Bombay High Court
Nitin Shamrao Samudre vs The State Of Maharashtra on 7 April, 2022
Bench: S.S. Shinde, S. V. Kotwal
1 of 29 apeal-795-13, 744-13 & 186-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.744 OF 2013
Nitin Shamrao Samudre .... Appellant
versus
The State of Maharashtra ... Respondent
WITH
CRIMINAL APPEAL NO.186 OF 2013
1. Bharat Dnyandeo Kamble
2. Sou. Vimal Dnyandeo Kamble .... Appellants
versus
The State of Maharashtra ... Respondent
WITH
CRIMINAL APPEAL NO.795 OF 2013
Sandeep Dnyandeo Kamble .... Appellant
versus
The State of Maharashtra ... Respondent
______
Ms. Anjali Patil a/w Mr. Abdeali Kothawala & Mr. Aashay Topiwala,
Advocate for Appellant in Appeal No.744/2013.
Mr. D. G. Khamkar, Advocate for Appellant in Appeal
Nos.186/2013 and 795/2013.
Ms. G. P. Mulekar, APP for State/Respondent.
______
CORAM : S. S. SHINDE AND
SARANG V. KOTWAL, JJ.
RESERVED ON : 30th MARCH 2022.
PRONOUNCED ON : 7th APRIL 2022.
VINOD
BHASKAR
GOKHALE
Digitally signed by
VINOD BHASKAR
GOKHALE
Date: 2022.04.07
11:40:07 +0530 Gokhale
2 of 29 apeal-795-13, 744-13 & 186-13
JUDGMENT: (Per Sarang V. Kotwal, J. )
1. All these three Appeals are decided by this common
Judgment because they arise out of the same trial. For the sake of
convenience, the Appellants are referred to by their original status
as accused in the trial court.
2. Criminal Appeal No. 795 of 2013 is preferred by the
accused No.1 Sandeep Kamble. Criminal Appeal No. 744 of 2013 is
preferred by the Accused No.2 Nitin Samudre and Criminal Appeal
No. 186 of 2013 is preferred by Accused No.3 Bharat Kamble and
accused No.4 Vimal Kamble. Accused Nos.1 and 3 are brothers.
Accused No.4 is their mother and accused No.2 is friend of accused
No.1.
3. The Appellants have challenged the Judgment and order
dated 27/12/2012 passed by the Additional Sessions Judge, Pune
in Sessions Case No. 564 of 2010. By the impugned Judgment and
order the accused Nos.1 and 2 were convicted for commission of
the offence punishable under sections 364-A r/w. 34 of the Indian
Penal Code, 1860 (for short 'IPC') and were sentenced to suffer
3 of 29 apeal-795-13, 744-13 & 186-13
imprisonment for life and to pay a fine of Rs.5000/- each and in
default of payment of fine to undergo S.I. for three years. Accused
Nos.1 and 2 were convicted for commission of offence punishable
under section 363 of IPC and were sentenced to suffer R.I. for 7
years and to pay a fine of Rs.5000/- each and in default of
payment of fine to undero S.I. for one and half years. Accused
Nos.1 and 2 were convicted for commission of offence punishable
under section 384 of IPC and were sentenced to suffer R.I. for
three years and to pay a fine of Rs.1000/- each and in default of
payment of fine to undergo S.I. for six months. Accused Nos.1 and
2 were convicted for commission of offence punishable under
section 120-B of IPC but no sentence was imposed on them under
this section.
4. Accused Nos.3 and 4 were convicted for commission of
offence punishable under section 414 of IPC and were sentenced
to suffer R.I. for three years and to pay a fine of Rs.2000/- each
and in default of payment of fine to suffer S.I. for six months. All
the substantive sentences were directed to run concurrently. All the
accused were given set off under section 428 of Cr.p.c. Accused
4 of 29 apeal-795-13, 744-13 & 186-13
Nos.3 and 4 were acquitted from the charges of commission of
offence punishable under sections 363, 364-A, 384 and 120-B of
IPC.
5. The prosecution case is that, the accused Nos.1 and 2
abducted five and half years old boy named Atharva from Raja
Shivaji Nagar, Chinchwad, in the morning of 09/04/2010 in an
Indica car. Phone calls were made to Atharva's mother Bhagyashri
on a few occasions and Rs.15 lakhs were demanded as ransom for
release of Atharva. Bhagyashri could arrange Rs.6 lakhs. She was
asked to board a local train and to throw the bag containing
money at a particular spot. In the meantime, police were informed
by Bhagyashri. A tracking devise was kept in the bag. The money
was traced to the house of accused Nos.1, 3 and 4. The bundles of
currency notes, of which some of the notes were marked, were
traced in that house. Cash of Rs.5,85,000/- was recovered. The
investigation was carried out. All the accused were arrested. In
the meantime, the boy came home at about 7.45p.m. on
12/04/2010. After the investigation the charge-sheet was filed.
The case was committed to the court of sessions. During trial, the
5 of 29 apeal-795-13, 744-13 & 186-13
prosecution examined 28 witnesses. The defence of the accused
was of total denial. At the conclusion of the trial, the learned trial
Judge passed impugned Judgment and order.
6. We have heard Ms. Anjali Patil, learned counsel for the
Appellant in Appeal No.744/2013, Shri. Khamkar, learned counsel
for the Appellants in Appeal Nos.186/2013 and 795/2013 and Ms.
G. P. Mulekar, learned APP for the State/Respondent.
7. Learned counsel for the accused Nos.3 and 4 submitted
that, they are acquitted from the charges of commission of major
offences. The only charge proved against them was of concealing
stolen property, but the cash amount was recovered from the
house which was jointly occupied by accused Nos.1, 3 and 4.
Therefore, their conviction under that section is not sustainable. So
far as accused No.1 is concerned, there is no reliable evidence
against him. Atharva has not identified him in the court. The
evidence of identification parade which at best can only be a
corroborating piece of evidence; does not help the prosecution
case; though, allegedly, Atharva had identified accused Nos.1 and
6 of 29 apeal-795-13, 744-13 & 186-13
2 at the parade.
8. The Call Data Record (CDR) and other evidence
connecting the accused No.1 is not proved by the prosecution. The
recovery of bag, in which cash was carried by Bhagyashri and
which was allegedly taken away by the accused No.1 is not proved,
because the investigating officer has stated that the bag was
thrown away in the river. The tracking devise is not recovered.
9. Learned counsel appearing for the accused No.2
submitted that, there is nothing to show that, there is connection
between accused Nos.1 and 2. The prosecution case is that,
Atharva went in an Indica car which was driven by accused No.1.
Even as per the prosecution case, accused No.2 was not in that car.
There is no linking evidence of transferring recorded telephone
calls to the C.D. The link to establish the sample voice with the
recorded conversation is missing. The evidence of accused No.2's
cousin cannot be relied upon because he was kept in police
custody for a few days and, therefore, he was deposing under
pressure of the police. Nothing was recovered from the accused
7 of 29 apeal-795-13, 744-13 & 186-13
No.2 and, hence, he deserves to be acquitted.
10. Learned APP, on the other hand, submitted that, there is
overwhelming evidence in the form of deposition of accused No.2's
cousin. There are recorded conversations. The voice samples of
both accused matched with the recorded conversation. Atharva has
identified both the accused at the Test Identification Parade which
was held immediately. He was only 8 years of age when he was
examined in the court and, therefore, it was understandable that
he could not identify accused Nos.1 and 2, but that does not wash
away the identification of these two accused at the test
identification parade. The evidence shows that, every time a phone
call was made to Bhagyashre, Accused No.1 was in the vicinity of
the coin-box from where the calls were made; meaning thereby
those phone calls were made by none other than the accused No.1.
Evidence of accused No.2's cousin is clinching. The house was
shown by the accused No.3. There was nothing wrong in the police
interrogating that witness because the boy was kept in his house,
that does not mean that the police had pressurised this witness to
depose to suit the prosecution case.
8 of 29 apeal-795-13, 744-13 & 186-13
11. We have considered these submissions and we have
perused the entire record. The prosecution case has unfolded
through the evidence of PW-23 Bhagyashree; she was Atharva's
mother. She has stated that, she was working in a company as
Assistant Manager. It was situated in Chinchwad. Her duty hours
were from 9.00a.m. to 6.00p.m. At that time her husband was in
service and was posted at Pantnagar, Uttarakhand. Atharva was
five and half years old at the time of incident. He was in Sr. K.G.
She, Atharva and her mother in law were staying together. Her
mother in law was looking after Atharva when Bhagyashree would
not be at home.
12. On 9.04.2010, she returned home at about
6.30p.m. from her office. She could not see Atharva. She made
inquiries with her mother in law, but she was not aware of
Atharva's whereabouts. PW-23 then made inquiries with
neighbourhood, but she could not find him. Then she called her
brother Vijay Shete. He was in Mumbai. She also called her
husband. Not having found Atharva, she lodged a report at the
police station about his missing. This report was lodged at
9 of 29 apeal-795-13, 744-13 & 186-13
Dehuroad police station. That report is produced at Exhibit 38.
One Asha Kumari Yadav from her neighbourhood recollected that
one white Indica car was parked near the compound of the society.
There were two persons and Atharva was talking with one of them.
Another neighbour Agarkar told the number of the car as MH-14
or 16/X-2124. On the next morning she received a phone call on
her mobile phone. The caller was speaking in Hindi. He told her
that, he had kidnapped Atharva and demanded Rs.15 lakhs within
two days. He did not speak beyond this. After some time, PW-23
dialed the same number. It was received by one Bharat
Bhangarwala of Kalewadi. He told her that, two persons had
approached him and had asked for his mobile phone and using
that phone this phone call was made. Realizing that Atharva was
kidnapped, Bhagyashree's uncle Rajendra Honrao lodged this F.I.R.
at Dehuroad police station. At about 8.30p.m. she again received a
phone call and the caller asked her about her efforts of arranging
the money. She wanted to hear voice of her son, but the telephone
call was disconnected. She dialed the same phone number. It was
the phone number of a coin-box belonging to one Sadashiv Mulay
10 of 29 apeal-795-13, 744-13 & 186-13
at Loni-Kand. She told this fact to the police. They gave her a
Black-berry handset. She inserted her SIM card in that handset.
The police in plain clothes kept watch on her house.
13. On 11.04.2010, she again received a phone call. The
caller again asked about the money. She told him that, she had
arranged Rs.6 lakhs. Even on that occasion she was not allowed to
speak to her son. On 12/04/2010, again she received a phone call.
She again told the caller that she had made arrangement of Rs.6
lakhs. She was asked to board Chinchwad Lonavala local train. She
informed this fact to the police. She collected Rs.6 lakhs and went
to Pune Rural police station. The police gave their bag. They put
identification mark on the first and last note of each bundle.
Bhagyashree, her brother and police constables in civil dress went
to Chinchwad police station at about 2.15p.m. She received a
phone call on her mobile phone at 3.05p.m. She was instructed to
board the last bogie of the local train and to stand near the door.
She was allowed to take her brother with her, but she was
threatened that if she informed the police, her son would face the
consequences. Bhagyashree and her brother boarded the local
11 of 29 apeal-795-13, 744-13 & 186-13
train from Chinchwad to Lonavala at 4.15p.m. At about 4.17p.m.
she received a phone call verifying that she was in the train. After
five minutes again she received another phone call and she was
instructed to throw the bag from the compartment near a brick
factory. She received another phone call and was told to return
home instead of going to Lonavala. She got down at Lonavala and
searched for her son, but could not find him. By that time, her
husband had reached Lonavala and from there they returned back
home. At about 7.45p.m. Atharva returned home. He was
frightened and was crying. He hid himself under the staircase.
After some time he became normal. She made inquiries with him.
He told her that he had gone with Raju Kaka and Balu Kaka in an
Indica car. This witness identified the bag shown to her. During
investigation she had taken Atharva to Yerwada jail for attending
the identification parade. Her cross-examination is hardly of any
significance and the incident is sufficiently proved. The question is
whether the accused were involved in the crime. Her version is
corroborated on all particulars by the evidence of PW-1 Vijay Shete
who was her brother and PW-2 Rajendra Honrao who was her
12 of 29 apeal-795-13, 744-13 & 186-13
uncle. PW-2 had lodged the F.I.R. which is produced on record at
Exhibit 26. It was registered at Dehuroad police station vide
C.R.No.126 of 2010 on 10/04/2010, U/s.363, 384 and 364-A of
IPC.
14. PW-3 Dinesh Shelke was a friend of Bhagyashree's
husband and had arranged for Rs.1 lakhs out of Rs.6 lakhs paid as
ransom amount. PW-4 Deepak Jamma was Atharva's uncle and he
had tried to search for him. He had shown the spot to the police
where Atharva was seen playing before being abducted. PW-5
Mahendra Gaikwad was a Police Naik attached to LCB, Pune. He
has deposed about Bhagyashree carrying the bag in the local train
and throwing of that bag as per the direction of kidnappers. He
had accompanied Bhagyashree in the local train. PW-6 police
constable Ravindra Shingare was on duty at Bhagyashree's house
in plain clothes to keep watch. PW-8 police constable Mahadeo
Hatkar had registered the complaint regarding Atharva's missing.
It is produced on record at Exhibit 38. It was registered on
09/04/2010 at about 9.10p.m. PW-9 Meghraj Jamma was father of
Atharva. He was at Uttarakhand at the time of incident, but he had
13 of 29 apeal-795-13, 744-13 & 186-13
rushed to Pune.
15. PW-10 Sanjay Torkhade was a pancha in whose presence
the currency notes were marked. The markings were in the form of
circle, star and Swastik. The marking was made on the first and
last notes of the bundle. Star mark was put on the bundle of
currency notes of Rs.1000/-. Swastik mark was put on the bundle
of currency notes of Rs.500/- and circle mark was put on the
bundle of currency notes of Rs.100/-. He accompanied
Bhagyashree and police officers in the local train. On 29/04/2010,
he was a witness to the panchanama of recovery of the bag which
was found at the instance of accused No.1. The bag was recovered
from under a bridge below the slab near river water.
16. PW-11 Yashwant Deshmukh was a pancha in whose
presence the accused No.1 showed his willingness to point out the
place where Indica car was kept. The car was recovered at his
instance. The panchanama was produced on record at Exh.47. Two
mobile handsets were recovered from the car. The car was also
seized. The panchanama is produced on record at Exh.48.
14 of 29 apeal-795-13, 744-13 & 186-13
17. PW-12 Rajendra Gawali was a pancha in whose presence
cash amount was recovered from the house of accused Nos.1, 3
and 4. The markings and numbers of those currency notes
matched with the markings and numbers recorded earlier. The
cash was of Rs.5,85,000/-. It was found in the house search of
accused No.1 on 13/04/2010.
18. PW-13 Sunil Jadhav was the owner of Indica car. It was
stolen by accused No.1. He had reported theft of his car at
Hinjwadi police station. During investigation he identified the car
seized at the instance of accused No.1. This witness had confirmed
about his car by verifying engine number and chassis number.
19. PW-14 Rahul Munot was the owner of motorcycle which
was stolen. He had lodged F.I.R. at Pharaskhana police station on
10/04/2010. After recovery of that motorcycle he identified it by
its chassis number and engine number. PW-15 Dinesh Harke had
prepared the number plate which was used by accused No.1 on the
stolen Indica car.
20. PW-16 Asha Yadav had seen the Indica car near the main
15 of 29 apeal-795-13, 744-13 & 186-13
gate of the society at about 4.00 to 4.30p.m. and again at 5.30 to
6.00p.m. Atharva was talking to that person who was standing
near the Indica car. However, beyond that she has not identified
the accused in the court.
21. PW-17 Anil Pangudwale was a pancha in whose presence
the motorcycle was recovered at the instance of accused No.2. PW-
18 Mahesh Agarkar had seen the Indica car and one person near
the house of this witness and that of Bhagyashree. He had given
number of the car to the police. PW-19 Arun Kanaskar had held
the test identification parade on 01/07/2010. According to him, at
that time, Atharva had identified accused Nos.1 and 2. The
memorandum of identification parade was produced at Exhibit 61.
22. PW-20 Bhagirath Kumbhar had a telephone booth which
was used by the accused for making a phone call, but he did not
give details of those persons or the car. PW-21 Bapurao Pawar was
a hostile witness regarding witnessing accused Nos.1 and 2 in each
other's company. He was neighbour of accused Nos.1, 3 and 4.
23. PW-25 Makarand Vidwans was a Nodal Officer in Tata
16 of 29 apeal-795-13, 744-13 & 186-13
Tele Service. He had produced Call Data records of the phone used
by Bhagyashree. PW-26 Tushar Wakade was a Software expert. He
had fixed a chip in the bag to track the movement of the bag. He
tracked the bag electronically and supplied the locations to the
police. He has produced that map at Exh.80.
24. PW-27 Shrikrishna Kokate, Dy.S.P. had investigated the
case. He has deposed about recording the sample voice,
transferring recorded conversation between Bhagyashree and
abductors on the CD and sending them for voice analysis. The
voice analysis shows that, sample voice matched with the recorded
conversation. However, the prosecution has not examined the
important witness who had transferred the recorded conversation
on the CD. The procedure for recording and transferring of that
record on C.D. is also not clearly brought on in the evidence. The
covering letter giving details about recorded conversation and the
sample recording is also not proved beyond reasonable doubt.
Therefore, we are ignoring this piece of evidence.
25. PW-28 Dnaneshwar Ganore, API, was attached to LCB
17 of 29 apeal-795-13, 744-13 & 186-13
Pune and was in the investigation team. He has deposed about
recovery of cash from the house of accused Nos.1, 3 and 4. He has
attached the audio cassette of conversation between the accused
and Bhagyashree.
26. Besides this oral evidence the prosecution also produced
the CDR of a particular handset which was found in the Indica car.
That call data record is admitted by the defence. This is an
incriminating piece of evidence. The CDR mentions IMEI number
as 356858022666280. The location of this handset bearing IMEI
number was found around the area of different coin boxes from
where the calls were made on the mobile phone number of
Bhagyashree. There were 9 such phone calls. The phone numbers
were saved in Bhagyashree's phone. The mobile handset found in
the Indica car which was used by accused No.1 showed location of
that particular handset in the vicinity of all those coin boxes at the
same time when calls were made from those coin-boxes to the
phone number of Bhagyashree. This is a seriously incriminating
circumstance against the accused No.1.
18 of 29 apeal-795-13, 744-13 & 186-13
27. Having discussed this evidence, now we are referring to
the most important evidence in this case.
28. The most important evidence is that of the victim
Atharva himself obviously. He was examined as PW-24. At the time
of recording his evidence he was 8 years of age. He has deposed
that, on the date of incident, he was playing in front of his house.
At about 5.00p.m. one Raju Kaka came in Indica car. It was parked
in front of his building. He asked Atharva as to whether Atharva
wanted to see a dead cow. Atharva replied affirmatively. He sat in
that Indica car. He was taken to Moshi road. Then he was taken to
one hotel. They had dinner there. Then he was taken to one
village. Then he was taken to a house. There was a small child in
the house. There were hens and goats. Atharva played with them,
had dinner in the night and then slept there itself. On the next day,
he was taken in the car. At that time, a person known to him as
Raju Kaka was driving the car and another person known to him as
Balu Kaka was sitting next to the driver. In that night Atharva slept
with Balu Kaka. On the third day, he slept in the car and on
12/04/2010 he was left near his house. He has also deposed that,
19 of 29 apeal-795-13, 744-13 & 186-13
he identified both of them in Yerwada jail at the time of test
identification parade. However, he could not identify Raju kaka
and Balu kaka in the court. Atharva's evidence is undoubtedly
important. He was kept away from his home for three days. It
appears that the accused had won over his trust. Atharva treated
them like his uncles. Though, identification parade is only a
corroborative piece of evidence, the prosecution has established
that, at the parade Atharva identified the accused whom he was
knowing as Raju kaka and Balu kaka. To that extent the test
identification parade can be used. Though, it is made clear that,
we are not treating the test identification parade as the substantive
piece of evidence against the accused in this case. Having said this,
we also note that, considering the tender age of Atharva it was
understandable that he was not able to identify the accused in the
court. However, leaving aside this issue of identification, we find
that there is sufficient material against both the accused.
29. PW-7 Amit Togare was a pancha. He has stated that, on
15/04/2010, he was called by the police. Accused No.3 Bharat
expressed his willingness to show the place where Atharva was
20 of 29 apeal-795-13, 744-13 & 186-13
kept. His statement was recorded. This witness and police were led
by Bharat to Bhangaon. Atharva had accompanied them. Bharat
led them to one house. Atharva told them that Balu kaka and Raju
kaka had brought him to that house. The panchanama is produced
at Exh.36. It is mentioned in the panchanama that, when the
pancha and police reached there, one Pawar came out of the
house. He was PW-22 Yeshu Pawar. He spoke with Atharva and
conversed with him. The police asked that person as to how he
knew Atharva. At that time he told them that accused No.2, who
was his relative, and acused No.1 had brought Atharva to his
house and had kept him with them for two days. This evidence is
important which is further strengthened by the evidence of PW-22
Yeshu Pawar himself.
30. PW-22 Yeshu Pawar has stated that, he was cousin of
accused No.2. This witness was called by the accused No.2
telephonically. He was told that accused No.2 was coming to his
house with his friend and one child. At about 4.00p.m. accused
No.2 came to his house in white Indica car with a five year old boy
and another person named Raju @ Sandeep. The child's name was
21 of 29 apeal-795-13, 744-13 & 186-13
mentioned as Atharva. Accused No.2 told this witness that the
child was his friend's son. Atharva was calling accused No.2 as
Balu kaka. Atharva played with buffaloes, goats and hens. In the
night he slept with accused No.2. On the next day accused No.1
Sandeep returned on a splendor motorcycle and then accused
Nos.1, 2 and Atharva went away. Accused No.1 and Atharva were
in the car and accused No.2 followed them on splendor
motorcycle. On 16/04/2010 police recorded his statement.
In the cross-examination, he has stated that from
14/04/2010 for 2-3 days he had been to the police station and he
was kept in the lock-up of Dehuroad police station, but he denied
the suggestion that police had assured him that he would not be
made an accused if he gave statement as per their say.
In our view, evidence of this witness is the most
incriminating circumstance against both the accused. He has
clarified as to how Atharva was referring to both these accused as
Raju kaka and Balu kaka. He was cousin of accused No.2. He has
no reason to depose against him. Atharva was kept in his house
22 of 29 apeal-795-13, 744-13 & 186-13
which was pointed out by accused No.3 as per his knowledge.
Atharva himself identified the house. This witness had
conversation with Atharva showing that they had met previously.
All these things corroborated each other and this evidence proves
the prosecution case against accused Nos.1 and 2 beyond
reasonable doubt.
31. Learned counsel for the accused No.2 tried to rely on the
Judgment of Hon'ble Supreme court in the case of K.
Venkateshwarlu Versus State of Andhra Pradesh1 to contend that,
there was a strong possibility that PW-22 was deposing as a
tutored witness for the police because he was detained at the
police station. In K. Venkateshwarlu's case (supra), the child
witnesses were detained at the police station and, therefore, the
court had observed that they were tutored by the police. In that
case, paragraph No.4 of the said Judgment mentions that the child
witnesses had admitted that they were at the police station for a
considerable period before they were brought to the court.
Similarly, PW-5 Swapna in that case had admitted that she had
1 (2012) 8 Supreme Court Cases 73
23 of 29 apeal-795-13, 744-13 & 186-13
given statement before the Magistrate at the instance of the police.
These facts are materially different from the facts of
the case before us. In the present case, PW-22 was not detained or
tutored by the police before his deposition was recorded during
trial. The defence has not developed that line of cross-examination
to establish that the PW-22 was actually detained at the police
station in April 2010. When the police came across this PW-22, the
investigation was in progress. The investigation had revealed that
Atharva was kept in that house belonging to this witness.
Therefore, it was but natural that police would inquire with this
witness regarding the same. At that time he was a strong suspect.
However, no questions were put to the investigating officer and,
therefore, in the facts of this case, there is no reason to draw an
inference that, PW-22 was giving evidence under pressure of
police. There is no contemporaneous record to show that PW-22
had any grievance against the police. It needs to be noted that the
PW-22 was cousin of accused No.2. PW-22 had deposed before the
court after quite some time and at that time, definitely, there was
no apprehension of he being arrested or roped in, in connection
24 of 29 apeal-795-13, 744-13 & 186-13
with this case. He has strongly supported the prosecution case and
we find his evidence to be truthful. His evidence is corroborated by
the pancha PW-7, who had gone to his house as per the
information given by accused No.3.
32. Learned counsel for the accused No.2 relied on the
Judgment of Hon'ble Supreme court in the case of Shaik Ahmed
Vs. State of Telangana2. It was observed in that case, that the
essential ingredients to convict the accused U/s.364-A of IPC
which are required to be proved by the prosecution are as follows:
(i) Kidnapping or abduction of any person or
keeping a person in detention after such
kidnapping or abduction;
(ii) threatens to cause death or hurt to such person,
or by this conduct gives rise to a reasonable
apprehension that such person may be put to
death or hurt or;
(iii) causes hurt or death to such person 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.
In the fact of that case, the Hon'ble Supreme
court had noted that, neither father of the victim who was
2 Criminal Appeal No.533 of 2021 decided on 28/06/2021.
25 of 29 apeal-795-13, 744-13 & 186-13
the complainant nor the victim had said that any accused
threatened to cause death or hurt. The evidence which was
laid before the court suggested otherwise that the victim
was not assaulted and he was treated well in good manner
as stated by the victim.
However, in the present case before us, PW-23,
mother of the victim has clearly stated that, she was
threatened that, if she informed the police, her son would
face the consequences. This threat given to her was
corroborated by PW-1 Vijay. Thus, there is a direct threat
giving reasonable apprehension of possible hurt to Atharva.
Therefore, the case cited by the learned counsel on behalf of
the accused No.1 will not help his submissions, as there is
direct evidence satisfying ingredients of Section 364-A of
IPC. Section 364-A of IPC reads thus:
"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
26 of 29 apeal-795-13, 744-13 & 186-13
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 organization
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."
33. To summarise, there are following definite incriminating
circumstances and depositions against both the accused:
i) calls made by accused No.1 which is proved by
CDR and location of mobile handset found from Indica
car.
ii) Theft of Indica car and it's recovery at the instance
of accused No.1 and definite material to show that the
Indica car was used in abducting Atharva.
iii) Theft of motorcycle and recovery of the same at the
instance of accused No.2. As narrated by PW-22, the
accused No.2 had followed the Indica car on his
motorcycle when Atharva was taken away from the
house of PW-22.
27 of 29 apeal-795-13, 744-13 & 186-13
iv) Recovery of the marked bundles of currency notes
from the house of accused Nos.1, 3 and 4 soon after the
incident. No explanation was offered by the accused.
v) The most incriminating deposition is in the form of
evidence of PW-22 who has clearly implicated accused
Nos.1 and 2, though, he was cousin of accused No.2. He
had also explained as to who was Raju kaka and Balu
kaka according to Atharva.
All these circumstances are proved beyond reasonable
doubt and they complete the chain proving the guilt of both
accused Nos.1 and 2. All the ingredients of section 364-A of IPC
are satisfied. Once this offence is proved, the punishment provided
is life imprisonment which is rightly imposed by the trial court.
34. Learned Sessions Judge has considered this evidence in
its proper perspective. Therefore, there is no reason to interfere in
the conviction and sentence recorded against accused Nos.1 and 2.
35. So far as, accused Nos.3 and 4 are concerned, they are
acquitted of the main offences. However, they are convicted only
28 of 29 apeal-795-13, 744-13 & 186-13
U/s.414 of IPC. However, the marked currency notes were found
from the house which was jointly occupied by accused Nos.1, 3
and 4, therefore, accused Nos.3 and 4 were not in exclusive
possession of that house. Accused No.1 collected that cash which
was thrown from the local train. He was the main offender. He had
brought that cash home and kept it in his house. Therefore, there
is scope to believe that accused Nos.3 and 4 had not concealed
that cash. Accused No.1 had kept it in his own house which was
also occupied by accused Nos.3 and 4. Therefore, to that extent,
we are inclined to grant benefit of doubt to accused Nos.3 and 4.
36. Hence, the following order:
ORDER
(i) Criminal Appeal No. 795 of 2013 preferred by
accused No.1 is dismissed.
(ii) Criminal Appeal No.744 of 2013 preferred by
accused No.2 is dismissed.
(iii) Criminal Appeal No.186 of 2013 preferred by
accused Nos.3 and 4 is allowed.
(iv) Accused No.3 and 4 are acquitted of the offence
punishable U/s.414 of IPC.
29 of 29 apeal-795-13, 744-13 & 186-13
(v) Accused Nos.3 and 4 are on bail. Their bail
bonds shall stand cancelled. They shall execute
P.R. bonds in the trial court U/s. 437-A of Cr.p.c.
in the sum of Rs.30,000/- each with one or two
sureties each in the like amount, within a period
of six weeks from today.
(SARANG V. KOTWAL, J.) (S. S. SHINDE, J.)
