Madhya Pradesh High Court
Rajesh @ Babba vs State Of M.P. on 1 February, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
i CrA. No.66U/2018 & CrA732/2016 THE HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR (DIVISION BENCH) Criminal Appeal No.661/2016 Hariram Dheemar .. Appellant Versus State of MP. ... Respondent AND Criminal Appeal No.732/2016 Rajesh Ge Babba .. Appellant Versus State oP MP Respondent CORAM Hon. Mr. Justice G.S. Ahluwalia, Judge. Hen. Mr. Justice Deepak Kumar Agarwal, Judge. Presence Shri Shailendra Singh, Counsel for appellant in Cr.A. No. 6612010 and Shri R.R.S.Rushwaha, Counsel for the appellant in CrA. No. 7323/2010. Shri A.K.Nirankari, Public Prosecutor for the respondent/State. JUDGMENT
(O1 February, 2022) PER JUSTICE DEEPAR KUMAR AGARWAL * CrA. No.66U/2018 & CrA732/2016 Since both these appeals are connected and arising out of a common judement dated 11.08.2010, they are bemg decided by this common judgment.
2. Both the criminal appeals under Section 374 of CeP.C. have been filed by appellants being aggrieved by the judgment dated [1.08.2010 passed by Special Judge (MPDVPR)} Adhiniyvam, District Datia in Special Case No. 10/2006 by which appcHant- Rajesh « Babba and appellant-Hariram Dhecmar have been convicted for the offence punishable under Section 120-B of IPC for life imprisonment with fine of Rs.S0Q00/- and further appellant-Rajesh @ Habba has been canvicted under Section 364-A of IPC read with section 13 of MPDVPER Act and sentenced to Life Imprisonment with fine of Rs. 5000/- and under section 368 of IPC read with section 13 of MPDYPEK: Act sentenced fo seven years RE with fing of Rs. 2000 with default stipulation.
33. in nutshell, facts of the ease are that on 25.09.2008 %, complainant Laxmi Narain lodged a written complaint at Police Station Pandokhar, District Datia alleging that he is resident of village Bilhati, bis breather Vinod Kumar aged about 45 years as per daily routing on 24.09.2005 at 3.00 PM went to the field along with nephew Puspendra and Shyamu. Afler cutting the grass his brother Vinod gave the grass to Pushpendra and told him that he will come ot Cra. No.661/2018 & CrA.732/2016 later and asked him to go to home. Till evening when he did not return, his nephew Shyamu went to the field to search him, but he cotld mot find out him. On his written complaint Guimrinsan No. O4/2005 was registered at Police Station Pandokhar and the matter was inquired. Afierwards, on 28.11.2003 Vinod was rescued and his statements were recorded. In his statement he has narrated that on 24.09.2005 im the evening between 6-7 PM when he was answering the call of nature, Punjab Singh Gurjar and Raj Kumar of village Bilhati along with appellant-Rajesh Babba, Nandu as well as two unknown persons kidnapped him and took him te forest Pirona in Uttar Pradesh. They kept him there for 10-12 days. Thereafter they brought him to Ratangarh forest and due to fear of Police they frequently changed the places and demanded ransom from his brother Awadesh for releasing hon. Santosh Khangar, Suresh Dheemar, Hrdas, Hakka Dheemar, Karan Singh, Hrirarm and Ram Singh kidnapped him and took him to a forest. Thereafter, on getting chance he escaped from their custody.
4, Afterwards, a case under Section 364~A, 368 read with Section 120-B of IPC was registered at Crime No. 62/2005 at Police Station Pandokhar, District Datia against appellant Rajesh ae Babba, Nariram and ten others. Appellants Hariram, Rajesh Ge Babba and other co-
accused persons were arrested. Statements af Awadesh and Dimesh 4 CrA. No.66U/2018 & CrA732/2016 were recorded and charge sheet has been filed against appellants and eight others.
§. 'To prove its case, prosecution has examined 12 witnesses and the defence examined Head Constable Lalli Ram (DW-1} and Constable Shyam Sundar (Dw-2).
6 Learned counsel for the appellants have submitted that the prosecution could not establish the charges framed against them, despite that learned Special Judge has sentenced them on the basis of contradictory evidence. Henee, prayed to allow these appeals.
7. Learned counsel for the State supported the mmpugned judgement of conviction and sentence and submitted that there is no mfirmity m ihe impugned judgment of conviction and sentence and findings recorded by the trial Court do not require any interference by this Court, Hence prayed for dismissal of the appeal.
Heard the counsel for the partics at length and perused the record of the trial Court.
2, As per complainant Laxmi Narain (PW-3}, Vinod (PW-1) is his elder brother. Before three years from recordmg of his evidence Vinad was at Bilhati ficld along with complainant's son Pushpendra and Shyamu. Pushpendra and Shyamu came back along with grass but Vinod remained there. Afterwards, Puspendra telephoned him and told that Vinod is missing. Thereafter, he came from Bhander and CrA. No.66U/2018 & CrA732/2016 along with villagers searched his brother Vinod, but could not trace him. Thereafter, on the next day, he gave written complaint at Police Station Pandokhar about missing of his elder brother, which is ExP-4. After 23 days, appellant Harmar met him at Indergarh and informed him that he along with Awadesh returned from forest after meeting appellant Rajesh (@i Babba and there he met Vined. He had also stated that appellant Rajesh is demanding Rs.4,00 lakhs for the release of Vinod. [tis further stated that if within 4 - 5 days arrangement of aforesaid money is not dene, then he will hill Vined and throw his body at Pandokhar crossing. After 5-6 days appellant Nariram came to Indergarh at the house of Chotelal and asked whether arrangement of money has been dane or not, then Complainant and his brothers expressed their inability to arrange such huge amount.
9,1 Thereafter, appcllant Nariram demanded Rs.11,000* for teeke of Rajesh ta: Babba and told that he will get Vinod released fram his custody. Thereafter, complainant and his brothers callected Rs.11],000/- and gave the same to appellant Harmam. After takime aforesaid money, appellant-Hariram told them that in the evening at 8- 00'o clook at Basaighat he will hand over Vinod to them. But as per assurance he did not bring Vinod at the aforesaid place. After 4-5 days appellant-Hariram and Lalla again came and asked for Rs. SQ0Q/-
more, then his elder brother Chotelal gave him Rs.5000/. Again he & CrA. No.66U/2018 & CrA732/2016 assured that he will hand over Vinod at S-00 PM near Marsent canal. But, again as per assurance he did not bring Vined. Then appellant-
Hartram and Ram Singh Lalla came and told that they could not found Rajesh @@: Babba. After [5 days Vinod came to his house by escaping trom the clutches of the offenders and informed that Pumjab Singh and Rajkumar had assisted in his kidnapping.
16.) is true that there are samme contradictions and omissions in fhe evidnece of cormplainant Laxaminaram who is brother of abductee, but only on this secre his evuineee cannot be disearded as regarding missing of his brother Vined, be lodged s written complaint im cancerned Police Station immediately on the next day ie, 28.09 2008 af = and ater HIS days appellant-Harmam met his brother Awdesh and Babba whoa will settle asked to come alongwith him to meet Ra the matter im regard of money, and thereafter Awdesh alongwuath appeliant-Hanrami met with appellant-Rajesh «@ Babba who eh demanded Rs. 4 Lakh and also threatened that dH withm 4-8 das 4 < age.
bot ie demand is not fuliied, he will KHP Vines? and evidence of complamant remamed firm m this regard, Hi. By supporting the prosecution stery and evidence of complainant Laxminarain, Awadesh (PW-2) stated that Vinad (PW-1T} is his brother and he knows the appellants. Before three years from recording of this evidence on 24th September, accident of his son was ~~ CrA. No.661/2018 & CrA.732/2016 occurred due to which he went to Indergarh, Next day on 25th September his wife telephonically informed him that his brother Vinod went to the field but did not return, Afterwards, he came to his house and along with villagers went to search his brother, but could not trace him out. Thereafter his brother Laxnm Narain lodged a report at Police Station Pandokhar about missing of Vined. After 10- 1S days at bus stand appellant Naritram met him and inquired whether he got any information with regard te Vined, then he told that he has no information. Thereafter, appellant Hariram told that his brother Vinod has been kidnapped by appellant Rajesh Ge Babba. Appellant Hariram told him to inform about the location of his house at Indergarh, then he will go to Ratangarh Mata Mandir and after talking with apnellant-Rajesh (@ Rabba mform him at his house, Indergarh.
Durmg this talk ane Dinesh was also present. On the next day, appcliant Narirain came and told that he met with appellant Rajesh @ Babba, Vinod is in his castady and also told to accompany him so that he will settle the matter with appellant Rajesh with regard to money.
[i.f On the same day in the evening he along with appellant Hariram by moterevele went to Kanjolighat. Afler leaving him at School, appellant Hariram went to village. After one hour, he came back and fold that appellant Rajesh is m the forest and he has settled the matter, Ram Singh and Hakka are the mediators and after some g CrA. No.66U/2018 & CrA732/2016 time they will reach at temple. Thereafter, be and appellant Hariram by motoreyele reached village Basai and thereafter by foot reached Singh came there and told that afier sun set they will go to meet Vinod. Thereafter, fis witness, appellant Hariram, Ram Singh and Hakka went to forest in the bank af river where accused Santosh and Hardas met them. They took them inside the forest and afler sore distance accused Suresh having gun met them along with Karan Singh. They further proceeded in the jungle for about 1 km where on Nanda and their the hill appellant Rajesh « Babba, accused accomplices were present. They enquired about their names and thereafter showed Vinod in the Heht of terch. Vined told that he (this witness} is his brother. Thereafter this witness was asked to remove his clothes and m the underwear he went fo the nll where appellant Rajesh told that i' this witness wanted to get his brother released, then he will have to give Rs.4.00 lakhs, otherwise he will kill Vined. On secing him Vinod by embracing him, started crying and told that whatever they are demanded give them. This witness told that we will arrange the money. Afterwards, he along with appellant Hariram. returned to Ratangarh Mata Mandir and thereafter came to indergarh.
12. After two days appellant Hariram again came and told that after arranging the money inform him sa that he can inform appellant o 9 CrA. No.66U/2018 & CrA732/2016 Rajesh @ Babba. Appellant Hariram took Rs.11,000/- for the experses and thereafter at 2-3 fimes he took Rs. S0Q0/- and assured to get Vinod released. After two months Vined himself came to the house at Indergarh and told that appellant Rajesh, Nandu Kadera, Hardas, Punjab Sigh and Rajkumar afer catching hald of him, had taken him in the forest and commuted etarpeer with him. Thereafter, this witness along with Vinod went to Police Station Pandokhar and police gave sugurde? of Vinod at the instance af Chotelal, which is ExP-3. Ne denied that Vinod used to go to Mandir for Darshan for long period,
13. In cross-cxamination he has stated that during his police statement (ExD-1), be has mot stated that after release Vinod told bon that he was kidnapped by appellant Rajesh q@ Babba, Rajkumar, Punjab Singh, Nandu Kadera and Nardas, but he told that he was kidnapped by the gang of Rajesh @ Babba. He knows appellant Hariram before the incident. Dinesh is son of his uncle. He denied that his brother Laxmu Narain took Rs.20,000/- as loan from appellant Rajesh t@ Babba, which he did not return. He denied that out af aforesaid Rs, 20,000/-, Rs.16,000/ has been sent to appellant Rajesh through appellant Hariram. He also denied that Vinod was not kidnapped, He denied that duc to cutting of tree a dispute with Raj Kumar and Punjab Singh is pending in the Court. He admitted that iG CrA. No.66U/2018 & CrA732/2016 for the murder of Narendra, younger brother of Punjab Singh, trial is geome on. He admitted that he was in touch with Police and the kidnappers. He stated in his palice statement (ExD-1)} that after 10-15 days of kidnapping of Vinod, at bus stand appellant Haram met him. If this fact is not mentioned in his statement (Ex.D-1}, he can not give any reason. Hoe further stated that appellant Hariram is resnlent of Vilage Maevroli, which is five kilometres away from village Bulhati. He knows maximum villagers of village Magroli. Ne further stated that the distance between Bhander bus-stand and SDOP office is about 50 steps and the distance of Police Station Bhander 1s about 1Q0 steps. It is further stated that when he was talking with appellant Nariram, nobody was present there.
i4, In his statement, Awdesh (PW/2) stated that be knew all the accused, He has stated that appellant-Nartam asked him in regard to location of his house situated at Indergarh, so that afer mecting appellant-Ratesh i@ Babba, he can inform him. He has also stated that next day, appellant-Hariram came to his house and miormed that appellant-Rajesh has kidnapped Vined. He has alsa stated that appellant-Hariram told to aceompany him so that he would arrange a meeting of Appellant-Rajesh Babba with him for settlement of the matter, Thereafter, he alongwith Hariram visited a village called Kaniol and thereafter, Hariram while returning back informed him ig CrA. No.66U/2018 & CrA732/2016 that Ram Singh and Hakka are mediators and they would arranges a meeting with Appellant Rajesh. Thereafter, they reached at Ratangarh temple. If this fet is not mentioned in his police statement (Ex-D/1), he cannot give any reason. Likewise, he has stafed in his statement (Ex.-D/i} that he along with Hariram, Ram Singh und Hakka reached at the hank of cpver, where, Santosh and Hardas met them, bul if thes fact is not mentioned in his statement, he can not give any reason. Ne sf & cauld nto rernember that he told the police that accused persons abowed Vinod in the light of torch, but he denied that he is saying this fant fer the first time in the Cyrart.
sinternent that he gave Rs, 1],000.- to Nariram for his expenses and thereafter alse gave Rs SOUKY- twine to him. Afier two months, Vinod on his own carne to his horse. Ef in Ais polices slatemem, he cannot give any reason. He dui nol make any complet against the appellamt-Rajesh and other accused persons, duc to fear that his brather could be murdered. Alter release of Vinod, he informed the police that appellant-Nariram threatened) him: not te tell the incident to anybody otherwise his brather will be killed. He denied that be 4, He also denied & ae ee at €% sah ire cat inet fe pin, ene eed 2 wit, nnd rn jor an took oP so fete we, re oe pet mo es a ot oo porns an oe aw.
'a yor Seer ao ee fe i oe it ei, eke h. He also denied that he had not Swadesh, there are some i6.
GNECHTIGON Casc ; thes wave some indication Rajkusnar « (fer some time, he saw Rajes Hardas and one more p asked about his ident iQ CrA. No.s61/2018 & CrAJ32/2a1d contradictions ard ors ions, but he remaimerc point that fer 10-15 days appellant-Hariram negatiated for release of abxiuctee Vinod with him, Afier several re stends af ks, nagotigtion tock place in which Hariram demanded Rs.) 10004 and Rs SO) DO fwies which he gave to appcllant-Haniram, He alongwith appcilant Harram havardous juney f atter h Ges eached to appellant Rajesh ce Babb:
abduntee-Vinod ie Sexe Par cand mefwih is release Ratosh Lakhs and «a Babba demanded Rs.4 threatened that ) money AS fr net given, he would | her as defer vould kill Vincd.
snee contention that the witness did: net police abou! appellant-Heriram and Rajest ai inface stated that du y the de to fear i Babba, he hat his brother might be shwulge this murdered, he cauki net ES he the police. His sole alyect was to get his brothe Vinod released frors the peas Kf Ayo usiody of anpellant-Raiesh d@ Babba, SUDPOTURE pr , abdiuctee Vinod (PWT) has i that he knows all the accused. Approximetly two vears bef svering at about US:50 at Village Bull Bilbeti when he had ac wer vy all of nature in the Zane fa and Rajkumar & xh standing and t hey both after seeing him a. Thereatier, wher a he returned Punjab Singh and VEN Gay. s uesh Babba, Nandy erson. Al SH the four accused came to him and atity, on which, he rep: & 'ad that hy eS iS DH f3 CrA. No.66U/2018 & CrA732/2016 uftered that they were waiting for him. Thereafler, all the four acoused caught held of him snd took hin and made him sit at one place, At thal tire, Rajesh and Nendu were having gans. Thereafter, Nerdas remained with him and other three persons went away. After half an hour, they came back and took him te the appellant Rajesh Babba commitied marpeet with hon and eld that if he cried, then he would kill him. Appellant Rajesh Babba demanded Rs. four lacs as ransom. H'the aforesaid amount is net paid to Rayesh Babba, they would kil him. He was in their custody for approximetly two months and fuur days. Accused persons ted him to a iree with the inegre hetp of chain. When he was alone, then by breaking the chai, he ran gees 42 PP. Lharimge cross-examination, he admitted that adjacent to his field, Held of Rambharase, Rajkumar, Faniab Singh, Chandrabhar and Galsb Singh are sNusted. At the time of imeidont, when he returned afler answering the call of nature, Babu Barar waa cutting eruss noar his fiold. In wiser season sum usually set at O6:00 PM.
Before meident, he did'nt kucrw appellant-Rajiesh Babhe and Nandu.
We denied that there wes a relation between the :
Boabba and his brother. He also denied that his brother Luaxnumiarsin took loan of Rs 2040). from Rajesh Babha. Ne admitted that brother id CrA. No.661/2018 & Cr A.732/2016 of Puniab Singh was tourdered, against which, a ernminal case is ponding before the trial court agaist Laxaminaram and Awdesh, He admitted that near the place where he was kept im custody certain villagers used to come fo grave their ammmals. Appellants-accused do not su along with hin. | le stated in his police statement that appellant Rajesh Habba along with Hardas kidmapped him. H this fact is not mentioned in his police statement, he cannot give any reason. He denied that Hardas was m custody. On the date of incident, he saw the appellant and other co-accused persons from a distance of 25-30 steps. Despic this, he did not try i ran away. He did net know appellant Rajesh before the incident. He came to know about the name of appellant Rajesh durimg their conversation. Affer escaping, he did not lodge any repart at Police Station Tharet and Police Station Indergarh which are on the way. Ne denied that appellant had not kidnapped him.
$8. On going through the evidence of abductees Vinod, it is evident that on the date of incident appellant Rajesh Babba, alongwith others kidnapped him and took him to the forest where appellant Rajesh (a: Babba committed maarpeet with him and demanded Rs.4 lakhs as ransom. He remained im the custody of the appellants for approximately two months and four days and on getting a chanee he escaped fram their custody. It is trac that afler release he did not lodge PSs CrA. No.66U/2018 & CrA732/2016 ihe report against present appellants and other co-accused, but on the next date of the inclent his brother Laxminarain already lodged missing report and on his report inquiry was conducted and during inquiry statement of Vinod was revorded afier his escape from the custody of appellants. After recording of his statement, FIR has been lodged against present appellants and ten others. In such a situation, not lodging FIR by the abductce Vinod does not make prosecution case doubtful. Abductee Vinod has specifically stated that Haritram alongwith Rajesh (@ Babba kidnapped him. During investigation Police menther conducted lentification parace sor he alleged that appellant Harrram was one of the accused who kuinagped him.
iS, By supporting the prosecution case, Dinesh Kumar (PW?) stated that Vined is his cousin brother, Apmroximetly two years age before recording of his statement, Puspendra (P Wd} came to him and informed that Vmod dad not return from the field. Afterwards, he pt along with Rarsbharose Khangar and Dashrath went to scarch Vinod in the Geld, but he could not trace bun. After 7-8 days, appellant Haram met hun and told that Vinod has been kmapred by Rajesh Babba gang, if they want to meet Vinod, he can arrange a meeting.
3s, "ae Thereafer, he went fo mest Babba Barar cane and on returning stated that he met with Vad and Vinod was im the custody of the sa After two days, Awdesh and Harram wet fo meet Vinod. When they fo CrA. No.66U/2018 & CrA732/2016 came back, they staled that appcliants-accused are demanding ransam of Raid | kh te release Vinod, otherwise, they would kill him. He peeet be Fen stated thar he does net know that alter taking know much money fu.
aceused persons released the abductees, Abductee Vinod after release ¥ stated that Rajesh Nanda, Ratkumar, Punjab and others kilnapped him. During investigation Police acither conducted identification parade nor he alleged that appellant Hariram was one af the accused who kidnapped him, 20, During his crass-cxamination, he denicd (hat Laxnunarain was having good relationship wih Babbsa gang. He ceried that Vinod mS x used to go to temple without informing family members. He alae semed that on the date of meident withoat informing anyone Vinod had gone to Ratangarh Mata mandir. He denied that SDOP, Bhander had conducted enquiry and found that Lagi Narain (PW-3} had x taken Rs.20.000/- as loan from appellant Rajest Babba which he did not repay. Ne ferther denied that [alse case was registered recarding Kidnapping of Vinod so that loan amount could not be repaid, Afier Hh] days of kidnapping of Vinod, he came i) know that Vinod was kidnapped by the appellant Raije despite this be did not inform. about this fact ta pxlice. He had not Stated in His police statement that along with Nariam he had gone meet Vinod at Habba's place. Later on, he stated that he alemg with iy CrA. No.66U/2018 & CrA732/2016 the miscreants. He bonnes, Hariram never went i meet Vined at the place o! is further admitted that he knows appellant Nariram, who is resident of lage Mameroh, mach before the date of incident. Ne admitted that after aboot 7-8 days of Kidnappme of Vinod, he met appellant 4 along with one another person, On enquiry Hariram stated taniprmalion regarding Vinod He admitted that x that he wall appclant Hariram had aot gone to mest Vinod in front of him.
r perusing the csxamination-mechief and crass-examination of this witness, anly this [set is prowed that after &-10 days of missing of Yinod, he met Herram af bus stend and Hariram informed him that Vinod was kidnapped by appell ' amt Rajesh @ Babba. Ne had not gone io meet Vines! along with Hanram im the forest and uvlrant of hin ne money franscation has taken pha
22. As per Shvam (PW-9), Vinod is bis uncle and on the date of incident he was m the field and after taking grass he came to his house. His uncle Vinexi told him that he will come affer some time.
When in the night Vinod did not return, fam members had gone to search him but he could newt be traced. After pve months, his unele if Vinod came to the house and informed that Rajesh Babba Barar along with Poniah Crarjer and Rajkumer OGurjar had abducted him. In his cross-examunation he stated that during witner season normally the sun set atabent S30 to S48 PML He is having no knowledge that his S CrA. No.66U/2018 & CrA732/2016 father Laxmi Narain took loan of Rs. 20,000/- from appellant Rajesh and dus te which a dispute arase between thom. Ne denied that on the date of incident his uncle Vinod had gome fo Ratan Mata Mandir for Darshan, 23, Lookme te the evidence of this winess, it emerges out that his oo te of incnient and aller two moanihs be came back and informed that he was kidnapped by appellant Rajesh, Punjab Gurar and Ra; Kumar Guriar.
24. As per Chatelal (PW-10), on the date of incident be was at h and he got telephome information that Kota is missing and he could not be traceable. His brother Laxmi Narain hes informed polive about his missing. Awadesh and Dinesh had gone to Bhander where they met appellant Nariram and he demanded Rs 50.000" for search of Vinod. On the neat day st 11.30 in the night, Hanram came to his house and tock his brother Awadesh with him and met appellant Raiesh and falked with fim.
Rs.4.06 lakhs for release of Vinod, otherwise aller five days he will be killed. Later on, sppellant-Hariram Kowast came to their Bouse and demanded Rs 11 Q00'- for the release of Vinend and told that an giving the amount he will get Vinod released. Then they brought Re.) 10a.
s (brother-in-law), Thereafter, as per dirsctian of from Harcharan Vys appoliant Hartram, he reached to Ranfagach marker along with iQ CrA. No.66U/2018 & CrA732/2016 Awadesh (PW-2), Chotelal (PW-10) and Laxmi Narain (PWS) and gaye Rs.) L000". by appellant Hariram. Accused Ram Singh was also present with appellant Nariram. Thereafler all the four brothers came back. Af that time accused Ram Singh told them fe reach near canal at 4.00 PM and Vined will be handed over to them at 8.0) PM,
28. On the neat day all the four brothers went fo Basa: Canal, where accused Ram Singh and appellant Nariram met them. He told ti, therm that appellant Rajesh abba is felling that, "vou people have come here afler meeting police personnel, that is why Be will not x2 a release Vinod today'. Later on, all of thom returned to Indes the neat day, appellant Nariram again came and asked for Rs. S000/- and assured that Vine wil carne to thor house. Again they gave Rs SOM) to appellant Hariram, Afler vo months and five days Vincd himself came to the house and narrated that accused Punjab, Raj Kumar Guriar along with Nandu Radere, Raiesh Babba and two others Ekinapped him for ransom and ccammutied ssargees with him.
Police by preparing Supurdgi Panchanama, handed over Vinad to oa him.
26. During crogs-csamination, be alse stefed that afler missing of Vinad opto bis recowery, they had nether contacted the pales, ner miormed about demand made by appellant Harmam for relesse of as ivfermation Vinod, After 8-10 days of the meident Laxmi Narain 20 CrA. No.66U/2018 & CrA732/2016 to the Police. ANer kidnapping of Vine, appellant Hariram never mot him. He further stated that he met appollant Narirsm when he had given Rs. 1] UMKE- to him and also stated t peng ot Tae pes yeas yo te ws maa .
La «x £% ned tak me ee, State.
rant bet ue oe ialks with appellant Hariram in reward fo dacoits. He denicd that ~ Vinod was not kidmapned. He flrther denied that thers any dispute come an bebween his brothers Laxmi Narain and Awadesh with accused Punjab Sinch and Rat Ramar But he admitted that one x r spothers Awadesh and Laxird Narain for "
eae is pending against his the murder of Narendra Singh, who is brother of Punjab Singh. He denied that Vinsxi used to go fo pilgrimage and do not return aplo two-three months. He also dened that on the said date alsa Vinod had gone t Ratangarh Temple for Darshan. Gat name of this wiiness has not been taken by Awadesh (PW-2) to whom appellant Heriram centiacted for the release af Vinod, who as por his evidence along with appellant Nariram went to the place af appeliant Rajesh g¢ Babba for release of Vine,
27. As per Arana Dewi (PW-S), Vinod is her elder brother-in-law, Before three and a half years of reeerdme of her evidence, on the date of incident, at 2.30 PM she went ta the Aeld, at that Gime accused Pumab Cruriar and Minchu Barar were also present at the adjacent field) After taking grass she came back tou hor house along with her aan Shyam and Vinod remaimed in the fehl. When in the evening he 2 CrA. No.661/2018 & CrA.732/2016 did not come back she sent her som Shyamu fer his search, but he could nat be traced. After two months, he came back and sand that he was kidnapped by criminals.
28. Charing ere mination she has stated that affer missme of Vinod she could not get any information about him and police came to thoi village many umes but sho never gave any information. As per her evidenes only this feet came fonvard that Vinod was nussing for about two months and afterwards he came back. As per her evidence, eruminals had kidnapped him.
28, As per Pushpendra Singh (PW-4), he. bis mother, brother ms Shaymu and Vinod were at the field on the date of incident and except Vinod everybody came back. When Vinedd di not return they went to see him but he could not be traced. During cross-examination he has stated that before release of Vinad, Police came to their house 3-4 times und enquired about Vinod but they dil nat tell that who kidnapped Vinod.
3H. As per BURKS Rathore, S.A (PW-1S) an 24.09.2005 Laxmi Narain (PW-3) submitted a written complaint about massing of fis brother Vinod, which is ExP-4. On the basis of the written cmmplamam, he has registered a missing person report Na. 4/08, which is ExP-S. Afterwards on 28,11.2005 he prepared recovery ste panchanama (ExP-i} and handed aver custody of Vinod to Chatelal Ro CrA. No.66U/2018 & CrA732/2016 o%, and sem him for medica! exarnination. After enquiry of guminsan on 29.1) 2005S he registered a crime under Sections 3o4-A, 368 read will Fe Babha Section (208 of TPC agaisnt the present appellant Rajesh © and Nariram and ten others af Crime No. f 62/2008 (Ee xPid), Thereafter, during investigation, on 30.11.2005 recorded the statement of witnesses and prepared spat map CExP-2) On 142.2006 he atresied apmellant Hariram and on issuanes of production warrant against appellant Rajesh Barar, he arrested hun by ExP-16, Durnig giminsan inquiry, he hes reearded the statement of Chotelal, Awadesh, Laxminarain and Dinesh. Wuhness Pusnendra and Shyam are sons of complainant Laxmuirain and Aruna is fis wife. He O05 be had onenmred these witnesses further slated that before 2S. 1 and they did not disclose the name of kidnappers. Before 28.11.2005 Chotelal, Awadesh, Laxrninruin and ENnesh did not inferm him that appellant Hariram has fold them that Vinod was kidnapped by appellant Rajesh. He explained himself that witnesses stated that due io Tear they did not state anviliing te police.
Ss Admitted that it is true that the have nat stated m Sone ' Herel oi noted % i b "wrk oY x their statment that due te fear of police they did not inform the police. We further stated that he cannot say thal against witnesses Chotelal, Awadesh, Laxmuinargim, Dinesh and abductee Vined how srany ?
% eruminal cases are registered' at Police Stauien Pandokhar Ne denied Ay an CrA. No.66U/2018 & CrA732/2016 that he has falsely omplicaied the appe and other accused persons. He also demied that Vinad was not lidnapned. He has admitted that witness Awadesh (PW-2) in his statement has not stated so, a ary where Hariram asked that he went wih Harirant by bus to Inde ss of his house so that aller talking with appellant Rajesh he can inform him. He has also nat stated that after mecting with appellant Rajesh, appellant-Nariram mformed him that Vinod is in the custody of appellant Raiesh. He has also not stated that appellant Haeriram came to his place and told Aim to came aling with him by the place af appellant Rajesh for talking abet the ransom. Ne has alse not disclosed that along wath appellant Hariram by moforeycle he wen tg Kanioh. He bas also net stated that after tafking with appelian? Hariram he told him that be has managed one person who will mediate the issuc. He has alse not stated m his stefement that appellant Nariram told him that ihe disclosed the above facts to the pe Police, his brother Vinod will be killed. Before release of Vinod,
31. From perusal of the evidenoe of this lavestigating OMecer, if iransgires that an the written complaint of Laxminarain he & ve AS pep recorded immasing person report and thereafter on 29.11.2005 after reloase of Vinee offences under sections 364.4, 358 read with Seetim 24 Cr.A. No. 661/2018 & Cr A.732/2016 I20B of IPC were registered agaisnt the appellants and other sccused x porsons. During missing peron inquiry and hefore recovery of Vinad no witness has uvformed him that Vinud was abducted by appellants and ten other criminals. He did not Ale Gumshudgi sta fant along wih the crume namber.
AZ. As per Minchu (PW-5), field of Vinod is adjacent to his field.
Before 2-3 years of recording af his evidence aft about 4 pin, he came back to his house. Vinad, his sister-in-law and acphew Pushpondra were remained on the Meld. At night, he got infwmation that Vinci did not return to dre home. Me has no information thal when Vinwl came back,
33. During cross-examination, he has admitted that Vinod used to go out for months. From evidence of this witness, nothing can be attributed against the appellant.
34. As per Dr. RLS. Parnthar (PW-8), on 28.11.2005 he was posted as Medical Offieer at Primary Health Center, Shander. On the aforesaid date, Vinod S/o Brajnandan Brahman was produced by Police Station Pandokhar for his medical examination, which is Ex.P-5. On physical examination of Vinod, he found healed wound near right knee, measuring 2.2 2 om and on left knee measuring 2.5 x 2 em. Injuries were three weeks old and caused by hard and blunt abject. His report is Ex P-6. During crosxs-examination, he admitted that on moving on 3h CrA. No.66U/2018 & CrA732/2016 hard and blunt surface, aforesaid injuries can be caused, From the evidence of this witness, this fact cames out that he found aforesaid healed wound on the body of Vinod.
38. As per Harprasad (PW-11}, he prepared spot map of land situated in Khasra No, 713. Spot Map is Ex P-7.
36. As per Lalluram (DW-1), he was posted as Head Constable in Sub-Jail Sewda. He has brought entry register. As per entry register, name of prisoner No.94, Hardas S/o full: was registered for the offence punishable under Sections 399, 400, 402 of IPC, Section 25/27 of Arms Act and Seetion LV1i3 of MPDVPEK Act bearing Crime No.30/2005. He was sent to tall on 04.07.2005, Thereatier, by order dated 21.10.2005 passed by Special Judge, Datia, he was released from jail. Page No. 144 of prisoner's entry register is Ex D-3,
37. During cross-cxantination, he admitted that from 04.07.2005 to 21.10.2008 aceused Nardas was in jail. He specifically admitted that on 24.09.2005 he was in Sewda Jail. From the evidence of this defence witness, Ho ois proved that on the date ef incident, Le. 24.09, 2008 accused Hardas was in Sub-jail Sewda.
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41. In view of the aforesaid analysis of the evidence of witnesses and law Jad dawn by the Apex Court, we are of the opinion that appellant Rajesh @ Babba kidnapped abductee-Vinod for ransom and appellant-Hartram hatched conspiracy with him. Therefore, this Court affirms the findings of the learned Special Judge and maintained the judgment of conviction and sentence for the offence punishable under Section 364-A af IPC rw 120-B of IPC im respect of appellant- Hariram and for the offence pumshable under Section 364-A of [PC in respect of appcllant-Rajesh «@ Babba.
42, So far as conviction of appellant-Rajesh @ Babba under Section 368 of IPC rw 13 of MPDVPE Act is concerned, since ingredients of Section 368 of TPC are inchided in Sectin 364A of IPC. therefore, looking to the provision of Section 7! IPC, conviction of appellant-
Rajesh @: Babba under Section 368 IPC rw 13 of MPDVPR Act is set aside, Accordingly, criminal appeal No.661/2010 is dismissed and 28 CrA. No.66U/2018 & CrA732/2016 CrA. No. 7322010 is parth allewed so far as conviction af appellant-Rajesh @ Babba under Sechon 368 of EPC rw 13 of MPDVPE Act is concerned.
43, Appeliaat-Rafesh @ Babba is in jad, while agpellant-Hariram is on bal, us bail bond and surety bond are cancelled and he ts directed to surrender on or before 21.02.2022 for undergoing remaming part of semfence as directed abowe, fatling which trial Court is af frberty to ISSne afrest warrant against him.
(G.S. AHLUWALIA) (DEEPAK KUMAR AGARWAL) JUDGE JUDGE ¥ ¥ YOGENDA CrA. Nadel of 2010 & 732 of 2010 HIGH COURT OF MADHYA PRADESH GWALIOR BENCH DIVISION BENCH a8. AHLUWALIA & DEEPAK KUMAR AGARWAL J.J. Cr.A. No. 661 of 2016 Hariram Dheemar Vs. State of M.LP.
Cr.A. No. 732 of 2010Rajesh @ Babba Vs. State of M.P. Shri Shailendra Singh Kushwaha, Counsel for the Appellant in CrA. No. 661 of S010.
Shri RUK.S. Rushwaha Counsel for the Appellant in Cr A. No. 732 af 2010.
Shr A.K. Nirankari Counsel for the Staic.
Date of Hearing > 06-01-2022 Date of Jadgement » I Feb-2022 Approved for Reporting Judgment 1" - February -2022 Per G.S. Ahhrwalia J.
44. 1 got an opportunity to go through the padement written by my Bat CrA. Nadel of 2010 & 732 of 2010 learned brother Shri Justice Deepak Agarwal, however, | am unable to concur with the findings given by my esteemed brother. Therefore, | would hike to differ with the findings given by miy learned brother. Since, the judgment passed by my esteemed brother runs in 43 paras, therefore, lam starting my judgment from para no. 44.
45. The evidence of the witnesses have already been discussed by roy learned brother Shri Justice Deepak Agarwal, however, in order to support my findings, | would like to refer to the evidence led by the prosecution,
46. itis not out ef place to mention here that oo-accused Ram Singh, Suresh Dheemer, Hardas Dheemer, Karan Singh, Santosh Khangar, Punjab Singh, were also tried but they were acquitted and no appeal against ther acquittal has been fled. The co-accused Nandu @ Nandkishore Kadera is dead.
47. Vinod (P.W.1) is the abductee. Ne has stated that at about $:30 P.M., Re was in his field and was defecating. He saw that Punjab Singh and Rajkumar were standing. After noticing this witness, they > pave signal to cach other. This witness returned back to his field after qt defecating. Afler some time, Appellant Rajesh @ Babba, Nanda, Hardas and one more person came there and enquired about this witness. This witness informed that he is Pandit, Tnmediately thereafter, they responded that they were looking for this witness and took him to a place where he was made to sit. Rajesh @ Babba and Nandu were carrying guns whereas pvo others were empty handed.
tied CrA. Nadel of 2010 & 732 of 2010 Three persons went away, whereas Hardas stayed back. After 30 minutes, those three persons came back and took this witness to the forest. This witness identified Rajesh a Babba, Nardas, Rajkumar by their name and ather accused persons by their faces. It was alleged that thereafter, this witness was beaten by lathi and had also threatencd that in case, W he raises any alarm, then he weld be killed. Appellant Rajesh «@ Babba made a demand of Rs. 4 lacs. He was kept in captivity for 2 months. The accused persons used to tie him with chaims. On one day, the accused persons went away and afer breaking the chains, this witness ran away and came to Ratangarh Mata, One tractor was parked there. Affer same time, the owner of the tractor came thers. This witness took a Hit and came hack to the house of his brather Chhotelal and on the next day, he went to Police Station Pandokhar and informed the police. The recovery memo Ex. P.l was prepared. Ne was sent for medical examination. The spot map Ex. P.2 was prepared. This witness was cross-examined.
In cross-exarination, this witness admitted that the spot map, Ex, P2 was not prepared in his presence, but the police had obtained his signatures. He further stated that when he came back after defecating, Babu was working in his field, Ne denied that at the time of incident, any person whe is at a distance of 4 steps was not visible. Appellant Rajesh @ Babba, Nandu Kadera were not known to him prior to incident. He demed that Laxminarayan had taken an amount CrA. Nadel of 2010 & 732 of 2010 af Rs.20.000 from Appellant Rajesh @ Babba. However, he admitted that the brother of co-accused Punjab Singh, namely Narendra was murdered and Laxminarayan (PW. 3}, Awadhesh (PW.
2) are accused in the said case, Ne further admitted that he does not recallcet as to whether he informed the police that he had come to Indergarh by tractor, In para 10 of his cross-csamination, he admitted that, nearby villagers used to come for grazing their cattles at the mace where he was kept in captivity, He further stated that the accused persons did not sit along with him and used to tie him separately. Ne denied that he was kept blindfolded. He further stated that Hardas had also abducted him, and demed that on the day of incident, Hardas was already detained in jail. Ne flrther stated that Appellant Rajesh @ Babba was not known to him, however, he came to know as the accused persons used to talk fo cach other by taking thetr names. They continuously demanded ransom, nll he did not escape fram their captivity. He further stated that he docs not know that who was the owner of the tractor on which he came to Indergarh. He admitted that Police Stations Bhauapura, Tharet and Indergarh were an the way to Indergarh, but he did not inform the police.
Thus, from the evidence of Vinad, it is clear that he was not kept at an isolated place, but the nearby villagers used to come there for wrazing their cattles. Ne further stated that Nardas was one of the wisereant who had abducted hin. He ferther admitted that Laxminarayan (P.\W.3} and Awadhesh (P.W.2} were facing trial for SS re CrA. Nadel of 2010 & 732 of 2010 murder of brother of co-accused Panjab Singh. He further admitted that he dacs nat recollect as to whether he had informed the police that he had come to Indergarh on a tractor. Ne further admitted that the spot map, Ex, P.2 was not prepared in his presence, but the police had merely obtained his signatures. Ne further admitted that on his way to Indergarh, he did not not inform Tharet and Indergarh Police Station about his abduction. He does not say, that his brother Awadhesh (PW.2) had ever come to meet him while he was in captivity. He further denied that on the date of incident, co-accused Hardas was already detained in jail.
48, Awadhesh Kumar (P.W,.2) has stated that the accused persons, including Hardas are known to him. As bis son had met with an accident, therefore, he went to Indergarh. In the morning of 24", he was informed on mobile that his elder brother Vinod has not retumed hack. Thereafter, he came hack to his village and went in search of his brother along with villagers, but could not meet Vinod. Thereafter, he went to lodge report in Pandokhar Police Station. After 10-15 days, he met with Hariram at Bhander Bus Stand who asked whether this witness has core to know about the whereabouts of Vinod or not and when this witness replied that he has no information about Vinod, then Hariram. informed, that Vinod has been abducted by Appellant Rajesh Babba. Dinesh was also with him at the ume of conversation, Hartram had also asked him to give his address so that he can inform him about Vined affer contacting Appellant Rajesh j@ i CrA. Nadel of 2010 & 732 of 2010 Babba, On the next day, Nariram again came and mformed that he has met Appellant Rajesh @ Babba and Vined is with him and also asked to go with him for talks about ransom. In the evening, he and Haram went to Kanjoli Ghat on his moter cycle. Nariram went to village. After one hour, he came back and informed that Appellant Rajesh @ Babba is in forest and Ram Singh and Hakka will be mediators and they would arrange for meetmg. Ne further informed that after some time, Ram Singh and Hakka would reach Ratangarh Mata Temple. Thereafter, this witness and Hariram came back to village Basal and after leaving their motoreycle, they went to Temple. After about | hour, Ram Singh and Hakka also reached there. Thereafter, this witness, Nariram, Ram Singh and Nakka went towards rover by walking, where they met with Santosh and Hardas. They took him inside the forest area. Santosh and Karan Singh also met him. Santosh was carrying gun. Therealter, they walked for g about | km. Appellant Rajesh @ Babba, Nandu Kadera were an the tap of the hill along with some more persons. The accused persons enquired about the names of all persons and it was already dark. From the top of the hill, this witness was got identified by Vinod in the light of the torch. Vimad also told him that this witness is his brother. Thereafter, he was stripped of his cloths except underwear and he went to the top of the hill. Appellant Rajesh @ Babba demanded a ransom of Rs. 4 lacs. Vinod was kept in Inding at some distance. Thereafter, Suresh took him to Vinod who hugged him and a A] CrA. Nadel of 2010 & 732 of 2010 started crying and requested him ta give as much money as they want, but he should get free, Thereafter, this witness assured that he would take arrangement and came back to Temple along with Nanram and went to village from where he came back te Indergarh on his motorcycle. One or two days thereafter, Hariram came to this witness and enquired about the money. Thereafter, he gave Rs. 1] .000/- to Hariram towards expenses. Thereafter, on 3-4 occasions, Rs. 5000)- more Were given. Afier bwo months, Vinod came back to Indergarh on his own, On the next day, they went fo police station Pandokhar where Vinod was given in his custody vide Ex, P.3. This witness was cross-examined.
Tn crass-cxamination, this witness stated that he was informed by his wife on his mobile from STD booth but could not disclose the number of telephone fram which his wife had called him, He had. received the mobile calf at 8-9 A.M. and he came back to village Bihan at 11 P.M. Ne stated that he had not informed the police that Nariram has come to his house and informed that Vined has been abducted by Appellant Rajesh @ Babba, Rajkumar, Punjab Singh, Nandu Kadera and Nardas but claimed that he had merely informed, that Vinod has been abducted by Gang of Appellant Rajesh «@ Babba, Ne claimed that he had informed the police that at the the of abduction, Rajkumar and Punjab were also there, but could net explain as to why this fact is net mentioned in his pohece statement, Ex. D1. He further stated that he had informed the police that Suresh CrA. Nadel of 2010 & 732 of 2010 had met on the way, but could not explain as to why this fact is not mentioned in his police statement, Ex, D.1. He admitted that he, Laxminarayan (P.W.3) and some more persons are accused in the murder case of Narendra Singh, whe is younger brother of co-accused Punjab Singh.
He further admitted that from the date of abduction, tll Vinod ran away from the captivity, he was m constant touch with Police. In indergarh, his house is at a distance of 'o kim away from Police Station. He also admitted that there is a police outpost at Ratangarh Mata Temple. He further admitted that during this period he was in constant touch with abductors and police. He forther adraitted that he had informed the police that after 10-15 days of abduction, he had met with Hariram, but could not explain as te why 10-15 days is not mentioned in his police statement, Ex. D1. Ne further admitted that eo-accused is residemt of village Magroli but claimed that this witness is resident of village Bilhati but admuited that some of his relatives have ancestral land in Magroli. He further admitted that prior to his meeting with Hartram at Bhander Bus Stand, he had not gone ta village Magroli, Ne further admitted that shops are situated around the bus stand. He further admitted that the office of 8.D.O(P) is approximately 50 steps away from bus stand. He claimed that he had talked to Hariram at the place, where buses are parked. He claimed that he had informed police that Nariram had asked him to diselose his address, so that he can inform him after meeting Appellant Rajesh 9 CrA. Nadel of 2010 & 732 of 2010 i Babba, but could not explain as to why this fact is not mentioned in his pelice statement, Ex.D.1. He further clanmed that he had also informed the police that on next day, Naritram told him that Vined is in captivity of Appellant Rajesh @ Babba, but could not explain as to why this fact is mot mentioned in his police statement, Ex. D.1. He further claimed that Hartram had asked him to meet Appellant Rajesh i@ Babba for having talks on ransom, but could not explain as to why this fact is not mentioned m his police statement, Ex. Dl}. He further claimed that Hariram had informed him that he has set some persons ami Appellant Rajesh @ > Babba is in forest and Ram Singh and Hakka, who are mediators, would came to Temple and would arrange for meeting, but could not explam as to why this fact is not mentioned in his police statement, Ex. Dv]. He farther claimed that he had informed the police that when they reached near river, they met with Santosh and Hardas who escorted them, but could not explam as to why this fact is not mentioned in his police statement, Ex. Do. He further claimed that he had mformed the police that this witness was got identified by Vined from the top of the hill in the light af the torch, bat could not explain as to why this fact is net mentioned in his police statement, Ex. D1. He firther clamed that Nariram had taken Rs.1 {00 towards expenses and had also taken Rs. 5000. on 2-3 occasions on the pretext of getting Vinod released and thereafter, Vinod came back on his own, bet could not explain as to why this fact is not menhemned in his poles statement, Ex. D1. He li CrA. Nadel of 2010 & 732 of 2010 further stated that he had informed the police, that Hariram had threatened him not to disclose anythmg to police, otherwise, life af his brother would be in danger, but could not explain as to why this fact is not mentioned im his police statement, Ex. D.1. He further admitted that his family is a reputed family and generally solves the dispute of people, howewer, denicd that he is connected with political persons. He further stated that he had informed the police of Police station Pandokhar, Indergarh, Tharet, that Hariram has informed him. that Vinod has been abducted by accused persons.
Thus, itis clear that this witness has clauned that he went to the forest area along with co-gecused Hanram, Hardas, Santosh where Appellant Rajesh i@: Babba, Nandu Kadera and others were on the top of the hill, This witness was got identified from Vinod in the light of the torch and thereafier, his cloths were stripped of and he went to the top of the hull, where he met with his brother Vinad who requested that whatsoever money is demanded, the same may be paid and he be got released. He further clanmed that from the date of abduction, Hl) Vinod came back on his own, he was in constant toach with abductors as wellas the Pohee. Me further clanmed that he had informed Police Station Pandokhar, Indergarh, and Tharet about the information given by Hariram. He also could not explain as to why there are various omissions in his police statement, Ex. Di. He further admitted that he and Laxminarayan (P.W.3) are facing trial for murder of Narendra Singh, the younger brother of co-accused Punjab Hi CrA. Nadel of 2010 & 732 of 2010 Singh,
49. Laxminarayan (P.W.3) has stated that Pushpendra informed him that Vines is missing, thereatter, he went in search of Vinod and when he could not be traced ouf, then on the next day, they went to Police Station. Pandokhar to lodge FIR, Ex, P4. Hariram met him in indergarh after about 25 days of abduction and informed that he and Awadhesh have met Appellant Rajesh @ Babba im forest and Vinod is in captivity of Appellant Rajesh a2 Babba and Appellant Rajesh @& Babba is demanding a ransom of Rs. 4 lacs for releasing Vinod and in case if arrangement is not made withm 4-5 days, then he would kil Vinod. 3-6 days thereafter, Hariram again came to the house of Chhatelal and enquired as to whether money has been arranged or not, then all the four brothers expressed their inability to pay amount. Thereafter Hariram demanded Rs,11,000/, then all the four brother contributed the ameunt and Rs.f],000G were paid to Hariram. Hariram assured that the abductee would be released by 8 RM. but abductee did not return. About 4-5 days thereafter, Hariram and Lalla came and again demanded Rs.S.000/-. Said amount was given by Chhotelal. Nariram again assured that he will bring the abductee with him but did net came back with abductees, but informed that Appellant Rajesh @ Babba is not traceable. About LS days thereafter, Vinod came back on his own. This witness was cross-cxamined, In cross-examimation, this witness stated that the polee had recorded his statement only after the retarn of Vinod. He further CrA. Nadel of 2010 & 732 of 2010 acdimitted that even after return of the abductee, he did not inform the police that Appellant Rajesh @ Babba had demanded a ransom of Rs. 4laes. Nariram and Awadhesh had come to Bhander also, however, he could not meet Hariram as the house was locked. Ne admitted that Hariram is the resident of village Magroli and fis aneestral land is alse: situated in village Maeroli. He denied that his aunty had sold the said land to Shivdayal, and as he was interested in purchasing said land, therefore, he is having grudge against Nariram. Ne claimed that he had informed the police that Awadhesh (P.W.2} had informed him that Vined is in captivity of Appellant Rajesh @ Babba, and had his police statement, Ex. D2. Ne forther stated that all the four brothers had expressed their mability to arrange for money was also told to police, but coeld mot explain as to why this fact is not mentioned in his police statement, Ex. D.2. Ne further claimed that he had informed police that Nariram has told him that if money is not arranged, then Vinod will be killed, but could net explain as to why this fact is not mentioned in his police statement, Ex. D.2, He further claimed that he had informed the police that the amount of Rs 11 ,000/- was given after the same was contributed by all the four brothers, bat could not explain as to why this fact is not mentioned in his police statement, Ex. D.2. He also claimed that he had informed the police that his brother Vinod had reterned back on his own, but could not explain as to why this fact is not menhoned in his police CrA. Nadel of 2010 & 732 of 2010 staterment, Ex. D.2. He further stated that he and co-accused Punjab Singh and Rajkumar are the residents of same colony. He adrnitted that Narendra Singh is the younger brother of Punjab Singh and he is being tried for murder of Narendra Singh. Rakesh is his cousin brother and admutted that he and his family members were tried for murder of wife of Rakesh. Ne adnutted that Punjab Singh had provided his tractor for shifting the dead body of wile of Rakesh but denied that on this issue, he has personal eridge against Punjab Singh, He denied fhat he has good relationship with Appellant Rajesh @ Babba.
50, Pushpendra (P.W.4)}, who is son of Laxminarayan (P.W3), has stated that about 3 years back, he and his mother had gone to the fields. The abductees, who is his uncle was already in the field, At about 2-3 PM., he and his mother came back alone with fodder, but the abductee stayed back m the field. This witness was eross- examined, In cross-examunation, this witness has specifically stated that police had visited his house for 3-4 times before the abductee returned back on his awn. Polioc had interrogated for many times about the abduction of Vined, but they did nat inform that who has abducted Vinod.
Thus, itis clear that palies was constantly coming fo the house of the witnesses, but they did mot inform that who has abducted Vined.
Cr. Noob) of 2010 & 732 of 2010 Si. Smt. Aruna Devi (P.W.5) has stated that at about 1 PM., her elder brother-in-law (/et?) had gone to the field. Punjab Guriar was alsa in his field and Minchu Barar was also in the held of one Thakur. She came back along with fodder. On her way, she met with her son Shyam, to whom She informed that one bundle of fodder is lying in the Held and accordingly, he brought that bundle of fodder. When her elder brother-in-law did not return back, then She sent her som to see him, but Vinod wes not there. The whereabouts af Vinod were not known about 2 months, She was cross-examined.
In cross-examination, She denied for want of knowledge that about 3 years back, one Ramprakash Pachori was abducted for which her husband was tried.
82. Manchu (P.W.6) has stated that Vinod was in his field, however, this witness came back at about 4 P.M. and in the evening he came to know that Vinod has not returned back,
33. Dinesh Kumar (P.W.7) has stated that Pushpendra informed him that Vmod has not returned and accordingly they went to the field and one bundle of fodder was lying in the field. After some time, they came to Know that Vinod has been abducted by Appellant Rajesh me Babba. About 7-8 days after abduction, Hariram informed that Vinod has been abducted by Babba Barar and he can arrange for the meeting. Thereafler went to mect Appellant Rajesh @ Babha, After returning back, he informed that Vined is in captivity of Appellant * Rajesh a Babba. Two days thereafter, Hariram and Awadhesh feces aa CrA. Nadel of 2010 & 732 of 2010 (P.W.2} went to meet Vinod. Hariram and Awadhesh informed that Appellant Rajesh @ Babba has demanded Rs. 4 Lacs, and a threat was alsa etven that information should not be given to police, otherwise, Vinod would be killed. He alse expressed that he dacs not know that Vined was released after taking how much money, When Vinod came back, then he informed him that he was abducted by Rajkumar, Punjab Singh, Nanda Kadere, Appellant Rajesh t@ Babba and other persons, This witness was cross-examined.
In cross-examination, he denied that he had paid ransom amount to the gang of Nandu Kadera. He admitted that Narendra Singh is the younger brother of co-accused Punjab Singh and Laxminarayan (PW.3), Awadhesh (PW) and other villagers were accused in the murder case of Narendra Singh. He admitted that abductee Vined is a bachelor and is issueless. He denied that Vinod was not abducted, He denied that S.D.G. (P} Pandokhar had found in his enquiry that Laxminarayan (P'W.3) had taken Rs.20.000/- from Appellant Rajesh @ Babba but did not return the same. He admitted that he did not inform the police that Vinod has been abducted by Appellant Rajesh ja: Babba and Nandu Kadera. He also admutied that he was aware of entire meident, but did not inform the police. He denied that after 2 months, Shyamu had informed him about Vinod, but could not explam as to why, saul fact is mentioned in his police statement, Ex. DL2. He stated that he cannat recollect as to whether he had informed the police that Hariram had met him and informed that 16 CrA. Nadel of 2010 & 732 of 2010 Vinod is in captivity af Appellant Rajesh i@ Babba. He did nat inform the police that he had gene te mect Vinod winle he was in captivity. He farther claumed that he had not informed the police that Hartram had miormed him at the bus stand that Vinod is in captivity of Appellant Rajesh (@ Babba, but could not explain as to how said fact is mentioned in his police statement, Ex. D.2. He admitted that as, Hariram never went to meet Appellant Rajesh @: Babba in his presence, S4. Dy RLS. Parihar (PW. 8} has medically examined Vinod and found following mypuries on his body :
GQ) Healed sear over right ankle point of right les
(i) Healed sear over left ankle jomt of left leg. The duration of injuries was 3 weeks back. The MLC is Ex. P.6.
SS. Shyam (P.W.9) is the son of Laxminarayan (PWS) He has stated that Vinod was in his Held and thereafter did not return back, After two months, Vinod came back and informed that he was abducted by Appellant Rajesh ee Babha and by pointing towards Punjab Gurjar and Rajkumar Ourjar he said that they had abducted him.
$36. Chhotelal (P'W.10) has stated that Vinod is his brother. Vinod was in his field. In the morning, he got a telephonic message that Vinod has not returned back. Thereafter, his brether informed the police after 10-12 days, till then they were searching for Vined.
Thereafter, his brother Awadhesh and Dinesh went to Bhander, where CrA. Nadel of 2010 & 732 of 2010 they met with Hariram, wha informed that he would charge Rs.50,000/- and would search out the abductee. On the next day, Hariram came to his house and took Awadhesh at 11:00 in the night and arranged for his meeting with Appellant Rajesh @ Babba. Appellant Rajesh @> Babba had demanded Rs. 4 lacs, otherwise, Vinod weald be killed. Thereafter, Nariram asked for Rs.11,000/- for getting Vinod released. Then he imformed tis brothers about Rs. 1) ,000/- and accordingly, they went to Samthar for making arrangement of money and Harcharan Vyas brought the amount. The said amount was paid to Harirarm and co-accused Ram Singh was also there. Thereafter, Ram Singh told him that they should come to the canal at 4 and the abductees would be handed over at 8. On the next day, all the four brothers went to Basai Canal, where they met with Harirram and Ram Singh, who informed that Appellant Rajesh @& Babba is saying that simec, police has been informed therefore, he would not release Vinod on the said day. On the next day, Harram came to hum in Indergarh and demanded additional amount of Rs.S000- and asked them to come te canal at 4 P.M. All the four brothers went to canal where they paid the amount to Nariram. Hariram told them to go and he would bring Vinod. Vinod came back after 2 months. The recovery memo Ex.P.] was prepared and Vinod was handed aver ta him. Vinod had informed that they used te tie his jees with cham. This witness was cross-examined.
In cross-examination, this witness stated that affer his brother CrA. Nadel of 2010 & 732 of 2010 was abducted, they were not in touch with police. He did not imform the pohee about the negotiation with Hariram and Ram Sigh. Vinod came back after 2 months and 4 days. Ne admitted that police force is always deployed at Ratangarh temple. He claimed that he had talk with Hariram and Ram Singh on Ratangarh Ghat. Ne forther chimed that they had bought Rs.) 1.000% from Harcharan Vyas who is his brother-in-law (Safer). Re once again claimed that Laxmimarayan had lodged the report after 8-10 days. He bad got the information in the morning about abduction and searched for his brother for 8-9 days, and t) 9-10 days, no information was given to police. He further admitted that when he went in forest area to meet his brother, he did net inform Tharet and Indergarh Police, but thereafter claimed that he had informed Indergarh police. He was unable to tell that on what date and before whem money was paid to Narirarn, He flerther claimed that Nariram had not taken this witness for meeting with Vinod. He admitted that Laxnunarayan (P.W.3} and Awadhesh (P.W.2} are facing trial for murder af Narendra Singh, the younger brother of co-aceused Puniab Singh.
S7. Harprasad (PW.11) is the Patwari whe had prepared spot map Ex, BR?
S8. R.ALS. Rathore (PAW. 12) ts the investigating officer. He stated that on 25-9-2005, the complainant Laxminarayan made a written complaint about missing of his brother Vined and accordingly gum insaan report no. 4/05, Ex. PS was registered) On 28-11-2005, the 14 CrA. Nadel of 2010 & 732 of 2010 abductee Vinad appeared and his recovery memo Ex. Pil was prepared, He was handed over to his brother Chhotelal, Ex. P.3. The application, Ex. PS was prepared for MLL.C. of Vinod. The FER, Ex. P10 was registered. Thereafter, spot map, Ex. P.2 was prepared. This WHINCSS Was cross-examined, In cross-examination, this witness stated that he had recorded the staternents of the witnesses only after registration of FIR and not prior to that. The spot map, Ex. P.2 was prepared on the instructions of Vinod. He denied that he had not enquired the gum imsaan report, but claimed that all the documents must be in case diary and have net been produced. He admitted that Chhotelal, Awadhesh, Laxminarayan and Dinesh had never informed him prior to 28-11-2005 that they have been informed by Hariram that Winad has been abducted by Appellant Rajesh @ Babba, He admitted that in the police statements of these witnesses, Ho is not mentioned that earlier they had not disclosed the said fact because they were afraid. Ne further stated that he had not added or subtracted any thine in the police statements of the witnesses and had recorded the same staternent which was made by them. This witness was asked about the omissions in the statements of witnesses in their police statements, and Be adnutied Whether Awadhesh (P.W.2) had ever met Vinod in the presence of Appellant Rajesh @ Babbs ?
$9. Awadhesh (P.W.2) had claimed that his meeting wih Appellant CrA. Nadel of 2010 & 732 of 2010 Rajesh i@ Babba was organized by Hariram and accordingly, they went fo a hill situated m a ferest area, When they reached there, somebady enquired about the credentials of the visitors and when this witness disclosed his identity then he was got identified from the abductes in the light of the torch. Thereafter, his cloths were stripped of and he climbed upto the top of the hill and was wearing only underwear. He met with Appellant Rajesh @ Babba who demanded ransom of Rs. 4 Lacs. Thereafter, he met with abductee Vined who hugged him and started crying and suggested that they should pay whatever amount the miscreants want and he should be got released. However, Vinod (P.W.1) who is the abductee has not stated anything about the meeting. He did not say that Awadhesh had ever come to meet him. He has not stated that any ransom was demanded by Appellant Rajesh G® Babba from Awadhesh. Thus, it is clear that Hariram never organized any mecting of Awadhesh (RW.2) with Appellant Rajesh @ Babba and Awadhesh (P.W.2) never went to the forest area to meet Appellant Rajesh @ Babba and had never met with Vinod, Whether Vined was ever abducted and was ever Kept at an isolated place or not?
6G. Ttis nat out of place here to point out that co-accused Hardas has been acquitted by the Trial Court, on the ground that on the date of incident, he was detained in jal. Whereas other co-acoused persons have been acquitted on the ground that they were falsely CrA. Nadel of 2010 & 732 of 2010 implicated or the prosecution has failed to prove allegations levelled agaist them.
6{. dpis truc that the maxim Felsus in uno Falsus in omnibus has Ag application in India and even if a witness has been disbelieved in respect ef some accused persons, but still the remaining accused
62. Vinod (PR W.1) has stated in his examination in chief, that he was kept in captivity for 2 months and 4 days and was tied with a tree by a chain. When the accused persons went away by leaving Vinod (PAWL) alone, then he broke open the chain and ran away from the spot and came to Ratangarh Mata Temple where one tractor was parked. After some time, the owner of tractor came after offering his prayer in the Temple and he took Uf in the said tractor and came back to his house. However, he admitted that on his way from Ratangarh Mata Temple to his house, the Police Station Bhauapura, Tharet and Indergarh are situated, Even Chhotelal (PW,10) has admitted that police force is also deployed in Ratangarh Mata Temple. Thus, if is clear that after running away from fhe captivity, the so-called abductees Vinod (PW), netther contacted police at Police Outpost Ratangarh Mata Temple and also did mot miform police at Police Station Bhauapura, Tharet and Indergarh.
Further, in para 10, this witness has stated that nearby people used fo come to grave their catles at the place, where he was kept in captivity. He also stated that the accused persons used to sit at a 22 CrA. Nadel of 2010 & 732 of 2010 distance from him and he was tied at a different place.
Vinod (PAV.1) claims to have remained in captivity for 2 months and 4 days. He was not kept at an isolated place, but accarding ta hnnacif, he was kept at a place, where nearby people used to come. It is surprising that if the miscreants with their fire arms were sitting with a hostage, but no body who had come to grave their cattle, ever noticed any tausual activity. None of the nearby person, ever informed the police about unusual activity in the area, Even the abductes Vinod (PW 1} never tried to contact the persons, who used to come for graying their cattles.
This Court has already held that Awadhesh (P.W.2) had never contacted Appellant Rajesh @ Babba. According to Vinod (PW.1), Appellant Rajesh @ Babba used to demand ransom of Rs. 4 Lacs, but this witness has not stated that how the said demand was ever communicated to his relatives? This witness has not stated that Hariram had ever come to contact Appellant Rajesh «@ Babba. Thus, it also appears that Nariram was not aware of any demand of ransom by Appellant Rajesh @ Babba. However, this aspect of the matter shall be considered in detail in the following paragraphs.
Whether an amount of Rs. 1] 4h00/- was paid to Hariram?
63. Awadhesh (PAW.2) has stated that on the demand made by Hariram for meeting out expenses, an amount of Rs.11,Q00- was paid to him and subsequently, on 2-3 occasions, amount of Rs.5,000/-
was paid to him. He has not stated that whether the entire amount bea at CrA. Nadel of 2010 & 732 of 2010 was given by him or if was contributed. However, Laxmiinarayan (PW, 3) has stated that the amount of Rs.11000/- was contributed by all the four brothers and were given to Hariram. After 4-5 days, a further demand of Rs.5.000 was made by Hariram, which was paid by Chhotelal (2 Wi10)}. However, Chhotelal (P-W.10) has stated that Hariram had demanded Rs.50,000/- towards expenses. He further stated that Nariram told him that in case Rs.11,000/- is paid then he would get his brather released and accordingly, he informed all his brothers. Since, there was no arrangement of money, therefore, they went to Samthar and money was given by Narcharan Vyas. Chhatelal (PAV.10) has also stated in his cross-examination that Harcharan Vyas is his brother-in-law (38), Narcharan Vyas has not been examined by prosecution. Thus, the evidence of Awadhesh (P.W2), Laxminarayan (P.W.3) and Chhotelal (2 W.10) about scares as well as amount of money is different. Thus, it is clear that the prosecution has failed to prove that an amount of Rs.P1,000/ was ever paid to Hariram.
Further Awadhesh (P.W.2) has stated that on 2-3 occasions, an amount of Rs. SQ0QG/- was paid to Hariram, but he has not stated that whether said amount was paid by him wat of his own pocket or not? Nowever, Laxminarayan (PW.3) has stated that an amount of Rs. S000/- was paid by his brother Chhotelal (P'W.10), but Chhotelal (PAV.10) has not stated that he had ever paid Rs 5000/- to Hariram.
Thus, itis clear that the evidence led by prosecution to substantiate at CrA. Nadel of 2010 & 732 of 2010 the allegation of payment of additional amount of Rs. S000/- is also not trustworthy, Whether any Information regarding abduction of Vinod (PW) by Appellant Rajesh @ Babba was ever given ta Police or not?
64. Awadhesh (P.Wi2} has stated that after his brother Vinod (PR.W.1) was abducted and tll he came back, he was m constant touch with abductors and police. He further admitted that bis house at indergarh is situated at a distances of 'o km away from Indergarh Police Station. Hus stand is that Nariram had informed him about the abduction of Vinod at Bhander Bus Stand, and fairly admitted that the office of S.DLOWP) is also situated at a distance of 100 steps away from bus stand. In para 18 of his cross-examination, he further claimed that he had informed the Police Station Pandokhar, Indergarh and Tharet about the information given by Hariram, but the prosecution has not filed any document to support such contention. Laxminarayan (PW.3) has stated that he had never informed the police about abduction til the abductee came back. Whereas Pushpendra (PW .4} has stated that after the abduction of Vinod iPW.1), the police had visited the house on several occasions, but Chhatelal (P'W_10} has stated that he had informed the Police Station Indergarh.
However, R.K.S. Rathore (PAW.L2), the Investigating OMicer, has not stated that afier the abduction, he was over informed by the Cr. Noob) of 2010 & 732 of 2010 witnesses about the information given by Hariram that Appellant Rajesh @ Babba has abducted Vinod (P.W.1) and there is nathimeg in his evidence to the effect that he was ever informed by the witnesses, regarding demand of ransom amount.
Further, although Awadhesh (PW.2) has claimed that he was in constant touch with abductors, but he has not pointed out that how and in what manner he was in touch with abductors, except by saying that Hariram had taken an amit of Rs. 11,000" and Rs.S.000% on 2-3 occasions. Thus, the prosecition has failed to prove that Awadhesh (P.W.2) was ever in touch with abductors.
Further, nothing has been placed on record to suggest that any information was ever given to police. R.ALS. Rathore (PW.12) has na stated anything about the steps taken by him to get the abiuctes rescued, On the contrary, Pushpendra (PW.4} has stated that police had visited his house on number of occasions, but nobody informed the police as to who has abducted Vinod (PW.1). Thus, the stand taken by Laxminarayan (P.W.3) that information was not given to police as they were afraid is false and cannot be accepted, Why no action was taken by witnesses for 2 months and 4 days 6S. itis the case of the prosecution that the abductce Vinod (Ph.W.1) remained in captivity of Appcllant Rajesh i Babba for 2 months and 4 days, but during this long period, no steps were taken by the witnesses to get Inm released. No mformation was given to police aS and no affempt was made to contact Appellant Rajesh @ Babba.
26CrA. Nadel of 2010 & 732 of 2010 Further, Vinod (P'W.1) has not stated that during this long captivity of 2 months and 4 days, he was ever shifted from one place to another. Vinod (PW) has also not stated that who were providing food and other grocery to the aceused persons. Thus, it is clear that the allegation of keeping Vinod (PW) im captivity for a peried of 2 months and 4 days is false and cannot be accepted.
Why police did not prepare the spot map of the place where Vined (B.W.E) was allegedly kept in captivity
66. According to Vinod ¢P.W.i}, the spot map, Ex. P2 was not prepared im his presence but the police had obtained his signatures. Whereas R.K.S, Rathore (PW. 12) has stated that Spot Map, Ex.P.2 was prepared on the instructions ef Vinod (P.W.1}. However, the important aspect is that the spot map, Ex. P2 is of the place from where Vinod (P.W.1) was allegedly abducted. No spot map of the place where the abductee Vinod (PW.1} was kept in captivity was prepared. It is mot the case of the prosecution also, that the investigating OMieer had ever visited the spot. where the abductee uo & PON.
Vined (PAW.1} was Kept in captivity. No broken chain was seized from the spat.
67. Thus, the prosecution has not only failed to prove the preparation of spot map, Ex. P2, but has alse miserably failed te explam as to why the spot map of the place where Vinod (P.W21) was kept in captivity was not prepared. Thus, even the place where Vinod (PW.1) was kept in captivity is not known.
bea a CrA. Nadel of 2010 & 732 of 2010
68. Similarly, Awadhesh (P.W.2) has stated that he went to forest im (PW). But the Investigating Officer, did not prepare the spot map of the place, where Awadhesh was got identified fram Vined (P.W.1} in the light of the torch. Even the height of the hill and location of hill is not known. Thus, the prosecution has miserably failed to prove that Vinod (PW. 1} was ever abducted or any ransom was demanded, Conchision
69. From the above discussion, if is clear that in fact the prosecution has failed to prove that Awadhesh (P.W.2) had ever met AppeHant Rajesh @ Babba in presence of Vinod (P.W_1) and thus, the prosecution has failed to prove that Appellant Rajesh @ Babba had ever made a demand of ransom of Rs.4 Lacs. Further, the prosecution has failed to prove that Hariram had ever arranged for any meeting of Awadhesh (P.W.2) with Appellant Rajesh «@ Babba. The prosecution has failed to prove that any amount was ever paid to Hariram. Accordingly, the prosecution has alsa failed to prove that Hariram had ever demanded any money from the witnesses an the pretext of getting the abducted released. Ewen the prosecution has failed to captivity. Further, according to Vinod (P.W.1) himself, he was kept at a place where nearby villagers used ta come for grazing their eattles, even then he never ask for any assistanec., Even the persons did not inform police that they had noticed any unusual or suspected activity.
oh CrA. Nadel of 2010 & 732 of 2010 There is nothing on record to suggest that Vinod (P'W.1) was ever shifted fram one place to another. The spot map of the place, where Vinod (PAWL) was kept in captivity was not prepared. Even the prosecution has failed to prove that at which place, the abductes Vinod (P.W.1) was kept in captivity. Even the broken chain has not been recovered. Further, why Vinod (P.W.1} did mot approach the police afer running away from the captivity. ANhough some of the imformation given by Hariram, bot nothing has been placed to substantiate such evidence. Sore of the witnesses have stated that nothing was disclased te the police. Why the witnesses kept sient for 2 months without making any attempt fo know about the Whereahouts of Vinod (RAW LY? Further, Laxminarayan (PW 3) has stated that when Hariram demanded Rs.11,000%- then all the Four brothers expressed their inability and subsequently all the Four breathers contributed to collect Rs.11,00Q°. Similarly, Chhotelal (PAWLEG) has stated that all the Four brothers went to Samthar to make arrangement of money and all the Feur brothers went to Ratangarh market im order to give money to Hariram. In the present case, Vinod ¢PWo1), Awadhesh (PW.2), Laxminarayan (P.W.3)} and Chhotelal (P.W.10) are real brothers as clarified by Vinod (PW.1) im para 7 of his cross-examination. Dinesh (P.W.7) is the cousin brother, but he has not stated anything about demand of Rs.11,000/ by Hariram. Thus, i is clear that Laxminarayan (P.W.3) and Chhotslal 24 Cr. Noob) of 2010 & 732 of 2010 (PWG) were not inching Dinesh (P.W.7) while saying Four brothers. Since Vinod (P.W.1} was allegedly m captivity, therefore, he cannot be counted. Then who was the Fourth brother who had expressed his inability t+ pay money or had contributed, as two different stands have been taken by Laxminarayan (P.W.3) and Chhotelal (PW.10)? Thus, the allegation of discussion amongst four brethers and gome to Ratangarh market for giving money to Hariram is nothing, but an aRerthought. Minchu (PW. 6) has stated that Vinod o Was in habit of leaving his house for months together without assumes importance that the witnesses had tried to unplicate Hardas who was already detained in jail. Thus, the prosecution has failed to prove that even Vinod (P.W.1) was ever abducted.
70, Thus, this Court is ef the considered opmion, that the prosccution has failed to prove any charge levelled agaist the appellant Hariram and Appellant Rajesh @ Babba.
Ti. Avceordingly, they are acquitted af all the charges levelled against them,
72. &x Consequenti, the judement and sentence dated 11-8-2010 passed by Special Judge (MPDVPR Act), Datia passed in Special Case No. 10/2006 is hereby set aside.
73. The appellant Hariram is already on bail. His bail bonds are discharged. Ne is no more required in the present case.
74. The Appellant Rajesh @ Babba is in jail. He be released Tail wee, aad CrA. No6O) of 2016 & 732 of 2010 immediately, if not required in any other case.
75. Leta copy of the Judgment be immediately provided to the appellants, free of oust.
76. The Crimmal Appeals No. 66/1/2010 (Fariram Vs. State of M.PJ and Cra, No, 732 of 2010 (Rajesh @ Babba Vs. State of MLB) are hereby allowed.
(GS. Ahhwalia) (Deepak Kumar Agarwal Judge Judge \ ABHISHEK + CHATURVEDI 8° 2022.02.01 18:48:15 +05°30"