Madhya Pradesh High Court

Farukh vs The State Of Madhya Pradesh on 8 December, 2021

Author: Vivek Rusia

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                                                                     CRA No.8946/2019

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
        (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)



                              CRA No. 8946 of 2019

     1. Farukh S/o. Rafiq Kha, Aged 39 years,
        Occ. Labour.
     2. Khalil Kha @ Molana
        S/o. Rafiq Kha, Aged 37 years,
        Occ. Teacher.
        Both R/o. 07, Akharipura, Jaora,
        P.S. Jaora City, District Ratlam.
                                                                 ---Appellants.
                                        Versus

        State of M.P.
        Through P.S. Piploda,
        District Ratlam.
                                                                 ---Respondent.


      Shri S.K. Vyas, learned Sr. Advocate with Shri R.R. Bhatnagar, Advocate for
                                       appellants.
            Ms. Harshlata Soni, learned Panel Advocate for respondent/State.


                                   JUDGMENT

(Delivered on 08/12/2021) The appellants have filed the present appeal being aggrieved by judgment dated 30.9.2019 passed by Special Judge, Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act, Ratlam in Special Session Trial No.51/2008. The appellants have been convicted and sentenced as under :

Convicted U/s.       Sentence             Fine                In   default     of
                                                              payment of Fine.
365 of IPC           7 years RI each.     5,000/-             6 months RI.
332 r/w. 34 of IPC 3 years RI each        5,000/-             6 months RI.
394 of IPC           10 years RI          5,000/-             6 months RI.

2. Brief facts of the prosecution case, in a nutshell, are as under:-

That the complainant Brijbiharilal (P.W.-1 ) while working Forest Guard and was posted in Flying Squad of Ratlam Division on 27 th and

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28th May, 2008. On 27.5.2008 the Flying Squad of the Forest Department in the leadership of Incharge Ratansingh Singore came within the area of Police Station Piploda from the vehicle bearing Registration No. MP-02- AV-0681 was driven by driver Rajendra. Another Flying Squad Incharge Sumit Narayan Trivedi was called by Ratansingh ARO, who had received information about the illegal chopping and transportation of the forest wood. The Flying Squad in the night at 12 was standing nearby Maukhedi. After some time, one tractor-trolley in which fresh chopped wooden logs were kept was found coming and the same was stopped by the above teams. The tractor-trolley was being driven by Raju Teli. Upon questioning by the Incharge of the Flying Squad interacted with the driver of the tractor-trolley about the transit pass, he has denied possession with him, as a result of which the Incharge of the Flying Squad started drawing proceeding against the accused person. Thereafter, ARO Mr. Singore and watchman Kheema who were standing and were waiting for the arrival of another vehicle from the side of Sailana, found that after some time one more tractor trolley full of fresh-cut forest wooden logs arrived there which was also stopped. The said tractor was of Ramjan and the same was being driven by acquitted co-accused Ashok. On the said tractor, there was no number plate. On being inquired from the acquitted co-accused, he also said that he is not having any transit pass and he said that the wooden logs belong to one Farukh of Jaora. The said wood was also seized. The complainant Brijbiharilal and Choukidar were directed to stay there to bring the tractor and the rest of the Flying Squad proceeded for Sailana. It is the further case of the prosecution that Forest Guard/complainant Brijbihari lal and Forest Chowkidar by carrying the tractor proceeded at 12.45 am and after passing Maukhedi, they saw one motorcycle coming towards them which was being driven by appellant Farukh, his brother Khalil Kha and one Siddiq were as sitting pillion riders in it. These persons stopped the tractor and started abusing them. Thereafter, appellant Farukh pulled the complainant from the tractor and all these three persons started beating him by giving fists and kicks blows. Thereafter, all these three persons have forcibly taken the complainant to Jethana by the same

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motorcycle. The complainant was also wrongfully confined for three hours and thereafter all the three persons gave a threat to the complainant that in case the tractor and trolley are not released, he would face dire consequences. The complainant at 4 in the morning under the false pretext of answering the nature call, fled away from the place and by narrating the entire incident, lodged the FIR.

After lodging the FIR, the investigating agency set it into motion. A case was registered against the appellants and two others namely Siddqe and Ashok and thereafter the complainant was sent for medical examination. The co-accused Siddiq and Ashok were arrested, and the appellants could not be arrested by the police.

After the investigation was over, a charge sheet was filed against Siddiq and Ashok. The then Learned Special Judge framed the charges against them u/s. 365, 394, 332/34 and 506 Part II of the IPC; u/s. 3(2)(v), 3(1)(x) of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act; and u/s. 42 of the Indian Forest Act. The present appellants could be arrested; therefore, they were declared absconders. Co-accused Siddiq and Ashok were tried under the aforesaid offences. After appreciating the evidence, learned Special Judge vide judgment 3.12.2009 acquitted Ashok from all the charges and Siddiq from the charges u/s. 365, 394, 506 Part II of the IPC; charges u/s. 3(2)(v) and 3(1)(x) of the SC ST (PA) Act; and 42 of the Indian Forest Act, but convicted and sentenced him u/s. 332 of the IPC and sentenced to 3 years RI with default stipulation.

3. Being aggrieved by the aforesaid judgment, co-accused Siddiq preferred CRA No.1382/2009 before this Court and this Court vide judgment dated 14.12.2009 had upheld his conviction u/s. 332 of the IPC but reduced the sentence from 3 years to the period already undergone. It is important to mention here that against the acquittal of co-accused Ashok and Siddiq from the charges u/s. 365, 394, 506 Part II of the IPC; charges u/s. 3(2)(v) and 3(1)(x) of the SC ST (PA) Act; and 42 of the Indian Forest Act, the State did not prefer any appeal and the said judgment had attained finality.

4. The present appellants were arrested on 12.12.2010 and

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accordingly, a supplementary charge sheet was filed against them. The trial was committed to the Court of Sessions on 4.11.2011. Learned Special Judge framed the charges u/s. 365, 332/34, 394, 506 Part II of the IPC; u/s. 3(2)(v) & 3(1)(x) of the SC/ ST (PA) Act; and u/s. 41 & 42 of the Indian Forest Act. The appellants denied the charges and pleaded for trial. The prosecution again examined the complainant - Brijbihari Lal as P.W.1 and other witnesses. After appreciating the evidence that came on record, learned Special Judge vide judgment dated 30.9.2019 convicted and sentenced both the appellants, as stated above, hence the present appeal before this Court.

5. Shri S.K. Vyas, learned Sr. Advocate appearing for the appellants submitted that on the same set of evidence, co-accused Ashok has been acquitted from all the charges and co-accused Siddiq has been acquitted from the charges u/s. 365, 394, 506 Part II of the IPC; charges u/s. 3(2)(v) and 3(1)(x) of the SC/ ST (PA) Act; and 42 of the Indian Forest Act, but convicted u/s. 332 of the IPC. Against the said judgment, Siddiq preferred an appeal before this Court and this Court had upheld his conviction but reduced the sentence from 3 years to the period already undergone. Hence, learned Special Judge has committed a grave error of law as well as on facts while re-appreciating the evidence and convicting the appellants in the offence u/s. 365, 332/34 and 394 of the IPC. Learned senior counsel further submits that even on merits, the appellants have a good case as they have wrongly been convicted u/s. 394 of the IPC as no mobile has been recovered from the possession of the appellants to establish the charge of loot. Co-accused Siddiq has been acquitted from charge u/s. 365 of IPC as no element of kidnapping was found and the said finding has already attained finality. Shri Vyas learned senior counsel has also submitted that at the most, conviction u/s. 332 of the IPC is made out as upheld by this Court in the case of co-accused Siddiq but reduced the sentence from 3 years to the period already undergone by enhancing the fine amount from Rs.5,000/- to Rs.10,000/-. This Court has also directed that the fine amount be paid to the complainant and the appellants have no objection for the enhancement of the fine amount as well as

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payment of the fine amount to the complainant.

6. On the other hand, the learned Panel Advocate appearing for the respondent/State opposes the aforesaid prayer by submitting that these two appellants remained absconding for so many years and the trial Court had to undertake the retrial afresh against them. Learned Special Judge has rightly appreciated the evidence against them as the prosecution led the evidence afresh in this case. The appellants are the habitual offenders; therefore, no leniency is liable to be shown by reducing the sentence and the appeal is liable to be dismissed.

I have perused the record. So far as the statement of the complainant (P.W.1) is concerned, except for minor changes, his deposition is the same in both trials. The rest of the evidence is identical against the present appellants as well as Siddiq who stands convicted u/s. 332 of the IPC.

7. As per the prosecution story, three persons came on the motorcycle and apprehended the tractor in which complainant P.W.-1 was sitting along with others as the tractor was found loaded with forest produce. P.W.-1 was brought down by the appellants and another and was assaulted by fists and legs. Thereafter, they took him on their motorcycle. A mobile phone of a Nokia company was looted from him and he was apprehended at "Jethana Ka Magra", at someplace inside the forest for three hours and thereafter he managed to escape from the place. As stated above, the said mobile has never been recovered to date by the police. However, the injuries were found, and the apprehension of the complainant was established. Therefore, the appellants have rightly been convicted u/s. 332 of the IPC. But, so far as the abduction of the complainant is concerned, the complainant was taken in the motorcycle by three persons. In the motorcycle, has a sitting capacity of two persons, three co-accused already came in the motorcycle, there is no space for 4 th person in it, then how P.W.-1 have been abducted by the three persons in the motorcycle. No spot map was prepared of a place where the complainant said to have been kept for 3 hours after the abduction. The manner in which he managed to escape from the place is also unnatural. No spot map has been

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prepared to show the place where the complainant met with Ratan Singh (P.W.3), a member of the Flying Squad. Therefore, the conviction of the appellants u/s. 365 and 394 of the IPC are not liable to be sustained. Hence, the conviction of appellants from the offences u/s. 365 and 394 of the IPC are set aside to that extent having parity with co-accused Siddiq.

8. So far as conviction of the appellants u/s. 332 of the IPC is concerned, as the Co-ordinate Bench of this Court in the same set of facts has upheld the conviction of co-accused Siddiq but reduced the sentence from 3 years to the period already undergone, therefore, the present appellants are also entitled to the same relief.

Accordingly, this appeal is partly allowed. The conviction of the appellants u/s. 332 read with Section 34 of the IPC is upheld, but the sentence is reduced from three years to the period already undergone with the enhancement of the fine amount from Rs.5,000/- to Rs.10,000/- each and fine amount be paid to P.W.-1/complainant. The appellants be set at liberty forthwith, if not required in any other cause.

With the aforesaid, this appeal stands partly allowed.

( VIVEK RUSIA ) JUDGE Alok/-