Bombay High Court
Santosh Manohar Hatangale vs The State Of Maharashtra on 16 July, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal.670.16 with others.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 670 OF 2016
WITH
CRIMINAL APPLICATION NO. 47 OF 2019
IN
CRIMINAL APPEAL NO. 670 OF 2016
1. Mulani Dawood Husain }
Age: 21 years, }
R/o: Pachore-Vani }
Taluka-Niphad, District-Nashik }
}
2. Sagar Vijay Gavali }
Age: 21 years }
R/o: Behed, Taluka: Niphad }
District: Nashik. }
}
3. Arjun Madhukar Rahane }
Age: 25 years, }
R/o: Mauje Sukene }
Taluka: Niphad }
District: Nashik }
}
(At present lodged at Nashik Road, Central } Appellants
Prison, Nashik) } (Orig. accused nos. 3,4
&5)
Versus
The State of Maharashtra } Respondent
WITH
CRIMINAL APPEAL NO. 295 OF 2017
WITH
CRIMINAL APPLICATION NO. 454 OF 2018
WITH
CRIMINAL APPLICATION NO. 46 OF 2019
IN
CRIMINAL APPEAL NO. 295 OF 2017
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1. Sachin Damodhar Kolhe (Patil) }
Age: 25 years, } Appellant
R/o: Umbarkhed Road, Pimpalgaon(B) } (Orig. accused no.1)
Taluka-Niphad, District-Nashik }
Versus
The State of Maharashtra } Respondent
WITH
CRIMINAL APPEAL NO. 673 OF 2016
WITH
CRIMINAL APPLICATION NO. 50 OF 2019
WITH
INTERIM APPLICATION NO. 1078 OF 2020
IN
CRIMINAL APPEAL NO. 673 OF 2016
1. Yogesh Daulat Gadakh }
Age: 21years, }
R/o:Pachore-Vani }
Taluka-Niphad, District-Nashik }
}
2. Vishwajit @ Sonu Kiran Thete }
Age: 24 years, }
R/o: Shivaji Nagar, Pimpalgaon (B) } Appellants
Taluka-Niphad, District-Nashik } (Orig. accused no.6
} and 11)
Versus
The State of Maharashtra } Respondent
WITH
CRIMINAL APPEAL NO. 733 OF 2018
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Santosh Manohar Hatangale }
Age: 25 years, }
R/o: Shastri Nagar, Umbarkhed Road, }
Pimpalgaon (B), } Appellant
Taluka-Niphad, District-Nashik } (Orig. accused no.9)
Versus
The State of Maharashtra } Respondent
WITH
CRIMINAL APPEAL NO. 681 OF 2016
WITH
CRIMINAL APPLICATION NO. 1269 OF 2016
WITH
CRIMINAL APPLICATION NO. 51 OF 2019
IN
CRIMINAL APPEAL NO. 681 OF 2016
Tushar Vikram Bairagi, }
Age: 20 years, }
R/o: Ghodke Nagar, Pimpalgaon (B) }
Pimpalgaon (B), } Appellant
Taluka-Niphad, District-Nashik } (Orig. accused no.2)
Versus
The State of Maharashtra } Respondent
-------------------
Mr. Aniket Vagal for the appellants in Apeal/670/2016,
Apeal/673/2016, Apeal/681/2016.
Mr. Atul Kakade, court appointed advocate for appellant in
Apeal/295/2017.
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Mr. Atul Kakade I.by Mr. Praap B. Kakade for appellant in
Apeal/733/2018.
Ms. Madhuri Kakade I.by M/s. Jay and Co. for Intervenor in all
appeals.
Ms. P.P. Shinde - APP for the State.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : MARCH 15, 2021.
PRONOUNCED ON : JULY 16, 2021.
JUDGMENT :- (PER SADHANA S. JADHAV, J.)
1. The Appellants (Original Accused nos.1 to 6, 9 and 11)
herein are convicted of the offence punishable under section 364 (A),
386, 347, 506 (II) read with 120(B) of Indian Penal Code and section
395 read with section 397 and 120 (B) of Indian Penal Code and they
are sentenced to suffer for life and fine of Rs.1000/- (each), in default,
to suffer further rigorous imprisonment for six months vide judgment
and order dated 23rd August 2016 in Sessions Case No. 26 of 2013
passed by the Additional Sessions Judge-1, Niphad, District-Nashik.
Hence, these appeals.
2. Such of the facts necessary for the decision of this appeal
are as follows:-
a) On 20th December 2012, Shri Karsandas Mulji
Thakkar (PW.11) resident of Pimpalgaon-Baswant lodged a
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report at the police station alleging therein that on 19 th
December 2012 his brother Shankarlal, who was a trader in
Onion Market had been to the market for doing his daily
transactions. He had gone on his motorbike bearing no. MH-
15/CH-1814. He had not returned home. His cellphone was
reported to be switched off and therefore the informant had
inquired with his friends and relatives but to no avail. He
received a call from an unknown person informing him that
his brother Shankarlal was in their custody. He is safe but
the same should not be reported to the police. On 20 th
December 2012 at about 7.00 a.m. the first informant
received a phone call from a Cellphone the last 3 digits of
which were 559 and the caller had demanded a ransom of
Rs. 15 Crore for the safety of Shankarlal.
b) On the basis of the said report, Crime No. 138 of
2012 was registered at Pimpalgaon- Baswant Police Station
against unknown persons for the offence punishable under
section 364 (A), 384, 386 read with section 34 of Indian
Penal Code. The investigation was set in motion.
c) In the night intervening 20th and 21st December 2012,
the location of caller was determined. On the basis of tower
location, the police and the complainant had reached village
Kharshinde along with Nashik Rural Police. The Police had
apprehended the persons from whom a total amount of Rs. 5
Crores and some pistols/revolvers were recovered.
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d) At the trial the prosecution examined as many as 20
witnesses to bring home the guilt of the Accused.
3. The case of the prosecution is unfolded by PW.11. He has
proved the contents of First Information Report, which is at Exhibit-
133. According to him, on 19th December 2012, his brother had not
returned. He searched for his brother but to no avail. His son Yogesh
had informed him that although Shankarlal is not in the office, the
lights and the fans were not switched off and that his motorbike was
missing. Subsequently motor-bike was found parked behind the last
godown. PW.11 had then reported to Pimpalgaon police station.
4. The cellphone number of Shankarlal was 9823058514. At
about 1.30 a.m. in the intervening night of 19th and 20th December
2012 after several efforts they could contact Shankarlal but the voice
of the receiver was not audible. The receiver of the phone had verified
whether it was Karsandas (PW-11) and had pressed in demand fifteen
Khokas (Rs. 15 Crores). He was reminded that in the past he had
contacted the police on the previous occasion but now he should not
overlook the fact that his brother was in their custody or else
Shankarlal would suffer the consequences. The conversation was in
Hindi. After consultation with the family members, PW.11 had sent a
message on the cellphone of Shankarlal that they were ready to fulfill
their demand but should not assault Shankarlal. The message was not
delivered. On the next date i.e. on 20th December 2012, he received a
call on his cellphone. The last digits of that cellphone number was 559.
Shankarlal then called up the complainant and told him to fulfill the
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demand for setting him free. The report was lodged at police station on
20th December 2012 at 7.30 a.m. PW.11 had collected a substantial
amount. At 11.30 a.m. he received a call from the cellphone of
Shankarlal, PW.11. After negotiation, the amount was settled to Rs.5
Crores. He left his house with his driver at 6.00 p.m. The complainant
was directed to come alone in his car bearing registration No. 14. He
was directed to halt at Shiblapur Road. Three persons on a motor-bike
stopped him. They were followed by another motor-bike. They took
the amount from the first informant. Shankarlal was found sitting in a
Matiz Car. Shankarlal was accompanied by 2 to 3 people. Shankarlal
was not able to walk properly. Shankarlal was set free after handing
over three bags.
5. The three bags given by him were identified before the
Court. They were green, red and grey in colour. In the course of
recording the evidence, it was seen that the bags were not produced
along with Muddemal articles. The people who had received the
money were identified as Vikram Bairagi, Sachin Kolhe and Yogesh
Gadakh.
6. It is pertinent to note that at 1.30 a.m. in the night
intervening 19th and 20th December 2012, the complainant had
approached the police station and reported to the police that a ransom
of Rs.5 Crores was demanded from him, by keeping his brother in
confinement. The last three digits of the cellphone from which he was
called was 559. But no formal report was lodged. The police had kept
the number 559 on surveillance since 1.30 a.m.
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7. It is elicited in the cross-examination that the complainant
had attended the Court on every date when the Accused were
produced before the Court and that the Accused were never brought
under a veil. Hence, the identification of the Accused in the Test
Identification Parade would be of no significance. Vikram Bairagi
father of Accused Tushar was working as a Supervisor with the
complainant for 25 years. The witness has cautiously denied to have
any land dealing with Accused No. 1 Sachin Kolhe. It is further elicited
in the cross-examination that on earlier occasion also he had received a
threat of extortion and had reported about it to the police station. In
fact, PW.11 was acquainted with Yogesh Gadakh but had not disclosed
to the police that he handed over money to Sachin, Tushar and Yogesh.
He had reported to the police that his cellphone was lost. He has not
disclosed to the police or to the Court the source of collection of a huge
amount like Rs.5 Crores in less than 10 hours.
8. PW.15-Shankarlal Thakkar, the victim in the present case,
has deposed that on 19th December 2012 he was in the market at
6.30p.m. He then went to his office. His office was a tenement of 3
rooms. The watchman resided in one room and the other room was
occupied by one Mr. Nair and the third room was being used as a
office. At the relevant time, the watchman was on leave, as he had
gone to his native place at Nepal. Mr Nair had not returned to the
room. That he was taken by surprise when three persons entered into
the office wearing monkey cap. All those persons were unknown to
him. He was assaulted by the said persons. He had sustained bleeding
injury. His hands and legs were tied, his eyes were closed with a strip
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and a cap was put on his head. He was lifted and made to sit in a car.
9. According to him, the said persons had demanded money
from him previously also but he had not paid. He was informed by
them that their Boss was in Mumbai and they were only executing the
plan. They had even offered food to him but he did not eat it.
10. According to him, throughout the night he was seated in
the car guarded by two persons in the front seat. They did not converse
between themselves. In the morning he was offered breakfast and then
they had opened his eyes by removing the strip, he realised that the car
was parked in the backyard of the house and that there were two
motorbikes next to the car. He recognised Sachin Kolhe and Tushar
Bairagi, the son of their Manager. But the other boys were strangers.
He learnt from them that a demand of Rs. 5 Crore was made by them
to PW.11.
11. On 22nd December 2012 i.e. on the very next day of the
incident, he was informed by his brother that the police had arrested
all the Accused and the amount of Rs. 5 Crores was also recovered. He
was asked to identify the Accused at Central Jail on 24 th January 2013.
He had identified 8 Accused. He identified them before the Court. He
had identified Sagar Gavali, Mulani Husain and Yogesh Gadakh as the
first persons who entered his office. He has also named Arjun Rahane,
Accused No. 5 as one of the persons involved in the said incident. But
he has identified him as Santosh.
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12. According to him, the distance between his house to police
station is about 300 to 400 feet. He has denied to have visited any
dispensary and he was not treated at primary health centre at
Pimpalgaon nor visited a doctor. His attention was drawn to the
omissions but he could not assign any reason for the omissions. He was
examined by doctor at home. He has admitted to be acquainted to
Sachin Kolhe, even prior to the incident. That, he has not lodged any
complaint prior to this incident, in respect of any threat. He has
certified, Vikram Bairagi as an honest person, as he had worked as a
Manager with the firm of the complainant and the victim for a period
of more than 15 to 16 years. Initially, he was paid a salary of Rs.
2,000/- and then lastly a salary of Rs.13,000/-. It is also admitted that
the family of Tushar Bairagi was known to them from several years.
13. The prosecution has examined the following Panchas to
substantiate its case. That the appellants are the persons who had
abducted Shankarlal for ransom and had detained him in confinement
till the ransom was paid.
1. PW.2-Tanaji Bankar has proved the contents of the panchanama at
Exhibit-84/C which is for recovery of the amount which was
obtained as ransom by the Accused.
2. PW.3-Laxman Khode is also the Panch for recovery of the amount
as well as the panchnama of the car. He has proved the contents of
Memorandum of statement of Accused Balasaheb Wadekar which
is at Exhibit-89 and the seizure panchnama which is at Exhibit-90
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3. PW.4-Kantilal Patel is the panch for recovery of bloodstained
clothes at the behest of Accused Sachin Kolhe, Tushar Bairagi,
Mulani Dawood, Sagar Gavli, Arjun Rahane.
4. PW.5-Arun Chavanke is the panch who has proved Exhibit-97/C for
recovery of Motorola cellphone of Hatangale and the recovery of
cellphone at the behest of Balasaheb Wadekar is marked at Exhibit-
98/C.
5. PW.6-Kantilal Patel for the recovery of Magazines at the house of
Sachin Kolhe, which is at Exhibit-100-C.
6. PW.7-Yogesh Vora for the recovery of clothes of victim which is at
Exhibit-102C.
7. PW.8-Dhananjay Gangurde is a panch for recovery of the clothes of
the Accused Wadekar - Hatangale which is at Exhibit-108-C.
8. PW.9-Arvind Jadhav, who is a panch for the seizure of hair on the
hand and head of the victim Shankarlal Jadhav. He has proved the
panchnama at Exhibit-110-C.
9. PW.10-Mahesh Ekhe had acted as a panch for Test Identification
Parade which was conducted on 24 th January 2013 at Central
Prison, Nashik by Mr. Manoj Kumar. Panchnamas are from Exhibit-
112 to Exhibit-131.
10. PW.13-Deepak Bhutada had acted as a panch for the arrest
panchnama of 8 Accused.
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14. According to PW.2, he was called by Tarun Thakkar and
further informed that P.I. Desai had called him at the office of Local
Crime Branch. PW.2 along with PW.3 met Mr. Desai (PW.19) who
informed them that the Accused in the present case are at Village
Kharshinde, Tal-Sangamner. They then proceeded to village
Kharshinde. They found the Matiz car parked behind an isolated house
at village -Kharshinde. They also saw two motorbikes. The police
encircled the house. The police noticed some people were sleeping on
the platform abutting the house. The said persons had kept bags as
pillows. They were apprehended at about 4.00 to 4.15 a.m. The first
person was Sachin Kolhe. On personal search they found a pistol with
5 rounds, 2 to 3 SIM cards, amount of Rs. 10,500/- and olive colour
bag containing Rs.1,25,00,000/- in the denomination of Rs.500/- and
one Samsung cellphone. The police has seized all the articles on the
spot.
15. PW.2 has given the name of all the Accused persons
apprehended on the spot. Sachin Kolhe and Tushar Bairagi hailed from
village of PW.2 and therefore, he could identify them. A revolver and
LG Mobile were seized from the possession of Accused Tushar. A brown
colour bag was found near the head of the Accused Mulani Dawood
Hussain. The said brown colour bag was containing Rs. 90 lakh. A
revolver with 8 rounds was seized from the possession of Sagar Gavali.
The bag seized from Tushar was containing Rs. 2,25,00,000/-. He was
also found in possession of Mobile handset of Nokia. A brown colour
bag was seized from the possession of Arjun Rahane. The said bag was
containing Rs. 60,00,000/-. He was also found in possession of
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cellphone of Nokia. A cellphone was found from the personal search of
Yogesh Gadakh. Similarly, cellphones were found from the possession
of acquitted Accused Sunil Pethe and Kondaji Wadekar. The cellphones
of the accused and the cellphones of the Complainant and Victim were
not sent for Mobile device forensic.
16. According to PW.2, 57 cartridges were found from the dikki
of dash board of the Matiz Car. There were blood stains on the seat
and the floor of the Car. One of the motor-bike found on the spot
belonged to the brother of Dawood Mulani.
17. PW. 2 has admitted that while in transit, he was told about
the exact destination where they had to go. PW. 2 has admitted in the
cross-examination that the bags which were seized on the spot were
not produced before the Court. It is pertinent to note that even
according to PW.2, he was acquainted with Sachin even prior to the
incident. All the Accused were apprehended on the spot with
incriminating articles like Pistol and cash amount. Despite, that a
protest Morcha or rather demonstration against the police was taken
to the Pimpalgaon-Baswant police station seeking early arrest of the
miscreants who had indulged into the said act of Kidnapping
Shankarlal for ransom and it is further pertinent to note that PW.2 was
leading the said demonstration. Exhibit-84 is the panchnama signed by
PW.2 drawn in the intervening night of 20th and 21st of December 2012.
It was recorded between 1.30a.m to 12.00 noon.
18. It is elicited in the cross-examination that PW.2 happens to
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be the founder President of Pimpalgaon- Baswant Krushi Utpanna
Bazar Sangh.
19. PW.3- Laxman Khode had accompanied with PW.2. He is
the panch for the recovery of the revolver at the behest of acquitted
Accused no. 8. PW.3 has deposed before the Court that as if he had
come into picture for the first time only on 24th December 2012. In
fact, the house in front of which the Accused were found sleeping
belonged to acquitted Accused Balasaheb Wadekar. He had produced
the bag which was seized at the behest of Balasaheb Wadekar. The
school leaving certificate of Tushar Bairagi and his mark-sheet of 10 th
standard, his ITI certificate and bio-data were found. The said bag also
contained the school leaving certificate of Sachin Kolhe along with 10 th
standard certificate, I.T.I certificate and Armour was also seized from
the said bag.
20. It is elicited in the cross-examination that he was with
police from 19th to 24th December 2012 but after 19th December 2012
he had been to Pimpalgaon-Baswant Police Station. On 24 th December
2012 he has denied to have signed any other panchnama other than
Exhibit-89-C which is the memorandum of Accused Balasaheb
Wadekar. According to PW.3, PW.2-Tanaji Bankar was not at the police
station on 19th December 2012. He met Tanaji Bankar only on 21 st
December 2012. It is further admitted in the cross-examination that
one more case of extortion of Rs.5 Crore was registered at Pimpalgaon
police station prior to registration of Crime no. 138/2012 and in fact,
in that case PW.3 has acted as a panch in respect of one of the Accused
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Mahanoor. That according to him Shankarlal Thakkar and himself were
founder Directors of Ashok Nagari Pathsanstha. On the day of the
incident he had accompanied the complainant to Pimpalgaon-Baswant
police station.
21. PW.4.Kantilal Patel, has acted as a panch for the seizure of
bloodstain clothes on the persons of Accused Sachin, Tushar, Dawood,
Sagar, Arjun, Yogesh, Sunil and others. It is pertinent to note that the
clothes were seized on 21st December 2012 and there were bloodstains
on it. The panchnama is at Exhibit-92 and it was recorded on 21 st
December 2012 in between 5.00 p.m. to 7.00 p.m.
22. PW.16.- Manojkumar Khairnar, Test Identification Parade in
Central Jail Nashik Road on 24th January 2013. The memorandum of
Test Identification Parade is at from Exhibit-161/1 to 161/8. The
identifying witnesses are the complainant Karsandas Thakkar and the
victim Shankarlal Thakkar.
23. PW.17-Dr. Yogesh Dhanvate has examined the victim on 21 st
December 2012 and has found abrasions and contusions on the wrist
of his hand, on the forehead and on the forearm. They appeared to be
fresh injuries caused by hard and blunt object and all injuries were
simple in nature.
24. According to PW.17, the victim has examined at his
resident. He had also taken the blood sample of Accused and the
victim. Injury certificate is at Exhibit-164. The injury certificate does
not indicate that the patient was examined at his house. There is no
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reference to bleeding either. There is no entry in Medico Legal Register
to the effect that PW.17 had attended the patient at home. According
to him, he had learnt about this Medico Legal Case on 21 st December
2012 at about 8.30 am.
25. It is elicited in the cross-examination that the injured was
not referred to him by any police. There was no requisition of the
police to examine him at home. There was no explanation that as to
why it is not mentioned in Exhibit-164 that the patient was brought by
relatives. There is no contemporaneous records to show that the
injured was rather examined by PW.17.
26. PW.18, Tushar Badhan was working as a Clerk in the office
of Superintendent of Police, Nashik. He had acted as a Panch for
hearing the conversation which was tape recorded during the
investigation of this case. A transcript of the same was prepared.
According to PW.18, the conversations read by the Accused and the
witnesses was recorded in the cellphone of Mr. Desai. The voice sample
of 2 Accused were taken. However, the names of the Accused are not
mentioned in the substantive evidence of PW.18. Exhibit-173-C would
show that the said voice was of Santosh and Sachin.
27. It is the case of the prosecution that the Accused Sachin
Kolhe, Tushar, Dawood, Arjun, Sagar, Santosh and Vishwajeet had
conspired to kidnap Shankarlal Thakkar for ransom. The prosecution
has attempted to substantiate the same by examining PW.12, Vikas
Ahire.
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28. PW.12, Vikas Ahire was working as an agricultural labour
with Dattatraya Patil. Sachin and Viju Kulkarni were acquainted with
the son of Dattatraya Patil. Sachin was working as a estate broker for
sale and purchase of land. According to him, it was the idea of Sachin
that one onion merchant from Pimplegaon should be kidnapped and
he would pay Rs. 10 lakh. In fact, PW.12 had also agreed to work with
Sachin, Tushar and Dattatraya Patil who had disclosed their plan to the
others and had also disclosed that the name of the onion merchant is
Shankarlal. Sachin had assigned different jobs to the others and PW.12
was assigned work of a Driver. Sachin had not forced anyone to join
the conspiracy and had made it clear that they had the option to
decline. Sunil Pethe had agreed to join Sachin Kolhe but thereafter he
had no contact either with Sachin or Sunil and had learnt about the
abduction of Shankarlal by Sachin and Sunil from a Taxi Driver. PW.12
was also working in the market committee for sometime.
29. On 29th December 2012, PW.12 was taken to the police
station by the police. According to him he had not disclosed about the
conspiracy to anyone till his statement was recorded by the police.
Lalit was also taken to the police station. It is pertinent to note that
PW.12 was taken in custody by police. Hence there is no evidence of
conspiracy.
30. PW.20-Devidas Shelke was attached to Pimpalgaon
Baswant Police Station. According to him, on 20 th December 2012 at
about 8.00 to 8.15 a.m complainant Karsandas lodged the report about
kidnapping of his brother Shankarlal by unknown persons and
demanding ransom of Rs. Fifteen Crores coupled with a threat that on
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failure to fulfill the demand, Shankarlal would be killed. He conducted
the first panchnama of the spot from where Shankarlal was Kidnapped.
It is elicited in the cross-examination that no information was received
about the present crime to police station prior to 8.00 to 8.15 a.m of
20th December 2012. Complainant has not given information about
kidnapping of his brother on telephone at 1.40 a.m. in the night
intervening between 19th and 20th December.
31. PW.20 has further deposed that on 21 st December 2012,
Investigating officer deposited muddemal property i.e. cash amount of
Rs. 5 Crores in the Police Station but description, number and quantity
of said currency note was not mentioned in the register. Even while
returning the muddemal cash amount of Rs. Five Crores to the
complainant, no description and quantity of said deposit amount has
been mentioned in the register. The name of the person who has
deposited the cash muddemal is not mentioned nor his signature was
obtained. That there is no Maal khana room in the crime branch. No
panchnama was recorded while returning the cash amount to the
complainant.
32. The admission of PW. 20 is as follows:-
1) When I received the case paper in the present crime for
investigation and till it was handed over to crime branch
at that time, LCB office were also paralleled carrying out
investigation in the present crime branch. Our police
station has not sent letter to crime branch for requesting
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them to carry out the investigation in the present crime.
2) During the investigation, I did not collect C.C.T.V
footage from Toll plaza.
3) It is true to say that in the Muddemal register no Balance
sheet (talmel) of December 2012 has been filled up at
the end of the month.
33. He has proved the omission and contradictions in the
evidence of PW- 11.
34. PW.19.-Ramchandra Desai was officiating as a P.I. to Local
Crime Branch, Nashik. 21 investigating officers with him were
entrusted with investigation of Crime No. 138/2012 registered at
Pimpalgaon - Baswant on 20th December 2012. He had gone through
the F.I.R. and had noticed that the complainant had mentioned three
last digits of the cellphone number from which he had received the
threats for ransom. According to PW.19, it has transpired in the
investigation that the said number was allotted to one Shivaji Sarode.
Certificate issued by the Nodal Officer was marked at Exhibit-178-179
despite an objection by the defence counsel.
35. PW.19 has testified before the Court that the said cellphone
was kept on surveillance and that it was on the basis of the tower
location that they had reached the Accused persons. It had also
transpired that the said handset was having dual SIM card and the
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number of other SIM card was ending with 724. The other SIM card
number ending with last digit no. 724 was allotted to the acquitted
Accused Balasaheb Wadekar of Kharshinde area. On 20th December
2012, at about 11.30 p.m. the police staff along with two panch
witnesses left for village Kharshinde. They reached there at 4.00 a.m.,
he has further disclosed that police squad had been to Kharshinde via
Siblapur in groups and encircled the village. They had learnt about the
location of accused because of the conversation between the
complainant and accused. The last digit of the cellphone no. of victim
was 14 and in order to mislead the investigating agency the accused
had handed over the cellphone of the victim to someone in Manmad,
Chandwad area. They reached an isolated house. They found one
Matiz car near the house. They found that some eight persons were
sleeping with bags under their heads on the platform abutting the
house. They suspected the boys, asked their names and address and
took their personal search as well as the search of their bags. Upon
inspection, the bags were found loaded with money in the
denomination of Rs. 500/- and Rs. 1000/-. The bags were seized from
Sachin Kolhe, Mulani Husain and Sagar Gavli. The total amount seized
was Rs. Five Crores. They also found revolvers and pistols. Then they
seized the 7/12 extract of the property situated at Kharshinde, the said
property belongs to Shankarlal.
36. PW.19 has then deposed about the arms and money that
was recovered from the Accused at Kharshinde. He had referred all the
Accused for medical examination and the medical officer had conveyed
that there were no injuries on the person of any of the Accused. The
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medical certificates are collectively at Exhibits-180-181. The cellphone
having last digit of 514 was recovered from Accused- Santosh
Hatangale. PW.19 claims to have requested the medical officer to
examine the victim at his house.
37. The admissions in the cross examination are as follows:-
1) I did not record the statement of Nodal Officer.
2) The sanction under the Arms act was sought at the time of
recording evidence.
3) In the proposal seeking sanction to prosecute the accused, I
am not able to state whether it is mentioned that victim
Shankarlal was found in one house at village Kharshinde.
4) It is correct to say that District Magistrate had returned the
proposal to file sanction under the Arms act on the ground
that the papers were incomplete.
5) The proposal was resubmitted and is at Exhibit-260. It is
correct to say that in the proposal Exhibited at 260, it is not
mentioned that the persons found sleeping on the "ota" of the
house were found in possession of bags containing cash. It is
not mentioned in that proposal that cash amount of Rs. Five
Crores was found with them. It is correct to say that it is not
mentioned in Exhibit 260 that Shankarlal was injured and his
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clothes were having blood stains.
6) The mobile handsets of the complainant and Shankarlal are
not seized. Their SIM cards are also not seized. I did not carry
out particular investigation of the fact whether their cell
phones containing their memory card or not.
7) I did not take photograph of the spot at Kharshinde. No
photographs of the currency notes were taken at the spot.
8) The Muddemal register showing the details of the cash is not
produced on the record.
9) It is correct to say that SIM card having last digit 559 and 514
were not taken charge from the possession of Accused no.1
and they were not registered in his name.
10) Shankarlal had not stated that on that day watchman of his
godown has gone to Nepal. I did not record the statement of
watchman and Mr. Nair.
11) I did not collect the treatment papers of Shankarlal during
investigation.
12) I do not know whether the father of Tushar Bairagi was
working with the complainant or not.
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13) We did not give report in writing about the raid to any
other police station. We did not call local panch of
Kharshinde. No separate report was given to senior officer
about the raid.
14) I did not inquire as to from which friends or relatives the
complainant had collected such huge cash amount nor I did
examine the bank statement or income tax record.
15) It is correct to say that SIM card having last digit number
559 is not seized from Accused no. 1.
38. The Investigating Agency has seized 21 SIM-cards. They
had also seized the documents to show that the number having last 3
digits as 559 was in the name of Shivaji Sarode of Dindori. He has not
been examined.
39. The learned counsel for the appellants has vehemently
submitted that in the present case the appellants herein are being
falsely implicated by concocting the story against them. It is submitted
that the father of Tushar Bairagi was working with PW.11 for
considerable long time and therefore, they were acquainted with
Accused no.2. That the dispute between Vikram Bairagi and
complainant was the main cause for implicating Tushar. As far as
Accused no.1 is concerned, he was an estate agent. He was to recover
commission of Rs. 5 Crores from the complainant and his brother and
since he was demanding the same he has been falsely implicated.
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40. The learned counsel has drawn the attention of this Court
to the manner in which the investigation was carried out. At the
threshold, it is stated that the complainant had not given the exact
cellphone number from which he had received a call. The last 3 digits
were mentioned and the police could not have kept cellphone on
surveillance on the basis of the incomplete cellphone number with just
last 3 digits.
41. According to the learned counsel for the appellants the
story that they could keep cellphone on surveillance cannot be believed
as there is no evidence to show as to which number was kept on
surveillance. In short, the learned counsel submits that the Accused
deserve to be acquitted.
42. As against this, the learned APP submits that it is necessary
to consider the gravity of the offence and the fact that they have asked
for ransom and endangered the life of the victim would establish that
the Accused have committed an offence punishable under section
364(A) of Indian Penal Code. It is necessary to examine as to whether
the prosecution has proved the case against the accused beyond
reasonable doubt.
43. The chronology of the events i.e. brought on record by the
prosecution is as follows:-
a) In the night intervening 19th and 20th December 2012,
at about 1.30 a.m the complainant had received a phone
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call on his cellphone demanding a ransom of Rs.15 Crores.
The said calls were made from the phone call of his brother
Shankarlal. He had informed the police about the same.
b) On 20th December the accused had called the
complainant at 7.00 a.m., agreed to accept Rs. 5 Crores.
PW.11, then approached the police station and F.I.R. was
registered. He gave the last 3 digits as 559, the number of
the cellphone from which he received the call.
c) He met the accused at Shiblapur Phata as directed.
His brother was set free after they accepted Rs.5 Crores.
The cash was accepted by 3 persons who followed his car
on a motor-bike.
d) On 20th December 2012 in the midnight, he informed
the police that his brother is released and he has paid the
amount of Rs. 5 Crores. The police i.e. Local Crime Branch
immediately flung into action. Tarun Thakkar the son of the
complainant called upon PW.2- Bankar and PW.3 Khode. He
took them to the police station. They were given an idea
that they have to go for a raid.
44. The substantive evidence of PW.19, P.I. Desai shows that the
Accused had kept the cellphone of the complainant with someone in
Manmad. It is pertinent to note that the complainant had received the
first call and the last call including 1 or 2 intervening calls from the
cellphone of Shankarlal and Shankarlal had also spoken to the
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complainant. All other calls were made from the cellphone of
Shankarlal. The second and last call were made from the cellphone
number ending with 559.
45. It is surprising as to why the complete number ending with
3 digits is not mentioned in the substantive evidence of any of the
witnesses. The investigating officer has not recorded the statement of
the Nodal officer neither the prosecution has recorded the evidence of
the Nodal Officer, in the absence of which it would be difficult to hold
that the said number was kept on surveillance and the tower location
of the Accused could be traced on the basis of the said cellphone
number.
46. The story put forth by the prosecution is that when the
police reached the spot and apprehended the Accused, the Accused
had made no attempt to flee or retaliate, despite the fact that they
were armed with weapons. The boys were sleeping in open area with
the bags containing money would not inspire confidence.
47. According to Shankarlal- the victim, he was in the Matiz
Car for more than 24 hours. Investigating Agency had found bloodstain
on the clothes of the Accused. None of the Accused had sustained
injury. The victim had not sustained any bleeding injury. The victim
was not referred to any hospital. The medical officer visited the house
of the victim on his own and issued medical certificate with the seal of
the Civil Hospital. There is no contemporaneous record to show that he
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was examined by the medical officer. There is no plausible explanation
for not registering the First Information Report at 1.30 a.m., in the
intervening night of 19th and 20th December 2012.
48. The complainant has not stated the source of collecting Rs.
5 Crores within less than 8 hours. The entire amount was in the
denomination of Rs.500 and Rs.1000/-. The said notes were not
withdrawn from any bank. There is no classification to show how
much amount was in the denomination of Rs. 1000/- and how much
amount was in the denomination of Rs. 500/-.
49. The identification parade of Accused nos. 1 and 2 is futile
for the simple reason that both the Accused were known to the
complainant and the victim.
50. At this juncture, the explanation given by the Accused no.1
needs to be taken into consideration. It is the specific contention of the
Accused no.1 that he is an estate agent. He was a mediator in a deal
where the complainant purchased the property in Nashik. The
complainant had not paid the commission of Rs.5 Crores as agreed
between them. He was mislead. The complainant gave the amount
which was "black money" and recovered it with the help of PW.19.
51. It is elicited in the cross-examination of PW.19 that Sachin
Kolhe and Wadekar had filed private complaint against P.I., Desai. That
P.I, Desai was acquainted with complainant even prior to the incident.
That Accused no. 11 Vishwajeet Thete and the complainant were
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residing in the same colony and therefore his identification in Test
Identification Parade is futile. That, the cellphone number of the
complainant is 9822080614. He had lodged three complaints in
respect of this cellphone to the police station earlier.
52. The investigating officer had not seized the cellphone of
the complainant or the victim to verify the phone calls received by him
between 19th and 20th of December 2012.
53. The nucleus of the matter is that the prosecution has not
established that the ransom was demanded from the cellphone ending
with the 3 digits 559. The tower location of the victim was shown to be
Manmad. However the complainant had talked to the victim on more
than 3 occasions and it is nobody's case that the accused had taken the
victim to Manmad. It is not reflected on tower location also.
54. The case is based on circumstantial evidence and the
circumstances brought on record do not inspire the confidence of the
Court. The prosecution has to establish the chain of circumstances.
The said chain has to be complete chain which would lead to an
inference by which the innocence of the Accused is ruled out from
every angle. The entire episode as is put forth by the prosecution is
doubtful.
55. The Black's Law Dictionary defines "reasonable doubt as
the doubt that prevents one from being formally convinced of a
defendant's guilt, or the belief that there is a real possibility that a
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defendant is not guilty".
56. The only contention of the learned P.P. is the gravity of the
offence needs to be taken into consideration and that the Accused do
not deserve any leniency from the Police.
57. In the case of 'Mousam Singha Roy & Ors vs State Of West
Bengal1 the Apex Court has held as follows:-
"the law does not permit the courts to punish the accused on the basis
of moral conviction or on suspicion alone. The burden of proof in a
criminal trial never shifts, and it is always the burden of the
prosecution to prove its case beyond reasonable doubt on the basis of
acceptable evidence".
58. The Apex Court in the case of 'K. Gopal Reddy Vs. State of
Andhra Pradesh'2 has held as follows :-
"It stems out of the fundamental principle, of our criminal
jurisprudence that the accused is entitled to the benefit of any
reasonable doubt. If two reasonably probable and evenly balanced
views of the evidence are possible, one must necessarily concede the
existence of a reasonable doubt. But, fanciful and remote possibilities
must be left out of account. To entitle an accused person to the
benefit of a doubt arising from the possibility of a duality of views, the
possible view in favour of the accused must be as nearly reasonably
probable as that against him. If the preponderance of probability is all
one way, a bare possibility of another view will not entitle the accused
to claim the benefit of any doubt. It is, therefore, essential that any
1 (2003) 12 SCC 377
2 (1979) 1 SCC cases 355
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view of the evidence in favour of the accused must be reasonable even
as any doubt, the benefit of which an accused person may claim, must
be reasonable. "A reasonable doubt", it has been remarked, "does not
mean some light, airy, insubstantial doubt that may flit through the
minds of any of us about almost anything at some time or other, it
does not mean a doubt begotten by sympathy out of reluctance to
convict; it means a real doubt, a doubt founded upon reason"
59. It is also a settled principle of criminal jurisprudence that
the more serious the offence, the stricter the degree of proof, since a
higher degree of assurance is required to convict the accused. The
prosecution has to stand on its own legs to establish the guilt of the
accused.
60. The landmark judgments of the Apex Court in the case of
'Sarwan Singh Rattan Singh vs State Of Punjab3, has held as under:-
"It is no doubt a matter of regret that a foul cold-blooded and cruel
murder should go unpunished. There may also be an element of truth
in the prosecution story against the accused. Considered as a whole,
the prosecution story may be true; but between 'may be true' and
'must be true' there is inevitably a long distance to travel and the
whole of this distance must be covered by the prosecution by legal,
reliable and unimpeachable evidence before an accused can be
convicted."
61. In the present case, the circumstances brought on record do
not lead to an inference that the prosecution has established its case
3 AIR 1957 SC 637
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beyond reasonable doubt. The Accused are entitled to be acquitted by
extending to them the benefit of doubt. Hence, the following order:-
ORDER
1. The appeals are allowed.
2. The conviction and sentence imposed upon the
Accused/appellants vide judgment and order dated 23rd August
2016 in Sessions Case No. 26 of 2013 passed by Additional
Sessions Judge-1, Niphad, District-Nashik is hereby quashed and
set aside.
3. The Accused/appellants stand acquitted of all the charges
levelled against them.
4. The Accused/appellants be released forthwith, if not
required in any other offence;
5. Fine amount if paid, be returned to the appellants, as per
rule.
6. The appeals and all connected applications are disposed of
accordingly.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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