1. Heard the parties.

2. This Acquittal Appeal has been filed invoking the jurisdiction of this Court under Section 372 of the Code of Criminal Procedure, 1973 with the prayer to set aside the judgment of acquittal passed by the learned Additional Sessions Judge-III, Rajmahal in Criminal Appeal No.47 of 2018 dated 18.01.2020 whereby and where under the learned Additional Sessions Judge-III, Rajmahal has set aside the judgment of conviction and order of sentence passed by the learned Judicial Magistrate-1st Class, Rajmahal in G.R. Case No.45 of 2009 dated 07.04.2018; whereby and where under the respondent No.2-accused person of the case was held guilty of the offence punishable under Section 385 of the Indian Penal Code and was sentenced to undergo Simple Imprisonment for two years and pay a fine of Rs.1,000/- and in default in payment of fine, to undergo Simple Imprisonment of one month.

3. The brief fact of the case is that the appellant/informant- Triloka Devi @ Tiloka Devi was the Principal of Upgraded Middle School which is a Government School. The respondent No.2-accused person of the case, in order to commit extortion of Rs.10,000/- put the informant in fear of committing her murder by threatening to throw a stone which he was holding in his hand. On the basis of the written report submitted by the appellant/informant, Police registered Rajmahal P.S. Case No.27 of 2009 and took up the investigation of the case. After investigation, police found the allegations against the respondent No.2-accused person of the case to be true and submitted charge-sheet against the respondent No.2-accused. Charges were framed against the respondent No.2-accused person of the case for having committed the offences punishable under Section 385, 387, 504 of the Indian Penal Code and charges were explained to the respondent No.2-accused person of the case on 05.05.2010; to which he pleaded not guilty and claimed to be tried.

4. In support of its case, the prosecution altogether examined eleven (11) witnesses. After closure of the prosecution evidence, statement of the respondent No.2-accused person of the case was recorded under Section 313 of the Cr.P.C. on 12.07.2017.

5. In his defence, four (4) witnesses were examined by the respondent No.2-accused.

6. The learned trial court considered that the P.W.-1 who is the eye- witness to the occurrence, has seen the respondent No.2-accused person of the case demanding extortion by putting the informant in fear of injury.

7. Similarly, the P.W.-2 has also supported the case of the prosecution.

8. P.W.-10 has stated that the respondent No.2-accused person of the case, in order to commit extortion, put the informant in fear of injury with a stone.

9. P.W.-11 is the informant of the case. She has also supported the case of the prosecution and has also stated about the respondent No.2- accused person of the case, in order to commit extortion, put her in fear of injury by threatening to kill her with a stone which he was holding in his hand.

10. P.W.-3, P.W.-4, P.W.-6 and P.W.-7 have all not supported the case of the prosecution and were declared hostile and even though the prosecution was permitted to put leading questions to them still they did not support the case of the prosecution.

11. P.W.-5 has only stated that some incident had taken place with the informant.

12. P.W.-8 has stated that on the date of occurrence, he was not in his house.

13. P.W.-9 has stated that he heard the respondent No.2-accused person of the case abused the informant but he was not present at the place of occurrence.

14. D.W.-1 has stated that the respondent No.2-accused person of the case did not demand any extortion from them.

15. D.W.-2 has stated that the respondent No.2-accused person of the case did not demand any extortion but in paragraph-16 of her cross- examination she has stated about Rangdaari being demanded by the accused person but in paragraph-17 she again stated that she does not know what ‘Rangdaari’ is though in para-5 of her examination-in-chief, she has stated that the respondent No.2-accused person of the case did not demand ‘Rangdaari.’ She has stated the respondent No.2-accused person of the case is her ‘Chachera Sasur’ but she stated in paragraph- 16 of her cross-examination that she reached the place of occurrence five minutes after the respondent No.2-accused person of the case reached there.

16. D.W.-4 has also stated that the respondent No.2-accused person of the case did not demand ‘Rangdaari.’ In paragraph-18 she has stated that first Dhananjay and the accused persons went to the place of occurrence but later on after half an hour, she went to the school, which was the place of occurrence.

17. The learned trial court upon considering the evidence in the record, came to the conclusion that the evidence in the record is sufficient to constitute the offence punishable under Section 385 of the Indian Penal Code and held the respondent No.2-accused person of the case guilty of the said offences and sentenced him as already indicated above.

18. Being aggrieved by the judgment of conviction passed by the learned Judicial Magistrate-1st Class, Rajmahal, the respondent No.2- accused person of the case filed Criminal Appeal No.47 of 2018.

19. The learned Additional Sessions Judge-III, Rajmahal considered that though the occurrence took place on 13.02.2009 at about 1:30 p.m. but the written report was submitted by the informant on the next day at 11:30 p.m. and there is no explanation furnished in the F.I.R. for the delay in lodging of the F.I.R.. But it is pertinent to mention here that the timing of 11:30 p.m. is an error apparent on the face of the record because in the Formal F.I.R. which is very much available in the record, it has categorically been mentioned that the case was registered at 11:30 a.m. and not p.m. as erroneously mentioned by the learned trial court in paragraph-19 of the impugned judgment. The learned Additional Sessions Judge-III, Rajmahal being the appellate court, further considered that as to why the informant herself has not written the First Information Report in her own handwriting and went on to observe that the exaggeration of the allegations cannot be ruled out. Further, the learned appellate court went on to observe that the prosecution has miserably failed to establish the charges levelled against the respondent No.2-accused person of the case herein in this Acquittal Appeal by creditworthy evidence beyond shadow of doubt and came to the conclusion that the respondent No.2-accused person of the case is entitled to be acquitted and allowed the appeal.

20. Learned counsel for the appellant submits that the learned Additional Sessions Judge-III, Rajmahal committed a grave error by throwing all the settled principles of law to woods by ignoring the fact that the evidence of P.W.-11 wherein she has stated in paragraph-1 of her deposition that the respondent No.2-accused person of the case, in order to commit extortion of Rs.10,000/-, put her in fear of death and injury by abusing her and by lifting a stone with his hand , threatening to kill her and there is absolutely no cross-examination in this respect of the P.W.-1. Hence, the same has to be accepted as true. The testimony of the P.W.-11 is corroborated by the testimonies of P.W.-1, P.W.-2 and P.W-10. The learned Additional Sessions Judge-III, Rajmahal reversed the judgment of conviction in a perverse manner by erroneously mentioning that the F.I.R. was registered on the next date at 11:30 p.m. when the Formal F.I.R. which is very much in the case record, goes to show that the same was registered at 11:30 a.m. on the next date. It is next submitted that the purpose of lodging the F.I.R is to set the law in motion and it is not a requirement of law that the informant has to write the written report in her own handwriting and in the absence of any such law, the learned Additional Sessions Judge-III, Rajmahal has committed a perversity by giving unnecessary importance to trivial matters of the informant herself not writing the First Information Report; while ignoring the overwhelming evidence in support of the case of the prosecution; which were staring from the record at the face of the court. Hence, it is submitted that the judgment of the acquittal passed by the learned Additional Sessions Judge-III, Rajmahal in Criminal Appeal No.47 of 2018 vide the impugned judgment dated 18.01.2020 be set aside and the judgment of conviction passed by the learned Judicial Magistrate-1st Class, Rajmahal vide the judgment dated 07.04.2018 passed in G.R. Case No.45 of 2009 be restored.

21. The learned Addl. P.P. appearing for the State and the learned counsel for the respondent No.2-accused person of the case on the other hand vehemently oppose the prayer of the appellant and submit that the learned Additional Sessions Judge-III, Rajmahal has not committed any illegality in reversing the judgment of conviction and order of sentence as the learned trial court has failed to consider that some of the witnesses were declared hostile and have not supported the case of the prosecution and the witnesses, both from the prosecution as well as the defence, have stated that there was a dispute on the date of occurrence regarding preparation of ‘Khichdi.’ It is further submitted that keeping in view the fact that the respondent No.2-accused person of the case has been facing the prosecution since the year 2009, in case the judgment of acquittal is reversed, the respondent No.2-accused person of the case be sentenced to fine only because Section 385 of the Indian Penal Code provides for the sentence of imprisonment of either description for a term which may extend to two years or with fine or with both.

22. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon’ble Supreme Court of India in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect, held as under:-

                  “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross- examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589).” (Emphasis supplied)

23. There are instances galore where the Hon'ble Supreme Court of India has held that in the absence of cross-examination of a witness, the evidence of such witness remains unchallenged and ought to be believed. In the case of State of U.P v. Nahar Singh reported in AIR 1998 SC 1328, the Hon’ble Supreme Court of India in paragraph Nos.13 and 14 held as under:-

                  “13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW- 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

                  (1) to test his veracity,

                  (2) to discover who he is and what is his position in life, or

                  (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

                  14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus: “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.”

                  This aspect was unfortunately missed by the learned Additional Sessions Judge-III, Rajmahal when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing.” (Emphasis given by me) Similarly in the case of Sunil Kumar and Another v. State of Rajasthan reported in AIR 2005 SC 1096, the Hon’ble Supreme Court observed in paragraph-13 of the judgment as under:-

                  “13. … … … … … … … … … … … … … … … … … …

                  … … … … … … … … … … … … …… … … … … … …

                  Additionally, no question was asked to the investigating officer as to the reason for the delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.” (Emphasis given by me)

24. Now, coming to the facts of the case; the perusal of the testimony of the P.W.-11 goes to show that in paragraph-1 of her testimony she has categorically stated about the respondent No.2-accused person of the case, committing extortion of Rs.10,000/- and in order to commit the extortion, putting her in fear of injury by threatening to assault her with a stone which he was holding in his hand. This testimony of the P.W.-11 in her examination-in-chief, has not been challenged in any manner in her cross-examination. There is absolutely no cross-examination of the P.W.-11 in respect of these ingredients which are sufficient to constitute the offence punishable under Section 385 of the Indian Penal Code. The testimony of the P.W.-11 is supported by the testimonies of the P.W.-1, P.W.-2 and the P.W.-10.

25. In view of the overwhelming evidence in the record put forth by the prosecution regarding the ingredients of the offence punishable under section 385 of the Indian Penal Code, the defence evidence put forth by the respondent No.2-accused person of the case in view of their prevaricating in nature as already discussed above in the following paragraphs of this judgement, are certainly not of such nature to dislodge the prosecution evidence regarding the ingredient to bring home the charge punishable under section 385 of the Indian Penal Code; because as already indicated above, though two of the defence witnesses have stated about the respondent No.2-accused person of the case not demanding the extortion, yet have stated that they came to the place of occurrence after the respondent No.2/accused.

26. The Hon’ble Supreme Court of India in the case of Chinnamal vs. State of Tamil Nadu reported in (1997) 1 SCC 145 held the approach of the High Court wrong as the High Cout reversed the conviction on the ground that the previous statement treated as one under Section 164 Cr.P.C. and the F.I.R. was contradictory because a case has to be decided on the basis of the evidence adduced by the witnesses during the trial. This Court has no hesitation in holding that the same error was committed by the learned Additional Sessions Judge-III, Rajmahal by giving unnecessary importance to the delay in lodging the F.I.R. that too erroneously mentioning that the F.I.R. was lodged at 11:30 p.m. though in fact, the record goes to show that the same was registered at 11:30 a.m. on the next day of the occurrence or for giving uncalled for importance by observing that since the informant herself has not written the first information report in her own handwriting; the exaggeration cannot be ruled out. What the learned Additional Sessions Judge-III, Rajmahal was expected to do as an appellate court was to make complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety, was to be scrutinized with care and caution as the role of appellate court has been laid down by a three Judge Bench of the Hon’ble Supreme Court of India in the case of K. Anbazhagan vs. State of Karnataka reported in (2015) 6 SCC 158.

27. Under such circumstances, as the learned Additional Session Judge-III, Rajmahal committed a perversity by failing to consider the evidence in the record put forth by the witnesses particularly the unchallenged testimony of the PW 11 regarding the ingredients of the offence punishable under section 385 of the Indian Penal Code; rather than giving undue and uncalled for importance to the delay in lodging the F.I.R. of about twenty two (22) hours and the informant herself not writing the written report in her own handwriting, this Court is of the considered view that the judgment of acquittal passed by the learned Additional Sessions Judge-III, Rajmahal in Criminal Appeal No.47 of 2018, is not sustainable in law, hence, the same is quashed and set aside and the judgment of conviction passed by the learned Judicial Magistrate-1st Class, Rajmahal in G.R. Case No.45 of 2009 dated 07.04.2018 is restored.

28. So far as the sentence is concerned, keeping in view the fact that the respondent No.2-accused person of the case is facing the rigors of criminal trial since the year 2009 but also keeping in view that demanding ransom from Government officials in this part of the country is on the rise and has to be dealt with a heavy hand and a deterrence is highly essential, the sentence of the respondent No.2- accused person of the case is reduced to Simple Imprisonment of one (1) year and to pay a fine of Rs.10,000/-and in case of default in payment of the said fine, the respondent No.2-accused person of the case has to undergo further Simple Imprisonment for a further period of two (2) months.

29. The respondent No.2-accused person of the case is directed to surrender before the learned trial court, being the learned Judicial Magistrate-1st Class, Rajmahal or its successor court, within a month from the date of this judgment, failing which the learned trial court is directed to take all coercive steps for apprehension of the respondent No.2/accused/convict to undergo the sentence.

30. Let a copy of this judgment along with the scanned copy of the trial court records be sent to the court concerned forthwith.

31. This Acquittal Appeal is disposed of accordingly.