- (1.) THIS criminal revision has been pre ferred under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr. P. C.) against the judgment and order dated 30 -04 -1986 passed by Special Judge,, Nainital in Criminal Appeal No. 79 of 1985, Shiv Om Vs. State, confirming the judgment and order dated 23 -04 -1985 passed by the learned Additional C. J. M. , Kashipur in Criminal Case No. 164 of 1985 whereby the revisionist was convicted under Section 387 I. P. C. and sentenced for one year rigorous impris onment.
(2.) THE prosecution story in brief is that on 24/25th February, 1982, a let ter was received by the complainant Harbans Lal at his shop by post in which the sender of the letter had asked him to keep eight thousand rupees in a pit 3 or 4 meters north -east of the statue at Drona Sagar and to keep a brick marked by chalk over it and had threat ened him that if he did not do so, he would be killed. The sender had warned the complainant to keep it secret. Again a letter Ex. 2 with the same content was received by the complainant by post at his shop on 6 -3 -1982. The complainant did not take any action in the matter. On 9 -3 -1982 at 8:00 A. M. , when he opened his shop, he found letter Ex. 3 having been thrown in it with the warn ing that at 11:00 A. M. , on that day eight thousand rupees must be kept at the place mentioned earlier failing which he shall be murdered. The complainant Harbans Lal went to the Police Station, Kashipur along with three letters and lodged written report Ex. Ka. 1 at 8:45 a. m. regarding the receipt of above let ters. The sub -inspector I. B. Nautiyal di rected him to keep a letter Ex. 4 inside a tin and keep it at the place directed by the miscreant and go away. The Sub -Inspector called witnesses Mohan Lal and Tasaduk Hussain at the police station and told them to sit in ambush near the statue at Drona Sagar. The Sub -In spector started from the police station by a motorcycle and the witnesses along i with a constable started on foot from the police station. The sub -inspector and the constable were in plain clothes. The sub -inspector, constable and the two wit nesses sat in ambush towards north -east of the statue within three or four meters. At about 1:30 p. m. , the revisionist came at that place where the tin had been kept and after removing the marked brick took out the tin containing paper Ex. 4 from it. The sub -inspector and the witnesses at once rushed and arrested him and recovered the said articles from his possession and thereafter he was brought to the police station. The police gave an application in the court of Ju dicial Magistrate, Kashipur for summon ing the revisionist and taking his speci men handwriting so that it may be com pared with the letter Exs. 1 and II to Ex. III. The revisionist by his application on record alleged that the court was not competent to direct the revisionist to give his specimen. so long as the case was under investigation and also said that he was not willing to give his handwriting. After the investigation, the police sub mitted charge sheet. Revisionist pleaded not guilty to the charge under Section 387i. P. C. and stated that an altercation had taken place between him and the complainant regarding charges of repairs of cycle which he had, got done from the complainant and so he was falsely im plicated. He further alleged that on 9 -3 -1982, the police called him at the police station and forcibly got a letter and address written by him at the po lice station which was Ex. Ill and he stated that letters Ex. I and II were not written by him. The learned Addl. C. J. M. , Kashipur after appreciating the evidence on record vide his judgment and order dated 23 -4 -1985 convicted the revisionist under Section 387 I. P. C. and sentenced him to undergo one year rig orous imprisonment. Being aggrieved by the said order dated 23 -4 -1985, the re visionist preferred an appeal before Ses sions Judge, Nainital, which was later on transferred for hearing in the court of Special Judge, Nainital. After apprecia tion the evidence on record, the learned /,. Special Judge has dismissed the appeal of the appellant and maintained the conviction of the revisionist under Sec tion 387 I. P. C. vide his judgment and or der dated 30 -4 -1986. Feeling aggrieved against the judgment and order dated 30 -4 -1986, the revisionist has come up in revision before this Court.
(3.) I have heard Ms. Pushpa Joshi, learned counsel for the revisionist and Mr. Amit Bhatt, learned Additional G. A. for the State. The complainant of the case has lodged the EI. R. in the Police Station, Kashipar on 9 -3 -1982 with the allegation that he has a shop in the main market with the name of Harbansh Cycle Store. Before some days, he received two let ters regularly by post by which Rs. 8,000/ - was demanded from him and he was threatened that in case of failure, he would be murdered. He do not take care of these letters but on 9 -3 -1982, when he has opened his shop then he received a letter at 8:30 a. m. in which he was directed to dig Rs. 8. 000/ - at 11:00 A. M. at Drona Sagar near the statue in a polythene bag. Thereafter, the complainant after taking the letter received by him on 9 -3 -1982 and two other letters received by him earlier, went to the police station at 8:45 A. M. and lodged first information report Ex. Ka. 1. On the basis of this EI. R. , a Chik Report was prepared in the police station Later on, the revisionist was ar rested by the police on 9 -3 -1982 at 13:30 P. M. and a Fard was prepared i. e. Ex. Ka. -2. The Investigating Officer has prepared the site plan i. e. Ex. Ka -5. Af ter the arrest, the revisionist was taken to police station and the entry was made in the G. D. , the copy of the G. D. is on record i. e. Ex. Ka -6. On 15 -3 -1982, a letter was submitted by the In vestigating Officer in the court of Judi cial Magistrate, Kashipur for taking the specimen handwriting of the revisionist so that it may be ascertained that the handwriting in the letters Ex. 1, 2 and 3 are of the same person or not. The re visionist has objected for the same and he was not ready to give his signatures. The learned Magistrate has framed the charge against the revisionist on 22 - 2 -1985 under Section 387 I. P. C. -In order to prove his case, the prosecution has examined P. W. 1 Harbans Lal, PW. 2 Mohan Lal, P. W. 3 Tasaduq Hussain and P. W. 4 I. B. Nautiyal.;