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Madhya Pradesh High Court · body

2013 DIGILAW 431 (MP)

Mukundi Gadariya v. State of M. P.

2013-04-02

N.K.Gupta

body2013
ORDER 1. The applicants were convicted for the offence punishable under section 386 of IPC vide judgment dated 4.3.1999 passed by the JMFC, Tikamgarh (Smt. Renuka Kanchan) in Criminal Case No.61/1998 and each sentenced for 3 years’ rigorous imprisonment with fine of Rs.5,000/ In Criminal Appeal No.20/1999 the learned Additional Sessions Judge and Special Judge vide judgment dated 11.8.1999 dismissed the appeal in toto. Being aggrieved with the judgments passed by both the Courts below, the applicants have preferred the present revision. 2. The prosecution’s case, in short, is that, the complainant Jamuna Prasad (PW1) had lodged an FIR, Ex.P-1 to the S.P., Tikamgarh that the deceased Barelal was his grandfather. The applicants Mithaiya and Mukundi were the members of the gang constituted by the Dacoit Jagbhan Singh. On 8.1.1996, the applicant Mithaiya, after assaulting the victims Ram Singh (PW3) and Jhallu (PW2) by firing from a gun, absconded and joined the band of Dacoit Jagbhan Singh. Thereafter, he was pressuring the grandfather of the complainant to execute the sale-deed of a particular land in favour of his relatives. After sometime, the applicants abducted the victims Raghuveer (PW6) and Govind Singh (PW5) and the deceased Barelal was pressurized to execute the sale-deed and, therefore, a sale-deed, Ex.P-5 was executed. Due to fear of the applicants and their band, the complainant could not lodge an FIR. When the complainant came to know that Dacoit Jagbhan was killed and the applicants had surrendered, a written complaint was sent by the complainant on 8.7.1997. The police registered a case and after due investigation, a charge-sheet was filed before the trial Court. 3. The applicants abjured their guilt. They took a plea that there was a dispute of land between the parties from very beginning and thereafter, the deceased Barelal executed the sale-deed, after taking the sale amount. The sale-deed was executed in the favour of Tuda and Mukundi along with three brothers of Mukundi. In defence, Ram Prasad (DW1) was examined, who was the witness to the sale-deed. 4. After considering the evidence adduced by the learned counsel for the parties, the learned JMFC, Tikamgarh, convicted and sentenced the applicants as mentioned above, whereas, the appeal filed by the applicants was dismissed by the learned Additional Sessions Judge, Tikamgarh in toto. 5. I have heard the learned counsel for the parties at length. 6. 4. After considering the evidence adduced by the learned counsel for the parties, the learned JMFC, Tikamgarh, convicted and sentenced the applicants as mentioned above, whereas, the appeal filed by the applicants was dismissed by the learned Additional Sessions Judge, Tikamgarh in toto. 5. I have heard the learned counsel for the parties at length. 6. It is a general rule of appreciation of evidence that the concurrent findings given by both the Courts below, dependant upon the facts shall not be disturbed unless any illegality is visible in that appreciation of evidence. In the present case, the learned JMFC as well as the learned Additional Sessions Judge considered the matter in a sympathetic manner towards the complainant because the applicants were members of a band of dacoits, whereas looking at the evidence, it appears that a false case has been constituted against the applicants. It is alleged that the applicants terrorized the victims to execute the sale-deed and, therefore, they extorted the valuable property from the deceased Barelal, who died prior to the filing of the FIR. Such doubt is created due to three different aspects. Firstly, it is alleged that the sale-deed was executed under coercion but, it is strange that neither the complainant, nor his family members accompanied the deceased Barelal to office of the Registrar who executed the sale-deed and sale-deed was executed in presence of two witnesses namely Punua (PW8) and Ram Prasad (DW1). Ram Prasad (DW1) has stated that the entire payment was made to the deceased Barelal for execution of the sale-deed, whereas Punua has stated that he put his thumb impression on the registry, after hearing the entire text of the registry. He did not know as to whether any consideration was passed or not. The witness Punua was not declared hostile and, therefore, his testimony is binding on the prosecution. If the deceased Barelal was under pressure to execute a sale-deed then, he would have told the fact to the witnesses Punua or Ram Prasad unless they were the sympathizers of the accused. The witness Punua was not declared hostile and, therefore, his testimony is binding on the prosecution. If the deceased Barelal was under pressure to execute a sale-deed then, he would have told the fact to the witnesses Punua or Ram Prasad unless they were the sympathizers of the accused. It is nowhere alleged against the witnesses Punua or Ram Prasad that they were the persons of confidence of the applicants and, therefore, when the deceased Barelal did not inform to any of the witnesses that he was executing the sale-deed under pressure, prima facie it appears that the consideration was passed and Barelal executed the sale-deed after getting the payment. If the sale-deed was executed under pressure then, the complainant or other relatives of the deceased Barelal must have accompanied him to the registry office in getting the sale-deed executed but, it is strange that neither Jamuna Prasad (PW1), Jhallu (PW2), Ram Singh (PW3), Ram Kunwar (PW4), Govind Singh (PW5), Raghu (PW6), or any other relative of the deceased Barelal accompanied him at the time of execution of the sale-deed. 7. Secondly, it was alleged by the complainant Jamuna Prasad that the applicant Mithaiya absconded after firing upon the witnesses Jhallu (PW2) and Ram Singh (PW3). That incident was told by Jamuna Prasad (PW1), Ram Kunwar (PW4), Govind Singh (PW5) etc., whereas none of them was the eye-witness to that incident and, therefore, the testimony of these witnesses was nothing but, a hearsay evidence, which could not be believed. On the other hand, Ram Singh (PW3) turned hostile. He did not express that any firing was done by the applicant Mithaiya upon him. He categorically denied about that firing done upon him. On the contrary, he told that the applicant Mithaiya had abducted Halke and Bhagwan. Similarly, the second victim Jhallu told about the abduction of Raghu and Govind but, he did not say anything about firing done by the applicant Mithaiya upon him. The witness Jhallu was not declared hostile and, therefore, his testimony is binding upon the prosecution. Under such circumstances, the story of firing upon two relatives of the deceased Barelal appears to be a falsehood because both the victims Jhallu (PW2) and Ram Singh (PW3) did not confirm that story of the firing done by the applicant Mithaiya upon them. Hence, there was no pressure upon the deceased Barelal relating to that incident of firing. 8. Under such circumstances, the story of firing upon two relatives of the deceased Barelal appears to be a falsehood because both the victims Jhallu (PW2) and Ram Singh (PW3) did not confirm that story of the firing done by the applicant Mithaiya upon them. Hence, there was no pressure upon the deceased Barelal relating to that incident of firing. 8. Thirdly, it was alleged that Raghu (PW6) and Govind Singh (PW5) were abducted by the applicants. In that incident, Jamuna Prasad (PW1), Jhallu (PW2), Ram Singh (PW3), Ram Kunwar (PW4) etc. were not the eye-witnesses and, therefore, testimony of these witnesses is nothing but, a hearsay evidence which could not be relied upon, whereas the testimony of Govind Singh and Raghu is contradictory, which indicates that both of them are telling a falsehood. 9. Govind Singh (PW5) has stated that the applicant Mithaiya and Dacoit Jagbhan Singh went to the field, where the victims Govind Singh and Raghu were working. They abducted them and took them to their place. Govind Singh did not tell the name of the applicant Mukundi in that abduction, whereas, Raghu (PW6) has stated that Mithaiya, Mukundi, Jagbhan and other 2-3 persons took them from the field. Govind Singh has stated that they were held upto 9 p.m. in the evening and they were released after the execution of the sale-deed, whereas, Raghu has stated that they were released in the evening with a promise that their fathers be produced before the band on the next day and, therefore, the father of Raghu Lodhi was taken before the applicants and Dacoit Jagbhan, who promised for execution of that sale-deed and thereafter, sale-deed was executed after two days of the incident of abduction. If the testimony of the witness Raghu is correct then, why his father Bahora is not examined to corroborate his testimony that he went to the accused persons and promised for the registry. It is not possible for anyone to release the abducted persons until work was done and, therefore, it was not possible for the applicants to release Raghu and Govind, if registry was not executed prior to their release. Hence, it is apparent that the witness Raghu is not telling the truth. It is not possible for anyone to release the abducted persons until work was done and, therefore, it was not possible for the applicants to release Raghu and Govind, if registry was not executed prior to their release. Hence, it is apparent that the witness Raghu is not telling the truth. Similarly, if the victims Govind Singh and Raghu were released after the execution of the registry then, there must be some message from the applicants to the grandfather of Jamuna Prasad that the victims Govind Singh and Raghu were abducted and registry was to be done on the same day. It is no where informed that who went to take the deceased Barelal for execution of the sale-deed. If the victims were kept by the band then, there must be someone who must have given the message of the band to the complainant Jamuna Prasad or his grandfather Barelal and if someone had visited the house of the deceased Barelal then, his name must be in the knowledge of all the witnesses and it must be in the knowledge of the witnesses, who executed the sale-deed. The deceased Barelal would have summoned them in a hurried manner and they would have been taken to the registry office for registration of the sale-deed at once. None of the witnesses could say as to how they received the message from the gang that an abduction took place, whereas the witnesses relating to the registry did not know as to whether there was any pressure upon the deceased Barelal or they were summoned in a hurried manner for execution of the registry. On the contrary, the witness Ram Prasad has stated that the deceased Barelal had received the entire consideration of the sale-deed. Under such circumstances, the testimony of the witnesses Raghu or Govind Singh cannot be believed. It appears that after the death of Dacoit Jagbhan Singh and surrender of the applicants, the complainant thought to get the land back on the basis of such an FIR and, therefore, a written FIR was lodged to S.P., Tikamgarh to get the land back, whereas it is no where proved beyond doubt that any abduction was done by the applicants of the victims Govind Singh or Raghu. 10. 10. If an incident took place in a particular manner then, the victims of that incident are expected to tell the story in the similar manner, whereas there are lot of material contradictions between the testimony of the witnesses Govind Singh and Raghu and further the remaining witnesses are not at all witnesses to the incident. Under such circumstances, the prosecution failed to prove that the applicants assaulted the victims Ram Singh or Jhallu by firing from the gun or they abducted the victims Govind Singh and Raghu. The prosecution failed to prove that there was any pressure upon the deceased Barelal to execute the sale-deed. On the contrary, it appears that the deceased Barelal received the consideration for execution of the sale-deed, therefore, the prosecution could not prove its case beyond doubt. The applicants could not be convicted for the offence punishable under section 386 of IPC or any inferior offence of the similar nature. The learned JMFC as well as the learned Additional Sessions Judge have committed an error of law in convicting the applicants for the offence punishable under section 386 of IPC. 11. On the basis of the aforesaid discussion, it appears that the learned JMFC as well as the learned Additional Sessions Judge have committed a composite mistake of facts and law and, therefore, it is a fit case, in which an interference is required from the side of this Court, by way of a revision. Consequently, the revision filed by the applicants is hereby allowed. The conviction as well as the sentence directed against the applicants for the offence punishable under section 386 of IPC is hereby set aside. The applicants are acquitted from the charge of offence punishable under section 386 of IPC by giving them a benefit of doubt. They would be entitled to get the fine amount back from the trial Court, if they had deposited the same. 12. At present, the applicants are on bail. Their presence is no more required before this Court and, therefore, it is directed that their bail bonds shall stand discharged. 13. A copy of the order be sent to the trial Court as well as to the appellate Court for information and compliance.