Madhya Pradesh High Court
Ramji Gurjar vs State Of M.P. on 12 November, 2021
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 234 of 2010
Ramji Gurjar
Vs.
State of M.P.
Shri R.V.S. Ghuraiya, Counsel for the Appellant
Shri C.P. Singh, Counsel for the State
Date of Hearing : 10-11-2021
Date of Judgment :
Approved for Reporting : 12-11-2021
Judgment
12- November -2021
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 31-12-2009 passed by Special Judge (MPDVPK Act), Shivpuri in Special Sessions Trial No. 44 of 2009, by which the appellant has been convicted under Section 364-A of IPC read with Section 11/13 of MPDVPK Act and has been 2 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) sentenced for Life Imprisonment and a fine of Rs. 1000/- with default imprisonment of 3 months R.I.
2. The prosecution story in short is that on 15-12-2008, the complainant Siyaram, his brother Kalli and nephew Lokendra had gone to collect Chhole Leaves. When they were returning back on their bullock cart, they were waylaid by four miscreants. One miscreant was having Mouzer gun, whereas another was having .12 bore double barrel gun. Third was having gun and fourth miscreant was having lathi. Three miscreants were in the dress of police. All the three persons were caught hold by the miscreants and thereafter left the complainant Siyaram and Lokendra and instructed, that they are taking Kalli with them, and if the complainant wants to get Kalli released, then he has to pay Rs.2 lacs. Accordingly, at about 7 P.M., the miscreants took Kalli towards Jamnunia forest area. The F.I.R. was lodged on 16-12-2008. The police prepared spot map. The statements of Siyaram and Lokendra were recorded. Similarly, the statements of other witnesses were also recorded. On 18-2-2009, the appellant was arrested. The appellant was put for Test Identification Parade. The police after completing the investigation, filed the charge sheet for offence under Section 364-A of I.P.C., 11/13 of M.P.D.V.P.K. Act and 25/27 of Arms Act. Whereas 3 other co- accused persons were still absconding, and therefore, charge sheet under Section 299 of Cr.P.C. was filed against them.
3. The Trial Court by order dated 17-6-2009, framed charges 3 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) under Sections 364-A of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution examined Karan Singh (P.W.1), Siyaram (P.W.2), Shiv Singh Yadav (P.W.3), Gulli (P.W.4), H.L. Khatri (P.W.5), J.P. Ahirwar (P.W.6), Ramcharan Singh Bhadauriya (P.W.7), and Vinod Sharma (P.W.8).
6. The appellant did not examine any witness in his defence.
7. The Trial Court by the impugned judgment, convicted and sentenced the appellant, for the offences mentioned above.
8. Challenging the impugned judgment and sentence, it is submitted by the Counsel for the appellant, that in the F.I.R., the complainant had not disclosed the details of body buildup and therefore, there is nothing on record to suggest that on what basis, the complainant had identified the appellant in the Test Identification Parade as well as in the Dock. It is further submitted that in the Test Identification Memo, there is an overwriting on the date, which has not been satisfactorily explained by the prosecution. The prosecution has not examined Kalli and Lokendra. The incident is alleged to have taken place in the evening at 7 P.M., and in absence of any source of light, it was difficult for the complainant to identify the miscreants. It is further submitted that it is not the case of the prosecution, that the face of the appellant was kept covered after his arrest, therefore, the complainant Siyaram had ample opportunity to see the appellant. 4
Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010)
9. Per contra, the Counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court.
10. Heard the learned Counsel for the parties.
11. So far as non-examination of Kalli is concerned, it is not the case of the prosecution, that he ever returned back. Even no suggestion was given to the complainant Siyaram (P.W.2) that Kalli, is still alive. On the contrary a suggestion was given that since, his brother Kalli has not returned, therefore, he is falsely deposing against the appellant.
12. Karan Singh (P.W.1), Gulli (P.W.4) did not support the prosecution case.
13. The entire prosecution case is dependent upon the evidence of Siyaram (P.W.2), Shiv Singh Yadav (P.W.3), H.L. Khatri (P.W.5).
14. The evidence of Shiv Singh Yadav (P.W.3) is to the effect, that he had received a mobile call from the appellant Ramji Gurjar, who instructed him that he wants to talk to Latoo Yadav and accordingly, mobile was given to Latoo Yadav. Latoo Yadav had talked to his son Kalli who informed that he has been abducted by the miscreants. Latoo had informed this witness that Ramji Gurjar is demading Rs. 5 lacs and has also extended a threat that otherwise, Kalli would be killed. Latoo had said that he doesnot have money. This witness was cross-examined.
15. However, the Trial Court in para 7 of its judgment has held that in absence of any proof that the mobile call was made by the 5 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) appellant, it cannot be held that it was the appellant who had made the call and had demanded money.
16. Apart from the above mentioned finding by the Trial Court, according to the prosecution story, the caller had made a demand to Latoo, who in his turn informed Shiv Singh Yadav (P.W. 3). Thus, it is clear that Shiv Singh (P.W.3) is a hearsay witness. Since, the prosecution has not examined Latoo Yadav, therefore, even otherwise, in absence of substantive evidence, the evidence of Shiv Singh Yadav (P.W. 3) with regard to demand of ransom and extending threat cannot be accepted.
17. Now the entire case is based on the testimony of Siyaram (P.W.2) and H.L. Khatri (P.W. 6).
18. Siyaram (P.W.2) has stated that he along with his brother Kalli, and Lokendra had gone to collect Chhole Leaves. While they were coming back on the bullock cart, they were waylaid by four persons including the accused who is present in the Court (appellant). The appellant had demanded Rs. 2 lacs and also said that in case, if report is lodged, then he would be required to pay Rs. 5 lakhs. He also threatened that in case, Rs. 5 lacs are not paid, then they would kill his brother. He was assaulted twice by a lathi. The hands of this witness and that of Kalli were tied. When this witness pleaded that he is a poor person and he may be released, then they took away his brother Kalli. Lokendra was also with this witness. He further stated that the accused present in the Court (appellant) and three other 6 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) miscreants had taken away his brother. He returned back to his village and informed the villagers about the incident. Report was lodged. His brother has not returned back inspite of fact that 8 months have passed. The police had prepared the spot map.
19. This witness was cross-examined. In cross-examination, this witness stated that at about 10 A.M., he had gone to the forest. At about 2 P.M, he and his brother were abducted. This witness was released at about 8 P.M. However, he clarified on his own, that in fact he was released at 6 P.M. and returned to his village at 8 P.M. He went to police station in the night itself. He took 2 hours to reach police station, as tyre of his motor cycle had got punctured. He started for police station at about 12 in the night. He took four hours as several persons were giving different advises. He denied that he and his brother were not abducted at 2 P.M. He stated that he had not informed to the police, that he was abducted at 7 P.M. The appellant Ramji was having .12 bore single barrel gun. He had also informed the police that one miscreant was having .12 bore single barrel gun. When he was confronted with his police statement, then this witness admitted that he had stated double barrel gun. Thereafter, he clarified that one was having .12 bore single barrel gun, whereas one was having .12 bore barrel gun and one was having mouzer. He denied that he had not seen the accused. He denied that the appellant was not present on the spot. He denied that he was not abducted by the appellant and also did not make demand of ransom. He denied the 7 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) suggestion that since, his brother has not returned back, therefore, out of anger, he is falsely deposing against the appellant.
20. From the evidence of Siyaram (P.W.2), it is clear that the defence has not challenged the dock identification of the appellant and also did not challenge that his brother Kalli has not returned back. On the contrary, a suggestion was also given, that since, his brother has not returned back, therefore, he is deposing against the appellant, out of anger.
21. H.L. Khatri (P.W.5) was working as Naib Tahsildar and had conducted the Test Identification Parade. This witness has stated that on 4-5-2009, he had conducted the Test Identification Parade, and the complainant Siyaram (P.W.2) had identified the appellant by putting his hand on his head. This witness was cross-examined.
22. In cross-examination, this witness had stated that the complainant was already standing outside the jail. He had informed the date to the police. He had also directed the police to keep the witnesses present at the time of Test Identification Parade. He went inside the jail and mixed the appellant with other inmates. Thereafter, Siyaram (P.W.2) came inside the jail. This witness further explained that on earlier occasion, he had prepared the proforma, but since, the Test Identification Parade could not be held on the earlier occasion, therefore, by scoring out the earlier date, the new date was written.
23. Although, the Counsel for the appellant has argued that since, the complainant Siyaram (P.W.2) had not disclosed the body built up 8 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) of the miscreants in his F.I.R. or police statement, therefore, the Dock Identification or the identification in T.I.P., may not be relied upon, but as already pointed out, the appellant has not challenged his identification in dock.
24. So far as the source of light to enable the complainant Siyaram (P.W.2) to identify the miscreants is concerned, this Court is of the considered opinion, that there was a sufficient light to identify the miscreants. According to the prosecution case, the complainant Siyaram (P.W.2) was also waylaid by the miscreants and thus, he had conversation with the miscreants from a very close range. Further, the argument of the Counsel for the appellant that the complainant, his brother Kalli and nephew were waylaid at 7 P.M. in the night is misconceived and is liable to be rejected.
25. Siyaram (P.W.2) has stated in his Court evidence, that they were waylaid at 2 P.M. and he was released at 6 P.M. However, in the F.I.R. the time of stopping of this witness by the miscreants is not mentioned but it is mentioned that at about 7 P.M., the miscreants took away Kalli with them. It is the prosecution case, that after the complainant, his nephew and Kalli were waylaid, the complainant had stayed with the miscreants for some time and had talk with them. Thus, it is clear that the complainant had a talk with the miscreants from a very close range, somewhere prior to 7 P.M. Further more, the eyes of the villagers are tuned to see the things even in poor light.
26. The Supreme Court in the case of Ramesh Vs. State reported 9 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) in (2010) 15 SCC 49 has held as under ;
15...........It has to be borne in mind that the capacity of the witnesses living in rural areas cannot be compared with that of urban people who are acclimatised to fluorescent light. Visible (sic visual) capacity of the witnesses coming from the village is conditioned and their evidence cannot be discarded on the ground that there was meagre light in the evening. There is nothing on record to show that these two witnesses are in any way interested and inimical to the appellant. Their evidence clearly shows that the deceased was last seen with the appellant and the High Court did not err in relying on their evidence.
27. So far as the overwriting on the date mentioned in Test Identification Memo Ex. P.1 is concerned, the explanation given by H.L. Khatri (P.W. 5) appears to be plausible. Even otherwise, H.L.Khatri (P.W. 5) has put the date below his signatures also and there is no overwriting in that. Thus, the explanation that the proforma was already prepared on previous occasion, but the T.I.P. could not be held, therefore, the date mentioned in the old proforma was changed, is acceptable. Further, the correction of date of birth at the top of the Test Identification Memo bears the counter signature of this witness also. Thus, it is held that the Test Identification Memo, Ex. P.1 is not a forged document. Further, it is well established principle of law that T.I.P. conducted by the police is not the substantive evidence, but the substantive evidence, is the identification in the Court. As already pointed, the identification of the appellant in the dock by the complainant, has not been challenged by the appellant by putting even a single question to the complainant Siyaram (P.W.2) in this regard.
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Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010)
28. So far as the question of not keeping the face of the appellant covered is concerned, it is clear from the prosecution case, that the appellant was already in jail in connection with some other case, and he was produced before the Court on execution of production warrant. Thus, it is clear that the appellant was already in jail. No suggestion was given to the complainant Siyaram (P.W.2) that he had come to the Court during remand proceedings also. Even no suggestion was given, that the complainant Siyaram (P.W.2) had seen the appellant, subsequent to his arrest and prior to holding of Test Identification Parade. Further more, the Counsel for the appellant could not point out anything from the record, from which it can be inferred that the complainant had an occasion to see the appellant prior to holding of TIP and subsequent to his arrest.
29. Thus, it is held that the prosecution has succeeded in establishing that the complainant Siyaram (P.W.2), Lokendra and Kalli were waylaid by the miscreants including the appellant Ramji, and thereafter, Kalli was abducted and did not return back. Thus, the conviction of the appellant for offence under Section 364-A of I.P.C., read with Section 11/13 of M.P.D.V.P.K. Act is hereby upheld.
30. So far as the question of sentence is concerned, the minimum sentence for offence under Section 364-A of I.P.C. is Life Imprisonment, therefore, the Life Imprisonment awarded by the Trial Court doesnot call for any interference.
31. Ex Consequenti, the judgment and sentence dated 31-12-2009 11 Ramji Gurjar Vs. State of M.P. (Cr.A.No. 234 of 2010) passed by Special Judge (MPDVPK Act), Shivpuri in Special Sessions Trial No. 44 of 2009 is hereby affirmed.
32. The appellant is in jail. He shall undergo the remaining jail sentence.
33. A copy of this judgment, be provided to the appellant immediately, free of cost.
34. The Registry is directed to send back the record of the Trial Court along with the copy of this judgment for necessary information and compliance.
35. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.11.12 15:33:01 +05'30'