SINGH, J. - (1.) CHALLENGE in this appeal is to the judgment dated 17-9-2001 of the learned Sessions Judge, Karauli, whereby appellants- Shripat and Makhan Lal were convicted and sentenced as under: u/s. 364-A IPC, to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer three months rigorous imprisonment.
(2.) AS per prosecution story, FIR was registered on the basis of Parcha Bayan of Mulya S/o Shri Khasa Jatav, aged 70 years, R/o Mogepura, P. S. Mandrayal, on 19-12-1999 at about 8. 30 PM. In the report, informant Mulya stated that about 12 days prior to Deepawali he had gone to his hut set up by him in the "dang" (ravines) of Tushmaee where he used to keep his cows. At some distance, other villagers had also set up their huts. On the night of the occurrence, while he was sleeping in his hut, he was asked to get up and he saw six persons standing near his cot. Amongst them Shripat, Ramraj, Rajkamal and Makhan were from his village and they were armed with `lathies' and `gandasies'. The other two were dacoits Ram Babu Mallah and Diwan Singh Mallah who were armed with guns and whose names he came to know later on. All of them took him towards Ghatiya. He pleaded them to set him free. The first four persons named above who belonged to his village asked the other two armed dacoits to shoot the informant. Then all of them took him upto water pond of ayagaon and then the aforesaid four persons from his village handed over him to the dacoits and they returned back to the village. From there he was taken by Rambabu Mallah and Diwan Singh Mallah (both dacoits) in the forest of Madhya Pradesh. On out break of the day, he was blind folded and hands were tied. They used to keep him tied as aforesaid in the day and in the night they used to take him along with them. During this period, he came to know about the names of the aforesaid two dacoits, Ram Babu Mallah and Diwan Singh Mallah. These two dacoits also told him that they had informed his all the four sons to bring money as ransom but they were not turning up. On 19-12-1999 in the morning when he was taken from one place to other place in the Jungle, two dacoits saw the police coming towards them, therefore they tried to take him with them but the police approached them so they had to leave him behind and run in the Jungle. The police party rescued him and took him Police Station Sar-Mathura from where he came to Police Station Mandrayal with the police where the aforesaid report was lodged. Informant Mulya also reported that due to enmity with the aforesaid named four persons from his village, he was abducted as aforesaid. On this report, case u/s. 365 r/w 120-B IPC and section 11 of the Rajasthan Dacoity Affected Areas Act, 1986 was registered at police station Mandrayal on 19-12-1999 at 8. 30 PM. After investigation, police filed chargesheet against the appellants along with accused Gulab S/o Naktu Kohali R/o Ranipura, PS Mandrayal and Chhinga S/o Shri Jagannath Mallah R/o Todi, PS Mandrayal in the court for the offence under Section 365/120b IPC and 11 of the Rajasthan Dacoity Affected Areas Act, 1986 while the police filed challan against accused Ram Babu and Diwan Singh u/s. 299 Cr. P. C. as they were absconding. On the case being committed, the learned District & Sessions Judge, Karauli chargesheeted accused appellants Shripat and Gulab along with Makhan Lal and Chhinga for the offences under Sections 364-A and 120b IPC. They pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. No witness in support of their defence was however examined. The learned District & Sessions Judge, Karauli on hearing final submissions convicted and sentenced the appellants as indicated above while accused Gulab and Chhinga were acquitted. Learned counsel for the appellants and learned PP advanced their respective submissions and took us through the material on record. Learned counsel for the appellants has argued that from the evidence adduced by the prosecution, the offence under Section 364-A IPC has not been proved beyond doubt and that the case of the appellants is not different than two accused Gulab and Chhinga who were acquitted by the trial Court. On reappraisal of the evidence produced by the prosecution especially in view of the submissions advanced before us, it is revealed that Mulya (PW. 4) is the person who is allegedly abducted on the fateful night of the incident while he was sleeping at his hut in the Jungle of Tushmaee, six persons came near his cot and he was awakened and he could identify the four persons namely Shripat, Makhan, Ramraj and Rajkamal who were from his village and two others namely Ram Babu and Diwan Singh were armed with guns and then he (Mulya) was forcibly taken from there in the Jungle of village Golari and there he was blind folded. There the two appellants along with two others from his village asked the two dacoits to shoot him but he pleaded them not to do so and he be taken back to the village but he was handed over to the two dacoits who used to keep him blind folded in the day and in the night he had to move with them. He was held hostage by the dacoits about a month and was taken from one place to other place. The aforesaid four persons from his village which included the two appellants had enmity with him and after he was abducted, the dacoits demanded ransom from his sons. This witness has also deposed that he was rescued by the police and was taken to the police station where he lodged the report. The testimony of Mulya (PW. 4) has also been corroborated by Shambhu Singh (PW. 1), Haridas (PW. 2), the members of ADF (Anti Dacoity Force) party, who were on petrolling duty and rescued Mulya. Ramji Lal (PW 5) who is son of Mulya has also deposed that his father was abducted at the instance of four persons namely Shripat, Makhan, Rajkamal and Ramraj of his village. In the cross examination he has also disclosed that a report was lodged by him at police station that his father was abducted by miscreants. Bhabhuti (PW 7), the other son of Mulya has also corroborated the testimony of Mulya (PW. 4) and Ramji Lal (PW. 5 ). He has stated that a letter was handed over to him by Haret (PW. 6), his maternal uncle and informed him that the said letter was found lying in his courtyard. On the letter being read over by a student and it was found to contain a call for demand of ransom for releasing his father Mulya by the decoits, the letter was then handed over to the police. The fact of recovery of letter has been corroborated by the Investigating Officer, Ram Chandra Meena (PW. 12 ). According to him these two letters marked as Ex. P. 22 and 23 were allegedly sent by decoit Ram Babu Mallah for demand of ransom in lieu of release of Mulya (PW. 4 ). Ram Chandra Meena (PW. 12) has also corroborated the fact that on the Parcha Bayan of Mulya, the case was registered and that Mulya (PW. 4) as he was rescued by ADF party and recovery memo to that effect marked as Ex. P. 1 was prepared by the ADF party on petrolling duty.
(3.) FROM the aforesaid evidence, it is clear that the trial Court has acquitted accused Gulab and Chhinga on the ground that in the Parcha Bayan or in his statement before the court, the informant Mulya the person abducted and held hostage had named Shripat, Makhan, Ramraj and Rajkamal along with two dacoits who forcibly abducted him and he did not name or in any way implicated accused Gulab and Chhinga. Therefore, we find that the case of the present appellants Shripat and Makhan Lal stands on different footing. From the aforesaid evidence adduced by the prosecution, especially in view of the testimony of Mulya, it is proved beyond doubt that the appellants were the persons who actively participated in abduction of Mulya (PW. 4) and handed him over to the two dacotis, so that he could be secretly and wrongfully confined. However, from the evidence on record, it has not been established that they were in any way connected with the demand of ransom allegedly made by the two dacotis who held the informant Mulya as hostage and therefore, we find that in place of the offence u/s. 364a IPC, the offence u/s. 365 IPC against accused appellants stands proved beyond doubt. For these reasons, we partly allow the appeal and instead of Section 364a we convict the appellants Shripat and Makhan Lal under Section 364 IPC and sentence them to suffer rigorous imprisonment for seven years and fine of Rs. 5]000/-, in default to further suffer one year rigorous imprisonment. ;