Atul S/O. Anantrao Kate (In Jail) vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 9688 Bom

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

                         CRIMINAL APPEAL NO. 16 OF 2018

  Atul S/o. Anantrao Kate,
  Aged 43 years, Occ. Nil,
  R/o. Taligaon, Aradibandi Panji, Goa
  (At present Central Jail, Nagpur)                                       . . . APPELLANT

                         ...V E R S U S..

  State of Maharashtra through
  Police Station Officer,
  Police Station, Ajni, Nagpur.                                        . . . RESPONDENT


 ------------------------------------------------------------------------------------------------
 Shri A. K. Bhangde, Advocate for appellant.
 Shri S. S. Doifode, A.P.P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 26.07.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. By this appeal, accused no. 1 challenges judgment and

order dated 04.12.2017 passed by the Additional Sessions Judge,

Nagpur in Sessions Trial No. 412/2014, whereby the appellant is

convicted and sentenced in the manner stated herein below:-

(i) Under Section 364A read with Section 34 of the Indian

Penal Code to undergo imprisonment for life and to pay fine of

15,000/- and in default to suffer further rigorous imprisonment for a

period of one year.

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 (ii)             Under Section 363 read with Section 34 of the Indian

Penal Code to undergo imprisonment for 7 years and to pay fine of

3,000/- and in default to suffer further rigorous imprisonment for a

period of six months.

2. The prosecution case in short is as under:-

Sau. Vandana Manoj Vairagade (PW1) lodged report with

Police Station Ajni, Nagpur on 27.06.2014 (Exh.26) alleging that

accused no. 1/appellant is good friend of her husband- Manoj

Vairagade (PW5), as they were classmates at Nagpur. Accused no. 1-

Atul Kate is husband of accused no.2- Vishakha Kate and both are

residing at Goa. It is alleged that accused nos. 1 and 2 came to Nagpur

before 15 days prior to the date of incident. It is alleged that on

24.06.2014, accused nos. 1 and 2 had been to the house of Vandana

(PW1) and Manoj (PW5) for dinner. Thereafter again on 27.06.2014 at

2 p.m., accused nos. 1 and 2 had been to the house of Vandana (PW1)

and Manoj (PW5). On that day accused nos. 1 and 2 requested

Vandana (PW1) to allow her 10 month old daughter - Shrushti for joy

ride. Inspite of resistance of Vandana (PW1), accused nos. 1 and 2 took

minor child- Shrushti with them for purchase of clothes and eatables

and left the house of Vandana (PW1). Accused nos. 1 and 2 failed to

come back even after lapse of considerable time. Therefore, Vandana

(PW1) contacted her husband- Manoj (PW5) at 4.35 p.m. but, Manoj

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(PW5) failed to receive the said call. Thereafter, Manoj (PW5) called

back Vandana (PW1). She disclosed the incident of taking daughter-

Shrushti by accused nos. 1 and 2. Manoj (PW5) therefore, rushed to

his home and tried to search accused nos. 1 and 2 alongwith his minor

daughter Shrushti. It is alleged that Vandana (PW1) and Manoj (PW5)

tried to contact accused nos. 1 and 2 on their cell phones but, cell

phones of accused nos. 1 and 2 were switched off. Vandana (PW1)

therefore, lodged report with Police Station, Ajni, Nagpur on

27.06.2014, which was registered as Crime No. 196/2014 under

Sections 363 read with Section 34 of the Indian Penal Code.

3. On the basis of oral report lodged by Vandana (PW1),

Bajrangsingh Salunke (PW14), Police Inspector, deputed teams of

police personnel to search minor girl- Shrushti and accused nos. 1 and

2. On 29.06.2014, at about 9 a.m., Prakash Ghodge (PW11), Police

Constable, who was on duty at Dhamangaon Railway Station, while

inspecting Gondwana Express at Dhamangaon had suspicion on one

male and female carrying one boy aged 12 years and one girl aged 10

months. Prakash Ghodge (PW11) enquired with them and got to

know their names are Atul Kate and Vishakha Kate. Prakash Ghodge

(PW11) searched accused no. 1- Atul Kate and found an amount of

23,722/- alongwith one SIM card of Airtel Company and ATM card

of Union Bank of India in his possession. Prakash Godge (PW11)

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forwarded the said information to Gajendrasingh Parihar (PW12), who

was working as Police Sub-Inspector, R.P. F. Pulgaon. He seized articles

i.e. cash, ATM card and SIM card in presence of panch- Prasana

Mundada (PW10) and one Rajesh Deotale. Bajarangsingh Salunke

(PW14), Police Inspector of Ajni Police Station, Nagpur recorded

statement of Manoj (PW5). On 29.06.2017, accused nos. 1 and 2 were

arrested by preparing arrest panchnama (Exh.17) at Police Station,

Ajni, Nagpur. Police carried out the investigation. The Investigating

Officer recorded statements of the witnesses and also took print-out of

the messages from cell phone phone of Manoj (PW5) allegedly sent by

accused- Atul Kate and seized cell phone phone of Manoj (PW5). The

Investigating Officer after completion of the investigation filed charge-

sheet with Additional Chief Judicial Magistrate, Nagpur and the case

was thereafter committed to learned Additional Sessions Judge,

Nagpur as offence under Sections 363 and 364A of the Indian Penal

Code are exclusively triable by the Court of Sessions.

4. The charges were framed against accused nos. 1 and 2,

which were explained to them in vernacular and for which they

pleaded not guilty. The defence of accused were of total denial and

false implication.

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5. The learned Sessions Judge by order dated 24.11.2016

separated trial of accused no. 1- Atul Kate from trial of accused no. 2-

Vishakha Kate, as accused no. 2 was absconding.

6. After recording evidence adduced by the prosecution, and

after hearing learned Advocates for the parties, the learned Trial Judge

convicted accused no. 1 in the manner stated in paragraph no. 1

above.

7. We have perused depositions of the prosecution witnesses;

material exhibits tendered and proved by the prosecution; statements

of the respondents recorded under Section 313 of the Code of Criminal

Procedure and the impugned judgment. After thoughtfully reflecting

over the matter, we are squarely satisfied that the present Criminal

Appeal deserves to be partly allowed by convicting the appellant under

Section 363 of the Indian Penal Code and acquitting him of charge

under Section 364A of the Indian Penal Code.

8. Shri A. K. Bhangde, learned Advocate for the appellant

submits that the prosecution has failed to prove its case beyond

reasonable doubt. The evidence adduced by the prosecution is full of

inconsistency, contradictions and major improvements. He submitted

that Apex Court in recent judgment dated 28.06.2021 in the case of

Shaik Ahmed Vs. State of Telangana in Criminal Appeal No. 533/2021

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has reiterated three essential ingredients of Section 364A of the Indian

Penal Code. The evidence of the prosecution lacks second ingredient,

namely threat by the accused to cause death or hurt by accused or his

conduct gave rise to a reasonable apprehension that accused may be

put to death or hurt the victim. He submitted that Manoj (PW5) has

made improvement as regards the incident of transaction and the

amount of ransom. He submitted that the deposit of amount by

Dhananjay Chopde (PW7) in the account of accused no. 2 is not linked

with either the demand of the accused or the directions from Manoj

(PW5). He submitted that electronic evidence produced by the

prosecution in the form of Call Details Record (CDR) and text

messages are inadmissible in evidence in view of absence of certificate

under Section 65B(4) of the Evidence Act.

9. Per-contra, Shri S. S. Doifode, learned A.P.P. for State

invited our attention to the evidence of Vandana (PW1) and Manoj

(PW5) to prove ingredients of Section 363 of the Indian Penal Code.

He placed reliance on Article-A, which is the text of SMS, by which the

accused no. 1 has threatened to throw away minor girl- Shrushti. He

submitted that Dhanjay Chopde (PW7) had deposited part of the

amount of ransom demanded by accused no. 1 and accused called

upon Manoj (PW5) to pay the remaining amount of ransom at Railway

Station, Dhamangaon, where he was arrested.

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10. We have reflected over the submissions of learned

Advocate for the parties. The first offence alleged against the

appellant-accused no. 1 is under Section 363 of the Indian Penal Code,

which is as under :-

363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

11. The essential ingredients of offence of kidnapping of minor from lawful guardian are:-

(i) the victim should be minor;

(ii) that the minor was taken or enticed away;

(iii) that the minor was in the keeping on his or her lawful guardian; and

(iv) that the guardian did not consent to his or her removal.

12. The prosecution, in order to prove ingredients for offence

under Section 363 of the Indian Penal Code has examined Vandana

(PW1), mother of minor victim, who had lodged the First Information

Report. Vandana (PW1) in her evidence stated that accused no. 1

being friend of her husband for 20 years had came for having dinner

with their family. The accused no 1 was residing at Goa. Vandana

(PW1) further stated that after 2 days, accused nos. 1 and 2 again

came to her house and told Vandana (PW1) that they are taking her

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younger daughter- Shrushti to purchase a frock for her and also to

provide some chocolate to her. Vandana (PW1) further stated that she

resisted for taking away minor- Shrushti for the reason that Shrushti

does not remain with any person for longer period but, the accused

insisted for taking her away with them saying that they will take a

round from nearby square. Thereafter, accused nos. 1 and 2 did not

turn up for considerable period and therefore, she called her husband

Manoj (PW5) and informed him about the incident of taking away of

her infant daughter. Manoj (PW5) tried to contact accused no. 1 on

his cell phone but, his cell phone phone was switch off.

13. Manoj (PW5) in his evidence stated that his wife Vandana

(PW1) called him telephonically and informed that accused nos. 1 and

2 have taken away their minor daughter- Shrushti and have not

returned back. Manoj (PW5) therefore, came to his house and

searched accused nos. 1 and 2 and his daughter. Since, Manoj (PW5)

could not find them, he alongwith his wife Vandana (PW1) went to the

Police Station for lodging the report. Manoj (PW5) made several

attempt to contact accused no. 1 on his cell phone but, the cell phone

of accused no.1 was switch off. It is stated that friend of Manoj, Rajesh

Naidu (PW3) tried to contact accused no. 1 on his mobile and Rajesh

Naidu (PW3) had talk with him and accused no. 1 told Rajesh Naidu

(PW3) that accused no. 1 wants to talk with Manoj (PW5). It is stated

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by Manoj (PW5) that accused no. 1 informed him that his minor

daughter was with him and accused no. 1 was in need of 50,000/-.

Manoj (PW5) stated that accused no. 1 told him that he will supply

account number to him to deposit an amount of 50,000/- in the said

account, otherwise he will not handover his daughter- Shrushti. Manoj

(PW5) further stated that he received one message on his cell phone

giving details of account number of accused no. 2 in Union Bank of

India. Manoj (PW5) further stated that he received call from accused

no. 1 that his minor daughter is safe in the custody of accused no. 1

and he will hand over her after receiving an amount of 50,000/-. It

is stated that on the next day, he received a message from the accused

no. 1 that if he does not deposit the amount in the account of the

accused, the accused will throw his daughter. It is stated that

Dhananjay Chopde (PW7) deposited an amount of 30,000/- in the

account of accused no. 2. It is further stated that he received a call

from accused no. 2 that he has to come at Akola Railway Station with

remaining amount of 20,000/-, otherwise she will not handover his

daughter.

14. The prosecution has placed on record arrest panchnama

(Exh.21), which shows that the appellant was arrested on 29.06.2014

at 19.30 hours. The place of arrest was shown as Ajni Police Station.

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15. Prakash Godge (PW11) stated that during checking of the

Train, he noticed one male and female in suspicion circumstances. He

identified both the accused in the Court. He found one 12 year old

male child and one 10 month old girl child alongwith accused nos. 1

and 2. He enquired with the accused about the girl child. He also

enquired names of the accused and it was told to him that their names

were Atul Kate and Vishakha Kate. They told Prakash Godge (PW11)

that they have kidnapped girl child from Nagpur and she is daughter of

Manoj (PW5). Prakash Godge (PW11) therefore, informed PSI

Gajendrasingh Parihar (PW12) about accused nos. 1 and 2. Prakash

Godge (PW11) conducted search of accused persons and he found an

amount of 23,772/- in cash, one SIM card of Airtel company and

ATM card of Union Bank of India.

16. The evidence brought on record by the prosecution in the

form of statements of Vandana (PW1), Manoj (PW5) and Prakash

Godge (PW11) that accused no. 1 took away minor child of Vandana

and Manoj on 27.06.2014 without consent of them and accused no. 1

was found on 29.06.2014 along with minor child of Vandana at

railway station Dhamangoan proves beyond doubt that the accused no.

1 had taken away minor daughter of Vandana (PW1) and Manoj

(PW5) from their lawful guardianship without their consent. In our

opinion, therefore, the learned Trial Court was justified in convicting

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accused no. 1-/appellant for the offence punishable under Section 363

of the Indian Penal Code.

17. The next offence allegedly committed by accused no. 1 is

under Section 364A of the Indian Penal Code, which reads as under :-

364A. 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.

18. In view of the judgment of Apex Court in the case of Skaik

Ahmed (supra), the essential ingredients of offence under Section

364A of the Indian Penal Code, which the prosecution is required to

prove are as under :-

(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and

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

(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom.

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19. From the discussion made above, we have no hesitation to

hold that first ingredient of offence of kidnapping is proved by the

prosecution. The second ingredient regarding threat to cause death or

hurt or conduct of accused giving rise to reasonable apprehension that

victim may be put to death or hurt, in our opinion, the prosecution has

failed to prove the said ingredient. To prove the ingredient of threat

caused by the accused, the prosecution has produced electronic

evidence in the form of text message (Article A) that in case of failure

to deposit the amount, accused no. 1 will throw daughter of Manoj

(PW5). Manoj (PW5) in his evidence stated that accused no. 1 sent

him text message that in case of failure to deposit the amount, he will

throw his daughter- Shrushti. Except this statement in the testimony of

Manoj (PW5), there is no evidence on record to prove ingredients of

threat or reasonable apprehension of causing hurt to the victim. The

prosecution has brought on record the text of the SMS sent to Manoj

(PW5) to prove threat given by accused no. 1. The print out of the text

of the SMS (Article A) being electronic evidence, it was necessary for

the prosecution to produce certificate as contemplated under Section

65B(4) of the Evidence Act. The electronic evidence produced by the

prosecution in the form of SMS between Manoj (PW5) and accused no.

1 is not supported by certificate under Section 65B(4) of the Evidence

Act. The prosecution has failed to bring on record either the primary

evidence of electronic certificate in the form of text SMS or secondary

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evidence of electronic evidence by producing on record certificate as

contemplated by Section 65B(4) of the Evidence Act. Therefore, print

out of the text of the SMS (Article A) being electronic evidence is

inadmissible in evidence. There is no evidence on record to show that

amount of 30,000/- deposited by Dhananjay Chopde (PW7) was at

the instance of Manoj (PW5). There is no suggestion given by the

prosecution to that effect. Manoj (PW5) in his evidence has not stated

that he had asked Dhananjay Chopde (PW7) to deposit an amount of

30,000/- in the account of accused no. 2- Vishakha. Since, the

prosecution has failed to prove Article-A, which was the only evidence

to prove ingredient no. (ii) of Section 364A of the Indian Penal Code,

we are satisfied that the prosecution has filed to prove essential

ingredients of Section 364A of the Indian Penal Code. We are,

therefore, of the view that the Trial Court was not justified in

convicting the appellant for offence punishable under Section 364A of

the Indian Penal Code. We, therefore, acquit the appellant of charge of

offence punishable under Section 364A of the Indian Penal Code.

20. We, therefore, pass the following order:-

 (i)              The Criminal Appeal is partly allowed.

 (ii)             Judgment and order of conviction dated 4.12.2017 passed

by learned Additional Sessions Judge, Nagpur in Sessions Trial No.412

of 2014 convicting the appellant for offence punishable under Section

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363 read with Section 34 of the Indian Penal Code and sentencing him

to suffer 7 (seven) years imprisonment and to pay fine Rs.3000/- is

hereby confirmed.

(iii) Judgment and order of conviction dated 4.12.2017 passed

by learned Additional Sessions Judge, Nagpur in Sessions Trial No.412

of 2014 convicting the appellant for offence punishable under Section

364A read with Section 34 of the Indian Penal Code and directing him

to suffer imprisonment for life and to pay fine Rs.15,000/- is hereby

quashed and set aside.

(iv) Appellant- Atul S/o Anantrao Kate, is acquitted of offence

punishable under Section 364A read with Section 34 of the Indian

Penal Code.

(v) The appellant who is in jail, if he has already undergone

jail imprisonment of 7 (seven) years and he has paid fine amount

Rs.3000/- and if he is not required in any other offence, he be set at

liberty forthwith.

The Criminal Appeal is partly allowed and disposed of

accordingly.

                               JUDGE                                  JUDGE


RR Jaiswal