Bombay High Court
Akhilesh Badriprasad Upadhyay vs The State Of Maharashtra on 10 October, 2017
Bench: A.A. Sayed
1 APEAL 900-12-Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.900 OF 2012
Akhilesh Badriprasad Upadhyay. ]
Age - 33 years, Occupation - Business, ]
Residing at Ashish Palace, B-307, S. V. Road, ]
Navghar, Bhayander (E). ]
(At present in Thane Central Prison) ] ... Appellant
Versus
State of Maharashtra, ]
(At the instance of Mira Road Police Station ]
C.R.No.116 of 2008). ] ... Respondent
Mr. Nitinkumar Hiralal Sejpal for Appellant.
Ms. R. M. Gadhvi, APP for State.
CORAM :- A. A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON :- 06 SEPTEMBER, 2017
PRONOUNCED ON :- 10 OCTOBER, 2017
JUDGMENT ( PER : SARANG V. KOTWAL, J.) :-
1. The present Appeal is preferred by the Appellant
challenging the Judgment and Order dated 25/07/2012 passed by the
District Judge - 6 and Additional Sessions Judge, Thane, in Sessions
Case No.231 of 2008 whereby the Appellant was convicted for
commission of offence punishable under Section 364-A read with 34
of the IPC and was sentenced to suffer imprisonment for life and to
pay a fine of Rs.5,000/- and in default of payment of fine, to suffer
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simple imprisonment for a term of 15 days. The Appellant was further
convicted for the offence punishable under Section 386 read with 34
of the IPC and was sentenced to suffer rigorous imprisonment for 10
years and to pay a fine of Rs.3,000/- and in default of payment of
fine, to suffer simple imprisonment for a term of 10 days. The
Appellant was also convicted for the offence punishable under Section
342 read with 34 of the IPC and was sentenced to suffer rigorous
imprisonment for one year and to pay a fine of Rs.500/- and in default
of payment of fine, to suffer simple imprisonment for a term of 5 days.
The Appellant was also convicted for an offence punishable under
Section 363 read with 34 of the IPC as well as Section 384 read with
34 of the IPC but in view of the sentences awarded under Sections
364-A and 386 of the IPC, no separate sentence was passed for these
two offences. The Appellant was acquitted from the charges of
commission of offence punishable under Section 324 read with 34 of
the IPC. The substantive sentences were directed to run concurrently
and the Appellant was given benefit of set off under Section 428 of the
Cr.P.C. for the period for which he was detained in custody during
investigation and trial.
2. The prosecution case is in respect of abduction of Kalulal
Bhimji Patel for ransom. The FIR was lodged on 08/03/2008 by the
said Kalulal Patel at Mira Road Police Station. The Appellant was
arrested on 08/03/2008 itself. The investigation was conducted and
the charge-sheet was filed in the Court of JMFC, 13 th Court, Thane.
After filing of the charge-sheet, the case was committed to the Court
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of Sessions for trial. The charges were framed against the Appellant
on 27/06/2011 to which he pleaded not guilty.
3. During the trial, the prosecution examined 6 witnesses.
PW 1 Kalulal Patel was the victim and the first informant. PW 2
Rupjibhai Patel was the brother of the PW 1 who had paid the ransom
amount. PW 3 Pramod More is friend of the PW 1 and PW 2 who was
examined to corroborate the evidence of PW 1 and PW 2. PW 4
Avinash Pradhan was the Medical Officer attached to Bhagwati
Hospital, Borivali, on the relevant date and on 03/06/2008 he had
examined PW 1. PW 5 PI Vasant Giri had investigated the offence
registered vide C.R.No.I-116/2008 at Mira Road Police Station. This
witness had conducted the investigation from 02/06/2008 onwards.
PW 6 PSI Dipak Salunke was the initial Investigating Officer who had
investigated the offence from 08/03/2008 and had arrested the
Appellant on the same day. According to the prosecution case, there
were other absconding accused who could not be arrested and the
present Appellant is the only accused who had faced the trial.
4. The prosecution case obviously rests on the evidence of
PW 1 Kalulal Patel. He has deposed that since 2008, he was dealing
in the business of scrap material and was having his shop by name Jay
Rathod Old Paper at Golden Nest, Sector 11, Mira Road. He has
deposed that originally he is from Rajasthan. On 10/01/208, two
persons had sold 100 kgs. of steel material to him for Rs.2,500/- and
again on 13/01/2008, they had sold 54 kgs. of steel for Rs.1,300/-.
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Thereafter on 17/01/2008 at about 4.00 a.m., somebody knocked on
the shutter of his shop. The two persons who had sold the steel
material as mentioned earlier, were present along with the present
Appellant. He has further deposed that the Appellant questioned him
regarding purchase of 153 kgs. of steel material. He has further
deposed that the Appellant took him forcibly in a four wheeler
towards steel company at Bhayander. He was detained there and was
beaten by steel rods. Thereafter, this witness had called his cousin
Rupjibhai and had asked him to bring the steel material. The said
Rupjibhai brought the material in the morning of 18/01/2008. Till
then, this witness was kept locked in the premises of the company
belonging to the Appellant. He has further deposed that the Appellant
and his companions asked for Rs.2 Lakhs for his release but the
settlement was arrived at and Rupjibhai paid Rs.60,000/- and
Rs.70,000/- respectively in two installments. This witness has further
deposed that 10 days after this incident when he was at his shop, the
Appellant again came there with 4 other persons in a car. They again
forcibly took this witness to the same company. On this occasion, one
Nathuji who was a friend of this witness, was also taken with them.
He has further deposed that both of them were beaten in the said
company. Then there was a talk between Rupjibhai and the Appellant
over telephone. Rupjibhai was not in town and he was to return after
3 to 4 days. The Appellant thereafter applied some inflammatory oil
on the body of this witness. This witness and Nathuji were released at
8.00 p.m. PW 1 has further deposed that Rupjibhai came back from
his native place. After discussing the matter with the community, the
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PW 1 lodged his FIR in the month of March against the Appellant and
others. The FIR was exhibited at Exh.17 which shows that it was
lodged on 08/03/2008. PW 1 received medical treatment at Bhagwati
Hospital.
In the cross-examination, this witness has admitted that he
was not knowing the Appellant before the incident. He has further
deposed that he had gone to the hospital for treatment after four days
of lodging of the FIR.
5. PW 2 Rupjibhai Patel is the cousin of the PW 1. He has
deposed that the incident had occurred on 17/01/2008 and at 5.00
a.m. he received a phone-call from PW 1 Kalulal about the
requirement of money to pay the ransom amount. This witness met
some of the accused near Swagat Hotel at Bhayander as per their
directions and then he was taken to Dhanalaxmi Industrial Estate
where the PW 1 was detained. He was told that PW 1 had purchased
stolen steel material and that had to be returned. Thereafter, this
witness came to the shop of the PW 1, took 153 kgs. of scrap steel
material from the shop and gave it to the Appellant and others. He
has further deposed that the Appellant asked Rs.2 Lakhs for releasing
Kalulal. By the evening, this witness could collect Rs.60,000/- which
was paid to the Appellant and then the PW 1 was released. He has
further deposed that he paid further Rs.70,000/- after 5 days. He has
further deposed that in February 2008, he had gone to his native place
in Rajasthan. On 25/02/2008, he had received a phone-call from
Kalulal at 3.00 p.m. This time again, Kalulal informed him that he
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was abducted by the same persons and they were demanding Rs.1
Lakh for his release. This witness then had a talk with the Appellant
and promised to talk to them after 2-3 days on his return. When he
returned from his native place, PW 1 and Nathulal were already
released. Thereafter, they decided to lodge the FIR.
6. PW 3 was knowing PW 1 and PW 2. He has deposed that
on 08/03/2008, PW 2 approached him and told him that PW 1 had
stolen material from the Appellant's factory and the Appellant had
kept PW 1 in the factory. This witness has further deposed that he
then went to the factory of the Appellant with PW 2. He has further
deposed that the Appellant then demanded Rs.2 Lakhs. The material
which PW 1 had stolen, was returned to the Appellant. He has further
deposed that the Appellant threatened them not to lodge the
complaint. He has also deposed that PW 2 requested the Appellant
not to lodge a complaint with the police (for theft) and requested to
settle the matter. This witness has further deposed that Rupjibhai
paid Rs.60,000/- and Rs.70,000/- on two separate occasions and the
dispute was settled. He has deposed that 10 days after that, again the
Appellant abducted PW 1 and Nathuji and demanded Rs.1 Lakh for
their release. This time this witness, along with Rupjibhai, went to the
police station to lodge the complaint.
7. PW 4 Dr. Avinash Pradhan had examined PW 1 on
03/06/2008 and had found a scar on his left hip. PW 5 PI Giri had
conducted part of the investigation from 02/06/2008. He had asked
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for call record details from the mobile phone company. However, the
call records were not collected and were not produced before the trial
Court. PW 6 PSI Dipak Salunke had conducted the initial
investigation and had arrested the Appellant. The other accused were
not found neither the amount allegedly paid was recovered.
8. We have heard Mr. Nitinkumar Sejpal, learned Advocate
for the Appellant and Ms. R. M. Gadhvi, learned APP for the State and
with their assistance, we have read the evidence and perused the
record.
9. According to Mr. Sejpal, learned Advocate for the
Appellant, the story put forth by the prosecution through these
witnesses does not appear to be true. There is unexplained delay in
lodging of the FIR. There is no medical evidence corroborating the
version of PW 1 and PW 2. No money was recovered. The other
accused were not arrested. The steel scrap material which was the
subject-matter, was not recovered. The call details record were
neither collected nor produced before the Court. Therefore, the
prosecution has failed to prove the case against the present Appellant.
10. As against this, Ms. Gadhvi, learned APP for State,
submitted that the statements of PW 1 and his cousin PW 2 are
sufficient to hold that the Appellant committed the offence.
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11. The FIR in this case was lodged on 08/03/2008.
Obviously, there is an unexplained delay of more than a month from
the date of the incident. According to PW 1, the first incident had
taken place on 17/01/2008 and 18/01/2008 when he was first
abducted and was released. At that time, PW 2 had paid Rs.60,000/-
and Rs.70,000/- on two separate occasions. This witness has
categorically stated that the second incident took place after 10 days.
That would mean that the second incident had occurred at the end of
January 2008. In that case, there is no explanation as to why the FIR
was not lodged immediately and there is no explanation as to why it
was lodged on 08/03/2008. This delay has remained unexplained.
12. Even the dates given by PW 1, PW 2 and PW 3 do not
match with each other. PW 2 has stated that the second incident had
taken place on 25/02/2008 when he was at his native place at
Rajasthan. According to PW 1, the second incident had taken place at
the end of January 2008. PW 3 has given totally different date i.e.
08/03/2008. From his evidence, it appears that both the incidents
had taken place after 08/03/2008 which, obviously, could not be true.
Thus, the prosecution has not led cogent and reliable evidence to
show as to on which date these incidents had taken place. It is
noteworthy that the prosecution has not reexamined PW 3 neither he
was treated as a hostile witness. Therefore, it was the duty of the
prosecution to explain the apparent discrepancy in the evidence of
these 3 witnesses.
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13. The FIR was lodged on 08/03/2008. The Appellant was
arrested on 08/03/2008. There is absolutely no reason as to why PW
1 was not immediately referred for medical examination either for
treatment or for procuring the evidence to corroborate his version that
some inflammable substance was applied on the person of PW 1 when
he was detained and beaten. His medical examination was conducted
on 03/06/2008 and it does not reveal any fresh injury except a scar
which cannot be conclusively related to the incident in question.
Moreover, PW 1 has stated that he had gone to the hospital for
treatment after 4 days of lodging of the FIR. That should mean that
he had gone to the hospital on 12/03/2008. However, there is no
such record. Therefore, there is no corroborative piece of evidence in
this case.
14. The evidence of PW 3 shows that PW 2 himself was
requesting the Appellant not to make a complaint to the police and
was requesting him to settle the matter. It shows that PW 1 and PW 2
had committed some offence in respect of property of the present
Appellant and as a counter-blast and to prevent the Appellant from
making a police complaint, this FIR in the present case was lodged.
The Appellant, in his statement recorded under Section 313 of the
Cr.P.C. has stated thus :
"I was President of steel buffing Association. Subodh
Mishra was member of association. 4-5 days before 17
January material was tolen from his factory. On 17 Jan
Subodh informed me that he had caught the persons
committing theft and purchasers. I went to their company.
Rupji, Mandeep and More were there. They had settled
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dispute& since the material was sold they agreed to pay
money. I adviced to go to police. Rupji requested not to
give complaint & he would pay money. I left the place
when Subodh agreed not to give complaint. I don't know
what happened thereafter. Police came to my factory on 6
March."
15. Thus, we find that the evidence led by the prosecution in
the form of PW 3 does probablize the defence of the Appellant to a
great extent. We find that PW 1 and PW 2's evidence inter se is
contrary. There is an unexplained delay, deliberation and false
implication. There is no corroborative piece of evidence in the form of
recovery of money or the scrap material or even in the nature of
medical evidence supporting the prosecution case. No other accused
is arrested in the case. The mobile call details record was a crucial
piece of evidence in this case which could have been easily made
available. Non-production of such evidence indicates either no such
data was available or if produced, such data would not be favourable
to the prosecution. Non-production of such data compels us to draw
such adverse inference against the prosecution.
16. We find that the prosecution has miserably failed to prove
its case against the present Appellant. With the result, we allow this
Appeal. Hence the following order :
ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order dated 25/07/2012 passed by
the learned District Judge - 6 and Additional Sessions
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Judge, Thane, in Sessions Case No.231 of 2008, are set
aside.
(iii) The Appellant is acquitted from all the charges.
(iv) The Appellant is in jail. He shall be released forthwith if
not required in any other case.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
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