Bombay High Court

Balram Gondram Lokwani vs The State Of Maharashtra on 24 November, 2017

Bench: S.P. Deshmukh

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.147 OF 2006

Laxmikant Mahadeo Pendam, 
Age : 24 years, 
r/o. Saraswati Nagar, Bhusawal,
Taluka Bhusawal, Dist. Jalgaon   ..Appellant
                                  (Orig.Accused no.1)

               Vs.

The State Of Maharashtra                 ..Respondent
                                         (Prosecution) 

                         ----
Mr.P.R.Katneshwarkar, Advocate for the appellant 

Ms.S.S.Raut, APP for the respondent 
                         ----

                                  AND
                    CRIMINAL APPEAL NO.134 OF 2006

Balram s/o. Govindram Lokwani,
Age : 24 years, 
r/o. Shanimandir Ward, Bhusawal,
Taluka Bhusawal, Dist. Jalgaon   ..Appellant
                                  (Orig.Accused no.2)

               Vs.

The State Of Maharashtra                 ..Respondent
                                         (Prosecution) 

                         ----
Mr.R.N.Dhorde, Senior Advocate for the appellant 
Ms.S.S.Raut, APP for the respondent 
                         ----




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                                  2                        cri.appeal.147 and 134




                              WITH
              CRIMINAL APPLICATION NO.6365 OF 2017
                               AND
                 CRIMINAL APPEAL NO.134 OF 2006

Balram s/o. Govindram Lokwani,
Age : 24 years, 
r/o. Shanimandir Ward, Bhusawal,
Taluka Bhusawal, Dist. Jalgaon   ..Applicant
                                  (Orig.Accused no.2)

               Vs.

1. The State of Maharashtra

2. Nishikant s/o. Mangesh @ Manga 
   Kakade, Age : 59 years,
   Occ. Pensioner,
   r/o. Bhusawal, Tq. Bhusawal,
   Dist. Jalgaon                  ..Respondent 

                         ----
Mr.R.N.Dhorde, Senior Advocate for the applicant
Ms.S.S.Raut, APP for respondent no.1
Mr.N.B.Suryawanshi, Advocate for respondent no.2
                         ----

                         CORAM : SUNIL P. DESHMUKH AND
                                 SANGITRAO S. PATIL, JJ.
                   RESERVED ON : NOVEMBER 16, 2017
                 PRONOUNCED ON : NOVEMBER 24, 2017

JUDGMENT (PER SANGITRAO S. PATIL, J.) :

Criminal Appeal Nos.147 of 2006 and 134 of

2006 have been preferred by accused nos.1 and 2

3 cri.appeal.147 and 134

respectively assailing the judgment and order dated

06.02.2006 passed in Sessions Case No.194 of 2004 by

the learned 2nd Additional Sessions Judge, Jalgaon,

whereby they have been convicted for the offence

punishable under Section 364-A read with Section 34

of the Indian Penal Code ("I.P.C.", for short) and

sentenced to suffer imprisonment for life and to pay

a fine of Rs.1,000/- each, with default stipulation.

2. For the sake of convenience, the appellants,

hereinafter, would be referred to as accused no.1 and

accused no.2.

3. The informant namely, Nishikant Mangesh

Kakade, r/o. Vikas Colony, Bhusawal was working as a

Manager in the State Bank of India at Bhusawal in the

year 2004. His daughters namely, Janhavi and

Vaishnavi, aged about 11 years and 7 years,

respectively, were studying in St. Aloysius Marathi

Primary School, at Bhusawal, in 6th standard and 2nd

standard, respectively. Their school hours were from

4 cri.appeal.147 and 134

7.00 a.m. to 12.00 noon. An auto-rickshaw was engaged

to facilitate them to attend the school.

4. On 18.06.2004 at about 7.00 p.m., when the

informant went back to his house, his wife namely,

Manisha informed that on that day at about 1.30 p.m.,

a boy aged about 20 to 22 years, having blackish

complexion and who had worn a jeans pant and T-shirt,

had been to their house to collect information of

their daughters namely, Janhavi and Vaishnavi, on the

say that the said information was necessary for

drawing their insurance policies. However, she did

not furnish any information to him. The said boy

asked for drinking water. When she went to another

room to bring water, the said boy asked the names of

the daughters, who were in the front-side room. After

drinking water, that boy went away.

5. On 22.06.2004 at about 7.00 a.m., Janhavi

and Vaishnavi went to their school by an auto-

rickshaw. The informant also attended his office at

5 cri.appeal.147 and 134

about 10.30 a.m. When he was sitting inside his

cabin, a boy of the above-mentioned description came

there at about 1.00 p.m. to 1.15 p.m. and asked the

informant, whether he had received any phone call.

When the informant answered him in the negative and

further asked as to who had proposed to call him on

phone, the said boy answered that he wanted to open a

new account and went away.

6. Then at about 2.15 p.m., the wife of the

informant phoned him and informed that Janhavi and

Vaishnavi had not come back from the school and the

rickshaw driver told her that somebody had taken away

both of the daughters from the school.

7. The informant then started to go to the

school. At that time, an unknown person called him

through mobile no.9822876909 and informed him that

both the daughters were with him and demanded

Rs.25,00,000/-. He further informed that he would

call after sometime and ended the call.

6 cri.appeal.147 and 134

8. The informant went to the school to inquire

about his daughters, whereon the Headmistress of the

school informed him that sometime prior to the end of

the school hours, two boys aged 20 to 22 years gave a

written application informing that the mother of

Janhavi and Vaishnavi had met with an accident and

therefore, they wanted to take Janhavi and Vaishnavi

to their house. After receiving that application,

both the girls were given in the custody of those two

boys. Both of them took away the two girls with them.

9. Thereafter, the informant went back to his

bank. He then received three phone calls from a

person with the intervals of 15 to 20 minutes from

phone no.02582225826 asking him whether he had

arranged for money and informing that his daughters

were safe with him. The informant expressed his

inability to arrange for the amount demanded and on

being asked by that person, stated that he had

arranged for Rs.50,000/-. The informant then asked

that person as to where he should hand over that

7 cri.appeal.147 and 134

amount. The said person then told the informant that

he would come to the bank and take away the amount.

The said person again said that the question of

payment of money would be considered lateron and that

his daughters would reach his house within 5 to 10

minutes. It was the time of about 3.40 p.m.

Thereafter, informant received a phone call at about

4.00 p.m. from his wife, who informed that both the

daughters had come to the house.

10. The informant went to his house and asked

Janhavi as to what had happened. She informed that

the boy, who had been to their house before 3-4 days,

had come to her school and informed that her mother

had met with an accident and her father had called

her to Jalgaon. The said person obtained permission

from her teacher and took Vaishnavi and herself from

the school to a petrol pump. He then made them to sit

in a bus (Luxury) with his friend, who was of fair

complexion, and he stayed there only. The friend of

that boy then took both of them to Jalgaon and again

8 cri.appeal.147 and 134

brought them to Bhusawal by S.T. Bus. Then, from S.T.

bus - stand, they were made to sit in an auto-

rickshaw with instructions to the rickshaw-driver

to reach both of them to their house.

11. The informant went to Bazar Peth Police

Station, Bhusawal and lodged F.I.R. against unknown

persons. On the basis of that F.I.R., Crime No.81 of

2004 came to be registered for the offence punishable

under Section 364-A read with Section 34 of the

I.P.C. A.P.I. Borse conducted investigation. He

seized the chit/application given for the purpose of

taking away Janhavi and Vaishnavi from the school. He

recorded statements of witnesses. On the basis of the

phone numbers given by the informant, through which

the person kidnapping Janhavi and Vaishnavi had

contacted the informant, A.P.I. Borse could connect

accused no.1 with the said incident. He arrested

accused no.1 on 24.06.2004. On the basis of further

investigation and interrogation with accused no.1, he

found that accused no.2 was also involved in the

9 cri.appeal.147 and 134

incident of kidnapping. Therefore, he arrested

accused no.2 also on 24.06.2004. A note-book bearing

the hand-writing of accused no.1 came to be seized.

His specimen hand-writings were obtained. The said

documents were subsequently sent to the hand-writing

expert with the chit/application received from the

Headmistress of the school.

12. When accused no.1 was in the police custody

on 29.06.2004, he gave a disclosure statement and

offered to produce two SIM-cards of IDEA company, the

bills under which they were purchased by him and two

mobile hand-sets of Siemens company. Accordingly, the

said SIM-cards, mobile hand-sets and the bills came

to be seized on being produced by him from his house.

The SIM-cards were in respect of the same mobile

numbers on which the informant had received calls on

the day of the incident in connection with kidnapping

of Janhavi and Vaishnavi and demand of

Rs.25,00,000/-. A.P.I. Borse collected the Call

Details Record (C.D.R.) in respect of the SIM-cards.

10 cri.appeal.147 and 134

Test identification parade of accused nos.1 and 2 was

conducted on 28.06.2004 through the Tahsildar.

Accused nos.1 and 2 were identified by Janhavi as the

same person, who had taken Vaishnavi and herself from

the school on the day of the incident. Accused no.1

was identified by the informant and his wife Manisha

as well.

13. The opinion of the hand-writing expert

disclosed that the chit given to the Headmistress,

while taking away Janhavi and Vaishnavi from the

school, was in the hand-writing of accused no.1.

After completion of the investigation, accused nos.1

and 2 came to be charge-sheeted for the above-

mentioned offence in the Court of the learned

Judicial Magistrate F.C., Bhusawal.

14. The offence punishable under Section 364-A

of the I.P.C. being exclusively triable by the Court

of Session, the learned Magistrate committed the case

to the Sessions Court at Jalgaon.

11 cri.appeal.147 and 134

15. The learned trial Judge framed Charge

against both the accused for the above-mentioned

offences vide Exh.15 and explained the contents

thereof to them in vernacular. The accused pleaded

not guilty and claimed to be tried. Their defence is

that of total denial and false implication.

16. The prosecution examined thirteen witnesses

to establish guilt of the accused for the above-

mentioned offence. The learned trial Judge

scrutinised the said evidence and came to hold that

the prosecution established guilt of the accused for

the above-mentioned offence beyond reasonable doubt.

He, therefore, convicted and sentenced the accused

for the above-mentioned offence, as stated above.

17. The learned Counsel for accused no.1 submits

that there are a number of deficiencies in the

evidence of the prosecution, which make it

unbelievable. According to him, the identity of

accused no.1 itself has not been duly proved. He

12 cri.appeal.147 and 134

submits that the wife of the informant namely,

Manisha had seen accused no.1, however she has not

been examined by the prosecution without assigning

any reason. He then states that the description and

features of accused no.1, as stated by the

Headmistress of the school and Janhavi were not at

all sufficient to connect accused no.1 with the

incident in question. The Tahsildar has not followed

the provisions of the Criminal Manual issued by the

High Court in respect of test identification parade

and therefore, the evidence of the informant and

Janhavi about having identified accused no.1 in the

T.I. Parade cannot be believed. He submits that if

the evidence in respect of the T.I. parade is

disregarded, there remains hardly any evidence to

connect accused no.1 in question.

18. The learned Counsel for accused no.1 further

submits that the C.D.R. has been wrongly admitted by

the learned trial Judge. According to him, in the

absence of the certificate under Section 65-B of the

13 cri.appeal.147 and 134

Evidence Act, the evidence in respect of the C.D.R.

was not at all admissible in view of the judgment in

the case of Anvar P.V. Vs. P.K. Basheer and ors.,

(2014)10 SCC 473. The learned Counsel submits that

the evidence on record falls short in establishing

the ingredients of the offence under Section 364-A of

the I.P.C. According to him, the learned trial Judge

did not appreciate the evidence on record correctly

and properly. Accused no.1 has been wrongly held

guilty for the above-mentioned offence. He,

therefore, prays that the impugned judgment and order

may be set aside and accused no.1 may be acquitted.

19. The learned Counsel for accused no.1, in the

alternative, submits that from the facts of the case,

at the most, the offence of kidnapping made

punishable under Section 363 of the I.P.C. would be

disclosed. If accused no.1 is held guilty for the

said offence, it may be considered that the incident

took place before about 13 years. At that time,

accused no.1 was aged about 22 years. He has no

14 cri.appeal.147 and 134

criminal antecedents. He has now got married and is

having responsibility of his family. The daughters of

the informant safely reached his house. Nothing

objectionable was done with them. In view of the

above circumstances, the learned Counsel prays that

benefit of probation may be given to accused no.1.

In the alternative, he submits that accused no.1

was behind the bars for about five months in respect

of this crime. Therefore, if the benefit of probation

could not be given to him, accused no.1 may be

sentenced for the period, which he has already

undergone.

20. The learned Senior Counsel for accused no.2

adopts the arguments advanced on behalf of accused

no.1 in respect of merits of the case. In addition to

that, he submits that the identity of accused no.2 is

not at all established. He submits that the evidence

connecting accused no.2 with the incident in question

is not cogent, consistent and believable. He,

therefore, prays that accused no.2 may be acquitted.

15 cri.appeal.147 and 134

In the alternative, he submits that accused no.2

filed an application stating therein that there has

been amicable settlement between the informant and

himself. The informant has filed an affidavit in

support of that application stating that the

incident has taken place before thirteen years. He

intends to forgive accused no.2 since, at the

relevant time, he was a young student and in the

young age, he committed mistake, which resulted into

present case. The learned Senior Counsel submits that

accused no.2 has no criminal background. He is a

young person having responsibility of his family.

Since the offence is not compoundable, considering

the above facts and circumstances of the case as well

as the role played by accused no.2, the learned

Senior Counsel prays that accused no.2 may be given

benefit of probation.

21. The case of the prosecution is depending on

direct as well as circumstantial evidence. So far as

accused no.1 is concerned, there is direct evidence

16 cri.appeal.147 and 134

of Janhavi (PW 6)(Exh.34) and the Headmistress of the

school - Sister Juvana (PW 9)(Exh.37). The evidence

of the informant - Nishikant (PW 1)(Exh.23) also

shows involvement of accused no.1 in the incident in

question.

22. Janhavi (PW 6) deposes that she was aged

about 11 years and was studying in 6th standard in St.

Alies High School, Bhusawal when the incident took

place. She further states that her younger sister

Vaishnavi was studying in 2nd standard in the same

school. The informant also states the same. This

evidence has not been challenged on behalf of the

accused persons. It is, thus, clear that Janhavi

(PW6) and Vaishnavi were much below 18 years of age

at the time of the incident.

23. Janhavi (PW 6) deposes that on 18.06.2004 at

about 1.30 p.m., she was at her home with her mother.

At that time, a boy of blackish complexion came there

and asked her mother about their details for the

17 cri.appeal.147 and 134

purpose of getting them insured. The said boy asked

for drinking water. When her mother went inside the

other room, the said boy asked her about her name,

phone number, school name and standard. After

drinking water, he went away.

24. Janhavi (PW 6) then states that on

22.06.2004, she had gone to school along with her

younger sister - Vaishnavi. Some time prior to the

closing hours of the school, a Peon came to her class

and told the class-teacher that somebody had come to

take her (Janhavi - PW 6). Therefore, she went to

the office of the Headmistress. Her sister Vaishnavi

also was there. Janhavi (PW 6) states that the boy,

who had come to their house prior to about four days,

was present there with his colleague. Her teacher

asked, whether she was knowing the said boy of

blackish complexion. Janhavi (PW 6) replied that she

was knowing him. She states that the said boy told

her that her mother had met with an accident and he

had come to take her for going to Jalgaon. She then

18 cri.appeal.147 and 134

states that the said boy of blackish complexion and

his friend, having fair complexion, took her sister

and herself to bus-stand, Bhusawal, in an auto-

rickshaw. They were made to sit for sometime.

Thereafter, they were taken to Jalgaon by S.T. bus by

the boy who was of fair complexion. They were made

to sit at the bus-stand, Jalgaon, for half an hour.

Thereafter, the boy of fair complexion brought them

back to Bhusawal by bus. After alighting from the

bus at bus-stand, Bhusawal, they found the boy of

blackish complexion present there. He sent her

sister and herself to their house in an auto-

rickshaw. Janhavi (PW 6) identifies accused no.1 as

the boy of blackish complexion and accused no.2 as

the boy of fair complexion.

25. The evidence of Janhavi (PW 6) about visit

of accused no.1 to her house prior to about four days

of the incident, has not been challenged in her

cross-examination. Her further evidence, that on

22.06.2004, accused no.1, who had been to her house

19 cri.appeal.147 and 134

about four days prior to the incident, had come to

the school to take her and her sister and on being

asked by her teacher, she replied that she was

knowing accused no.1, also has not been challenged in

her cross-examination. Whatever role has been

attributed by Janhavi (PW 6) against accused no.1 in

her examination-in-chief has not at all been

challenged in her cross-examination.

26. As regards accused no.2 also, the evidence

of Janhavi (PW 6) is very specific. From her

evidence, it is clear that accused no.2 was with her

right from her school to the bus-stand at Bhusawal.

Thereafter, Vaishnavi and herself went with accused

no.2 at Jalgaon. At Jalgaon also, they were with him

for about half an hour. Thereafter, accused no.2

brought them back by bus from Bhusawal to Jalgaon.

Thus, Janhavi (PW 6) was in the company of accused

no.2 for sufficient time so as to remember his face

and features. Except putting a suggestion denying

that no incident, as alleged by Janhavi (PW 6), had

20 cri.appeal.147 and 134

taken place, which has been flatly denied by her,

nothing has been elicited in her cross-examination so

as to throw doubt on her version about the role

attributed by her against accused no.2.

27. It is clear that Janhavi (PW 6), who was

aged about 11 years and was quite a competent

witness, as seen from the manner in which she has

given the evidence before the Court, was knowing

accused nos.1 and 2 by their faces and appearances.

Her evidence shows that she had seen both the accused

for sufficiently long a time. She had sufficient

time and opportunity to have longstanding imprints in

her mind about the faces and features of accused

nos.1 and 2. It is not that she had a passing glance

of the accused for a few minutes and therefore, it

was not possible for her to remember their faces and

appearances so as to make her difficult to identify

them.

21 cri.appeal.147 and 134

28. Janhavi (PW 6) had no axe-to-grind against

accused nos.1 and 2. Her evidence is quite natural,

cogent and dependable. There is no reason for her to

falsely implicate accused nos.1 and 2 in the incident

in question. There is absolutely no possibility of

mistaken identity of accused nos.1 and 2 on the part

of Janhavi (PW 6).

29. Sister Juvana (PW 9) was working as

Headmistress in St. Aloysius Marathi Primary School

in the year 2004. She states that she received a

phone call in the name of the father of Janhavi (PW6)

and Vaishnavi, that their mother had met with an

accident and was shifted to Jalgaon. She was asked

to send both of them with a boy who was being sent by

the informant i.e. Mr.Kakade (PW 1) to school. She

states that thereafter the said boy came to the

school. She asked for an application from the

parents of Janhavi (PW 6) and Vaishnavi. Therefore,

that boy again went back and came with an

22 cri.appeal.147 and 134

application. After reading that application, she got

called Janhavi (PW 6) and Vaishnavi from their class-

rooms. She asked them, whether they were knowing that

boy. Janhavi (PW 6) replied that she was knowing that

boy since he had come to their house prior to about

three days. Then, she [i.e. Sister Juvana (PW 9)]

allowed both the girls to go with that boy. She

identifies accused no.1 as the same boy.

30. From the evidence of Juvana (PW 9), it is

clear that she had sufficient time to interact with

accused no.1. Therefore, it was natural and probable

on her part to note and remember the face and

features of accused no.1. In her cross-examination,

except putting a suggestion denying her evidence that

she identified accused no.1, nothing concrete has

been elicited to raise any suspicion about veracity

about her evidence. Sister Juvana (PW 9) has not been

attributed with any malice against accused no.1. She

had no reason to falsely implicate accused no.1. Her

evidence corroborates the version of Janhavi (PW 6)

23 cri.appeal.147 and 134

about the role attributed against accused no.1 in the

incident in question.

31. Sister Juvana (PW 9) states that accused

no.1 had given an application for taking Janhavi

(PW6) and Vaishnavi with him on the day of the

incident. She states that she handed over that

application to the police. A.P.I. Borse (PW 12)

(Exh.63) deposes that he seized that chit/application

vide panchnama (Exh.64) The panchnama (Exh.64) shows

that it was prepared on 23.06.2004, while seizing the

application/chit from Sister Juvana (PW 9). The fact

that the said application was handed over by Sister

Juvana (PW 9) to the police has not been challenged

in her cross-examination. The evidence of A.P.I.

Borse (PW 12) that he seized that application/chit

from the Sister Juvana (PW 9) under panchnama

(Exh.64) also remained unchallenged in his cross-

examination. Thus, there is absolutely no reason to

disbelieve the evidence of these two witnesses on the

24 cri.appeal.147 and 134

point of seizure of application/chit given by accused

no.1 vide panchnama (Exh.64).

32. A.P.I. Borse (PW 12) states that he sent the

application/chit seized vide panchnama (Exh.64) along

with the specimen hand-writing of accused no.1 to the

hand-writing expert vide letter (Exh.65). This

evidence has not been challenged in his cross-

examination. Kathar (PW 13)(Exh.74), who was working

as Assistant State Examiner of Documents, deposes

that he received one register and seven loose

documents from Bazar Peth Police Station, Bhusawal

with letter (Exh.65). The said documents were

collectively marked as Exh.75. He states that the

questioned writing was marked by him as Exh.A

(Exh.25), the specimen writing as Exh.'B-1' to

Exh.'B-6' and the natural writing from the note-book

of accused no.1 as Exh.'C-1' to Exh.'C-6'. He

examined those documents under various

magnifications, such as simple lens, ultra lens,

microscope, etc. He also examined those documents

25 cri.appeal.147 and 134

under various lighting conditions such as, direct

light, oblique light, transmitted light, etc. He

examined the documents in various sittings. After

thorough examination, he arrived at a conclusion that

the red encircled writings marked by him as Exh.A was

written by the person, who had written Exh.B-1 to

Exh.B-6 and Exh.C-1 to Exh.C-6. Accordingly, he gave

his opinion vide Exh.76. Thus, from the evidence of

Kathar (PW 13), the application/chit (Exh.75) was in

the handwriting of accused no.1. Nothing has been

elicited in the cross-examination of Kathar (PW 13)

so as to throw doubt on his opinion. It is, thus,

clear that accused no.1 alone had given

application/chit (Exh.75) for taking away Janhavi

(PW6) and Vaishnavi from their school on the day of

the incident.

33. The learned Counsel for accused no.1 submits

that the application/chit (Exh.75) was not shown to

Sister Juvana (PW 9) in the Court. It does not bear

any inward number of the school. Therefore, it cannot

26 cri.appeal.147 and 134

be said to have been given by any person in the

school of Janhavi (PW 6) as alleged by the

prosecution. We are not inclined to accept this

contention. As seen from the evidence of A.P.I. Borse

(PW 12), the application/chit (Exh.75) was seized

from Sister Juvana (PW 9) vide panchnama (Exh.64) on

23.06.2004. It was sent to Kathar (PW 13) with letter

(Exh.65) dated 08.08.2004. Kathar (PW 13) gave his

opinion (Exh.76) on 15.02.2005. As such, the said

application/chit (Exh.75) was with him until he gave

his opinion. Sister Juvana (PW 9) was examined on

31.01.2005. As such, the said application/chit was

not before the Court on the date on which Sister

Juvana (PW 9) was examined. Therefore, she stated

that she would identify that application if shown to

her. In the circumstances, it cannot be said that

though the application/chit was available before the

Court, it was not shown to Sister Juvana (PW 9). It

may be noted that the fact about receiving of the

application/chit was stated by Juvana (PW 9) to the

27 cri.appeal.147 and 134

police on the next day of the incident and the said

application/chit was seized by A.P.I. Borse (PW 12)

vide panchnama (Exh.64) on 23.06.2004 itself. As

stated above, accused no.1 was arrested on

24.06.2004. It is, thus, clear that even prior to the

arrest of accused no.1, it was handed over by Sister

Juvana (PW 9) to the police. In the circumstances,

only because the said application does not bear the

inward number, it cannot be said that it was not

received by Sister Juvana (PW 9) on 22.06.2004. It

was most natural and probable on the part of Sister

Juvana (PW 9) to ask for something in writing, while

giving the daughters of the informant in the custody

of some third person. It is, thus, clear that the

application (Exh.75) is genuine document, which was

received by Sister Juvana (PW 9) on the day of the

incident itself from accused no.1.

34. The evidence of Janhavi (PW 6) is

corroborated by the evidence of Sister Juvana (PW 9)

in respect of the role played by accused no.1. The

28 cri.appeal.147 and 134

involvement of accused no.1 in the incident in

question, has been strongly corroborated by the

evidence of Kathar (PW 13), who opined that the

application/chit (Exh.75) was in the handwriting of

accused no.1. The informant also identifies accused

no.1 as the same person who had been to his cabin on

22.06.2004 at about 1.00 p.m. It is well settled

that evidence has to be weighed and not counted.

Considering this strong and dependable evidence to

connect accused no.1 with the incident in question,

non-examination of Manisha, i.e. the mother of

Janhavi (PW 6), would have no adverse effect on the

case of the prosecution.

35. So far as the role attributed against

accused no.2 is concerned, we find the evidence of

Janhavi (PW 6) itself, worthy of credence. It creates

a great confidence. She has no reason to falsely

implicate accused no.2 in the incident in question.

29 cri.appeal.147 and 134

36. The learned A.P.P. submits that Darare

(PW10)(Exh.38), the Tahsildar, conducted T.I. parade

on 28.06.2004 and accused nos.1 and 2 were identified

by the witnesses as accused persons. She submits that

the this is an additional piece of evidence to

corroborate the evidence of Janhavi (PW 6). She

cited the case of Prakash Vs. State of Karnataka,

(2014) 12 SCC 133, wherein it is observed as under :-

" T.I. Parade is not mandatory nor can it be claimed by the suspect as a matter of right. The purpose of pre- trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time."

30 cri.appeal.147 and 134

37. The learned Counsel for the accused have

challenged the evidence of Darare (PW 10) on various

grounds. According to them, he prepared the

memorandums Exhs.39, 41, 43, 45, 47, 49, 51 and 53 in

respect of the T.I. parade when the identifying

witnesses were called upon to identify accused nos.1

and 2 each. Darare (PW 10) has mentioned the duration

of parade attended by all the identifying witnesses

as "12.15 p.m. to 1.50 p.m." They submit that

panchas were supposed to be called by Darare (PW 10),

however, he clearly states that he had asked the

police to bring two panchas and accordingly, they

were produced by the police. If this version is

accepted, it would through doubt on the fairness of

the T.I. parade. The learned Counsel for accused

no.1 has relied on the following judgments to

challenge the evidentiary value of T.I. parade

conducted by Darare (PW 10):-

                                            31                        cri.appeal.147 and 134



                i.      Ramcharan  Bhudiram  Gupta  Vs.   The  State

of Maharashtra, 1996(1) Bom.C.R.190;

ii. Vilas Vasantrao Patil Vs. State of Maharashtra, 1997(Supp.) Bom.C.R.152;

                iii.             Balu   Shravan   Ahire   Vs.   State   of 
                Maharashtra, 2001(2)Mh.L.J. 76;

                iv.              Sanjay @ Gangadhar Vishvarup Shelke

and anr. Vs. State of Maharashtra, 2000 Bom.C.R. (Cri.) 684;

                v.               Ayyub   Vs.   State   of   Uttar   Pradesh, 
                (2002)3 SCC 510.

38. The sum and substance of these rulings is

that the Officer, who conducts T.I. parade has to

strictly follow the provisions laid down in the

Criminal Manual issued by the High Court for guidance

of the Criminal Courts and Officers subordinate to

them. There should not be inordinate delay in holding

T.I. parade. There should not be interference by the

police investigating the crime in the T.I. parade.

The Officer holding T.I. parade has to call two

32 cri.appeal.147 and 134

respectable persons as panchas. The chances of the

suspects being shown to the witnesses prior to their

test identification should be eliminated.

39. In the present case, from the evidence of

Darare (PW 10), it is clear that he had taken

maximum care to see that the T.I. parade in respect

of accused nos.1 and 2 is held as per the provisions

of Criminal Manual. The only defects on his part are

that he got called the panchas through police and

further instead of recording specific time of test

identification in respect of each individual

identifying witness, he mentioned the total time in

the memorandums that was required by him to

complete the proceedings. In the circumstances,

in our view, the evidentiary value of the T.I. parade

would get minimised. It has been held in the case

of Prakash Vs. State of Karnataka (supra) cited by

the learned A.P.P., the purpose of pre-trial

identification evidence is to provide corroboration

to the evidence given by the witness or

33 cri.appeal.147 and 134

victim later in Court and if the suspect is a

complete stranger to the witness then an

identification parade is desirable. In our view,

even if the corroborative evidence pertaining to T.I.

parade is kept out of consideration for the above-

mentioned faults on the part of Darare (PW 10) in

conducting T.I. parade, considering the strong and

dependable substantive evidence of Janhavi (PW 6),

Sister Juvana (PW 9) and that of Hand Writing Expert

Kathar (PW 13), the prosecution established beyond

reasonable doubt identity of accused nos.1 and 2 as

the persons involved in the incident in question.

40. The prosecution is relying on the evidence

of Sachin Shinde (PW 11)(Exh.59), the Nodal Officer

of IDEA Mobile Company. He produced C.D.R. (Exh.61)

to establish that the informant received phone calls

from mobile SIM-card numbers 9822876909 and

9822876706 which, allegedly, were purchased by

accused no.1 from Nandan (PW 7)(Exh.35) and were

produced by accused no.1 consequent upon his

34 cri.appeal.147 and 134

disclosure statement (Exh.30) recorded on 29.06.2004

in the presence of Nilesh (PW 4). The learned Counsel

for accused no.1 relies on the judgment in the case

of Anvar P.V. (Supra), wherein it is held as under :-

"....

22. The evidence relating to electronic record, as noted herein-before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in the case of State (NCT of Delhi) Vs. Navjot Sandhu, (2005) 11 SCC 600, does not lay down the correct legal

35 cri.appeal.147 and 134

position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."

41. Admittedly, Sachin Shinde (PW 11) has not

produced the certificate under Section 65-B of the

Evidence Act along with the C.D.R. In the absence of

such certificate, the C.D.R. (Exh.61) would be

inadmissible in evidence. If that be so, the evidence

in respect of the seizure of the mobile hand-sets,

SIM-cards and C.D.R. would not be of any help to the

prosecution to connect accused no.1 with the incident

in question and more particularly, with the alleged

demand of money made by him from the informant, since

his evidence that he received phone calls from any

36 cri.appeal.147 and 134

particular mobile numbers at any point of time after

his daughters were taken away from the school, would

remain uncorroborated.

42. From the above discussed evidence, it will be

clear that accused nos.1 and 2 took away Janhavi

(PW6) and Vaishnavi from their school on the pretext

that their mother had met with an accident and

therefore, they were required to be taken to their

mother at Jalgaon. It is well settled that the

guardianship of the parents does not cease while the

minor is in the physical possession of any other

person, who has been lawfully entrusted with care and

custody of such minor by its parents. In the present

case, the accused persons took away Janhavi (PW 6)

and Vaishnavi without the consent of their parents

from their school, where they were lawfully entrusted

by their parents for care and custody. As such, they

committed the offence of kidnapping, as defined under

Section 361 of the I.P.C.

37 cri.appeal.147 and 134

43. The evidence of the informant that somebody

phoned him and demanded Rs.25,00,000/- from him on

saying that his daughters were in his custody and

that he offered Rs.50,000/- to that person, does not

find any corroboration, since the alleged C.D. Record

has not been proved by the prosecution. The informant

deposes that when he offered to pay Rs.50,000/- to

the person who was talking on phone, the said person

told him that he would drop his daughters within 5-10

minutes. The daughters of the informant had

accordingly reached his house and his wife informed

that fact to him after about 10-15 minutes. From this

evidence, it does not appear that the daughters of

the informant were detained by the accused persons

for ransom. Here, it would be necessary to refer to

the judgment in the case of Philips Fadrick D'souza

and Ravindra @ Balu Pandurang Kambre Vs. The State of

Maharashtra and anr., 2009 Cri.L.J.89 cited on behalf

of accused no.1, wherein the essential ingredients of

Section 364-A of the I.P.C. are dissected, as

38 cri.appeal.147 and 134

under :-

"Where a person :

(a) (i) kidnaps or abducts any person or;

(ii) keeps a person in detention after such kidnapping or abduction; and

(b) (i) threatens to cause death or hurt to such person; or

(ii) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt; or

(iii) causes hurt or death to such person; and

(c) in order to compel the Government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom."

44. The evidence on record does not prove above-

referred ingredients (b) and (c). As such, the

offence under Section 364-A of the I.P.C. is not

39 cri.appeal.147 and 134

established against the accused. In the

circumstances, we hold that the prosecution has

failed to establish the guilt of the accused for the

offence punishable under Section 364-A of the I.P.C.

However, the prosecution has established beyond

reasonable doubt that accused nos.1 and 2, in

furtherance of their common intention, committed the

offence of kidnapping as defined under Section 361

punishable under Section 363 of the I.P.C.

45. The learned trial Judge did not appreciate

the evidence of the prosecution correctly and

properly and wrongly held the accused guilty for the

offence punishable under Section 364-A of the I.P.C.

The said finding is not supported by the evidence on

record.

46. The learned Counsel for the accused cited

the judgments in the cases of Surendra Kumar Vs.

State of Rajasthan, AIR 1979 SC 1048 and Ved Prakash

Vs. State of Haryana, AIR 1981 SC 643, seeking

40 cri.appeal.147 and 134

benefit of probation. In view of the peculiar facts

of these cases, gravity of offences, the antecedents

and character of the accused persons therein, the

benefit of probation was extended to them. In the

present case, the offence of kidnapping the minor

girls of the informant, being serious one, we are not

inclined to grant the said benefit to accused nos.1

and 2.

47. Since the offence under Section 363 of the

I.P.C. is not compoundable, the application filed by

the informant bearing Criminal Application No.6365 of

2017, seeking permission to compound the offence,

cannot be considered and simply will have to be filed

and is accordingly filed.

48. The learned Senior Counsel for accused no.2

referred to the case of Surendra Nath Mohanty and

anr. Vs. State of Orissa, AIR 1999 SC 2181, wherein

it was observed as under :-

                                         41                          cri.appeal.147 and 134



               "       Though   the   offence   punishable   under  
               Section   326   of   the   I.P.C.   is   not

compoundable, considering the fact that the parties had settled their dispute outside the Court, 10 years had elapsed from the date of the incident and accused had already undergone three months rigorous imprisonment, sentence of imprisonment was reduced to the period already undergone."

49. The learned Senior Counsel further referred

to the case of Puttaswamy Vs. State of Karnataka and

anr., 2009 AIR SCW 1744, wherein the offences were

non-compoundable, but since the parties had reached

at a compromise, the Hon'ble Supreme Court, while

maintaining the conviction increased fine from

Rs.2,000/- to Rs.25,000/- and reduced the sentence to

the period already undergone. On the strength of

these rulings, the learned Senior Counsel prays that

leniency may be shown to the accused in the matter of

inflicting punishment.

42 cri.appeal.147 and 134

50. The record shows that the accused were aged

22 and 24 years respectively, at the time of the

incident. Though they kidnapped the minor daughters

of the informant, they did not take any disadvantage

of their position. The daughters of the informant

did not allege any indecent or objectionable behavior

with them by the accused when they were in their

custody. The accused did not insist for money for

releasing the daughters of the informant from their

custody. They safely reached the daughters of the

informant to his house. The accused are having

responsibilities of their family members including

their aged parents. The period of thirteen years has

been elapsed after the incident. The informant also

has tendered pardon to accused no.2. Considering

these mitigating circumstances, we are inclined to

show leniency in the matter of inflicting punishment.

51. Both the accused were arrested on 24.06.2004

and released on bail on 23.09.2004. They were taken

into custody on being convicted by the trial Court on

43 cri.appeal.147 and 134

06.02.2006 and were released on bail by this Court on

03.04.2006. As such, they were behind the bars for

about five months in connection with this crime. In

our view, instead of sending the accused persons

behind the bars anymore, if they are asked to pay

substantial fine amount, it would meet the ends of

justice. In our view, the accused need to be

sentenced to suffer the imprisonment, which they have

already undergone and to pay a fine of Rs.25,000/-

each, with default stipulation.

52. The appeals are liable to be partly allowed.

The impugned judgment convicting the accused for the

offence punishable under Section 364-A read with

Section 34 of the I.P.C. is liable to be quashed and

set aside. Instead, they are liable to be convicted

for the offence punishable under Section 363 of the

I.P.C.

53. In the result, we pass the following

order :-

                                    44                        cri.appeal.147 and 134




                                  O R D E R 


(1)           Both   the   Criminal   Appeals   are   partly 

              allowed. 


(2)           The   impugned   judgment   and   order   convicting

the appellants/accused for the offence

punishable under Section 364-A read with

Section 34 of the Indian Penal Code are

quashed and set aside.

(3) The appellants/accused are acquitted of the

offence punishable under Section 364-A of

the Indian Penal Code. Instead, they are

convicted for the offence punishable under

Section 363 read with Section 34 of the

Indian Penal Code.

(4) Both the appellants are sentenced to undergo

imprisonment for the period already