Narendra vs State of M.P.

Fakhruddin, J.—This judgment shall govern the disposal of Cr. Appeal No. 19 of 1985 also.

Both the appeals (Cr. Appeal No. 18/1985 and Cr. Appeal No. 19/1985) have been filed against the same judgment and order passed by Shri G.K. Belapurkar, Special Judge, Bhind convicting the Appellants under Sections 365 and 347 of IPC read with Section 11 and 13 of M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 and sentencing them to 7 year''s R.I. each u/s 365 of IPC in Special Case No. 20/83.

In criminal appeal No. 18/85 Appellant No. 1 Shobha alias Shobhaiya has died in the year 1988 and therefore the appeal against him stood abated, vide Court order dated 22.2.1990. The appeal survives only against Narendra, Appellant No. 2.

The prosecution story briefly stated is that in the intervening night of 12th and 13th of October, 1982, Ram Ganesh (P.W.I), who was sleeping in front of his house was abducted. It is alleged that four miscreants came there and asked Ram Ganesh (P.W. 1) to accompany them to his shop. Thereafter, he was taken near Sind river, and further he was taken to the field of Singpura and then towards the canal of Bidhanpura. It is further alleged that when they were going to village Paraye-ka-Pura he was rescued by the villagers. The villagers caught them and also handed over to the police.

After usual investigation, the police submitted the charge-sheet against 8 persons. They were tried by the Special Judge.

The defence of the Appellants is that they have not committed any offence and have been falsely implicated.

The prosecution examined Ram Ganesh (P.W. 1) Nathuram (P.W. 2), Shiv Ratan Sharma (P.W. 3), Jabar Singh (P.W. 4), J.S. Narwaria (P.W. 5), Ram Sewak (P.W. 6), G.D. Sharma (P.W. 7), Pan Singh (P.W. 8), Bhagwan Singh (P.W. 9) and Raghuvir (P.W. 10).

Learned Counsel for the parties contended that it is admitted by the abductee that he did not know the miscreants prior to his abduction. He further contended that there is no test-identification parade of the accused persons during tho course of investigation by the police. He placed reliance on Kanan and Others Vs. State of Kerala, , V.C. Shukla and Others Vs. State (Delhi Administration), , Mohanlal Gangaram Gehani Vs. State of Maharashtra, , State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, and AIR 1954 VP 6 (Sahdeo Shyam and Anr. v. State of Vindhya Pradesh). But I find that these cases are not applicable to the facts of the present case as in the present case, the accused-persons have been apprehended at the spot and handed over to the police, therefore, test-identification is not necessary.

The evidence of P.W. 1 Ram Ganesh is that in the intervening night of 12th & 13th of October, 1982 he was abducted from his house. He further stated that four miscreants came there armed with firearms. He was awakened. They asked him to accompany them to his shop. He thought them to be the police men. Then they took him towards Sindh river. They all were in brown dresses. They took him to the fields of Singpura and stayed in Bajara fields. He stated that one person was more who was showing them the way. Then they had taken him near the canal of Birdhanpura and stayed in the fields for 3-4 days. While they were going from Birdhanpura to village Paraya-Ka-Pura in the bank of Besali river in the fields of Paraya-Ka-Pura, there was an encounter of these miscreants with the villagers and he was rescued. He further stated in his statement that they were not taking their names but calling "Bhaisa Va Munna". He stated that he had seen their faces clearly during these days. He admitted in his statement that the villagers in the encounter had caught 4 persons namely Makundi, Naresh alias Narendra, Shobharam and Ramdayal, whose names he came to know after they were caught by the villagers. The villagers then handed them over to the police. The evidence of Ram Ganesh (P.W. 1) is fully corroborated by P.W. 8 Pansingh and P.W. 9 Bhagwansingh.

Learned Counsel relying on Pritam Singh and Another Vs. The State of Punjab, contended that the maxim '' res judicata pro veritate accipitur'' is no less applicable to criminal trials than to civil proceedings. Therefore, the maxim ''res judicata'' is applicable to the present case. But I find that Pritam Singh''s case (supra) is not attracted to the present case as it is distinguishable on facts.

Having considered the facts and circumstances the evidence on record and the contentions raised before me, I find no force in this appeal and the same is dismissed. The judgment and order passed by the Special Judge, Bhind on 29.11.1984 convicting the Appellant u/s 365, 347 read with Section 11/13 of M.P. Dacoity Act and sentencing him to R.I. for 7 years u/s 365 IPC is confirmed. The bail bonds and surety bond of the Appellant is cancelled. He shall surrender himself before the Chief Judicial Magistrate, Bhind on or before 19th July, 1995 to serve out the remaining part of sentence.