Bombay High Court
Mahesh Vinayak Khanjolkar (Bari) And ... vs The State Of Maharashtra on 23 February, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:3828-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 347 OF 2019
1. Mahesh Vinayak Khanjolkar (Bari),
Age : 33 years,
2. Sunil Vinayak Bari,
Age : 33 years,
Both R/o. Balaji Pura, Zhami Chowk,
Amalner, Dist. Jalgaon.
3. Bharat Dasharat Mahajan,
Age : 24 years,
R/o. Shivam Nagar, Bahadarpur Road,
Amalner, Dist. Jalgaon.
4. Shubham @ Shivam Gulab Shingane,
Age : 19 years,
R/o. Bhoi Wada, Amalner,
Dist. Jalgaon.
5. Anil Nana Bhil,
Age : 20 years,
R/o. In front of Marimata Temple,
Amalner, Dist. Jalgaon.
6. Bhatu Hiraman Khanjolkar (Bari),
Age : 20 years,
R/o. Balajipura, Amalner,
At present R/o. Sonipod Wadi,
Badoda (Gujrat) ...Appellants
(Orig. Accused)
Versus
The State of Maharashtra ...Respondent
.....
Mr. Aniket Vagal and Rajesh Mewara - Advocate for Appellant Nos. 1 to
3 and 5 to 6
Mr. S. T. Mahajan - Advocate for Appellant No. 4
Mrs. Uma S. Bhosale - APP for respondent/State
.....
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CORAM : R. G. AVACHAT
AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 02ND FEBRUARY, 2024
PRONOUNCED ON : 23RD FEBRUARY, 2024
JUDGMENT [Per : Neeraj P. Dhote, J.] : -
1. This Appeal is filed under Section 374(2) of the Code of
Criminal Procedure against the Judgment and Order dated 06.03.2019
passed by the learned Additional Sessions Judge, Amalner in Sessions
Case No. 10 of 2017 convicting the Appellants for the offence
punishable under Sections 364A and 120B of the Indian Penal Code and
sentencing them to suffer imprisonment for life and pay fine of
Rs.3,000/-, each, in default, suffer simple imprisonment for three
months. The learned trial Court acquitted the Appellants for the offence
punishable under Sections 363, 385, 387, 323 and 504 of the Indian
Penal Code.
2. The Prosecution's case as revealed from the Police Report is
as under : -
2.1. The informant, who is the Medical Practitioner by
profession and resides at Dhule Road, Amalner, Dist. Jalgaon, has two
sons. Son Parth was studying in 7 th Std. He used to attend the school
from 07:30 a.m. to 12:30 p.m. and in the evening, he used to attend the
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tuition classes. On 03.01.2017, he went to attend the tuition classes as
usual. At about 08:20 p.m., the informant received a call over his
mobile phone and the person on the other side of the phone told him
that his son was with them and if he wants his son alive, he should pay
them an amount of Rs. 50.00 lakh, within a period of one hour. The
phone was handed over to son Parth, who told the informant that he
was brought at unknown place by four unknown persons and he was not
aware of the place. Son Parth told him to pay Rs. 50.00 lakh to them,
otherwise they would kill him. The person who called the informant
warned him not to play trick. When the informant told him that he was
not having that much amount, the said person asked him to borrow the
money from his relatives and the phone call was disconnected.
2.2. The informant disclosed the said fact to his wife and
relatives. One of the friends of the informant informed the Police and
the Police came to the informant's house and made inquiry. The Police
asked the informant to act according to their instructions. Informant
collected Rs. 10.00 lakh from his friends. Again the informant received
a phone call from the unknown person from a different mobile number
in respect of demand of money. The informant proceeded towards
Parola road by the vehicle where the unknown person asked him to
come. The informant stopped at the Hedave Phata and waited for half
an hour. He again received a phone call from another number and
person speaking from the other side asked him as to why he informed
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the Police and instructed him to come by Galwade Road. Accordingly,
the informant proceeded from that road. He waited there for one and
half hour. At about 02:00 a.m. he received a phone call from his friend
Amol Pingle that the kidnappers abandoned his son at Annapurna Hotel,
Amalgaon. The informant went to the said place and found his son
Parth.
2.3. Son Parth disclosed the incident to the informant. The
report was lodged with the Police and the Crime came to be registered
against four unknown persons for the offence punishable under Sections
363, 364A of the Indian Penal Code with the Amalner Police Station.
The Police investigated the Crime, during which they recorded the
statement of witnesses, arrested the accused persons, seized the mobile
phone from the accused persons, collected call logs from the accused
persons, undertook Test Identification Parade [for short 'TIP'] and on
completion of investigation, submitted the charge-sheet.
3. The learned trial Court framed the Charge against the
Appellants for the offence punishable under Sections 363, 364A, 385,
387, 323, 506 r/w 34 and 120B of the Indian Penal Code vide Exh. 13,
to which the Appellants pleaded not guilty and claimed to be tried. To
prove the Charge, the prosecution examined in all 9 (nine) witnesses
and brought on record the relevant documents. After the prosecution
closed its evidence, the statement of the Appellants came to be recorded
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under Section 313(1)(b) of the Code of Criminal Procedure. The
Appellants denied the prosecution's case and evidence. On appreciation
of the evidence on record, the learned trial Court passed the impugned
Judgment and Order.
4. Heard learned advocate for the Appellants and the learned
APP for the State. Perused the evidence on record.
5. It is submitted by the learned advocate for the Appellants
that the offence was registered against unknown persons and, therefore,
the identity of the accused persons is required to be established by
cogent evidence. He submitted that the TIP conducted during the
investigation was not as per the rules and cannot be taken into
consideration. He submitted that there is no cogent and sufficient
evidence on record to prove the Charge and the learned trial Court has
committed an error in convicting the Appellants and the same may be
set aside.
6. Learned APP submitted that the informant's son is
examined by the Prosecution and he identified the Appellants as the
persons who kidnapped him and demanded ransom. He submitted that
the impugned Judgment and Order warrants no interference and the
Appeal be dismissed.
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7. Admittedly, the Crime was registered against four unknown
persons on the report lodged by PW1 - Dr. Nikhil Ramesh Bahugune.
The evidence of PW8 - Vikas Daulatrao Wagh, who investigated the
Crime show that the Local Crime Branch (LCB) arrested the accused /
Appellants on 10.01.2017. It is needless to state that when the Crime is
registered against the unknown persons, the prosecution is required to
establish the identity of the accused persons. The evidence on record
show that the TIP of the arrested accused / Appellants came to be
conducted. On the point of TIP, prosecution has examined PW5 - Rajesh
Madhukar Amrutkar, who was the Naib Tahsildar of Amalner Tahsil and
PW6 - Sandip Vasant Patil, who acted as Panch during TIP.
8. Scrutiny of the evidence of PW5 - Rajesh Madhukar
Amrutkar show that the TIP was conducted in utter disregard of
guidelines and cannot be relied upon. The TIP is conducted on
13.02.2017, which is after a period of one month from the arrest of the
accused / Appellants. It is needless to state that the TIP is required to be
held at the earliest. Further, the evidence of PW5 - Rajesh Madhukar
Amrutkar show that he was aware that holding TIP was a serious and
important job and he was aware of the rules in that regard. There were
six suspected accused. His evidence show that the suspected accused
were different in appearance. Accused no. 1 was healthy and semi bald.
Accused No. 2 was healthy. Accused No. 3 was slim. Accused No. 4 was
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fair. Accused No. 5 was blackish. Accused no. 6 was weak and having
full hairs on his head. His evidence show that same dummies were used
for each rotation of TIP. He admits that the suspected accused and
dummies should be of same age group and further admits that all the
dummies were not of similar age group as that of the accused. It has
further come in his evidence that all the dummies did not change their
clothes. His evidence go to show that the TIP panchanama which is at
Exh. 64 is silent on the point that he inquired with the witness that the
Accused were not shown to him prior to TIP. It is thus clear that the TIP
was conducted in utter violation of the guidelines laid down for TIP.
Hence, the evidence in respect of TIP is discarded and kept out of
consideration.
9. The evidence of PW2 - Parth Nikhil Bahugune show that on
03.01.2017, he was studying in 7th Std. After the school, he used to
attend the classes. On the said day, when he came in front of the Global
High School at 07:30 p.m., there was one Maruti 800 Car and someone
called him and so he went near the Car. The driver of the Car inquired
about the address of Bhalerao Nagar. The persons sitting at the rear side
of the Car came behind him and pushed him into the Car and the Car
proceeded. There were four persons inside the Car. One of them
pressed the mouth. He was taken to unknown place. One of them
asked the phone number of his father and mother. He gave phone
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number of his grandfather. His father i.e. PW1 - Dr. Nikhil Ramesh
Bahugune was telephonically contacted and he was informed that his
son was in their custody and demanded ransom of Rs.50.00 lakh and
threatened that if he wants his son alive, he will have to pay the
amount. They further threatened that the matter should not be reported
to the Police. The car was taken to unknown place. At one place, two of
them got down from the Car to have breakfast and their boss was sitting
inside the Car. After sometime, two persons got down from the Car. He
was asked whether he would take the breakfast to which he refused.
They tried to contact his father. The car was not starting. They filled
petrol in the Car from one tin pot. The car proceeded further and
reached at one square at Amalgaon where the said persons pushed PW2
out of the Car.
10. The evidence of PW2 - Parth further show that he saw one
hotel at some distance. He approached one person having camera and
standing there and disclosed him his identity and gave phone number of
his mother. His mother was contacted and informed about the place
where he was standing. After about 15 minutes, his parents, relatives
and police came there and took him to the house. On the next day, he
went to the Police Station and disclosed the incident to the Police. The
evidence further show that he showed the spots to the Police where he
was taken. He deposed that on 13.02.2017, he was called in the
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Jalgaon Jail where accused were identified in the TIP. He identified the
Appellants as the said persons who kidnapped him.
11. The above evidence of PW2 - Parth on whose testimony the
prosecution's case primarily rests show that the time of incident was
from 07:30 p.m. and thereafter, which was night time. The time when
PW2 was left at Amalgaon was midnight. It is therefore clear that the
entire episode took place during the late evening and night. The
evidence of PW2 - Parth nowhere shows that the Car in which he was
kidnapped was having lights or illuminated inside. In absence of this
evidence, it is doubtful that PW2 Parth, who was minor at the relevant
time, had full and proper opportunity to see the faces of kidnappers. His
evidence that the Car was taken to different places show that the vehicle
was constantly moving except for some brief stops. His evidence show
that some of the accused persons were sitting at the rear side of the car
and some were sitting beside him. Thus, the evidence of PW2 - Parth
does not give the required assurance that he had sufficient opportunity
to register the identity of the persons who kidnapped him so as to
identify them at later point of time.
12. Undisputedly, the testimony of PW2 - Parth was recorded
on 06.08.2018, which was after a period of 18 months. No doubt true,
the identification of the accused persons in the Court is the substantive
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piece of evidence, however, when the accused / suspects are unknown
persons, the Court look for corroboration in the nature of prior TIP. As
discussed earlier, the evidence in respect of TIP has been discarded. The
evidence of PW2 - Parth show that he came to know after about 10 days
from the incident that the accused were arrested. Though the suggestion
that the Police called him in the Police Station and shown the accused
has been denied, considering the fact that he knew that the accused
were arrested and there was a gap of more than one month in
conducting TIP after the arrest, the possibility of the suspects /
accused / Appellants being shown to PW2 - Parth cannot be ruled out.
Thus, the identification of the Appellants by PW2 - Parth for the first
time in the court cannot form the sole basis to hold that the Appellants
were the very same persons who kidnapped PW2 - Parth and demanded
ransom from PW1 - Dr. Nikhil Ramesh Bahugune.
13. The evidence of PW1 - Dr. Nikhil Ramesh Bahugune show
that, during the conversation with the kidnappers he recorded the
conversation of the second and third call in his mobile. He prepared the
CD/DVD of the said conversation through his Laptop and handed over
the same to the Police. The evidence of PW8 - Vikas Daulatrao Wagh,
the Investigating Officer, show that the informant i.e. PW1 - Dr. Nikhil
Ramesh Bahugune handed over him the DVD in respect of the discussion
/ conversation took place between the accused and the informant, on
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16.01.2017. This shows that the said CD/DVD in which the conversation
was copied down was handed over to the Police after a period of 12 days
after the incident/registration of the Crime. Secondly, the evidence of
PW8 - Vikas Daulatrao Wagh, the Investigating Officer, show that till
16.01.2017 he was not aware about recording of discussion/
conversation between the informant PW1 - Dr. Nikhil Ramesh Bahugune
and the kidnappers. There is no evidence about explaining the delay in
submitting the recorded conversation to the Police. PW8 - Vikas
Daulatrao Wagh admits that when he came to know regarding the
recording of said discussion between the informant and the kidnappers,
it was necessary for him to seize the mobile phone or memory card
containing the recorded discussion. He admits that the mobile phone
and memory card were not seized. He admits that no recording of
discussion between the informant and the kidnappers was handed over
to him between 04.01.2017 to 16.01.2017. It is needless to state that
the primary document/piece of evidence would be the mobile phone
having the recording and the CD/DVD would be the secondary evidence.
Therefore, the report of Forensic Science Laboratory dated 16.04.2017
(Exh. 96), which shows specimen voice and the questioned voice in the
CDs., Exhs. 1 and 2, were found similar with that of PW1 - Dr. Nikhil
Ramesh Bahugune and the Appellant No. 6 - Bhatu Hiraman Khanjolkar
(Bari) cannot be relied upon. The Exh. 35 which is the Certificate under
Section 65B of the Indian Evidence Act, brought on record in the
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evidence of PW1 - Dr. Nikhil Ramesh Bahugune is undated. Moreover,
in his evidence it has come that it is not mentioned in Certificate Exh. 35
as to when the conversation in the mobile was loaded in laptop and C.D.
was prepared. Thus the electronic evidence and CA report do not take
the prosecution's case any further.
14. The other piece of evidence is in the nature of seizure of
mobile phones from the accused / Appellants after their arrest, seizure
of the vehicles and pointing out the places by Appellant No. 1 - Mahesh
Vinayak Khanjolkar (Bari), Appellant No. 4 - Shubham @ Shivam Gulab
Shingane and Appellant No. 2 - Sunil Vinayak Bari, during the course of
investigation. For this, the prosecution has examined PW3 - Amol
Ravindra Patil and PW4 - Sandip Bhagirath Saraf, who acted as the
panchas. When the evidence in respect of identity of the accused /
Appellants is not worthy of reliance, this evidence takes the case of
prosecution no further.
15. The other evidence is that of PW7 - Bhagwan Ganpat
Varule to whom PW2 - Parth Nikhil Bahugune met near the hotel after
he was abandoned by the kidnappers and PW8 - Vikas Daulatrao Wagh,
who is the Investigating Officer. The evidence of PW8 - Vikas Daulatrao
Wagh, the Investigating Officer, show that there was no reference of day
and time on the script at Exh. 93.
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16. The evidence of PW9 - Rangnath Tryambak Dharbale, who
was the officer of LCB show that he collected the CDRs during the
parallel investigation and admits that the names are not mentioned in
the CDRs. He further admits that the names of the accused/Appellants
Nos. 1, 2 and 6 were not mentioned in the CDR and further admits that
there was no evidence in the charge-sheet to show the accused /
Appellant Nos. 1, 2 and 6 made preparation to make the call for
demanding ransom. He further admits that there was no evidence on
record to show as to on what basis he went to the accused / Appellant
Nos. 1 and 2 on 10.01.2017. His evidence further show that PW2 -
Parth had disclosed that the kidnappers were having 'Passion' motorbike
and the motorcycle which was seized was 'Hero Achiever'. The evidence
show that the description of accused/Appellant No. 1 was not matching
with the description of kidnappers given by PW2 - Parth. His evidence
further show that the mobile of LVF company seized from accused no. 1
was not having memory card. The evidence of PW8 - Vikas Daulatrao
Wagh show that there were improvements / omissions in the testimony
of PW1 - Dr. Nikhil Ramesh Bahugune and PW2 - Parth Nikhil
Bahugune on some aspects.
17. In the light of settled principles in Criminal Jurisprudence
that, severe the punishment, stricter the proof and in view of the above
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discussion, the Appeal succeeds, as the evidence is neither concrete nor
cogent. Hence, the following order.
ORDER
[1] Criminal Appeal is allowed.
[2] The Judgment and Order dated 06.03.2019 passed by the learned Additional Sessions Judge, Amalner in Sessions Case No. 10 of 2017, convicting the Appellants for the offence punishable under Sections 364A and 120B of the Indian Penal Code is quashed and set aside. [3] The Appellants are acquitted of the offence punishable under Sections 364A and 120B of the Indian Penal Code. [4] The Appellants be released forthwith, if not required in any other case.
[5] R&P be sent back to the trial Court. [6] Fine amount, if paid, be refunded to the respective Appellants.
[NEERAJ P. DHOTE] [R. G. AVACHAT]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde Designation: PS To Honourable Judge Date: 23/02/2024 14:20:22