Khan Market wherefrom he and his accomplice Ramesh had allegedly made the telephone call, and (3) the evidence of Chowkidar that he had come to him (i.e. Chowkidar) to inquire the telephone number of Raksha Bhawan but all these three circumstances even if taken together and assumed to be correct fall short of completing the chain of events which cannot be explained on any hypothesis other than the guilt of Ashok-accused. On the consideration of the entire evidence on record. I find considerable merit in this contention.
9. Admittedly there is no iota of evidence on record to connect any of the petitioners with the kidnapping of the infant child of Krishan Murari. Of course, subsequent events, which have been proved on record, give rise to grave suspicion that the petitioners might have been concerned in the kidnapping of the child. It is well settled that suspicion howsoever grave does not take the place of proof and if there is any reasonable doubt about the complicity of an accused in the commission of the crime he is entitled to benefit thereof. The mere fact that Ashok Kumar-petitioner had accompanied Ramesh-petitioner to the Chowkidar to inquire the telephone number of Raksha Bhawan and he had accompanied Ramesh later in the evening to Khan Market from where they allegedly telephoned Krishan Murari would not be inferential of the complicity of Ashok in the commission of crime. Sharing of criminal intent by him with his co-accused Ramesh cannot be inferred from these circumstances alone. Kashmiri Lal (PW 13), who runs a dairy at Khan Market, has simply deposed that in the month of February at about 9 P.M. when he was present at his shop both the petitioners came there and told him that they wanted to make a call from the Public Call Telephone installed at his shop. He could not refuse the request. So, they made the call. However, he does not elaborate as who out of the petitioners had made the call. There is thus a clear snag in the testimony of this witness and it would be rather difficult to connect Ashok-petitioner with the telephonic threat given to Krishan Murari on the evening of 14th February 1979. Likewise, Prem Kumar, Chowkidar of Raksha Bhawan has simply deposed that both the accused had come to him and asked him the telephone number of Raksha Bhawan. He gave them the necessary information and a little while thereafter a telephone call was received by him which was meant for Krishan Murari. So, he called Krishan Murari and the latter talked on the telephone. He did not know who had made the telephonic call. The testimony of this witness on this point was allowed to go unchallenged but again there is a lacuna in his evidence which renders it difficult to draw an inference of guilty intention on the part of Ashok Kumar. All that can be said is that on both the occasion he had accompanied his co-accused Ramesh, but any further conclusion would be purely conjectural and speculative. As for the third circumstance, suffice it to say that it can be explained on the hypothesis that Ashok Kumar had at best knowledge of the writing pad and the ball pen with which his co-accused Ramesh had written the hand note Ex. PW 2/A. However, it is difficult to draw the further conclusion that the hand note Ex. PW/2A must have been written by Ramesh in furtherance of the common intention of both of them to extort money from Krishan Murari. These lacunae in the prosecution evidence certainly give rise to a reasonable doubt about the complicity of Ashok Kumar in the commission of the crime. It may well be that he was accompanying his co-accused Ramesh at the time of visits to Chowkidar Prem Kumar and Kashmiri Lal, shop-keeper of Khan Market, for finding out the telephone number of Raksha Bhawan and for making a call from the Public Telephone Booth at Khan market. He may as well be aware about Ramesh writing the threatening letter Ex. PW 2/A on a sheet of paper taken out of the latter pad Ex. PA with ball pen Ex. PB. (SIC) the same it is difficult to deduce the conclusion that he also shared the intention to extort money with his co-accused Ramesh. Hence, he is entitled to benefit of doubt.
10. As for Ramesh, however, the prosecution case stands on a (SIC) firm footing. There is absolutely no reason to doubt the testimony of Smt. Shakuntala Devi that she found the hand-written note Ex. PW 2/A hanging on the door of her house on the morning of 16th February 1979. Her testimony is duly supported by her husband Krishan Murari. It also finds (SIC) corroboration from the fact that the latter lodged a report regarding the recovery of the hand-written note from the door of his house at the Police Station on that very day and the said note was taken into custody by the police on 16th February 1979 itself vide memo Ex. PW 1/B. This documentary evidence amply refutes and belies the contention of Ramesh-petitioner that the police had obtained the writing Ex. PW 2/A after his arrest on 16th February 1979 when he returned from Saharanpur. Apart from the bold statement made by him in this context there is absolutely no shred of evidence on record to countenance this plea. It certainly does not stand to reason that after having obtained the writing Ex. PW/2A from Ramesh on 16th February 1979 the Investigating Officer would have waited for another two days i.e. uptil 19th February 1979 in order to foist recovery of the letter pad and the ball pen from the house of Ashok. Apparently there was no point in delaying the investigation further in this manner. Hence, the whole sequence of events as established on record militates against and totally negatives the defense version. Indeed, the evidence of hand-writing expert Shri T.P. Nehra, Senior Scientific Officer (Documents)-cum-Assistant Chemical Examiner, Central Forensic Science Laboratory, clinches the issue against Ramesh-petitioner when he says that the author of the questioned writings Q1 and Q2 on the document Ex. PW 2/A is the same person who had furnish the specimen writings S1 to S4 (Ex. PW 9/B, C, D and E) and further that the ink used for writing the questioned writing marked Q1 and the subsequent writing marked S5 were also found similar. Moreover, according to him, the paper bearing the questioned writing marked Q1 matches with the papers hearing the standard writing marked S5 in the letter pad. In other words, he is of the opinion that the paper sheet bearing writing Ex. PW 2/A must have been taken out of letter pad Ex. PA. I have gone through the evidence of this witness carefully and I find that the reasons assigned by him in favor of the view expressed by him are quite cogent and convincing. The argument of the learned counsel for the petitioners that no reliance could b e placed on the opinion given by a hand-writing expert in the absence of any independent corroboration is not at all tenable because even to a naked eye the questioned as well as the subsequent writings appear to bear the stamp of common authorship. As observed by the Supreme Court in Murari Lal v. State of Madhya Pradesh, 1980 SCC (Cri) 330:
“The hazard in accepting the opinion of any expert is not because they are unreliable witnesses but because all human judgment is fallible. While the science of identification of finger prints has attained near perfection and the risk of an incorrect opinion is practically non-existent, the science of identification of hand-writing is not nearly so perfect and the risk is higher. Therefore, on the facts of a particular case, a court may require corroboration of a varying degree of the evidence of the handwriting expert. There can, however, be no hard and fast rule in this regard.
But there is nothing to justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. An expert is not an accomplice and, therefore, corroboration of his evidence is not always essential.
An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence. Therefore, the approach of the court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept of reject it.
Section 73 of the Evidence Act enjoins the court to compare the disputed writing itself and this duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative text books and the court’s own experience and knowledge.”
Accidentally it may be of interest to notice that in the aforesaid case only two circumstances, viz. (1) recovery of stolen goods about seven months after the commission of robbery and murder and (2) hand-written note left at the place of occurrence proved to be that of the accused, were established and the same were considered sufficient proof of the guilt of the accused.
11. On comparing the disputed writing with the specimen writings of Ramesh-petitioner, I am wholly satisfied and convinced that he was the author of the disputed writing and I find no reason to differ from the opinion expressed by the hand-writing expert. Indeed, the authorship of writing Ex. PW 2/B is not disputed. So, the courts below were absolutely justified in acting on the testimony of the hand-writing expert.
12. The learned counsel for the petitioner also drew my attention to the fact that the factum of recovery of the letter pad and the ball pen has not been proved by any independent evidence, rather the only independent witness examined on the point viz. Prem Kumar Chowkidar, had denied that the recovery of the pad and the ball pen effected from the house of Ashok-accused in his presence. It is not doubt so and it was on this account that the said witness was declared hostile by the prosecution and cross-examined by the Assistant Public Prosecutor but that would hardly afford ground to disbelieve the testimonies of S1 Arjun Sing and Constable (SIC) Chand (PW 11) who were quite positive and categorical in saying that (SIC) the said articles were recovered from the house of Ashok pursuant to his disclosure statement Ex. PW 11/A. Both these witnesses have stood the test of cross-examination very well and I find no valid reason to discard their testimony regarding the factum of recovery of ball pen and the letter pad from the house of Ashok pursuant to the disclosure made by him.
13. The last contention of the learned counsel for the petitioners is that they could not be convicted of an offence under Section 507 IPC in the absence of a charge and conviction for offence under Section 506 IPC because the offence under Section 507 is nothing but an aggravated form of offence under Section 506. It is no doubt true that Section 507 provides for punishment which may extent to two years in addition to the punishment provided for the offence by Section 506. It is obviously for the aggravation consisting the threat being communicated anonymously and after having take precautions to conceal the name or abode of the offender. However, all this is required for conviction under Section 507 is that all the essential ingredients constituting offence of criminal intimidation punishable under Section 506 must be established. Besides, of course, the further aggravating postulate that the criminal intimidation was by an anonymous communication or was made by the offender having taken precaution to conceal the name of abode of the person from whom the threat comes. In instant the case all the essential postulates of the offence of criminal intimidation as embodied in Section 503 which is the defining Section have been established beyond doubt. Hence, the mere fact that no conviction under section 506 was recorded by the courts below would not invalidate the conviction for offence under Section 507 inasmuch it would be implicit that the requirements of Section 506 have been duly taken care of. In Ramesh Chandra Arora v. The State, , it was contended that conviction of the accused-Ramesh Chandra should have been only under Section 384 read with Section 511 and not under Section 506. The contention was made in view of the fact that the accused was charged with committing criminal intimidation by threatening the complainant and his daughter with injury to their reputation by publications of the nude photographs of the latter with intent to cause alarm to them. No reference to blackmail or extortion was made in the charge. In the evidence, however, it appeared that the object of the accused was to make the complainant pay hush money to him i.e. the accused. Repelling the contention the Supreme Court observed:
“It is not unoften that a particular act in some of its aspects comes within the definition of a particular offence in the Indian Penal Code, while in other aspects, or taken as a whole, it comes within another definition. There are obvious differences between the of extortion as defined in Section 383 and the offence of criminal offence intimidation as defined in Section 503. It is unnecessary to dilate on those differences in the present case. All that we need say is that on the finding of the learned Magistrate, which finding was affirmed by the High Court, the appellant was clearly guilty of the offence of criminal intimidation. We, therefore, hold that the conviction of the appellant under Section 506 is correct. We further agree with the High Court that no prejudice was caused to the appellant by reason of the defect, if any, in the charge as to the intent of the appellant. He was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him.
As for the offence of Section 387 IPC, suffice it to say that the very act of putting a person in fear of death or grievous hurt is by itself an offence under the said Section, where it is done in order to commit extortion. In this respect Section 387 differs from Section 386 which provides for punishment of a person who commits extortion by putting any person in fear of death or grievous hurt as distinct from the offence of mere putting or attempting to put any person in fear of death or grievous hurt in order to commit extortion as envisaged in Section 387.
14. To sum up, therefore, the conviction of Ramesh-petitioner for both the offences is well founded. Even the sentences awarded are not harsh keeping in view the enormity and heinous nature of crime. There can be no manner of doubt that the infant child of Krishan Murari was lifted by someone, but was abandoned later on for the reasons best known to the offender. The evidence on record amply establishes that the subsequent telephonic threat as also the threat contained in the hand-written note Ex. PW 2/A in all probability emanated from the same source and were pursuant to the object of extorting money. Hence conviction as well as sentence of Ramesh is maintained. However, conviction of Ashok-petitioner cannot be sustained because the prosecution has failed to bring home the charges to him beyond reasonable doubt. Hence, giving him benefit of doubt, I set aside his conviction and sentence for both the offences. This revision petition stands disposed of accordingly.
15. Since both the petitioners are on bail, Ramesh-petitioner shall surrender to the bail bond and undergo the remaining sentence as awarded by the court below.
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