Madhya Pradesh High Court
Lala Prasad Charmakar @ Sul Khan vs The State Of Madhya Pradesh on 13 December, 2022
Author: Sujoy Paul
1
Criminal Appeal No. 1050/2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 15th OF DECEMBER, 2022
CRIMINAL APPEAL NO. 1050 OF 2011.
BETWEEN :-
LALA PRASAD CHARMAKAR @
SUL KHAN S/O BHAGGU
CHAMAR, AGED ABOUT 24
YEARS, VILL. MACHHARIHA P.S.
KARVI DISTT. CHITRAKOOT, U.P.
....APPELLANT
(BY SHRI M.P. RAJAK - ADVOCATE)
AND
THE STATE OF MADHYA
PRADESH TH. P.S. NAYAGAON
DISTT. SATNA (MADHYA
PRADESH)
....RESPONDENT
(BY SHRI S.K. KASHYAP- GOVERNMENT ADVOCATE)
-----------------------------------------------------------------------------------------
This appeal coming on for hearing this day, JUSTICE SUJOY PAUL
passed the following:
2
Criminal Appeal No. 1050/2011
JUDGMENT
This criminal appeal filed under Section 374 (2) of the Criminal
Procedure Code, 1973 assails the judgment dated 17.02.2011 passed in
Special Session Case No. 75/2009 decided by the Special Judge, Satna
whereby the appellant was convicted for committing offence under Section
364 of IPC read with Section 11 of M.P. Dacoity Avam Vyapharan
Prabhavit Kshetra Adhiniaym 1981 (Adhiniyam) and directed to undergo
sentence of 10 years for committing the offence under Section 364 of IPC.
In addition, appellant was directed to pay fine of Rs. 10,000/- with default
stipulation.
2. In nutshell, the story of prosecution is that Vimal Kumar Prajapati,
aged about 10 years was found missing on 26.09.2008. His father Sangamlal
Prajapati (PW/2) lodged a gum insan report. FIR was registered on
29.09.2008. The 'site map' was prepared and cycle on which Vimal Kumar
Prajapati was travelling was recovered near a bush. Vimal Kumar Prajapati
came back to his house on 05.10.2008. As per the prosecution story, he
informed that two persons including the present appellant abducted him.
After investigation challan was filed and in due course matter travelled to
the Special Court. Before the Special Court appellant abjured his guilt and
pleaded innocence. A full fledged trial was conducted. The Court framed
four questions for its determination. After recording evidence and hearing
the parties impugned judgment was passed. Appellant alone was held guilty
for committing offence under Section 364 of IPC and Section 11 of the said
Adhiniyam. Aggrieved, this appeal is filed assailing the findings given by
the Court below.
Criminal Appeal No. 1050/2011
3. Shri Rajak, leaned counsel for appellant placed heavy reliance on the
statement of Vimal Kumar Prajapati (PW/6), it is submitted that as per this
statement, two persons came on a motor cycle and forcibly taken him at
around 6:00-6:30 p.m. They abducted the appellant in order to extract
money. By taking this Court to his entire statement, learned counsel for the
appellant submits that appellant was shown to this witness in police station
which fact is specifically admitted by the witnesses in para 9 of the cross
examination. Thus identification of present appellant is highly doubtful.
Apart form this, the entire statement nowhere shows that any threat of death
or murder was given to Vimal Kumar Prajapati by the present appellant.
Thus, Court below has committed an error in convicting him under Section
364 of IPC.
4. The next reliance is on the statement of Sangamlal Prajapati (PW/2),
father of Vimal Kumar Prajapati (PW/6). The entire statement of this
witness was read out to show that there is no iota of deposition regarding
demand of any ransom or any threat of causing death or murder of Vimal
Kumar Prajapati. In absence thereof, section 364 cannot be pressed into
service. At best, an offence under Section 365 of IPC is made out for which
maximum sentence prescribed is 7 years. The appellant is in custody since
23.12.2008 and will complete 14 year's actual custody in the next week.
5. Considering the aforesaid the conviction may be converted from
Section 364 of IPC to Section 365 of IPC and he may be directed to have
undergone said sentence and according he be released forthwith.
6. Per contra, Shri S.K. Kashyap, learned Government Advocate for the
State supported the impugned judgment. He also placed reliance on the
statement of Vimal (PW-6) and Sangamlal (PW-2). On a specific query from
Criminal Appeal No. 1050/2011
the bench, Shri Kashyap fairly submitted that a minute reading of both the
statements aforesaid makes it clear that there is no deposition that appellant
either demanded ransom or threatened Vimal in any manner to kill him.
7. The parties confined their arguments to the above extent.
8. We have heard the parties & perused the record.
9. The conviction of appellant is basically founded upon the statement
of Vimal (PW-6) and his father Sangamlal (PW-2). It will be profitable to
compare Section 364 and Section 365 of IPC. The same are reproduced in a
tabular form :-
Section 364 of IPC :- Section 365 of IPC :-
364. Kidnapping or abducting in order to
murder.--Whoever kidnaps or abducts any 365. Kidnapping or abducting with
person in order that such person may be intent secretly and wrongfully to
murdered or may be so disposed of as to be confine person.--Whoever kidnaps or
put in danger of being murdered, shall be abducts any person with intent to
punished with 1[imprisonment for life] or cause that person to be secretly and
rigorous imprisonment for a term which may wrongfully confined, shall be punished
extend to ten years, and shall also be liable to with imprisonment of either
fine. description for a term which may
extend to seven years, and shall also
be liable to fine.
(Emphasis supplied)
10. A plain reading of Section 364 of IPC makes it clear that it relates to a
case of kidnapping or abduction in order to murder someone. As notices
above, neither the statement of Vimal nor that of Sangamlal throws any light
that the appellant had threatened Vimal or kidnapped him in order to murder
him. In absence of any threat being given relating to murder, the offence
under Section 364 of IPC is not made out. We find substance in the
argument of Shri Rajak that necessary ingredients to attracting Section 365
Criminal Appeal No. 1050/2011
of IPC are indeed available. Shri Kashyap did not dispute the aforesaid
contention of Shri Rajak, during the course of argument.
11. A bare perusal of Section 365 of IPC makes it clear that it deals with
kidnapping or abducting or wrongfully confining a person simplicitor and
for that offence, he can be punished with imprisonment of either description
for a term which may extend to seven years.
12. In the facts and circumstances of this case, in our opinion the court
below has committed any error in convicting the appellant under Section
364 of IPC. Accordingly, we deem it proper to modify the conviction from
Section 364 of IPC to Section 365 of IPC. Importantly, the court below has
imposed sentence only under Section 364 of IPC and directed the appellant
to undergo sentence of ten years. Since, said sentence stands modified, the
appellant shall be required to undergo maximum sentence of seven years,
which he has already undergone till date. Thus, the impugned judgment is
interfered with to the extent indicated above and conviction and sentence is
modified as mentioned hereinabove. If the appellant has already undergone
sentence of seven years under Section 365 of IPC and if his presence in the
prison is not required for any other offence, he shall be treated to have
undergone the sentence and shall be released forthwith.
13. The appeal is partly allowed to the extent indicated above.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
MISHRA
ARVIND KUMAR MISHRA
2022.12.16 17:01:13 +05'30'
