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2018 DIGILAW 570 (MP)

Thakhat Singh v. State of M. P.

2018-06-29

SUBODH ABHYANKAR, SUSHIL KUMAR PALO

body2018
JUDGMENT 1. This appeal, under section 374(2) of the CrPC, has been filed by the appellants, assailing the judgment and conviction, passed on 11.3.2008, by the Special Judge, under the SC/ST (P.O.A.) Act, 1989, Chhatarpur, in S.T. No. 68/2006, wherein the appellants have been convicted, for offence, under section 364A of the IPC and sentenced to life imprisonment and fine of Rs. 1,000/- ‘each’ and in lieu of fine, the appellants to undergo additional RI for six months ‘each’. 2. Bereft of the unnecessary details, the prosecution story in brief is that, on 2.1.2006, at about 09-10 p.m. Puran Lodhi of Village-Badakhera had gone to water his field on the night. along with his son Santosh. As there was no electricity, they made the bed by the straws and slept there. At about 12:00 and 01:00 clock, in the night, some persons came in and flashed light on the face of the complainant and Santosh. They woke up. They saw the miscreants pointing the gun to them. Many of them are appellants Thakhat Singh, and Pappu. Puran Lodhi identified them at the first instance. Miscreants asked the complainant and Santosh to walk with them. When Puran refused, appellant Thakhat Singh kicked him three to four times. 3. The appellants and other accused persons took the complainant and Santosh along with them. Two other accused persons also met in the way. They were taken to the Jhingri Pahari. 4. There, Puran was told to bring rupees two lacs cash then only Santosh will be released. When Puran said that he cannot arrange such a huge amount therefore the amount be reduced, the appellant told him, if two lacs rupees is not arranged within two days to Angrotha, Santosh will be killed. The appellants and other accused persons leaving Puran there, took Santosh with them and went towards the jungle. Puran Lodhi came to his house and narrated the incident to his father, uncle Munna and Rajju etc. Puran Lodhi on 3.1.2016, went to the police station Bhagwa and lodged the report. Crime No. 01/2016 has been lodged. The same was taken for investigation. Spot map was prepared. Search party tried to search Santosh. 5. Santosh was being taken by the accused persons towards jungle by tying his hands on his back. The appellant Pappu and other accused persons call each other by their names, therefore, Santosh could make out who is. Crime No. 01/2016 has been lodged. The same was taken for investigation. Spot map was prepared. Search party tried to search Santosh. 5. Santosh was being taken by the accused persons towards jungle by tying his hands on his back. The appellant Pappu and other accused persons call each other by their names, therefore, Santosh could make out who is. They are Baldev Lodhi, Nandlal Gatar, Sitaram Lodhi, and Surat Singh. Accused Thakhat Singh, Pappu and Baldev were carrying guns. Nandlal was carrying a small pistol. Bharat Singh came in a motorcycle near the field and informed Thakhat Singh that Santosh be not released until his father bring two lacs rupees. He also advised them to take Santosh towards Buxwaha jungle. Then Santosh was taken towards Buxwaha Jungle. They stayed near the bank of the river. On the next date, they walked through the jungle towards Degoda. As it was dark they stayed near the Mardewada jungle in a Tapra (hut) of a Sour. They had their meals and on the third day they walked through the jungle through Madan Talab and stayed there for a while and again had their meals at a Tapra (hut). They went through Muliya jungle. After asking a trouble about the route of Barkhedi village they went towards Barkhedi village. A person came to them with food. After having their meals, the accused persons taken the abductee Santosh to Tikariya through the jungle. There they stayed for two days in a Tapara of a sour. During this period, food was supplied by Surat Singh. The accused persons through Khadiya jungle stayed at a Nala. 6. On 8th the day, through the jungle, they walked to Sahgarh and stayed at a village. On 9th day they stayed at the Madan talab and on the night they took Santosh and reached Mardevda jungle and stayed at a tapariya (hut) of a sour. On that day Thakhkat Singh dictated a letter to Puran through Sanotsh Singh to give the amount at Bardewada near the Crusher in a Tapariaya (hut) of a Sour situated behind the crusher at the Mardewada jungle. On that day, they stayed at the Mardewada jungle in the Tapariya (hut). On the following day after having their food, they stayed near a nalah. During this period, hands of Santosh was tied behind the back and two persons turn by turn were watching. On that day, they stayed at the Mardewada jungle in the Tapariya (hut). On the following day after having their food, they stayed near a nalah. During this period, hands of Santosh was tied behind the back and two persons turn by turn were watching. The letter written by Santosh was sent to Puran Lodhi. 7. On 12.1.2016, when the accused persons took Santosh to the pahariya, police received information at about 12:00 and 01:00 p.m. and raided the spot. Accused Thakhat Singh, Pappu and other accused persons Surat Singh, Baldev Lodhi, Satram, Nandlal leaving Santosh, fled in the jungle separately. Police then brought Santosh from the clutches of the accused persons. Accused Surat Singh and Sitaram were caught. The other accused persons could not be caught. The towel by which hands of Santosh were tied was seÁed. Sitaram and Surat Singh were taken into custody. From the possession of Sitaram an iron baka (a weapon) and from possession of Surat Singh an iron Sang (a weapon) were seÁed. Police party then escorted abductee Santosh and the accused persons Sitaram and Surat Singh to the police Station. Santosh explained all the details to police. After his statement, the letter written by Santosh was seÁed from Puran. On 15.1.2016, Nandlal was arrested. A 12 bore gun was seÁed from him. Offence under the Arms Act has been registered against him. Appellant Thakhat Singh, Pappu alias Mohamood Khan and accused Baldev Lodhi were arrested on 20.1.2006. Guns were seÁed from Thakhat Singh, Baldev and Pappu by seÁure memo and charge-sheet has been filed. After committal of the case, charges have been framed against the appellant for offence under sections 148, 364A, in alternative 364/149 of the IPC and section 25(1) (b) of the Arms Act against accused Nandlal. The accused persons Pappu, Baldev and Thakhat Singh have been acquitted from the offence under the Arms Act, therefore, separate charges have not been framed against them under the Arms Act. 8. The learned trial Court after adducing evidence has discussed the evidence elaborately and held the appellant Thakhat Singh and Pappu alias Mahmood convicted for offence under section 364A of the IPC and sentenced them as mentioned above. 8. The learned trial Court after adducing evidence has discussed the evidence elaborately and held the appellant Thakhat Singh and Pappu alias Mahmood convicted for offence under section 364A of the IPC and sentenced them as mentioned above. The trial Court has acquitted all the accused persons including the appellants for offence under section 148 of the IPC and 364A/149 of the IPC and accused Nandlal for offence under section 25(1) (b) of the Arms Act, the appellants Thkhat Singh and Pappu alias Mahmud. 9. In this backdrop, they preferred this appeal, challenging the judgment and conviction on the ground that (1) prosecution has failed to prove offence under section 364A of the IPC. The conviction by the trial Court is contrary to the law in facts the conviction and sentence is passed on conjecture and surmises. (2)There is no identification parade of the appellants carried out with regard to Puran (PW1). (3) There are contradiction and omissions in the statement of Santosh (PW3). Puran (PW1) had obtained money from the appellants, which he was to repay to escape the same. Puran(PW1) has falsely implicated the appellants. (4) The Court below has not appreciated the prosecution case in its proper perspective. Therefore, the appellants are entitled for acquittal. 10. Learned GA for the respondent/State opposed the contentions and drawn the attention of the Court to the pieces of evidence adduced by the prosecution and argued that the prosecution has established the offence against the appellants. Therefore, no interference is called for with regard to the judgment impugned. 11. Perused the record and the judgment impugned. The questions raised by the appellant No. 2 Thakhat Singh and the appellant No. 3 Pappu alias Mahmud Khan are important and needs to be discussed. The evidence adduced by the prosecution, if analyzed, indicates that complainant Puran PW1 and his son Santosh PW3 have indicated that they were sleeping together at the field by spreading pyara (straws). The miscreants including the appellants Thakhat Singh and Pappu had come to them around midnight. The miscreants were armed with guns and country-made pistols. The miscreants then commanded to accompany and took them into the forest. After walking for some time, father of Santosh Puran (PW1) was left by the miscreants and was directed to bring (ransom) of Rs. 2,00,000/-(Rupees Two Lakh) for the release of Santosh (PW3). Puran (PW1) then walked to the village. The miscreants were armed with guns and country-made pistols. The miscreants then commanded to accompany and took them into the forest. After walking for some time, father of Santosh Puran (PW1) was left by the miscreants and was directed to bring (ransom) of Rs. 2,00,000/-(Rupees Two Lakh) for the release of Santosh (PW3). Puran (PW1) then walked to the village. At about 06:40 a.m.., he lodged the report (Ext-P-18) at the police Station. Puran (PW1) was clear in the FIR about mentioning the names of the appellants Thakhat Singh and Pappu. The FIR (Ext. P-18) has been lodged promptly because the incident took place around midnight and the FIR has been lodged in the morning at about 06:40 a.m. The statement of Santosh (PW3) also found corroboration by the statement of Puran (PW1). Puran has submitted a written complaint (Ext.P-1), before the police station. On the basis of which, L.S. Mishra (PW12) the then Station House Officer, Police Station, Bhagwa has lodged the report (Ext.P-18). Though the scriber of written complaint (Ext. P-1) has not been examined, on this ground, only the prosecution case cannot be brushed aside. 12. Suggestion was given to Puran (PW1) that he had dispute with Thakhat Singh with regard to purchase of land and some part of money has not been refunded by Puran (PW1), therefore, Puran (PW1) thought this idea of implicating appellant Thakhat Singh. But this suggestion has been vehemently denied by the Puran (PW1). 13. As regarding the conduction of identification, it would be appropriate to mention that both Puran (PW1) and Santosh (PW3) have not been given any suggestion that they were not known to the appellants. They claimed that they knew the appellants earlier to the incident and they identified the appellants at the time of the incident. Hence, if identification parade has not been conducted it would not dismantle the prosecution story. 14. Santosh (PW3) did not attempt to flew from the spot during the period of his kidnapping. But this itself is not a ground to dislodge his evidence. Due to fear he might have gathered the courage to flee. The appellants contentions that there are certain contradictions and omissions in the statements of Puran (PW1) and Santosh (PW3) also do not have much weight. These contradictions are minor in nature. Such contradiction bound to occur. But, it also removes the possibility of tutoring the witnesses. Due to fear he might have gathered the courage to flee. The appellants contentions that there are certain contradictions and omissions in the statements of Puran (PW1) and Santosh (PW3) also do not have much weight. These contradictions are minor in nature. Such contradiction bound to occur. But, it also removes the possibility of tutoring the witnesses. In the case of Bharwada Bhoginbhai Hirzi Bhai v. State of Gujrat [AIR 1983 SC 754], the apex Court has laid down many principles of evidence, in which it has been observed that (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident or the time duration of an occurrence usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. Again it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. (8) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important “probabilities-factor “echos in favour of the version narrated by the witnesses”. Therefore, the contradictions and omissions arose in the present case, keeping in view the circumstances in which the witnesses had to undergo during the incident do not carry any impression that the witnesses are not stating the correct facts. 15. As regarding the weapons which were seÁed from the accused persons, Complaint Case No. 162/6 and 163/6 have been filed separately against the accused persons, before the competent Court. However, the same has been resulted into acquittal. The appellants have been arrested on 19.1.2006. The accused even if acquitted for the offence under the Arms Act, but by itself do not entitle them for a clear cut acquittal in the present case. 16. In the case of Mritunjoy Biswas v. Pranab alias Kuti Biswas and another, reported as AIR 2013 SC 3334 , the apex Court has held that “merely non-recovery of weapon from the accused does not affect the prosecution case when there is ample unimpeachable ocular evidence corroborated by medical evidence.” 17. In the present case, the statements of these two witnesses corroborated by other witness Munna (PW2), after incident witness who was informed by Puran (PW1) immediately after the incident make the prosecution story more reliable. 18. In the present case, the statements of these two witnesses corroborated by other witness Munna (PW2), after incident witness who was informed by Puran (PW1) immediately after the incident make the prosecution story more reliable. 18. Hands of Santosh (PW3) examined by the doctor, has found the marks of tying of his hands. Though the doctor says, it was tied by ribbon, but according to Santosh (PW3) his hands were tied by towel. The village people generally use “gamchha” as towel and gamchha are more softer and do not leave marks of injury just like ribbon. Therefore, in this regard also the prosecution case can be termed as not suspicions. 19. As it has been made clear by the witnesses that they knew the appellants Thakhat Singh and Pappu earlier to the incident and they identified them at the time of incident specially Santosh (PW3), who was with them for about eleven days. Therefore, the question of identification parade do not arise for they were known to the appellants. 20. It has been suggested by the defence that because of certain dispute of money transaction, appellant Thakhat Singh has been implicated falsely. But, these suggestions have been denied by the witnesses. More so, the appellants have not examined any witness in support of their contentions. As there is no enmity between the appellants and the witnesses Puran (PW1), Munna (PW2) and Santosh (PW3), the question of false implication is also rulled out. The appellants have also alleged that the learned trial Court did not appreciate the prosecution evidence in its proper perspective, but the same has no basis. 21. The evidence adduced established that the appellants abducted Santosh (PW3), son of Puran (PW1). The appellants along with other accused persons detained Santosh (PW3) and kept in the jungle for about 11 (eleven) days. The appellants threatened him to cause death of Santosh (PW3). The appellants did commit so to compel his father Puran (PW1) to pay Rs. 2,00,000/- (Rupees Two Lakh) as ransom. Therefore, the offence under section 364A of the IPC is established, beyond doubt. 22. For the foregoing reasons, this Court finds it not a fit case to interfere in the judgment impugned. Therefore, this appeal is dismissed.