Criminal Appeal No. 155 of 2017 · The High Court
Case Details
2024:BHC-AUG:3565-DB Criminal Appeal No.155/2017 with171/2017:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.155 OF 2017Ganesh Alias Baban s/o Navnath Lashkare, Age 22 years, Occu. Nil, R/o Village Sonai, Taluka Newasa,District Ahmednagar (At present the appellant is in Yerwada Central Prison, Yerwada,Taluka and District Pune.… APPELLANTVERSUS1)The State of Maharashtrathrough the Sonai Police Station,Taluka Newasa,District Ahmednagar2)Rajendra Takhatmal Gugale,Age major, Occ. Business,R/o Sonai, Taluka Newasa,District Ahmednagar… RESPONDENTS.......Mr. S.D. Kotkar, Advocate for appellant Mrs. U.S. Bhosle, A.P.P. for respondent – State Mr. D.R. Markad, Advocate for respondent No.2.....…WITHCRIMINAL APPEAL NO.171 OF 2017Ganesh Dattatraya WadguleAge 25 years, Occ.R/o Sonai, Tal. NewasaDistrict Ahmednagar(At present appellant is in Yerwada Central Prison, Yerwada,Taluka and District Pune … APPELLANT
Facts
Criminal Appeal No.155/2017 with171/2017:: 2 ::VERSUS1.The State of Maharashtrathrough Police Station Officer,Police Station, Sonai, Tal. Newasa, Dist. Ahmednagar.(Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad)2.Rajendra s/o Takhatmal Gugale,Age 43 years, Occ. Business,R/o Sonai, Tal. Newasa,District Ahmednagar … RESPONDENTS.......Mr. Aniket Wagal, Advocate and Mr. Rajesh Mewara, Advocate for appellant Mrs. U.S. Bhosle, A.P.P. for respondent – State Mr. D.R. Markad, Advocate for respondent No.2.....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 2nd February, 2024Date of pronouncing judgment : 16th February, 2024JUDGMENT (PER R.G. AVACHAT, J.)The challenge in both these appeals is to an order ofconviction and sentence dated 8/3/2017, passed by learned DistrictJudge-1 & Additional Sessions Judge, Newasa, DistrictAhmednagar in Sessions Case, No.36/2016. Vide impugnedjudgment and order, the appellants were convicted for the offencespunishable under Sections 364-A, 363 and 386 read with Section34 of the Indian Penal Code and under Section 120-B read with Criminal Appeal No.155/2017 with171/2017:: 3 ::Section 386 and 364-A of the Indian Penal Code, and thereforesentenced to suffer different terms of imprisonment, details whereofare given hereinbelow in tabular form:SectionImprisonment Fine 364-A r/w 34 IPCImprisonment for life Rs.50,000/- each, indefault S.I. for 1 year363 r/w 34 IPCNo separate sentence is passed386 r/w 34 IPCR.I. for 5 years 10,000/- each, in default S.I. for 3 months120-B r/w 386 and 364-A IPCR.I. for 5 years 10,000/- each, in default S.I. for 3 monthsAll the substantive sentences have been directed to run concurrently. For the sake of convenience, the appellants in CriminalAppeal Nos.155/2017 and 171/2017 are hereinafter referred to asA/1 and A/2 respectively.2. Facts necessary to decide the present appeals are asfollows : P.W.2 Rajendra (informant) was a resident of villageSonai, Taluka Newasa, District Ahmednagar. He was in thebusiness of real estate. He was also elected Member of PanchayatSamiti, Taluka Newasa. One Sunil Gadakh was a Member ofLegislative Assembly (MLA) from Newasa Constituency. Both, heand the informant were the members of Nationalist Congress Party Criminal Appeal No.155/2017 with171/2017:: 4 ::(NCP). Both of them were close friends. 3.It was 24/2/2016, the informant was in the office ofSunil. It was about 7.45 p.m., the informant received a phone callof his wife, informing their minor son (P.W.3 “Y”) to have beenkidnapped by motorcycle borne two persons. The informanthurriedly left the office of Sunil. He (informant) received a call onhis cell phone by 8.15 p.m. The caller was his kidnapped son. Hetold the informant to pay money to his kidnappers and asked not toreport the matter to the police. During the said call, one unknownperson talked to the informant in Hindi. He gave the informantthreats of eliminating his son if the informant approached policeauthorities. The informant thereupon asked him as to how muchamount he wanted for the release of his son. The caller told theinformant that he would call him after a while. The informant againreceived a call of the very person after some time. He made ademand of Rs.5 Crores. The informant expressed his inability topay. He assured him to pay Rs.25 – 30 Lakhs. The kidnapperscaled down the demand to Rs.1 Crore and then discontinued thecall. The informant thereafter made frantic efforts to call back onthe very number. The phone was found to have been switched off.4.The informant talked to his friends and relations. P.W.1Tanaji was one of them. All of them suspected involvement of A/2.P.W.1 Tanaji therefore approached him. A/2 told him that he couldtrace out the child, provided he shall be paid a sum of Rs.2 Crores. Criminal Appeal No.155/2017 with171/2017:: 5 ::He also proposed to pay P.W.1 Tanaji a sum of Rs.10 Lakhs. Witha view to verify the child to have been in his custody, P.W.1 Tanajiasked him to allow him to talk to the child. A/2, therefore, made aphone call to someone and asked the other side to allow the childto talk to his father. P.W.1 spoke with the child. He realised thechild to have been in the custody of the kidnapper. Thereupon theinformant could collect Rs.46 Lakhs. A/2 had asked them toaccompany him to Pune. P.W.1 Tanaji, Uday and others, therefore,engaged one vehicle and they went to Pune along with A/2. A/2took them to Pune Railway Station. It was about 6.00 in themorning of the following day. Officials of Local Crime Branch(LCB), Ahmednagar had followed them. Both, A/2 and P.W.1(Approver) were taken into custody. In the meanwhile, police officerSachin Sanap (P.W.11) could locate A/1 and the kidnapped childtogether in a hut on agricultural land in the nearby of village Sonai.It was little past 5.00 in the morning. He took them into custody andbrought to the police station. The informant lodged the FirstInformation Report (F.I.R.) by 2.30 p.m. Thereafter, the scene ofoffence panchanama (Exh.28) was drawn. Statement of thekidnapped child was recorded in the evening. The informant hadrecorded the phone calls of the kidnapper in his cell phone. Heobtained the same in a pen drive and delivered it to the policeofficers under panchanama. Call Data Records (CDRs) wereobtained from the concerned service provider. It was found that the Criminal Appeal No.155/2017 with171/2017:: 6 ::child was kidnapped in furtherance of a conspiracy/ commonintention of both A/1 and A/2. P.W.1 Tanaji joined them mid-way.Upon completion of investigation, all the three, therefore, came tobe proceeded against by filing the charge sheet before the Court oflearned Judicial Magistrate, First Class, Newasa. 5.The learned Judicial Magistrate, First Class, Newasacommitted the case to the Court of Additional Sessions Judge,Newasa (Trial Court). P.W.1 (original accused No.3) was grantedpardon in terms of Section 307 of the Code of Criminal Procedure.Charge (Exh.8) was thereafter framed against both A/1 and A/2.They pleaded not guilty. Their defence was of false implication.According to A/1, he was in employment with the informant forabout a year. Next before the incident in question. He wasrequired to work over time. Informant had promised to pay himextra remuneration. According to him, the informant has a farmhouse. He would entertain his friends and police officials at thefarm house. He would serve them liquor. He was required to stayovernight at the farm house. He left the job since he was not paidadequate remuneration.6. According to A/2 he owned agricultural land. Theinformant wanted to buy the same. He refused to sell the land.Moreover, he had canvassed for a rival candidate of the informantin Panchayat Samiti elections. As such, it is a defence of both A/1 Criminal Appeal No.155/2017 with171/2017:: 7 ::and A/2 to have been falsely implicated.7.The prosecution examined 16 witnesses and producedin evidence number of documents. The Trial Court, on appreciationof evidence in the case, convicted both the appellants andconsequently sentenced to various terms of imprisonment. Theappellants were acquitted of the offences punishable under Section3 r/w 25 of the Arms Act and Section 37 r/w 135 of the BombayPolice Act. The State did not prefer appeal against their acquittal. P.W.1 Tanaji (Approver) was discharged since hecomplied with the terms of pardon.8. Heard. Learned counsel representing the appellantstook us through the evidence on record. According to them, offencepunishable under section 364-A is serious one. The minimumpunishment for the said offence is life imprisonment. Theprosecution is under obligation to establish the guilt beyondreasonable doubt. According to them, the informant was a man ofpower and pelf. The F.I.R. was lodged little past 8 hours of the childto have been rescued. Most of the witnesses examined by theprosecution were friends of the informant. In spite of the appellantsto have been taken into custody in the early morning, they areshown to have been arrested little past 6.00 p.m. i.e. after 12 hours.No panchanama of the happenings or rescue operation was drawnthen and there. There was a residential house of a lady who owned Criminal Appeal No.155/2017 with171/2017:: 8 ::the land on which the hut stood. None of her family members havebeen examined. CDRs have not been duly proved. Report ofVoice Expert has not been tendered in evidence. The cash amountthat was collected for being paid to the kidnapper, was not seized.It was allowed to be returned to the informant. The investigationwas tainted. The line of investigation appears to have beensuitable to the desire of the informant and his mentor. The sameruns counter to the criminal jurisprudence. The Trial Court simplyrelied on the oral evidence of the witnesses and handed downimprisonment for life with additional terms of imprisonments forother offences. According to learned counsel representing A/2, theA/2 tried to take advantage of the situation. He was not a privy tothe offence. When the child was at the village itself, he would nothave taken P.W.1 and others to Pune. The amount of ransom didnot change hands. The child was not ill-treated. No crime had everbeen registered against A/2 before the one in question. There was,therefore, no question of suspecting his involvement in the crime.In short, according to the learned counsel, the prosecution evidencefell short to bring home the charge beyond reasonable doubt. They,therefore, urged for allowing of the appeals.9. Learned counsel for respondent No.2 – informant andlearned A.P.P. for the respondent No.1 – State would, on the otherhand, submit that, the child was found in the custody of A/1 whilethe A/2 was arrested in Pune. P.W.1 Tanaji, P.W.2 Rajendra, P.W.3, Criminal Appeal No.155/2017 with171/2017:: 9 ::P.W.4 Jalindar and P.W.5 Dinesh are the witnesses of truth. TheTrial Court has rightly relied on their evidence. Learned counselreiterated the reasons given by the Trial Court in support of theimpugned order. They, therefore, urged for dismissal of theappeals.10. Considered the submissions advanced. Perused theevidence relied on. Let us appreciate the same. Section 364-A ofthe Indian Penal Code reads thus :“Whoever kidnaps or abducts any person or keepsa person in detention after such kidnapping orabduction, and threatens to cause death or hurt tosuch person, or by his conduct gives rise to areasonable apprehension that such person may beput to death or hurt, or causes hurt or death to suchperson in order to compel the Government or anyforeign State or international inter-governmentalorganisation or any other person to do or abstainfrom doing any act or to pay a ransom, shall bepunishable with death, or imprisonment for life,and shall also be liable to fine.”11. A Division Bench of this Court in case of PhilipsFedrick D’souza & Anr. Vs.State of Maharashtra & Anr. [2009CRI.L.J. 89], observed :-“ . . . . . . in Suman Sood vs. State of Rajasthan (2007)5 SCC 634 : AIR 2007 SC 2774. The Supreme Courtheld that kidnapping for ransom is an offence ofunlawfully seizing a person and then confining theperson, usually in a secret place, while attempting toextort ransom. Ransom is a sum of money to be Criminal Appeal No.155/2017 with171/2017:: 10 ::demanded to be paid for releasing a captive, prisoner ordetenu. These principles have been reiterated in Vinodvs. State of Haryana (2008) 2 SCC 246 : AIR 2008 SC1142.18.The offence under Section 364A is not made outonly upon the commission of the unlawful act ofkidnapping or abduction. The essential ingredients ofthe statutory provision, apart from the act ofkidnapping, abduction or, as the case may be, keeping aperson in detention thereafter, are a threat to cause hurtor a reasonable apprehension of such a consequence orcausing death or hurt, in order to compel the payment ofransom or the doing or abstention from doing any act bythe government, a foreign state, an intergovernmentalbody or by any person. The purpose of the unlawful actis to demand ransom or to compel the doing orabstention from doing of a particular act. Kidnapping orthe abduction by itself does not lead to an inference ofthe underlying purpose with which it was carried out.The purpose must exist at the time when the act ofkidnapping or abduction takes place. Whether such apurpose existed at that time will have to be deducedfrom all the attendant circumstances. Events which takeplace prior to, at the time of and subsequent to thecommission of the offence would weigh in the balance.In interpreting Section 364A the Court must becognizant of the fact that the provision was introducedin order to deal with the serious menace posed byterrorism to the stability of civil society. Hence, whilethe underlying purpose, which is an ingredient ofSection 364A, must demonstrably be found to exist asthe foundation of the unlawful act, the Court would notbe justified in abridging the parameters of the statutoryprovision with reference to requirements which havenot been imposed by Parliament. Situations involvingkidnapping or abduction for ransom are fluid. Demandswhich are raised by abductors may in the very nature ofthings evolve as the situation progresses. The law doesnot prescribe that the nature of the demand for ransombe precisely spelt out when the kidnapping or abductionis carried out. So long as the unlawful act of kidnapping Criminal Appeal No.155/2017 with171/2017:: 11 ::or abduction is carried out for the purpose of making ademand for ransom, the requirement of the sectionwould be met. Moreover, as the Supreme Court noted, itmay well happen that after the demand is made knownto the victim, but before it is communicated to a thirdperson, the accused may be arrested. That again wouldnot detract from the circumstance that when act ofkidnapping or abduction was carried out with the objectand purpose of demanding ransom. A statutoryprovision like Section 364A must undoubtedly, likepenal legislation, be construed strictly. But whileconstruing a provision such as Section 364A the Courtmust be careful not to interpret it in a manner whichwould denude it of its legislative efficacy. More sowhen the stated object of Parliament was to deal with anaggravated form of an offence, the effect of which is toseriously undermine the stability of civil society.”EVIDENCE IN THE CASE :-12. P.W.3 (victim), 10 year old son of the informant testifiedthat, he was in 4th Standard. He was playing in the lane along withhis friends. He did not recollect the exact time. Darkness haddescended. A motorcycle arrived. There were two persons on themotorcycle. They lifted him and made him sit between them. Theperson riding the motorcycle was sporting a helmet. The pillionrider had covered his face with a scarf. They took him to anagricultural field on Kharwandi Road. They asked him to make aphone call to his father (informant) and tell him to give them thedemanded money. They also asked him to tell the informant not toapproach police. According to him, the motorcycle rider had askedhim to make such a call. P.W.3 thereupon made a call to his father Criminal Appeal No.155/2017 with171/2017:: 12 ::on Cell Phone Number 9822711000. It is further in his evidencethat, he told his father (informant), “Yane Jitta Paisa Lage utta DeNak an Police Ne Phone Nako Karu”. Thereafter the helmetsporting person took the cell phone from him and talked to theinformant. It is further in his evidence, both of them asked himwhether He wanted to eat something. He said, “No”. It is further inhis evidence that, the person sporting helmet removed the sameand gave it to his companion, who in turn, worn it. That personthen left to bring fruits. It is further in his evidence, the one whoremained behind took him to a sugarcane field and asked to sleepthere. Then he took him to a hut in the nearby. There was a lampglowing in the hut. The one who left to fetch fruits did not return.13.It is further in the evidence of P.W.3 that, the personwearing helmet received a few phone calls. He (P.W.3) could notsleep. After some time, somebody from outside of the hut enquiredhim, “Bhaiyya Aahe Ka?” He said, “Yes”. The person with him gotup and kept a knife on his leg. On enquiry by the person fromoutside, he (P.W.3) told him that there were only two persons in thehut. The outside person thereupon broke open the door of the hutand caught the person. When the helmet was removed, he realisedhim to be, “Baban Kaka” (A/1). According to him, Baban Kaka wasserving with them. He would play with him. He identified the knife.It is further in his evidence that the person rescued him was apolice official. He was brought to the Police Station and then united Criminal Appeal No.155/2017 with171/2017:: 13 ::with his parents.14.It has come on record during cross-examination ofP.W.3 that, none of the kidnappers assaulted him. There was ahouse at 100 ft. away from the hut. It was a thatched hut. On theday he came to the Court to give evidence, he was taken to theroom of the Assistant Police Prosecutor. His evidence furtherindicates that, his statement was recorded by police by 6.00 in theevening i.e. 12 hours after he was rescued.The evidence of this witness would be appreciated lateron while appreciating the evidence of other material witnesses.15. Evidence of P.W.2 Rajendra (informant) indicates thathe was a man of means. He was in politics as well. He was aMember of NCP. He was elected as a Member of PanchayatSamiti, Taluka Newasa. He had close relations with the local MLA.On the given day, he was in the company of the MLA. It was about7.45 p.m., he received a call of his wife, informing P.W.3 to havegone missing. It is further in his evidence that, he therefore left theoffice of the local MLA for home. One Shankar Bargalaccompanied him. It is further in his evidence that, he thenrequested Sunil Gadakh to inform to the police. His evidencefurther discloses that, on the way, he received a phone call. It waslittle past 8.00 p.m. His son, P.W.3 talked to him on phone andasked him, “Pappa Ine Paisa De Nhak, Police Ne Phone Lagau
Legal Reasoning
Criminal Appeal No.155/2017 with171/2017:: 24 ::nature of A/2 to have made two phone calls to the other kidnapperand allowed P.W.1 and the maternal uncle of the kidnapped child totalk with the child. The maternal uncle has not been examined.36.The prosecution is heavily relying on the evidence ofP.W.1 Tanaji, an accomplice, who was tendered a pardon. Hisevidence has been referred to hereinabove in extenso. In our view,P.W.1 Tanaji has in fact been used as a decoy or trap. He cannotbe said to have been involved in the crime in question. There is noshred of evidence to indicate he was a privy to the so calledconspiracy hatched by both A/1 and A/2. According to P.W.1 Tanaji,he got involved in the commission of the crime only when heaccepted the offer to receive Rs.10 Lakhs from the amount ofransom that would be received by A/2 from the informant. Closereading of the evidence of the informant and other two witnessesnamely Uday and Dinesh Chavan indicates that P.W.1 Tanaji wasclosely associated with them. His services were availed toapproach A/2 to find whether he (A/2) was really involved in thecrime. According to the prosecution, the involvement of A/2 wassuspected since he was involved in similar crime in the past. Theinvestigating officer has, however, candidate admitted that no suchcrime had ever been registered against the A/2 in the past. WhileP.W.1 Tanaji went to A/2 and broached the subject of kidnapping,A/2 had already been under influence of alcohol. According toP.W.1 Tanaji, A/2 agreed to trace out the child provided the father of Criminal Appeal No.155/2017 with171/2017:: 25 ::the child paid him Rs.2 Crores.37.Section 114(b) of the Evidence Act reads that, anaccomplice is unworthy of credit, unless he is corroborated inmaterial particulars. While Section 133 of the Evidence Act speaksof an accomplice to be a competent witness against an accusedperson; and a conviction is not illegal merely because it proceedsupon the uncorroborated testimony of an accomplice.38.At the cost of repetition, we find P.W.1 Tanaji to have infact in no way involved in the crime in question. It is not known asto why he was taken into custody along with A/2 at Pune RailwayStation. True, he remained behind the bars for about a year. TheTrial Court granted him pardon in terms of Section 307 of the Codeof Criminal Procedure, that is necessarily post committal of thecase. We have, therefore, no advantage to have before us anyprevious statement of P.W.1 Tanaji since none has been recorded.P.W.1 Tanaji gave evidence before the Court for the first timedisclosing his role as a witness and even according to him, his roleas an accomplice. Admittedly, he is close friend of the informant. Itis reiterated that, he was approached only with a view to make asearch for the kidnapped child and his rescue. The Apex Court, incase of Dagdu & Ors. Vs. State of Maharashtra etc., (AIR 1977SC 1579), held :- Criminal Appeal No.155/2017 with171/2017:: 26 ::Though an accomplice is a competent witness andthough a conviction may lawfully rest upon hisuncorroborated testimony, yet the Court is entitledto presume and may indeed be justified inpresuming in the generality of cases that noreliance can be placed on the evidence of anaccomplice unless that evidence is corroborated inmaterial particulars, by which is meant that therehas to be some independent evidence, tending toincriminate the particular accused in thecommission of the crime.It is hazardous, as a matter of prudence, to proceedupon the evidence of a self-confessed criminalwho, in so far as an approver is concerned, has totestify in terms of the pardon tendered to him. Therisk involved in convicting an accused on thetestimony of an accomplice, unless it iscorroborated in material particulars, is so real andpotent that what during the early development oflaw was felt to be a matter of prudence has beenelevated by judicial experience into a requirementor rule of law. All the same, it is necessary tounderstand that what has hardened into a rule oflaw is not that the conviction is illegal if it proceedsupon the uncorroborated testimony of anaccomplice but that the rule of corroboration maybe dispensed with only if the peculiarcircumstances of a case make it safe to dispensewith it. It is true that an approver has real incentive tospeak out his mind after tender of pardon, butwhere it is impossible to reconcile his earlierstatements with his later assertions, his evidencehas to be left out of consideration. It is one thing tosay that an approver’s statement cannot bediscarded for the mere reason that he did notdisclose the entire story in his police statement andquite another to accept an approver in spite ofcontradictions which cast a veil of doubt over hisinvolvement of others. Criminal Appeal No.155/2017 with171/2017:: 27 ::39.Close appreciation of the entire prosecution evidencelead us to infer that P.W.1 Tanaji was in no way involved in thecrime. He even ought not to have been arrested and made anaccused, leave apart, granting him tender of pardon. Even if weassume him to have been involved in the crime, we have to findwhether there is a corroboration to his evidence. His evidencesuggests that A/2 was drunk while he had approached him andwhile A/2 told P.W.1 that he could trace out the child provided hewas paid a sum of Rs.2 Crores. His evidence indicates he hadmade such a statement without there being shred of material toindicate his involvement. Thereafter P.W.1 Tanaji served A/2 non-veg food and liquor. When A/2 allegedly made a phone call to oneof the alleged kidnapper and during the call P.W.1 Tanaji spoke withthe child, there is no evidence in the nature of CDR indicating sucha call had in fact been made. It has already been stated above thatthe maternal uncle of the kidnapped child who had also allegedlytalked to the child from the cell phone of A/2 has not beenexamined. To top it, the child in his evidence did not speak of tohave a talk with P.W.1 Tanaji or his maternal uncle while he was inthe custody of the kidnappers.40.When the sum of Rs.46 Lakhs was collected and takento Pune, for being paid to A/2, the said cash has not been seized Criminal Appeal No.155/2017 with171/2017:: 28 ::under the panchanama that was drawn at Pune Railway Station. Itis not known as to why the cash was not seized. The informant hadadmitted that the sum of Rs.30 Lakhs was an unaccounted cashwith him. Be that as it may, the police officials appear to havefavoured the informant. True, there is evidence to indicate that A/2had made a demand of Rs.2 Crores. According to the learnedcounsel representing him, it was so made as a chance to earnmoney. We may not buy the submission of the learned counsel.The fact, however, remains that there is no evidence to indicate thatone of the two kidnappers on the motorcycle was A/2. On hisarrest, no test identification parade was held for his identification bythe child. Evidence of P.W.1 Tanaji is not to be relied on since thereis no evidence in the nature of CDRs to indicate talk between A/1and A/2 to indicate both of them to have been in league/ conspiracy.41.Evidence of P.W.11 Sachin Sanap indicates that,pursuant to information received by him from his informer, hereached the hut wherein the kidnapped boy was detained by A/1. Inour view, the investigating agency cannot have benefit of Section125 of the Evidence Act. His evidence indicates that he enquiredwith the child as to who was present with him in the hut. Afterhaving realised that only one person was with him, he broke openthe hut and took both the child and A/1 into custody. It was statedto be early in the morning, to be specific, at 6.00 a.m. Admittedly,the house of the landlady on whose land the hut was standing, was Criminal Appeal No.155/2017 with171/2017:: 29 ::at a distance of about 100 ft. away from the hut. No statement ofany of the inmates of the said house has been recorded. To top it,when the child was rescued and A/1 was taken into custody, nopanchanama was drawn then and there. Reasons are best knownto P.W.11 Sachin Sanap. Admittedly, he was accompanied by hisDriver and one or two more persons. He could have drawn thepanchanama of the rescue operation then and there. When thechild was rescued at 6.00 in the morning and brought to the PoliceStation immediately, it is not known as to why the child’s statementwas recorded 12 hours after his release. It is also reiterated that,the F.I.R. was also registered about 8 hours after the child wasrescued. Even therebefore, the investigating officer was felicitated.The scene of offence panchanama was drawn during4.40 p.m. to 5.50 p.m. It is at Exh.28. It was made by P.W.15Sanjay Kawde, A.P.I. Reading of the said panchanama indicatesthat the hut was shown by the informant and not the child. P.W.11Sachin Sanap, who had allegedly rescued the child from the hutwas not a privy to the said panchanama. It is not known as to howand when the informant got to know about the location of the hut,wherein his son was allegedly detained. It is reiterated that P.W.3(child) had not accompanied P.W.15 Sanjay Kawde and panchwitnesses to take them to point out the hut. As such, the scene ofoffence panchanama relating to hut does not further theprosecution case. Criminal Appeal No.155/2017 with171/2017:: 30 ::42.There is another aspect of the matter i.e. when A/1 wastaken into custody, during the rescue operation at 6.00 in themorning, in the police record, he is shown to have been arrested at6.00 in the evening (Page Nos.17 and 63 of R & P). We haveperused all the papers in that regard. Even first remand applicationindicates his time of arrest as 6.00 p.m. on 25th February. Had hereally been taken into custody during rescue operation of the child,there was no reason for the police authorities to arrest him after 12hours. Where was A/1 for all those 12 hours or in whose custodyhe was kept or detained is also not forthcoming. True, fortunatelythe child has been rescued unscathed. Kidnappers did not hurthim. Even he was offered food. Since the offence is serious one,inviting minimum sentence of life imprisonment and theinvestigation to have been flawed altogether and there being noshred of evidence to indicate both A/1 and A/2 to have conspiredtogether and P.W.1 Tanaji to have not been an accomplice and histhere being no previous statement, and he being a close friend ofthe informant, we do not propose to act upon such kind of evidence.It is reiterated that, the SIM Card of the particular number fromwhich the kidnapper made first two calls, stood in the name ofsomeone else (P.W.9 Babasaheb). There is nothing to indicate thesaid SIM Card was used by A/1 or A/2. The prosecution could haveplaced on record such kind of evidence since cell phone of both A/1and A/2 were seized. No such evidence is forthcoming.
Arguments
Criminal Appeal No.155/2017 with171/2017:: 14 ::Nako”. Thereafter the another person came on line. He wasspeaking in Hindi. He asked him not to tell the police, else his childwould be killed. The informant thereupon asked him how muchamount he wanted and he would pay the same. The person on theother side again threatened him if he approach the police. He didnot make demand of any specific amount. He told the informantthat he would be calling him back after an hour to disclose thequantum of amount to be paid to him. The evidence of theinformant further disclose that, within 5 minutes he again received acall from the very number. The caller made a demand of Rs.5Crores. The informant expressed his inability to pay that muchamount. The informant told him that he could at the most pay himRs.30 Lakhs. The caller then scaled down the demand to Rs.1Crore. The informant then told him that he would call him againafter a while. The caller, however, told him that the phone would beswitched off. The call was then discontinued. The informant’sefforts to contact back on the very cell phone proved futile since itwas found to have been switched off. It is further in his evidencethat, all the developments were being reported to P.I. Shri SachinSanap (P.W.11).16.The evidence of the informant suggests that, in view ofpast incidents of kidnapping, he suspected involvement of A/2. He,therefore, asked his friend Uday (P.W.7) to keep watch on themovements of A/2. Uday (P.W.7) in turn informed him that A/2 was Criminal Appeal No.155/2017 with171/2017:: 15 ::seen wandering nearby of his (informant) farm house. His evidencefurther disclose that, he contacted P.W.1 Tanaji (Approver) tonegotiate with A/2. P.W.1 Tanaji in turn informed him to havecontacted A/2. He (A/2) made a demand of money. He askedP.W.2 Rajendra that they should follow the directions of A/2 forrescue of the child. Evidence of the informant further indicates thathe collected a sum of Rs.46 Lakhs. Rs.30 Lakhs were with him.His friends gave him some amount to make it Rs.46 Lakhs. Thecross-examination of this witness indicates that he had anunaccounted cash of Rs.30 Lakhs with him. A/1 was serving withhim for about a year before the incidence. He, however, deniedthat A/2 was to work over time. He denied to have not kept hisword to pay him extra remuneration for over time work. He deniedthat A/2 therefore left the job. His evidence further discloses that,3– 4 months before the incident in question, his son had gonemissing in the town. It was he (informant) who first approachedP.W.1 (Approver). The suggestions in the nature of the defence ofA/1 and A/2 have been denied. 17.Then we have evidence of P.W.1 Tanaji (Approver). Hisevidence indicates that, on the request of the informant, hecontacted A/2. According to him, both A/1 and A/2 were his friends.He was in the construction business. He had close acquaintancewith P.W.2 Rajendra (informant). He used to secure constructionwork for him. Just 15 days before the incidence, he had done work Criminal Appeal No.155/2017 with171/2017:: 16 ::of filling of well in the farm house of the informant. His evidencefurther suggests that he contacted A/2 on phone and related himabout the kidnapping of the child. After a while, he received a callof A/2, informing that he was earlier called by Manoj Wagh (friend ofthe informant). He (P.W.1) went to the house of A/2 on his request.No sooner he reached the place of A/2, he (A/2) started weeping.He told P.W.1 that his father was no more. His wife has alsopassed away. He would not indulge in such activity. A/2 further toldhim to have been hungry. P.W.1 Tanaji, therefore, gave him non-veg food and liquor (quarter bottle). It is further in his evidence that,A/2 told him that he would trace out the child. He also asked P.W.1Tanaji as to how much money the child’s father could spare forrelease of the child. He even asked P.W.1 Tanaji to make ademand of Rs.2 Crores. He (A/2) proposed to pay him (P.W.1)Rs.10 Lakhs therefrom. It is further in his evidence that, thereafterA/2 consumed liquor. P.W.1 related all these facts to Uday (P.W.7)and others. On request of A/2, a four-wheeler was secured. Theinformant, as stated above, arranged for Rs.46 Lakhs. A/2 askedthem that only two persons shall accompany him. Accordingly, theystarted in a four wheeler. On the way at Ghodegaon, fuel was filledin to the Car’s tank capacity. On the way, A/2 was asking as towhether arrangement of Rs.1 Crore was made. He was informedthat a sum of Rs.50 Lakhs has been collected and the remainingamount would be paid by a businessman in Pune. A/2 even verified Criminal Appeal No.155/2017 with171/2017:: 17 ::the cash contained in the bag. He then took them to Pune RailwayStation. It was early in the morning of 25th. Officers of LCB, Nagaroverpowered both A/2 and P.W.1 Tanaji. Their arrest panchanama(Exh.35) was drawn there. They were brought to Ahmednagar andthen placed into custody of P.I., Newasa Police Station. It is furtherin the evidence of P.W.1 Tanaji that, so as to verify involvement ofA/2 in the crime in question, he asked him to allow him to talk to thekidnapped child. A/2 in turn made a phone call to someone. Hespoke in Hindi. Then he gave the cell phone to P.W.1 Tanaji.During the call, the kidnapped child came on line. P.W.1 Tanaji hada talk to him. P.W.1 Tanaji thus confirmed A/2 to have been a privyto the kidnapping of the child.18.The cross-examination of P.W.1 Tanaji indicates thatwhile he went to the house of A/2, he (A/2) was already drunk.According to him, A/2 agreed to trace out the child before heconsumed liquor served by him (P.W.1). 19.P.W.4 Jalindar is a witness to running panchanamarelating to the scene of offences. The panchanama is at Exh.28. Itwas drawn during 4.40 p.m. and 5.40 p.m.20.Evidence of P.W.5 Dinesh indicates that he hadaccompanied A/2, P.W.1 Tanaji and Uday (P.W.7) to Pune in aScorpio vehicle. On the way at Shikrapur, A/2 questioned as towhether the amount as demanded, has been arranged for. He was Criminal Appeal No.155/2017 with171/2017:: 18 ::informed that, Rs.50 Lakhs has been there. Remaining amountwould be given by a businessman in Pune. The evidence of P.W.5Dinesh is on the lines of the evidence of P.W.1 Tanaji to the effectthat they reached Pune Railway Station. Officers of LCB,Ahmednagar were following them and both A/2 and P.W.1 Tanajiwere taken into custody under the panchanama drawn then andthere. The panchanama is at Exh.35. He signed the saidpanchanama as an attesting witness. His evidence furtherindicates that, cell phones in possession of both A/2 and P.W.1Tanaji were taken charge of under the very panchanama.21.P.W.5 Pankaj is another friend of the informant. Hisevidence indicates that, he paid the informant a sum of Rs.5 Lakhsto make up the amount for being paid to the kidnappers. It isfurther in his evidence that, he was in the company of the informant.The informant had recorded in his cell phone the calls made by oneof the kidnappers. The recorded calls were played in his presence.He heard the same. Those were the calls made from Cell Number7057030583.22.Then there is evidence of P.W.7 Uday, another friend ofthe informant. His evidence is consistent with the evidence ofinformant and P.W.1 Tanaji. He had also accompanied A/2 and theP.W.1 Tanaji to Pune. According to him, the maternal uncle of thekidnapped child and even P.W.1 Tanaji talked to the kidnapped child Criminal Appeal No.155/2017 with171/2017:: 19 ::from cell phone of A/2. Thus, it was confirmed that A/2 wasinvolved in commission of the crime. He admitted to be the closefriend of the informant.23.P.W.8 Sayyed Anwar is a witness to the panchanamaof seizure of a pen drive and C.D. containing recording of the callsmade by the kidnappers. The panchanama is at Exh.42. He is alsowitness to a panchanama as to seizure of a knife, helmet andmotorcycle allegedly used by the kidnappers. 24.P.W.9 Babasaheb is a witness in whose name the SIMCard Number 7057030583 was issued. Admittedly, the kidnappershad made calls from this SIM Card demanding the ransom. It is inhis evidence that, although he had applied for issue of a fresh SIMCard and submitted necessary documents in that regard, he did notreceive the SIM Card of the same number. He later on obtained aSIM Card of Idea Service provider. By examining this witness, theprosecution wanted to bring on record that the SIM Card hadneither been received or used by him.25.P.W.10 Sanjay is an official of LCB, Ahmednagar. Hisevidence indicates that, he along with his staff were following A/2and others to Pune. His evidence indicates that, at Pune RailwayStation, A/2 and P.W.1 Tanaji were taken into custody.26.P.W.11 Sachin, Police Inspector, serving with Newasa Criminal Appeal No.155/2017 with171/2017:: 20 ::Police Station at the relevant time, testified that he was being keptposted of all the events. On the basis of a software, “Talash”, hetraced out the location of the caller who had made first two callsfrom the Cell Number 7057030583. it is further in his evidence that,during investigation, he learnt from his informer that there is a huton the land of one Pisal. He, therefore, went there along with hisDriver and one another person to find the kidnapped child to havebeen detained in the hut by A/1. He broke open the hut andrescued the kidnapped child. It is he who brought them to thePolice Station and then allowed the child to unite with his parents.According to him, the informant had requested not to register crimeinitially. He admitted that, when the accused is taken into custody,a panchanama of arrest is required to be drawn immediately. He,however, did not draw such panchanama when A/2 was taken intocustody by 6.00 in the morning. It has also been in his evidencethat, no crime of kidnapping was ever registered against A/2 beforethe one in question. 27. P.W.12 Jitendra was a Nodal officer serving with AirtelCellular Ltd. He tendered in evidence Call Data Records of certainphone numbers namely 8300994026, 7387587505 and9890795637.28.P.W.13 Sachin was a Nodal Officer serving with IdeaCellular Ltd. He produced in evidence documents submitted by the Criminal Appeal No.155/2017 with171/2017:: 21 ::concerned in relation to the certain cell phone numbers includingthe cell phone number of the informant, P.W.1 Tanaji and others.Certain CDRs have also been produced in evidence.29.P.W.14 Kiran is a witness to the seizure of a revolverpursuant to the disclosure statement made by A/2. His evidence isnot referred to since A/2 has been acquitted of the charge of havingpossessed a firearm without a licence.30.P.W.15 Sanjay is a Police official who did someinvestigation of the crime. He had obtained voice sample of A/1and A/2 and others who had conversation with them. It was he whohas drawn the scene of offence panchanama.31.P.W.16 Sayyad Rafik is a police official who seizedjerkin which was on the person of the kidnapped child at therelevant time.APPRECIATION :-32.Let us appreciate the evidence in the case. Theoffence punishable under Section 364A, if proved, invitespunishment of life imprisonment or death. As such, it is a seriousoffence. Strict proof is, therefore, warranted. The Trial Court hasrightly not relied on the evidence in the nature of recordedconversation between the informant and the alleged kidnappers forwant of failure to seize the cell phones of the informant and retrieve Criminal Appeal No.155/2017 with171/2017:: 22 ::therefrom the recorded conversation. What contained in the pendrive and the C.D. was a conversation that was transmitted fromthe cell phone wherein it was originally recorded. Although the cellphone of both A/1 and A/2 have been seized, there is no evidenceto indicate that any of them had used the SIM Card bearing Number7057030583. The prosecution could have proved the said fact byIMEI Number of the cell phone in which the said SIM Card wasinserted and the first two calls were made. Although the voicesamples of all the concerned were obtained and submitted toC.F.S.L. for voice analysis, the reports thereof have not beentendered in evidence. The Trial Court, however, indirectly relied onthe recorded conversation between the informant and one of thekidnappers since it relied on the evidence of the informantregarding the said conversation and reproduction thereof in theF.I.R. (Exh.22).33.It is reiterated that, the informant is a man of means.He was in politics as well. He has close acquaintance with the localMLA. True, the evidence of child (P.W.3) and the evidence of otherwitnesses undoubtedly lead us to infer that the child had in factbeen kidnapped by 6.00 p.m. on 24/2/2016 by two persons, one ofwhom was sporting helmet and the other had covered his face witha scarf.34.In our view, there are material flaws in the investigation. Criminal Appeal No.155/2017 with171/2017:: 23 ::When the incident of kidnapping took place at 6.00 p.m. on 24th, theF.I.R. was lodged by P.W.2 Rajendra at 2.30 p.m. on the followingday, i.e. about 20 hours after kidnapping and about 8 hours afterrescue of the kidnapped child. It is not known as to why the F.I.R.was not registered immediately. Admittedly, even no station diaryentry was effected regarding the steps taken during theinvestigation. Admittedly, the A/1 was in the employment of theinformant for a year next before the incident. He quit the job a fewdays before. First we have to see whether both the appellants hadconspired to kidnap the informant’s child and they in fact kidnappedthe child pursuant to the said conspiracy or in furtherance of thecommon intention to kidnap. Admittedly, while the child waskidnapped, one of the kidnappers was sporting helmet. The otherhad covered his face with a scarf. According to the kidnappedchild, the helmet sporting kidnapper was riding the motorcycle.While he was taken to the agricultural field, the said personremoved his helmet and gave it to the another one to put on. Thesame suggests the kidnapped child to have seen the otherkidnapper. The investigating officer did not arrange for testidentification parade.35.The other evidence relied on to show both theappellants to have been the kidnappers, is the evidence in the
Decision
Criminal Appeal No.155/2017 with171/2017:: 31 ::43.On appreciation of the entire evidence on record, theprinciples of criminal jurisprudence lead us to infer the prosecutionto have not brought home the charge beyond reasonable doubt. Itcan at the most be observed that the appellants might havekidnapped the child for ransom. Both the appellants have beenbehind the bars for more than 8 years.44.For all the aforesaid reasons, we are not at one withthe findings recorded by learned Additional Sessions Judge. Weare, therefore, inclined to allow the appeals. In the result, theappeals succeed. Hence the order : O R D E R(i)Both the Criminal Appeals are allowed.(ii)The judgment and order of conviction and sentence dated8/3/2017, passed by learned District Judge-1 & AdditionalSessions Judge, Newasa, District Ahmednagar in SessionsCase No.36/2016 is hereby set aside. The appellants areacquitted of the offences punishable under Sections 364-A,363 and 386 read with Section 34 of the Indian Penal Codeand under Section 120-B read with Section 386 and 364-A ofthe Indian Penal Code. Criminal Appeal No.155/2017 with171/2017:: 32 ::(iii)The appellants be set at liberty forthwith if not required in anyother case. Fine amount, if paid, be refunded to them.(iv)Both the Criminal Appeals are disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-