Bombay High Court
Mohammad S/O. Sayeed Shibibi And Anr vs The State Of Maharashtra on 20 January, 2020
Author: M. G. Sewlikar
Bench: T.V. Nalawade, M. G. Sewlikar
1 3- Cri. Appln . No. 3466-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
3 CRIMINAL APPLICATION NO. 3466 OF 2019
IN
CRIMINAL APPEAL NO. 1042 OF 2019
Shahin Begum W/o Mohammad Shibibi
Age : 42 Years, Occu. Household,
R/o. Sahayognagar, Nanded. ...APPLICANT
VERSUS
The State of Maharashtra,
Through Police Station,
Bhagyanagar, Nanded ..RESPONDENT
CRIMINAL APPLICATION NO. 3824 OF 2019
IN
CRIMINAL APPEAL NO. 1042 OF 2019
Mohammad Sayeed Shibibi,
Age : 62 Years, Occ. Unemployed,
R/o. Sahayognagar, Nanded ..APPLICANT
VERSUS
The State of Maharashtra,
Through Police Station,
Bhagyanagar, Nanded. ...RESPONDENT
....
Advocate for the Applicant : Mr. R.S. Deshmukh
A.P.P for Respondent-State : Mr. R.D. Sanap
....
CORAM :T.V. NALAWADE AND
M. G. SEWLIKAR,JJ.
DATE : 20.01.2020.
PER COURT :-
Both the applications are fled for suspension of
substantive sentence given to the appellants-applicants in ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 ::: 2 3- Cri. Appln . No. 3466-2019.odt Sessions Case No. 107 of 2005 which was pending in the Court of learned Additional Sessions Judge, Nanded. Both the applicants are convicted for the ofences punishable under Sections 342, 363, 364-A, and 387 read with Section 34 of the Indian Penal Code. The maximum sentence of imprisonment for life is given for the ofences punishable under Sections 364- A read with Section 34 of the Indian Penal Code.
2. Both the sides are heard.
3. Record of evidence is available. Learned counsel for the appellants, mainly submitted that the appellants were on bail during the trial. He submitted that there is no material to make out the ofence punishable under Sections 364-A of the Indian Penal Code and so the substantive sentence can be suspended. He argued to point out some inconsistencies in the evidence of the witnesses also.
4. The evidence on record shows that daughter of the informant Dr. Maroti ( P.W. No.1) was studying in 9 th standard in the year 2005. On 25.04.2004, ,when she was proceeding towards the School, she alighted from the Bus at 7.00 a.m and then she and Prashant (P.W. No.3) boarded one Auto for going to the School. After crossing some distance, the Auto driver ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 ::: 3 3- Cri. Appln . No. 3466-2019.odt stopped the Auto and two persons boarded the Auto. One of the two persons was accused No.1, the applicant from proceeding No. 1042 of 2019. Applicant from other proceeding is the wife of this applicant. When Auto came near Railway Division Ofce, Nanded, present convicted accused No.1 took out the daughter of the informant forcibly and they took her towards the motor cycle. Prashant got afraid of this incident and he ran away and as it was early morning time, nobody paid attention to this incident and then the girl was taken towards Hyderabad. She was kept there in one room which was situated near Charminar of Hyderabad. Accused No.6, the wife of the accused N.1 was there and the girl was detained there. From there accused No.1 had conversation with informant (P.W. No.1) on phone and he allowed the daughter of the informant to talk with her father to show that she was still alive. Then demand of money, ransom was made by accused No.1 which was of 15,00,000/-. Dr. Maroti somehow gathered courage and he approached police. Police asked him to have some negotiations to see that the amount is brought down by the accused. After negotiations which took place subsequently, the demand was brought down to Rs. 4,50,000/-. Accused No.1 asked to see that the amount was delivered in the Hyderabad and warning was given not to inform about the ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 ::: 4 3- Cri. Appln . No. 3466-2019.odt incident to police. Money was marked and as per the directions of accused No.1, the money was handed over to him on road. Due to insistence of the accused No.1, the money was handed over frst and then within few minutes the girl was dropped there, by the accused persons. After getting the custody of the daughter of the informant, who had kept watch, the police followed the accused No.1 and he came to be arrested and the money came to be recovered from him. Other accused were traced and they also came to be arrested. In view of the aforesaid allegations, the case was fled for aforesaid ofences. Charge was also framed and accused Nos. 1 and 6 are convicted and sentenced for aforesaid ofences.
5. This Court has gone through evidence of Maroti (P.W. No.1), the evidence of the girl (P.W. No.5) the evidence of Prashant the boy and the evidence of even police ofcers who had taken action to catch the accused raid handed. All of them stuck to their versions. There is circumstantial check in the form of evidence of the witnesses who arrested accused No.1 and from accused No.1 the cash amount was recovered. The trial Court has believed all these witnesses and at this stage so called discrepancies cannot be looked into for considering the suspension of substantive sentence. ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 :::
5 3- Cri. Appln . No. 3466-2019.odt
6. The learned counsel for the appellant submitted that in view of the wording of Section 364-A of the Indian Penal Code unless there is evidence to show that threats were given of causing death or hurt, the provision of section 364-A cannot be used. He submitted that when the wife of accused No.1 was not present in Nanded from where the girl was kidnapped, she cannot be convicted for the ofence punishable under Section 364-A of the Indian Penal Code. This Court holds that both the submissions have no force. Wording of Section 364-A of the Indian Penal Code shows that even if there is no direct threat of death or hurt, if by conduct the accused has given rise to reasonable apprehension that such persons may be put to death or hurt then also the provision is attracted. The evidence of the girl and father shows that there was the threat to do some thing to the girl, if the demand was not met with. There was also warning not to contact to police. Thus, the aforesaid material if considered for present purpose is sufcient to make out the ofence punishable under Section 364-A of the Indian Penal Code. This section also contains the circumstance in which the person kidnapped is detained by the accused and for that detention also Section 364-A of the Indian Penal Code can be used, if such detention was for the purpose of getting ransom. Thus, apparently there is no error ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 ::: 6 3- Cri. Appln . No. 3466-2019.odt committed in convicting the accused No.6 also.
7. The learned counsel for the appellants placed reliance on the observations made by this Court in case reported as Lalit Vilasrao Thakare Vs. The State of Maharashtra (2018 All M.R. (Cri.) 2355. He also drew the attention of this Court to to paragraph No.,54 of the case reported as Suman Sood @ Kamal Jeet Kaur Vs. The State of Rajasthan (2007) 5 Supreme Court cases 634). This Court has carefully gone through the observations made by Hon'ble Apex Court and this Court, in aforesaid cases. Relevant material is already quoted. The Apex Court or this Court in previously decided matters have not held that there should be positive threats in words to cause death or hurt and only after that the ofence punishable under Section 364-A of the Indian Penal Code can be made out.
8. The incidents of kidnapping for ransom are increasing day by day. In many cases when the demands are not met with, the persons kidnapped are fnished. Very rarely the persons who had kidnapped the persons are caught raid handed and this is one such case. Such incidents need to be dealt with sternly. The possibility of continuation of this criminal activity after getting out from the jail cannot be ruled ::: Uploaded on - 23/01/2020 ::: Downloaded on - 10/06/2020 13:57:54 ::: 7 3- Cri. Appln . No. 3466-2019.odt out in such a case. Absconding of such persons after getting out of jail as there is conviction now cannot be ruled out. Due to all these circumstances, this Court holds that this is not ft case where substantive sentence can be suspended. In the result, both the applications stand rejected.
(M.G.SEWLIKAR, J.) (T.V. NALAWADE, J.)
YSK/
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