Rajendra Mahajan, J. -
(1.) Accused-Appellant Baiju @ Vijay has preferred this appeal from jail challenging the legality and correctness of the impugned judgment and order dated 17/7/2008 passed by the First Additional Sessions Judge Shivpuri in Sessions Trial No. 155/2007, whereby he has been convicted and sentenced under the following Sections of the IPC:- 148- R.I for one year; 364-A r.w. 149- R.I for life with a fine of Rs.5,000/- (Five Thousand) in default thereof to further suffer R.I for three years; 365 r.w. 149- no separate sentence is awarded in view of the sentence awarded under Section 364-A r.w. 149; and 302 r.w. 149 (four counts)- R.I for life with a fine of Rs.5,000/- (Five Thousand) in default thereof to further suffer R.I for three years for each out of the four counts with the directions that the substantive jail sentences awarded in the aforesaid Sections of law shall run concurrently and the period of judicial custody he had undergone shall be adjusted in the substantive cumulative jail sentence as per the provisions of Section 428 of the CrPC.
(2.) The prosecution case as emerged out in the course of trial, in nutshell, is given below:-
(2.1) On 23/7/2001 at about 9:00 pm, informant Madan Lal (PW-3) accompanied by Brijesh Sharma (PW-1) made an oral FIR at Police Station Subhashpura district Shivpuri stating that in the morning of 23/7/2001 Permanand and Keshav (Both were later murdered), Banti (PW-7), Sahansah @ Sarle (PW-8), Vimal (not examined due to his death), Kanwar Lal (PW-2), residents of village Karsena, Narayan and Hazrat (Both were later murdered), residents of village Imaliya, had gone to the forest of village Narsinghpur for grazing their domestic animals. In the afternoon of the same day at about 4:00 pm Banti, Vimal and Sahansah came back to village Karsena and informed him that in the forest a gang of dacoits comprising namely Rambabu, Dayaram, Gopal, Pratap, Baiju @ Vijay, the accused-appellant herein, and one unknown dacoit came in the police uniforms with guns and they captured them and asked their names and whereabouts. Thereafter, they released them by saying to go their villages and to inform the concerned that the gang of Rambabu dacoit has abducted Permanand, Hazrat, Kanwar Lal, Narayan and Keshav and the gang would free them from their custody taking ransom. Abductee Permanand is his brother. Upon the oral FIR, Head Constable Suresh (not examined) recorded F.I.R. Ex.P-4 and registered a case against the aforenamed dacoits at Crime No. 71/2001 for the offence punishable under Section 365 IPC.
(2.2) On 24/7/2001 informant Madan Lal handed over a letter Ex.P/1 to Head Constable Brijmohan Sharma (PW-5) stating that said Banti, Vimal and Sahansah gave it to him, saying that the gang of Rambabu dacoit gave it to them wherein it has been written that the gang has demanded five lakh rupees in ransom. He seized letter Ex.P-1 from the possession of informant Madan Lal vide seizure memo Ex.P-6 in the presence of witnesses Narendra Singh and Lokendra Singh (not examined). He also prepared spot map at the instance of informant Madan Lal vide Ex.P-17.
(2.3) On 12/8/2001, abductee Kanwar Lal (PW-2) had been released by the gang of said dacoits. Thereafter, he reached Police Station Subhashpura, where Assistant Sub-Inspector Narendra Bhargava (PW-12) has made his recovery memo Ex.P-3.
(2.4) On 11/8/2001, at about 6:00 p.m. Vidyaram (not examined) informed the police at Police Station Mohna of Gwalior district that he saw four dead bodies of unknown persons lying nearby a culvert on the Mohna-Karahi road. Thereupon, J.P. Bhatt (PW-14), the SHO of the police station, recorded merg intimation Ex.P29 in each of the four merg cases being Nos. 16/01 to 19/01. Meanwhile, he got a message on wireless-set from Police Station Subhashpura that all the four deceased persons belong to villages Karsena and Imaliya and the police of Police Station Subhashpura with the villagers of Karsena and Imaliya were reaching the place where the dead bodies are lying. J.P. Bhatt with police force reached the place. There, he prepared spot map Ex.P-5 at the instance of Kanwar Lal. In the presence of informant Madan Lal and Mastram Rawat (not examined), he seized blood smeared and plain earth, seven empty cartridges and four scarfs from the place vide Seizure Memo Ex.-P/7. The witnesses present there identified the dead bodies. Thereupon, he held inquest proceedings on the dead bodies of Permanand, Narayan, Hazrat and Keshav being Ex.P-12 to P-15 in the presence of informant Madan Lal and four other witnesses (not examined). Later, he sent their dead bodies for postmortems to J.A Hospital Gwalior, where Dr. Surendra Singh Jadon (PW-11) performed autopsies on their dead bodies. He opined that Narayan, Hazarat, Keshav and Permanand suffered homicidal deaths due to gunshot injuries on vital parts of their bodies. He gave their postmortem reports Ex.P-22 to Ex.P-25 respectively.
(2.5) After merg inquiries, J.P. Bhatt lodged FIR Ex.P-35 at Police Station Mohna at Crime No. 0/2001 against dacoits/accused namely Dayaram, Rambabu, Pratap, Gopal, Baiju @ Vijay' the accused-appellant herein, and brother-in-law of dacoit Rambabu. Later, he sent the FIR with other papers relating to the case to Police Station Subhashpura for their incorporation in the case registered at Crime No. 71/2001.
(2.6) H.C. Brijmohan Sharma (PW-5) and S.I. Som Raghuvanshi (PW-10) had investigated the case. Brijmohan Sharma recorded the case-diary statements of informant Madan Lal, Banti, Vimal and Sahansah. Som Raghuvanshi recorded the case diary statements of Kaptan Singh, Meharban Singh, Takhat Singh and Brijesh Sharma.
(2.7) Police Subhashpura sent all the articles collected during the investigation of the case for forensic examinations to FSL Gwalior vide Ex.P-36. As per the record, during the trial of the case the prosecution had not produced the FSL report.
(2.8) On 1/1/2002, Police Subhashpura filed the charge-sheet against the six accused/ dacoits-namely Dayaram, Rambabu, Gopal, Pratap, Vijay S/o Nadariya and Baiju @ Vijay, the accused-appellant herein, under Sections 364, 365, 302, 147, 148 and 149 IPC and 25 and 27 of the Arms Act in the Court of CJM Shivpuri, declaring them absconding. Thereupon, Criminal Case No. 16/2002 came to be registered. On 22/1/2002, learned CJM issued permanent arrest warrants against them and consigned the case to the record room with the direction that it be kept safe.
(2.9) On 25/5/2007, Police Subhashpura filed an application stating that accused Baiju has been detained in Central Jail Gwalior in another criminal case, therefore, the police be permitted to arrest him in the present case. Thereupon, the learned CJM granted permission for his formal arrest in the present case.
(2.10) On 21/7/2007, Police Subhashpura filed an application seeking permission for further investigation under the provisions of Section 173 (8) CrPC against accused Baiju on the ground that the investigation of the case was done when he had been in abscondance. The learned CJM granted permission. Thereafter, On 2/8/2007, Police Subhashpura filed additional charge-sheet against accused Baiju for being prosecuted for the aforestated offences stating that the remaining abovenamed five accused persons had been died.
(2.11) On 17/8/2007, the learned CJM passed the committal order under Section 209 CrPC in respect of accused Baiju. Thereafter, Sessions Case No. 155/2007 came to be registered, which was made over by the Sessions Judge Shivpuri for trial to the First Additional Sessions Judge Shivpuri.
(3.) On 29/8/2007, the learned ASJ framed the charges against accused Baiju for the offences punishable under Sections 148, 364-A r.w. 149 in alternative 365 r.w. 149 and 302 read with 149 (four counts) IPC. Accused Baiju pleaded not guilty to the charges and claimed for trial. Thereafter, he was put on trial. In the examination under Section 313 CrPC, accused Baiju had denied all the incriminating evidence and circumstances appearing against him in the prosecution evidence. His defence was, simpliciter, false implication. He did not adduce any oral or documentary evidence in support of his defence.;