Shri Satish Keshav Doifode vs The State Of Maharashtra
2016 Latest Caselaw 2708 Bom

Sherla V.



                                                                       apeal.194.2009+_(j).doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                     
                                   CRIMINAL APPEAL NO.194 OF 2009

            Shri Satish Keshav Doifode                 )




                                                             
            r/at Kagal, Dist.Kolhapur                  )
            presently lodged Solapur Central Jail,     )
            Solapur                                    )     ... Appellant




                                                            
                  Vs.

            The State of Maharashtra                   )     ... Respondent

                                               WITH




                                                    
                                   CRIMINAL APPEAL NO.269 OF 2009

            Shri Ganesh Jayling Gunjawane
            r/o. Dattanagar, Barshi
                                           ig          )
                                                       )
            Dist.:Solapur                              )
                                         
            presently lodged in                        )
            Yerawada Central Prison, Pune              )     ... Applicant

                  Vs.
                   


            The State of Maharashtra                   )     ... Respondent
                



            Mr.A.P. Mundargi i/b Mr.J.J. Bardeskar for the Appellant in Apeal/194/2009
   




            Mr.Ujwal Agandusurve for Appellant in Apeal/269/2009

            Mrs.U.V. Kejriwal, APP, for Respondent - State

                                                CORAM: SMT.V.K. TAHILRAMANI &
                                                       MRS.MRIDULA BHATKAR, JJ.

DATE: JUNE 9 & 10, 2016

ORAL JUDGMENT (PER MRS.MRIDULA BHATKAR, J.):

1. These two appeals are directed against the impugned judgment and

order dated 31st January, 2009 passed by the learned Sessions Judge,

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Pandharpur in Sessions Case No.4 of 2007. The appellants/accused are

convicted for the offences under sections 364A r/w 120B of the Indian

Penal Code and are sentenced to undergo R.I. for life and to pay fine of

Rs.10,000/- each and in default to suffer imprisonment for 6 months. They

are also convicted for the offences under section 363 r/w 120B of the

Indian Penal Code and sentenced to suffer R.I. for five years with payment

of fine of Rs.2,500/- each and in default, to suffer imprisonment of two

months each. They are further convicted under section 365 r/w 120B of

the Indian Penal Code and sentenced to suffer R.I. for 5 years and fine of

Rs.2500/-, in default two months imprisonment.

2. It is the case of the prosecution that a minor boy Akshay Sadashiv

Wadgave, aged approximately 5 years, was kidnapped by accused

persons on 26.8.2006 for ransom of Rs.10 lacs. It is the case of the

prosecution that Sadashiv Panditrao Wadgave, who was a building

contractor and resident of Pandharpur, was residing with his wife and

minor son - Akshay. On 23.8.2006, he went to his native place for festival.

He stayed there till 26.8.20016. During his stay at his village Khanapur, he

received phone calls on his cell No.9422068104 for a number of times

from one person who disclosed his identity as a Manager of one Reddy

and the person enquired as to when he would be returning as he wanted

to hire his Poklane machine on rent. Sadashiv was having two Poklane

machines and he used to give them on hire. On 26.8.2006, at around 4pm,

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he was returning from Kolhapur to Pandharpur. While he was coming

back, he received four phone calls from the Manager of Reddy and he was

continuously asking as to when he would be reaching to Pandharpur. The

complainant reached home at Pandharpur at around 6pm. His son

Akshay went out to play with neighbouring children. 15 minutes thereafter,

the friends of Akshay informed the complainant that some persons had

taken away Akshay on a motor cycle by pressing his mouth. He

immediately came down but did not notice his son. Therefore, he went to

police station and gave report. Pursuant to that information, the offence

was registered at C.R. No.120 of 2006 with Pandharpur police station for

kidnapping. It is the case of the prosecution that thereafter, the

complainant received anonymous phone calls demanding Rs.10 lakhs if

he wanted his son back. During that night, many such demand calls were

received by him. He collected Rs.10 lakhs during that night from his

friends. He kept Rs.750,000/- in one suitcase and Rs.250,000/- in one

bag. He alongwith his brother, as directed by the police, agreed to give

money to those persons. The kidnappers had told him that in the early

morning, the complainant should hand over Rs.10 lakhs at Kolhapur. The

complainant alongwith his brother proceeded towards Kolhapur in his jeep.

The police and the panch followed them in plain clothes. When the

complainant reached the destination, as informed by the kidnappers, they

asked him to come near a bridge at Mayur Dhabha and accordingly, his

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brother and he both stopped near the bridge. After some time, two

persons arrived there on a motor cycle alongwith his son Akshay. The

complainant gave them the suitcase and the bag containing money and

those two persons handed over Akshay to the complainant. As those two

persons proceeded on motor cycle, the police who were waiting and had

taken position around, immediately apprehended both the accused. At

that time, they threw the suitcase and the bag. The police picked up the

suitcase and the bag. The police found a knife with them. They seized

the Hero Honda motor cycle bearing No.MH-09/AN/1037 and also a

cellphone. The arrested persons were accused No.2 Satish Doifode and

accused Nitin Chavan. At that time, Satish received a phone call from

Ganesh Jayling Gunjawane, accused No.1. Pursuant to that call, the

police found the appellant accused No.1 Ganesh standing near Kagal,

Kolhapur, waiting for money from the arrested accused. The police

realised that Ganesh, accused No.1, was the mastermind behind this plot

of kidnapping. He was related to the complainant and, therefore, he

wanted to stay away from the entire scene. The police arrested him and

seized his mobile under the panchanama. Thereafter, the police recorded

the statements of many witnesses on the point of the incident of

kidnapping. They also collected evidence of the Call Data Records of the

cellphone of the accused Nos.1 and 2 and the father of the victim boy.

The police also recorded the statements of the persons from the vicinity

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where the boy was kept on 26th August evening for few hours till he was

taken to Kolhapur. Test identification parade was conducted by the police

and after completion of the investigation, police filed chargesheet in the

Court of the Judicial Magistrate. As the offence under section 364A was

registered, it was committed to the Court of Sessions. As the accused

pleaded not guilty, the learned Sessions Judge framed charge against the

accused Nos.1, 2 and 3 under sections 363, 364A, 365, 368 and 384 and

also under section 120B of the Indian Penal Code. The accused Nitin

Chavan at the time of the incident was below 16 years, and hence, he was

not tried before the Sessions Court, but he was sent to juvenile Court.

3. The prosecution examined 29 witnesses and after considering the

evidence - oral and documentary, the learned trial Judge convicted the

accused as mentioned above. Hence, these appeals.

4. Both the learned Counsel for the accused No.1 and the learned

Senior Counsel for accused No.2 have submitted that the conviction is

based on insufficient evidence, surmises and conjectures should not

sustain. The evidence of the witness i.e., PW8 Rohini Balasaheb Mirajkar,

on the point of actual kidnapping of the child Akshay cannot be believed.

At the time of recording of evidence i.e., on 16.6.2007, Rohini was 16

years old and the incident has taken place on 26.8.2006. So, she was 15

years old at that time. As per her evidence, she had seen two motor

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cyclists arriving at the place where Akshay was playing. She has

described the motor cyclists, by clothes what they were wearing and they

were 20 to 22 years old persons. However, she was not called for test

identification parade. She identified the accused persons in the Court hall

and such identification cannot be believed. The learned Counsel further

submitted that on 18.9.2006, the test identification parade was conducted

by PW15 one Ajay Pawar, Tehsildar. However, in the cross-examination,

the defence could bring the admissions about the visibility of the accused

persons when he was brought for the parade.

ig The learned Senior

Counsel argued that PW15 has conducted test identification parade in a

most objectionable manner without following the rules of the test

identification parade. He further submitted that the memorandum of test

identification parade (exhibit 72) cannot be believed. In the evidence of

PW13 Ms.Vimal Madhukar Kadam, who was security guard and who was

residing in the vicinity, where the complainant was residing claimed that

she had seen the victim being kidnapped by two motor cyclists. It was

submitted that her evidence may not be given any importance as she was

a chance witness. The manner in which the test identification parade was

conducted, the learned Counsel submitted, that the prosecution could not

establish the identification of the accused persons, who picked up the boy

and that is the main lacunae in the case of the prosecution. The learned

Counsel submitted that the evidence of Sadashiv, the father of the victim,

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is also not reliable as it is full of material omissions and contradictions in

respect of the phone calls and the arrest of the accused persons. The

learned Counsel further submitted that though it is the case of the

prosecution that the complainant, the father of the victim, had received a

number of phone calls in the night intervening between 26.8.2006 and

27.8.2006, the witnesses on the point of phone calls made by the accused

persons from the coin box phones did not support the case of the

prosecution. PW4 Sangram Ashok Solanki, the owner of the Coin Box

Phone at Kolhapur, PW5 Deepak Suryawanshi, owner of Coin Box

Phones at different places in Kolhapur, have turned hostile in respect of

the identification of the accused and phone calls made by them from the

coin box are not proved. It is further submitted that the police have

collected CDR, in respect of the phone calls i.e., phone of Sadashiv, also

other phone Nos.222583 and 325881 from hotel Sadguru for which

prosecution has examined PW12 Pandurang Mahadev Bapat. However, it

is further submitted that the original copies of CDRs are not produced and,

therefore, the call records could not be exhibited and read in evidence. It

is further submitted that the prosecution failed to establish the place where

the boy was kept after he was kidnapped. As per the case of the

prosecution, Akshay was kidnapped at late evening on 26.8.2006 and was

kept in one flat at Chavan building. However, PW1 Kusumaben Chavan,

the owner of the Chavan building and so also PW2 Jaya @ Ashwini Anil

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Ranbhise, maid in the Chavan building, did not support the case of the

prosecution on the point of keeping Akshay in the house by accused Nos.1

and 2. It is further submitted that the evidence Raju Teli, owner of a paav

bhaji stall at Pandharpur, cannot help as he turned hostile. The evidence

of PW12 Pandurang Bapat, owner of Sadguru hotel, suffers in absence of

corroboration, as no connection between the landline calls to the mobile

phone of the complainant could be established. It is further submitted that

there is no evidence against the accused No.1 Ganesh who was not

caught by the police at the spot. Hence, it is submitted that the accused

are to be acquitted.

5. The learned Prosecutor while opposing the appeal, has argued that

the prosecution has produced cogent and credible evidence. It is a case

where the accused No.2 alongwith the juvenile accused were arrested red

handed with the ransom amount and the boy. She submitted that the

judgment and order passed by the learned trial Judge is to be maintained.

6. We have perused the evidence of all the witnesses carefully. At the

outset, we express that it is a very bad case for both the

appellants/accused. The accused No.2 Satish alongwith the juvenile

accused were caught red handed under the bridge near the Mayur

Dhabha at Kolhapur in the early morning. On the point of raid, the

evidence of Sadashiv, the father of the boy, so also the evidence of two

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independent witnesses, namely, PW10 Revnath Bhujangrao Patil and

PW9 Irfan Mujawar, the panchas of the trap panchanama and the police

witnesses, is found absolutely consistent and that itself made the case of

the prosecution water tight. PW17 Sadashiv gave details of kidnapping of

his son. His evidence is corroborated with the FIR (exhibit 79). He has

stated that there were continuous calls since two days prior to the actual

date of kidnapping. These calls were for hiring Poklane machine from the

father of the victim. However, after reading entire evidence, it is clear that

the accused persons were trying to find out when and at what time the

complainant was coming back to Pandharpur alongwith the boy. After

kidnapping of the boy, no calls of Manager of Reddy were received by the

complainant.

7. The boy was picked up on 26.8.2006 from the outside of his house.

He is examined as a child witness. He has stated that when he was

playing, he was lifted by two persons riding a motor cycle. Then, he was

kept in a room on the second floor. He was also beaten up at that place

and thereafter he was taken to Kolhapur. He met his father on the next

date at 7am near the bridge at Mayur Dhaba in Kolhapur. He was brought

there on the motor cycle. The evidence of the boy was recorded on

21.4.2008, that means 1½ year after the incident. However, it appears

that he could depose the important facts, which as per his tender age, has

noted down in his memory. His evidence fully fortifies the case of

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kidnapping as it corroborates in all the material particulars of the evidence

of his father and Rohini. Therefore, though Rohini was not called for

identification parade, her evidence does not lose credibility on the point of

kidnapping. It is true that the CDR of the cellphone of the complainant and

the phone calls made by the accused persons from different places could

not be properly proved and exhibited, yet, the evidence of the complainant

that he has been receiving phone calls continuously in the late evening

and the night intervening 26.8.2006 and 27.8.2006 is sufficient to believe

the fact that there was a demand of ransom of Rs.10 lakhs from the

anonymous person or the kidnapper and he was told to reach Kolhapur

alongwith ransom money.

8. A point of omissions and contradictions in the evidence of PW2 was

pressed but after going through the evidence, we felt that these omissions

are not correctly recorded. Hence, we checked it from the statement

under section 161 which we generally do not look into. However, we

found that alongwith many insignificant omissions, the material evidence is

also craftily brought on record in the nature of omissions and

contradictions in the cross-examination, which ought not to have been

recorded at all. The trial Judge has to be cautious while taking omissions

and contradictions on record. If insistence is made by the defence Counsel

of taking insignificant omissions on record, then, the trial Judge needs to

point out in bracket, which is the omission and which is not. The recording

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of the evidence by the trial Court should be like a mirror so that the

appellate Court gets the exact idea as to what witness has deposed and

what has taken place at the time of the trial. The appellate Court has to go

alongwith the matter with faceless evidence and so the recording of the

evidence is a vital part of the trial, as assessment is entirely based on it.

9. We would like to observe that the trial Court has not recorded

properly the evidence in respect of omissions and contradictions on the

basis of the previous statements of the witnesses. Statement of a witness

is recoded under section 161 of the Code of Criminal Procedure by the

police and generally after 2 to 3 years, the witness stands in the box and

gives evidence. It is impossible for any human being to remember the

previous statements by-heart and, therefore, his expression in respect of

events which he has witnessed may vary to certain extent. Such variance

is neither a contradiction nor a material omission and therefore, the cross-

examination on each and every minor variation cannot be allowed by

labelling it as a contradiction or omission. A variation which is expected to

be brought on record should be really affecting the veracity of the witness

rendering his evidence unreliable. The witness is bound to use different

terminology and expression.

10. On the point of omission, we rely on the judgment of Supreme Court

in the case of Rammi alias Rameshwar vs. State of M.P [(1999) 8 SCC

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649] and on the Division Bench judgment of this Court in the case of

Raghunath Krishna Mujumale & Ors. vs. State of Maharashtra 1. In the

case of Rammi alias Rameshwar (supra), it was held thus:

"26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of

the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to

contradict the witness the cross-examiner is enjoined to comply with the formality prescribed therein.

Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only

limited purpose, i.e. to contradict the witness.

27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the

present statement, even if the latter is at variance with the former to some extent it would not be helpful to

contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., AIR 1959 SC 1012)."

11. The prosecution has examined the police personnel on the point of

trap and also investigation. PW28 P.I. Sandipan Kerba Londhe, who had

recorded the FIR and also filed the chargesheet, has deposed that on that

night itself, he fixed the Caller ID to the phone of the complainant and it

was tracked that those telephone calls were received from Miraj, Sangli

and Kolhapur area. As per the evidence of the boy, he was taken on the

motor cycle towards Kolhapur. The father collected the amount of Rs.10 1 1987 Mh.L.J. 412

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lakhs; put it in a suitcase and one bag and he proceeded alongwith the

raiding party of the police, panch and his friend. They went near the

bridge at Mayur Dhaba. The police party took positions for the raid. The

complainant and his friend Revnath Patil, panch Irfan Mujawar - all were

waiting for the kidnappers to arrive to take money. Two kidnappers arrived

there with Akshay on the motor cycle. There was exchange of the boy and

the money between the father and the kidnappers. As they were about to

proceed, the raiding party apprehended them on the spot. They threw the

box consisting of money. A knife was found with the accused No.2. Thus,

the trap was successful and the police could apprehend the accused No.2

red handed. This is the most important and unshaken evidence against

the appellants/accused.

12. At that time, as per the evidence of the witness No.17, the panch

PW9 Revnath, PW18 Appa, PW19 Jadhav, PW27 Sandanand Belsare and

also PW25 Chandrakant Shinde, who were all the members of the trap

party, accused No.2 received phone on his cellphone in the presence of

panch. As per the evidence of Irfan Mujawar, the said call was confirmed

as the call from accused No.1 Ganesh, who asked accused No.2 to come

to the spot with money where he was waiting. Accused No.1 informed the

place where to come and accordingly, the police party alongwith accused

No.2, proceeded to the spot near Kolhapur where accused No.1 was

waiting. He was apprehended by the police in the presence of the

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panchas. The cellphone of the accused No.1 was seized. The seizure

panchanama (exhibit 58) and arrest panchanama were drawn by the

police. The phone call made by accused Nos.1 and 2 is a clinching

evidence in establishing the link between the accused Nos.1 and 2 in

respect of the plan of kidnapping. It was submitted by the learned

Prosecutor that accused No.1 was distantly related to the father of the

victim boy and, therefore, he wanted to be in the backdrop and he planned

the kidnapping through accused No.2 and the other juvenile accused. The

arrest of accused No.2 in the morning at Kolhapur and thereafter the

immediate arrest of accused No.1 near Kolhapur in the early morning itself

is a material fact and most incriminating circumstance against the accused

No.1 and 2. This cannot be considered at all as a coincidence or a

chance. Thus, considering the evidence of the prosecution, we are of the

view that the prosecution has proved the case on all the three counts i.e.,

under sections 363, 365 and 364A of the Indian Penal Code. It is a fit

case to confirm the impugned judgment and order. There is evidence to

show that the boy was not only kidnapped but the complainant was

threatened of life of his son and the demand of ransom of 10 lakhs was

made.

13. In these circumstances, the appeals are dismissed.

           (MRIDULA BHATKAR, J.)                       (V.K. TAHILRAMANI, J.)


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