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Madhya Pradesh High Court · body

2013 DIGILAW 1368 (MP)

Purushottam v. State of M. P.

2013-11-12

B.D.Rathi, Brij Kishore Dube

body2013
JUDGMENT Rathi, J.1. This judgment shall govern the disposal of Cr.A.No.611/1999, Cr.A.No.612/1999 and Cr.A.No.147/1999 as all these appeals have arisen out of common judgment of conviction passed by the trial Court. These appeals under section 374 of the Code of Criminal Procedure, 1973 (in short “the Code”) have been preferred by the appellants being aggrieved from the judgment of conviction dated 12.11.1998 passed by learned First Additional Sessions Judge, Shivpuri in S.T. No.45/1991, whereby appellants have been convicted under sections 365, 347 and 302 read with section 120B of Indian Penal Code (in short “IPC”) and sentenced to undergo 7 years’ rigorous imprisonment with fine of Rs. 2,000/-, 3 years’ rigorous imprisonment with fine of Rs. 1,000/- and life imprisonment with fine of Rs. 5000/- respectively with default stipulation. 2. The prosecution story, in brief, is that on 30.11.1990 Santosh S/o Ramprasad Ojha Aged 10 years had gone to ITBP School in the morning at 7 am. He was the student of 4th class. He had not returned to home but his father had received unstamped (‘Berang’) letter containing that you may take your son Santosh at Morena Station after payment of Rs. 6 lakhs as ransom. FIR Ex-P/4 was lodged on the same day at about 3:00 pm. Crime No. 180/1990 was registered at police station Karera District Shivpuri. During investigation, it was found that Santosh had been kidnapped for ransom by Gyasi, Purushottam, Gopal, Manoj, Rambabu and Ramcharan and thereafter, murder of Santosh was committed by the above named persons. After completion of investigation, charge-sheet was filed. 3. During the trial, the charges under sections 365, 347, 302 read with section 120B of IPC were framed. The accused persons pleaded not guilty to the charges and contended that they had been falsely implicated. 4. Accused Rambabu and Ramcharan were acquitted by the trial Court by passing the impugned judgment dated 12.11.1998. One Gyasi S/o Mohan (appellant in Cr.A.No.616/1998) had died during pendency of appeal before this Court and his appeal was abated. 5. It is argued by learned senior counsel that appellant-Purushottam does not want to press his appeal against the conviction, as well merited. One Gyasi S/o Mohan (appellant in Cr.A.No.616/1998) had died during pendency of appeal before this Court and his appeal was abated. 5. It is argued by learned senior counsel that appellant-Purushottam does not want to press his appeal against the conviction, as well merited. It was further submitted that the appellant -Purushottam was juvenile on the date of incident, and even on conviction he cannot be sent back to the jail to suffer remaining part of jail sentence, in view of the principle laid down by the apex Court in the case of Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2013) 1 SCC (Cri) 83, Vijay Singh .v State of Delhi (2012) 8 SCC 763 , Upendra Kumar v. State of Bihar (2005) 3 SCC 592 , Hari Ram v. State of Rajasthan and another (2010) 1 SCC (Cri) 987 and Kallu alias Amit v. State of Haryana 2012 CRILJ 4244. Further it is contended by learned senior counsel that for appellant -Manoj, trial Court has not properly appreciated the evidence on record and he prayed for acquittal of appellant -Manoj. Learned senior counsel on behalf of appellant -Gopal submitted that there is no evidence against him and therefore, the impugned judgment of conviction be set aside and he be acquitted from all the charges. 6. Learned Public Prosecutor on the other hand defended the conviction and sentence of the appellants. 7. To bring home the charges prosecution has examined as many as 32 witnesses, namely, Dr. A.M. Tiwari (PW 1), Ramprasad (PW 2), Nemichand Jain (PW 3), Dhirendra (PW 4), Kashiram (PW 5), Ram Singh (PW 6), Narendra (PW 7), Haricharan (PW 8), Damodar (PW 9), Arun Kumar (PW 10), Mahesh Chandra (PW 11), Ramsewak (PW 12), Sokatullah (PW 13), Yogendra Kumar (PW 14), Vikram Singh (PW 15), Namdar Khan (PW 16) Jugal Kishore (PW 17), Mahendra Singh (PW 18), Ravi Goyal (PW 19), Ramesh (PW 20), Babulal (PW 21), Narayan Prasad (PW 22), Lakhanlal (PW 23), Mangal Singh (PW 24), Devi Singh (PW 25), Gajraj Singh (PW 26), Handwriting expert H.S. Tomar (PW 27), Tahsildar A.S. Tomar (PW 28), P.P. Sharma (PW 29), Mukut Pratap Singh (PW 30), Vishnuram Joshi (PW 31) and Munish Rajoriya (PW 32). 8. 8. Having regard to the arguments advanced by the parties, we have perused the entire evidence and material available on record as well as the impugned judgment of trial Court. 9. The entire case of prosecution was based on circumstantial evidence of last seen and a letter for demanding of ransom Ex-P/3 written by appellant -Manoj. 10. To prove the last seen theory, Dheeraj (PW 4), Head Master of the School Kashiram (PW 5), Ram Singh (PW 6) and Narendra (PW 7) were examined. Ransom letter Ex-P/3 was written by appellant -Manoj and to prove this fact handwriting expert H.S. Tomar (PW 27) has been examined. Appellant -Purushottam and Manoj were identified during Test Identification Parade as well as in Court and for this purpose Kashiram (PW 5), Ram Singh (PW 6), Narendra Dayal Dubey (PW 7) have been examined. Appellant -Purushottam was also identified by Dhirendra (PW 4). 11. After taking into consideration, the entire evidence and material available on record, it was held by the trial Court that Santosh was kidnapped by the appellants and thereafter he was murdered. 12. On perusal of evidence, Kashiram (PW 5) testified in paragraph 3 of his evidence that he had seen Manoj, Gopal and Purushottam were talking with Ram Singh, School Teacher in school premises. Similarly Ram Singh (PW 6) also testified in paragraph 3 of his evidence that Gopal and Manoj were seen along with Purushottam. Dhirendra (PW 4) categorically deposed that he was classmate of Santosh Ojha and up to break time Santosh was present in the school. He had also seen that while Santosh was going to drink water, Purushottam was chasing him and thereafter Santosh and Purushottam both were not found in the School. Kashiram (PW 5) and Ram Singh (PW 6) have categorically stated that thereafter they have come to know that Santosh was murdered. 13. For Manoj, the linked evidence ransom letter Ex-P/3 was produced. That letter was written by Manoj in his own handwriting and this fact was very well proved from the evidence of H.S. Tomar (PW 27) but to connect the appellant -Gopal no other evidence was produced by the prosecution. Therefore, only on the basis of presence with Purushottam in open school premises, the conviction of Gopal cannot be sustained. 14. That letter was written by Manoj in his own handwriting and this fact was very well proved from the evidence of H.S. Tomar (PW 27) but to connect the appellant -Gopal no other evidence was produced by the prosecution. Therefore, only on the basis of presence with Purushottam in open school premises, the conviction of Gopal cannot be sustained. 14. In the aforesaid premises, we are of the considered view that the conviction under sections 347, 365 and 302 read with section 120B of IPC of appellant Purushottam and Manoj is well merited and no interference is called for. So far as appellant -Gopal is concerned, his conviction is perverse, illegal and liable to be set aside. In the aforesaid premises, appeal of the appellant -Gopal is allowed. The impugned judgment of conviction and sentence to the extent of appellant -Gopal is hereby set aside. He is acquitted of the charges under sections 347, 365, 302 read with section 120B of IPC. 15. Appeal of the appellant -Manoj (Cr.A.No.612/1998) being devoid of merits is hereby dismissed by affirming the impugned judgment of conviction and sentence. Appellant -Manoj is on bail. He is directed to surrender forthwith before the trial Court so he can be sent to jail to suffer remaining part of jail sentence. 16. Conviction of appellant -Purushottam (Cr.A.No.616/1998) is also upheld. In view of order dated 7th May, 2013, of this Court enquiry report dated 17.8.2013 has been received from the Court of Special Judge (Prevention of Atrocities Act), Shivpuri and as per the report on the date of incident i.e. on 30.11.1990, appellant -Purushottam was 16 years 4 months and 29 days’ old, meaning thereby he was juvenile on the date of incident, therefore, in the light of principle laid down by the Supreme Court in the judgments cited above, he cannot be sent back to jail to suffer remaining part of jail sentence. He has already undergone jail sentence therefore, the remaining part of jail sentence is hereby set aside. 17. With the aforesaid modifications, all these appeals are decided accordingly. Copy of this judgment along with the record of trial Court be sent to the trial Court for information and necessary compliance. Trial Court is directed to send the necessary information to the concerning jail authorities. Bail bonds of Purushottam and Gopal stand discharged. 17. With the aforesaid modifications, all these appeals are decided accordingly. Copy of this judgment along with the record of trial Court be sent to the trial Court for information and necessary compliance. Trial Court is directed to send the necessary information to the concerning jail authorities. Bail bonds of Purushottam and Gopal stand discharged. V.K. Saxena, Aditya Singh and Ajmer Singh Yadav for appellants; A.K. Shrivastava, Panel Lawyer for respondent/State.