Madhya Pradesh High Court
State Of M.P. vs Ramcharan @ Tatiya on 21 October, 2021
Author: Gurpal Singh Ahluwalia
1
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 192 of 2010
Ramcharan & Ors.
Vs.
State of M.P.
&
Cr.A. No. 353 of 2014
State of M.P.
Vs.
Ramcharan & Ors.
Shri Ashok Jain Counsel for the Appellants in Cr.A. No.192 of 2010
and Shri Awdhesh Parashar, Counsel for the respondents in Cr.A.No.
353 of 2014
Shri C.P. Singh, Counsel for the State
Date of Hearing : 05-10-2021
Date of Judgment : 21-10-2021
Approved for Reporting : Yes
Judgment
21- Oct. -2021
Per G.S. Ahluwalia J.
By this common judgment, Cr.A. No.192 of 2010 filed by
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
appellants and Cr.A. No.353 of 2014 filed by the State shall be
disposed of.
2. Both the Criminal Appeals have been filed against the
judgment and sentence dated 11-1-2010 passed by Special Judge
(MPDVPK Act) Shivpuri in Special Sessions Trial No.60/2009 by
which the appellants have been convicted and sentenced for the
following offences :
Name of Appellant Conviction Sentence
Vijay (Appellant Under Section 364-A Life Imprisonment
No.3) of IPC read with and fine of Rs. 1000/-
Section 11/13 of in default 3 months
MPDVPK Act R.I.
Under Section 323 of 3 months R.I. and fine
IPC of Rs.500 in default
15 days R.I.
Under Section 25(1- 3 years R.I. and fine
B)(a) of Arms Act of Rs.1000/- in
read with Section default 3 months
11/13 of MPDVPK R.I.
Act
Names of Appellants Conviction Sentence
Ramcharan Under Section 25(1- 3 years R.I. and fine
(Appellant No.1) B)(a) of Arms Act of Rs.1000/- in
read with Section default 3 months R.I.
11/13 of MPDVPK
Act
Siddhar (Appellant Under Section 25(1- 3 years R.I. and fine
No.2) B)(a) of Arms Act of Rs.1000/- in
read with Section default 3 months R.I.
11/13 of MPDVPK
Act
Kamarlal @ Bhindua Under Section 25(1- 3 years R.I. and fine
(Appellant No.4) B)(a) of Arms Act of Rs.1000/- in
read with Section default 3 months R.I.
11/13 of MPDVPK
Act
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
3. It is not out of place to mention here that apart from appellants,
Suresh was also tried but he has been acquitted in toto and
accordingly, the State has filed Criminal Appeal No.353/2014 against
the acquittal of the following persons :
Name of Person Acquittal under Section
Ramcharan (Appellant No.1) Under Section 364-A of I.P.C.
read with Section 11/13 of
MPDVPK Act and under Section
323 of IPC
Siddhar (Appellant No.2) Under Section 364-A of I.P.C.
read with Section 11/13 of
MPDVPK Act and under Section
323 of IPC
Kamarlal @ Bhindua (Appellant Under Section 364-A of I.P.C.
No.4) read with Section 11/13 of
MPDVPK Act and under Section
323 of IPC
Suresh son of Shanker resident of Under Section 364-A of I.P.C.
village Sesaipura, Distt. Sheopur read with Section 11/13 of
MPDVPK Act, under Section 323
of IPC and under Section 25(1-
B(b) of Arms Act.
4. The prosecution story in short is that on 25-3-2009, Mahesh,
Narayan, Patiram and Durga Prasad were going on bullock cart to
take wheat husk. At 10:30, they reached in the forest area of Sankare
ke Chak. At that time, 4 miscreants surrounded them and started
assaulting them by lathi and handles of gun. On query, Durgaprasad
introduced himself as a labourer, whereas Mahesh, Narayan and
Patiram disclosed their correct names and addresses. Accordingly,
the miscreants caught hold of Mahesh, Narayan and Patiram and
forced them to sit near Sankare ki River. Durga Prasad was released
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
with an instruction, that an amount of Rs. 60,000/- be paid for release
of Mahesh, Narayan and Patiram. A threat was also extended that in
case, if police is informed then the hostages shall be killed. Three
miscreants were having guns whereas one was having sword. When
Durga Prasad was going back, then he met with K.C. Chauhan,
S.H.O., to whom the entire incident was narrated. On his information,
Dehati Nalishi was recorded and accordingly, F.I.R. was lodged.
5. Thereafter, S.H.O. went to the spot and prepared spot map. In
the meanwhile, Mangilal, Ram Singh contacted miscreants along with
money. They met with miscreants in the forest and an amount of
Rs.52,000/- was given and accordingly, the hostages Mahesh,
Narayan and Patiram were released. When they were coming back,
they met with S.H.O. Chharch and accordingly, recovery memo was
prepared. They were sent for medical examination. The statements
of witnesses were recorded. On 14-5-2009, when K.C. Chauhan was
on patrolling, he arrested the appellants in the forest area itself. Gun
was seized from Ramcharan, Siddhar, Vijay and Kamarlal whereas
Farsa was seized from Suresh. The sanction for prosecution under
Arms Act was obtained. The police after concluding the investigation,
filed the charge sheet for offence under Sections 364A, 323, 506-B of
I.P.C., under Section 11/13 of MPDVPK Act and under Sections 25,
27 of Arms Act.
6. The Trial Court by order dated 24-8-2009, framed charges
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
under Section 364-A of IPC read with Section 11/13 of MPDVPK
Act, 323 of I.P.C. and under Section 25(1-B)(a) of Arms Act against
the appellants Ramcharan, Siddhar, Vijay and Kamarlal. Whereas on
the same day, charge under Sections 364-A of IPC read with Section
11/13 of MPDVPK Act, 323 of I.P.C. and under Section 25(1-B)(b)
of Arms Act was framed against Suresh.
7. The appellants and Suresh abjured their guilt and pleaded not
guilty.
8. The prosecution, in order to prove its case, examined Babulal
(P.W.1), Durga (P.W.2), Mangilal (P.W.3), Ram Singh (P.W.4),
Narayan (P.W.5), Patiram (P.W.6), Mahesh Kumar Dhakad (P.W.7),
Ramswaroop (P.W.8), K.C. Chauhan (P.W.9), Dr. R.K. Sharma
(P.W.10), R.V. Sindosakar (P.W.11), Jageshwar Singh (P.W.12) and
Harnam (P.W. 13).
9. The appellants and Suresh did not examine any witness in their
defence.
10. The Trial Court by impugned judgment and sentence, convicted
and sentenced the appellants for the offences mentioned above.
However, the Trial Court acquitted the appellant Ramcharan, Siddhar
and Kamarlal for offence under Sections 364-A of I.P.C. read with
Section 11/13 of MPDVPK Act and under Section 323 of I.P.C.
whereas acquitted Suresh for offence under Sections 364-A of I.P.C.
read with Section 11/13 of MPDVPK Act, under Section 323 of I.P.C.
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
and under Section 25(1-B)(b) of Arms Act.
11. Challenging the conviction and sentence recorded by the Trial
Court, it is submitted by the Counsel for the appellants, that the
prosecution has failed to prove the guilt of the appellants beyond
reasonable doubt. There is nothing on record to show that from
whom, the amount of Rs.52,000/- was collected. When the police
party was already in the forest area, then it is impossible that
Mangilal and Ram Singh could have handed over the amount of
Ransom to the appellants.
12. In reply, the Counsel for the State has not only supported the
findings given by the Trial Court, by which the appellants have been
convicted but also challenged the findings recorded by the Trial Court
by which the appellants Ramcharan, Siddhar and Kamarlal have been
acquitted for offence under Sections 364-A of I.P.C. read with Section
11/13 of MPDVPK Act and under Section 323 of I.P.C. and also
challenged the acquittal of Suresh of all the charges.
13. The Counsel for respondents in Cr.A. No.353/2014 has
supported the findings of acquittal recorded by the Trial Court.
14. Heard the learned Counsel for the parties.
15. Since, by the impugned judgment, three appellants have been
acquitted for some of the charges and one person has been acquitted
of all the charges and Vijay has been convicted for all the charges,
therefore, for the sake of convenience, this Court shall consider the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
case of Each and Every person separately.
16. Durga Prasad (P.W.2) is the person, who was allegedly released
by the miscreants with a direction to pay Rs.60,000/- for the release
of 3 abductees.
17. Mangilal (P.W.3) and Ram Singh (P.W. 4) are the witnesses,
who have allegedly made arrangement of amount of Ransom and paid
it to the miscreants.
18. Narayan (P.W.5), Patiram (P.W.6) and Mahesh Kumar Dhakad
(P.W.7) are the three abductees.
19. Ramswaroop (P.W.8) is a seizure witness.
20. K.C. Chauhan (P.W. 9) is the investigating officer.
21. Dr. R.K. Sharma (P.W. 10) had medically examined the
abductees.
22. R.V. Sindolkar (P.W.11) is Tahsildar who had conducted Test
Identification Parade.
23. Jageshwar Singh (P.W. 12) is armorer who had examined the
guns and Harnam Singh (P.W. 13) is the clerk working in the office of
District Magistrate, Shivpuri, who has proved the sanction for
prosecution under Section 25 of Arms Act.
Appellant No.1 Ramcharan, Appellant No. 2 Siddhar and
Appellant No. 4 Kamarlal @ Bhindua
24. Since the allegations and evidence as well as findings by the
Trial Court against Ramcharan, Siddhar and Kamarlal are same
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
therefore, their case is being considered together.
25. It is not out of place to mention here that these three appellants
have been convicted for offence under Section 25(1-B)(a) of Arms
Act. Therefore, first of all, we shall consider as to whether the
conviction of the above mentioned three appellants for offence under
Section 25(1-B)(a) of Arms Act can be affirmed or not?
26. Ramswaroop (P.W. 8) is a seizure witness. He has stated that
five persons were arrested vide arrest memo Ex. P.10 to 14, which
contains his signatures. However, the police had not interrogated
them in his presence. The memorandum, Ex. P. 15 to 19 bears his
signatures. Guns were seized from four miscreants and Farsa was
seized from one miscreant vide seizure memo Ex. P. 20 to 24. As this
witness had stated that the miscreants were not interrogated by the
police, therefore, for the limited purposes, he was declared hostile by
the Public Prosecutor. In cross-examination by Public Prosecutor,
this witness denied that Ramcharan, Siddhar, Vijay and Kamarlal had
disclosed about gun and Suresh had disclosed about Farsa. In cross-
examination by the defence, this witness stated that all the documents
were got signed by the police in forest itself. He claimed that he had
gone to forest to see his ox. He further stated that the miscreants
were already detained by the police. However, he denied that he had
signed the documents on the instructions of the police. He further
stated that he had signed the documents without reading the same as
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
the police had informed him that they have apprehended dacoits and
therefore, his signatures are required. His signatures were obtained at
11 A.M. on 14th and also claimed that he is not a literate person.
27. K.C. Chauhan (P.W. 9) has stated that on 14-5-2009, he had
arrested Ramcharan, Siddhar, Vijay, Kamarlal and Suresh. They were
having guns with them. They were arrested vide arrest memo Ex. P.
10 to P. 14. The Memorandum of Ramcharan is Ex. P. 15 and seizure
memo of gun is Ex. P. 20. Similarly the Memorandum of Siddhar is
Ex. P. 16 and seizure memo of gun is Ex. P. 21. The Memorandum of
Vijay is Ex. P. 17 and seizure memo of gun is Ex. P. 22. The
Memorandum of Suresh is Ex. P. 18 and seizure memo of Farsa is Ex.
P. 24. The memorandum of Kamarlal is Ex. P. 19 and seizure memo
of gun is Ex. P. 23. Article A is gun seized from Kamarlal, Article B is
gun seized from Ramcharan, Article C is gun seized from Siddhar and
Article D is gun seized from Vijay and Article E is Farsa seized from
Suresh.
28. In cross-examination, this witness has admitted that the guns
which were seized were filled with gun powder. He stated that at the
time of seizure, they were loaded with gun powder and from security
point of view, the gun powder was removed, however, could not
explain that where the said gun powder and pellets were kept. He
further admitted that the gun powder and pellets have not been
produced in the Court. He denied that the guns were not sealed on
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
the spot. However, admitted that the seizure memo does not bear the
specimen of seal. He further admitted that the guns have been
produced in the Court in an open condition and are not sealed. He
gave an explanation that he had sent the guns in a sealed condition,
but could not explain as to how the guns are received in the Court in
an open condition. He further admitted that the blade of the Farsa is
broken at some places. He further admitted that he has not produced
the departure and arrival rojnamchasanha of 14-5-2009. He further
stated that since, he had instructed the miscreants to surrender,
therefore, they did not fire.
29. When the State Counsel was directed to explain as to how the
guns were received in the Court in open condition, then it was replied
by Shri C.P. Singh that since, the guns were sent to armorer as well as
to the District Magistrate, Shivpuri for grant of sanction, therefore, it
is clear that the seal put by the investigating officer was broken.
30. Considered the submissions made by the Counsel for the State.
31. Jageshwar Singh (P. W. 12) is Arms Moharir. He has stated that
although the guns were received in sealed condition, but they were
sent back in open condition as he was not having seal. However,
Harnam Singh (P.W. 13), who was working as clerk in the office of
District Magistrate, Shivpuri has stated that the guns were received in
sealed condition. The guns were sent to the office of District
Magistrate, Shivpuri after they were received back from the office of
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
Arms Moharir because, Jageshwar Singh (P.W. 12) had tested the
guns on 17-6-2009 whereas guns were sent to the office of District
Magistrate, Shivpuri on 24-6-2009. When Jageshwar Singh (P.W. 12)
had specifically stated that he had not sealed the guns as he was not
having seal, then who sealed the guns? Nothing has been explained
in this regard. Further, Harnam Singh (P.W. 13) has stated that after
granting sanction for prosecution, the guns were re-sealed, but the
guns were received in the Court in open condition. If the guns were
sent back by the office of District Magistrate, Shivpuri in sealed
condition, then who opened the guns, as the guns were received in the
Court in open condition. Since, the burden to explain the above
mentioned lapse is on the prosecution, and having failed to prove the
same, this Court is of the considered opinion, that the seizure of guns
from the possession of Ramcharan (Appellant No.1), Siddhar
(Appellant No.2) and Kamarlal (Appellant No.4) has not been proved
beyond reasonable doubt. Furthermore, the prosecution has failed to
explain that where the gun powder and pellets were kept after
removing the same from the guns.
32. As the prosecution has failed to prove the seizure of guns from
Ramcharan (Appellant No.1), Siddhar (Appellant No.2) and Kamarlal
@ Bhindua (Appellant No. 4), therefore, their conviction under
Section 25(1-B)(a) of Arms Act is set aside.
Appellant Vijay Kumar (Appellant No. 3)
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
33. Appellant No. 3 Vijay Kumar has been convicted under Section
364-A of IPC read with Section 11/13 of MPDVPK Act, under
Section 323 of I.P.C. and under Section 25(1-B)(a) of Arms Act.
Conviction under Section 25(1-B)(a) of Arms Act
34. So far as the conviction of Appellant No. 3 Vijay Kumar for
offence under Section 25(1-B)(a) of Arms Act is concerned, it is
suffice to mention that for the reasons mentioned in para 31 and 32 of
this judgment, his conviction under Section 25(1-B)(a) of Arms Act is
set aside and he is acquitted of the said charge.
Conviction under Section 364-A of I.P.C. read with Section 11/13 of
MPDVPK Act
35. Durga Prasad (P.W.2), Mangilal (P.W.3) and Ram Singh (P.W.
4) have identified the appellant Vijay Kumar in Dock. These three
witnesses had also identified Vijay Kumar in T.I.P, Ex. P.8. Further,
Mangilal (P.W. 3) and Ram Singh (P.W. 4) have also identified the
Appellant No.3 Vijay in the Dock. Mangilal (P.W. 3) has specifically
pointed out towards Vijay by alleging that he was the person, to
whom ransom amount was given. The only question for consideration
is that whether the evidence led by the prosecution against Vijay is
reliable or not?
36. The appellant Vijay was identified in T.I.P. as well as also in
the Dock.
37. The next question for consideration is that whether the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
prosecution has succeeded in establishing the guilt of Vijay or not?
38. Dehati Nalishi, Ex. P.1 was lodged by Durga (P.W. 2) at 13:00
on 25-3-2009 in a forest area falling between Chak and Parsadi.
Thus, it is clear that Durga (P.W. 2) did not go to Police Station.
Therefore, the above mentioned aspect shall be kept in mind, while
appreciating the evidence.
39. Durga (P.W. 2) has stated in his evidence that on 25 th, he along
with Mahesh, Narayan and Patiram were going on three different
bullock carts. When his bullock cart reached near village Chak, they
were surrounded by four miscreants who started assaulting them by
handles of guns. When the miscreants asked for the identity of the
witnesses, then this witness falsely said that he is a labourer,
therefore, he was released with a direction to bring money, whereas
Mahesh, Narayan and Patiram were detained. When this witness was
released, he went to Police Station to lodge F.I.R. Thereafter, Mangi
and Ramsingh went along with money. Later on, all the three
abductees were released. He lodged the report in police station. The
report is Ex. P.1. The police went to the spot and prepared spot map
Ex. P.7. He was medically examined. He further claimed that he can
identify the miscreants and claimed that all the appellants are the
same persons, who had captured him and his companions.
40. In cross-examination, this witness claimed that he reached
Pohari Police Station at 12 P.M. The Pohari Police Station is about 2-
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
3 Furlong away from the place where they were taken in captivity.
The report was lodged by Daroga (S.H.O.). After lodging the report,
he came back to village. Thereafter, the police came and took him to
the spot. He denied that the report was lodged while he was on his
way. He further stated that when he was released by the miscreants,
then he went back to his village and informed Mangi (P.W.3) and
Ram Singh (P.W.4) to give money and accordingly, they went with
money and this witness went to police station. He submitted that his
police statement was recorded after 2-3 days. He further admitted
that there is a forest around the place known as Sakare. He had not
seen the miscreants prior to the abduction. He was not knowing the
names of the miscreants at the time of abduction. He denied that he
was not beaten by miscreants. He further claimed that he had
informed his family members by mobile while he was on his way. He
was having mobile with him, but since, the said mobile was of
Mahesh, therefore, could not disclose the number of mobile. He
further stated that he had given information to the family members of
Mahesh by Mobile of Mahesh. He again stated that he had left the
mobile with Mahesh.
41. If the evidence of Durga (P.W. 2) is considered in the light of
Dehati Nalishi, Ex. P.1, it is clear that it was lodged at 13:00. Further
there is no mention in Dehati Nalishi, Ex. P.1 that he has already
informed the family members of abductees.
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
42. According to K.C. Chauhan (P.W. 09), he went on patrolling
after receiving an information from S.D.O.(P) that some miscreants
are moving in forest of Parasari (The information given by S.D.O.(P)
is not on record. When he reached the forest area, then he met with
Durga (P.W.2) who informed that miscreants have abducted Narayan,
Patiram and Mahesh and he has been released by the miscreants.
Accordingly, Dehati Nalishi, Ex. P.1 was written.
43. Thus, there is a material discrepancy on the issue that at what
place Dehati Nalishi, Ex. P.1 was lodged. Dehati Nalishi is written
when an information is received by the police at a place, other than
police station, and thereafter, the Dehati Nalishi is registered as F.I.R.
by sending the same to the police station. In the present case also,
the Dehati Nalishi, Ex. P.1 was sent to Police Station, and
accordingly F.I.R., Ex. P.2 was written by Babulal (P.W.1). Since, the
Dehati Nalishi, Ex. P.1 was written at 13:00 in the forest area,
therefore, it is clear that Durga (P.W.2) never went to Police Station
to lodge the F.I.R.
44. Furthermore, there is a discrepancy regarding information of
abduction given by Durga (P.W.2). Initially, the evidence of Durga
(P.W. 2) was that after he was released by the miscreants, he went to
police station, but later on he took a somersault and claimed that after
his release, he went to village and informed the family members of
the abductees. Thereafter, again he changed his version by claiming
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
that while he was on his way, he had informed the family members of
the abductees from the mobile of Mahesh. Thus, it is clear that since,
Durga (P.W.2) was having the mobile of Mahesh and Mahesh was in
captivity, therefore, it is clear that Mahesh was not having any mobile
during his captivity. However, Durga (P.W. 2) again tried to explain
that he had left the mobile with Mahesh.
45. According to Durga (P.W.2), he had informed the family
members of abductees from the mobile of Mahesh while he was on
his way, then there is no question of leaving mobile with Mahesh. It
is not the case of the prosecution, that Durga (P.W.2) had informed
the family members of abductees from the mobile of Mahesh, prior to
his release. Mangilal (P.W. 3) has stated that Durga (P.W.2) informed
the villagers on phone that the miscreants have captured the
witnesses and have demanded Rs.60,000/-. Ram Singh (P.W. 4) has
stated that Durga (P.W.2) had informed him on phone, that miscreants
have captured three persons and they are demanding Rs.60,000/-.
Thus, if the evidence of Durga (P.W. 2) is considered in the light of
evidence of Mangilal (P.W.3) and Ram Singh (P.W. 4), then it is clear
that Durga (P.W. 2) never went to village after his release. Therefore,
the evidence of Durga (P.W. 2) that after his release he went to village
has remained uncorroborated and hence, it is rejected.
46. Further, whether Durga (P.W. 2) was having any mobile with
him or not?
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
47. As already pointed out, it is the case of Durga (P.W. 2) that on
his way, he had also informed the family members of the abductees
from the mobile of Mahesh. However, this witness could not state
the mobile number of Mahesh. The contention of Durga (P.W. 2) that
he had left the mobile with Mahesh, cannot be accepted for the
reason that if he had informed the family members of abductees while
he was on his way, then there was no occasion for going back and
leaving the mobile with Mahesh. Even the police has not collected
the mobile details of Mahesh and his family members.
48. Further, even Mahesh Kumar Dhakad (P.W. 7) has not stated
that Durga (P.W.2) had ever given any information to his family
members from his mobile. He has also not stated that he had given
his mobile to Durga (P.W.2).
49. Therefore, the evidence of Durga (P.W. 2) that he had informed
the family members of the abductees is suspicious.
Whether any ransom amount was paid to the miscreants by Mangilal
(P.W. 3) and Ram Singh (P.W. 4) or not?
50. Mangilal (P.W. 3) has stated that Durga (P.W. 2) had informed
the villagers on phone that three persons have been captured by
miscreants. Accordingly, Ram Singh (P.W. 4) who is the brother of
Mahesh, made arrangement of Rs.60,000/-. However, thereafter
clarified that Rs.52,000/- were arranged. Since, nobody was ready to
go along with Ram Singh, therefore, he accompanied Ram Singh. He
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
further stated that they went to Sanker Forest where they met with
one miscreant, who took them to the forest area, where they met with
4-5 miscreants. The three abductees were lying in tied condition. An
amount of Rs.52,000/- was given. Mangilal (P.W. 3) and Ram Singh
(P.W. 4) were asked to leave, and a promise was made that the three
abductees shall be released later on and accordingly, they came back.
Later on, the three abductees also reached their houses. He further
claimed that money was given to Vijay.
51. In cross-examination, this witness admitted that he does not
have any mobile, but claimed that brother of Ram Singh has a mobile.
He further admitted that neither he had any talk nor the talk between
Durga (P.W.2) and Ram Singh (P.W. 5) took place in his presence. He
further stated that he does not know that where Durga had gone after
his release. He could not clarify the denomination of Rs.52,000/-. He
further claimed that the miscreant who had met them, took them to a
place which was about 2 km.s inside the forest. He further admitted
that after payment of ransom, they were waiting for the abductees.
He also said that if the abductees had returned by the same road
which goes to their village, then they would have certainly met them.
He could not clarify that by which road, the abductees had returned.
He further stated that when the information was received, he was in
his house. He did not go to the house of Ram Singh. In fact Ram
Singh had come to his house. Ram Singh did not ask for any
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
monetary help. This witness also did not count the money. He
further stated that when he met with a person on their way, then on
his query, Ram Singh had disclosed his identity. He admitted that he
is a labourer and sometimes he is also employed by Ram Singh.
52. Ram Singh (P.W. 4) has stated that he was informed by Durga
(P.W. 2) on phone that three persons have been captured and they are
demanding Rs.60,000/-. Thereafter, he arranged for money and could
arrange Rs.52-53 thousand only. Then he went to forest along with
Mangilal (P.W. 3) to give money to the miscreants. On his way to
forest, he made a phone call and accordingly, miscreants directed him
to come to Bandarwadi. Thereafter, he went there. One miscreant
took them 2 km.s inside the forest and he found that his brother and
two more persons were lying in a tied condition. 5 miscreants were
sitting. Thereafter, he gave money and requested for release of
abductees. The miscreants told him that the abductees would be
released after 1-2 hours. Thereafter, this witness and Mangilal started
walking towards their house. Later on, the abductees were also
released. This witness also identified the appellants in the Dock.
53. In cross-examination, this witness stated that Durga (P.W. 2)
had called him at about 11 A.M. However, he could not specify that
from whose mobile, Durga (P.W.2) had called him. On a specific
question, this witness denied that the phone call was made from the
mobile of Mahesh. He further claimed that he had made a phone call
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
on the mobile of Mahesh to know the location, and at that time, he
was told by the miscreants that they are in Bandarwadi. He further
clarified that he did not have talk with Mahesh. This witness further
claimed that he had disclosed to the police, that they had met with a
miscreant, who took them 2 km inside the forest, however, could not
explain as to why this fact is not mentioned in his police statement.
(Although the Counsel for the defence had confronted this witness
regarding above mentioned omission in his police statement, but
unfortunately, the police statement of Ram Singh was not exhibited
as D document. However, in the light of Section 145 of Evidence Act,
this Court has gone through the police statement of Ram Singh. In
his police statement, Ram Singh had not disclosed that they had met
with a miscreant who took them 2 km inside the forest). Since, the
requirement of Section 145 of Evidence Act was fulfilled by drawing
the attention of this witness towards his police statement, therefore, it
is held that there is an improvement in the evidence of Ram Singh
(P.W. 4) that when they were going to forest, they met with a
miscreant who took them 2 km inside the forest. He further admitted
that he had arranged for the money but could not name the persons
from whom he had collected the money. However, on his own, he
stated that an amount of Rs.20,000/- was given by the son of Patiram.
(It is not out of place to mention here that son of Patiram has not been
examined and Patriram (P.W. 6) has not stated that any money was
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
given by his son). He further admitted that he does not remember the
mobile number of Mahesh. He also admitted that he does not
remember the mobile number of Durga. He further admitted that he
does not have mobile number of Mahesh. He further admitted that
nobody had talk to him on mobile about the incident. However, in
further cross-examination by Counsel for other accused, this witness
clarified that it is incorrect to say that he does not know the mobile
number of Mahesh. He on his own clarified that the mobile number
of Mahesh was written.
54. Narayan (P.W.5) is one of the abductee. He has stated that they
were going on three bullock carts. They were abducted. They were
beaten and a demand of Rs.60,000/- was made. Durga went back to
village and all the three abductees were tied and were made to sit
near Sankre Ki River. 2-3 hours thereafter, Ram Singh and Mangilal
came with money. Ram Singh and Mangilal were asked to leave. The
abductees were released at 4 P.M. This witness also identified the
appellants in the Dock.
55. In cross-examination, this witness has stated that they were
kept at a place, which was 1-2 Km.s away from the place from where
they were abducted. Ram Singh (P.W.4) and Mangilal (P.W.3) had
come with money to the same place, where they were kept.
56. Patiram (P.W.6) has stated that the moment they reached near
river in Chakki Ki Dang, they were surrounded by the miscreants and
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
they were beaten also. Thereafter, Mangi was released. Thereafter
Mangi and Ramswaroop came there with money and it was paid to
the miscreants. Since, there was some mistake regarding names of
witnesses, therefore, this witness was declared hostile and he
admitted that in fact Durga was released by miscreants and Ram
Singh had come with Mangilal to give money
57. In cross-examination, this witness stated that he had returned
by the same road, from where he was abducted. While they were
returning back, he did not meet with Mangilal and Ram Singh. He
further stated that he did not have mobile and claimed that Mahesh
was having mobile. He further stated that he had not seen the
miscreants prior to abduction. He could not disclose the name of
place from where he was taken by the miscreants. He further claimed
that they were taken to another place after the release of Durga. The
miscreants were changing the location after every 1 hour. He
admitted that no money transaction had taken place in his presence.
He also admitted that he could not hear the conversation between
miscreants and Mangilal and Ram Singh. He further admitted that he
had not seen Mangilal and Ram Singh coming.
58. Mahesh Kumar Dhakad (P.W. 7) has stated that when their
bullock carts reached near Sankre, they were surrounded by
miscreants. They started beating them. They enquired about the
identity of the abductees. Durga disclosed that he is a labourer
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
whereas Patiram, Narayan and this witness disclosed their correct
identity, therefore, Durga was released with a direction to bring
Rs.60,000/- and three abductees were tied. Thereafter Durga went
home. His brother Ram Singh called him on his mobile and then
miscreants told that they will meet him in Bandarwadi forest.
Thereafter, Mangilal and Ram Singh came and paid Rs.52,000/- to
the miscreants. Thereafter, Mangilal and Ram Singh were asked to
leave with a promise that abductees would be released by the
evening. One hour thereafter, the abductees were also released. The
appellants were also identified in dock.
59. In cross-examination, this witness said that they had left the
village at about 7:30 A.M. No body else was having mobile. After
release, Durga never came back to him. Durga also did not inform
him that he has informed his family members by mobile. The
information about their abduction had reached the village at about
11:30 A.M. He further stated that Mangilal and Ram Singh had come
to the miscreants at about 4-4:30 P.M. He further stated that he had
received the mobile call of Ram Singh at about 4 P.M.
60. Thus, if the evidence of Durga (P.W.2), Mangilal (P.W.3), Ram
Singh (P.W. 4), Narayan (P.W.5), Patiram (P.W.6) and Mahesh Kumar
Dhakad (P.W. 7) are considered, then it would be clear that there are
following major contradictions in their evidence.
Who informed Ram Singh (P.W. 7) about abduction and demand of
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
ransom?
61. Durga (P.W.2) has stated that after his release, he went to
village, but neither Mangilal (P.W. 3) nor Ram Singh (P.W. 4) have
stated that Durga (P.W. 2) had ever come to village to inform about
the abduction.
62. Durga (P.W. 2) has also stated that while he was on his way, he
had informed the family members of the abductees from the mobile
phone of Mahesh. But Mahesh (P.W. 7) has not stated that Durga
(P.W. 2) had ever informed his family members about their abduction
from his mobile phone.
63. Durga (P.W.2) has further stated that he had left the mobile
phone with Mahesh (P.W.7), but Mahesh (P.W. 7) has specifically
stated that Durga (P.W.2) did not come back to him, after he was
released by the miscreants.
64. Thus, the prosecution has failed to prove that Durga (P.W. 2)
had ever informed Ram Singh (P.W. 7) about abduction.
How Mangilal (P.W.3) and Ram Singh (P.W.4) reached to miscreants.
65. Mangilal (P.W.3) and Ram Singh (P.W. 4) have claimed that
when they were going to give money, then they met with a miscreant,
who took them 2 km inside the forest, where the miscreants were
present and the abductees were kept.
66. Ram Singh (P.W. 4) was confronted with the above mentioned
omission in his police statement. It is true that the police statement
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
of Ram Singh (P.W. 4) was not exhibited as D document, but by
confronting this witness regarding the vital omission in his police
statement, this Court is of the considered opinion, that the
requirement of Section 145 of Evidence Act was fulfilled. Although
there is an omission in the police statement of Mangilal (P.W.3) also,
but since, the attention of the said witness was not drawn towards the
said omission, therefore, this Court cannot hold that the evidence of
Mangilal (P.W.3) "that they met with a miscreant who took them 2
km inside the jungle" is a contradiction. However, when this Court
has already come to a conclusion that there is an omission in the
Police Statement of Ram Singh (P.W. 4) regarding meeting a
miscreant and thus the evidence of Ram Singh (P.W. 4) is not reliable
on the said aspect, then the evidence of Mangilal (P.W.3) on this
aspect also becomes doubtful.
67. The another source of information for reaching to the place
where abductees were kept is, that Ram Singh (P.W. 4) had taken the
location by calling on the mobile phone of Mahesh. The said
evidence cannot be accepted, because according to the witnesses,
they were merely informed that the miscreants and abductees are in
Bandarwadi Forest. The exact location was not disclosed to them. In
absence of any information regarding exact location, it was difficult
for Mangilal (P.W. 3) and Ram Singh (P.W. 4) to directly go to the
miscreants and therefore, they tried to develop the story by alleging
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
that they were escorted by one miscreant, which has already been
disbelieved by the Court. Thus, it is held that the prosecution has
failed to prove that Mangilal (P.W. 3) and Ram Singh (P.W.4) had
reached to miscreants.
Whether any amount of ransom was paid to the miscreants?
68. This Court has already come to a conclusion that the
prosecution has failed to prove that Durga (P.W.2) had given any
information to Ram Singh (P.W.4). Further, Ram Singh (P.W.4) has
stated that he had made arrangement of money. But could not
disclose the names of persons, from whom he had collected money.
Although Ram Singh (P.W. 4) has stated that son of Patiram (P.W. 6)
had contributed Rs.20,000/-, but neither Patiram (P.W. 6) has stated
that his son had given Rs.20,000/- nor the prosecution has examined
son of Patiram.
69. Further, there is a discrepancy regarding amount paid to the
miscreants. Mangilal (P.W. 3) has stated that Rs.52,000/- were paid
whereas Ram Singh (P.W. 4) has stated that Rs.53,000/- were paid.
Further, even Ram Singh (P.W. 4) was not in a position to give details
of the denomination of currency notes. Thus, it is held that the
allegation that ransom amount was paid to the miscreants is doubtful
and suspicious.
When Mangilal (P.W. 3) and Ram Singh (P.W.4) reached to the
miscreants.
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
70. Narayan (P.W. 5) has stated that they were released at 4 P.M.,
whereas Mahesh Kumar Dhakad (P.W. 7) has stated that he received
the mobile call from Ram Singh (P.W. 4) at 4 P.M., and Mangilal
(P.W. 3) and Ram Singh (P.W. 4) reached at about 4:30 P.M. Further,
Mahesh Kumar Dhakad (P.W. 7) has stated that they were released
after one hour of payment of ransom amount. Thus, it is clear that
according to Mahesh Kumar Dhakad (P.W.7), they were released
some time after 5:30 P.M., whereas Narayan (P.W.5) says that they
were released at 4:00 P.M. K.C. Chauhan (P.W.9) has stated that after
the Dehati Nalishi, Ex. P.1 was lodged, he was searching for the
miscreants in the forest area and during that search, he met with the
abductees and accordingly, recovery memo Ex. P. 9 was prepared.
The recovery memo was prepared at 17:00. Further, it is the case of
the prosecution, that when the abductees were returning back, then
they met with the police party. Patiram (P.W. 6) has stated in his
evidence, that when they were returning back, they found their
bullock carts in the forest of Parasari. However, it is not the
evidence of K.C. Chauhan (P.W.9) that the abductees were found
coming back on their bullock carts, or after their recovery, they went
in search of their bullock carts. Thus, it is clear that there is material
discrepancy as to when the abductees were released.
Whether Police was patrolling in the forest area and why they could
not meet Ram Singh and Mangilal
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
71. According to K.C. Chauhan (P.W. 9) on 25-3-2009, he was
posted as S.H.O., Police Station Chharch. He received an
information from S.D.O.(P) that there is some movement of
miscreants in the forest area. Therefore, he left for patrolling along
with police party. During patrolling, he met with Durgaprasad (P.W.2)
who informed that three persons have been abducted, and he has been
released to give information in the village and ransom has also been
demanded. Accordingly Dehati Nalishi, Ex. P.1 was recorded.
Thereafter, Constable Abdul Hafeez was sent for registration of F.I.R.
and during this time, he was continuously patrolling in the forest
area. However, he could not get any information. Thereafter, Abdul
Hafeez also returned back. Then he went to the spot and prepared
spot map, Ex. P.7. He continued to search for miscreants and during
patrolling he met with abductees and accordingly, recovery memo Ex.
P.9 was prepared.
72. It is really surprising that on one hand, the police party was
continuously patrolling in the forest area, and spot map, Ex. P.9 was
prepared at 16:05, but still they could not trace out Mangilal (P.W.3)
or Ram Singh (P.W.4). Therefore, the evidence of the prosecution
witnesses is also doubtful and suspicious on this issue also.
When copy of F.I.R. was sent to Special Judge
73. Babulal (P.W. 1) has stated that at about 14:40, Abul Hafeez
came along with copy of Dehati Nalishi, Ex. P.1 and accordingly,
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
F.I.R.,Ex. P.2 was lodged and a copy of the same was sent to Special
Judge. The F.I.R., Ex. P.2 was recorded at 14:40 on 25-3-2009 but as
per the acknowledgment of receipt of copy of counter F.I.R., Ex. P.
5C, it is clear that the copy of F.I.R. was sent to Special Judge on 26-
3-2009, which was received at 3:10 P.M. Thus, it is clear that there is
a delay of more than 24 hours in sending a copy of FIR to the Special
Judge.
74. The Supreme Court in the case of Rabindra Mahto Vs. State
of Jharkhand reported in (2006) 10 SCC 432 has held as under :
19. There cannot be any manner of doubt that Section 157
of the Criminal Procedure Code requires sending of an FIR
to the Magistrate forthwith which reaches promptly and
without undue delay. The reason is obvious to avoid any
possibility of improvement in the prosecution story and also
to enable the Magistrate to have a watch on the progress of
the investigation. At the same time, this lacuna on the part
of the prosecution would not be the sole basis for throwing
out the entire prosecution case being fabricated if the
prosecution had produced the reliable evidence to prove the
guilt of the accused persons. The provisions of Section 157
CrPC are for the purpose of having a fair trial without there
being any chance of fabrication or introduction of the fact at
the subsequent stage of investigation. The cases cited by the
learned counsel for the appellants do not lay down any law
that simply because there is a delay in lodging the FIR or
sending it to the Magistrate forthwith, the entire case of the
prosecution has to be discarded. The decisions rendered by
this Court and relied upon by the learned counsel for the
appellant would only show that this will be a material
circumstance which will be taken into consideration while
appreciating the evidence on record.
The Supreme Court in the case of Suresh Chaudhary v. State
of Bihar, reported in (2003) 4 SCC 128 has held as under :
9......This conduct of the IO also creates some doubt in our
minds as to the time of the incident in question. That apart,
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
the express message which PW 13 sent to the Jurisdictional
Magistrate reached the said Magistrate at his place only on
12-10-1992 nearly 1 ½ days after the said complaint was
registered and we find no explanation from PW 13 as to this
inordinate delay which only adds to the doubtful
circumstances surrounding the prosecution case..........
The Supreme Court in the case of Arjun Marik Vs. State of
Bihar, reported in 1994 Supp (2) SCC 372 has held as under :
24. The matter does not stop here. There is yet another
serious infirmity which further deepens the suspicion and
casts cloud on the credibility of the entire prosecution story
and which has also been lost sight of by the trial court as
well as the High Court and it is with regard to the sending
of occurrence report (FIR) to the Magistrate concerned on
22-7-1985 i.e. on the 3rd day of the occurrence. Section 157
of the Code of Criminal Procedure mandates that if, from
information received or otherwise, an officer in charge of
police station has reason to suspect the commission of an
offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the same to
the Magistrate empowered to take cognizance of such
offence upon a police report. Section 157, CrPC thus in
other words directs the sending of the report forthwith i.e.
without any delay and immediately. Further, Section 159
CrPC envisages that on receiving such report, the
Magistrate may direct an investigation or, if he thinks fit, to
proceed at once or depute any other Magistrate subordinate
to him to proceed to hold a preliminary inquiry into the case
in the manner provided in the Code of Criminal Procedure.
The forwarding of the occurrence report is indispensable
and absolute and it has to be forwarded with earliest
despatch which intention is implicit with the use of the
word "forthwith" occurring in Section 157, which means
promptly and without any undue delay. The purpose and
object is so obvious which is spelt out from the combined
reading of Sections 157 and 159 CrPC. It has the dual
purpose, firstly to avoid the possibility of improvement in
the prosecution story and introduction of any distorted
version by deliberations and consultation and secondly to
enable the Magistrate concerned to have a watch on the
progress of the investigation.
75. Although mere delay in sending the copy of FIR to the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
concerning Court by itself, may not be fatal to the prosecution case,
but if the facts of the case are considered in the light of the delay of
24 hours in sending the copy of F.I.R. to the Court of Special Judge,
then it is held that the delay of 24 hours in sending the copy of FIR
gives a deep dent to the prosecution story.
Identification of Vijay in TIP as well as in Court
76. According to the prosecution case, the appellant Vijay was
identified by Narayan (P.W. 5), Patiram (P.W. 6) and Mahesh Kumar
Dhakad (P.W.7) in TIP, Ex. P.8 as well as in the Court. Whereas Vijay
was also identified by Durga (P.W. 2), Mangilal (P.W. 3) and Ram
Singh (P.W.4) in the dock.
77. The Supreme Court in the case of Manu Sharma Vs. State
(NCT of Delhi) reported in (2010) 6 SCC 1 has held as under :
256. The law as it stands today is set out in the following
decisions of this Court which are reproduced as
hereinunder:
Munshi Singh Gautam v. State of M.P.: (SCC pp. 642-45,
paras 16-17 & 19)
"16. As was observed by this Court in Matru v. State
of U.P. identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance
that their progress with the investigation into the
offence is proceeding on the right lines. The
identification can only be used as corroborative of the
statement in court. (See Santokh Singh v. Izhar
Hussain.) The necessity for holding an identification
parade can arise only when the accused are not
previously known to the witnesses. The whole idea of
a test identification parade is that witnesses who claim
to have seen the culprits at the time of occurrence are
to identify them from the midst of other persons
without any aid or any other source. The test is done to
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
check upon their veracity. In other words, the main
object of holding an identification parade, during the
investigation stage, is to test the memory of the
witnesses based upon first impression and also to
enable the prosecution to decide whether all or any of
them could be cited as eyewitnesses of the crime. The
identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in
the Code and the Evidence Act. It is desirable that a
test identification parade should be conducted as soon
as after the arrest of the accused. This becomes
necessary to eliminate the possibility of the accused
being shown to the witnesses prior to the test
identification parade. This is a very common plea of
the accused and, therefore, the prosecution has to be
cautious to ensure that there is no scope for making
such an allegation. If, however, circumstances are
beyond control and there is some delay, it cannot be
said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions
of this Court. The facts, which establish the identity of
the accused persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court.
The evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is,
accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of
earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular witness
on whose testimony it can safely rely, without such or
other corroboration. The identification parades belong
to the stage of investigation, and there is no provision
in the Code which obliges the investigating agency to
hold or confers a right upon the accused to claim a test
identification parade. They do not constitute
substantive evidence and these parades are essentially
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
governed by Section 162 of the Code. Failure to hold a
test identification parade would not make inadmissible
the evidence of identification in court. The weight to
be attached to such identification should be a matter
for the courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v.
Delhi Admn., Vaikuntam Chandrappa v. State of A.P.,
Budhsen v. State of U.P. and Rameshwar Singh v. State
of J&K.)
* * *
19. In Harbajan Singh v. State of J&K, though a test
identification parade was not held, this Court upheld
the conviction on the basis of the identification in
court corroborated by other circumstantial evidence. In
that case it was found that the appellant and one
Gurmukh Singh were absent at the time of roll call and
when they were arrested on the night of 16-12-1971
their rifles smelt of fresh gunpowder and that the
empty cartridge case which was found at the scene of
offence bore distinctive markings showing that the
bullet which killed the deceased was fired from the
rifle of the appellant. Noticing these circumstances this
Court held: (SCC p. 481, para 4)
'4. In view of this corroborative evidence we find no
substance in the argument urged on behalf of the
appellant that the investigating officer ought to have
held an identification parade and that the failure of
Munshi Ram to mention the names of the two accused
to the neighbours who came to the scene immediately
after the occurrence shows that his story cannot be
true. As observed by this Court in Jadunath Singh v.
State of U.P. absence of test identification is not
necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villagers
only shows that the accused were not previously
known to him and the story that the accused referred to
each other by their respective names during the course
of the incident contains an element of exaggeration.
The case does not rest on the evidence of Munshi Ram
alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the
implication of the appellant.' "
Malkhansingh v. State of M.P.: (SCC pp. 751-52, para
7)
"7. It is trite to say that the substantive evidence is the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions
of this Court. The facts, which establish the identity of
the accused persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court.
The evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of
earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular witness
on whose testimony it can safely rely, without such or
other corroboration. The identification parades belong
to the stage of investigation, and there is no provision
in the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon
the accused to claim a test identification parade. They
do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the
Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for
the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration."
78. Thus, it is clear that Dock Identification is a substantive piece
of evidence. The Supreme Court in the case of Hemudan Nanbha
Gadvi Vs. State of Gujarat reported in (2019) 17 SCC 523 has held
as under :
7. The appellant was apprehended on suspicion along with
another. The TIP was held without delay on 22-2-2004. Ext.
P-38, the TIP report bears the thumb impression of PW 2
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
who was accompanied by her mother. The TIP report has
been duly proved by PW 11. The appellant was identified
by PW 2. There appears no substantive challenge to the TIP
identification in the dock, generally speaking, is to be given
primacy over identification in TIP, as the latter is considered
to be corroborative evidence. But it cannot be generalised
as a universal rule, that identification in TIP cannot be
looked into, in case of failure in dock identification. Much
will depend on the facts of a case. If other corroborative
evidence is available, identification in TIP will assume
relevance and will have to be considered cumulatively.
8. In Prakash v. State of Karnataka, it was observed as
follows : (SCC p. 144, para 16)
"16. ... Even so, the failure of a victim or a witness to
identify a suspect is not always fatal to the case of the
prosecution. In Visveswaran v. State it was held : (SCC
p. 78, para 11)
'11. ... The identification of the accused either in a test
identification parade or in court is not a sine qua non
in every case if from the circumstances the guilt is
otherwise established. Many a time, crimes are
committed under the cover of darkness when none is
able to identify the accused. The commission of a
crime can be proved also by circumstantial evidence.' "
The Supreme Court in the case of Prakash Vs. State of
Karnataka reported in (2014) 12 SCC 133 has held as under :
14. Two types of pre-trial identification evidence are
possible and they have been succinctly expressed in
Marcoulx v. R. by the Supreme Court of Canada in the
following words:
"An important pre-trial step in many criminal
prosecutions is the identification of the accused by the
alleged victim. Apart from identification with the aid
of a photograph or photographs, the identification
procedure adopted by the police officers will normally
be one of two types: (i) the show up--of a single
suspect; (ii) the line-up presentation of the suspect as
part of a group."
14.1. With reference to the first type of identification
evidence, the Court quotes Prof. Glanville Williams from an
eminently readable and instructive article in which he says:
"... if the suspect objects [to an identification parade]
the police will merely have him "identified" by
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
showing him to the witness and asking the witness
whether he is the man. Since this is obviously far more
dangerous to the accused than taking part in a parade,
the choice of a parade is almost always accepted."
14.2. With reference to the second type of identification
evidence, Prof. Glanville Williams says:
"Since identification in the dock is patently
unsatisfactory, the police have developed the practice
of holding identification parades before the trial as a
means of fortifying a positive identification.... The
main purpose of such a parade from the point of view
of the police is to provide them with fairly strong
evidence of identity on which to proceed with their
investigations and to base an eventual prosecution.
The advantage of identification parades from the point
of view of the trial is that, by giving the witness a
number of persons from amongst whom to choose, the
prosecution seems to dispose once and for all the
question whether the defendant in the dock is in fact
the man seen and referred to by the witness."
14.3. A similar view was expressed by the Canadian
Supreme Court in Mezzo v. R.
15. An identification parade is not mandatory nor can it be
claimed by the suspect as a matter of right. The purpose of
pre-trial identification evidence is to assure the investigating
agency that the investigation is going on in the right
direction and to provide corroboration of the evidence to be
given by the witness or victim later in court at the trial. If
the suspect is a complete stranger to the witness or victim,
then an identification parade is desirable unless the suspect
has been seen by the witness or victim for some length of
time. In Malkhansingh v. State of M.P. it was held: (SCC pp.
751-52, para 7)
"7. ... The identification parades belong to the stage
of investigation, and there is no provision in the Code
of Criminal Procedure which obliges the investigating
agency to hold, or confers a right upon the accused to
claim a test identification parade. They do not
constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for
the courts of fact."
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
16. However, if the suspect is known to the witness or
victim or they have been shown a photograph of the suspect
or the suspect has been exposed to the public by the media
no identification evidence is necessary. Even so, the failure
of a victim or a witness to identify a suspect is not always
fatal to the case of the prosecution. In Visveswaran v. State
it was held: (SCC p. 78, para 11)
"11. ... The identification of the accused either in a test
identification parade or in court is not a sine qua non
in every case if from the circumstances the guilt is
otherwise established. Many a time, crimes are
committed under the cover of darkness when none is
able to identify the accused. The commission of a
crime can be proved also by circumstantial evidence."
79. Identification of an accused is a relevant fact under Section 9 of
Evidence Act and the Court can direct the accused to submit himself
for identification under Section 54-A of Cr.P.C. Identification of an
accused in the Court, establishes the identity of an accused, but to
seek conviction, the prosecution has to prove other allegations either
by leading Direct Evidence or Circumstantial Evidence. Mere
identification of a person, would not establish his guilt.
80. This Court has already held that the allegations that
Durgaprasad (P.W.2) was released by the miscreants as he had
disclosed his wrong identity and thereafter, Durga Prasad (P.W.2)
informed Ram Singh (P.W. 4) about abduction and demand of ransom
amount are suspicious and doubtful. The allegation that ransom
amount was arranged by Ram Singh (P.W. 4) by collecting the same
from the villagers including son of Patiram (P.W. 6) has also been
found to be doubtful and suspicious. The fact of handing over of
ransom amount to the miscreants has also been found to be doubtful
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
and suspicious. When the abductees were released and when Mangilal
(P.W. 3) and Ram Singh (P.W. 4) handed over the ransom amount to
the miscreants has also been found to be doubtful and suspicious.
Further, how Mangilal (P.W.3) and Ram Singh (P.W.4) reached to the
miscreants is also not proved beyond reasonable doubt. It has also
been found that when the police was already patrolling in the forest
area, then non-meeting of Mangilal (P.W. 3) and Ram Singh (P.W.4)
with the police party in the forest area also raises doubt and suspicion
on the prosecution story. Furthermore, how, when and where, Dehati
Nalishi was lodged is also under doubt. Durga (P.W.2) has stated that
he went to Pohari Police Station and lodged the report, but no F.I.R.
was lodged in Pohari Police Station. The investigation was done by
S.H.O., Police Station Chharch. K.C. Chauhan (P.W.9) has claimed
that he was already on patrolling in the forest area, when he met with
Durga (P.W. 2) who lodged the Dehati Nalishi. Thus, the fact of
lodging Dehati Nalishi, Ex. P.1 has also not been proved by the
prosecution beyond reasonable doubt. Furthermore, there is a delay
of 24 hours in sending the copy of F.I.R. to Special Judge, which also
gives deep dent to the prosecution story. Under these circumstances,
when the prosecution has failed to prove that Narayan (P.W. 5),
Patiram (P.W.6) and Mahesh Kumar Dhakad (P.W.7) were ever
abducted and ransom amount was demanded and was also payed, then
mere identification in TIP or in Dock would not lead to inference, that
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
the appellant Vijay has committed offence under Section 364-A of
I.P.C read with Section 11/13 of MPDVPK Act. It is well established
principle of law that suspicion howsoever strong may be, cannot take
place of proof. Thus, under the facts and circumstances of the case, it
is held that the prosecution has miserably failed to prove the guilt of
the appellant Vijay for offence under Section 364-A of IPC read with
Section 11/13 of MPDVPK Act.
Whether Durga Prasad (P.W.2), Narayan (P.W.5), Patiram (P.W. 6)
and Mahesh Kumar Dhakad (P.W. 7) were beaten by Vijay
81. Dr. R.K. Sharma (P.W.10) had examined Mahesh Kumar
Dhakad on 25-3-2009 at 11:20 P.M. in the night and found the
following injuries on his body :
(i) Contusion 3 x 4 on left side of back of chest
(ii) Contusion 3 x 3 on right side of back of chest
(iii) Contusion 3 x 1 right shoulder joint back part
(iv) Contusion 1 x 2 left arm
The M.L.C. is Ex. P. 27.
82. Durga Prasad (P.W.2) was also examined on the same day and
following injuries were found :
(i) Swelling 2 x 3 left shoulder joint
(ii) Swelling 2 x 2 back of chest
The M.L.C. report is Ex. P.28
83. Narayan (P.W. 5) and Patiram (P.W. 6) were not medically
examined.
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
84. In cross-examination, Dr. R.K.Sharma (P.W.10) has admitted
that in case if a person fall from a bullock cart, then he can sustain
the injuries which were sustained by Mahesh and Durga Prasad.
85. It is also not out of place to mention here that Narayan (P.W.5)
and Patiram (P.W. 6) had also claimed that they too were beaten by
the miscreants, but they did not undergo any medical examination.
Thus, it is clear that they did not receive any injury. Therefore, their
evidence that they too were beaten was not supported by medical
evidence.
86. When this Court has already come to a conclusion that the
prosecution has failed to prove that the witnesses, i.e., Narayan (P.W.
5), Patiram (P.W. 6) and Mahesh Kumar Dhakad (P.W. 7) were
abducted, then it is held that the prosecution has failed to prove that
Durga Prasad (P.W.2) and Mahesh Kumar Dhakad (P.W.7) were
beaten by Vijay. If the miscreants were to beat the abductees, then
there was no reason for them to spare Narayan (P.W. 5) and Patiram
(P.W.6). Thus, it appears that the injuries found on the body of Durga
Prasad (P.W. 2) and Mahesh Kumar Dhakad (P.W.7) were either self
inflicted injuries, or they might have sustained on account of fall
from bullock cart. Thus, the prosecution has failed to prove the guilt
of appellant Vijay for offence under Section 323 of I.P.C.
87. Accordingly, the appellant Vijay is acquitted of charges under
Sections 364-A of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act,
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
under Section 323 of I.P.C. and under Section 25(1-B)(a) of Arms
Act.
Cr.A. No.353 of 2014 State Vs. Ramcharan & Ors.
88. The Trial Court by the impugned Judgment had acquitted the
appellants Ramcharan, Siddhar and Kamarlal for offence under
Sections 364-A of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act
and under Section 323 of I.P.C. and had acquitted Suresh for offence
under Sections 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K. Act, 323 of I.P.C. and under Section 25(1-B)(b) of I.P.C.
89. The dock identification of the aforesaid persons was
disbelieved by the Trial Court on the ground that they were not
identified by the witnesses in T.I.P. Although, Dock Identification is
the Substantive Evidence, but the value of Dock Identification has to
be considered along with surrounding circumstances. This Court,
while considering the appeal of Vijay, has already come to a
conclusion that the prosecution has failed to prove that Narayan (P.W.
5), Patiram (P.W.6) and Mahesh Kumar Dhakad (P.W. 7) were
abducted. The prosecution has also failed to prove that any ransom
amount was paid. The prosecution has also failed to prove that
Durga Prasad (P.W.2), Narayan (P.W. 5), Patiram (P.W.6) and Mahesh
Kumar Dhakad (P.W. 7) were ever beaten.
90. Furthermore, it is well established principle of law that when
two views are possible and the Trial Court has taken the view
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
favoring the accused, then the same should not be disturbed only on
the ground that another view was possible. The Supreme Court in the
case of Abdul Mannan v. State of Assam, reported in (2010) 3 SCC
381 has held as under :
15. It is well settled that in a case where the trial court has
recorded acquittal, the appellate court should be slow in
interfering with the judgment of acquittal. On evaluation of
the evidence, if two views are possible, the appellate court
should not substitute its own view and discard the judgment
of the trial court.
The Supreme Court in the case of Sunil Kumar
Sambhudayal Gupta (Dr.) v. State of Maharashtra, reported in
(2010) 13 SCC 657 has held as under :
38. It is a well-established principle of law, consistently
reiterated and followed by this Court that while dealing
with a judgment of acquittal, an appellate court must
consider the entire evidence on record, so as to arrive at a
finding as to whether the views of the trial court were
perverse or otherwise unsustainable. Even though the
appellate court is entitled to consider, whether in arriving at
a finding of fact, the trial court had placed the burden of
proof incorrectly or failed to take into consideration any
admissible evidence and/or had taken into consideration
evidence brought on record contrary to law; the appellate
court should not ordinarily set aside a judgment of acquittal
in a case where two views are possible, though the view of
the appellate court may be the more probable one. The trial
court which has the benefit of watching the demeanour of
the witnesses is the best judge of the credibility of the
witnesses.
39. Every accused is presumed to be innocent unless his
guilt is proved. The presumption of innocence is a human
right. Subject to the statutory exceptions, the said principle
forms the basis of criminal jurisprudence in India. The
nature of the offence, its seriousness and gravity has to be
taken into consideration. The appellate court should bear in
mind the presumption of innocence of the accused, and
further, that the trial court's acquittal bolsters the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
presumption of his innocence. Interference with the
decision of the trial court in a casual or cavalier manner
where the other view is possible should be avoided, unless
there are good reasons for such interference.
40. In exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to
be perverse, the appellate court can interfere with the order
of acquittal. The findings of fact recorded by a court can be
held to be perverse if the findings have been arrived at by
ignoring or excluding relevant material or by taking into
consideration irrelevant/inadmissible material. A finding
may also be said to be perverse if it is "against the weight
of evidence", or if the finding so outrageously defies logic
as to suffer from the vice of irrationality. (See Balak Ram v.
State of U.P., Shailendra Pratap v. State of U.P., Budh
Singh v. State of U.P., S. Rama Krishna v. S. Rami Reddy,
Arulvelu v. State, Ram Singh v. State of H.P.and Babu v.
State of Kerala.)
91. The Counsel for the State could not point out any perversity
which may require reversal of judgment of acquittal.
92. Accordingly, the acquittal of Ramcharan, Siddhar and
Kamarlal @ Bhindua for offence under Section 364-A of I.P.C. read
with Section 11/13 of M.P.D.V.P.K. Act and under Section 323 of
I.P.C. and acquittal of Suresh for offence under Section 364-A of
I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act , under Section
323 of I.P.C. and under Section 25(1-B)(b) of Arms Act is hereby
affirmed.
93. Ex Consequenti, the judgment and sentence dated 11-1-2010
passed by Special Judge (M.P.D.V.P.K. Act), Shivpuri in Special
Sessions Trial No.60/09 is hereby affirmed so far as it relates to
acquittal of Ramcharan, Siddhar and Kamarlal @ Bhindua for offence
under Sections 364-A of I.P.C. read with Section 11/13 of
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
M.P.D.V.P.K. Act and under Section 323 of I.P.C. as well as also
affirmed so far as it relates to acquittal of Suresh for offence under
Sections under Section 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K. Act, under Section 323 of I.P.C. and under Section
25(1-B)(b) of Arms Act. However, the impugned judgment and
sentence is set aside so far as it relates to conviction of Vijay under
Sections 364-A of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act,
323 of I.P.C. and under Section 25(1-B)(a) of Arms Act. It is also set
aside so far as it relates to conviction of Ramcharan, Siddhar and
Kamarlal @ Bhindua for offence under Section 25(1-B)(a) of Arms
Act.
94. The appellant Vijay is in jail. He be released immediately, if
not required, in any other case.
95. The appellants Ramcharan, Siddhar and Kamarlal @ Bhindua
are on bail. Their bail bonds are discharged. They are no more
required in the present case.
96. The respondent Suresh was already acquitted but had furnished
bail in the State Appeal. Accordingly, his bail bonds are discharged.
He is no more required in the present case.
97. The Cr.A. No.192 of 2010 filed by Ramcharan, Siddhar, Vijay
and Kamarlal @ Bhindua is Allowed in toto, whereas Cr.A.
No.353/2014 filed by State against acquittal is hereby Dismissed.
98. A copy of this judgment be provided immediately to the
Ramcharan & Ors. Vs. State of M.P. (Cr.A. No. 192 of 2010)
State of M.P. Vs. Ramcharan & Ors. (Cr.A. No. 353 of 2014)
appellants, free of cost.
99. The Registry of this Court is directed to immediately send the
record of the Trial Court back along with the copy of this Judgment
for necessary information and compliance.
100. No order as to cost.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.10.21 17:10:13 +05'30'
