Lalit Vilasrao Thakare (In Jail) vs State Of Maharashtra Thr. Police ...
2018 Latest Caselaw 676 Bom

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                                                             apeal206.17.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                               Criminal Appeal No.206 of 2017


          Lalit Vilasrao Thakare,
          Aged about 24 years,
          Occupation - Labour,
          R/o Vishwakarma Nagar,
          Nagpur (In Jail Nagpur)                             ... Appellant
                                                                   

               Versus

          The State of Maharashtra,
          through Police Station Officer,
          Police Station, Nandanvan,
          District - Nagpur.                                  ... Respondent



          Shri S.P. Bhandarkar, Advocate for Appellant.
          Ms Trupti Udeshi, Additional Public Prosecutor for Respondent.


                      Coram : R.K. Deshpande & M.G. Giratkar, JJ.

Date of Reserving the Judgment : 9th January, 2018

Date of Pronouncing the Judgment :19th January, 2018

Judgment (Per R.K. Deshpande, J.) :

1. The appellant-accused is convicted for the offence

punishable under Sections 327, 342, 364-A and 384 of the

Indian Penal Code ("the offences in question") by the learned

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Additional Sessions Judge (V), Nagpur in Sessions Case No.78

of 2013 and is sentenced - (i) to undergo life imprisonment

with a fine of Rs.5,000/- for the offence punishable under

Section 364-A of the Indian Penal Code, (ii) to undergo

rigorous imprisonment for two years with a fine of Rs.3,000/-

for the offence punishable under Section 384 of the Indian

Penal Code, (iii) to undergo rigorous imprisonment for six

months with a fine of Rs.500/- for the offence punishable

under Section 342 of the Indian Penal Code, and (iv) to

undergo rigorous imprisonment for one year with a fine of

Rs.1,000/- for the offence punishable under Section 327 of the

Indian Penal Code. All the sentences are directed to

concurrently.

2. The incident occurred on 5-9-2012 at Nagpur.

PW 4 Samyak and PW 5 Vikrant are the victims, and PW 4

Samyak is also the complainant, at whose instance FIR

No.248/12 was registered on 7-9-2012 against the

appellant-accused for the offences in question. PW 4 Samyak

was in 11th Standard on the date of incident and studying at

Kamla Nehru Arts, Commerce and Science College at Nagpur.

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He was residing at Gayatri Hostel, Nandanwan Chowk, Nagpur.

PW 5 Vikrant was also taking education in 11th Standard at

Kamla Nehru Arts, Commerce and Science College, Nagpur.

Both the victims were knowing each other and also the accused

Lalit.

3. The story of the prosecution is that on the date of

incident, one Anand Thakur along with accused Lalit came on

motorcycle to the hostel of PW 4 Samyak at about 8.30 p.m.

and asked him to come out of the hostel for having some talk.

In spite of his resistance, they took him forcibly to Juna

Sakkardara, near Shitla Mata Mandir in the slum.

PW 4 was taken in one room in which 2/3 friends of Anand

Thakur and accused Lalit were already there, consuming liquor.

They forced PW 4 to consume liquor. The accused slept him

and Anand Thakur also beat him by means of belt and told PW

4 that they require money, which he should demand from his

family. They snatched a mobile from PW 4 and called the other

victim PW 5 Vikrant on mobile and told him to come near

Shitla Mata Mandir. PW 5 reached there on scooter and Anand

Thakur brought him in the room and all

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of them started beating him by means of belt and wine bottle.

4. According to the story of prosecution, the sister of

accused Lalit came in the room and asked the accused and

others as to why they are beating the teens. The accused asked

her to go out. She, therefore, went out of room and started

crying. Accused Lalit made a phone call to the father of

PW 4 Samyak at Mumbai upon the cell number being supplied,

and abused his father. The accused caught hold of

PW 4 and told this to his father and demanded Rs.1,50,000/-

for release. The father of PW 4 assured payment for release.

At about 12 hours in the night, the accused released both the

victims, who then went to the hostel on the scooter of PW 5

Vikrant. After reaching the hostel, PW 4 Samyak received a

call from the accused, who told him that he will take

Rs.1,00,000/- from his father and asked him to hand over the

phone to PW 5 Vikrant, who was told that an amount of

Rs.50,000/- shall be taken from him.

5. PW 2 Nalini is the mother of PW 4 Samyak, who was

staying at Chandrapur, states in her evidence that the incident

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occurred on 5-9-2012 at about 10.15 p.m., when she received

a call from Samyak on her mobile to tell her whether she can

send Rs.50,000/-. She states that PW 4 Samyak was crying and

afraid and some other person took the mobile of Samyak and

told her that Samyak had borrowed an amount of Rs.50,000/-

from him for the business of ganja and charas and he wanted

return of it. She states that after the call was disconnected, she

made a call to her husband, and enquired from him whether he

received a telephone call of Samyak. The husband told her to

have received one missed call and then he made a return call

and told the said person to drop Samyak at the hostel. After

about two hours, Samyak was dropped at the hostel. PW 2

Nalini left Chandrapur at about 3 a.m. and reached Nagpur at

about 6 a.m. and directly went to the hostel, took Samyak and

brought him at Chandrapur at about 9 a.m. on 6-9-2012.

6. The FIR was registered on 7-9-2016 when

PW 4 Samyak along with his mother PW 2 Nalini and the

father came to Nagpur and lodged a complaint in the Police

Station. The Sessions Court relies upon the evidence of PW 2

Nalini and PW 6 Aniruddha, the mother and father of victim

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Samyak, and also the evidence of PW 5 Vikrant to hold that

there is nothing to disbelieve in their evidence, which was not

challenged in the cross-examination. It holds that the defence

did not challenge the fact that when the informant reached the

hostel, accused Lalit made a phone call and demanded that

they have to pay Rs.1,50,000/-. Thus, the demand of

Rs.1,50,000/- was virtually admitted.

7. The Sessions Court criticizes the investigation for not

seizing the mobile phones of the victims as well as the parents

of PW 4 Samyak and of the accused persons. It criticizes the

prosecution for not collecting the call detail reports of the

mobile phones and holds that the Investigating Officer seems to

be either highly inefficient or that he did so deliberately to help

the accused. The Sessions Court holds that in such a situation,

the case of the prosecution cannot be doubted for absence of

seizure of mobile and collection of call detail reports.

8. The Sessions Court holds that when PW 2 Samyak

spoke to his mother on phone, he was in the captivity of the

accused, and this fact remained unchallenged. It holds that

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both the victims were kidnapped, confined, beaten and in their

presence, demand for ransom amount was made. The victims

have also proved that how the accused demanded the ransom

amount of Rs.1,50,000/- by directly speaking to the father and

mother of the informant and by forcing the victims to convey

the demand to their parents.

9. The Sessions Court relies upon the evidence of

PW 7 Dr. Tarunkumar, who examined the victims and found

some simple injuries, which were 24 to 48 hours' old and

issued the medico legal certificates at Exhibits 37 and 38. It

holds that the opinion of the doctor is required to be accepted

in spite of the fact that the Investigating Officer did not send

the seized belt to the doctor to get a query report as to whether

the injuries sustained by the victims could have been caused by

the seized belt. The Sessions Court holds that the victims were

examined after about 45 hours of the incident and, therefore,

the injuries as well as abrasions are bound to lessen with

passage of time and the query report cannot be attached much

significance.

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10. We have heard Shri S.P. Bhandarkar, the learned

counsel appearing for the appellant-accused; and

Ms Trupti Udeshi, the learned Additional Public Prosecutor

appearing for the respondent-State.

11. Coming to the question of conviction of the accused

for the offence under Section 364-A of the Indian Penal Code,

i.e. kidnapping for ransom, etc., for which the sentence of life

imprisonment is imposed by the Sessions Court,

Shri Bhandarkar, the learned counsel, has relied upon the

decision of the Apex Court in the case of Suman Sood alias

Kamal Jeet Kaur v. State of Rajasthan, reported in

(2007) 5 SCC 634, to urge that neither the said provision is

attracted in the present case nor there is any evidence on

record to substantiate such a charge.

12. In the decision of the Apex Court in Malleshi v. State of

Karnataka, reported in (2004) 8 SCC 95, the appellant-accused

was convicted for the offence punishable under

Section 364-A of the Indian Penal Code and was sentenced to

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life imprisonment. In appeal, the Karnataka High Court

confirmed the conviction and sentence. The Apex Court

maintained the decision of the High Court. It was a case where

PW 2 was taken in a jeep by four persons and was driven to a

different place. PW 2 was threatened and was asked about the

phone number of his father, who will be asked to pay

Rs.4,00,000/- for his release. PW 2 told that such huge

amount cannot be arranged and at the most the accused

persons may get about Rs.50,000/- by raising loan from others.

The accused wanted at least Rs.2,00,000/-. PW 2 managed to

run away from the jeep when it was parked before the demand

was conveyed to the father.

13. In the aforestated background, the contention raised in

Malleshi's case, cited supra, was that the demand for ransom

was not established and in any event it was not conveyed to

any person for ransom and, therefore, Section 364-A of the

Indian Penal Code was not attracted. The Apex Court holds in

para 15 of its judgment that it cannot be laid down as a

straitjacket formula that the demand for payments has to be

made to a person who ultimately pays. After making the

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demand to the kidnapped or abducted person, merely because

the demand could not be conveyed to some other person, as

the accused is arrested in the meantime, does not take away

the offence out of purview of Section 364-A. The Court holds

that it has to be seen in such a case as to what was the object of

kidnapping or abduction. The essence of abduction is causing

to stay in isolation and demand for ransom. The demand in

the case before the Apex Court was already made by conveying

it to the victim. The Court holds that ultimately the question to

be decided is "What was the intention? Was it demand for

ransom?" It holds that there can be no definite manner in

which demand is to be made and who pays the ransom is not

the determinative fact.

14. In the decision of the Apex Court in Suman Sood's case,

cited supra, the provision of Section 364-A of the Indian Penal

Code, i.e. kidnapping for ransom, was considered. Paras 58 to

62 being relevant, are reproduced below :

"58. The term "ransom: has not been defined in the Code."

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"59. As a noun, "ransom" means "a sum of money demanded or paid for the release of a captive:. As a verb, "ransom" means to "obtain the release of (someone) by paying a ransom", "detain (someone) and demand a ransom for their release". "To hold someone to ransom" means "to hold someone captive and demand payment for their release". (Concise Oxford English Dictionary, 2002, p. 1186)."

"60. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in a secret place, while attempting to extort ransom. This grave crime is sometimes made a capital offence. In addition to the abductor a person who acts as a go-between to collect the ransom is generally considered guilty of the crime."

"61. According to Advanced Law Lexicon (3rd Edn., p. 3932):

"Ransom is a sum of money paid for redeeming a captive or prisoner of war, or a prize. It is also used to signify a sum of money paid for the pardoning of some great offence, and or setting the offender who was imprisoned." "

"62. Stated simply, "ransom" is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu."

From the aforesaid law laid down by the Apex Court,

one of the ingredients, which is required to be proved, is that

kidnapping must be for ransom. Though the term "ransom"

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has not been defined in the Indian Penal Code, the Apex Court

considers the said term as a noun to mean "a sum of money

demanded or paid for the release of a captive". The Apex

Court holds that as a verb, "ransom" means to "obtain the

release of (someone) by paying a ransom", "detain (someone)

and demand a ransom for their release". To hold someone to

ransom means to "hold someone captive and demand payment

for their release". The Apex Court considers the definition of

"ransom" in Advanced Law Lexicon, which describes it as "a

sum of money paid for redeeming a captive or prisoner of war,

or a prize". Lastly, the Apex Court holds that "ransom" is a

sum of money to be demanded to be paid for releasing a

captive, prisoner or detenu.

15. In the recent decision of the Apex Court in the case of

Birbal Choudhary @ Mukhiya Jee v. State of Bihar, reported in

2017 SCC OnLine SC 1240, relied upon by Ms Trupti Udeshi,

the learned Additional Public Prosecutor, the accused were

convicted for the offences punishable under Sections 364-A,

34, 395 and 412 of the Indian Penal Code by the Trial Court,

which was confirmed in appeal by the High Court. The

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accused were sentenced to undergo imprisonment for twenty

years. The High Court holds that once the demand for ransom

stood established, whether it was actually paid or not, was

irrelevant. In para 31 of the said decision, the Apex Court

confirms this view in terms as under :

"31. ... Once the abduction has been established, surely the abductors did not do so in such planned organized manner with smooth flawlessness discussed, to play hide and seek games or only to scare the victims out of a business dispute or for any other reason to force them to desist from a particular course of action. An act of abduction in the present manner is the result of meticulous planning of the logistics with separate roles assigned to the individual players. The demand for ransom, therefore, clearly stands established. That it was actually paid or not is irrelevant."

The Apex Court thereafter considers the decision in

Malleshi's case, cited supra, and holds in para 35 that insofar as

kidnapping is concerned, there is no serious dispute about the

same. It holds that the demand for ransom has been duly

proved by the prosecution.

16. The provision of Section 364-A of the Indian Penal

Code, which is required to be considered, is reproduced below :

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"364-A. Kidnapping for ransom, etc.-- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and 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 hurt or death to such person in order to compel the Government or 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, or imprisonment for life, and shall also be liable to fine."

17. The provision of Section 364-A of the Indian Penal

Code deals with the cases of kidnapping and abduction both. It

also deals with the person kept in detention after such

kidnapping or abduction. Thus, the kidnapping or abduction

or detention after such kidnapping or abduction for ransom,

has to be established. The provision further contemplates -

(a) direct threat to cause death or hurt to such person, or

(b) by conduct giving rise to a reasonable apprehension that

such person may be put to death or hurt, or (c) actually causes

hurt or death to such person. Therefore, merely because a

person is held in captivity would not be enough to record the

conviction under Section 364-A of the Indian Penal Code,

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unless one or more of these three things or the acts is/are

established with an intention to compel the victim or any other

person to do any act or to pay ransom.

18. Inviting our attention to the provision of

Section 364-A of the Indian Penal Code, Shri Bhandarkar has

urged that - (a) there is no evidence that the alleged demand

was actually conveyed to "any other person", in the present

case to the father of PW 4 Samyak, and (b) the expression "to

pay ransom" in the said provision refers to actual payment of

ransom before release or redeeming a captive or victim.

19. Ms Trupti Udeshi, the learned Additional Public

Prosecutor, inviting our attention to the medical report,

submits that actually the injuries were caused to the victims

and the evidence on record also established the direct threat of

causing hurt to the victims if the demand for ransom is not

fulfilled. She submits that actual demand for ransom by

keeping the victims in captivity is established. She invited our

attention to the allegation in the complaint at Exhibit 28 to the

effect that the accused obtained thumb impressions and

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signatures of the victims on different blank papers under

coercion or threat of injury before releasing them from

captivity.

20. In this case, we are concerned only with the act of

compelling the victims or any other person "to do any act" or

"to pay ransom". In view of the decision of the Apex Court in

Malleshi's case, cited supra, the act of compelling the victims to

do something or demand for payment of ransom would be

governed by the provision of Section 364-A of the Indian Penal

Code and it is not necessary to establish that such demand was

conveyed to any person other than the victims. Hence, in the

facts and circumstances of the present case, even if we accept

the contention that actual demand to pay ransom was not

conveyed to PW 6, the father of the victim, it would be enough

to establish that the victims were compelled to do something or

there was a demand made to them to pay ransom for their

release from captivity. We, therefore, reject the contention of

Shri Bhandarkar that the provision is not attracted because the

demand for ransom was not conveyed to "any person other

than victim".

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21. In our view, the question as to whether the evidence of

actual payment of ransom is necessary before redeeming or

release of the victim or captive, is concluded by the decision of

the Apex Court in Birbal Choudhary's case (supra). In the said

decision, there was no evidence of actual payment of ransom

before release of the victim or captive. The twelve persons

named as accused kidnapped and kept the victims in their

custody as well as tortured the victims to pay the ransom in

furtherance of their common intention. Out of four victims,

the driver was released on the next day, whereas two other

abductees were kept in confinement for a period of 52 days

and were subsequently released. The Court held on the basis

of the evidence on record that the demand for ransom was

established and the fact as to whether it was actually paid or

not, is irrelevant. We, therefore, reject the contention of

Shri Bhandarkar that actual payment before release or deeming

a captive or victim has to be established.

22. In Malleshi's case, the Apex Court has held that the

essence is the intention of making such demand and was it for

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ransom. The offence of kidnapping for ransom, if proved,

invites the punishment of death or imprisonment for life along

with the fine. No punishment lesser than this can be imposed.

The seriousness with which the Legislature has treated this

offence can be judged from the punishment prescribed for it

and, therefore, such a rigor is required to be kept in mind while

appreciating the evidence on record to decide the intention of

the accused.

23. The complainant-victims and the accused persons are

essentially the students knowing each other. The evidence

brought on record shows the case of the defence that the

victims had taken some amount from the accused for the

business of sale of charas and ganja, in which they were

allegedly involved. The accused wanted this amount back from

the victims, who were kept in captivity in the house of the

accused where the other family members were staying. In fact,

the sister of the accused repeatedly requested the accused to

release the victims. Thus, the accused and victims were not

unknown to each other at the time of incident and the place of

captivity was neither unknown nor in isolation. It is not the

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case that the victims could manage to run away from the

captivity. The victims were ultimately released from captivity

without getting the demand fulfilled. The intention was to

keep them in captivity for recovery of an amount which was

allegedly due and payable to the accused and not to demand

ransom for their release.

24. The oral evidence of the victims about actual causing

hurt or injuries to them by means of belt and wine bottle while

they were in captivity is not corroborated or supported by other

evidence. Though the belt and wine bottle were seized, the

same were not sent to PW-7 Dr. Tarun Kumar for a query

report, nor there is a report of the Chemical Analyzer in

respect of it. PW-7 Dr.Tarun Kumar, who examined the victims

on 7-5-2012, states that the injuries on the victims cannot be

determined actually, though he broadly opined that those were

28 to 48 hours' old. It is not the version of the victims that they

communicated PW-6 Aniruddha, the father of the victims,

about the actual injuries or threats caused to them to meet the

demand for ransom. The version of PW 6 that Manoj, the

security guard of the hostel, told him that Samyak is not in a

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position to talk because of injury, is not supported by

PW 10 Manoj. Thus, there is no evidence to establish causing

of hurt or injuries to the victims by the accused.

25. The evidence to corroborate the oral version of the

witnesses about the actual threats to cause injury to the victims

and the demand for ransom of Rs.1,50,000/- could have been

collected and produced by the prosecution. The prosecution

has failed to do this. The solitary statement of PW 6

Aniruddha, the father of Samyak, that Lalit conveyed him on

phone "to pay an amount of Rs.1,50,000/- otherwise he will

kill Samyak" cannot be relied upon to convict the accused. The

Sessions Court, therefore, criticizes the prosecution for not

seizing the mobile phones of the victims as well as the parents

of PW 4 Samyak and that of the accused persons. The Sessions

Court also criticizes the prosecution for not collecting the

call detail reports of mobile phones, but, on the contrary, holds

that the Investigating Officer seems to be highly inefficient or

that he did so deliberately to help the accused. There is no

evidence produced on record to establish the direct threat to

cause death or hurt to the victims while in captivity so as to

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compel them or any other person to pay ransom.

26. The blank papers containing the thumb impressions

and signatures obtained from the victims were not sent to the

Handwriting Expert for giving opinion as to whether the same

were of the victims. The Sessions Court holds that the

signatures on the blank papers were of the victims by having

recourse to the provisions of Section 73 of the Indian Evidence

Act by comparison. In our view, such comparison of signatures

and recording findings one way or the other, would be enough

to prove any fact on the preponderance of probabilities, but

would not furnish a proof beyond reasonable doubt.

27. In view of above, we have no hesitation to hold that

the prosecution has failed to establish that there was a direct

threat to cause death or hurt to the victims while in captivity,

or the conduct of the accused was such as to give rise to a

reasonable apprehension that they may put the victims to death

or hurt, or that the hurt was actually caused to the victims by

the accused. There is a failure to establish the intention of the

accused to demand ransom for release of the victims beyond

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reasonable doubt. We, therefore, cannot sustain such findings

recorded by the Sessions Court.

28. Coming to the offence of extortion described under

Section 383 of the Indian Penal Code, the punishment

prescribed is for a term, which may extend to three years or

with fine or with both. The provision being relevant, is

produced below along with the illustrations (a) and (b) below

it.

"383. Exortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".

Illustrations

(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion.

(b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain monies to A. Z signs and delivers the note. A has committed extortion."

The offence of extortion is of a lesser nature of crime and

different than the offence of kidnapping for ransom which is of

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more serious in nature. To attract the offence of extortion, it is

not necessary to establish that the person, i.e. the victim, is in

captivity. One of the necessary ingredients to attract the

offence of extortion is the delivery of property or valuable

security to any person or to get anything signed or sealed,

which may be converted into a valuable security.

29. We have already pointed out earlier and we reiterate

that there is no evidence brought on record to establish

delivery of any property or valuable security to any person

under the fear or any injury to the victims, PWs 4 and 5.

No doubt, that the evidence brought on record indicates that

the accused got signed from the victims certain blank papers

and also obtained thumb impression under the threat of injury.

The expression "anything signed or sealed which may be

converted into a valuable security", employed under the

provision of Section 383 of the Indian Penal Code, would not

cover obtaining of signatures or thumb impression on different

blank papers from the victims under the fear of causing injury

for the reason that such papers cannot be converted into a

valuable security. At the most such papers can be utilized for

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acknowledging the debts, if any, or incorporating an

undertaking to pay the amount. In our view, there is no case

made out for an offence of extortion under Section 383 of the

Indian Penal Code.

30. Now coming to an offence of causing hurt to extort

property, as contemplated by Section 327 of the Indian Penal

Code, once we record the finding that there is no evidence on

record to hold that the accused caused hurt or injuries to the

victims and that there is no case made out for an offence of

extortion under Section 383 of the Indian Penal Code, the

accused cannot be convicted for an offence punishable under

Section 327 of the Indian Penal Code. The conviction to that

effect recorded by the Sessions Court cannot, therefore, be

sustained.

31. The charges framed against the accused include the

charge of kidnapping for ransom on the date of incident, the

victims were aged more than 16 years of age and, therefore, it

can only be an offence of abduction, as defined under

Section 362 of the Indian Penal Code. The provision of

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Section 364-A of the Indian Penal Code also include abduction

for ransom, and merely because the charge of abduction was

not framed against the accused, for which a punishment lesser

than one for the offence of kidnapping for ransom is

prescribed, it will not deter us from holding the accused guilty

of an offence of abduction and imposing the punishment under

Section 365 of the Indian Penal Code for kidnapping or

abducting with intent secretly and wrongfully to confine a

person, which may extend to seven years and also with a fine.

32. Section 362 of the Indian Penal Code describes an

offence of abduction, which is reproduced below :

"362. Abduction.-- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

The expression "force" employed in the aforesaid

provision will have to be understood in the light of its

definition under Section 349 of the Indian Penal Code, which is

reproduced below :

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"349. Force.-- A person is said to use force to another if he causes motion, change of motion, or cessation of motion that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling:

Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:

First.-- By his own bodily power.

Secondly.-- By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.

Thirdly.-- By inducing any animal to move, to change its motion, or to cease to move."

33. In the light of the aforesaid definition, the question to

be considered in the present case is whether the accused

employed force over PW 4 Samyak, the victim, to compel him

to go from his hostel to the house of the accused. It is not the

case of the prosecution that the accused caused motion, change

of motion, or cessation of motion to the victim, as defined

under Section 349 of the Indian Penal Code. PW 4 states in his

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examination-in-chief as under :

"1] ... I am knowing Anand Thakur since 9th standard. He was my friend. Anand introduced me with accused Lalit who is present in the court, therefore, I am knowing Lalit."

"2] The incident occurred on 05-09-2012. On that day, at about 8.30 p.m. Anand Thakur and Lalit had been to the Hostel on their motorcycle. They told me to come out of the hostel for having some talk. I told them that I am having some work and unable to come with them. They forcibly took me to Juna Sakkardara near Shitlamata Mandir in the slum. ..."

PW 4 states that he was knowing the accused, who

was introduced to him by Anand Thakur, and on the date of

incident, Anand Thakur and Lalit had been to hostel on their

motorcycle at 8.30 p.m. He states that the accused told him to

come out of the hostel for having some talk. Though PW 4

expressed his inability to go with them, it is his version that

they forcibly took him to Juna Sakkardara, near Shitla Mata

Mandir, near the slum.

34. PW 5 Vikrant, the another victim, who was the

room-mate of PW 4 Samyak, states in his oral evidence in

apeal206.17.odt

paras 1 and 2 as under :

"1] ... I am knowing Samyak. He was my roommate at the hostel. I was knowing Anand Thakur prior to one month of the incident. I am knowing Lalit Thakre. He is present in the court. Anand Thakur introduced me with Lalit Thakre."

"2] On 05-09-2012 at about 8:30 p.m. accused and Anand Thakur had been to the hostel on two separate motorcycles. They took Samyak at the ground floor and took him at Old Sakkardara. At about 9:30 p.m. I had received telephone call from the mobile of Anand Thakur. I am knowing my mobile number. It is 9175701346. He told me that if I wish that my friend Samyak should remain alive, I should come near Shitalamata Mandir, Sakkardara, Umred Road. I took the Pleasure motorcycle of my friend Shubham and reached to that place. Anand Thakur came there and took me to the room of Lalit Thakre. ..."

35. From the oral evidence of PWs 4 and 5, it is apparent

that Anand Thakur and the accused both came to the hostel of

victims on two separate motorcycles. The oral evidence of

PW 4 is totally silent on the aspect of presence of PW 5 in the

hostel at 8.30 p.m. on 5-9-2012, when the accused came in the

hostel and asked PW 4 to come out of the hostel for having

some talk. The solitary version of PW 4 that the accused

forcibly took him to Juna Sakkardara, near Shitla

apeal206.17.odt

Mata Mandir, in the slum, is not corroborated by any other

evidence. It seems that PW 4 was a willing party to sit on the

vehicle, i.e. two-wheeler, as he did not raise any alarm nor

jump from the vehicle if he was sensing deceitful means on the

part of the accused to take him from hostel to Shitla Mata

Mandir. There is no evidence to establish beyond reasonable

doubt that either the accused used the force or by deceitful

means induced PW 4 to come along with him at Shitla Mata

Mandir. The evidence on record is short of establishing the

offence of abduction, as defined under Section 362 and

punishable under Section 365 of the Indian Penal Code.

Therefore, the conviction on that count cannot be recorded.

36. Coming to the offence of wrongful confinement under

Section 340 of the Indian Penal Code, the oral evidence of the

victims and the father of PW 4 appears to be trustworthy and

established that the victims were wrongfully restrained or

prevented from proceeding in any direction and they were

confined from 8.30 p.m. to 12 ' O Clock in the night of

5-9-2012 in a separate room in the house of the accused. They

were restrained from proceeding beyond the circumscribing

apeal206.17.odt

limits of the room in which they were confined. The evidence

on record has clearly established that it is only upon assurance

given by the father of PW 4 the victims were released from

captivity. In cross-examination, nothing to damage the version

of these witnesses is brought on record. The accused seems to

be habitual offender and the offence of wrongful confinement

is proved beyond reasonable doubt. The accused is, therefore,

convicted for such offence and he is required to be imposed

with the punishment of imprisonment for a term of one year

with a fine of Rs.1,000/-. If the fine imposed is not paid, the

accused will have to undergo simple imprisonment for a

further period of two months.

37. In the result, this appeal is partly allowed and the

following order is passed :

: O R D E R :

(1) The conviction and sentence of accused- Lalit

Vilasrao Thakare, imposed by the learned Additional

Sessions Judge (V), Nagpur by his judgment and order

dated 5-4-2017 delivered in Sessions Case No.78 of

2013, for the offences punishable under Sections 327,

apeal206.17.odt

364-A and 384 of the Indian Penal Code, is hereby

quashed and set aside along with the fine imposed.

The accused is acquitted of those offences. The fine, if

paid, be refunded to the accused.

(2) The conviction of accused- Lalit Vilasrao

Thakare for the offence of wrongful confinement

under Section 340, punishable under Section 342 of

the Indian Penal Code, is maintained and the accused

is sentenced to undergo rigorous imprisonment for

one year and to pay a fine of Rs.1,000/-; in default

thereof, the accused shall undergo simple

imprisonment for one month. The set-off of the

period undergone shall be provided.

                      (3)          R & P be sent back.



                      (M.G. Giratkar, J.)                       (R.K. Deshpande, J.)

           Lanjewar