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2018 Supreme(MP) 392
IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Vivek Agarwal and G. S. Ahluwalia, JJ.
Santosh Kumar Dohare (dead), Bhure and another v. State of M. P.
Criminal Appeal No. 460 of 2004 (Gwalior): against the judgment and sentence dated 8.6.2004 passed by the Special Judge (MPDVPK Act), Bhind in Special Sessions Trial No. 53/2003;
Decided on 24.5.2018
Ashok Kumar Jain with Anand Gupta for appellants; Ms. Sangeeta Pachauri and Prakhar Dhengula, Public Prosecutors for respondent/State.
Headnote:(1) Penal Code, 1860 -- S. 364A - Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 (M. P.) -- Ss. 11/13 -- after 4 days of captivity, one abductee released -- never informed police about abduction and demand of ransom -- did not tell any villager -- other abductee stated that he was released after ransom was paid -- investigating officer stated that he was released in police encounter -- no document filed pertaining to alleged police encounter -- abductee stated he was sold to another gang, whereas this is not the case of prosecution -- brother, by whom ransom is alleged to have been paid, not examined -- witnesses stated that they saw appellants for the first time when abducted but test identification parade not conducted -- prosecution miserably failed in establishing guilt of appellants beyond reasonable doubt. (2004)8 SCC 95, (2008)15 SCC 418 and (2007)5 SCC 634 followed. [Paras 16 & 17
(2) Constitution of India -- Art. 21 -- prosecution and conviction of accused illegal/malicious -- accused in jail for more than 12 or 15 years --utter violation of fundamental right of life and liberty -- compensation of Rs. 3 lacs to each appellant payable by State. 2012(1) JLJ 126(SC) and (2016)15 SCC 525 followed. (2008) 5 MPHT 172 referred to.
[Paras 27 & 28
¼1½ naM lafgrk] 1860 && /kkjk 364d && MdSrh vkSj O;igj.k çHkkfor {ks= vf/kfu;e] 1981 ¼e-ç-½ && /kkjk 11@13 && canh j[ks tkus ds 4 fnu i'pkr~ ,d viâr NksM+k x;k && iqfyl dks vigj.k vkSj eqfä /ku dh ek¡x ds ckjs esa dHkh bfÙkyk ugha nh && fdlh xzkeh.k dks ugha crk;k && vU; viâr us dgk fd mls eqfä /ku lanÙk fd, tkus ds i'pkr~ NksM+k x;k && vUos"k.k vf/kdkjh us dgk fd mls iqfyl eqBHksM+ esa NqM+k;k x;k && vfHkdfFkr iqfyl eqBHksM+ ls lacaf/kr dksbZ nLrkost Qkby ugha && viâr dk dFku fd mls ,d vU; fxjksg dks foØ; fd;k x;k && tcfd vfHk;kstu dk ;g i{kdFku ugha && ftl HkkbZ }kjk eqfä /ku lanÙk fd;k tkuk vfHkdfFkr gS- mldh ijh{kk ugha dh xbZ && lk{khx.k dk dFku fd mUgksaus vigj.k ds le; vihykFkhZx.k dks çFke ckj ns[kk- ijarq 'kuk[r ijsM ijh{kk ugha dh xbZ && vfHk;kstui{k vihykFkhZx.k dh nksf"krk ;qfä;qä lansg ls ijs fl) djus esa cqjh rjg vlQyA ¼2004½8 ,l lh lh 95] ¼2008½15 ,l lh lh 418 rFkk ¼2007½5 ,l lh lh 634 vuqlfjrA ¼iSjk 16 ,oa 17 ¼2½ Hkkjr dk lafo/kku && vuq 21 && vfHk;qäx.k dk vfHk;kstu vkSj nks"kflf) voS/k@}s"kiw.kZ & vfHk;qäx.k 12 ;k 15 o"kksaZ ls vf/kd le; ls tsy esa && thou rFkk Lokra=~; ds ewy vf/kdkj dk vfr'k; vfrØe.k && jkT; }kjk çR;sd vihykFkhZ dks :- 3 yk[k dk çfrdj lans;A 2012¼1½ ts ,y ts 126 ¼mPpre U;k-½ rFkk ¼2016½ 15 ,l lh lh 525 vuqlfjrA ¼2008½ 5 ,e ih ,p Vh 172 fufnZ"VA ¼iSjk 27 ,oa 28
Ahluwalia, J.--1. This Criminal Appeal under section 374(2) of CrPC has been filed against the judgment and sentence dated 8.6.2004, passed by Special Judge (M.P-D.V.P-K. Act), Bhind in Special Sessions Trial No. 53/2003 by which the appellants have been convicted under section 364A of IPC read with section 11/13 of M.P-D.V.P-K. Act, and have been sentenced to undergo the Life Imprisonment and a fine of Rs. 10,000/- with default imprisonment.
2. It is important to mention here that during the pendency of this appeal, the appellant No. 1 Santosh has expired and accordingly, the appeal filed by appellant No. 1 Santosh was dismissed as having abated.
3. The necessary facts for the disposal of the present appeal in short are that in the intervening night of 25-26 of January, 2003, Ramswaroop and Mullu were abducted by 5 unknown miscreants. In the morning, the complainant Harmukh lodged a Gum Insaan Report, accordingly, FIR in Crime No. 20/2003 for offence under section 364 of IPC was lodged. After the abductees were released, their statements were recorded. The appellants were arrested and after completing the investigation, the police filed the charge sheet against the appellants as well as Roope, Mahipat, Prayagnarayan. Samarath and Malkhan Singh were shown absconding.
4. The trial Court, by order dated 26.8.2003, framed charges under section 364A of IPC and under section 11/13 of M.P-D.V.P-K. Act.
5. The appellants and other co-accused persons, abjured their guilt and pleaded not guilty.
6. The prosecution, in order to prove its case, examined Harmukh (PW1), Mulu (PW2), Ramswaroop (PW3), Rajesh Sharma (PW4), Chandrapal Singh Tomar (PW5). The appellants examined Radheshyam (DW1), Tulsiram (DW2) and Hiralal (DW3) in their defence.
7. The trial Court after recording the evidence and hearing both the parties, convicted the appellants and Santosh for offence under section 364A of IPC and under section 11/13 of M.P-D.V.P-K. Act and sentenced them to undergo the Life Imprisonment and a fine of Rs. 10,000/- with default imprisonment. The Co-accused Roope, Mahipat, Prayagnarayan were acquitted of all the charges. The acquittal of Roope, Mahipat, Prayagnarayan has not been challenged.
8. Challenging the judgment and sentence dated 8.6.2004, passed by Special Judge (M.P-D.V.P-K. Act), Bhind in Special Sessions Trial No. 53/2003, it is submitted by the Counsel for the appellant, that Mullu who is alleged to have been released by the dacoits, just after 4 days of his abduction, did not inform the police about his abduction or about the captivity of Ramswaroop. Although, it is alleged that Ramswaroop got released only after payment of ransom of Rs. 1 lac, but the prosecution did not examine the person, who had paid the ransom amount. There are discrepancies in the evidence of the prosecution. Ramswaroop and Mullu have stated that Ramswaroop was released only after the payment of Ransom amount, whereas Chandrapal Singh Tomar (PW5) has stated that Ramswaroop was got released in an encounter with the miscreants. Chandrapal Singh Tomar (PW5) does not speak of payment of ransom amount, whereas Ramswaroop (PW3) does not speak of encounter. Ramswaroop (PW3) has stated that he was sold by the appellant No. 3 Shripal to the gang of Pahalwan Singh Gurjar for an amount of Rs. 1 lac whereas Chandrapal Singh Tomar (PW5) has stated that no such statement was given by Ramswaroop (PW3), in his case diary statement. Even, Chandrapal Singh Tomar (PW5) has not stated that on what date, at which place and with whom, the police encounter had taken place, and he has simply stated that Ramswaroop was got released after a police encounter with miscreants. It is submitted that the appellants are innocent persons and have been falsely implicated.
9. Per contra, it is submitted by the Counsel for the State, that the prosecution has proved the guilt of the appellant No. 2 Bhure and appellant No. 3 Shripal beyond reasonable doubt, and the conviction and sentence awarded
