JUDGMENT D.G. Deshpande, J.
1. Appeal No. 889 of 2002 has been filed by the accused No. 1 and it was argued by Mr. Prashant Naik for the accused No. 1. Appeal No. 767 of 2002 is filed by Accused Nos. 2 and 3, it was argued by Mr. B. R. Patil. Arguments on behalf of the State were advanced by APP Mrs. G. P. Mulekar in both the Appeals.
2. All these three accused have been convicted by the Ad-hoc Additional Sessions Judge, Pune, by Judgment dated 15.6.2002. They were convicted under Section 364A read with Section 34 of Indian Penal Code and were sentenced to suffer life imprisonment with fine, they were also convicted under Section 392 read with Section 34 of I.P.C. and sentenced to suffer R.I. for three years and fine. Accused No. 1 is also convicted under Section 25(1B) of the Arms Act and was sentenced to suffer R.I. for one year and fine. All the substantive sentences to runconcurrently.
3. Initially, the trial was against seven accused in all but accused Nos. 4 to 7 were acquitted of all the charges. The case of the prosecution was that these accused abducted one young boy Ashish Sitaram Bansal residing at Nigadi Pradhikaran Pune for the purpose of ransom. His father Sitaram is an Industrialist doing the business of steel re-rolling, he was a rich man and at the relevant time Victim Ashish was studying in III year of B.Com at Pimpri. On the date of the incident i.e. 14.4.1997 one Mr. Kazi had come to the house of the victim. He was to go to Shirdi in Maruti Esteem Car of Sitaram Bansal - the father of the victim. The number of the car was MH-14-D/4777.
4. Victim Ashish wanted to check the coolant in the car, he therefore went to Olympia Garage at about 3.30 p.m. on 14.4.1997. While returning from the said garage, he entered a small by-lane near the main road where these three accused were standing. They took the key of the car forcibly from the victim and threatened him with chopper. Ashish was forced to sit at the rear side of the car and theperson having beard started driving the car. Remaining two persons sat near the victim Ashish.
5. One of the three persons who was wearing red shirt threatened him to keep quiet by pointing a revolver at him and threatened that he would be killed if he raised shouts. Ashish did not resist therefore. Then the car was driven towards Satara. On way Ashish received call on his mobile from his father. The person wearing red shirt told Ashish to inform his father that he would be returning within 15 minutes and he was also warned not to utter anything more. Accordingly, information was passed by Ashish to his father that he would be late. Thereafter, Ashish was assaulted by person wearing red shirt with the revolver in his hand.
6. Car proceeded towards Satara and stopped near Hotel Mahendra. There was a public telephone where the car was stopped. These persons collected the residential phone number of Ashish and as well as office. Attempts were made to contact the father of Ashish by one of the three persons. At 7 p.m. the contact was established between these persons and the father of the victim. Demand of Rs. 50 lacswas made, then it was after discussion was reduced to Rs. 5 lacs. Sitaram father of Ashish informed them that Rs. 1 lac was already there in the Maruti car and that can be taken by these persons.
7. The prosecution case further alleges that while this Maruti car was parked by the accused near S.T. stand at Udatare on Pune-Bangalore National Highway, one PSI Babar attached to Goregaon Police Station, was there. He wanted to go to Mumbai, therefore he had come to the S.T. stand. There was a telephone booth owned by or run by Shyamrao. The said Shyamrao found that the conduct of the accused was suspicious because they were making frequent calls. He expressed his doubt and suspicion about those accused to PSI Babar. PSI Babar therefore immediately contacted Bhuinj police station and informed them about three persons and the Maruti car. Soon thereafter police from Bhuinj police station arrived. Maruti car was standing stationary near the telephone booth and then in the enquiry it was revealed that accused Nos. 1 to 3 had abducted Ashish. Accused No. 1 was wearing red shirt, accused No. 2 was having beard and accused No. 3 was sittingall the while near Ashish and accused Nos. 1 and 2 were making contacts to Sitaram.
8. Thereafter, complainant and accused Nos. 1 to 3 were taken to Bhuinj Police Station wherein complaint was lodged about kidnapping, robbery etc. and offence came to be registered. During investigation accused Nos. 1 to 3 came to be arrested, weapons chopper, revolver and cookery found with the accused were seized. Cash was found with the accused and in the car Rs. 67,000/-were also found. The amount was seized under the panchnama. Ashish pointed out the place where the STD booth was situate. Register maintained by the owner of the public telephone booth showing entries of the calls made by the accused Nos. 1 and 2 to the father of Ashish - Sitaram was also seized.
9. In the meantime during their talk with Sitaram - father of Ashish, the accused had told him that two persons would be coming to his house. They will utter the words 'Ashish' twice and thereafter Sitaram was to give them remaining Rs. 4 lacs. Sitaram was also assured that after receiving thatamount, Ashish would be let off by them. Sitaram collected this amount from various sources. Two persons came there. They were accused Nos. 4 and 5, (subsequently identified in the test identification parade) and Sitaram paid them Rs. 4 lacs. The police subsequently recovered Rs. 2,99,300/-from these accused Nos. 4 and 5 at the instance of accused No. 6. All that was seized under the panchnama, and after completion of investigation, charge sheet was filed.
10. During the trial, prosecution examined Ashish, his father Sitaram, PSI Babar and other witnesses. The defence of the accused was that Ashish wanted to marry a girl and therefore voluntarily he had come with them and no abducting or kidnapping had ever taken place. The defence of the accused was disbelieved by the court and the court convicted accused Nos. 1 to 3 for the charges, referred to above, but acquitted accused Nos. 4 to 7 because so far as accused Nos. 4 to 5 are concerned, according to the trial court Sitaram had ample opportunity to see these two accused in police station and therefore trial court disbelieved the evidence of identification parade and otheraccused from whom the money was recovered were also acquitted because prosecution failed to prove that the money recovered was the money given as ransom. It is in this background that the convicted accused Nos. 1 to 3 have filed these Appeals.
11. Counsels for the Appellants -accused in both the Appeals, firstly, contended that the story of kidnapping and abducting is totally false and bogus. Ashish wanted to marry a girl of his choice, his father was not ready and willing for that marriage and therefore Ashish voluntarily came with these boys. Apart from that, the prosecution case was attacked on different grounds, e.g. according to the counsels of the Appellants - accused story of keeping Rs. 1 lac in the car was unbelievable because no sane man would keep Rs. 1 lac in the dickey of the car without son Ashish knowing about it. If at all the amount was to be kept in the car by the father, then the father could have handed it over to Ashish. Secondly, there are no independent witnesses to strengthen the case of Sitaram that some of the amounts of Rs. 5 lacs was taken by him from his friends. Thirdly, if father and mother of Ashish were eager and anxious to see Ashish then there wasno reason for them to wait till 8 O'clock on the next day morning to go Bhuinj police station to see Ashish. After information about the safe condition of Ashish was passed on to them by Bhuinj police around mid night then they would have not waited till 8 in the morning. The learned counsel for the Appellants - accused also pointed out that the accused has telephoned the garagewala to come and repair the Maruti car and if this was so then it disproves the case of kidnapping and abduction. Further, it was pointed out by both the Counsels for the Appellants - Accused that there were many discrepancies in the evidence of Ashish and his father Sitaram and explanation where the amount of Rs. 31,000/- or Rs. 33,000/- vanished from the car. If according to Sitaram Rs. 1 lac was there, only Rs. 67,000/- came to be seized by the police. Further, according to them if Ashish was missing from 3 p.m. there was no reason that the father Sitaram did not lodge any report to the police on his own accord and take their assistance. According to them the ownership of Maruti car was also not proved by the prosecution and this was therefore a strong circumstance to disbelieve the case of the prosecution. Mr. B.R. Patil, tried to urge thatSection 364A of the IPC was not attracted and at the most it could be the case under Section 364 of IPC and as such the punishment of the accused was required to be reduced.
12. On the other hand, the learned APP contended that all the submissions made by both the counsels for the accused were not affecting the main case and the main evidence of Ashish and Sitaram and even if those submissions were accepted then that could not give any advantage to the appellants - accused. She further pointed out that it was sheer chance that PSI Babar was there at the telephone booth, as stated above, and because of the complaint made by the owner of the telephone booth, he became suspicious, informed Bhuinj Police and Bhuinj police immediately came to the spot and arrested three accused with Ashish and the car. Learned APP therefore contended that the defence has not been able to make inrods in the prosecution case at all, and, therefore, the conviction was fully justified.
13. After considering the submissions made by both the sides, we find that this is not a case where any benefit can be given to the accused. Thisis a full proof case so far as these appellants accused Nos. 1 to 3 are concerned. Acquittal of the accused Nos. 4 to 7 is not a case of any doubt or suspicions about the prosecution case, as is apparent from the judgment of the trial court. Accused Nos. 4 to 5 were acquitted because trial court did not believe the evidence of the prosecution about identification. According to the trial court, there was inordinate delay in holding the identification parade, and, secondly, Sitaram had ample opportunity to see accused Nos. 4 to 5 before they were identified in the parade. So far as other two accused i.e. accused Nos. 6 and 7 are concerned, recovery evidence was disbelieved by the trial court for various reasons but not on the ground of any doubt about the case of the prosecution about abduction, therefore, acquittal of the accused Nos. 4 to 7 does not hold these accused on its own merits.
14. So far as these accused are concerned, the evidence of Ashish, PSI Babar and Sitaram - father of Ashish, to the same extent is most important. Ashish in his evidence has given the details of the manner in which on 14.4.1997 he drove Maruti Esteemcar to the garage for replacing the coolant, how on way these accused Nos. 1 to 3 stopped the car, sat in the car and were threatening with revolver. He has also stated that how the car was taken to different places, how his mobile was used and then how he was assaulted on the but of the revolver on the head, how they came to Satara, and near Mahendra Hotel they got his residential phone number and then from public telephone booth they made calls to Sitaram - father of Ashish. He has also stated that thereafter these accused came back and told him that contact has been made with his father and that he would be released within 3 - 4 hours. He has also told about filling of petrol at his cost of Rs. 1,200/-. Then again they started driving the vehicle towards Pune side, after 20-25 minutes they stopped the vehicle and opened the dickey and found that there was Rs. 1 lac. He has also told that one of the accused went to the telephone booth and soon thereafter police arrived and all the three accused and Ashish were taken by the police and were taken to Bhuinj police station. He has also stated about lodging of report and then identified all the accused with attributed role to them.
15. Our attention was drawn to the cross examination of this witness Ashish wherein he admitted that he did not raise any cry or shout for help at any time right from the time of abduction till the arrival of the police near Satara. That does not create any difference in the case of the prosecution because if Ashish was surrendered by person having revolver other person having chopper and other weapon and he was threatened with life, he was fully justified in not raising the shouts for help otherwise they would have endangered his life.
16. It was tried to be suggested from the cross -examination of the witness that many opportunities were available to Ashish to shout for help because the petrol pump were the petrol was filled in a day, the telephone booth and he could have attracted the attention of the people. We do not find any force in the submissions because nothing is brought out in the cross-examination to show that at any moment from the time of abduction till arrival of Bhuinj police, Ashish was left alone in the car by the accused.
17. It is true that Ashish admitted that the cardoes not stand in his name and he does not know whether it stands in the name of his father. His father Sitaram also admitted that he did not have the documents of registration with him on the date of examination about the said car, that also does not make any difference to the prosecution case because PSI Babar and police from Bhuinj found Ashish in the same car in which he was abducted, as above. Ownership of car is absolutely irrelevant in this case.
18. While putting forth their defence, it was suggested to Ashish that one girl by name Kavita was with him when he went to the garage for filling the coolant. He also denied that the girl was with him when he went to Satara and he wanted to marry that girl Kavita but the parents were not agreeing with that proposal. He also denied that his Maruti car had a break down near Udatare in Satara District and that at that time he contacted Olympia garage and requested them to send mechanic for repair of the vehicle and accused Nos. 2 and 3 were sent by the said garagewala for repairing the car.
19. In fact, if it was the defence of theaccused Nos. 2 and 3 that they were working in some garage at Udatare and they had gone on the spot upon the requisition by Ashish, then nothing prevented the accused Nos. 2 and 3 from examining the owner of the garage for proving the call made by Ashish and the owner sending them for repairing of the car. Nothing has been done in this regard by the defence and in any case the defence is absolutely improper and impossible. Ashish had no reason whatsoever to state that all the three i.e. accused Nos. 1 to 3 kidnapped and abducted him, as stated above.
20. Thereafter, in the cross-exmaination, Ashish stated that parents came to him at Bhuinj police station at about 8 a.m. This is also according to the defence unnatural because if the parents were worried about the welfare of Ashish, they would have run down immediately on receiving the message. It may be true that parents were expected in such a situation to see their child immediately. But it may also be true that because Sitaram and his wife learnt that Ashish was in safe hands at Bhuinj police station along with kidnappers, they thought it better to go in the morning instead of reaching to the police station in the night hours. Ashishtherefore denied the suggestion that because the parents did not approve of his behaviour and conduct, they did not turn up to Bhuinj police station upto 8 a.m. in the next morning.
21. Then in the further cross-examination Ashish admitted that his statement was recorded by the police in morning on 15.4.1997. Counsels for the accused - appellants argued that there was delay in recording the statement of victim Ashish, without any explanation. We do not find any substance in this argument because Ashish was taken to police station some time between 9.30 to 11 p.m. Three accused were in custody of the police and therefore there is nothing unnatural if the statement of Ashish was recorded on the next day morning.
22. The evidence which is important thereafter is of PSI Babar. He is examined by prosecution as P.W. 4. He has stated that in April 1997 he was attached to Ghatkopar police station as PSI. His native place was Udatare, Tal: Wai, Dist : Satara. His parents and brothers were residing there. He was ill and was on leave, therefore, he was at Udatare on 14.7.1997.
23. PSI Babar further stated that his friend Raju Chavan was to proceed to Bombay from Satara at about 10 p.m. on 14.7.1997 in a jeep and Raju had asked PSI Babar to go the S.T. stand around 10.30 a.m. This S.T. stand at Udatare is situated on Pune Bangalore National Highway. Accordingly, he went to the stand, waited there for his friend upto 11 p.m. and then went to STD booth to contact him on phone. The owner of the STD booth is Shyamrao Jagtap. Two persons were in the cabin of STD booth using the phone and he was told by the owner of the public booth that there is some suspicion about the conduct of these persons because they were making frequent calls. Then PSI Babar contacted his friend Raju. Thereafter came out of the cabin and asked Shyamrao to see the vehicle where these two persons had gone and to note down the number of the vehicle. PSI Babar then contacted Bhuinj police station on telephone from STD booth and immediately thereafter police from Bhuinj police station arrived. Two persons were sitting in Maruti Esteem Car No. MH-14-D-4777. Those two persons were accosted from the car and two more persons were taken from STD booth. Ashish was in the car. He informed thepolice that he had been kidnapped by them for money. Then Bhuinj police carried all the four persons along with Maruti car to the police station. PSI Babar thereafter identified all the accused in court and Ashish also. His statement came to be recorded on the next day on 15.4.1997. He stated that owner of the booth Shaymrao Jagtap died in 2001. His cross-examination was criticised by the appellants accused that there was delay in recording the statement on 15.4.1997 at about 10.30 a.m. There is absolutely no delay in this regard. It was also urged that if PSI had a phone at his house what was the necessity for him to come to the booth at that time.
24. In fact, PSI Babar from the evidence that has come on record has nothing to do with Ashish or his father Sitaram or family of the victim or any of the accused. It was sheer ill luck of the accused and luck of Ashish that he came there near the STD booth from where the accused were contacting Sitaram for ransom. His evidence is most natural. It was also argued however that PSI Babar admitted that his friend Raju did not meet him that night at all. That also does not make any difference nor createany suspicion about his evidence. He clearly admitted that when the telephone booth was being used by these accused for about 15 - 20 minutes, he was waiting outside and he was not knowing anything as to what was happening in the STD booth, to whom the accused were talking and what was the subject of the talk. He also further stated that after two persons came out i.e. two accused came out of the telephone booth and he gave a call and then came out of the cabin. The fact that Bhuinj police immediately came upon receiving information from PSI Babar, and all the three accused were brought on the spot with Ashish in the car, strongly and fully corroborates the testimony of PSI Babar. There is absolutely nothing in the cross-examination to doubt about the veracity of this witness. He has done his duty as an alert police officer in conveying his suspicion to Bhuinj police who was having jurisdiction over that area. Certain omissions were brought on record in the cross-examination but they are absolutely minor e.g. he admitted that he did not tell the police that he had asked Shyamrao to go and see the number of motor car. He also admitted that after the accused were taken to Bhuinj police station he also accompanied them to Bhuinj policestation.
25. The next witness who is more important to the prosecution than Sitaram - father of Ashish is P.W. 10 Ramesh Ishwara Yadav. He has stated that on 14.4.1997 at about 10.30/11.00 p.m. he was at Bhuinj police station when he received the phone from PSI Babar. The message was that four persons near STD booth at Udatara S.T. Stand were in suspicious condition and immediate action should be taken. Babar had also informed him that those persons were having Maruti Esteem car, therefore, P.W. 10 proceeded to Udatare police station along with staff. He found PSI Babar there, he also saw Maruti Esteem car at a distance of about 10/15 feet. PSI Babar pointed out four persons, out of which two were sitting in the car and two were standing outside. Then this witness took all four in custody along with car. One of them was Ashish and he told P.W. 10 that he was kidnapped from Akurdi to extract money. Then all the four persons were brought to Bhuinj police station along with PSI Babar. Statement of Ashish was recorded at Exhibit 123 and offence was registered. Then three accused were arrested in the presence of panchas. A countrymade revolver, a cartridge and cash of Rs. 616/- was found with accused No. 1 Shridhar Bhosale, from accused No. 2 Lamuel David Shepherd a chopper and a cash of Rs. 2,700/- was found, and from accused No. 3 Alwyn Benjamin Shepherd, a cookery (type of knife) and a cash of Rs. 1,500/- was found. He also stated that Shridhar Bhosale accused No. 1 was wearing red shirt and black trouser etc. Panchnama was accordingly made. Similarly, clothes of accused Nos. 2 and 3 were also seized. Panchnama of the clothes of accused Nos. 2 and 3 was made. There were no injuries on the body of the accused. They were arrested accordingly. Maruti car was also seized and cash of Rs. 67,000/- was found in the drawer near the seat of the driver. Panchnama was prepared accordingly at Exhibit 144. Thereafter, Ashish pointed out the places i.e. STD booth and place where Maruti car was standing. Panchnama was prepared. Statements of four persons were recorded including that of PSI Babar and Sitaram, statement of Shyamrao Jagtap was also recorded, register Exhibit 158 maintained by Shyamrao Jagtap was seized. Statement of the accused under Section 27 of the Evidence Act was recorded on 15.4.1997 and he showed the STD booth from where the calls were made.
Then the accused led to another STD booth near Satara Highway pursuant to panchnama Exhibit 147. Statement of the owner of the said STD booth one Mr. Surve was recorded. Other evidence is in respect of notes recovered from other accused but since they are acquitted, we are not considering that part of the evidence. This witness identified all the three accused who were accosted by him near STD booth during the night of 14.7.1997. This witness denied all the suggestion of non-involvement of the accused in this offence. Nothing worthy of consideration for the purpose of defence has been brought out in the cross-examinatioin.
26. Then comes evidence of father Sitaram. However, it is not necessary to go in the evidence in length because he has not seen any of the accused kidnapping or abducting Ashish. He had conversation with the accused on phone or mobile and he complied with the directions to pay the amount. However, story of recovery of amount paid by him (excluding Rs. 67,000/-, Rs. 69,000/- recovered from Maruti car) is disbelieved by the trial court and accused Nos. 4 to 7 were acquitted. Therefore, it is not necessary to scan and scrutinise that evidence. Thefact remains that father of Ashish has made all efforts to get his son back safely.
27. It was argued by the counsel for the accused that there is no explanation why Sitaram did not lodge any report to the police. Acceptance of such type are totally different from the reality. Guardians of the victims are primarily interested in the safety and security of the abducted boy or girl whatever his or her age may be. They do not approach the police for fear of danger to the life of the victim and there is nothing wrong in such approach or attitude. Therefore,, not lodging complaint to the police by Sitaram, is of no consequence.
28. Second contention of the Counsel for the accused was that if Sitaram was so much anxious to see his child Ashish as to why he waited till 8 in the morning when he had received information in the mid night itself. We have dealt with all these arguments earlier and when it is clear that Ashish along with kidnappers was caught and was in custody of the police, then there was nothing unnatural if Sitaram did not rush at mid night to see his son.He went in the morning along with his two friends from whom he has raised money.
29. Considering, therefore, the entire case and the evidence, no fault can be found with the trial judge in holding the accused guilty and in convicting them for the offences alleged. 30. Mr. B. R. Patil, in alternate tried to urge that offence would not fall under Section 364A but would fall under Section 364 of the IPC. Sections 364 and 364A are reproduced hereinbelow:
364. Kidnapping or abducting in order to murder. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
364-A. Kidnapping for ransom etc.-Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, ands threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes death or hurt to such person in order to compel the Government [any foreign State or international inter-governmental organisation] or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, orimprisonment for life, and shall also be liable to fine.
31. We do not find any substance in this argument. Kidnapping was followed by demand for ransom and therefore it is a clear cut case under Section 364A of the IPC and not under Section 364. Further there is nothing in the evidence that Ashish was kidnapped for murdering him because there is no motive with the accused to murder Ashish. There is evidence of identification parade but the trial court has disbelieved that evidence, and, in any case, no submissions were made before us in that regard.
32. In order to substantiate his alternate contention for lesser punishment, Mr. B.R. Patil, relied upon the Judgment of the Supreme Court Bhupinder Singh and Ors. v. Jarnail Singh and Anr. where the Supreme Court has considered the provisions of Section 304B of IPC and the punishment is imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. This was however consideredby the Supreme Court with reference to the provisions of Cr.P.C. Section 167(2) proviso (a) i.e. with reference to the remand period. This case law is not at all applicable to the present case. So far as Section 364A of IPC is concerned, the only option is given to the court is to award punishment of death or punishment for imprisonment of life. There is no other option and the lower court has awarded imprisonment for life. This court cannot under the provisions of Section 364A of IPC reduce that sentence. There is no option, no power given to the court in that regard. Therefore, this alternate submission of lesser punishment also cannot be accepted and it is rejected.
33. This is therefore a case where prosecution has proved its case through victim Ashish through the evidence of PSI Babar, and officer of Bhuinj Police Station. As we observed earlier that it is ill luck of accused and luck of Ashish, PSI Babar has shown his readiness and alertness of mind in taking cognizance of the complaint lodged by Shyamrao Jagtap - owner of the telephone booth regarding suspicious behaviour of the accused, he immediately phoned Bhuinj Police Station, officersof Bhuinj police station came there and they caught the accused along with Ashish in the car of Ashish. This is therefore a full proof case and no interference is required. Both the Appeals are dismissed. Office to intimate this order to the Appellants - accused.