Bombay High Court
Lalit Vilasrao Thakare (In Jail) vs State Of Maharashtra Thr. Police ... on 19 January, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande, M.G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.206 of 2017
Lalit Vilasrao Thakare,
Aged about 24 years,
Occupation - Labour,
R/o Vishwakarma Nagar,
Nagpur (In Jail Nagpur) ... Appellant
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Nandanvan,
District - Nagpur. ... Respondent
Shri S.P. Bhandarkar, Advocate for Appellant.
Ms Trupti Udeshi, Additional Public Prosecutor for Respondent.
Coram : R.K. Deshpande & M.G. Giratkar, JJ.
Date of Reserving the Judgment : 9th January, 2018
Date of Pronouncing the Judgment :19th January, 2018
Judgment (Per R.K. Deshpande, J.) :
1. The appellant-accused is convicted for the offence
punishable under Sections 327, 342, 364-A and 384 of the
Indian Penal Code ("the offences in question") by the learned
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Additional Sessions Judge (V), Nagpur in Sessions Case No.78
of 2013 and is sentenced - (i) to undergo life imprisonment
with a fine of Rs.5,000/- for the offence punishable under
Section 364-A of the Indian Penal Code, (ii) to undergo
rigorous imprisonment for two years with a fine of Rs.3,000/-
for the offence punishable under Section 384 of the Indian
Penal Code, (iii) to undergo rigorous imprisonment for six
months with a fine of Rs.500/- for the offence punishable
under Section 342 of the Indian Penal Code, and (iv) to
undergo rigorous imprisonment for one year with a fine of
Rs.1,000/- for the offence punishable under Section 327 of the
Indian Penal Code. All the sentences are directed to
concurrently.
2. The incident occurred on 5-9-2012 at Nagpur.
PW 4 Samyak and PW 5 Vikrant are the victims, and PW 4
Samyak is also the complainant, at whose instance FIR
No.248/12 was registered on 7-9-2012 against the
appellant-accused for the offences in question. PW 4 Samyak
was in 11th Standard on the date of incident and studying at
Kamla Nehru Arts, Commerce and Science College at Nagpur.
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He was residing at Gayatri Hostel, Nandanwan Chowk, Nagpur.
PW 5 Vikrant was also taking education in 11th Standard at
Kamla Nehru Arts, Commerce and Science College, Nagpur.
Both the victims were knowing each other and also the accused
Lalit.
3. The story of the prosecution is that on the date of
incident, one Anand Thakur along with accused Lalit came on
motorcycle to the hostel of PW 4 Samyak at about 8.30 p.m.
and asked him to come out of the hostel for having some talk.
In spite of his resistance, they took him forcibly to Juna
Sakkardara, near Shitla Mata Mandir in the slum.
PW 4 was taken in one room in which 2/3 friends of Anand
Thakur and accused Lalit were already there, consuming liquor.
They forced PW 4 to consume liquor. The accused slept him
and Anand Thakur also beat him by means of belt and told PW
4 that they require money, which he should demand from his
family. They snatched a mobile from PW 4 and called the other
victim PW 5 Vikrant on mobile and told him to come near
Shitla Mata Mandir. PW 5 reached there on scooter and Anand
Thakur brought him in the room and all
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of them started beating him by means of belt and wine bottle.
4. According to the story of prosecution, the sister of
accused Lalit came in the room and asked the accused and
others as to why they are beating the teens. The accused asked
her to go out. She, therefore, went out of room and started
crying. Accused Lalit made a phone call to the father of
PW 4 Samyak at Mumbai upon the cell number being supplied,
and abused his father. The accused caught hold of
PW 4 and told this to his father and demanded Rs.1,50,000/-
for release. The father of PW 4 assured payment for release.
At about 12 hours in the night, the accused released both the
victims, who then went to the hostel on the scooter of PW 5
Vikrant. After reaching the hostel, PW 4 Samyak received a
call from the accused, who told him that he will take
Rs.1,00,000/- from his father and asked him to hand over the
phone to PW 5 Vikrant, who was told that an amount of
Rs.50,000/- shall be taken from him.
5. PW 2 Nalini is the mother of PW 4 Samyak, who was
staying at Chandrapur, states in her evidence that the incident
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occurred on 5-9-2012 at about 10.15 p.m., when she received
a call from Samyak on her mobile to tell her whether she can
send Rs.50,000/-. She states that PW 4 Samyak was crying and
afraid and some other person took the mobile of Samyak and
told her that Samyak had borrowed an amount of Rs.50,000/-
from him for the business of ganja and charas and he wanted
return of it. She states that after the call was disconnected, she
made a call to her husband, and enquired from him whether he
received a telephone call of Samyak. The husband told her to
have received one missed call and then he made a return call
and told the said person to drop Samyak at the hostel. After
about two hours, Samyak was dropped at the hostel. PW 2
Nalini left Chandrapur at about 3 a.m. and reached Nagpur at
about 6 a.m. and directly went to the hostel, took Samyak and
brought him at Chandrapur at about 9 a.m. on 6-9-2012.
6. The FIR was registered on 7-9-2016 when
PW 4 Samyak along with his mother PW 2 Nalini and the
father came to Nagpur and lodged a complaint in the Police
Station. The Sessions Court relies upon the evidence of PW 2
Nalini and PW 6 Aniruddha, the mother and father of victim
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Samyak, and also the evidence of PW 5 Vikrant to hold that
there is nothing to disbelieve in their evidence, which was not
challenged in the cross-examination. It holds that the defence
did not challenge the fact that when the informant reached the
hostel, accused Lalit made a phone call and demanded that
they have to pay Rs.1,50,000/-. Thus, the demand of
Rs.1,50,000/- was virtually admitted.
7. The Sessions Court criticizes the investigation for not
seizing the mobile phones of the victims as well as the parents
of PW 4 Samyak and of the accused persons. It criticizes the
prosecution for not collecting the call detail reports of the
mobile phones and holds that the Investigating Officer seems to
be either highly inefficient or that he did so deliberately to help
the accused. The Sessions Court holds that in such a situation,
the case of the prosecution cannot be doubted for absence of
seizure of mobile and collection of call detail reports.
8. The Sessions Court holds that when PW 2 Samyak
spoke to his mother on phone, he was in the captivity of the
accused, and this fact remained unchallenged. It holds that
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both the victims were kidnapped, confined, beaten and in their
presence, demand for ransom amount was made. The victims
have also proved that how the accused demanded the ransom
amount of Rs.1,50,000/- by directly speaking to the father and
mother of the informant and by forcing the victims to convey
the demand to their parents.
9. The Sessions Court relies upon the evidence of
PW 7 Dr. Tarunkumar, who examined the victims and found
some simple injuries, which were 24 to 48 hours' old and
issued the medico legal certificates at Exhibits 37 and 38. It
holds that the opinion of the doctor is required to be accepted
in spite of the fact that the Investigating Officer did not send
the seized belt to the doctor to get a query report as to whether
the injuries sustained by the victims could have been caused by
the seized belt. The Sessions Court holds that the victims were
examined after about 45 hours of the incident and, therefore,
the injuries as well as abrasions are bound to lessen with
passage of time and the query report cannot be attached much
significance.
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10. We have heard Shri S.P. Bhandarkar, the learned
counsel appearing for the appellant-accused; and
Ms Trupti Udeshi, the learned Additional Public Prosecutor
appearing for the respondent-State.
11. Coming to the question of conviction of the accused
for the offence under Section 364-A of the Indian Penal Code,
i.e. kidnapping for ransom, etc., for which the sentence of life
imprisonment is imposed by the Sessions Court,
Shri Bhandarkar, the learned counsel, has relied upon the
decision of the Apex Court in the case of Suman Sood alias
Kamal Jeet Kaur v. State of Rajasthan, reported in
(2007) 5 SCC 634, to urge that neither the said provision is
attracted in the present case nor there is any evidence on
record to substantiate such a charge.
12. In the decision of the Apex Court in Malleshi v. State of
Karnataka, reported in (2004) 8 SCC 95, the appellant-accused
was convicted for the offence punishable under
Section 364-A of the Indian Penal Code and was sentenced to
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life imprisonment. In appeal, the Karnataka High Court
confirmed the conviction and sentence. The Apex Court
maintained the decision of the High Court. It was a case where
PW 2 was taken in a jeep by four persons and was driven to a
different place. PW 2 was threatened and was asked about the
phone number of his father, who will be asked to pay
Rs.4,00,000/- for his release. PW 2 told that such huge
amount cannot be arranged and at the most the accused
persons may get about Rs.50,000/- by raising loan from others.
The accused wanted at least Rs.2,00,000/-. PW 2 managed to
run away from the jeep when it was parked before the demand
was conveyed to the father.
13. In the aforestated background, the contention raised in
Malleshi's case, cited supra, was that the demand for ransom
was not established and in any event it was not conveyed to
any person for ransom and, therefore, Section 364-A of the
Indian Penal Code was not attracted. The Apex Court holds in
para 15 of its judgment that it cannot be laid down as a
straitjacket formula that the demand for payments has to be
made to a person who ultimately pays. After making the
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demand to the kidnapped or abducted person, merely because
the demand could not be conveyed to some other person, as
the accused is arrested in the meantime, does not take away
the offence out of purview of Section 364-A. The Court holds
that it has to be seen in such a case as to what was the object of
kidnapping or abduction. The essence of abduction is causing
to stay in isolation and demand for ransom. The demand in
the case before the Apex Court was already made by conveying
it to the victim. The Court holds that ultimately the question to
be decided is "What was the intention? Was it demand for
ransom?" It holds that there can be no definite manner in
which demand is to be made and who pays the ransom is not
the determinative fact.
14. In the decision of the Apex Court in Suman Sood's case,
cited supra, the provision of Section 364-A of the Indian Penal
Code, i.e. kidnapping for ransom, was considered. Paras 58 to
62 being relevant, are reproduced below :
"58. The term "ransom: has not been defined in the
Code."
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"59. As a noun, "ransom" means "a sum of money
demanded or paid for the release of a captive:. As a
verb, "ransom" means to "obtain the release of
(someone) by paying a ransom", "detain (someone) and
demand a ransom for their release". "To hold someone
to ransom" means "to hold someone captive and demand
payment for their release". (Concise Oxford English
Dictionary, 2002, p. 1186)."
"60. Kidnapping for ransom is an offence of
unlawfully seizing a person and then confining the
person usually in a secret place, while attempting to
extort ransom. This grave crime is sometimes made a
capital offence. In addition to the abductor a person
who acts as a go-between to collect the ransom is
generally considered guilty of the crime."
"61. According to Advanced Law Lexicon
(3rd Edn., p. 3932):
"Ransom is a sum of money paid for redeeming a
captive or prisoner of war, or a prize. It is also used
to signify a sum of money paid for the pardoning of
some great offence, and or setting the offender who
was imprisoned." "
"62. Stated simply, "ransom" is a sum of money to be
demanded to be paid for releasing a captive, prisoner or
detenu."
From the aforesaid law laid down by the Apex Court,
one of the ingredients, which is required to be proved, is that
kidnapping must be for ransom. Though the term "ransom"
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has not been defined in the Indian Penal Code, the Apex Court
considers the said term as a noun to mean "a sum of money
demanded or paid for the release of a captive". The Apex
Court holds that as a verb, "ransom" means to "obtain the
release of (someone) by paying a ransom", "detain (someone)
and demand a ransom for their release". To hold someone to
ransom means to "hold someone captive and demand payment
for their release". The Apex Court considers the definition of
"ransom" in Advanced Law Lexicon, which describes it as "a
sum of money paid for redeeming a captive or prisoner of war,
or a prize". Lastly, the Apex Court holds that "ransom" is a
sum of money to be demanded to be paid for releasing a
captive, prisoner or detenu.
15. In the recent decision of the Apex Court in the case of
Birbal Choudhary @ Mukhiya Jee v. State of Bihar, reported in
2017 SCC OnLine SC 1240, relied upon by Ms Trupti Udeshi,
the learned Additional Public Prosecutor, the accused were
convicted for the offences punishable under Sections 364-A,
34, 395 and 412 of the Indian Penal Code by the Trial Court,
which was confirmed in appeal by the High Court. The
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accused were sentenced to undergo imprisonment for twenty
years. The High Court holds that once the demand for ransom
stood established, whether it was actually paid or not, was
irrelevant. In para 31 of the said decision, the Apex Court
confirms this view in terms as under :
"31. ... Once the abduction has been established,
surely the abductors did not do so in such planned
organized manner with smooth flawlessness discussed, to
play hide and seek games or only to scare the victims out
of a business dispute or for any other reason to force
them to desist from a particular course of action. An act
of abduction in the present manner is the result of
meticulous planning of the logistics with separate roles
assigned to the individual players. The demand for
ransom, therefore, clearly stands established. That it
was actually paid or not is irrelevant."
The Apex Court thereafter considers the decision in
Malleshi's case, cited supra, and holds in para 35 that insofar as
kidnapping is concerned, there is no serious dispute about the
same. It holds that the demand for ransom has been duly
proved by the prosecution.
16. The provision of Section 364-A of the Indian Penal
Code, which is required to be considered, is reproduced below :
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"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 causes hurt or death to
such person in order to compel the Government or any
foreign State or international inter-governmental
organisation or any other person to do or abstain from
doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be
liable to fine."
17. The provision of Section 364-A of the Indian Penal
Code deals with the cases of kidnapping and abduction both. It
also deals with the person kept in detention after such
kidnapping or abduction. Thus, the kidnapping or abduction
or detention after such kidnapping or abduction for ransom,
has to be established. The provision further contemplates -
(a) direct threat to cause death or hurt to such person, or
(b) by conduct giving rise to a reasonable apprehension that
such person may be put to death or hurt, or (c) actually causes
hurt or death to such person. Therefore, merely because a
person is held in captivity would not be enough to record the
conviction under Section 364-A of the Indian Penal Code,
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unless one or more of these three things or the acts is/are
established with an intention to compel the victim or any other
person to do any act or to pay ransom.
18. Inviting our attention to the provision of
Section 364-A of the Indian Penal Code, Shri Bhandarkar has
urged that - (a) there is no evidence that the alleged demand
was actually conveyed to "any other person", in the present
case to the father of PW 4 Samyak, and (b) the expression "to
pay ransom" in the said provision refers to actual payment of
ransom before release or redeeming a captive or victim.
19. Ms Trupti Udeshi, the learned Additional Public
Prosecutor, inviting our attention to the medical report,
submits that actually the injuries were caused to the victims
and the evidence on record also established the direct threat of
causing hurt to the victims if the demand for ransom is not
fulfilled. She submits that actual demand for ransom by
keeping the victims in captivity is established. She invited our
attention to the allegation in the complaint at Exhibit 28 to the
effect that the accused obtained thumb impressions and
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signatures of the victims on different blank papers under
coercion or threat of injury before releasing them from
captivity.
20. In this case, we are concerned only with the act of
compelling the victims or any other person "to do any act" or
"to pay ransom". In view of the decision of the Apex Court in
Malleshi's case, cited supra, the act of compelling the victims to
do something or demand for payment of ransom would be
governed by the provision of Section 364-A of the Indian Penal
Code and it is not necessary to establish that such demand was
conveyed to any person other than the victims. Hence, in the
facts and circumstances of the present case, even if we accept
the contention that actual demand to pay ransom was not
conveyed to PW 6, the father of the victim, it would be enough
to establish that the victims were compelled to do something or
there was a demand made to them to pay ransom for their
release from captivity. We, therefore, reject the contention of
Shri Bhandarkar that the provision is not attracted because the
demand for ransom was not conveyed to "any person other
than victim".
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21. In our view, the question as to whether the evidence of
actual payment of ransom is necessary before redeeming or
release of the victim or captive, is concluded by the decision of
the Apex Court in Birbal Choudhary's case (supra). In the said
decision, there was no evidence of actual payment of ransom
before release of the victim or captive. The twelve persons
named as accused kidnapped and kept the victims in their
custody as well as tortured the victims to pay the ransom in
furtherance of their common intention. Out of four victims,
the driver was released on the next day, whereas two other
abductees were kept in confinement for a period of 52 days
and were subsequently released. The Court held on the basis
of the evidence on record that the demand for ransom was
established and the fact as to whether it was actually paid or
not, is irrelevant. We, therefore, reject the contention of
Shri Bhandarkar that actual payment before release or deeming
a captive or victim has to be established.
22. In Malleshi's case, the Apex Court has held that the
essence is the intention of making such demand and was it for
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ransom. The offence of kidnapping for ransom, if proved,
invites the punishment of death or imprisonment for life along
with the fine. No punishment lesser than this can be imposed.
The seriousness with which the Legislature has treated this
offence can be judged from the punishment prescribed for it
and, therefore, such a rigor is required to be kept in mind while
appreciating the evidence on record to decide the intention of
the accused.
23. The complainant-victims and the accused persons are
essentially the students knowing each other. The evidence
brought on record shows the case of the defence that the
victims had taken some amount from the accused for the
business of sale of charas and ganja, in which they were
allegedly involved. The accused wanted this amount back from
the victims, who were kept in captivity in the house of the
accused where the other family members were staying. In fact,
the sister of the accused repeatedly requested the accused to
release the victims. Thus, the accused and victims were not
unknown to each other at the time of incident and the place of
captivity was neither unknown nor in isolation. It is not the
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case that the victims could manage to run away from the
captivity. The victims were ultimately released from captivity
without getting the demand fulfilled. The intention was to
keep them in captivity for recovery of an amount which was
allegedly due and payable to the accused and not to demand
ransom for their release.
24. The oral evidence of the victims about actual causing
hurt or injuries to them by means of belt and wine bottle while
they were in captivity is not corroborated or supported by other
evidence. Though the belt and wine bottle were seized, the
same were not sent to PW-7 Dr. Tarun Kumar for a query
report, nor there is a report of the Chemical Analyzer in
respect of it. PW-7 Dr.Tarun Kumar, who examined the victims
on 7-5-2012, states that the injuries on the victims cannot be
determined actually, though he broadly opined that those were
28 to 48 hours' old. It is not the version of the victims that they
communicated PW-6 Aniruddha, the father of the victims,
about the actual injuries or threats caused to them to meet the
demand for ransom. The version of PW 6 that Manoj, the
security guard of the hostel, told him that Samyak is not in a
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position to talk because of injury, is not supported by
PW 10 Manoj. Thus, there is no evidence to establish causing
of hurt or injuries to the victims by the accused.
25. The evidence to corroborate the oral version of the
witnesses about the actual threats to cause injury to the victims
and the demand for ransom of Rs.1,50,000/- could have been
collected and produced by the prosecution. The prosecution
has failed to do this. The solitary statement of PW 6
Aniruddha, the father of Samyak, that Lalit conveyed him on
phone "to pay an amount of Rs.1,50,000/- otherwise he will
kill Samyak" cannot be relied upon to convict the accused. The
Sessions Court, therefore, criticizes the prosecution for not
seizing the mobile phones of the victims as well as the parents
of PW 4 Samyak and that of the accused persons. The Sessions
Court also criticizes the prosecution for not collecting the
call detail reports of mobile phones, but, on the contrary, holds
that the Investigating Officer seems to be highly inefficient or
that he did so deliberately to help the accused. There is no
evidence produced on record to establish the direct threat to
cause death or hurt to the victims while in captivity so as to
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compel them or any other person to pay ransom.
26. The blank papers containing the thumb impressions
and signatures obtained from the victims were not sent to the
Handwriting Expert for giving opinion as to whether the same
were of the victims. The Sessions Court holds that the
signatures on the blank papers were of the victims by having
recourse to the provisions of Section 73 of the Indian Evidence
Act by comparison. In our view, such comparison of signatures
and recording findings one way or the other, would be enough
to prove any fact on the preponderance of probabilities, but
would not furnish a proof beyond reasonable doubt.
27. In view of above, we have no hesitation to hold that
the prosecution has failed to establish that there was a direct
threat to cause death or hurt to the victims while in captivity,
or the conduct of the accused was such as to give rise to a
reasonable apprehension that they may put the victims to death
or hurt, or that the hurt was actually caused to the victims by
the accused. There is a failure to establish the intention of the
accused to demand ransom for release of the victims beyond
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reasonable doubt. We, therefore, cannot sustain such findings
recorded by the Sessions Court.
28. Coming to the offence of extortion described under
Section 383 of the Indian Penal Code, the punishment
prescribed is for a term, which may extend to three years or
with fine or with both. The provision being relevant, is
produced below along with the illustrations (a) and (b) below
it.
"383. Exortion.--Whoever intentionally puts any
person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so put
in fear to deliver to any person any property or valuable
security, or anything signed or sealed which may be
converted into a valuable security, commits "extortion".
Illustrations
(a) A threatens to publish a defamatory libel
concerning Z unless Z gives him money. He thus induces
Z to give him money. A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful
confinement, unless Z will sign and deliver to A a
promissory note binding Z to pay certain monies to A. Z
signs and delivers the note. A has committed extortion."
The offence of extortion is of a lesser nature of crime and
different than the offence of kidnapping for ransom which is of
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more serious in nature. To attract the offence of extortion, it is
not necessary to establish that the person, i.e. the victim, is in
captivity. One of the necessary ingredients to attract the
offence of extortion is the delivery of property or valuable
security to any person or to get anything signed or sealed,
which may be converted into a valuable security.
29. We have already pointed out earlier and we reiterate
that there is no evidence brought on record to establish
delivery of any property or valuable security to any person
under the fear or any injury to the victims, PWs 4 and 5.
No doubt, that the evidence brought on record indicates that
the accused got signed from the victims certain blank papers
and also obtained thumb impression under the threat of injury.
The expression "anything signed or sealed which may be
converted into a valuable security", employed under the
provision of Section 383 of the Indian Penal Code, would not
cover obtaining of signatures or thumb impression on different
blank papers from the victims under the fear of causing injury
for the reason that such papers cannot be converted into a
valuable security. At the most such papers can be utilized for
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acknowledging the debts, if any, or incorporating an
undertaking to pay the amount. In our view, there is no case
made out for an offence of extortion under Section 383 of the
Indian Penal Code.
30. Now coming to an offence of causing hurt to extort
property, as contemplated by Section 327 of the Indian Penal
Code, once we record the finding that there is no evidence on
record to hold that the accused caused hurt or injuries to the
victims and that there is no case made out for an offence of
extortion under Section 383 of the Indian Penal Code, the
accused cannot be convicted for an offence punishable under
Section 327 of the Indian Penal Code. The conviction to that
effect recorded by the Sessions Court cannot, therefore, be
sustained.
31. The charges framed against the accused include the
charge of kidnapping for ransom on the date of incident, the
victims were aged more than 16 years of age and, therefore, it
can only be an offence of abduction, as defined under
Section 362 of the Indian Penal Code. The provision of
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Section 364-A of the Indian Penal Code also include abduction
for ransom, and merely because the charge of abduction was
not framed against the accused, for which a punishment lesser
than one for the offence of kidnapping for ransom is
prescribed, it will not deter us from holding the accused guilty
of an offence of abduction and imposing the punishment under
Section 365 of the Indian Penal Code for kidnapping or
abducting with intent secretly and wrongfully to confine a
person, which may extend to seven years and also with a fine.
32. Section 362 of the Indian Penal Code describes an
offence of abduction, which is reproduced below :
"362. Abduction.-- Whoever by force compels, or by
any deceitful means induces, any person to go from any
place, is said to abduct that person."
The expression "force" employed in the aforesaid
provision will have to be understood in the light of its
definition under Section 349 of the Indian Penal Code, which is
reproduced below :
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"349. Force.-- A person is said to use force to another if
he causes motion, change of motion, or cessation of
motion that other, or if he causes to any substance such
motion, or change of motion, or cessation of motion as
brings that substance into contact with any part of that
other's body, or with anything which that other is
wearing or carrying, or with anything so situated that
such contact affects that other's sense of feeling:
Provided that the person causing the motion, or
change of motion, or cessation of motion, causes that
motion, change of motion, or cessation of motion in one
of the three ways hereinafter described:
First.-- By his own bodily power.
Secondly.-- By disposing any substance in such a
manner that the motion or change or cessation of
motion takes place without any further act on his part,
or on the part of any other person.
Thirdly.-- By inducing any animal to move, to
change its motion, or to cease to move."
33. In the light of the aforesaid definition, the question to
be considered in the present case is whether the accused
employed force over PW 4 Samyak, the victim, to compel him
to go from his hostel to the house of the accused. It is not the
case of the prosecution that the accused caused motion, change
of motion, or cessation of motion to the victim, as defined
under Section 349 of the Indian Penal Code. PW 4 states in his
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examination-in-chief as under :
"1] ... I am knowing Anand Thakur since 9th
standard. He was my friend. Anand introduced me
with accused Lalit who is present in the court, therefore,
I am knowing Lalit."
"2] The incident occurred on 05-09-2012. On that
day, at about 8.30 p.m. Anand Thakur and Lalit had
been to the Hostel on their motorcycle. They told me to
come out of the hostel for having some talk. I told them
that I am having some work and unable to come with
them. They forcibly took me to Juna Sakkardara near
Shitlamata Mandir in the slum. ..."
PW 4 states that he was knowing the accused, who
was introduced to him by Anand Thakur, and on the date of
incident, Anand Thakur and Lalit had been to hostel on their
motorcycle at 8.30 p.m. He states that the accused told him to
come out of the hostel for having some talk. Though PW 4
expressed his inability to go with them, it is his version that
they forcibly took him to Juna Sakkardara, near Shitla Mata
Mandir, near the slum.
34. PW 5 Vikrant, the another victim, who was the
room-mate of PW 4 Samyak, states in his oral evidence in
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paras 1 and 2 as under :
"1] ... I am knowing Samyak. He was my roommate
at the hostel. I was knowing Anand Thakur prior to one
month of the incident. I am knowing Lalit Thakre. He
is present in the court. Anand Thakur introduced me
with Lalit Thakre."
"2] On 05-09-2012 at about 8:30 p.m. accused and
Anand Thakur had been to the hostel on two separate
motorcycles. They took Samyak at the ground floor and
took him at Old Sakkardara. At about 9:30 p.m. I had
received telephone call from the mobile of Anand
Thakur. I am knowing my mobile number. It is
9175701346. He told me that if I wish that my friend
Samyak should remain alive, I should come near
Shitalamata Mandir, Sakkardara, Umred Road. I took
the Pleasure motorcycle of my friend Shubham and
reached to that place. Anand Thakur came there and
took me to the room of Lalit Thakre. ..."
35. From the oral evidence of PWs 4 and 5, it is apparent
that Anand Thakur and the accused both came to the hostel of
victims on two separate motorcycles. The oral evidence of
PW 4 is totally silent on the aspect of presence of PW 5 in the
hostel at 8.30 p.m. on 5-9-2012, when the accused came in the
hostel and asked PW 4 to come out of the hostel for having
some talk. The solitary version of PW 4 that the accused
forcibly took him to Juna Sakkardara, near Shitla
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Mata Mandir, in the slum, is not corroborated by any other
evidence. It seems that PW 4 was a willing party to sit on the
vehicle, i.e. two-wheeler, as he did not raise any alarm nor
jump from the vehicle if he was sensing deceitful means on the
part of the accused to take him from hostel to Shitla Mata
Mandir. There is no evidence to establish beyond reasonable
doubt that either the accused used the force or by deceitful
means induced PW 4 to come along with him at Shitla Mata
Mandir. The evidence on record is short of establishing the
offence of abduction, as defined under Section 362 and
punishable under Section 365 of the Indian Penal Code.
Therefore, the conviction on that count cannot be recorded.
36. Coming to the offence of wrongful confinement under
Section 340 of the Indian Penal Code, the oral evidence of the
victims and the father of PW 4 appears to be trustworthy and
established that the victims were wrongfully restrained or
prevented from proceeding in any direction and they were
confined from 8.30 p.m. to 12 ' O Clock in the night of
5-9-2012 in a separate room in the house of the accused. They
were restrained from proceeding beyond the circumscribing
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limits of the room in which they were confined. The evidence
on record has clearly established that it is only upon assurance
given by the father of PW 4 the victims were released from
captivity. In cross-examination, nothing to damage the version
of these witnesses is brought on record. The accused seems to
be habitual offender and the offence of wrongful confinement
is proved beyond reasonable doubt. The accused is, therefore,
convicted for such offence and he is required to be imposed
with the punishment of imprisonment for a term of one year
with a fine of Rs.1,000/-. If the fine imposed is not paid, the
accused will have to undergo simple imprisonment for a
further period of two months.
37. In the result, this appeal is partly allowed and the
following order is passed :
: O R D E R :
(1) The conviction and sentence of accused- Lalit Vilasrao Thakare, imposed by the learned Additional Sessions Judge (V), Nagpur by his judgment and order dated 5-4-2017 delivered in Sessions Case No.78 of 2013, for the offences punishable under Sections 327, ::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 02:45:11 ::: 31 apeal206.17.odt 364-A and 384 of the Indian Penal Code, is hereby quashed and set aside along with the fine imposed. The accused is acquitted of those offences. The fine, if paid, be refunded to the accused.
(2) The conviction of accused- Lalit Vilasrao Thakare for the offence of wrongful confinement under Section 340, punishable under Section 342 of the Indian Penal Code, is maintained and the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; in default thereof, the accused shall undergo simple imprisonment for one month. The set-off of the period undergone shall be provided.
(3) R & P be sent back.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar
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