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2010 DIGILAW 431 (MP)

Ram Naresh v. State Of M. P.

2010-04-13

A.K.SHRIVASTAVA, S.S.KEMKAR

body2010
JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 6th May, 2002 passed by the Special Judge, Bhind in Special Case No. 62/00 convicting the appellants under sections 364-A and 365 of Indian Penal Code read with sections 11/13 of the Madhya Pradesh Dakaiti Avam Vhapaharan Prabhavit Kshetra Adhiniyam, 1981 (hereinafter, referred to as "Adhiniyam") and thereby sentencing them to suffer imprisonment for life and fine of Rs. 10000/- each, this appeal has been filed by the appellants under section 374(2) of the Code of Criminal Procedure, 1973. 2. During the pendency of this appeal, appellant No. 1 Ram Naresh alias Lala did not survive and breathed his last, as a result of which, his appeal stood abated and his name has been deleted from the cause title. Hence, we are required to see the case of appellant No. 2 Chintole. 3. In brief, the case of the prosecution is that on 26-5-2000, at 5.00 p.m., Gopal (hereinafter, referred to as the "abductee"), went to purchase Ghee and as soon as he arrived on the main road, Ram Naresh (deceased appellant No. 1), appellant No. 2 Chintole and some other accused persons namely Lakhan Pathak and Mohan Das stopped and scuffled with him. At that juncture, one more accused Narayan Das Gupta arrived there on his red coloured motorcycle. All these accused persons forcibly carried away the abductee on the said motorcycle. The abductee was sitting in the middle, while deceased appellant Ram Naresh was sitting in front of him and appellant No. 2 Chintole carrying a 12 bore gun was sitting behind him. All these accused persons carried the abductee towards Machand where they stayed in the night in village Hukumpura. On the next day, a dacoit namely Salim alias Pahalwansingh arrived there along with his three companions, to whom the abducttee was handed over. 4. It is further the case of the prosecution that dacoit Salim was causing marpeet with the abductee and restrained him for six months. The abductee was kept by the dacoits in order to obtain ransom. Father of abductee namely Girja Shankar received a letter of dacoits in which a sum of Rs. 22,51,011/- was demanded towards ransom. Father of the abductee namely Girja Shankar lodged first information report in Police Station, Mihona. 5. The abductee was kept by the dacoits in order to obtain ransom. Father of abductee namely Girja Shankar received a letter of dacoits in which a sum of Rs. 22,51,011/- was demanded towards ransom. Father of the abductee namely Girja Shankar lodged first information report in Police Station, Mihona. 5. On lodging of the first information report, the criminal law was triggered and set in motion. The investigating agency, after registering a case, investigated the matter and when the abductee was released, recorded his statement. After the investigation was over, charge-sheet under sections 364-A and 365 of Indian Penal Code and sections 11/13 of the Adhiniyam was submitted. 6. The learned Special Judge, on the basis of the allegations made in the charge-sheet framed charges punishable under sections 364-A and 365 of Indian Penal Code and sections 11/13 of the Adhiniyam which the accused persons including the appellants denied and requested for trial. 7. In order to bring home the charges, the prosecution examined as many as thirteen witnesses and placed Ex.P/1 to P/11, the documents on record. 8. The defence of the appellants is of false implication and the same defence they set forth in their statements recorded under section 313 of Criminal Procedure Code. However, in support of their defence, they did not choose to examine any witness. 9. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges have been proved against the appellants and eventually convicted them for the charges framed against them. However, the learned Special Judge came to hold that since the charge under section 365 of Indian Penal Code is a part of section 364-A of Indian Penal Code, no separate sentence is awarded under that section. 10. In this manner, this appeal has been preferred by the appellants assailing their judgment of conviction and order of sentence. 11. The contention of the learned counsel for the appellant is that if the testimony of the abductee is taken into consideration in proper perspective, it would reveal that his evidence is not believable for the simple reason that there is material omission in his statement. In his testimony, he has stated that on paying a ransom of rupees five lac, he was released, but this fact did not find place in his case diary statement (Ex.D/2). In his testimony, he has stated that on paying a ransom of rupees five lac, he was released, but this fact did not find place in his case diary statement (Ex.D/2). It has also been put forth by the learned counsel that as per the case of the prosecution a letter was written by the dacoits to the father of the abductee, but that letter has not been produced in Court and, therefore, adverse inference should be drawn against the prosecution. On these premised submissions, it has been contended by the learned counsel that appellant Chintole who is languishing in jail for the last ten years be set free by allowing his appeal and by setting aside the judgment of conviction and order of sentence. 12. On the other hand, Shri Praveen Newaskar, learned Public Prosecutor for the respondent/State argued in support of the impugned judgment and submitted that father of abductee namely Girja Shankar, who is the author of the FIR (Ex.P/2), unfortunately, before he could be examined in Court, breathed his last. However, the factum of making ransom has been proved because the brother of the abductee namely Govind Tiwari (PW3) has categorically stated that after making payment of the ransom of rupees five lac, the abductee was got released. It has also been put forth by the learned Public Prosecutor that merely because the letter of the dacoits was not produced by the prosecution in the trial Court, it would not either dilute or somersault the case of the prosecution for the simple reason that dacoit Salim alias Pahalwansingh has not been tried in the case. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 14. True, on examining the testimony of abductee Gopal (PW1), we find that part of the statement of this witness where he has stated that after making payment of ransom he was released did not find place in his case diary statement (Ex.D/2). But his statement on other material points is clear, cogent and trustworthy. Specifically, by naming deceased appellant as well as appellant Chintole, he has stated that when he went to purchase Ghee, the appellants and other accused persons came there and scuffled with him. But his statement on other material points is clear, cogent and trustworthy. Specifically, by naming deceased appellant as well as appellant Chintole, he has stated that when he went to purchase Ghee, the appellants and other accused persons came there and scuffled with him. Thereafter, he was carried on a motorcycle which was driven by deceased appellant Ram Naresh while Appellant Chintole having 12 bore gun was sitting behind him. He was carried away to village Hukumpura which is in the State of Uttar Pradesh. Specifically, he is saying that on the next day, he was handed over to dacoit Salim. Hence, from the statement of this witness, the factum of his abduction as well as handing over to dacoit Salim has been found to be proved in which present appellant Chintole is involved. 15. We do not find any merit in the contention of the learned counsel for the appellant that the abductee was later on declared hostile, and therefore, his testimony should not be taken into consideration. True, this witness was declared hostile, but if we examine the entire gamut how his statement was conducted in the trial Court, we find that on 14-8-2001, examination-in-chief of this witness was started and it was almost over, but, it could not be completed because the prosecution submitted an application under section 319 of Criminal Procedure Code. Lateron, on 7-3-2002, the learned Public Prosecutor without asking further more questions closed his examination-in-chief, and thereafter, the defence cross-examined the abductee and during the course of cross-examination, he was declared hostile. In his examination-in-chief, this witness has specifically assigned role not only to the present appellant Chintole, but also to deceased appellant Ram Naresh. But after seven months, when he was cross-examined on 7-3-2002, he deposed in favour of the appellant. In these state of affairs, we can infer that this witness was won over by the appellants. In the similar facts and circumstances, the Supreme Court in Khujji alias Surendra Tiwari vs. State of M. P., AIR 1991 SC 1853 has categorically stated that in these circumstances if the witness has not supported the case of prosecution, the defence will not get any benefit of doubt. This decision of the Supreme Court has been later on followed in subsequent decision in Radha Mohan Singh vs. State of U. P., AIR 2006 SC 951 . This decision of the Supreme Court has been later on followed in subsequent decision in Radha Mohan Singh vs. State of U. P., AIR 2006 SC 951 . Hence, the argument of the learned counsel for the appellant, at the first blush though appears to be attractive, but on deeper scrutiny we find it to be devoid of any substance, and hence, we hereby reject the said argument. 16. No doubt, it is true that there is material omission in the statement of the abductee about the factum of asking for ransom, and in his case diary statement (Ex.D/2), this fact did not find place, but according to us, this will not somersault the entire case of the prosecution or even dilute the case of prosecution for the simple reason that another witness namely Govind Tiwari (PW3) who is the real brother of the abductee has categorically stated that after making payment of ransom of rupees five lac, the abductee was got released from the clutches of the dacoits and this fact did find place in his case diary statement (Ex.D/1). 17. We do not find any substance in the contention of the learned counsel for the appellant that testimony of Govind Tiwari (PW3) should not be relied upon because according to him the message of asking for ransom was conveyed to his father Girja Shankar and a letter was also received by his father. Unfortunately, Girja Shankar could not be examined before his death, but we can infer that if ransom is being asked for from the father, certainly this fact must have been discussed by Girja Shankar in the family and therefore, this witness Govind Tiwari (PW3) who is a family member can very well say that after payment of ransom, the abductee was got released. 18. We also do not find any substance in the contention of the learned counsel for the appellant that because the alleged letter through which the demand of ransom was made was not produced by the prosecution, therefore, adverse inference should be drawn against the prosecution. According to us, even if that letter would have been produced, at the most, it could have been another corroborative piece of evidence. According to us, even if that letter would have been produced, at the most, it could have been another corroborative piece of evidence. The question is why the unimpeached testimony of Govind Tiwari (PW3) should be disbelieved in which it has been specifically stated by this witness that the abductee was got released after making payment of ransom to the dacoits. 19. We have gone through the reasonings assigned by the learned Special Court and we find that the learned Special Court after correct appreciation and marshalling of the evidence, convicted the appellants under sections 364-A and 365 of Indian Penal Code, and sections 11/13 of the Adhiniyam and passed the judgment and no interference is required. Hence, by this judgment, we hereby extend our stamp of approval to the reasonings assigned by the learned Special Judge. 20. Ex consequenti, this appeal is found to be bereft of any substance. The same is hereby dismissed.