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Madhya Pradesh High Court · body

2005 DIGILAW 1123 (MP)

MOHAN K. PRAJAPATI v. STATE OF M. P.

2005-11-08

S.C.VYAS, S.K.KULSHRESTHA

body2005
S. K. KULSHRESTHA, J. ( 1 ) THIS appeal by the convicted accused, is directed against the judgment dated 24-3-2003 of the learned viiith Addl. Sessions Judge, Indore, in Session trial No. 239/2000 by which, while acquitting co-accused Prakash-chandra chouhan and Ms. Binu Chouhan, the learned Judge has convicted the appellant under Section 302 and 364 of the Indian penal Code and sentenced him under each count to undergo imprisonment for life and pay fine ofrs. 100/ -. ( 2 ) THE appellant was prosecuted for the offence u/s. 364, 364-A, 302 and 201 of ipc along with the acquitted accused who were prosecuted for the said 6ffence r/w. Sec. 34 of the IPC, on the allegation that on 24-8-1994, at about 7. 00 a. m. , they had kidnapped Gaurav s/o Satishchandra, aged 12 years, with a view to demand ransom and otherwise to cause his death and in pursuance thereof demand for ransom was made and eventually the child, the demand having not been fulfilled, was murdered. The case of the prosecution was that on the said date while the child was proceeding towards his school, Saraswati Shishu Mandir, on a bicycle, he was accosted en route and kidnapped, leaving his satchel and bicycle behind. A woman of the locality, on witnessing that the child had been kidnapped, had rushed to the house of the complainant and narrated the event to him. A search was instituted but the child was not found. In the meanwhile, some one had thrown a note in a polythene by means of a stone containing a ransom note. The matter was reported to the police by Satishchandra Garg (PW3) and fir (Ex. P/2) was recorded at 8:20 a. m. on the same day. Investigation commenced, during which again a ransom note in a box of sweets containing eyes of a goat was received making a demand of Rs. 1,00,000/-for the release of the kidnapped boy. The said note was seized vide Ex. P/3. The note was followed by series of such demands, but no further progress was made in the matter. ( 3 ) THE investigation also did not make appreciable progress. However, after five years the accused was apprehended in relation to a case of theft in which, according to the prosecution, he gave information with regard to the said case of kidnapping. ( 3 ) THE investigation also did not make appreciable progress. However, after five years the accused was apprehended in relation to a case of theft in which, according to the prosecution, he gave information with regard to the said case of kidnapping. He was arrested and on interrogation a pocket diary was pointed out by the accused which was seized vide Ex. P/11, on 9-12-2000. Another note book was seized vide Ex. P/6. His house was searched and post cards written by him were seized, vide Ex. P/23. On 10-12-1999, the Scooter said to be belonging to the appellant was seized and its documents were seized from Khanuja Auto Deal vide Ex. P/14. Specimen hand-writing was obtained on 10-12-1999 vide Exs. P/166 to p/171. Further specimen hand-writing was obtained vide Exs. P/143 to P/148. Further interrogation led to the discovery of the pieces of the dead body buried in 'simrol ghat' which were seized vide Ex. P/28. Photographer was also called to take photographs and entry to this effect was made in the general diary vide Exs. P/161 and p/162. Appellant Mohan was further interrogated and on his disclosure with regard to the clothes and shoes of the deceased, the same were recovered and seized vide Ex. P/29. Entry to this effect was made in the general diary vide Ex. P/163. A hak-saw, as per the information given by the appellant was seized vide Ex. D/13. ( 4 ) IT is not disputed before us that although reliance was placed in the trial court on the evidence of Mahendra Kumar (PW-2), vinod Sharma (PW 5) arid Smt. Jyoti (PW 6)as the persons who had witnessed the incident of kidnapping, but in view of the fact that they had neither claimed to have recognised the persons involved in the kidnapping or the Scooter used in the same, they could not have been treated to be the eye-witnesses of the incident. Under the circumstances, apart from the fact that they have stated that an incident of kidnapping took place their evidence was of no assistance to the prosecution insofar as proving the complicity of the persons put to the trial was concerned. It was in this background that the trial Court rightly held that the case of prosecution hinges only on the circumstantial evidence. It was in this background that the trial Court rightly held that the case of prosecution hinges only on the circumstantial evidence. ( 5 ) LEARNED counsel for the appellant submits that a number of circumstances were pressed into service to prove the prosecution case namely; recovery of scooter bearing Registration No. MP09 L 6375, recovery of Aari (hack-saw), recovery of bones allegedly of the deceased, his clothes and shoes and the handwriting of the accused matching with one of the ransom notes but apart from the evidence of Hand Writing Expert with regard to one of the ransom notes, no other circumstance has been found as proved by the trial Court. Learned counsel submits that even on the weak evidence of the Hand Writing Expert that too in the present case where there is evidence to suggest that the specimen handwriting had not been found sufficient by him for comparison, the conviction could not have been founded. Her alternative submission is, that the trial Court has based the conviction from the hind sight as even if it is inferred that one of the notes was in the handwriting of the appellant as assumed by the trial Court, from this fact it cannot be concluded that the appellant was having the custody of the boy or keeping him in his custody or was the person who committed his murder especially when there was no material on record to prove the corpus delicti. ( 6 ) LEARNED Dy. Advocate General, per contra, has submitted that insofar as the evidence of hand writing is concerned, even with the passage of time it does not get diminished or wiped out and since the expert has given categorical opinion that the handwriting matches with the specimen hand writing of the accused (Ex. P/143), there is no room for any further speculation and the said circumstance is clinching. The complicity of the appellant having thus been established, it follows that the accused was the person who kidnapped the deceased, kept him in his custody and on failure to obtain the ransom, killed him. P/143), there is no room for any further speculation and the said circumstance is clinching. The complicity of the appellant having thus been established, it follows that the accused was the person who kidnapped the deceased, kept him in his custody and on failure to obtain the ransom, killed him. ( 7 ) THE short question that arises for consideration before us is as t6 Whether in the facts and circumstances of the case, from the mere evidence of the Hand Writing Expert Rajendra Verma (PW 36), it is possible to sustain the conviction of the appellant for offence u/s. 802 and 364 A of IPC Before proceeding to consider the evidence of hand writing, we may briefly refer to the other evidence which has been discarded by the trial Court. ( 8 ) EVEN though Mahendra Kumar (PW 2), Vinod Sharma (PW 5), Smt. Jyoti (PW S)had not given the Registration number of the Scooter allegedly used by the kidnappers the police on the specious plea that the information was given by the appellant with regard to the said Scooter, effected its seizure from Khanuja Auto Deal and prepared documents Exs. P/13 and P/14. However, the said vehicle could not even remotely be connected with the said incident which was more than five years old and in this view of the matter the learned Judge observed/that the Scooter could not be treated as any incriminating cirumstance. With regard to hak-saw, bones, clothes and shoes-considered as discovered at the instance of the accused, learned Judge has meticulously discussed the evidence in paragraph 61 of the judgment. We may observe that nothing was stated to show that any saw was used in making pieces of the body. Even on the bones allegedly recovered, it was not stated that there were saw marks. Though it was stated that there was blood on the saw, there was no evidene that it contained any human blood. It was for this reason that saw could not be connected with the said crime. The most significant aspect is with regard to the recovery of the bones. The bones were subjeted to DNA Examination vis-a-vis the parents and it was found that they did not match with the DNA of the parents. This ruled out the bones being that of the child gaurav. The most significant aspect is with regard to the recovery of the bones. The bones were subjeted to DNA Examination vis-a-vis the parents and it was found that they did not match with the DNA of the parents. This ruled out the bones being that of the child gaurav. Under these circumstances, it is clear that apart from the investigation being shady, there was nothing on record to prove that child Gaurav had died. ( 9 ) THE only evidence which has been pressed into Service for founding the conviction is the testimony of Rajendra Verma (PW 36)- Hand Writing Expert and his Report (Ex. P/152 ). Before adverting to his report, we may record that the Order Sheet dated 16-8-2000 of the trial Court refers to the application of the prosecution dated 10-8-2000 seeking specimen writing of the appellant in 15 pages, bearing due Certification of a Gazetted Officer However, it seems that comparison was made with the specimen already obtained on 12-12-1999 (Exs. P/143 to P/148) during police custody and on that basis while the Hand Writing Expert could not express any definite opinion with regard to the other questioned documents, in respect of) document Article-B, he stated that a part of that document appeared to be in the handwriting of the appellant. Since the opinion relates only to a negligible part of the document out of several documents, it only creates a suspicion about his complicity and there being no other corroborating evidence, by itself it would be hazardous to act on the said solitary pircumstance of the prosecution evidence. This apart Section 364-A of the Indian Penal code lays down as under : 364-A Whoever kidnaps, or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. ( 10 ) IT is manifest from a bare reading of the provision that there should be evidence against the person prosecuted that he has kidnapped, abducted any person or kept that person in detention and after such kidnapping or abduction and threatens to cause death or hurt to such person. In the present case, no evidence has been led that the appellant was in any way engaged in kidnapping or abduction or detention of the person. One cannot rule out that real kidnappers and the person who detain a kidnapped person may, in a given situation, take assistance from outsiders for preparation of the ransom notes who have no knowledge with regard to the kidnapping or detention. Thus, from the mere fact of a suspicion that a ransom note has been written by the accused, inference that he is involved in kidnapping, abduction or detention of the person cannot be drawn. We are. therefore, unable to persuade ourselves to hold that a person from the solitary circumstance of having written a ransom note can be convicted u/s. 364-A without there being some indication in the evidence that he was otherwise also concerned in the kidnapping, abduction or detention. Insofar as the question of murder of the child is concerned, we have already observed that the prosecution has not been able to prove corpus delicti and, therefore there are no cirumstances from which we can assume that the boy said to have been kidnapped, has been murdered. We are not suggesting that in every case it is necessary for the prosecution to prove the corpus delicti. There are cases in which there are eye-witnesses to depose to the factum of death in which case even if body is not available, death can be proved. However, in the present case, since there are no circumstances to indicate that child gaurav has died, it is not possible for us to hold that he is dead. Even assuming for the sake of argument that he is no more in the world, there is nothing on record to suggest that his death has been caused by the present appellant. The bones recovered have been ruled out to be the bones of Gaurav. This apart from the evidence nothing can be spelled out to show that his murder has been committed and that the appellant is in any way connected with the same. The bones recovered have been ruled out to be the bones of Gaurav. This apart from the evidence nothing can be spelled out to show that his murder has been committed and that the appellant is in any way connected with the same. ( 11 ) IN the case of circumstantial evidence, each, cirumstance should clearly point to the guilt of the accused and the circumstances taken together should make a complete chain incompatible with any hypothesis of the innocence of the accused. In the present case, we have only a single circumstance and that circumstance is also not incompatible with the hypothesis of the innocence of the accused. In such a situation we are of the considered view that conviction of the appellant cannot be sustained. The appeal is, therefore, allowed. The conviction of the appellant and the sentence awarded to him are set aside. He is acquitted of all the charges. He be released from custody forthwith, if not required in any other case. Appeal allowed. .