Bombay High Court
Presently Lodged In Nashik Road vs State Of Maharashtra on 17 June, 2013
Author: P.D. Kode
Bench: V.K. Tahilramani, P.D. Kode
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Appeal477.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.477 OF 2008
Naseem Ahmed Habib Ahmed,
Aged 19 years, Indian inhabitant
Residing at Ajmeri Lane, Near Rajja Masjid,
Vatsalatai Naik Nagar, Chembur,
Mumbai - 400 071.
Permanent resident of At & Post
Haibadpur, Distt. Muradabad, U.P.
Presently lodged in Nashik Road,
Central Prison, at Nashik. .. Appellant
V/s.
State of Maharashtra, at the instance
of Nehru Nagar Police Station,
Mumbai. .. Respondent
Mr. Q.M. Ashfaq, Ld. Advocate for the Appellant.
Mrs. P.P. Bhosale Ld. A.P.P. for the respondent-State.
CORAM : SMT. V.K. TAHILRAMANI &
P.D. KODE, JJ.
DATED : 17.6.2013.
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Appeal477.08.odt
ORAL JUDGMENT (PER : P.D. KODE, J.)
1. The appeal is directed against the judgment, order of conviction and sentence passed by the learned 2nd Ad-hoc Additional Sessions Judge at Sewree on 19th March, 2008 in Sessions case No. 213 of 2007 convicting appellant-original accused no.1 (hereinafter referred as A1) in said case for commission of offences under Sections 120-B and 364-A of the Indian Penal Code and on the first count sentencing him to suffer R.I. for 2 years and to pay a fine of Rs.1,000/-
or i/d. to suffer R.I. for 3 months and on the second count to suffer imprisonment for life and to pay a fine of Rs.4,000/- or i/d. to suffer R.I. for 2 years.
2. The appellant, along with convicted co-accused no.2 one Mohd. Imran Islam Salamani (hereinafter referred as A2) and acquitted co-accused one Mohd. Yamin Liyaqat Ali (hereinafter referred as A3) were tried for committing offence u/s 120-B and 364-A r/w 34 of IPC on the count of on 9th December, 2006 at Wooden Heel Factory, Chembur, Mumbai having entered into criminal conspiracy to kidnap a child by name Mohd. Alam of age about 2 years out of the lawful guardianship of his father PW1 Mohd. Akram Mustaq Ahmed Saifi from his house at Ajmeri Chawl, Chembur, Mumbai for the ransom of Rs.4 Lacs and ::: Downloaded on - 06/01/2014 03:41:44 ::: 3 Appeal477.08.odt having detained said child and, thereafter, having threatened to cause death or hurt to the child for compelling PW1 to pay such a ransom demanded. By the said judgment, alike A1, A2 was also similarly convicted and sentenced, but A3 was acquitted of all the charges framed against him.
3. According to prosecution, PW1, original resident of Uttar Pradesh, along with his wife PW7 Noorjahan, elder son PW4 Mohd.
Aslam, daughters Shabnam, Sahana, PW10 Anjum, age 12 years, Nagma, Mushra, and youngest son kidnapped Mohd. Alam, was residing at his Wooden Heel Factory at Ajmeri Chawl, Chembur, Mumbai for last 25 years. He was preparing wooden heels under name "Sana Heel Works". One Kalbe Intiaz Hasan alias Kallu Mama, 2) Purkan, 3) Rashid Saifi, 4) Rajendra, 5) Matlab Saifi 6) Rustum 7) Intazar 8) Sahid and 9) A1 all from U.P. and known to PW1 were working at his factory and out of them, A1 had joined about two months prior to date of the incident.
3.1 Out of said workers, Kallu Mama was having a mobile with number - 9870290496. A1 sometimes used to have said mobile. The victim Mohd. Alam was acquainted with said workers and sometimes they used to carry him while going to market.
::: Downloaded on - 06/01/2014 03:41:44 ::: 4Appeal477.08.odt 3.2 PW1 returned to house on 9th December, 2006 by 22.30 hours, after having a discussion with his elder brother. PW7 then appraised PW1 that at about 20.30 hours, A1 asked money for a treatment saying that he was unwell and after she gave Rs.100/-, he left by lifting Alam, saying that he was going to the doctor. She further appraised that they had yet not returned.
3.3 PW7 was unable to contact Kallu Mama on mobile for gathering whereabouts of A1 and Mohd. Alam. PW7, after gathering that Kallu Mama was in factory, but his mobile was with A1, called on the mobile of Kallu Mama, at about 23.00 hours from PCO. Some person then replied that as she has become over-wise, her child after killing would be thrown away. PW4, elder son of PW1, at about 23.15 hours, contacted from PCO on the said mobile. The recipient appraised that he was Chitta (Leopard), though it was his turn, luckily he has escaped, but his brother and the worker were in his custody and for them he should keep ready Rs.4 Lacs by four hours and he would call and tell the place at which amount was to be brought and in event of approaching police, he would kill both of them. PW4 recorded on cassette said conversation ensued with kidnapper on mobile phone.
3.4 PW10 Anjum then appraised PW1 that at 20.30 hours, she ::: Downloaded on - 06/01/2014 03:41:44 ::: 5 Appeal477.08.odt had seen A1 hurriedly taking away Alam towards Kurla Railway Station.
PW1 went and narrating such matter lodged complaint Exh.18 at Nehru Nagar Police Station about kidnapping of A1 and Mohd. Alam by unknown person by name Chitta and demand Rs.4 Lacs made and threat given that in event of non payment of money or reporting police both would be killed. PW11 PSI Vishnu Bhoye, recorded the said complaint and registered FIR No.438/2006 (Exh.37) for offence under Section 364-A of IPC upon the said complaint. The investigation in crime registered was effected by PW13 API Jadhav, PW14 API Kokate, PW15 Sr. P.I. Suryawanshi and the officers of Crime Branch.
3.5 According to prosecution, A1, after kidnapping, along with Alam had been to Pacific Footwear Company at Thakkar-Bappa colony at which A2 was working. PW12 Shukla, watchman of said company, gave message to A2 that somebody had been for meeting him. A2, within 5 to 10 minutes, came outside factory and talked within 5 to 7 minutes in front of the factory and both left along with Alam.
3.6 According to the prosecution, PW9 Vedprakash Singh was dealing in selling of mobiles and PW1 had purchased mobiles from his shop on 2-3 occasions and on one of occasion of such purchase, A3 was accompanying PW1. A3 used to visit shop of PW9 either for ::: Downloaded on - 06/01/2014 03:41:44 ::: 6 Appeal477.08.odt purchasing refill for the mobile or sometimes for making telephone call from PCO station outside the shop of mobile shop of PW9. On 10th December, 2006 at about 10.00 a.m. while PW9 was standing nearby PCO outside his shop, he heard A3 talking on telephone "where you are staying, whether boy is alright, report had been lodged with the police and so be careful, police had come for action, returned the child, sent the child along with A2 Imran".
3.7 According to the prosecution, PW4 could contact kidnapper on 10.12.2006, however, kidnapper told then him to talk after sometime as he was having meals. He also threatened PW4 to kill his brother as he knew about report lodged by PW1. PW4 denied about lodging of the report. Kidnapper disconnected the call. PW4 again could contact kidnapper on telephone at about 20.00 hours. PW4 asked him to permit to talk with his employee i.e. A1 on telephone. Kidnapper said that A1 had gone out. PW4 asked him to allow to talk with his brother Alam.
PW4 heard that Alam was weeping and, thereafter, telephone call was disconnected.
3.8 According to the prosecution, one Rajabhai was running a flower shop near Haji-malang Durgah and was also making arrangement of meals as well, as for stay of devotees coming late in night at said ::: Downloaded on - 06/01/2014 03:41:44 ::: 7 Appeal477.08.odt Durgah. PW8 Ravi Pathare was working at said shop. A1 and A2 along with Alam, during night time at about 1.00 a.m., had been to said shop and had placed order of two flower sheets for Rs.101/- each and stayed at said place. A1 and A2, along with the child, had been to durgah in the morning and returned by evening 8.00 p.m. and told that they would be staying during the night times and again placed order for flower sheets. A suspicion aroused in the mind of PW8 as no woman was then accompanying them and hence he had asked their names and recorded in the notebook. On the next day, they left before PW8 and the other woke up. After about three days, police had brought A1 and A2 at the said shop.
3.9 According to the prosecution, on 11th December, 2006 at about 9.30 a.m. A1 had been to a tea-coffee shop by name "New Sona and Sons" and by giving Rs.2/- taken two coins of Rs.1/- from PW6 Odiyar, working as a salesman in the said shop. A1 had thereafter talked on PCO telephone installed in the said shop.
3.10 PW4, in the night of 11th December, 2006, went to Police Station, carrying mobile phone of his father PW1 and narrated happenings. PW4 attempted to contact kidnapper by telephone on mobile, but kidnapper used to disconnect the phone. Hence, PW4 ::: Downloaded on - 06/01/2014 03:41:44 ::: 8 Appeal477.08.odt contacted kidnapper on his mobile from one PCO. Kidnapper told PW4 to bring Rs.4 Lacs at Mulund Railway Station.
3.11 Accordingly, PW13 API Jadhav, in presence of panch PW2 Irshad Ahmed and one another, drew pre-trap panchanama Exh.21 regarding preparation of eight bundles of paper-sheets of the size of currency notes and affixed the lables of the signature of panchas and police (PW13) on said bundles and kept it in a plastic bag and gave it to PW4 with instructions that after handing over the bag to the person demanding the ransom, he should give signal by moving his left palm upon the head and PW2 to accompany PW4 and to the co-panchas to remain away at such a distance as they could not see him.
3.12 PW4, PW2 and the police proceeded to Mulund in police van. In the meanwhile, kidnapper informed PW4 on mobile to come to Kurla Railway Station in stead of Mulund Railway Station. However, after sometime, he again told PW4 on his mobile to come to Mulund Railway Station. PW2 and PW4 waited near Hanuman Temple near Mulund Railway Station, while the other policemen scattered themselves around said place. At about 11.35, A1 was seen moving in suspicious condition near said temple. PW4 asked him as to what he was doing at said place and where was his brother. A1 told that his brother was ::: Downloaded on - 06/01/2014 03:41:44 ::: 9 Appeal477.08.odt kidnapped by himself and his friend Imran (A2) and whether he had brought the amount demanded. PW4 told that he had brought the amount and was in a bag with him, where was his brother. A1 asked him to firstly hand over amount to him and, thereafter, he would disclose as to where was his brother. PW4, thereafter, forwarded the bag, A1 took the bag, PW4, thereafter gave the signal as instructed and, thereafter, the police party rushed and nabbed A1 and informed that they were policemen. A1 disclosed his name, occupation and address. During the search taken by the police, he was unable to give satisfactory answer regarding the bag found with him and containing the bundles bearing lables of signatures of panch and police. A1 was also found having a telephone diary and cash amount of Rs.90/-. The police seized said bag, amount and the bundles in the bag and concluded further part of the trap-panchanama.
3.13 According to the prosecution, A1, thereafter, made a voluntary statement of showing of the place at which kidnapped child Alam was kept and the same was recorded by PW13 by drawing memorandum panchanama Exh.40 in presence of panch PW2 and another. A1 thereafter along with PW4 and police went a place near Haji malang. At the said place, Alam was found on the shoulder of A2. He was caught and child was handed over to PW4. The police searched A2 ::: Downloaded on - 06/01/2014 03:41:44 ::: 10 Appeal477.08.odt after he disclosed his name and address and seized Nokia Mobile and the valet containing the cash and other articles under seizure panchanama Exh.41. All of them, thereafter, returned to the Police Station.
3.14 According to the prosecution, on 18th December, 2006 PW4 produced the cassette on which he had recorded conversation ensued with the kidnapper. PW14 seized the same in presence of panch witnesses PW3 Ibrahim Hasan and another by drawing panchanama Exh.24 by playing the said cassette on tape-recorder and reduced in writing the conversation recorded in the said cassette.
3.15 PW14 API Kokate, on 19th December, 2006, in presence of panch PW5 Mohd. Shahjad Akram Saifee and another, by drawing panchanama Exh.30, recorded sample of voice of A1 and A2 separately on two different cassettes i.e. Article 5 and Article 6 by means of tape-
recorder, by asking A2 to read the material written on the paper and asking A1 to reproduce the lines read over to him by PW14 API Kokate, as A1 was unable to read and write.
3.16 PW14 API Kokate sent seized cassette as well as the sample voice of A1 and A2 collected to Chemical Analyser for analysis.
::: Downloaded on - 06/01/2014 03:41:44 ::: 11Appeal477.08.odt PW14 also recorded the statements of witnesses and so also PW15 Sr. P.I. of PW7 Noorjahan, mother of kidnapped child and sister PW10 Anjum. At the conclusion of investigation, PW15 submitted charge-sheet against A1, A2 and A3 in the Court of 34 th Court of Metropolitan Magistrate, Vikroli, Bombay.
4. A1 and the other charge-sheeted accused i.e. A2 and A3 pleaded not guilty to charge Exh.9 for commission of offences under Sections 120-B, 364 r/w 34 of the Indian Penal Code framed by the Court of Sessions, after the case was committed to the said court, and claimed to be tried. The prosecution at trial adduced ocular evidence of 15 witnesses referred herein-above and so also relied upon the documentary evidence which was prepared during the course of investigation.
5. The defence of A1 was that of total denial. A1, during his examination u/s 313 of Cr.P.C., claimed that prior to the date of incident, he had demanded money from PW1, as there was marriage in his house. PW1 refused to pay him, so he told that then he would leave the job. There was exchange of words in between A1 and PW1 and he went away. Due to occurrence of said incident, PW1 has given evidence against him. Similarly, his son PW4, wife PW7 and daughter PW10, at ::: Downloaded on - 06/01/2014 03:41:44 ::: 12 Appeal477.08.odt his behest, deposed against him. PW11, PW13 to PW15, being police witnesses, have deposed against him, while PW2, PW6, PW8 and PW12 have deposed against him at the say of police.
6. The trial court, after appreciation of evidence adduced by the prosecution, came to the conclusion that the prosecution has proved that A1 and A2 had on 9.12.2006 agreed to kidnap child of PW1 from his house for ransom of Rs.4 Lacs, as claimed by the prosecution, and thereby committed offence under Sections 120-B of IPC. The trial court also came to conclusion that A1 and A2, in furtherance of their common intention, kidnapped small child Alam, son of PW1 and kept him in detention and threatened to cause his death or hurt to him to compel PW1 to pay a ransom of Rs.4 Lacs and thereby committed an offence under Section 364-A of the Indian Penal Code. The trial court, however, came to the conclusion of the prosecution has not proved commission of such offences by A3 and in consonance with such findings arrived, convicted and sentenced A1 and A2 and acquitted A3.
7. Mr. Q.M. Ashfaq, learned counsel for A1, by taking us meticulously through the evidence of the prosecution witnesses and making dilation thereon, urged that there is irreconcilable conflict, variation and discrepancies in their evidence and hence the prosecution ::: Downloaded on - 06/01/2014 03:41:44 ::: 13 Appeal477.08.odt cannot be said to have established that either A1 had kidnapped Alam or that he had kidnapped, the same for furthering object of any conspiracy allegedly entered by him along with A2 for kidnapping Alam and detaining him for compelling PW1 to pay a ransom by giving threats of causing injury, hurt or death of said child. The learned counsel submitted that though entire prosecution story has emerged out of co-worker Kallu Mama on whose mobile the call was given by PW4 or PW7 or had received the message of Alam being kidnapped and ransom being required to be paid for it, the prosecution had failed to examine the said most material witness and in absence of his evidence, no reliance deserves to be placed upon the evidence of the concerned prosecution witnesses i.e. PW1, PW4, PW7 or even PW10. It is submitted that even sim card of said mobile has not been recovered and produced at the trial. The learned counsel contended that even accepting the evidence of prosecution as it is, the same does not reveal that at any point of time, A1 had made any demand of ransom for kidnapped child. It was urged that the evidence of the said witnesses amongst other also reveals that Alam used to accompany A1 for going to the market. Hence, Alam being seen with A1 by PW10 is inconsequential. It was urged that, even as per the prosecution case, neither PW4, PW1 or even PW10 were present when A1 had allegedly taken Alam along with him and as such their evidence is inconsequential for establishing that Alam was ::: Downloaded on - 06/01/2014 03:41:44 ::: 14 Appeal477.08.odt kidnapped by A1. It was submitted that considering the evidence of PW7 which does not inspire confidence, the trial court committed serious error in coming to the conclusion that prosecution has established that Alam was kidnapped by A1. It is submitted that there is lack of cogent evidence regarding Alam being kidnapped by A1.
8. The learned counsel submitted that link of A1 with alleged offences is attempted to be established by the prosecution on the basis of PW8 having seen him along with A2 and the child in the flower shop.
PW10 having seen him taking away Alam to Kurla Railway Station and by PW12 of having seen him for coming to the factory at which A2 was working. It is urged that the trial court erred in accepting the evidence of the said witnesses for coming to the conclusion of Alam being seen with A1 at the point of time, as claimed by them. It is submitted that the evidence of PW10 was inconsequential, in view of evidence of other witnesses, revealing that Alam used to accompany A1. With regard that the evidence of other witnesses, it was submitted that serious infirmity of their evidence of identification of A1 at trial being not corroborated by any prior identification made by them at test identification parade.
9. The learned counsel thereafter by making reference to the evidence of trap panch PW2 and Investigating Officer PW13 and that of ::: Downloaded on - 06/01/2014 03:41:44 ::: 15 Appeal477.08.odt PW4, who were party for the relevant event, submitted that their evidence cannot be considered to be cogent enough to establish the fact of A1 had been to near Hanuman Temple nearby Mulund Station or thereafter having taken panchas and police to Haji malang, as claimed by the prosecution. It was submitted that the trial court, ignoring the serious conflict in the evidence of said witnesses, erroneously came to the conclusion of the prosecution having established such facet by their evidence. It was submitted that most important witness i.e. the minor, who was kidnapped, was not at all examined at trial for throwing the light regarding the person who had kidnapped or the manner in which and the place at which he was kidnapped and the place at which he was detained. It was thus contended that the prosecution evidence miserably fails to establish the guilt of A1 for any of the offences for which he is convicted and sentenced.
10. The learned counsel further contended that A1 was in the captive of the main kidnapper i.e. Chitta and merely because he had been for the collection of the money, as asked by him i.e. the fact which is also not convincingly established, the prosecution cannot be said to have established any of the ingredients of the offences for which A1 is convicted and sentenced by the trial court. It is thus contended that the order of conviction and sentence passed by the trial court cannot be ::: Downloaded on - 06/01/2014 03:41:45 ::: 16 Appeal477.08.odt legally sustained and the same is liable to be quashed and set aside and A1 deserves to be acquitted.
11. The learned counsel alternatively contended that A1 is a young man hardly 19 years of age or thereabove. Thus, having regard to the said fact and the character of prosecution evidence which leads to reasonable views of A1 may be or may not be involved in commission of offence, as claimed by the prosecution, the view beneficial to A1 will be required to be accepted by giving him the benefit of doubt.
12. Mrs. P.P. Bhosale, learned A.P.P. for the respondent-State, countered the aforesaid submission and supported the judgment and order of conviction recorded by the trial court. It is her submission that occurring of minor discrepancies in the evidence of the prosecution witnesses cannot be said to be good ground of discarding their testimonies on the count of particular witnesses during evidence having not unfolded a particular part of the prosecution tale. It was urged that such a appreciation of evidence is not permissible, as considering the evidence of concerned witnesses, the same does not lead to the conclusion that event, as claimed by the other witnesses and not deposed by him, had not occurred. It is submitted that the prosecution has duly established that A1 had taken Alam along with him on the ::: Downloaded on - 06/01/2014 03:41:45 ::: 17 Appeal477.08.odt pretext of going to the doctor and, thereafter, had not at all returned, considered along with other established fact that he had been to the place at which the kidnapper sent the man for collection of ransom and, in fact, having collected the ransom, conclusively leads to the inference of prosecution having established the case. It is submitted that A1 had not explained said grave incriminating circumstance appearing against him of having been for receiving ransom and having taken panchas and police at which the kidnapped child was found, takes away all the sting of the submission canvassed by the learned counsel for A1 regarding non examination of other witnesses and/or there being minor discrepancies in the evidence of other witnesses. It is submitted that the theory of A1 being in captive does not receive any support from any of the circumstances surfaced at the trial nor any such a claim was staked by A1 during his examination under Section 313 of Cr.P.C. It is thus contended that there is no merit in the appeal and the same be dismissed.
13. After giving thoughtful consideration to the submissions advanced by the rival parties and examining the record and proceedings, particularly the judgment appealed, we find that no error was committed by the trial court in arriving at the conclusion of A1 and A2 having agreed to kidnap Alam and detained him for compelling PW1 ::: Downloaded on - 06/01/2014 03:41:45 ::: 18 Appeal477.08.odt to pay a ransom of Rs.4 Lacs by threatening him of causing hurt injury and/or death of Mohd. Alam and A1 having kidnapped Alam out of the custody of his parents for obtaining such ransom.
14. Now considering the evidence adduced by the prosecution mainly for establishing the fact of kidnapping of Alam, the evidence of his mother PW7 is apparently of immense importance, as the evidence of other witnesses is either corroborative or of supportive nature to the evidence of PW7. After carefully considering the evidence of PW7 in entirety, we find, she had deposed more so in consonance with the prosecution tale narrated herein-above regarding incidental matters and relationship in between witnesses and particularly A1 working since about last two months in the factory of PW1 and the events which had occurred in relevant evening of 9.12.2006 i.e. A1 taking an amount of Rs.100/- from her on the count of being sick and, thereafter, going away by lifting Alam by telling that he was going to the doctor. We do not find that said part of evidence of PW7 is shattered in any manner, much less even challenged at trial.
15. The further part of evidence of PW7 reveals that she had waited for Alam till 10.30 p.m. and, thereafter, started his search. It reveals that she had dialed from PCO the mobile number which A1 had ::: Downloaded on - 06/01/2014 03:41:45 ::: 19 Appeal477.08.odt carried along with him. It reveals that after disconnecting call given on three occasions, on fourth occasion the person talking on the mobile disclosed his name as Chitta and said that "tu bahot shahani banti hai, jayada hoshiyari mat bata, tere bade ladke ka number tha, par tera zota ladka aur tera karagirbhi hamare kabje me hai". It reveals that she was frightened and informed happenings to her elder son PW4 and he went to PCO and called on said mobile and then she was standing near him.
It reveals that PW4 told her that kidnapper demanded Rs.4 Lacs and asked to talk on telephone after four hours. It reveals that thereafter she informed all said happenings to her husband PW1. It further reveals that on 11.12.2006 she was called at the Police Station and A1 and A2 were in the Police Station and Alam was with the police and police returned her son. After carefully considering her evidence and particularly the answers elicited during her cross examination, we do not find that her such evidence was shattered in any manner at trial or much less even challenged.
16. Now considering such evidence of PW7 in proper perspective and even accepting that same denotes that A1 had not taken Alam along with him by force, still part of said evidence that he had taken him by saying that he was going to doctor, impliedly indicates that thereafter he was to return Alam. The further part of evidence ::: Downloaded on - 06/01/2014 03:41:45 ::: 20 Appeal477.08.odt unequivocally establishes that, in fact, thereafter her son was never returned by A1. In the said context, though A1 claimed that no such event had occurred and she has deposed falsely, it is difficult to accept his said say/defence as her evidence duly establishes the act of A1 taking Alam away upon such pretext. The further evidence that, within a short time, while searching for Alam, she had given a phone call on the mobile of Kallu Mama, which was not taken by the appellant, but somebody else gave the threatenings, as deposed by her and remained unshattered, undoubtfully establishes that Alam was kidnapped. The evidence of PW7 regarding the matters told by kidnapper to PW4 that kidnapper demanded Rs.4 Lacs and asked to talk on telephone after four hours, coupled with the fact that Alam was not returned and the further evidence which is dealt in further part of judgment makes it amply clear that ultimately police had traced Alam from Haji malang on 11.12.2006 in custody of A2 at the place to which A1 had taken police, within itself establishes Alam being kidnapped by A1 for the ransom to be obtained from his family members.
17. In the context of kidnapping of Alam, the reference to the evidence of PW1 as well as that of PW4 reveals that kidnapping had taken place during their absence and they received information about it from PW7, the said conduct of PW7 as established by evidence of PW1 ::: Downloaded on - 06/01/2014 03:41:45 ::: 21 Appeal477.08.odt and PW4 amongst other also staking similar claim of Alam being taken away by A1, duly corroborates the evidence of PW7 in said respect. We further add that after carefully considering the relevant part of the evidence of PW7, PW1 and PW4, we find that the claim of above described nature staked by each of the said witnesses, has remained unshattered during the cross examination, except bringing on the record that sometimes Alam used to accompany A1. We further find that evidence of all the said witnesses regarding occurring of such event occurred or their conduct thereafter i.e. of PW7 reporting the matters to PW4 and lateron to PW1, PW4 calling the kidnapper from PCO on the mobile phone, PW1 lateron, after receipt of threats from kidnapper, making demand for ransom, reporting the matter to the police and lodging complaint Exh.18, are not only denotes their natural conduct but claim staked being in tune with the probability factor. We find that the evidence of PW1 is also well corroborated by the matters stated in complaint Exh.18 lodged by him without delay. Thus, after carefully scrutinizing said part of evidence of the witnesses referred, we find that their evidence inspires confidence for accepting and acting upon it.
18. In addition to the evidence of said witnesses, the reference to the evidence of PW10, age 10 years, younger daughter of PW1 and the sister of Alam, also corroborates the evidence of PW1 of A1 having ::: Downloaded on - 06/01/2014 03:41:45 ::: 22 Appeal477.08.odt taken away Alam and also the conclusions drawn of A1 having kidnapped Alam. Such a conclusion is inevitable, as after perusal of the evidence of PW10, we find that her claim that on the date of incident, while returning from a book shop, having seen A1 taking Alam towards the Kurla Railway Station, has remained unshattered. The perusal of the cross-examination effected of PW10 does not reveal anything else was brought on the record, except A1 earlier having taken Alam along with him. Now considering the reason which was told by A1 to PW7 and the place at which PW10 had seen Alam along with him i.e. going towards the Kurla Railway Station, fortifies the conclusion arrived earlier.
19. In addition to the evidence of the aforesaid witnesses the prosecution had also adduced the evidence of PW12 Shukla, Watchman of "Pacific Footwear Company" at which the A2 was working. The careful scrutiny of the evidence of PW12, who has deposed, in consonance with the prosecution case narrated earlier, does not reveal that claim staked by him that on 9.12.2006, A1 had been to company to meet A2, PW12 having called A2, A1 then carrying a child of 3-4 years of age on his waist, A2 arriving having talk for 5 to 7 minutes in front of factory and then together had gone away was shattered in any manner during the cross examination.
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20. Similarly, we also find that the evidence of PW8 Ravi Pathare adduced by the prosecution regarding A1, A2 along with the child having been to the flower shop near Haji malang Durgah, having stayed during the night time etc. and Mohd. Alam shown to him being the said child etc. having remained shattered, cannot be altogether ignored, in view of nothing being elicited in the cross examination for discarding the said evidence.
21. Now considering such evidence of both the said witnesses i.e. PW12 and PW8 in proper perspective and the opportunity received by each of them to observe A1 and child or A1 A2 and child on respective occasion and the identification as made by each of them at trial of A1 and of child as the case is, having remained unshattered, we find it difficult to accept criticism of learned counsel for A1 of the said evidence being unworthy of credence due to there being no corroboration to said evidence by prior evidence of identification of A1 and Mohd. Alam made by concerned witness in prior test identification parade. We find it difficult to accept said criticism as after taking into consideration the purposes for which test identification parade are held i.e. for ascertaining whether the investigation has been proceeding on the right track and the evidence of identification of such parade being not of substantiating evidence and the legal position being to the effect that ::: Downloaded on - 06/01/2014 03:41:45 ::: 24 Appeal477.08.odt in all cases such evidence cannot be discarded on the count as canvassed. We further add that the trial court which had an advantage to observe said witnesses at trial having accepted their evidence, we are unable to discard it in toto for the reasons canvassed without there being anything on the record for coming to the conclusion of the same not inspiring the confidence. Needless to add the evidence of PW12 definitely corroborates prosecution case of child being in their custody while of PW8 additionally corroborates prosecution case of said child being kidnapped Alam.
22. Now in the context of submission canvassed by the learned counsel for A1 regarding evidence of aforesaid witnesses, after carefully scrutinizing it, we do not find any disparity brought on the record having a destroying effect upon the evidence of PW7 that A1 had taken away Alam by telling the matters as deposed by her. We add minor variations regarding the time, place and sequence occurring inter-se in the evidence of the witnesses by itself cannot lead to the conclusion that due to the same, there evidence can be said of not inspiring the confidence, unless the variation occurring is of the nature of destroying/negativing the evidence or the effect of the evidence of the other witnesses. Even, case of no such appreciable variation about occurring of such event, was brought to our notice by the learned ::: Downloaded on - 06/01/2014 03:41:45 ::: 25 Appeal477.08.odt counsel for A1. Hence, we find no substance in the submission that minor variations attempted to be pointed adversely affect the evidence of any of said witnesses.
23. In the context of further submission canvassed, it can be observed that now it is well settled by plethora of decisions of Apex Court that any witness can be said to be a material witness, only in event of any material part of prosecution case remains unfolded due to non examination of such a witness and only in such a contingency, adverse inference is required to be drawn against the prosecution for non examination of the said witnesses or withholding relevant evidence.
24. Now appreciating the role, if any, played by co-worker Kallu Mama in the relevant episode, we find that except A1 having taken the mobile of PW1 which he had given to Kallu Mama for using, Kallu Mama had not witnessed any event which had occurred in the relevant evening. Apart from it, even the case of defence being not that the said mobile ever remained with Kallu Mama for all while or Kallu Mama witnessed any relevant part of incident which had occurred in said evening, we find it extremely difficult to accept that the said Kallu Mama can be said to be a material witness, as tried to canvassed on behalf of A1. The same is the case regarding non recovery of the said mobile of ::: Downloaded on - 06/01/2014 03:41:45 ::: 26 Appeal477.08.odt Kallu Mama or the sim card of the said mobile. We find it difficult to accept that said aspect can be said to be having any material bearing in establishing the prosecution case. We are of such a considered opinion as it is not the case of defence that such talks were made by Kallu Mama or at his behest and on the contrary, as the further evidence adduced by the prosecution also probabilies the prosecution case that said mobile was with co-accused A2 and said co-accused had indulged in making talks referred by PW7 and PW4 during the evidence and particularly the demand of ransom made. Hence, we find no substance in said criticism canvassed.
25. In same context, having due regard to the fact that A1 was working in the factory of PW1 for about two months, prior to incident and unchallenged evidence surfaced on the record that Alam used to visit the said factory, no much importance can be given to the admissions elicited during the cross examination of the above referred witnesses that A1 used to take on occasions Alam with him. We add that A1 taking Alam along with him while in service of PW1 or when he was coming to the factory or Alam accompanying him or the other co-workers, cannot be said to be an unnatural phenomena considering the relationship in between the parties i.e. Alam being son of master of A1.
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26. In the said context, we further add that mere taking away Alam along with him by itself would not have attracted the provisions of offence of kidnapping but in the instant case the same are attracted due to Alam being taken away in relevant evening out of the custody of his mother for the purpose of detaining him for obtaining the ransom from his family members by giving themselves i.e. PW1, PW4 and PW7 threats of causing him hurt, injury or his death. In other words, we add that though taking any child temporarily out of the custody may not have attracted ingredients of offence of kidnapping, still act of taking him away out of the custody for such oblique purpose would squarely attract mischief as contemplated u/s 361/363 and/or 364-A of IPC. Hence, we do not find any substance in the relevant submission canvassed.
27. Now considering another aspect of prosecution case having sufficient potential to fortify the conclusions so far arrived and establishing further part of prosecution case that kidnapping of Alam for the ransom was outcome of conspiracy hatched in between A1 and A2 and so also about the further active role played by A1 in furthering the object of such conspiracy i.e. A1 coming for receiving the ransom amount demanded on phone by kidnapper, receiving such money, getting nabbed by the police and, thereafter, A1 voluntarily disclosing fact within his knowledge about the place at which kidnapped child Alam ::: Downloaded on - 06/01/2014 03:41:45 ::: 28 Appeal477.08.odt was kept with A2, taking panchas and police to said place at Haji malang, at the said place, Alam being found on the shoulder of A2, the evidence of PW4, panch PW2, of investigating officer PW13 is apparently of the immense important.
28. The relevant part of the evidence of said witnesses reveal of themselves having deposed in consonance with the prosecution case regarding said episode commenced from PW4 approaching the Police Station after kidnapper demanded the ransom amount and trap being arranged by P.I. Salunke and PW13 API Jadhav. PW2 playing the active role as member/a panch witness of the further events occurred i.e. furnishing of eight bundles of papers of the size of currency notes in a plastic bag to PW4 and going to the place at which he was called for giving the money along with PW2 and the instructions given to him regarding the manner in which he has to act in said episode i.e. the matters recorded in pre-trap panchanama Exh.21 and so also the further events happened thereafter of kidnapper initially asking PW4 to come at Mulund Railway Station, again making the change by calling him at Kurla Railway Station, again finally fixing the destination at Mulund Railway Station; the raiding party comprised of PW4, PW2 and PW13 and other police personnels going to said place and laying the trap, arrival of a person known to PW4 i.e. A1 at the said spot nearby ::: Downloaded on - 06/01/2014 03:41:45 ::: 29 Appeal477.08.odt Hanuman Temple and moving in suspicious conditions, the conversations ensued in between PW4 and A1; amongst other PW4 inquiring about his brother, A1 inquiring about the ransom amount, PW4 handing over the bag containing the marked/labelled bundles, A1 taking it, PW4 as instructed giving the signal to the raiding/trap party, police nabbing A1, and searching him, A1 found possessing plastic bag containing eight bundles of size of currency notes bearing the lables of signatures of panch PW2 and that of PW13 i.e. the bundles handed over to PW4 under pre-trap panchanama Exh.21, A1 also found possessing the articles as detailed out in further part of the trap panchanama Exh.
21, PW13 seizing the said articles under said panchanama, A1 leading panchas and police to place at Haji Malang, Alam found at said place upon shoulder of A2, party returning along with arrested accused A1 and A2 at the police station and handing over of kidnapped child Alam to his mother PW7.
29. Though, the learned counsel for A1 vehemently contended that each of said facet of the prosecution case, is not established by the prosecution through the evidence of the said witnesses for the discrepancies pointed by him and/or criticism advanced, after carefully considering the evidence of each of the said witnesses in light of the criticism advanced and appreciating the evidence adduced upon the ::: Downloaded on - 06/01/2014 03:41:45 ::: 30 Appeal477.08.odt settled principles of appreciation of evidence, we find the criticism advanced and/or disparities pointed being worthless and through the evidence of the said witnesses as corroborated by contemporary documents made while occurring the relevant events i.e. pre-trap and post-trap panchanama Exh.21, memorandum panchanama Exh.40 and seizure panchanama Exh.41, the prosecution has duly established said facets. Without unnecessarily repeating evidence of each of said witness, we find that by the said evidence the prosecution has duly established three major events i.e. i) the person coming for and receiving the ransom amount as informed by the kidnapper was none the else but A1 and had received the said ransom amount, ii) A1, at the relevant time, had due knowledge regarding the place at which Alam was kept due to himself having left the child with A2, iii) A1 leading panchs, PW4 and another and police at the place at Haji malang and Alam being found at the said place.
30. Since, we find that the trial court has duly considered in detail relevant part of evidence of said witnesses in the judgment against which appeal is filed and after carefully considering the said evidence, we are unable to find that any error committed by the trial court in arriving at the conclusion of such a facet being established by the said evidence, we do not propose to unnecessarily recite upon every part and ::: Downloaded on - 06/01/2014 03:41:45 ::: 31 Appeal477.08.odt parcel of the evidence of each of the said witnesses and confine ourselves in dealing with the criticism thereon made by learned counsel for A1 to persuade us for not coming to the conclusion that such a facet, were established by the prosecution by the said evidence.
31. The learned counsel for A1, qua the event of nabbing A1, after receiving the ransom amount from PW4, by making reference to the evidence of the concerned witnesses, particularly about ensuing of the conversation in between said person and PW4, contended that there exists discrepancies about conversations ensued as deposed by PW2 and PW4 and PW13. The learned counsel contended that the evidence of PW13 is wholly silent regarding the conversation ensued and is confined to said persons having started talking with PW4; while PW2 has deposed in detail regarding a boy knowing PW4 arriving and asking whether he had brought the amount, PW4 asking said boy about his brother Alam, said boy telling that his brother Alam was very much there and again asking about the money; while the evidence of PW4 reveals that kidnapper came at the Hanuman Temple and he identified him as A1 and A1 asked him whether he had brought the amount and A1 also told that along with Chitta he had kidnapped Moha. Alam. It was urged that such disparity leads to the conclusion that no such event, as claimed by prosecution witnesses, had occurred.
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32. After carefully considering said evidence, we do not find any substance in such submissions canvassed, as the evidence clearly reveals that PW13 was standing much away from PW2 and PW4, obviously to avoid trap getting frustrated due to kidnapper detecting the presence of the police, and hence he could never have heard and deposed in detail about talk ensued. Similarly, considering the role to be played by PW4 in the episode i.e. active role of handing over the money, inquiring about the brother and making the signal, while PW2 panch being expected to watch the event occurred carefully, we do not find any surprise of his evidence pertaining to talk ensued being more in detail.
At any rate, we do not find any disparity or inconsistency about the talks ensued as deposed by both the said witnesses justifying the submissions canvassed or accepting the same. Hence, we reject the said submission canvassed.
33. Similarly, by pointing out the disparity in the evidence of PW2 and PW13 regarding the currency which was found on the person of A1 at the time of his search i.e. PW2 having claimed of an amount of Rs.90/- being found, while PW13 having claimed of Rs.70/-, the learned counsel for A1 contended that the same has an effect of leading to the conclusion that no event of nabbing A1 as claimed by the witnesses near ::: Downloaded on - 06/01/2014 03:41:45 ::: 33 Appeal477.08.odt Hanuman Temple having ever occurred. After considering the nature of disparity pointed and the matters in the contempuras documents i.e. panchanama Exh.21, we find that the disparity being not related with the main core of the evidence of said witnesses and being in relation with trifle matter, no such submission will deserve credence.
34. Though it is true that as pointed by learned counsel for A1, the evidence of panch PW2 and so also the further part of the evidence of PW4 is confined to events occurred of drawing of pre-trap panchanama and post-trap panchanama up-till arrest of A1 and, thereafter, PW 2 claimed of having returned to the police station, while the evidence of PW4 does not throw the light about the events thereafter happened. The learned counsel was very much right in submitting that the evidence of PW13 reveals that after A1 was arrested and searched and the articles on his person were seized under panchanama Exh.22, the further event of A1 having made statement regarding his voluntariness of disclosing the place at which Alam was kept had occurred and his such voluntary statement was recorded and, thereafter, the further events of A1 leading panchas and police to a place Haji malang having occurred and at the said place Alam was found on the shoulder of A2. The learned counsel, on the said basis, contended that there is irreconcilable, inconsistency in the evidence of the said three ::: Downloaded on - 06/01/2014 03:41:45 ::: 34 Appeal477.08.odt witnesses leading to the conclusion that none of such event either earlier or later having occurred. It was contended that in event of A1 having made any such a statement, after he was caught and arrested, then the evidence of said further events would have also surfaced during the evidence of PW2 and PW4. Learned counsel urged that the non surfacing of said evidence creates grave doubt regarding occurring of any such events, as the evidence regarding the later events has surfaced only through the evidence of PW13.
35. The submission though attractive does not appeal to the mind after careful scrutiny of the evidence of PW2 and PW4. Firstly, considering the evidence of PW2 the same does not lead to the position that after post-trap panchanama was completed i.e. about arrest of A1 and seizure of the articles, the police party had directly returned to the police station without occurring of any event as deposed by PW13, in between i.e. the events of A1 making statement, further panchanama being drawn, A1 leading police and panch to Haji malang and further events of Alam being found with A2, Alam being rescued and A2 being brought to the police station. Even the case regarding the evidence of PW4 is also not different. As a matter of fact, after careful scrutiny of the evidence of both the witnesses i.e. PW2 and PW4, we find that their evidence is wholly silent regarding the aspect of occurring of such ::: Downloaded on - 06/01/2014 03:41:45 ::: 35 Appeal477.08.odt further events as deposed by PW13. We are of such a considered view as the deposition of either of witnesses does not reveal any admission elicited that either after completion of the post-trap panchanama all of them had returned to the police station or no further events of going to Haji malang due to A1 making statement and leading the police to the said place had occurred in between.
36. Since settled principles regarding appreciation of evidence reveals that the evidence of each of the witness is required to be assessed independently and thereafter the same is to be assessed qua the evidence of co-witnesses, who were party for the relevant events and assessing the evidence of PW2, PW4 and PW13 in such manner, we find that at the maximum it can be said that the evidence of PW2 and PW4 is silent on aspect of further event occurred, in all probability, the prosecution having chosen not to adduce their evidence on the relevant point, regarding occurring of the said further events, as claimed by PW13, on the said basis, cogent evidence of PW13 would never be liable to be rejected. Needless to add, such a conclusion is inevitable in view of no admissions of a nature as pointed earlier having effect of destroying the evidence of PW13 were elicited or brought on the record during the cross examination of PW2 and PW13. On the contrary, considering the evidence of PW13 regarding said further events also we ::: Downloaded on - 06/01/2014 03:41:45 ::: 36 Appeal477.08.odt do not find the same have been shattered in any manner and further find the same being corroborated by the contempuras document i.e. panchanama Exh.40 and panchanama Exh.41. Hence, we do not find any substance in the relevant submissions canvassed. We further add that the evidence of PW13 amongst other also reveals that after the child Alam was found on the shoulder of A2, the same was given to PW4 and A2 was arrested. Needless to add said unshattered part of evidence of PW13 also establishes at least the presence of PW4 at the said place and so also that of PW2 from the recitals in the panchanamas Exh.40 & 41. Having regard to it, it is difficult to give any credence to the submission canvassed.
37. As narrated earlier, the prosecution had also adduced the evidence regarding seizure of cassette in which PW4 had recorded the voice of kidnapper and so also the evidence of panch PW5 regarding collection of sample voices of A1 and A2 under panchanama Exh.30 and forwarding the same to C.A. for comparison and opinion. However, the opinion Exh.28 having revealed that C.A. was unable to give an opinion due to the voice of kidnapper recorded by PW4 being found noisy and thus unsuitable for carrying out speaker identification test, similarly, PW9 examined by the prosecution having turned hostile and his evidence as per the prosecution case being about the acts of acquitted ::: Downloaded on - 06/01/2014 03:41:45 ::: 37 Appeal477.08.odt accused, we do not propose to discuss threadbare the said evidence and so also evidence of PW6 due to being not significant due to being confined of A1 having given call from PCO booth in his shop.
38. Now considering all said further evidence, it is amply clear that the prosecution, by the said evidence, in addition to establishing of A1 having kidnapped Alam, as concluded earlier, has established that (i) A1 had been to the place, informed by kidnapper, for collection of ransom amount, he had collected the ransom amount, (ii) he had knowledge regarding the place at which Alam was kept, (iii) Alam was found at the place near Haji malang, to which he had led panchas and police.
39. After carefully considering the implications of the said circumstances established by the prosecution, in addition to the earlier circumstance of having established that Alam was kidnapped, leads to no other conclusion other than, as rightly arrived by the trial court of A1 and A2 having entered into criminal conspiracy of kidnapping Alam for the ransom to be obtained from PW1 by giving a reasonable apprehension to PW1 and other members of his family that Alam may be put to the death or hurt, hence we are unable to find any fault with such a findings arrived by the trial court.
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40. It is indeed true that, as pointed out by the learned counsel for A1, no evidence has surfaced on the record of A1 having made any demand for a ransom either from PW4 or PW7 or from PW1. However, considering the role played by him in the episode, as established by the evidence referred by us, we find it extremely difficult to accede with the submission that said factor denotes that he was not involved in the conspiracy or that he is made only a scapegoat.
41. We are of such a considered opinion, as it is settled law regarding the cases involving the criminal conspiracy, direct evidence of existence of conspiracy or act committed by conspirator was in pursuance of such conspiracy is rarely available, as secrecy is always soul of conspiracy. On the said backdrop, considering the acts committed by A1 i.e. himself having kidnapped Alam, thereafter having been to the factory at which A2 was working, A2 thereafter joining him, since thereafter only kidnapper having threatened PW7/PW4 or the demand for ransom being made, A1 and A2 along with kidnapped child having stayed together at a shop of Haji malang at which PW8 was working, though calls demanding the ransom were not given by A1, ultimately he had been to the place, as informed by the kidnapper, who had given the call for bringing the ransom amount, in fact, having ::: Downloaded on - 06/01/2014 03:41:45 ::: 39 Appeal477.08.odt received the bundles of papers of size of currency notes in a bag said to be the ransom amount brought by PW4, A1 then having the knowledge regarding the place at which Alam was kidnapped, Alam being found at the said place to which he had led panchas and police, leads to no other conclusion than all the said acts committed by A1 and A2 were for achieving the object of conspiracy to kidnap Alam for obtaining the ransom by putting his father under reasonable apprehension of threat or death of the said child would be caused. We further add that in the cases involving the offences committed in pursuance of the criminal conspiracy, the further acts committed for achieving object being not required to be committed by each of the member of criminal conspiracy, the circumstance pointed out by the learned counsel for A1 that he had not demanded the ransom amount, is clearly redundant, much a less not having any effect of absolving him from the charges of the conspiracy.
42. Though, the learned counsel for A1, attempted to urge strenuously that A1 was under captive of the main kidnapper and he had been for receiving the ransom amount, the said circumstance is not helpful to the prosecution to advance its case against A1, we do not find any merit in said submission canvassed. We are of such a considered opinion, as unshattered the evidence of PW4, amongst other also establishes that when he had given a call to the kidnapper and ::: Downloaded on - 06/01/2014 03:41:45 ::: 40 Appeal477.08.odt expressed desire to talk with his employee i.e. A1, kidnapper then had told that he (A1) had gone out and, thereafter, PW4 had expressed his desire to talk with his kidnapped brother. The said evidence squarely militates against the theory of A1 being under captive of the kidnapper Chitta tried to be advanced at belated stage of trial for wriggling out of the liability arising out of heinous acts committed by A1. We find that no support to the said theory is found apart from no such a claim being staked by A1, when for the first time he was produced before the court after his arrest i.e. in the remand proceeding. Furthermore, no support to the said theory is found even from the statement of A1 recorded during his examination u/s 313 of Cr.P.C.
43. Resultantly, we do not find any merit in the appeal preferred and on the contrary find that no error was committed in the trial court in arriving at the conclusion of guilt of A1 for commission of the offences under Section 120-B, 364-A r/w 34 of IPC and sentencing him in accordance with the law. Hence, the appeal is dismissed. Office to communicate this order to the concerned prison authorities and to the appellant who is in jail.
(P. D. Kode, J.) (Smt. V.K. Tahilramani, J.)
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