Madhya Pradesh High Court
Hari Singh & Ors. vs State Of M.P. on 7 February, 2018
Author: Ashok Kumar Joshi
Bench: Ashok Kumar Joshi
Cr.A. 620/2003
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DB: SANJAY YADAV & ASHOK KUMAR JOSHI, JJ.
(Criminal Appeal No. 620/2003)
1. Hari Singh s/o Sitaram
2. Parmal Singh s/o Ganga Singh
--------Appellants
Vs.
State of Madhya Pradesh through police
station Pahargarh ---Respondent
Shri R.K. Goyal, learned counsel for the appellants.
Shri Vivek Jain, learned Public Prosecutor for the respondent-
State.
JUDGMENT
(Delivered on the 7th day of February, 2018) Per Ashok Kumar Joshi, J.
Challenge in this appeal filed u/s. 374 (2) of Cr.P.C on behalf of the appellants is to the conviction u/s. 374-A of the IPC and sentence to life imprisonment with fine of Rs. 1,000/- with default stipulation awarded by the judgment dated 17/10/2003 passed by First Additional Sessions Judge, Morena in Sessions Trial No. 77/2001. It would be significant to mention here that this appeal filed by original appellant no. 3 Nattha alias Nathu Singh, original appellant no. 4 Sirnam and original appellant no. 5 Soneram has been dismissed as withdrawn on 25.1. 2018.
2. Prosecution story in brief is that complainant Amar Singh (PW-
2) with Jandel Singh (PW-4) and Makhan all residents of village- Gopalpura had gone on 1.10.1999 for grazing their cows and Cr.A. 620/2003 2 buffalows in jungle pathar situated near Purani ki Hati area and at about 11--45, am when they were sitting beneath a tree, then sudedlnly two miscreants wearing khaki coloured pant shirt came there. One miscreant was having a stick and another was having a gun in his hand and miscreants asked complainant and his companions to throw their axes and at that time 3 rd miscreant was hidden bhind a tree at some distance. After seeing miscreants complainant and his companions started running and they were followed by miscreants. When Jandel was running he was captured by miscreants and they took Jandel singh towards jungle. Complainant Amar singh after reaching the village informed about the incident at Jandel's house in village and thereafter village people searched for Jandel in the Jungle, but nothing could be traced out. On the date of incident 1.10.1999 at 18--30 hours, FIR (Ex. P-1) was lodged by complainant Amar Singh at police station-Pahargarh against three unknown miscreants which was scribed by S.I. Raghunath Prasad Sharma (PW-5) and crime was registered.
3. During investigation, on 2.10. 1999, spot map (Ex. P-2) was prepared by SHO Hemant Sharma (PW-6) at the instance of complainant Amar Singh in relation to place of occurrence. Statements of prosecution witnesses were recorded. Abductee Jandel Singh was freed on 31.10.1999 and he reached at Police Station Pahar Ganj then his recovery memo (Ex.P-3) was prepared by SHO Hemant Sharma and the case diary statement of Jandel Singh was recorded, wherein the names of relating accused persons were disclosed. Thereafter, case diary statement of father of Jandel, Jagannath (PW-1) was recorded at the second time, wherein he disclosed that he had paid ransom amount to the relating accused persons and thereafter his abducted son Jandel was released. Earlier mentioned accused persons were absconding when charge-sheet Cr.A. 620/2003 3 was filed in the Court of JMFC, Jaura and thereafter, relating accused persons were arrested and supplementary charge-sheets against them were filed before JMFC and thereafter original criminal case was committed by the relating JMFC to the Sessions Court, who transferred it to the above mentioned Trial Court.
4. The trial court framed charge u/s. 364-A of the IPC against each accused person which was denied by each appellant and above mentioned appellants and another accused Murari (who was appellant of separately filed Cr.A No. 43/2004, which has abated due to Murari's death). Accused persons abjured their guilt and it was their defence that they have been falsely implicated before the trial court. Before Trial Court Jagannath (PW-1), Amar Singh (PW-2) Jandel (PW-4), Raghunath Parasad Sharma (PW-5) and Hemant Sharma (PW-6) were examined for prosecution. Deffence witnesses Angad (DW-1) and Chimman Singh (DW-3) were examined on behalf of the present appellants and Gore Singh (DW-2) Kalla (DW-3) were examined on behalf of other accused persons of relating trial. The trial court relying on the evidence of prosecution witnesses, convicted and sentenced each accused as aforesaid.
5. Learned counsel for the appellants vehemently contended that it was clear from the evidence of abductee Jandel Singh (PW-4) and complainant Amar Sing (PW-2) that both present appellants were also grazing their buffaloes nearer to the scene of occurrence and there was no evidence against present appellants that they helped in abduction of Jandel Singh by other accused persons who actually abducted Jandel and similarly there was no evidence regarding involvement of present appellants in abduction of Jandel for ransom and there was no evidence against the present appellants regarding demanding of ransom amount by them from father of the abductee Jagannath (PW-1) and similarly there was no evidence regarding Cr.A. 620/2003 4 receiving of ransom money against present appellants whereas it was deposed by the father of the abductee that he has gone in jungle with Gore and Kalla two times, firstly for fixing ransom amount and secondly for payment of ransom amount to Naththi and thereafter his son was released, but above mentioned Gore and Kalla were not made accused persons in the crime, who took Jagannath to the accused persons who actually abducted Jandel, but the trial court erred in convicting and sentencing each present appellant for the the said offence whereas there was no reliable evidence against both the present appellants, hence it is prayed that appeal of present both appellants be allowed and they be acquitted from above mentioned offence.
6. Per contra, learned appearing public prosecutor for the State, supporting the impugned judgement contends that the trial court has legally and properly appreciated and analyzed the evidence produced by the parties and dismissal of the appeal of the present appellants is prayed.
7. Abductee Jandel (PW-4) and complainant Amar Singh (PW-
2) deposed in one voice that on the date of incident in the morning about 10 to 11 am they were grazing their buffaloes in jungle with Makhan, then miscreants came there. Amar Singh deposed that three miscreants had come, whereas Jandel (PW-4) deposed that four miscreants had come at that time. According to evidence of Jandel (PW-4) three miscreants were having guns. Amar Singh (PW-2) and Jandel (PW-4) deposed that on asking by the miscreants for throwing axes, they started running with Makhan. Jandel (PW-4) deposed that they understood that the miscreants are dacoits and on his running, one miscreant who was having a stick struck, him by stick then he fell down and thereafter he was captured by miscreants who after tearing his worn tahmand tied up both his Cr.A. 620/2003 5 hands behind his back and miscreants took him into the jungle. Amar Singh (PW-2) deposed that after running and reaching to village, he intimated village people that Jandel has been abducted by miscreants for ransom and after searching he lodged an FIR at Police Station Pahargarh on the same day and marked his thumb impression on FIR.
8. Jandel (PW-4) deposed that on the date of incident, when he was taken by miscreants towards the jungle just after the incident, he had seen both the present appellants Parmal and Hari Singh grazing their she-goats and cows and two miscreants remain stood nearer to him, and two other miscreants went nearer to Parmal and Hari Shankar and talked with them and thereafter took him in jungle. It is significant to mention here that Amar Singh (PW-
2) has not deposed and mentioned anything in his FIR that nearer to scene of occurrence present appellants Parmal and Harisingh were also grazing their cattle and Jandel had deposed name of Hari Shankar, whereas the name of one of present appellants is Harisingh. Amar Singh (PW-2) deposed that the miscreants who had came nearer to him on the date of incident, were not present in the court room on 1. 11. 2001, when his deposition was being recorded in the trial court. Amar Singh deposed that about one month after, Jandel was released by the relating miscreants.
9. Jandel (PW-4) clearly deposed in his examination in chief that later on he became aware of the fact that names of miscreants, who abducted him were Soneram, Murari, Nattha, Sirnam and Mohan Singh as he was kept by these miscreants in jungle for a period of about one month and these miscreants gave beating to him and asked him about his property and enquired that whether his family member will pay ransom amount or not and he was abducted for ransom money. Jandel (PW-4) clearly deposed that he was not Cr.A. 620/2003 6 aware about the persons who came in jungle to met abductors but one person namely Gore resident of Sahadpur and another person named Kalla had come to miscreants for negotiating about ransom money and in his presence Gore and Kalla have negotiated with dacoits and ransom amount Rs. 2,55,000/- was fixed by Gore and Kalla after negotiation with dacoits. Jandel (PW-4) clearly deposed that there was no any other person with Gore and Kalla and about four days later of this negotiation, his father Jagannath (PW-1) had come with Gore and Kalla in jungle and ransom amount was paid by his father to the dacoits and though ransom money was not paid in his presence, but he was intimated that Rs 2,55,000/- was paid to dacoits and thereafter dacoits opened the fetter and above mentioned dacoits freed him and he was handed over to his father. Jagannath (PW-1) has corroborated his son's evidence relating to role of Gore and Kalla. Jandel (PW-4) also deposed that when he was detained in jungle by the dacoits, at same time, one another boy of any Gurjar was also in custody of the dacoits as abductee but he did not remember his name and after his release they reached to police station, Paharganj, where his recovery memo was prepared by police which bears his signatures also. Jandel has clearly deposed in his examination-in-chief that he had not seen other persons helping dacoits and he could identify only those miscreants who had abducted him and kept him in jungle for a period about one month and he identified the accused persons, who were present in the court room at the time of recording of his evidence.
10. Trial court has recorded its finding in last line of para 11 to the effect that it was proved from the deposition of Jandel (PW-4) that he was forcefully abducted by accused Sirnam, Soneram, Naththi and Murari, thereafter he was detained in custody in jungle and he was released after receiving ransom money of Rs 2, 55,000/. It is clear Cr.A. 620/2003 7 from the above mentioned recorded finding that the trial court did not find proved that Jandel was abducted by present appellants namely, Harisingh and Parmal.
11. In cross- examination Jandel (PW-4) deposed that Harisingh and Parmal are residents of village Telari and he was acquainted with Parmal and Hari Singh from his childhood and the profession of Parmal and Harisingh is grazing cattle and cultivation. He clearly deposed in cross-examination that he did not know that on the date of incident what talking had happened between miscreants and Harisingh and Parmal and after his release, he did not talk with his father Jagannath in relation to Parmal and Harisingh. There is nothing in the evidence of Jandel Singh that at that time, Harisingh and Paramal provided food or anything to the dacoits or helped dacoits in any manner.
12. Abductee's father Jagannath (PW-1) deposed that he was informed by Shyamlal, resident of Ranipura, that the present appellants Parmal and Harisingh are related with dacoits and one day prior to the incident, Jagannath also deposed that Shyamlal resident of Ranipura is alive but Shyamlal has not been examined before the trial Court. In Ex. D-2 (second) police statement of Jagannath, name of Shyamlal is missing. Contrary to the evidence of Jandelsingh, his father Jagannath (PW-1) deposed in examination in chief that later on he was informed by Jandelsingh that in the jungel Betal Bhagel was visiting dacoits and abduction of his son was organized by Parmal and Harisingh, but on this point the evidence of Jagannath (PW-1) is contradicted and rebutted by the evidence of his son Jandel Singh (PW-4). Jagannath also deposed in para 2 of his cross examination that present appellants Harisingh and Parmal are residents of village Telari and their occupation is cultivation and grazing cattle and Parmal is having about 250 she-goats and Cr.A. 620/2003 8 Harisingh is having about 120 she-goats and he always sees both these appellants grazing their cattle.
13. Jagannath (PW-1) deposed in examination-in-chief that during search of his son, after his abduction, he had mat Parmal and Harissingh and told them that dacoits are their relatives, therefore they should got his son released, then Parmal has replied that if he is having Rs. 3,00,000/- only then his son will be released and thereafter he intimated Parmal that he is not having Rs. 3,00,000/- then Harisingh and Parmal replied to him that Jagannath should personally negotiate with the dacoits. Hemant Sharma (PW-6) deposed that on 02.10.1999 he recorded Jagnnath first case diary statement (DW-2), wherein Jagnnath had not disclosed the name of any accused and after release of Jagnnath on 31.10.1999, he second time recorded Jagannath's statement but in Jagannath's second case diary statement (Ex. D-1) , Jagannath had not disclosed the name of above mentioned Shyamlal resident of Ranipura. Investigator in para- 10 deposed that Jagannath had not disclosed this fact that present appellants Harisingh and Parmal were relatives of the dacoits and similarly Jagannath had not stated in his second case diary statement that Harisingh and Parmal told him that he should directly talked with the dacoits.
14. Hemant Sharma in Para-19 deposed that during investigation he became acquainted with the fact that Harisingh and Parmal both residents of Telari are by occupation doing the work of cattle grazing and nothing about any enmity of the Parmal and Harisingh with abductee and his family came in his knowledge. In para-6 Hemant Sharma deposed that he had inquired with witness Kanchan regarding Baital and Kalla but due to fear of dacoits nothing was intimated to him by Kanchan .
15. Therefore, it clear that the evidence given by Jagannath (PW-
Cr.A. 620/2003 91) before the trial court on the material points is contradicted and rebutted by the evidence given by his son abductee Jandel Singh (PW-4) and Investigator Hemant Sharma (PW-6). It is clear that the evidence of Jagannath PW-1 that abduction of his son Jandel was caused by present appellants is rebutted by evidence of Jandel Singh (PW-4) and Investigator Hemant Sharma (PW-6).
16. It is surprising that actually those persons, according to evidence of Jagnnath and his son Jandel, who had taken Jagnnath for negotiating regarding ransom amount are Gore and Kalla and for second time father of the abductee was taken to dacoits on 29.10.1999 also by Gore and kalla for payment of ransom amount but Gore and Kalle, who were acquainted with dacoits were not made accused in relating crime, but present appellants Parmal and Harisingh were made co-accused persons in the crime only on the evidence that after abduction of Jandel Singh (PW-4), two miscreants talked with Harissingh and Parmal, who were grazing their cattle in the jungle in the way. This fact clearly demonstrates that the investigation was not fare and bonafide in relation to present appellants. After abduction of Jandel present appellants did not inform his father about abduction and not intimated him about any demand of dacoits, hence evidence of Jagannath about appellants Parmal and Hari Singh did not inspire confidence.
17. In these circumstances, it is clear that father of abductee Jagannath (PW-1) introduced in his evidence given before the court much improvements and exaggerations in relation to alleged relationship of Harisingh and Parmal with the dacoits, who actually abducted Jandel singh. Only due to talking on the date of incident where present appellants were grazing their cattle with two miscreants could not establish their involvement in the abduction of Jandel Singh. On material points, evidence of Jagannath (PW-1) was Cr.A. 620/2003 10 not corroborated even by his son Jandel Singh (PW-4) and Investigator Hemant Sharma (PW-6). Hence, it is clear that the evidence given by Jagannath (PW-1) regarding alleged role of present appellants Hari singh and Parmal in abduction of his son was totally unreliable, as he was not corroborated even by his son on this point.
18. Defence witnesses Angad (Dw-1) and Chimman (DW-3) deposed that some time prior, the she-goats of Parmal and Harisingh were stolen and stolen she-goats were found in the house of Jagannath (PW-1) and at that point a panchanama was prepared wherein Jagannath agreed for giving Rs. 1, 000/- to Harisingh and Parmal. Angad (DW-1) deposed that he was a Panch of relating garam panchayat till recording of his deposition and as compromise had occurred in panchayat. The matter was not reported by Parmal and Harisingh regarding theft of their she-goats. Hence, defence of appellants was corroborated by these defence witnesses. Gore Singh (DW-2) and Kalla (DW-3) deposed before the trial court that they did not know Jgannath and his son Jandel (PW-4) and they never talked with Jagannath and dacoits regarding release of his abducted son.
19. It is clear from the evidence available on record that Jagannath's evidence regarding alleged role of present appellants was totally exaggerated and unbelievable for want of corroboration even by his son abductee Jandel (PW-4) and Investigator Harendra Sharma (PW-6) on material points.
20. We are of the considered opinion that the learned trial court erred in appreciating the evidence available on record and also erred in convicting and sentencing each of the present appellants Harisingh and Parmal in above mentioned charged offence. The Criminal Appeal in relation to both of these appellants appears to be worthy of acceptance.
Cr.A. 620/2003 1121. Consequently, this appeal filed by the appellants Harisingh and Parmal is allowed and their above mentioned conviction and sentence as recorded by the trial court is set aside and each of them is acquitted from the charge of Sec. 364-A of the IPC. The appellants are on bail, their personal bonds and surety bonds are discharged. They would be entitled to get the fine amount back, if they have deposited the same before the trial court.
22. A copy of the judgment be sent to the trial court along with record for information and compliance.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
7/2/2018 7/2/2018
ar
ABDUR RAHMAN
2018.02.07 17:01:23
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