Bombay High Court
Shivbahadursingh Avdaransingh ... vs The State Of Maharashtra on 2 May, 2022
Bench: S.S. Shinde, S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.52 OF 2019
WITH
INTERIM APPLICATION NO.782 OF 2022
Arvindrasingh Shrisatyadevsing Patel ...Appellant
Versus
The State of Maharashtra ...Respondent
.....
WITH
CRIMINAL APPEAL NO.1294 OF 2018
WITH
INTERIM APPLICATION NO.1284 OF 2020
WITH
INTERIM APPLICATION NO.1285 OF 2020
Shivbahadursingh Avdaransingh Patel ....Appellant
Versus
The State of Maharashtra ....Respondent
....
Mr. Nitin Sejpal, Advocate a/w. Akshata Desai, Advocate for the
Appellant in Appeal No.52/2019 and for the Applicant in IA/782/2022.
Mr. Satyavrat Joshi, Advocate a/w. Tanvi Tapkire, for the Appellant in
Appeal No.1294/2018 and for the Applicant in IA/1284/2020 &
IA/1285/2020.
Ms. G.P. Mulekar, APP, for the Respondent-State.
....
CORAM : S. S. SHINDE AND
SARANG V. KOTWAL, JJ.
RESERVED ON : 19th APRIL, 2022
PRONOUNCED ON : 2nd MAY, 2022
Deshmane(PS)
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JUDGMENT : [PER SARANG V. KOTWAL, J.]
1 Both these Appeals arise out of the same Sessions Case
challenging the same impugned judgment and order, therefore, are
being decided by this common judgment. For the sake of
convenience, the Appellants in these Appeals are referred to by
their original status in the trial Court wherever necessary.
2 The Appellant in Criminal Appeal No.52/2019 i.e.
Arvindersingh Shrisatyadevsing Patel was the original accused No.1
and the Appellant - Shivbahadursingh Avdarsingh Patel in Criminal
Appeal No.1294/2018 was the original accused No.2 in Sessions
Case No.508/2013. At the conclusion of the trial, the learned
Additional Sessions Judge, Pune vide his judgment and order dated
23.3.2018 convicted both the Appellants for commission of offence
punishable under Section 364-A read with 34 of IPC. They were
sentenced to suffer imprisonment for life and to pay a fine of
Rs.1,000/- each and in default to suffer S.I. for 15 days. The
Appellants were given set off for the period they had undergone as
under-trial prisoners under Section 428 of Cr.P.C. There was one
more accused i.e. accused No.3 Rajkumarsing Dadansing Patel. He
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was acquitted from all the charges faced by him. No information is
placed on record to suggest that said acquittal order has been
challenged by the State.
3 Heard Shri Nitin Sejpal, learned counsel for the
Appellant in Criminal Appeal No.52/2019, Shri Satyavrat Joshi,
learned counsel for the Appellant in Criminal Appeal
No.1294/2018 and Smt. G.P. Mulekar, learned APP for the State.
4 The prosecution case is that, on 10.2.2013 a boy aged 13
years named Subhash was abducted by the accused from Fursungi,
District-Pune. He was taken to Madhya Pradesh. In the meantime,
phone calls were made to the father and uncle of the abducted boy
for the ransom amount. They were threatened. Subhash's uncle
and father approached the police. A trap was laid and on
15.2.2013, the victim was rescued from Satna. At that time he was
present with accused No.1 Arvindersingh. Accused No.1 was
arrested at the spot. The investigation revealed that other accused
including accused No.2 were also involved in the offence. They
were also arrested. The investigation was carried out. Charge-
sheet was filed. The case was committed to the Court of Sessions.
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5 During trial, the prosecution examined six witnesses.
• PW-1 Ashokkumar Singh was father of the victim.
• PW-2 Dr. Vinodkumar Singh was PW-1's brother.
• PW-3 Subhash Singh was the victim himself.
• PW-4 Geeta Singh was the wife of PW-2.
• PW-5 Surendrasingh was the pancha in whose presence the
boy was rescued.
• PW-6 API Narayan Pawar was the investigating officer who
had gone to Madhya Pradesh.
6 After recording the evidence and the statements of the
accused under Section 313 of Cr.P.C., the learned Judge convicted
and sentenced the Appellants as mentioned earlier. The defence of
the accused was of total denial.
7 Learned counsel Shri Sejpal appearing for accused No.1
Arvindar Singh submitted that, at the highest, it can be a case of
mere abduction. The ingredients of Section 364-A are not made
out. The offence could be that under Section 363 of IPC, for which
the sentence may extend to maximum seven years; or it could be a
case punishable under Section 365 of IPC, where also the maximum
sentence is seven years.
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8 Shri Sejpal further submitted that, on merits, there are
too many loop holes in the prosecution case. The call data record
is not produced by the prosecution. No police officer from Satna,
Madhya Pradesh or any other independent witness from Satna is
examined. The accused No.1 Arvindrasingh was a near relative of
PW-4 and, therefore, it was not possible that the victim would not
have named him. He submitted that the victim i.e. PW-3 has failed
to identify the accused No.1 in the Court.
9 Learned Counsel Shri Satyavrat Joshi appearing for
accused No.2 Shivbahadursingh also adopted the same arguments.
In addition, he submitted that the ransom call was not proved. He
submitted that no test identification parade was held to enable the
victim to identity the accused. He further submitted that the
selection of the panchas is not free from doubt. The procedural
aspect for going outside the State of Maharashtra for carrying out
the investigation is not proved by the investigating officer.
10 Learned APP, on the other hand, submitted that the
statements of the victim, his father and uncle are sufficient to
prove the case against the Appellants; particularly when the
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accused No.1 was found near the victim when the victim was
rescued. The accused No.2 was identified in the Court. The victim
had sufficient opportunity to observe the features of accused No.2
and, therefore, absence of test identification parade will not affect
the prosecution case. She further submitted that the telephone
number in the mobile handset found with the accused No.1 was
recorded in the panchnama which matched with the call received
for ransom by PWs-1 and 2 and, therefore, there was no necessity
to produce C.D.R. on record.
11 We have considered these submissions. PW-1
Ashokkumar singh is the father of the victim. He was working as a
ward-boy in the hospital of his brother PW-2 Dr. Vinodkumar. The
hospital was at Jejuri. PW-1's son Subhash - the victim was residing
with PW-2 Dr. Vinodkumar's family. At the time of incident,
Subhash was studying in 8th standard in a school at Hadapsar. Their
native place was Basrehi, Taluka-Tevthar, District- Riva, Madhya
Pradesh. On 10.2.2013, PW-1 and PW-2 were in the hospital at
Jejuri. PW-2's wife informed them on phone that Subhash had
gone out for riding bicycle at about 6.00 p.m. to 6.30 p.m. but he
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had not returned home. Therefore, she called this witness at about
7.30 p.m.. Both these witnesses returned home at Fursungi. They
searched for Subhash but he was not found. Therefore they went to
Loni Kalbhor police station and lodged complaint about Subhash's
missing from the house. On the next day i.e. on 11.2.2013, at
about 8.00 p.m., PW-1 received a phone call on his mobile phone.
The caller told him that his son was with the caller. He demanded
Rs.3 Lakhs to be paid at Jabalpur and only then PW-1's son would
be freed. The caller also threatened him not to disclose it to
anyone else. On PW-1's request, the caller allowed PW-1's son to
speak to him, but, the son could only say 'hello' before the phone
was disconnected. After that PW-1 repeatedly tried to contact the
same phone number, but it was switched off. PW-1 informed about
this call to the police officers at Loni Kalbhor police station. He
gave phone number from which he had received that phone call.
On 12.2.2013, at about 12.00 p.m., again he received a phone call
asking him whether he was willing to pay the money. After this
phone call, PW-1's brother PW-2 went to Jabalpur with the police.
While going there, PW-2 carried PW-1's mobile phone with him.
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On the next day, PW-2 told him telephonically that the kidnappers
had called them to Satna, Madhya Pradesh and on the next day
thereafter he received a phone call from PW-2 informing him that
Subhash was found at Satna and the police had apprehended the
accused who had abducted his son. PW-1 had lodged complaint
against unknown persons for abduction. The FIR is produced on
record at Exhibit-21.
In the cross-examination, he admitted that there were
security guards at the gate of their housing society. He denied the
suggestion that he had not given telephone number of the caller
making call for ransom to the police.
12 The FIR mentions that it was registered on 14.2.2013 at
about 8.15 p.m.. The FIR mentions that he had received a phone
call from a mobile phone number "09200194468". On 12.2.2013
the caller had called from a mobile phone number "09589312229".
The FIR was registered vide C.R. No.106/2013 under Section 364-A
at Loni Kalbhor police station, Pune.
13 PW-2 Dr. Vinodkumar Singh is the brother of PW-1. He
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was residing in Fursungi with his family and the victim i.e. son of
PW-1. He has deposed about Subhash going missing on 10.2.2013
as deposed by PW-1. They had gone to Uruli Devachi police station
and had lodged complaint about his missing. The missing report
was filed by him and it is produced on record at Exhibit-23. He has
deposed that Subhash went missing on 10.2.2013. On the next day,
i.e. on 11.2.2013 this report was lodged at about 8.30 p.m. PW-1
received a phone call asking for ransom of Rs.3 Lakhs. He was
called to Jabalpur to make the payment. Both of them informed
about this phone call to the police officers. The phone number
from which the call was received was given to the police. On
12.2.2013 again an unknown caller called PW-1 and demanded
Rs.30 Lakhs as ransom. He was called to Jabalpur to pay the
money. Even this mobile number was given to the police. The
police traced the location of the caller which was in District-Riva,
Madhya Pradesh. After that, this witness along with police officer
Pawar and two other police went to Jabalpur. PW-2 carried the
mobile phone of PW-1. They met the Superintendent of Police at
Jabalpur. At that time, again PW-2 received a phone call from an
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unknown caller on PW-1's mobile phone. The caller again
demanded Rs.30 Lakhs and asked him to come to Jabalpur. This
number was also given to police. Then the police traced the
location of the caller to District Riva. On the next day also he
received a phone call on PW-1's mobile phone from an unknown
caller and that time the caller asked him to come to Satna and to
bring Rs.30 Lakhs. PW-2 told the caller that he had made
arrangement of Rs.10 Lakhs. At his request, the caller allowed him
to hear voice of Subhash. At that time, Subhash was crying on the
phone. The police again traced the location which was at the same
place at Tevthar, District-Riva, Madhya Pradesh. On 14.2.2013, the
Superintendent of Police, Satna provided help of local crime branch
officers. At about 7.00 p.m. to 8.00 p.m., PW-2 received a phone
call from an unknown caller again on the mobile phone of PW-1.
PW-2 was asked to come to Satna bus-stand with money. The
police officers and PW-2 went to Satna bus-stand. The police
officers were in civil dress. When PW-2 reached Satna bus-stand,
he again received a call from the unknown caller. At that time PW-
2 was told to reach in front of petrol pump by walking.
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Accordingly PW-2 went there. He saw that Subhash and two
persons were standing there. Those two persons had covered their
faces. PW-2 then gave signal to police who rushed there and
caught one of the two persons. The other person was successful in
escaping. During personal search of the accused who was found
there, chilly powder and three mobile phones were recovered. All
of them then went to Satna police station. On the information
provided by the accused No.1 Arvindrasingh, other two accused
were arrested and then PW-2 returned to Pune with Subhash. He
identified the accused No.1 as the person who was arrested by the
police at the spot.
In the cross-examination, he denied the suggestion that
he had close acquaintance with the Superintendent of Police at
Satna. He stated that he did not know name of said police officer.
He was cross-examined about the location of the spot and
surrounding area. However, nothing much of any significance is
brought out in his cross-examination. He denied the suggestion that
he was deposing falsely. He denied the suggestion that Subhash
was not kidnapped but he was in the house of their relatives and
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the accused No.1 Arvindrasingh was falsely implicated because of
civil dispute with accused No.1's father. PW-2 accepted that
accused No.1 is son of his wife's brother. He denied the suggestion
that there was dispute between himself and father of
Arvindrasingh.
14 PW-4 Geeta Singh was wife of PW-2. She has narrated
about the victim Subhash going missing in the evening of
10.2.2013. Rest of her deposition is about the same story narrated
by PW-1 and PW-2. Significantly, she was not asked about any
dispute between her husband (PW-2) and her brother. She was not
asked about her relations with accused No.1.
15 PW-3 Subhash is the main witness. He is the victim
himself. He has stated that on 10.2.2013, at about 7.00 p.m., he
was riding his bicycle in the campus of his society. He went out of
the main gate. One auto-rickshaw stopped near him. There were
two passengers. One of them asked him to accompany them for
eating pani puri. They walked for some distance. They parked his
cycle near one petrol pump and then PW-3 was made to sit in
the rickshaw. He to tried to free himself. One of them kept an
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article resembling a bomb in his pant's pocket and told him that if
he shouted then the bomb would explode. Under that threat, he
was taken to a railway station at Pune and then they boarded a
train. PW-3 was crying and when the co-passengers enquired about
it, those two persons told others that PW-3's mother was ill and,
therefore, he was crying. On the next day, they got down at Satna
railway station. He was taken to a village by a bus. He was
confined in one room. Those two persons then asked for Subhash's
father's mobile number which he gave them. One of them made a
phone call and demanded ransom amount. The abductor told the
victim's father that if he wanted the safety of Subhash then he had
to pay Rs.30 Lakhs at Jabalpur. The abductors made one more call
in front of PW-3 demanding the money. He was confined in one
room. On the next day, he was taken to a field and was kept there
and then he was taken to Satna bus stand. At about 7.00 p.m. to
8.00 p.m. the abductors made another phone call and asked his
father to come to Satna bus stand. After that, PW-2 went there.
He along with the police rescued PW-3 and caught the accused.
PW-3 identified accused No.2 Shivbahadursingh, as one of the
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persons who had kidnapped him.
In the cross-examination he admitted that there was
crowd of passengers on the platform at the railway station. He
denied the suggestion that he was deposing falsely about all the
details.
16 PW-5 Surendrasingh is another important witness. He
was an independent witness and was a pancha in whose presence
the victim- PW-3 was rescued. He has deposed that, on 14.2.2013,
he was called by the police at Kolgava police station, District Satna.
PW-2 was present at the police station, who informed that his
nephew was kidnapped from Pune for ransom and that he was
called at bus stand along with Rs.30 Lakhs. This witness and the
police followed PW-2 to the spot. At about 8.30 p.m. to 9.00 p.m.
near the bus stop two persons came along with a boy. Those two
persons had covered their faces with handkerchiefs. The police
tried to nab them. One of them escaped and one was caught at the
spot. The victim PW-3 Subhash was rescued. The person who was
caught by the police at the spot gave his name as "Arvind Singh
Patel". On his personal search chilly powder and three mobile
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phones were found. Some cash amount was also found. The
panchnama was drawn. It was produced on record at Exhibit-36.
On 16.2.2013, again this witness was called to the police station
and in his presence accused No.1 showed the place where the boy
was kept in confinement at village Chilla.
In the cross-examination he admitted that other pancha
Chandrajeet was his friend. The village Chilla was 110 Kms from
Riva. He denied the suggestion that he was not accompanying the
police to Kolgava police station. He denied the suggestion that PW-
2 was friend of Chandrajeet Singh's and therefore both of them
were deposing in favour of the prosecution.
17 PW-6 API Narayan Pawar was attached to Loni Kalbhor
police station. He has deposed about the story given by PW-1 and
PW-2. He was given the telephone number of the unknown caller.
The police officers then traced the location of the mobile phone of
the caller. It was found in District Reva, Madhya Pradesh. On
12.2.2013 he along with PW-2 and other police officers went to
Jabalpur. On the way to Jabalpur a phone call was received on the
mobile phone of PW-1 from the mobile phone number
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"09589312229". He has deposed about the ransom demand of
Rs.30 Lakhs. The location of the caller was traced, which was at the
same place in District Reva. They reached Jabalpur on 13.2.2011.
They sought help of local police. PW-2 received another call on
PW-1's phone from another phone number. At that time the victim
was heard crying loudly. The location of the caller was S.T. bus
stand at Theuthor. On 14.2.2013, they reached Satna. On
14.2.2013, PW-2 informed PW-1 about the development and asked
him to lodge a FIR. Accordingly the FIR was lodged at Loni
Kalbhor police station on 14.2.2013 and the offence was registered
as C.R. No.106/2013. This witness then arranged to lay a trap at
Satna with the help of local police officers. Then they went to the
spot from where the boy was rescued and one of the accused was
arrested. He prepared various panchnamas referred to by PW-5.
In his cross-examination, nothing much of any significance was
elicited.
18 The evidence clearly shows that PW-3 was abducted by
two persons from outside his housing colony. He was taken to
Madhya Pradesh. He was taken to different places where he was
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confined and ultimately he could be rescued only on 14.2.2013.
The most incriminating circumstance in this case is about finding of
accused No.1 near the victim. Accused No.1 had covered his face
with the handkerchief and there was chilly powder and three
mobile handsets with him. As pointed by learned APP, the
panchnama at Exhibit-36 does mention that mobile phone with sim
card bearing No.09589312229 was found in possession of accused
No.1. The calls were made from this phone number. This phone
number is also reflected in the FIR registered at Loni Kalbhor police
station at 8.15 p.m. on 14.2.2013 whereas accused was found at
about 8.45 p.m. as deposed by PW-6.
19 There is absolutely no explanation offered by the accused
No.1 as to how he was present near the boy. He had covered his
face with handkerchief and was carrying chilly powder.
20 As far as the accused No.2 is concerned, he was identified
by PW-3 the victim that he was one of the abductors. Though the
test identification parade is not held; the victim was in close contact
with the abductors from 10.2.2013 to 14.2.2013. Therefore, he had
ample opportunity to observe their features. Therefore, his
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identification in the Court is sufficient to bring home the guilt of
this accused. There is no reason to disbelieve the evidence of the
prosecution witnesses and in particular there is no reason to
disbelieve PW-2 and PW-3. There was no reason for the
prosecution witnesses to involve any of the accused falsely.
21 Though no police officers from Satna, Madhya Pradesh or
any other witness from Satna is examined, the prosecution has
sufficiently proved this case. The relevant witnesses were
examined during the trial and examination of other witnesses was
not really necessary.
22 Both learned counsel for the accused relied on the
judgment of the Hon'ble Supreme Court in the case of Shaik Ahmed
Vs. State of Telangana1 to contend that the conviction in this case
cannot be under Section 364-A of IPC. They submitted that all the
ingredients of Section 364 of IPC are required to be satisfied and
only then the offence under Section 364-A is made out. This
judgment does lay down the law that all the ingredients of Section
364-A of IPC were required to be satisfied. In that particular case
the accused was acquitted. In that judgment, it was observed that
1 AIR 2021 SC 3062
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neither the father of the victim nor the victim had stated that any of
the accused had threatened to cause death or hurt. The evidence
led before the Court suggested that the victim was not assaulted
and he was treated in good manner.
This is in stark contrast with the facts of case in hand
before us where every single ingredients of Section 364-A of IPC is
made out. There was a call for ransom, there was an apprehension
giving rise to the belief that hurt would be caused to Subhash. A
direct threat was given to the father of the victim as well as to the
victim himself. That threat gave rise to a reasonable apprehension
that the victim would be inflicted serious hurt for extracting
ransom.
23 Therefore, in the facts of this case, the ingredients of
Section 364-A of IPC are clearly made out. Based on this
discussion, no case for interference with the impugned judgment
and order is made out. The Appeals are, therefore, dismissed.
(SARANG V. KOTWAL, J.) (S.S. SHINDE, J.)
Deshmane (PS)
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Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2022.05.02
16:43:57
+0530
