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Madhya Pradesh High Court · body

2004 DIGILAW 481 (MP)

MOHAN APPELLANT v. STATE OF M. P.

2004-05-14

ASHOK KUMAR TIWARI

body2004
ASHOK KUMAR TIWARI, J. ( 1 ) EIGHT accused persons namely Mohan sb Ramesh, Ghansyhyam sb Mangilal, Satyanarayan sb Rameshwar, Kailash s/o Rameshwar, Kamal Singh s/o Babu Singh, Gopal s/o Moolchand, Deviprasad s/o Narayan Prasad and Tarachand were tried before the 18th Additional Sessions Judge, Indore in Sessions Trial No. 35/93 and by judgment and order dated 29-8-2002 passed by him in the aforesaid sessions trial, four accused Ghanshyam, Kailash, Gopal and Deviprasad were acquitted and accused Mohan, Satya-narayan, Kamal Singh were convicted under section 365 of Indian Penal Code. Accused Satyanarayan and Kamal were in addition also convicted under section 392 of Indian Penal Code while accused Mohan was also convicted under section 392/34 of Indian Penal Code. Accused Tarachand got absconded during the trial. Feeling aggrieved by the conviction and sentence awarded, accused Mohan has filed present Criminal Appeal No. 1055/02, accused Satyanarayan has filed Criminal Appeal No. 1088/02 and Kamal Singh has filed Criminal Appeal No. 1120/02. Since all the above mentioned appeals arise out of one and the same judgment and order of conviction, therefore, they are being disposed of by this common judgment. ( 2 ) BRIEFLY stated, prosecutions case is that complainant Rajendranath was residing with his family at 5th floor of Alankar Chambers in Flat No. 501. These chambers are situated at A. B. Road, Indore. On 11-10-1992 at about 15 minutes past 5 0 Clock in the morning while complainant was sleeping in his house, someone rang the bell of his house, therefore, his daughter Jaya (PW-16) called him. When he saw through the glass, unknown persons were present there. Taking that some employees of his factory might have come, he opened the door. As soon as he opened the door, three persons entered inside the house, one person was carrying a revolver and the other two persons were having knives in their hand. All the three persons started altercation with the complainant and then asked him to hand over the key. Meanwhile, Dhiraj (PW-3), the son of the complainant came there. So one of the persons caught Dhiraj and he took him downstairs. Other accused persons asked to hand over them cash amount. Complainant asked his daughter Jaya (PW-16) to give them the cash. The person with knife entered with Jaya (PW-16) into the room where she handed over cash amount available there to him. So one of the persons caught Dhiraj and he took him downstairs. Other accused persons asked to hand over them cash amount. Complainant asked his daughter Jaya (PW-16) to give them the cash. The person with knife entered with Jaya (PW-16) into the room where she handed over cash amount available there to him. When they were about to leave, the complainant asked them as to where his son Dhiraj was? They replied to him that he will get Dhiraj back only when he makes arrangement to hand over lakhs of rupees to them. On this, the complainant caught hand of the person carrying the knife who entered into scuffle with the complainant and complainant got injured in the scuffle. Thereafter, complainant raised an alarm. The accused ran away while Kailash Neema (PW-12) and his wife Anita Neema (PW-13) came from their flat. Accused left their shoes, chappals and knife and Rs. 10,000/- cash, which was handed over by Jaya to them. ( 3 ) COMPLAINANT Rajendranath made First Information Report (Ex. P/66) in Sanyogitaganj Police Station. Station House Officer of Sanyogitaganj Police Station, Jitendra Singh Rathore (PW24) started investigation and prepared spot map (Ex. P/45) and seized the articles from the spot. Accused persons were apprehended and money received by them as their share in the ransom amount was recovered at their instance from their possession. After necessary investigation, charge sheet was filed against eight accused persons namely Mohan, Ghanshyam, Kailash, Kamal Singh, Gopal, Deviprasad and Tarachand. Charges under sections 365, 395, 392/34 of Indian Penal Code were framed against the accused persons. ( 4 ) THEY abjured the guilt, there-fore, they were put to trial. During the trial, one of the accused Tarachand absconded. Therefore, trial was proceeded against the remaining 7 accused persons and after trial four of the accused persons namely Ghanshyam, Kailash, Gopal and Deviprasad were acquitted of all the charges levelled against them. Appellants Mohan, Satyanarayan and Kamal Singh were convicted under section 365 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 1,000. 00 each; in default of payment of fine, they were directed to undergo R. I. for six months each. Appellants Mohan, Satyanarayan and Kamal Singh were convicted under section 365 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 1,000. 00 each; in default of payment of fine, they were directed to undergo R. I. for six months each. Appellants Satyanarayan and Kamal were in addition convicted under section 392 of Indian Penal Code while Mohan was convicted under section 392/34 of Indian Penal Code also and all were sentenced to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 1,000. 00 each, in default of payment of fine, they were directed to undergo further R. I. for 6 months each ( 5 ) THERE is no evidence as to who carried the amount of ransom and where and how it was handed over. There is also no evidence as to whom this amount was handed over. Learned trial Court has observed in paragraph 15 of the impugned judgment that no proof has been led before the Court regarding the demand of ransom. ( 6 ) IN paragraph 15 of the impugned judgment, learned trial Court has held that due to the non-examination of Rajendra Nath Sharma, no fact regarding the demand of Rs. 5 lack as ransom could be established. From the perusal of paragraph 17 of the impugned judgment, it appears that the learned trial Court has presumed that appellants Mohan, Kamal and Satyanarayan are guilty of offence punishable under section 365 of Indian Penal Code as huge amount of money has been recovered from their possession. Even if, recovery of amount of money from the possession of appellants Mohan, Kamal and Satyanarayan is taken to be proved, it cannot be presumed that, that amount was received as ransom unless the currency notes recovered are established to be the notes given as ransom. There is no provision in the law that recovery of some considerable amount of money from any such suspect would give rise to a presumption that money was received in ransom and he committed the kidnapping or abduction. Some other piece of circumstance pointing the connectivity between the currency recovered and currency handed over or given as ransom must be established, which is completely lacking in the case. Some other piece of circumstance pointing the connectivity between the currency recovered and currency handed over or given as ransom must be established, which is completely lacking in the case. Therefore, the conviction of the appellants under section 365 of Indian Penal Code is not well founded and sustainable in law and the conviction of appellants under section 365 of Indian Penal Code deserves to be set aside. ( 7 ) IT is established from the testimonies of Smt. Jaya Bhandari (PW-16) and Dhiraj (PW-3) that appellants Kamal and Satyanarayan committed robbery at the house of Rajendranath and while they entered into the house appellant Mohan stood downstairs. Learned trial Court after appreciating and discussing the evidence, has drawn the conclusion that appellants Kamal and Satyanarayan are guilty under section 392 of Indian Penal Code and appellant Mohan is guilty under section 392/34 of Indian Penal Code. The findings arrived at by the learned trial Court in paragraphs 18 and 19 of the impugned judgment, so far as they relate to the conviction of the appellants under sections 392 and 392/34 of Indian Penal Code respectively, are based on proper appreciation of evidence and cannot be said to be perverse and deserves to be maintained. ( 8 ) AS regards the sentence, looking to the facts and circumstances of the case and keeping in view that commission of offence punishable under section 365 of Indian Penal Code by the appellants has not been proved, the sentence of 3 years rigorous imprisonment and a fine of Rs. 1,000. 00 (one thousand only) will be sufficient and will meet the ends of justice. ( 9 ) ON the basis of the above discussion, the appeals are partly allowed. Appellants are acquitted of the charge under section 365 of Indian Penal Code. The conviction of Kamal and Satyanarayan under section 392 and that of appellant Mohan under section 392/34 of Indian Penal Code is maintained, but the sentence is altered and they are convicted to undergo 3 years rigorous imprisonment and to pay a fine of Rs. 1,000. 00 (one thousand only) each and in default of payment of fine, they shall undergo a further rigorous imprisonment for six months. Trial Courts order regarding the disposal of seized currency notes, motor cycle and other seized articles seized is maintained. Record be returned. Appeal allowed partly. .