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Madhya Pradesh High Court · body

2008 DIGILAW 159 (MP)

Chhota Mirdha v. State of M. P.

2008-01-29

A.P.SHRIVASTAVA

body2008
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 19.4.2000 passed by the IInd Additional Sessions Judge, Dabra, District Gwalior, In ST No. 265/98 by which the appellant has been convicted under section 364A of IPC and sentenced to undergo rigorous imprisonment for seven year with a fine of Rs. 5,000/- with default stipulation. 2. The story of the prosecution, in short, is that on 8.3.1998 at about 12:30 afternoon complainant Shyamlal (PW 1) lodged the first information report at Police Station Gijourra to the effect that on the night of 7.3.1998, when he alongwith Bheekam (PW 2) was going towards the well, on the way, eight unknown miscreants came there and they abducted both of them. Shyamlal was released by the abductors with a 'direction to bring Rs. Two lacs as ransom to get another abductee Bheekam released. On 17.3.1998, Bheekam Singh was got released by the police. The panchnama is Ex. P-3. After completion of the investigation, charge-sheet was filed before the trial Court and the case was committed to the Court of Sessions. The Sessions Court after hearing the arguments and recording the evidence adduced by both the sides, convicted the appellant and co-accused Sobaran Singh. In the incident, eight accused persons were involved while apart from the appellant and Sobaran Singh, two accused Pappu and Ajuddi were also arrested during trial but they were acquitted by the trial Court while four accused are absconding. 3. It is submitted by the learned counsel for the appellant that the trial Court has not appreciated the evidence properly and the statements of the prosecution witnesses become doubtful about the story written in the FIR because the FIR is not named and it is clearly written that eight miscreants had participated in the crime whose names were not known to the complainant except one Sobaran but in the statement of Shyamlal (PW 1), he stated that he knew Sobaran and the appellant because they belong to the nearby village. Further, there is also contradictory statement about how Bheekam (PW 2) escaped from the custody of the abductors because in the FIR, it is mentioned that the miscreants had sent Shyamlal (PW 1) for bringing Rs. two lacs as ransom but in the statement Bheekam (PW 2) stated that when the miscreants were sleeping he ran away from the spot. Further, there is also contradictory statement about how Bheekam (PW 2) escaped from the custody of the abductors because in the FIR, it is mentioned that the miscreants had sent Shyamlal (PW 1) for bringing Rs. two lacs as ransom but in the statement Bheekam (PW 2) stated that when the miscreants were sleeping he ran away from the spot. Therefore, the statement is inconsistent and further in cross-examination Shyamlal (PW 1) deposed that he could not identify the person who demanded Rs. two lacs. It is further submitted that the trial Court has disbelieved the story of the police encounter and during investigation, no test identification parade was conducted by the police while in the evidence it has come that the miscreants had wrapped their faces. 4. Bheekam Singh (PW 2), in his statement: stated that when he was going alongwith Shyamlal (PW 1) then at about 9:00 in the night, 7-8 persons came there in which Sobaran and the appellant were present and they were known to him earlier. The miscreants abducted both of them and demanded Rs. two lacs from Shyamlal (PW 1) for getting him released. But Bheekam Singh (PW 2) gave contradictory version about the demand of ransom. In his statement, he deposed that when the miscreants were sleeping he ran away and this part is omitted in the report as well as in the police diary statement that when he was released? He also told that he knew Sobaran and the appellant. But in para 9 of the judgment, the trial Court has observed that Bheekam (PW 2) stated in his cross-examination that it was dark night at the time of incident and the persons could not be identified. He also admits that the miscreants had wrapped their faces. But when they had wrapped their faces then how he doubted his testimony. Similary, the same observation was made by the Court in para 10 of the judgment about the statement of Shyamlal (PW 1) that when he knew Sobaran and the appellant then why the name of alone Sobaran Singh has been mentioned in the FIR which was lodged on the next day at 12:30 p.m. at police station? Similary, the same observation was made by the Court in para 10 of the judgment about the statement of Shyamlal (PW 1) that when he knew Sobaran and the appellant then why the name of alone Sobaran Singh has been mentioned in the FIR which was lodged on the next day at 12:30 p.m. at police station? Although there are inconsistencies in the statements of the witnesses yet the trial Court observed, in para 12 of its judgment, that as the Sobaran and the appellant were known to the witnesses, therefore, Court believed the identification of the appellant but it appears that there is no explanation given by the prosecution why the names of the miscreants were not mentioned in the FIR Ex. P-l when they were known to him. This is a serious lacuna in the case to which the trial Court has ignored altogether. The evidence regarding the demand of ransom was also not established on the testimonies of both the witnesses. Bheekam was declared hostile by the prosecution at the later stage of his testimony. 5. Therefore, from the perusal of the prosecution evidence as adduced, it appears that the trial Court has failed to establish the guilt against the appellant beyond reasonable doubt. Therefore the finding of conviction and sentence deserves to be set aside and is hereby set aside. Hence, the appellant is acquitted of the charges levelled against him under section 364-A of IPC. If the amount of fine is realized, it be returned to him. 6. In the result, this appeal stands allowed.