Mohammad S/O. Sayeed Shibibi And ... vs The State Of Maharashtra
2022 Latest Caselaw 12375 Bom

                                                 Cri. Appeal No.1042/2019
                                  :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD


                CRIMINAL APPEAL NO.1042 OF 2019 WITH
                CRIMINAL APPLICATION NO.3370 OF 2022


 1)       Mohammad s/o Sayeed Shibibi
          Age 48 years, Occu. Unemployed,
          R/o Sahayognagar, Nanded

 2)       Shahin Begum w/o Mohammad Shibibi
          Age 42 years, Occu. Household,
          R/o Sahayognagar, Nanded       ... APPELLANTS

          VERSUS

 The State of Maharashtra
 through Police Station,
 Bhagyanagar, Nanded
 Tal. & District Nanded
 (Copy to be served on the
 Public Prosecutor, High Court of
 Bombay, Bench at Aurangabad)                    ... RESPONDENT

                                .......
 Mr. Aniket Wagal with Mr. Rajesh H. Mewara,
 Advocates for appellants
 Mr. A.M. Phule, A.P.P. for respondent - State
                                .......

                               CORAM :      R. G. AVACHAT, AND
                                            R. M. JOSHI, JJ.

                  Date of reserving judgment : 18th November, 2022
                  Date of pronouncing judgment : 30th November, 2022


 JUDGMENT (PER R.G. AVACHAT, J.) :

The appellants, along with three others, were

prosecuted for commission of offences punishable under

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Sections 363, 364-A, 387, 342 read with Section 34 and

Section 120-B of the Indian Penal Code (I.P.C. for short).

Learned Additional Sessions Judge, Nanded, by a judgment

dated 3/10/2019, convicted the appellants for the offences

punishable under Sections 342, 363, 364-A, 387 read with

Section 34 of the Indian Penal Code and, therefore, sentenced

to suffer imprisonment for life including imprisonment for

certain terms and to pay a fine, with default stipulations.

They have been acquitted of the offence punishable under

Section 120-B of the I.P.C.

2. The facts of the prosecution case, in a nutshell are

as follows :-

P.W.5 Dr. Sital Kyatamwar (victim) had cleared 9th

Standard examination in 2005. She was the resident of

Vasmat, District Hingoli. She would attend Vacation Classes

for 10th Standard at Nanded. She would, therefore, shuttle

between Vasmat and Nanded by bus. P.W.3 Prashant was her

classmate. He too would attend those classes. Both used to

come together to Nanded.

It was 7.00 in the morning of 25th April 2005,

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both, the victim and P.W.3 Prashant came to Nanded. They

boarded an autorickshaw at Raj Corner. On the way to Class

premises, two more persons boarded the very autorickshaw.

One of them shared the driver seat. While the rickshaw was

passing by Railway Division, one of the two took the victim

out of the autorickshaw. The second one also alighted. He

pushed Prashant. Prashant related the incident to Head

Mistress. Both, in turn, approached Bhagya Nagar Police

Station, Nanded and Prashant lodged F.I.R. (Exh.174).

The duo (culprits) had their motorcycle parked at

a roadside. They made the victim sit on the motorcycle. Both

of them took the victim to Hyderabad. They travelled from

Nanded to Hyderabad on the same motorcycle triple seat.

The victim was kept in a room at Charminar. Then they took

telephone number of father of the victim namely Dr. Maroti

Katamwar (P.W.1). They talked with him and made a demand

of Rs.15 Lakhs for her release. On negotiations, it was

reduced to Rs.4,50,000/-. P.W.1 Dr. Maroti, accompanied by

police officials of Bhagya Nagar Police Station went to

Hyderabad since the caller had asked P.W.1 Dr. Maroti to pay

him money at Hyderabad and get the victim back. Assistance

of Hyderabad police was also taken. The caller had asked

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P.W.1 Dr. Maroti to come to road - Chandrayan Gutta to

Barkas Funeral Ground. Telephonic conversation was in

progress between the caller and P.W.1 Dr. Maroti. On his

directions, P.W.1 Dr. Maroti alighted at a particular place on

the aforesaid road. Two motorcycle-borne persons came to

him. P.W.1 Dr. Maroti gave them Aristocrat bag containing

sum of Rs.4,50,000/-. The duo went away. They came back

immediately and dropped the victim at the place whereat the

money was received. As planned, the culprits were chased

and overpowered. They were appellant No.1 and absconding

accused No.2.

3. The further investigation followed. Others

involved in the crime came to be arrested. Panchanamas of

the relevant happenings were drawn. An autorickshaw came

to be seized. On investigation, the charge sheet came to be

filed in the Court of Judicial Magistrate, First Class, Nanded.

The learned Judicial Magistrate, First Class, in turn, committed

the case to the Court of Sessions for trial. The trial Court

framed the charge. Prosecution examined 13 witnesses. On

appreciation of the evidence in the case, the appellants were

convicted and consequently sentenced as stated above.

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4. Learned counsel appearing for the appellants

would submit that, it was just illogical to accept the case of

the prosecution that the accused kidnapped the victim and

took her to Hyderabad on motorcycle. It was a distance of

not less than 275 Kms. It is just unpalatable that they

travelled unnoticed by anyone on the road. Many toll booths

had to be passed. CCTV cameras have been installed at all

toll booths. The victim did not raise cries. He would further

submit that, there is no shred of evidence against the

appellant No.2. Her crime is that, she happens to be wife of

appellant No.1. No overt act has been attributed to her. The

evidence indicates that, the duo who received ransom, had

their faces covered. P.W.1 Dr. Maroti was not called upon to

identify them in test identification parade. The evidence in

the case came to be recorded little over 12 years after the

incident. The learned counsel would submit that, close

scrutiny of the evidence would indicate no ingredients of

offence punishable under Section 364-A were made out.

According to him, all the panchanamas were drawn at Bhagya

Nagar Police Station, Nanded. They, therefore, urged for

allowing the appeal.

5. Learned A.P.P. would, on the other hand, submit

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that, the evidence of P.W.3 Prashant almost went

unchallenged. Close scrutiny of the evidence of the relevant

witnesses would indicate that the factum of kidnapping is

undisputed. A force was used in kidnapping the victim. The

appellants made phone call to the victim's father. Implied

therein was apprehension of the victim being put to hurt, at

least. According to the learned A.P.P., the appellant No.1 and

the absconding accused No.2 were caught red-handed. The

victim, her father and the police officer, who had actually

participated in the rescue operation, identified the appellant

before the Court. The learned A.P.P. ultimately urged for

dismissal of the appeal.

6. The Division Bench of this Court, in case of Philips

Fadrick D'Souza & Ravindra @ Balu Pandurang Kambre

Vs. The State of Maharashtra & anr. etc. : (2008) ALL

MR (Cri) 2830), observed in paragraph No.6 as under :-

"Section 364-A of the Indian Penal Code reads as follows :-

364-A. Kidnapping for ransom etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or

Cri. Appeal No.1042/2019 :: 7 ::

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."

The essential ingredients of the offence - under Section 364A must be deduced. The provision is attracted where a person:

(a)(i) kidnaps or abducts any person; or

(ii) keeps a person in detention after such kidnapping or abduction; and

(b)(i) threatens to cause death or hurt to such person; or

(ii) by his 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; and

(c ) 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. The ingredients of Section 364A, therefore, are broadly distributed into three heads:

The first head consists of kidnapping, abduction or holding the person kidnapped or abducted in detention: The second head consists of the issuance of a threat or then giving rise to a reasonable apprehension of causing death or hurt or actually causing death or hurt. The third head is that the purpose of the unlawful act is to compel the Government or a foreign state or international

Cri. Appeal No.1042/2019 :: 8 ::

organization or any person to pay a ransom or to do or abstain from doing something.

The marginal note to Section 364A is titled, "kidnapping for ransom etc.". The offence under Section 364A consists of an aggravated form of kidnapping or abduction. The offence is punishable with death or with imprisonment for life and with fine.

The Penal Code classifies offences affecting the human body in Chapter XVI and those which relate to kidnapping and abduction are delineated in Section 359 to Section 369. Section 359 provides that kidnapping is of two kinds, namely, kidnapping from India and kidnapping from lawful guardianship. Section 360 relates to kidnapping from India, while Section 361 relates to kidnapping from lawful guardianship. Section 362 defines the offence of abduction. Section 363 provides a punishment of imprisonment upto seven years in respect of the offence of kidnapping. Section 363A deals with kidnapping or maiming a minor for the purpose of begging. Section 364 deals with kidnapping or abducting in order that a person may be murdered or may be so disposed of as to be put in danger of being murdered; the punishment provided being imprisonment for life or rigorous imprisonment upto ten years and fine. Section 364A is the provision which falls for interpretation in this case. Section 365 provides for kidnapping or abduction with intent to secretly and wrongfully confine a person. Section 366 deals with the offence of kidnapping, abduction or inducing a woman to compel her to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. Section 367 deals with the offence of kidnapping or abduction in order to subject a person to grievous hurt or slavery. Section 369 covers the offence of kidnapping or abducting a child under ten years with intention of taking dishonestly any movable property from the

Cri. Appeal No.1042/2019 :: 9 ::

person of such child.

The offence under Section 364A is not made out only upon the commission of the unlawful act of kidnapping or abduction. The essential ingredients of the statutory provision, apart from the act of kidnapping, abduction or, as the case may be, keeping a person in detention thereafter, are a threat to cause hurt or a reasonable apprehension of such a consequence or causing death or hurt, in order to compel the payment of ransom or the doing or abstention from doing any act by the government, a foreign state, an inter governmental body or by any unlawful act is to demand person. The purpose of the ransom is to compel the doing or abstention from doing of a particular act. Kidnapping or the abduction by itself does not lead to an inference of the underlying purpose with which it was carried out. The purpose must exist at the time when the act of kidnapping or abduction takes place. Whether such a purpose existed at that time will have to be deduced from all the attendant circumstances. Events which take place prior to, at the time of and subsequent to the commission of the offence would weigh in the balance. In interpreting Section 364A the Court must be cognizant of the fact that the provision was introduced in order to deal with the serious menace posed by terrorism to the stability of civil society. Hence, while the underlying purpose, which is an ingredient of Section 364A, must demonstrably be found to exist as the foundation of the unlawful act, the Court would not be justified in abridging the parameters of the statutory provision with reference to requirements which have not been imposed by Parliament. Situations involving kidnapping or abduction for ransom are fluid. Demands which are raised by abductors may in the very nature of things evolve as the situation progresses. The law does not prescribe that the nature of the demand for ransom be precisely spelt out when the kidnapping or abduction is carried out. So long as the unlawful act of

Cri. Appeal No.1042/2019 :: 10 ::

kidnapping or abduction is carried out for the purpose of making a demand for ransom, the requirement of the section would be met. Moreover, as the Supreme Court noted, it may well happen that after the demand is made known to the victim, but before it is communicated to a third person, the accused may be arrested. That again would not detract from the circumstance that when act of kidnapping or abduction was carried out with the object and purpose of demanding ransom. A statutory provision like Section 364A must undoubtedly, like penal legislation, be construed strictly. But while construing a provision such as Section 364A the Court must be careful not to interpret it in a manner which would denude it of its legislative efficacy."

7. Let us turn to the evidence in the case. Although

the prosecution has examined 13 witnesses, for deciding the

appeal, relevant evidence would be that of the victim, her

father Dr. Maroti (P.W.1), her friend Prashant (P.W.3) and the

police officer involved in the rescue operation.

P.W.3 Prashant gave evidence consistent with the

F.I.R. (Exh.174) lodged by him. Only two questions were put

to him during his cross-examination. One was in the nature

of suggestion that he lodged the F.I.R. against unknown

person. Another one was, to obtain his admission, about 7 to

8 persons were accompanied them (in autorickshaw) when

the incident took place. As such, the evidence of P.W.3

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Prashant that - he along with the victim came from Vasmat to

Nanded on 25/4/2005 by 7.30 in the morning, they boarded

an autorickshaw, on the way two persons got in the very

autorickshaw, one of them shared driver seat, near Railway

Board Division, one of those two removed the victim from the

autorickshaw, he got himself rescued, those two went to a

motorcycle parked in the nearby, the duo then took the victim

with them, he immediately reported the matter to his teacher,

he then went to the police station and lodged the F.I.R.

(Exh.174), went unchallenged.

8. True, P.W.3 Prashant failed to identify the culprits

before the Court. His rest of the evidence, however, stands.

On the same lines is the evidence of the victim. She

reiterated in her evidence that, on the fateful day, she came

to Nanded in a bus for attending Vacation Classes. Prashant -

her classmate was with her. They boarded an autorickshaw at

Raj Corner. On the way to Vacation Class premises, two more

persons boarded the very autorickshaw. One of them shared

the driver seat. While the rickshaw was passing by Railway

Division, one of the two took the victim out of the

autorickshaw. The second one also alighted. He pushed

Prashant.

Cri. Appeal No.1042/2019 :: 12 ::

It is further in her evidence that, she raised cries.

The persons made her sit on the motorcycle. They took her

to Hyderabad on motorcycle. She was kept in a room at

Charminar. There was one another lady (appellant No.2) with

her. The accused then took phone number of her father. The

conversation took place between her father and the accused.

She was made to talk to her father. She was informed by the

father that they were making demand of money for her

release.

9. P.W.1 Dr. Maroti, father of the victim was a Medical

Superintendent at Government Hospital, Vasmat. It is in his

evidence that, on 17th April, he had received a call on his

landline phone. It was 9.00 p.m. The caller was unknown.

He enquired about his name. P.W.1 Dr. Maroti gave him his

name and asked what the matter was. The Caller I.D. was,

therefore, applied to the landline phone. P.W.1 Dr. Maroti

claimed to have lodged report with police on the following

day.

10. It is further in his evidence that, on 25th April, his

daughter (victim) had left the house for Vacation Classes.

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After a while, he received a phone call of Class Teacher of the

victim. He was informed that, the victim was kidnapped by

two unknown persons on a motorcycle. He along with his wife

Savita (P.W.4) came to Bhagya Nagar Police Station, Nanded.

Dy. S.P. Abdul Razzak met them there. Prashant (P.W.3)

lodged the F.I.R. The evidence of P.W.1 Dr. Maroti further

disclose that, during intervening night of 25th and 26th April,

he received a phone call on his landline. The caller was a

male person. He told P.W.1 Dr. Maroti that his daughter

(victim) was with him and for her release, he would be

required to pay him money. The caller told P.W.1 Dr. Maroti to

think over and respond. That person again made a phone call

on cell phone of P.W.1 Dr. Maroti. The caller made a demand

of Rs.15 Lakhs. On the directions of the police officer, P.W.1

Dr. Maroti negotiated with the caller and agreed to pay a sum

of Rs.4,50,000/-. His evidence would further suggest that, it

was a phone call from Hyderabad. The caller asked him not

to report to the police. The caller had asked P.W.1 Dr. Maroti

to come to Hyderabad, pay him money and get back his

daughter. His evidence further suggests that, police officers

of Bhagya Nagar Police Station, Nanded accompanied him to

Hyderabad. There were three vehicles. One vehicle was

proceeding ahead of his vehicle, another one was following.

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The police persons were in civil dress. He again received a

phone call. The caller asked him to come to the road -

Chandrayan Gutta to Barkas Funeral Ground. The caller

insisted to pay him money first. P.W.1 Dr. Maroti agreed, on

the instructions of the police officer. It is further in his

evidence that, as per the directions of the caller, he alighted

from the vehicle and took a walk. He had a suitcase of

Aristocrat make with him. The sum of Rs.4,50,000/- was kept

therein. Two persons came on a black-colour motorcycle in a

short while. They took the briefcase, informing P.W.1 Dr.

Maroti that his daughter would be released. The duo left.

After 10 minutes, the victim came there. He took her in the

vehicle. Those two came from back side of P.W.1 Dr. Maroti's

vehicle and overtook his car. P.W.1 Dr. Maroti, in turn,

informed the same to Abdul Razzak, Dy. S.P. The police

officials overpowered the duo after a while. A panchanama

was drawn. The culprits gave their names. One stated his

name as Shibibi (appellant No.1).

11. During cross-examination of P.W.1 Dr. Maroti, it

has come on record that, the duo had covered their faces with

clothes. P.W.1 Dr. Maroti, however, categorically stated that,

it was so when they were given the bag. While the victim was

Cri. Appeal No.1042/2019 :: 15 ::

brought by them, that time their faces were not covered.

P.W.1 Dr. Maroti had identified the appellant No.1 before the

Court as one of those two culprits.

12. The victim's evidence reinforces the evidence of

P.W.1 Dr. Maroti. It is in her evidence that, after the accused

received the money, they came back. They took her on a

motorcycle and left at a place wherefrom she could see car of

her father. Immediately thereafter the police chased the duo

and successfully overpowered. It is further in her evidence

that, the appellant No.1 himself had given his name as

Shibibi. The appellant No.2 is the wife of appellant No.1.

During the cross-examination, the victim stated to have had

not raised cries on way to Hyderabad. Police gave her the

names of appellants and the co-accused. Although she

claimed to have identified the appellant No.1 in test

identification parade, there is no evidence in that regard.

13. P.W.11 Mohd. Giyasoddin was one of the officers

involved in the rescue operation. It is in his evidence that, he

had accompanied Dy. S.P. Abdul Razzak and others to

Hyderabad. It was 27th April 2005. A trap was laid. The

appellant No.1 and absconding accused No.2 came after a

Cri. Appeal No.1042/2019 :: 16 ::

while. The appellant No.1 was given bag containing sum of

Rs.4,50,000/-. He released the victim and took to his heels.

The police staff caught him with a motorcycle and the bag

containing money. A cell phone, knife and diary was found

with him. A seizure panchanama was drawn vide Exh.64.

14. It is true that, there is no evidence to indicate that

the seizure panchanama was drawn on the spot. There is also

no material to indicate the test identification parade to have

been held for identification of the appellant. The fact,

however, remains that, the appellant No.1 was overpowered

within minutes of receipt of ransom and release of the victim.

He did not, however, offer any evidence to suggest that no

incident as has been alleged by the prosecution did take place

and he was arrested from somewhere else.

15. It is reiterated that, there is overwhelming

evidence to indicate the victim to have been kidnapped by two

persons. She was taken to Hyderabad on a motorcycle and

kept in a room. The appellant No.2 was with the victim in the

very room. She is none other than wife of appellant No.1.

The question is, whether, based on the evidence on record the

offence punishable under Section 364-A is made out. The

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definition of Section 364-A has already been adverted to with

enumeration of ingredients thereof hereinabove. In our view,

what has been proved by the prosecution is - the appellant

No.1 along with his associate, kidnapped the victim from

Nanded. He took her to Hyderabad. She was kept in a room

for 48 hours. The same amounts her detention. He made a

call to the father of the victim and made a demand of money

for the victim's release. The same makes out a case of

demand of ransom. In our view, one of the ingredients of the

offence punishable under Section 364-A is missing. It is not

the case of the victim or her father that the caller (appellant

No.1) had ever given them a threat of causing her death or

hurt. There is also nothing to suggest the conduct of the

appellant was such as to give rise to a reasonable

apprehension that such person (victim) or her father might

have been put to death or hurt. The fact that the caller had

asked not to report to the police would in no way give rise to

a reasonable apprehension of any offence against human

body of the victim or her father. No investigation was made in

relation to a phone call received by Dr. Maroti (P.W.1) on 17th

of April. There is also no evidence to indicate a link between

the said call, if any, and the incident in question. In our view,

the ingredients of offence punishable under Section 365 of the

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I.P.C. are proved against the appellant No.1.

16. No overt act has been attributed to appellant

No.2. There is evidence only to suggest that she was with the

victim in the room in which the victim was kept. The victim

was candid enough to state to have been served with food

during her stay there. The appellant No.2 being the wife of

appellant No.1, was expected to be in the shadow of her

husband. Even if it is assumed that she knew that her

husband was involved in criminal activity, her mere silence

and not reporting to the police in no way make her liable for

any offence. It is reiterated that, for invoking her criminal

liability with the aid of Section 34 of the I.P.C., neither an act

or omission made punishable under the I.P.C. or any of the

statutes is shown. In the face of evidence on record, the trial

Court ought not to have convicted the appellant No.2. It also

not to have convicted the appellant No.1 for the offence

punishable under Section 364-A of the I.P.C. Since the

offence punishable under Section 365 is made out against

appellant No.1 and the same being punishable with

imprisonment for a term which may extend to seven years

and fine, we propose to sentence the appellant No.1 to

maximum term of imprisonment provided under Section 365

Cri. Appeal No.1042/2019 :: 19 ::

of the I.P.C.

17. For the aforesaid reasons, the appeal partly

succeeds. Hence the order :-

ORDER

(i) The Criminal Appeal is partly allowed.

(ii) The impugned order dated 3/10/2019, passed by

learned Additional Sessions Judge, Nanded in Sessions Case

No.107/2005, convicting and sentencing the appellant No.2

for the offences punishable under Sections 342, 363, 364-A,

387 read with Section 34 of the Indian Penal Code is set

aside. She stands acquitted of the offences punishable under

Sections 342, 363, 364-A, 387 read with Section 34 of the

Indian Penal Code. She be set at liberty forthwith if not

required in any other case. Fine amount, if paid, be refunded

to her.

(iii) Conviction and consequential sentence of the appellant

No.1 for the offence punishable under Section 364-A read with

Section 34 of the Indian Penal Code imposed by learned

Additional Sessions Judge, Nanded in Sessions Case

No.107/2005, by impugned order dated 3/10/2019 is hereby

Cri. Appeal No.1042/2019 :: 20 ::

set aside. He stands acquitted of the offence punishable

under Section 364-A read with Section 34 of the Indian Penal

Code. He is, however, convicted for the offence punishable

under Section 365 of the Indian Penal Code and, therefore,

sentenced to suffer rigorous imprisonment for seven years

and to pay fine of Rs.5000/- (Rupees five thousand), in

default to suffer simple imprisonment for six months.

(iv) Rest of the terms of the impugned order of conviction

and sentence to stand unaltered.

(v) Consequently, Criminal Application No.3370/2022 is

disposed of.

          ( R. M. JOSHI, J. )                ( R. G. AVACHAT, J. )



 fmp/-