Bombay High Court
Bhagwan Gajanan Phandat (In Jail) vs State Of Maharashtra, Through P.S.O. ... on 31 January, 2019
Bench: S. B. Shukre, S. M. Modak
apeals40&107.16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 40 of 2016
With
Criminal Appeal No. 107 of 2016
A. Criminal Appeal No. 40 of 2016 :
Bhagwan Gajanan Phandat,
aged about 26 years,
occupation - service,
resident of Juna Fail, near
Jagdamba Devi Mandir,
Shivaji Nagar, Khamgaon,
Tq. Khamgaon,
Dist. Buldana. ..... Appellant
In Jail
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station [City],
Khamgaon, Dist. Buldana. .... Respondent
*****
Mr. S. D. Chande, Adv., for the Appellant.
Mr. S. M. Ukey, Addl. Public Prosecutor for the respondent.
*****
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B. Criminal Appeal No. 107 of 2016 :
Madhao Ravindra Kapade,
aged about 23 years,
occupation - Labour,
resident of Deshmukh Plots,
near Small Ram Mandir,
Khamgaon, Tq. Khamgaon,
Dist. Buldana. ..... Appellant
In jail
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station [City],
Khamgaon, Dist. Buldana. .... Respondent
*****
Mr. S. P. Bhandarkar, Adv., for Appellant.
Mr. S. M. Ukey, Addl. Public Prosecutor for the respondent.
*****
CORAM : S. B. SHUKRE AND
S. M. MODAK, JJ.
Date of Reserve : 27th November, 2018
Date of Pronouncement : 31st January, 2019
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J U D G M E N T [Per S. M. Modak, J.]:
01. We are dealing with two appeals filed by two kidnappers convicted by learned Additional Sessions Judge, Khamgaon, in Sessions Trial No. 99 of 2011. They have kidnapped Kalpesh Rajesh Rajore being the minor son of first informant, Rajesh Rajore, on 20th September, 2011 at Khamgaon, Dist. Buldana. There were ransom telephonic calls to the first informant demanding initially Rs.5 crores for releasing the minor son, Kalpesh. After negotiations, it was reduced to Rs.3 crores. While returning from a music class, these two appellants forced the kidnapped boy, Kalpesh, to sit on a motorbike. When the appellants realized that they are not going to succeed, they threw him into a well situated near Kanchan Hotel on Khamgaon-Shegaon Road, Khamgaon. The neighbours took out the boy on hearing his screams.
02. Immediately after receiving the ransom calls, the first informant approached the Khamgaon Police Station and police registered the offence. Through Shri Munna Purwar, it was told to first informant that the boy was found in the well. Police recorded his statement.
03. The police have arrested the convicted appellants and they ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:30 ::: apeals40&107.16 4 were charge-sheeted and on completion of trial, they were convicted of the offences punishable under Sections 363, 364-A, 387 and 307 read with Section 34 of Indian Penal Code. They were imposed life imprisonment and a fine and other imprisonments. Now they have come before us.
04. We have heard learned Adv., Shri S.D. Chande and learned Adv. Shri S.P. Bhandarkar for the appellants and learned Additional Public Prosecutor, Shri Uke, argued for the State.
05. The prosecution examined twenty-two witnesses. On going through the record, we find that the police have tried to collect every piece of evidence including recording statements of the persons instrumental in taking out the boy Kalpesh, from the well. It includes recording of statement of the son of owner of the SIM Card which was used by the appellants for ransom calls. It includes seizure of two mobile handsets [out of them, handset of Nokia Company was used]. It includes collecting Call Details Report. It also includes recovery of adhesive tape. It further includes Test Identification Parade of both appellants.
06. On going through the record with the assistance of both the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 5 sides, one view, which came to our mind, is that the trial Court is right in convicting both the appellants. At the same time, another view came to our mind and i.e., whether it is probable that a minor boy, aged about eight years could survive when thrown into the well. Both the learned Advs., for the appellants have pointed out to us various lacunaes in the prosecution evidence.
07. It includes non-examination of mother of the kidnapped boy, of one Munna Purwar, of Yash Gandhi, the friend of the kidnapped boy. It also includes absence of major injuries on the person of the kidnapped boy. There is also challenge to the occupation of Rajesh PW- 1 being father of the minor Kalpesh. He being the Editor of local newspaper and having closed contacts with the police, there is a suggestion of concocting of the case.
08. However, after going through the record very minutely, we do not find any substance in those objections. We feel that the trial Court was perfectly right in coming to the conclusion about kidnapping of minor Kalpesh and his recovery from a well by the neighbours. We also feel that the trial Court was fully justified in believing the reason of kidnap and that is for extracting the money from the first informant Rajesh. We also feel that the trial Court was perfectly right in holding ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 6 both the appellants responsible for the act of kidnapping for ransom and for other connected acts. The objections pointed out on behalf of the appellants relating to non-examination of witnesses etc. are not so material, as to disbelieve the prosecution case thereby upsetting the conviction. We intend to give reasons for our view hereinafter.
09. There are two aspects, one is the incident and second is the involvement of the appellants. The incident can also be bifurcated into two parts. One is the act of kidnapping and the second is recovery of Kalpesh from the well.
EVIDENCE ON THE POINT OF ACT OF KIDNAPPING
10. The act of kidnapping took place after the Kalpesh completed his regular music class and when he was returning home. It took place on 20th of September, 2011 at about 06:00 p.m. At the beginning itself, we have said that the investigating agency has taken utmost pains in collecting the materials. We also feel that during trial, the prosecutor in-charge was cautious in adducing the evidence. We say so, because the prosecution has even examined the music teacher Rajaram Honaji Lonagre [PW-17].
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11. Kidnapped boy Kalpesh visited his house on 20/09/2011 along with other students and they left at about 07:00 p.m. Rajesh, father of first informant, was not in the house at that time. He had gone to Nandura. While on return journey to Khamgaon, he received phone call of his wife about non-return of Kalpesh from music class. The mother of Kalpesh did visit the house of music teacher Rajaram [PW- 17]. It was a natural conduct. We agree that the mother is not examined. We could have given a benefit to the appellants if the evidence of Rajesh and Kalpesh could not have been convincing.
12. It is also the natural conduct of PW-17 Rajaram to visit the house of his pupil Kalpesh at about 8:00 to 8:30 p.m. We do not find that his evidence is seriously challenged.
13. We do agree that Yash Gandhi, friend of Kalpesh, was not examined. He did attend the music class and then left the class along with Kalpesh. But, when Kalpesh gave evidence, he never said that his friend Yash Gandhi accompanied him on his way back and present at the time of actual act of kidnapping. The trial Court has rightly rejected the objection about non-examination of Yash Gandhi. The appellants could have been given a certain benefit, only if Kalpesh had deposed about accompaniment of Yash Gandhi.
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14. When we have perused the evidence of kidnapped boy Kalpesh, we find that he boldly and in clear terms explained all the events and particulars. The appellants have objected for the reason of tutoring. Kalpesh had met Advocate Gawande and visited the house of Advocate Gorle prior to evidence. Visiting the house was on account of "Bhandara" ["Pooja"]. Even, he had visited the office of A.P.P. He has denied the suggestion of receiving instructions how to give evidence in the Court. We do not feel that the evidence of Rajesh is the outcome of tutoring. We feel that it is the result of all the shock which he received during his childhood days due to kidnapping incident and that is why the incident must have been imbibed on his mind.
15. The evidence of Rajesh is also important from the point of view of identifying both the appellants in the jail. While forcing him to sit on a motorcycle, he sat in between two kidnappers on motorcycle. One of the kidnappers went for popping up the mobile balance. In the meantime, the other kidnapper gave him a mineral water to satisfy his thirst. The first ransom call was given when they were near Anjuman High School. The second call was given near the well. There is an argument that the ingredients of Section 364-A of IPC are missing. The learned Advocate Shri Bhandarkar then laid emphasis on that and argued that there was no parting away of the money. He also relied ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 9 upon the following judgments.
[a] Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan [ (2007) 5 SCC 634], and [b] Lalit Vilasrao Thakare Vs. State of Mah. [Criminal Appeal No. 206 of 2017; decided on 19th January, 2018; Coram : R. K. Deshpande & M.G. Giratkar, JJ.].
16. Learned Advocate Shri Chande also laid emphasis on this aspect. However, we have gone through his evidence minutely. We feel that he did depose about demand of money by the kidnappers from his father through mobile phone. He did depose about the consequences stated by the kidnappers to his father, if the demand is not fulfilled. We find the corroboration in the evidence of Kalpesh and his father Rajesh on the point of particulars of the demand of money and the consequences. Firstly, there was a demand of Rs.5.00 crores for release of the son and during the second call, it was reduced to Rs.3.00 crores giving the discount of Rs.2.00 crores. It is but natural for Kalpesh to be unaware about what his father said to kidnappers on phone. Both have stated about the consequences of death of Kalpesh, if the demand is not fulfilled.
17. We also find corroboration in between what Kalpesh has said to his father Rajesh, when the kidnappers allowed Kalpesh to speak to ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 10 his father. Probably the kidnappers want to hype the tension of Rajesh so as to succumb to their demand. Kalpesh said that there were eight persons and having a big vehicle.
18. There is an argument that the incident is concocted and the appellants tried to take the assistance of movements on the road on which the incident took place and non-examination of any independent witnesses. For appreciating this objection, we have gone through the evidence on the point of spot of incident.
EVIDENCE ON THE POINT OF SPOT
19. The prosecution did examine panch-witness PW-6 Nilesh Sureshrao Deshmukh apart from the Investigating Officer, Deputy Superintendent of Police Uttam Jadhav. They have done the panchnama of the spot from where the kidnappers have lifted Kalpesh and of the place where the kidnappers threw Kalpesh. We find that this panch-witness has stated about how they have visited both the places and the transit road. Merely, because the panch-witness had visited the house of the first informant after the kidnapping incident, does it mean to say that he is a biased witness. The answer is no. Because he had given all particulars and his evidence is not shattered through cross-examination.
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20. We have got two maps of the place of kidnapping and one map about the well in which Kalpesh was thrown. The place of kidnapping is situated on the road which goes to Khamgaon city towards south and to Nandura city towards north. It is situated on that corner of Nandura-Khamgaon road, which takes a turn and goes to Khati Layout. There is a Gulmohar tree. It is true that there are shops and houses in and around that place. we have got rough sketch drawn by the police on crimes detail form at Exh.33 and sketch drawn by the Circle Inspector at Exh. 114. It is also true that no independent witnesses witnessing the kidnapping act were examined. Police did not find any objectionable thing on that road.
21. It is but certain that there will be persons present in and around the spot and there must be vehicular vements. But, for two reasons, we are not agreeing to that submission. One is, the tendency amongst the members of the society not to come forward to give statement and evidence. Secondly, on reading the cross-examination of Kalpesh and Rajesh, we do not find any convincing reason suggested on behalf of the appellants so as to raise a doubt about genuineness of the incident.
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22. The first informant Rajesh received first call at 07:52 p.m. in his house. Being frightened, he gave a call to Additional Superintendent of Police, Shri Sandeep Patil. Then, he called his friend Santosh Didwani [PW-8] and Devesh Bhagat. When his friend Santosh Didwani came to the house of first informant Rajesh, the second call was heard by first informant Rajesh and this Santosh Didwani. Their evidence corroborates with each other. The second call was at about 08:12 p.m.
23. On behalf of the appellants, certain omissions and improvements were pointed out to us in the evidence of Kalpesh and Rajesh. In order to verify whether they go to the root of the matter, we have perused them with the assistance of both sides. The law on the point of omissions and improvements is well settled. Until and unless they deal with important particulars, they are not to be considered. It is a human phenomenon to tell something in different way at different points.
24. This matter relates to getting ransom calls. The first informant Rajesh first informed the Additional Superintendent of Police Shri Patil. Considering the mental condition of Rajesh, it is not expected from him to tell all the details to Shri Patil on phone. There ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 13 are certain improvements recorded in para 17 of the evidence of P.W. No. 1 - Rajesh. These improvements pertain to minor particulars. This is also true insofar as evidence of P.W. 2 - Kalpesh is concerned. It is appearing in para 20 of his evidence.
25. If we summarize the conversation in relation to kidnappers on one hand and the first informant - Rajesh on the other hand, the following particulars emerge --
A. First call was received on 20.09.2011 at about 7.52 PM.
B. Information about kidnapping by them was given, demand of Rs. Five crore was made and offer to take back the son was given.
C. Second call was received at about 8.12 PM. The demand for Rs. Five crore was reiterated. Discount for Rs. Two crore was offered and demand was restricted to Rs. Three crore.
D. In case of refusal to pay the money, consequence of death of the son was narrated.
E. Son - Kalpesh talked with his father - Rajesh. Son ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 14 requested father to comply with the demand.
F. Son told father that there were seven to eight persons in a big vehicle and not to bring police.
This was told by the son on the instructions of the kidnappers.
26. We find consistency in this conversion. So we do not find that the improvements pointed out from the evidence of son relate to the material particulars. The improvements in the evidence of both these witnesses do not touch the foundation of the incident. We discard them. This can be true also for witness No. 6 - Santosh Gidwani.
EVIDENCE ON THE POINT OF WELL
27. Much is said about the location of this well and possible injuries to Kalpesh and possibility of taking him out of the well. We find the evidence of the Panch Witness P.W. 6 - Nilesh Deshmukh trustworthy. Just because he had visited the informant's house, does not make his evidence doubtful. The reason is, he had stated all the particulars right from the place of kidnapping, route and finally the place where Kalpesh was thrown. There is a rough sketch of the well attached to crime details form at Exh. 33. With the help of rough ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 15 sketch, when we have read the evidence of Panch witness, we find that the well is situated at Khamgaon-Shegaon road. It is a well of Public Works Department. The well is closed by iron grill and there is a lid to that well. There are PVC pipes in that well. The well is not filled with water up to ground surface. It is 27 feet filled with water and above 13 feet, it is empty. Admittedly, the police have not seized anything from that well. The spot panchnama is at Exh. 33.
28. So far as surrounding of the well is concerned, it has got two aspects. One is no one has seen throwing of Kalpesh in the well. At the same time, another dimension is, the witnesses have heard screaming of Kalpesh at about 9.30 p.m. from that well and materially there was darkness in and around the well and Kalpesh was thrown in the well after 7 p.m. (exact time has not come on record). This evidence is sufficient to hold about the proof of well being the place where Kalpesh was thrown. There is a grill to the well so that no one can be thrown into it directly or casually and special effort like taking the person on the grill and then sliding him down vertically after opening the lid of the grill is required. There are some obstructions like iron grill covering the top of the well and a small lid in it and, therefore, Kalpesh has not received major injuries.
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apeals40&107.16 16 INJURIES TO KALPESH
29. We have got the evidence of Medical Officer - Dr. Rajanand Vaidhya - PW-18. He was attached to General Hospital, Khamgaon. He has examined Kalpesh at 11.25 PM on 20.09.2011. There were only two abrasions noticed on his body. One is near nostril and another is near left wrist palm aspect. He has not mentioned the history. They are possible due to hard object.
30. This story is corroborated from the evidence of Kalpesh and Rajesh. From Kanchan Hotel, the first informant - Rajesh and his associates have brought Kalpesh to his house. On being informed, the police visited them and took him to hospital As said in the beginning, on behalf of the appellants, recovery of Kalpesh from the well was considered as a tell-tale story. At one point of time, we also felt likewise but when we have considered the evidence about location of the well, we were convinced that it was possible for Kalpesh to survive by catching hold of PVC pipes passing through well-waters.
31. It is important that after the second call, when the kidnappers realized that there was no point in keeping Kalpesh with them, they threw, rather dropped, him in the well. There is also ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 17 emphasis on behalf of the appellants about tisco tape and cello tape applied to mouth and to the hands. When Kalpesh was taken out of the well, there was a tape hanging around his neck. The tape to his hands fell in the well whereas the tape wrapped around his mouth having lost its stickiness due to water went loose and fell in his neck like a garland. His chappals fell in the well. This is what Kalpesh has deposed. The tape around his neck was very much there when PW-18 - Dr. Vaidhya examined him but he said he had no recollection for that.
AGE OF VICTIM
32. About the factor of age, we do not find any dispute about the age of the victim at the time of incident. The incident took place on 28th September,2011. At the time of deposition, his age was nine years. There is a correspondence made by Investigating Officer, Shri Jadhav, with the school of the victim. His date of birth is shown as "03rd February, 2004". Kidnapping is of two types. One is kidnapping from the lawful guardianship and kidnapping outside India. Section 361 of Indian Penal Code defines kidnapping from the lawful guardianship. A male below sixteen years of age is taken away or enticed out of the keeping of lawful guardian, it is said to be an act of kidnapping. So, we conclude that the victim, Kalpesh, was below sixteen years of age. His father, Rajesh, is his lawful guardian.
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apeals40&107.16 18 OFFENCE UNDER SECTION 363, 364, 364A, 365 OF IPC
33. When the two kidnappers forced the victim, Kalpesh, to sit on the motorcycle and had taken him away near the well, it certainly amounts to the act of kidnapping. It is punishable under Section 363 of Indian Penal Code. As discussed above, there is sufficient evidence of kidnapping Kalpesh.
34. Section 363 of Indian Penal Code lays down punishment for general kidnapping, whereas Sections 363A, 364, 364A,365 to 369 lay down punishment for special kinds of kidnapping. In this case, apart from invocation of general Section 363, Sections 364, 364A and 365 of Indian Penal Code being species of kidnapping were also invoked. We would like to mention what is the differences in between all the sections. The purpose of kidnapping under Section 363 of IPC is immaterial. Whereas if the purpose is murdering the kidnapped person, it is punishable under Section 364 of IPC. Whereas if the purpose is for confining the kidnapped person, it is punishable under Section 365 of Indian Penal Code. The newly added Section 364A of IPC punishes the act of kidnapping if it is done for the purpose of demanding ransom. ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 :::
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35. Learned Trial Judge has acquitted the appellants for the offences punishable under Sections 364 and 365 of the Indian Penal Code. Learned Trial Judge found the evidence sufficient for convicting the appellants of the offences punishable under Sections 363 and 364A of Indian Penal Code. We will deal with the involvement of the appellants at a later stage. But, at this stage, we feel that the trial Court is right in concluding commission of offences under Section 363 and under Section 364-A of Indian Penal Code on one hand and negativing prosecution case for the offences punishable under Section 364 and Section 365 of Indian Penal Code.
BEARING OF FINDING OF ACQUITTAL UNDER SECTION 364, 365 ON FINDING OF CONVICTION UNDER SECTION 364A OF IPC
36. We would like to discuss is there any effect on the findings of the Trial Court when there is an acquittal for the offence punishable under Section 364, 365 of IPC on one hand and convicting for the offence punishable under Section 364A of IPC. As mentioned above the purposes of kidnapping for these sections are different. In a given case one of the purpose may be proved whereas other purpose may not be proved. In case before us, the purpose for kidnapping Kalpesh to confine him (Section 365 of IPC) was not proved. So also the purpose for ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 20 kidnapping him to commit his murder (Section 364 of IPC) is not proved. There is no appeal by the State Government thereby challenging the findings for acquittal for both the sections.
37. We find there is substantial difference in between purposes of kidnapping for offence punishable under Section 364 of IPC on one hand and Section 364A of IPC on the other hand. It is true that in order to pressurize the kidnapped person there may be a threat or apprehension to cause different consequences. It is contemplated under Section 364A of IPC. But certainly threat to cause death is not the purpose contemplated under Section 364A of IPC. So we do not think that the acquittal for the offence punishable under Section 364 & Section 365 of IPC will be having material bearing on the finding of conviction for the offence punishable under Section 364A of IPC. It has to be assessed independently.
CONCLUSION ABOUT SECTION 364A OF IPC
38. We agree with the trial Court that ingredients of offence under Section 364A of Indian Penal Code are proved. We have read over the judgments relied upon by the learned Adv. Shri Bhandarkar. But, we are afraid that the final conclusion drawn in those judgments will come ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 21 to the rescue of the appellants. Hon'ble Supreme Court in case of Suman Sood [supra] reiterated the legislative history for incorporation of Section 364A in Indian Penal Code. It was in the year 1993. Hon'ble Supreme Court acquitted the appellant, Suman Sood, of offence under Section 364A of Indian Penal Code. There was an occasion to interpret the meaning of the word "ransom" given in that Section. The word "ransom" can be used as a verb as well as noun [para 59 of that judgment]. Sum and substance is "it is a sum of money to be demanded or to be paid for releasing a captive, prisoner or detenue." For want of evidence connecting the appellant, Suman Sood, in the act of demanding ransom, she was acquitted [para 63 of that judgment].
39. Similarly, in case of Lalit Thakare [supra], Co-ordinate Bench of this Court acquitted the appellant and there was an argument to whom the demand for ransom should be made. Whether it is to be made to victim or other person. There should be demand and not necessary with victim. Even the argument about actual payment of money after demand was negatived [para 21 of that judgment]. There was acquittal of the offence under Section 364A, Indian Penal Code. Connection in between demanding ransom with release of the victim was not proved beyond reasonable doubt. There was no supporting evidence to prove ransom demand.
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40. Whereas in case before us, demand initially for Rs.5 crores and later on for Rs.3 crores was made in the presence of kidnapped boy, Kalpesh, and it was made with the first informant, Rajesh. We have already held about corroborative evidence of these two witnesses. So, kidnapping is proved as well as the purpose of kidnapping to demand ransom is proved. Admittedly, money was not parted away and it is also not required by law. So offence under Section 364A of Indian Penal Code is proved.
OFFENCE UNDER SECTION 307 OF IPC
41. There are two issues involved. One is whether Trial Court was right in concluding about proof of an offence punishable under Section 307 of IPC. Second is whether there is bearing of acquittal for the offence punishable under Section 364 of IPC on the findings of convicting the appellants for the offence punishable under Section 307 of IPC.
42. Offence under Section 307 of IPC can be said to be proved if death might have been caused and either there was a intention or knowledge on the part of the culprit. In case before us we do not find either intention or knowledge on the part of kidnappers at the beginning ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 23 when Kalpesh was forced to sit on motorcycle. But we can gather knowledge from the ultimate act of dropping Kalpesh in the well. We find that when the kidnappers felt that there plan is not going to be materialized, they have dropped him in a well closed with iron grill and having a lid. A boy of 7 years if dropped in the well at night time, certainly any prudent man will know the consequences. Such boy will not going to survive in a such circumstances. So knowledge can certainly be attributable to the kidnappers. There is one more reason. The kidnappers threatened first informant Rajesh to kill Kalpesh if there demand is not satisfied. The injuries to Rajesh also falls within the definition of hurt Offence under Section 307 of IPC is certainly proved. BEARING OF FINDING OF ACQUITTAL UNDER SECTION 364 ON FINDING OF CONVICTION UNDER SECTION 307 OF IPC
43. We do not think that the finding of acquittal for the offence punishable under Section 364 of IPC will be having any material bearing on finding of conviction under Section 307 of IPC. These issues are closely related to each other. No doubt the purpose behind the kidnapping act under Section 364 of IPC is to commit murder or endanger the kidnapped person. We feel that in this case there was no evidence at the time when Kalpesh was forced to sit on motorcycle about the purpose to commit his murder. We find no discussion by the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 24 Trial Court prior to arriving at that conclusion except reference in the final operative order. As said above, there is no appeal on behalf of the State against that finding. We have already concluded on the basis of evidence that offence under Section 307 of IPC is proved. So on the basis of facts and evidence we conclude that finding of acquittal for the offence punishable under Section 364 of IPC will be having no bearing in this case on finding of conviction for the offence punishable under Section 307 of IPC. We do not want to lay down any proposition of law in that behalf as the issue is not before us.
EXTORTION
44. Extortion is different from theft. In an offence of extortion, one compels the victim to part away with money or to do something which he would not do. It is always done under the fear of injury. Section 387 is a species of extortion. Delivery of property is not required for offence under Section 387 of Indian Penal Code. Section does not say that the threatened person has delivered any property in pursuance to the threat. So also, there may be a demand for money with one person and threat to cause injury to another person. In this case, demand was made with first informant and there was a threat to kill his son. Ingredients of Section 387 of Indian Penal Code are fulfilled. Trial Court has rightly held accordingly.
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apeals40&107.16 25 INVOLVEMENT OF THE APPELLANTS
45. We have gone through the evidence. We find that there is voluminous evidence to show their involvement. There is evidence in the form of identification by sole eye-witness, Kalpesh. The appellant Bhagwan was working in the office of his father, whereas appellant Madhav was working in the Xerox Shop situated opposite the office of his father. There is a clinching evidence in the form of recovery of Airtel SIM Card at the instance of appellant, Madhav Kupade. He used it in the Nokia Company mobile handset and the handset is seized from him. There is also evidence about seizure of a tape, knife and Sutali at the instance of appellant Madhav Kapade. There is also evidence on the point of seizure of Casio Charger and adapter at the instance of the appellant, Bhagwan. The Casio and charger were also identified by the victim, Kalpesh. So, the direct evidence of Kalpesh is corroborated by above evidence and it succinctly proves involvement of both the appellants.
TEST IDENTIFICATION PARADE
46. The parade was held at Buldana Prison in the presence of Naib-Tahsildar, Baburao Deshmukh [PW 13]. There is a procedure laid ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 26 down for conducting the parade. We find that the witness has followed the procedure to a larger extent.
47. We have got evidence in the form of test identification parade and in the form of identification before the Court. Conducting the parade is not mandatory. It has got limited meaning. It assists the investigating agency in finalizing the line of investigation. It may happen that culprits though have been arrested, may not be real culprits. It can be confirmed by holding the parade. It is also a settled law that test identification parade is not a substantial evidence. The evidence given by the witnesses before the Court is a substantial evidence.
48. In case before us we have got the evidence of conducting parade as well as oral evidence of three witnesses viz. PW-2 Kalpesh, PW-10 Vipin Yerne (the person, who sold sticky tape to appellant Madhav Kapade) and of PW-11 Nitin Jadhav (who recharged the mobile of appellant Bhagwant Fandate). As said in the beginning, the investigating agency as well as the prosecuting agency are vigilant enough to collect the material and to lay it before the Court in the form of evidence.
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49. There were in all six persons called to attend the parade. Out of them, three persons viz. Indersingh Harisingh, Manoj Dharne and Vishnu Lanjudkar have not identified the appellants in the parade. They were not examined before the Court and rightly so. So, we have got the oral evidence of Naib Tahsildar, PW-13 Baburao Deshmukh and panch- witness PW-12 Raju Katikar.
50. Broadly, these two witnesses have deposed more or less on similar lines. Naib Tahsildar has deposed about which witness has identified the appellants, whereas panch-witness Katikar, who has not deposed the name of the appellants and identified by which witness, he has deposed about the position of the appellant by describing the serial number from the persons standing in the row The following facts emerges.
Sr. No. Witness Identified by
(a) Mahadev Kapade Kalpesh & Vipin Yelne
(b) Bhagwan Fandat Kalpesh & Nitin Jadhav
51. Witness Vipin sold sticky tape to appellant Madhav on 19 th September, 2011. The parade was conducted on 15 th October, 2011. He has also identified appellant Madhav before the Court. There is ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 28 reason for this witness to identify appellant Madhav. Earlier to 19 th September, 2011, appellant Madhav had visited his shop on 2/3 occasions. So we do not find any wrong identity by this witness. We find his evidence reliable.
52. For a witness Nitin Jadhav, it is the appellant Bhagwan, who recharged Mobile coupon in his shop on 20/09/2011. We do not find any reason for him to give false evidence at the instance of anyone.
53. The evidence of Kalpesh on the point of identification is seriously challenged on behalf of the prosecution. There is identification of both the appellants in the parade as well as before the Court. Certain particulars on the point of identification appearing in his police statement are tried to be used by the appellants so as to contradict his evidence before the Court. Before the police he has stated that we do not identify the two kidnappers. While giving evidence before the Court, he has disowned that statement. It is marked as Exh. 121 through Investigating Officer. According to him, one kidnapper was seen by him in the office of his father. Another kidnapper was never seen earlier by him. We do not think that appellants will be benefited by these two answers. We do not think that appellants will be benefited by these two answers. ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 :::
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54. The appellants want to contradict the answers during cross- examination on one hand and the facts stated before the police on the other hand. There is a time gap in between giving a police statement and giving of evidence. It is but natural for a boy aged about 7 years to be under shock while giving police statement. Seeing one kidnapper in the office of his father was not stated during chief-examination. During chief-examination, first informant Rajesh stated that he got an information from the son that one office boy is the kidnapper, whereas during cross-examination, he had reiterated this fact. No weightage can be given to his evidence on the point of identification.
55. We do not find any lacuna in the evidence of these three witnesses on the point of identification. We also do not find any serious lacuna in the evidence of Naib Tahsildar and panch-witness. There are guidelines given in the criminal manual about the manner of holding the parade. We do not find any serious lapse on the part of the Naib Tahsildar in conducting the parade. It can certainly be said that by and large, he has followed the procedure.
ARREST OF THE APPELLANTS
56. Both these appellants were arrested on 21 st September, ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 30 2011. Their personal search were taken and two mobiles were seized from them. These details are as follows :
Sr. No. Appellant Articles Seized
a) Mahadev Kapade Nokia Handset & Airtel SIM Card
b) Bhagwan Fandat Samsung Mobile & Idea SIM Card
57. This seizure is important piece of evidence, because
ultimately prosecution claims that appellant Bhagwan used the SIM Card of Idea Company (belonging to Vikram Dawange) in Samsung Handset. There is no incriminating circumstance so far as seizure of Nokia Handset and Airtel SIM Card is concerned. We have got the evidence of panch-witness PW-15 Nitin Didwani on this point. He has fully supported the prosecution. We do not find any answer as given by him so as to disbelieve him He is also supported by the evidence of the Investigating Officer Shri Chauhan.
EVIDENCE OF NODAL OFFICERS
58. On the point of ransom calls, apart from the evidence on the point of seizure of mobile handsets and SIM Cards, the prosecution is relying upon the digital evidence. It was adduced through two Nodal ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 31 Officers. One is Shri Dattaram Angre [PW 16], Idea Cellular Company and another is PW 20 - Ashishkumar Kumar from BSNL Company. In a mobile communication, two things are important. One is a mobile handset and second is SIM Card. Normally, they belong to different Companies. The data of incoming and outgoing calls are stored in the server of service provider. There is a connectivity in between the SIM card and the server through tower location.
59. One person may remove the SIM Card from from a mobile handset after particular purpose is over and insert new SIM card in it. This happens more when the caller is using a SIM card for illegal activities. However, he does not know that along with the details of calls, duration, tower location, the IMEI number of a mobile handset are also saved in the server of the service provider. This technological development has helped the investigating agencies to find out the culprit. This has also happened in this case.
60. Through such evidence, the police could connect the appellant, Madhav Kapade as the person who is someway connected with the lost SIM card belonging to one Shri Vikram Dawange. The police have seized two mobile handsets and two SIM cards. One each from the appellant, Madhav Kapade, and the Appellant, Bhagwan Fandat.
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61. Out of that, Samsung Mobile Handset and Idea SIM Card seized from the appellant, Bhagwan are in no way concerned as instruments used for giving ransom calls. It is the Nokia mobile handset seized from the appellant, Madhav Kapade, which is proved to be incriminating. The Airtel SIM Card found in it appears to be non- incriminating (probably subsequently inserted). Though Idea Company SIM Card was found in Samsung handset with the appellant, Bhagwan, and though the Nodal Officer - Dattaram Angre from Idea Company was examined, he did not give evidence about use of SIM card found in Samsung mobile handset.
62. It is also true that during personal search of appellant, Madhav, Airtel SIM Card was found in Nokia mobile handset. It is also true that incriminating Idea Company SIM Card was not found when Nokia mobile handset was found with the appellant, Madhav. It will not always be possible. Because SIM card is a removable thing. One can easily remove and throw it. There is no evidence about the incriminating SIM Card being found in any condition from either of the appellants. But, on the basis of available evidence, we do feel that the evidence connects the appellant, Madhav. We can certainly draw an inference against appellant, Madhav, that he is found with Nokia handset which was used for giving ransom calls to first informant, ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 33 Rajesh Rajore. There is no evidence about seizure of mobile handset of first informant - Rajesh Rajore.
63. For a better understanding, the information about seizure of mobile handsets, SIM Cards and details of calling number and calling party are given in the following table:-
Name of Date of Mobile IMEI No. Mobile No. SIM
appellants seizure. handset. Company
Madhav 20-9-11 Nokia 352907023337240 9970920186 Airtel
Kapade
Bhagwan 20-1-11 Samsung 35230804387324/0 9881172914 Idea
Fandat 01
64. Dattaram Angre, Nodal Officer, is of Idea Company, whereas Ashishkumar Kumar is from BSNL Company. Mobile No. 9767628375 belongs to Idea Company and it is issued in the name of Vikram Dawange and his son Vikram has been examined. He lost his SIM Card when he lost his purse. Admittedly, no evidence is adduced on the point of connection in between Sagar/Vikram Dawange on one hand and the appellant, Madhav, on the other hand. It is always not possible to collect such evidence. Whereas Mobile No. 9422880444 is issued in the name of first informant, Rajesh Rajore. Two ransom calls were given from Mobile No. 9767628375 to Mobile No. 9422880444. From the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 34 evidence of two Nodal Officers, certainly lacunae were pointed out to us. They include some discrepancies in papers, giving of evidence by incompetent person and discrepancy in between tower locations on one hand and the addresses deposed by kidnapped boy about giving ransom calls.
65. We find that there are lacunae in the evidence of Nodal Officer, Ashishkumar Kumar from BSNL Company. Call details were supplied to police during investigation and it is a practice to give evidence through Nodal Officers during trail. Court has always to see that at the time of evidence, authenticated documents through authorized persons must be produced. This has not happened during evidence of Ashishkumar Kumar. He has not signed the papers containing Call Details. Even he has not personally verified the information. A Nodal Officer may be either a person who is in-charge of the work when call details were stored in a server, or he may be a person who is in-charge of the system and who has issued the Call Details Information to Police. This has not happened in this case. Even Section 65 (b) Certificate under Indian Evidence Act is not signed by him. We do not attach any importance to his evidence. Trial Court has not paid attention to these issues.
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66. However, when we come to the evidence of another Nodal Officer, Dattaram Angre, we find his evidence is complete in all respect. He is a signatory of details about subscriber Vikram Dawange, CDR information, tower location and Certificate. His evidence is sufficient to infer that the mobile handset being IMEI No. 35230804387324/001 was used by inserting a SIM card of Idea Company having Mobile No. 919767628375. His evidence is sufficient to infer that calls were made on 20th September, 2011 on Mobile No. 9422880444. There may be certain overwriting on Exh.83 and marking and last three columns may be blank in Exh.83 [which are not there in Exh.80]. These differences may occur. Court is concerned with the CDR at Exh.80 containing call details because it is that CDR which was tendered in evidence.
67. Exh.82 contains Cell ID and its corresponding address. Cell ID for two calls is Lasura [Khurd], Tq. Shegaon, Dist. Buldhana [Serial no. 1,2 of Exh.82]. The defence wanted to point out inconsistency in between the Cell ID mentioned in CDR at Exh.80 on one hand and its corresponding cell address given in Exh.82. Cell address for these two calls given in Exh. 82 are Lasura Phata and Swami Samarth Apartments. Nodal Officer was cross-examined by pointing out the Cell ID containing numbers 81,82 and 83 (at serial no. 8.9.10 of Exh. 82). For Cell IDs 82 and 83, the cell address is Swamy Samarth Apartments, ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 36 Nandura Road, whereas Lasura [Khd.], Shegaon, is a cell address for cell IDs 512 and 513 (at serial no. 1, 2 of Exh. 82).
68. When we have compared them with the locations from where ransom calls were given, we do not find much inconsistency. Three places had come in the evidence of kidnapped boy, Kalpesh. They are :
[1] Khamgaon-Nandura Road [while returning from music class], [2] Anjuman High School ground, and, [3] the well in front of Old Lasura Phata. We are not giving much importance to it.
69. So, this piece of evidence connects the appellant, Madhav, as the person who was found with Nokia mobile handset used for giving ransom calls. Always there cannot be evidence about the person who gave a ransom call. It can be possible only when there is a voice recording. But, circumstances are enough to draw an inference against the appellant, Madhav. Except denial, he has not given any explanation.
DISCOVERY OF INCRIMINATING ARTICLE
70. There is a evidence of discovery of incriminating articles in the form of knife, cello tape and Sutli from appellant Madhav, whereas a ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 37 seizure of Casio, Charger and bag from the appellant Bhagwan. Both these appellants have expressed their readiness to show the place of concealment of these articles. Seizure of articles is not a discovery but discovery of places of concealment is important. Because, it is the person, who conceals the articles is only aware of the same. There are certain restrictions. If the articles are seized from an open space then it is difficult to attribute the seizure to the accused persons. It must be within the exclusive knowledge of the accused persons.
71. On these principles, we find that the knife, cello tape and Sutli were seized from the grass of a Nullah behind Congress Bhawan. It is situated near a road at Khamgaon. We have read the evidence of panch-witness Mahendra Pathak PW-7 and of Investigating Officer. There is huge garbage near the Nullah. That place is certainly accessible to public. It is difficult to gather that it is only the appellant Madhav Kapade, who is aware of the same. These articles are not having any special identification marks. Though learned trial Judge has accepted it, we are discarding it for the reasons staged above.
72. As against this, we are inclined to accept the seizure of Casio, Charger and bag at the instance of appellant Bhagwan. The Casio and Adopter was kept in a bag and the bag was kept in the bushes. The ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 38 place is situated in front of Hanuman Temple on Shegaon Road. The Evidence of panch-witness PW-16 Sanjay Rathi and of Investigating Officer Jadhav are reliable. It is important to note that PW-2 Kalpesh has identified the Casio and Charger. Certainly, it has got importance. These articles were with Kalpesh at the time of incident. They must not have been of any value for the appellants and that is why the appellant Bhagwan must have concealed them in the bushes. That shows his complicity.
SEIZURE OF MOTORCYCLE
73. Even though, seizure of motorcycle is proved from appellant Madhav, we do not think that it can be considered as an incriminating fact. Reason is, it's specific details were not given by kidnapped boy Kalpesh. General reference of a motorcycle will not be useful. Panch witness PW-14 Sanjog Gupta has testified on that aspect. The motorcycle was of Hero Honda Company of Passion Brand. His evidence is satisfactory.
FINAL CONCLUSION
74. After taking an overall view of the situation, we find that there is sufficient evidence to show the involvement of both the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 39 appellants. The trial Court has rightly convicted both of them. Though we have not considered the evidence of seizure of motorcycle from appellant, Madhav and seizure of knife, Cello tape and a "Sutali" from the appellant, Madhav, other evidence, including identification, seizure of Nokia mobile handset from him, shows his involvement, whereas identification and seizure of Casio, charger and a bag from other accused, Bhagwan, shows his involvement. It is difficult to gather amongst these two appellants who had driven the motorcycle and who had sat as a pillion rider. It is difficult to gather actually who had given the ransom calls; but the available evidence is certainly sufficient to connect both the appellants to the act of kidnapping.
75. We agree that both the appellants are also of young age of twenty-six years [appellant, Bhagwan] and twenty-three years [appellant, Madhav]; yet they have a long life ahead. Except the greed for money, there is no other cause brought on record which prompted both these appellants to commit this act. There is no scope for us to reduce the sentence of life imprisonment awarded for the offence punishable under Section 364-A of Indian Penal Code, because either there will be death penalty or life imprisonment. Court has also to take a judicial notice of rising incidence of kidnapping the minor children for whatsoever reason and murdering them or raping them. So, there has ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:31 ::: apeals40&107.16 40 to be some deterrence in the society and it can be by imposing the sentence permissible by law. So, rather than age of the appellants, the rising trend in the society compels us to take such a strict view.
76. For the above discussion, we are not inclined to interfere in the order. Appeals stand dismissed.
Judge Judge
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