Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Shiv Murat Kol vs The State Of Madhya Pradesh on 7 May, 2018

Author: J.P. Gupta

Bench: Anjuli Palo, J.P. Gupta

                                      1
                                                     Cr.Appeal.No.1986/2008




           HIGH COURT OF MADHYA PRADESH,
                PRINCIPAL SEAT AT JABALPUR
        (DB : HON'BLE SHRI JUSTICE J.P.GUPTA &
          HON'BLE SMT. JUSTICE ANJULI PALO)


                 Criminal Appeal No.1986/2008
                          Shiv Murat Kol
                                Vs.
                     State of Madhya Pradesh



Shri Deepak Vitthal Pendharkar, Advocate for the appellant.
Shri Rajesh Tiwari, G.A. for the respondent-State.
-----------------------------------------------------------------------------

Whether approved for reporting : (Yes / No).

                            JUDGMENT

(Delivered on 07th day of May, 2018) Per J.P. Gupta, J :

The appellant has filed this appeal against the judgment dated 30th August 2008, passed by II Additional Sessions Judge, Satna, in Sessions Trial No.181/2006, whereby the appellant has been convicted under Section 364-A of the Indian Penal Code and sentenced to life imprisonment along with fine of Rs.500/-. In de- fault of payment of fine, appellant has further been sentenced to rigorous imprisonment for one year.

2. In short, the prosecution case is that victim Saroj Kumar Kushwaha used to live along with her wife Smt.Shakun and chil- dren at village Kitha. On 21.2.2006 at nearabout 7.15 PM victim Saroj Kumar, PW2, after taking meals was sitting in his house on a cot and his wife was taking meals inside the house. At that time two unknown persons armed with firearms came inside his house and asked about the address of Dr.Kishori. As victim came out of 2 Cr.Appeal.No.1986/2008 his house to show the address of Dr.Kishori, both the persons caught hold him and tied his hands with cloth and forcibly took him. Victim's wife Shakunbai and her children saw the incident on which both the persons threatened them to dire consequences and took the victim towards forest. On the way, they also left a letter to one Ramjas Badhai, PW3, demanding ransom for releas- ing the victim and asked him to deliver the same to his father. When Natthulal, brother of Saroj Kumar, got information about the incident from the wife of the victim, he informed telephoni- cally to the police at Police Station Jaitwara on which, on the same day, police came to the house of the victim and on the information of Natthulal, Dehati Nalishi, Ex.P/8 was written and spot map, Ex.P/9 was prepared. Statements of the witnesses were recorded. On the basis of Dehati Nalishi, FIR was lodged against two un- known persons on 22.2.2006 vide Crime No.16/2006 for the of- fence under section 364-A of the I.P.C.

3. The letter given by unknown persons to Ramjas Badhai, PW3, was given to Natthulal. The abductors after keeping victim Saroj Kumar at different places in the forest released him on 25.2.2006. The victim came back to his house and informed the police on which the police recorded the statement of the victim.

4. During investigation it was also revealed that Natthulal, PW7 gave Rs.40,000/- as ransom for getting the release of his brother Saroj Kumar. Appellant was arrested on 2.4.2006 and on 24.6.2006 Test Identification Parade was conducted in which vic- tim Saroj Kumar, PW2 and his brother Natthulal, PW7, identified the appellant as culprit. After investigation charge-sheet was filed before the court of J.M.F.C. Satna and on committal the case was tried by the court of II A.S.J. Satna.

5. The trial court tried this case along with another Sessions Trial No.84/2007, which was related to another co-accused Rajoli. During trial charges for the offence under sections 364-A and 120- B of the I.P.C. were framed and read over to the appellant. The appellant abjured the guilt and claimed to be tried. The defence of the appellant was that he is innocent and has been falsely impli- cated on the instance of the police. After completion of trial, the trial court after appreciating the evidence on record held the ap- pellant guilty of the offence under section 364-A of the I.P.C. and convicted him and sentenced him to life imprisonment along with fine of Rs.500/-. The trial court however acquitted co-accused Rajoli of the charges and also acquitted the present appellant for the charge under section 120-B of the I.P.C.

6. Being aggrieved by his conviction and sentence, the appel- lant/accused has filed this appeal before this Court.

7. The findings of the learned trial court are mainly based on the testimonies of victim Saroj Kumar, PW2 and his brother Natthulal, PW7. On behalf of the appellant, findings of the trial court have been assailed on the ground that the testimonies of the aforesaid witnesses are not reliable as the testimonies of both the witnesses are full of contradictions, omissions and exaggerations. The Test Identification Parade has not been proved as the con- cerned Executive Magistrate has not been examined. Learned counsel for accused further submitted that the demand and pay- ment to the appellant is also not proved beyond the reasonable doubt. In such circumstances, the findings of the learned trial court are not sustainable and the appellant is entitled to be acquit- ted of the charges levelled against him.

8. On the other hand, Shri Rajesh Tiwari, learned Government Advocate, submitted that the evidence adduced by the prosecution 4 Cr.Appeal.No.1986/2008 was sufficient to bring home the charges against the accused per- son. Trial court committed no error in relying upon the evidence that has come on record. He supported and justified the judg- ment of conviction and sentence passed by the trial court.

9. We have heard the submissions made by the learned counsel for the parties, perused the impugned judgment and the evidence on record carefully. In the considered opinion of this court, the testimony of victim Saroj Kumar, PW2, with regard to his abduc- tion by the appellant and his companion is reliable. Saroj Kumar, PW2, has categorically stated that at the time of incident, he was in the house along with his wife Shakun. At that time two persons armed with firearms came to his house and asked the address of Dr.Kishori. As he came out to show the house of Dr.Kishori, they caught hold him and tied his hands by cloth and forcibly took him towards forest and kept him there till 25.2.2006. The accused persons released him on 25.2.2006. Thereafter, the police recorded his statement and thereafter in Banda jail he went to identify the culprits where he identified the appellant as one of the culprit who forcibly took him from his house. He put his signa- tures on the document of identification, Ex.P/2. The appellant was the same person who forcibly took him and kept him in cus- tody till 25.2.2006. The evidence of Test Identification Parade cannot be discarded on the ground that the concerned Executive Magistrate was not examined to prove the proceedings of Test Identification Parade, Ex.P/2 as in this regard provisions of sec- tion 291-A of the Cr.P.C. prescribes that such document can be considered in evidence without formal proof by the Executive Magistrate concerned. Therefore, in the aforesaid circumstances, it is held that the prosecution has succeeded to prove beyond rea- sonable doubt the fact that the victim was abducted by the appel- lant along with another person. It is also proved that the victim was kept secretly and under wrongful confinement.

10. Now, the question which arises for consideration is as to whether the abduction was made for the purpose of ransom from the family members of the victim or the accused has threatened the victim to cause death or hurt or by his conduct gives rise to a reasonable apprehension that the victim may be put to death or hurt to the victim in order to compel his family members to pay ransom.

11. In order to prove the aforesaid fact, the prosecution has mainly relied on the testimony of victim Saroj Kumar, PW2 and his brother Natthulal, PW7. Saroj Kumar, PW2 has not stated that the appellant has threatened him to cause his death or to cause any hurt or otherwise expressed by the conduct about rais- ing any apprehension for his death or causing any hurt to him for the purpose of extraction ransom from him family members. In his statement, this witness has stated that the miscreants were saying that they will release him after getting Rs.5 Lacs as ransom; but, he was not aware that any amount was given by his brother as ransom for getting him released. However, the court statement of victim Saroj Kumar is contrary to his police statement, Ex.D/1, in which the aforesaid disclosure was not made by him. He has cate- gorically stated that the appellant and his companion have not taken any money from him or his brother.

12. So far as statement of Natthulal, PW7 is concerned, he has stated that on 25.2.2006 he went with Rs.40,000/- to the miscre- ants where the appellant and his companion have kept his brother. Co-accused asked him to give money then he asked to first show his brother and thereafter he stated that appellant armed with firearm was standing along with his brother. Then he stated that he gave money to another co-accused person who is not present in the Court. Thereafter, his brother was released and both of them came to Railway Station Itma and then took bus 6 Cr.Appeal.No.1986/2008 from Chitrakoot road to his village and thereafter police came and took his brother. The aforesaid statement of this witness Natthu- lal, PW7 is completely contrary to the statement given by him to the police during investigation. In para 10 of his statement, he has categorically stated that after 2-4 days of returning of his brother to house, he gave written report, Ex.P/7 to the police and thereafter the police has not recorded his statement. In Ex.P/7 there is no averment with regard to payment of Rs.40,000/- as ransom for the purpose of getting his brother released from the appellant and his companion. Apart from it, the statement of Natthulal, PW7 does not get any corroboration from the statement of his brother victim Saroj Kumar, PW2. As per the statement of Natthulal, PW7, the amount of ransom was paid in front of the victim and after paying the amount, both came back to their houses. In such circumstances, the fact of paying ransom should have been in the knowledge of the victim and also his wife; but, they have not stated anything in this regard.

13. In the circumstances, the statement of Natthulal, PW7 with regard to demand and payment of ransom is not reliable and a person cannot be convicted for commission of heinous offence on the basis of such contradictory statements. In this case, evidence with regard to giving letter by the appellant and his companion to witness Ramjas Badhai, PW3, has not been proved. Hence, the finding of the learned trial court with regard to demand and pay- ment of ransom for releasing the victim is not found to be proved.

14. In view of the foregoing discussions and findings, in the con- sidered opinion of this Court, the conviction of the appellant for the offence under section 364-A of the I.P.C. is not sustainable. However, against the appellant commission of offence under sec- tion 365 of the I.PC.. is found to be proved. Hence, this appeal is partly allowed. The conviction of the appellant under section 364- 7 Cr.Appeal.No.1986/2008 A of the I.P.C. and sentence to life imprisonment as imposed by the trial court is set aside. Instead, he is convicted under section 365 of the I.P.C. and sentenced to the maximum sentence pro- vided which is of seven years rigorous imprisonment. In this case, appellant is in jail since 2.4.2006 to 30.8.2008 and from 30.8.2008 till today. He has already suffered more than seven years of imprisonment. Thus, the appellant be released forthwith if not required in any other offence.

15. A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.

      (J.P.GUPTA)                        (SMT.ANJULI PALO)
         JUDGE                                 JUDGE
HS