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2013 DIGILAW 16 (BOM)

Sulochana Trimbak Birari v. State of Maharashtra

2013-01-03

SADHANA S.JADHAV, V.K.TAHILRAMANI

body2013
JUDGMENT SADHANA S. JADHAV, J. :- The appellant herein is the original accused No.2 in Sessions Case No.57 of 2004 decided by the III Adhoc Addl. Sessions Judge, Malegaon. By a judgment and order dated 17th February, 2006, the appellant is convicted for offence punishable under Section 364-A read with Section 34 of IPC and is sentenced to suffer rigorous imprisonment for life and fine of Rs.2,000/-, in default to undergo further R.I. for six months. Being aggrieved by the said judgment and order, the appellant has preferred the present Appeal. 2. Such of the facts which are necessary for the decision of this Appeal are as follows:- Kailas Pagar (complainant) a resident of Satan a, has a son named Sarthak @ Munna. His son was taking education in 2nd Standard in Abhinav Bal Vikas Mandir. On 28.2.2004, it was a holiday. At about 7.00 to 7.15 a.m., the mother of Sarthak had sent him to "Arihant Provisions", a grocery shop to purchase a packet of tea powder. He did not return home and, therefore, the parents started searching for him. Kailas informed his brother telephonically that Sarthak was missing. Kailas Pagar then lodged a missing complaint to the police station which was registered as Missing Case No.3/ 2004 at Satana Police Station. Kailas Pagar then lodged a report on 29.2.2004 and expressed his suspicion against the son of his step-sister, namely, Samadhan. Kailas suspected that Samadhan had kidnapped the boy as he had refused to extend any financial support to him. Crime No.28/2004 was registered against Samadhan under Section 364-A read with Section 34 of IPC on 29.2.2004. On 29.2.2004, Kaila Pagar received an anonymous phone call from a person who claimed that Sarthak was in his custody. The caller demanded a ransom ofRs.5 lakhs, failing which he threatened that he would kill the child. On 1.3.2004, the complainant received a phone call in the evening from Phone No.02551220364. The phone call was made from Vani. Kailas was threatened by the caller that he shall not report the matter to the police and also threatened Kailas that on failure to pay the said amount, Sarthak would be killed. On 2.3.2004, he received another phone call from Vani from Phone No.02551220365. Kailas was therefore constrained to approach the police station. The P.S.O. from Satana informed Vani Police Station. On 2.3.2004, he received another phone call from Vani from Phone No.02551220365. Kailas was therefore constrained to approach the police station. The P.S.O. from Satana informed Vani Police Station. On the basis of the phone number API Shri Awasare traced out the STD booth from where the call was made. The original accused No.1 was apprehended at the STD booth and was arrested. The arrested accused made a disclosure statement on the basis of which a Maruti van used in the commission of the offence was seized. The accused No.1, in the course of interrogation, informed the police that the boy i.e. Sarthak was left in the custody of his friend at Surat. The original accused No.1 also gave the address of his close friend where the victim was kept in custody. The police personnel approached Limbayati Police Station, Surat and with the help of the police personnel of Surat they went to Maharana Pratap Nagar locality room No.3 where the victim Sarthak, was found in the custody of the present appellant (original accused No.2). The boy and the accused were brought to Vani Police Station. The custody of the boy was handed over to his parents. The memorandum statement of accused Nos. 1 and 2 was recorded. Pursuant to the memorandum, the panchanamas were prepared. In the course of panchnma, two tea powder packets and an identity card of the victim were found at the place at Surat. It was transpired in the course of investigation that on 28.2.2004, after Sarthak purchased the tea packets and returned home, the accused No.1 was waiting on the road in a Maruti van near Arihant Provisions. He lifted the boy and took him into Maruti Van. The original accused No.2 i.e. the present appellant was present in the Van. She administered a pill to the boy due to which he felt drowsy. Thereafter, he was taken to Surat. The investigation was completed and charge sheet was filed on 30.4.2004. The case was committed to the Court of Sessions and registered as Sessions Case No.57 of 2004. The prosecution examined 19 witnesses to bring home the guilt to the accused. 3. The accused have not examined any witness in their defence. PW-1 Sunil Gade, is the Executive Magistrate, who had conducted the test identification parade. In the course of the test identification parade, witnesses Vikram Patil and Jyotsana Upasani identified original accused No.1. The prosecution examined 19 witnesses to bring home the guilt to the accused. 3. The accused have not examined any witness in their defence. PW-1 Sunil Gade, is the Executive Magistrate, who had conducted the test identification parade. In the course of the test identification parade, witnesses Vikram Patil and Jyotsana Upasani identified original accused No.1. 4. PW-2 Kailas Pagar is the father of the victim Sarthak. According to him, on 28.2.2004, he had sent his son Sarthak to Arihant Provision Stores from where he did not return. He informed his younger brother who was residing near the shop to search for Sarthak. He deposed about the circumstances which led him to suspect Samadhan son of Pandurang Ahire who might have kidnapped Sarthak. On 29.2.2004, he lodged a report. On the same day in the evening. At about 7.00 to 7.15 a.m., he had received a phone call from a person who informed him that the child was in his custody and the said person demanded from him a ransom of Rs.5 lakhs. At that juncture, he realised that Samadhan had not kidnapped his son, but somebody else had kidnapped him for ransom. As caller I.D. Was attached to his phone and therefore, it was known that the phone was made from the Village Talasari. On 1.3.2004, he had again received a phone call at 7 to 7.15 p.m. The phone cal1 was made from Vani. The phone number was traced. At that time also the cal1er had questioned him as to whether the amount was ready and had directed him not to report the mater to the police. On 2.3.2004, he again received a phone cal1 from the same person. He accordingly informed the police. The police then informed him that the whereabouts of the boy are known. PW-2 came to Vani Police Station and learnt that Vijay Pandurang Sonawane, resident of MuIane, was arrested and in the course of interrogation, he had admitted that his son is kept at Surat with his beloved Sulakshana Trimbak Birari. In the cross-examination, PW-2 has admitted that on 2.3.2004, accused No.1 had given detailed address as to where he had kept the child at Sural. The accused No.1 was not interrogated in the presence of the complainant. The credibility of the witness has not been shattered in the cross-examination. In the cross-examination, PW-2 has admitted that on 2.3.2004, accused No.1 had given detailed address as to where he had kept the child at Sural. The accused No.1 was not interrogated in the presence of the complainant. The credibility of the witness has not been shattered in the cross-examination. PW-2 has squarely established that he had received phone calls on three occasions and a ransom was demanded from him by keeping the child in detention. PW2 has proved the contents of the FIR which is at Exhibit 35. 5. PW-3 Raghunath Rajput is a resident of Sural. He was called as a panch. He had accompanied the police to Maharana Pratap Society. He had visited the house of Shankar sing Bandusing Jamadar. They searched the house N03 in Maharana Pratap Society where they found one cell phone, tablets, clothes, toys, clothes of boy etc. The panchnama was prepared which is at Exhibit 37. PW-3 is the resident of Maharana Pratap Society. In the cross-examination, he deposed that the police had not opened the cell phone and not tampered with the SIM card in his presence. The credibility of PW-3 is also not shaken and he had duly proved the house search panchnama at Exhibit 37. 6. PW-4 Vilas Bacchav is a medical practitioner. He has acted as panch for the test identification parade of original accused No.1. 7. PW-5 Balasaheb Nirbhavane has acted as panch for the seizure of Maruti van at the instance of accused No. I. According to him, the accused No. 1 was with the vehicle. PW-5 learnt from the police that the vehicle was belonging to accused No.1 and on the basis of the said information, he has stated that the vehic1e belongs to accused No.1. 8. PW-6 Satish Surawanshi is the panch, who had accompanied the accused to Surat. PW-6 has stated that the accused had told him that he wanted to start a Mushroom plant and he needed funds to the tune of Rs.2 lakhs and therefore he kidnapped the boy and taken him to Surat via Chirai. He has further a deposed that room No.3 in Maharana Pratap Society was locked when they went there. The accused No.1 had opened the room. There was c nobody else in the said room. Certain articles were seized from that room. He has further a deposed that room No.3 in Maharana Pratap Society was locked when they went there. The accused No.1 had opened the room. There was c nobody else in the said room. Certain articles were seized from that room. It is elicited in the cross-examination that the father of Sarthak is his brother-in-law an therefore, he had been to Satana on that day. At that juncture, the learned Counsel appearing for the appellant has submitted that by virtue of relationship of this witness with the complainant, he happens to be an interested witness and therefore, he cannot be believed. In fact, he has acted as a panch and has proved the recitals of the panchnama recorded by the police at the time of house search of room No.3 in Maharana Pratap Society. This witness had no occasion to have any grudge against the accused No.1 as the complainant as well as PW-6 were not acquainted with the accused and therefore it cannot be said that his credibility is doubtful only because he is the relative of the complainant. 9. PW-7 Shankarsing Rajput is also a resident of Maharana Pratap Nagar. According to him, Sulochanabai was staying in his room No.3 along with her husband Vaibhav Rajaram Patil since 18.2.2003 and Vaibhav is the accused No.1. They have no issue out of the said wedlock. He has deposed before the Court that on 28.2.2004, he was standing in front of room No.3 at about 8 p.m. and at that time a green coloured Maruti Van came in front of the room. The registration number of the said Van was 06/7798. Vaibhav and Sulochanabai alighted from the said Van with a boy named Munna. Upon enquiry by PW-7, Sulochanabai informed him that the said boy is the son of her sister and then they went to their house. PW-7 has identified the said boy as Sarthak. It was suggested in the cross-examination that he would not be able to remember the date and time when the boy had arrived in Maharana Pratap Society along with the accused persons. PW-7 has identified the said boy as Sarthak. It was suggested in the cross-examination that he would not be able to remember the date and time when the boy had arrived in Maharana Pratap Society along with the accused persons. The witness has identified the boy in the Court as the person whom he had seen in the company of the accused in Maharana Pratap Society and that is sufficient to hold that the boy was in the custody of the accused persons on 28.2.2004/29.2.2004 till he was traced by the police and taken into custody from the custody of the present appellant. 10. PW-8 Rameshbhai Padvi was working as Police Constable and was attached to Limbayat Police Station, Sural. He has deposed before the Court that on 2.3.2004 at about 8.45 p.m. he received a phone call from the Nashik Police Station that a boy is kidnapped and is detained in Room No.3, Maharana Pratap Nagar, Surat. He went to the said room along with other police staff. The appellant along with the boy were found in the room. PW-8 identified the said boy in the Court. He had taken the accused No.2 and the boy to the police station after verifying their identity. PW-8 has been questioned about the identity of original accused No.1. Accused No.1 is not an appellant before this Court. 11. PW-9 Sangeeta Kankriya is the daughter of the proprietor of a grocery shop run in the name and style of Arihant Provisions. On 28.2.2004, Sarthak had purchased two tea packets from her. After some time, uncle of f Sarthak by name Popat had enquired about him. She told him that Sarthak had purchased two tea packets from her on 28.2.2004. 12. PW-11 is Sarthak @ Munna son of Kailas Pagar who is victim himself. He has deposed before the Court that on 28.2.2004 at about 7.00 to 7.15 a.m. his father had asked him to purchase tea powder packet. Hence he had been to Arhiant Provisions in Shyamji Nagar. The shop was closed. He knocked the door. One girl opened the door i.e. PW-9. He purchased two packets. When he was e proceeding home, one green coloured Maruti Van was standing on the road. One person was a standing near the said Van. He accosted PW-11. He asked his name. Thereafter he gagged his mouth and put him in the van. He knocked the door. One girl opened the door i.e. PW-9. He purchased two packets. When he was e proceeding home, one green coloured Maruti Van was standing on the road. One person was a standing near the said Van. He accosted PW-11. He asked his name. Thereafter he gagged his mouth and put him in the van. One woman was sitting in the van. She had pressed his mouth with her hands. Upon enquiry by PW-II, they told him that they were taking him to his uncle. He therefore raised hue and cry. The woman then pressed his mouth so hard that he felt suffocated. She then forcibly administered a tablet to him. He felt giddiness and could not understand what was happening. When he regained his senses, he was in a house. The man and the woman informed him that they were in Bombay. They offered apples to him. On the next day, the man and woman had taken him to the sea. They gave him a joyride and then brought him home. On the 4th day the police had taken his custody. He has identified both the accused who had kidnapped him from front of his house. It was only after he reached Satana he learnt that the uncle and aunt had kidnapped him and had demanded Rs.5 lakhs from his father. He has stated before the Court that the accused were with him for 3 days. He has stated in the cross-examination that his statement was recorded by the police at his house at Satana. It is elicited in the cross-examination that the police had given him a paper on which a statement was scribed in respect of the occurrence of the incident. He had carried that paper with him to Satana. He had read that paper. In the Court also he had read that paper as his parents had told him that he has to depose according to the said statement. In the cross-examination, he has further stated that his statement was also recorded at Surat. He had given a detailed statement of the facts/ incidents which had occurred from the time when he was taken into custody by the duo. He has further stated that his statement was recorded at Nashik also in which he had given details of the occurrence of the incident. He had given a detailed statement of the facts/ incidents which had occurred from the time when he was taken into custody by the duo. He has further stated that his statement was recorded at Nashik also in which he had given details of the occurrence of the incident. He has admitted that police had taken his photograph along with the accused, police and his parents which was relayed on T. V. Accused No.2 was not known to him previously. He has further deposed that when the persons standing near the Van had tried to kidnap him, he attempted to raise shouts but could not succeed because they had pressed his mouth. He had even tried to run away by kicking the man. However, he did not succeed. He had disclosed his full name to that person. He has further deposed that accused No.2 i.e. the present appellant had forced him to drink water after she had administered the tablet. There were suggestions to this witness to show that he had opportunity to run away or make a phone call from the booth during his journey. However, we cannot be oblivious of the fact that the boy was hardly 8 years old at the time of the incident and he must have been taken by surprise. One cannot expect the child to have presence of mind to inform the police on the way as he was in the custody of two unknown persons. They were strangers. He was in a state of fear and threat and, therefore, we cannot expect him to take recourse to inform the police during transit as he must have apprehended danger to his life. 13. PW-12 Javed Shaha is the original owner of Maruti Van bearing No. MH-06/7798. On 6.2.2004, he had agreed to sell the said vehicle to one Rajendra Patio at Rs.40,000/-. He had received Rs.20,000/- and the remainder was to be paid after one month. He has tendered the agreement on record which is marked as Article I. He has identified the accused No.1 as Rajendra Narayan Patil with whom he had entered into an agreement. He had handed over possession of the vehicle to Rajendra Patil. He was demanding the remainder amount of Rs.20,000/-. However, it was transpired that address given by the accused No.1 was fictitious. Hence, he had lodged a report with Ayesha Nagar Police Station. He had handed over possession of the vehicle to Rajendra Patil. He was demanding the remainder amount of Rs.20,000/-. However, it was transpired that address given by the accused No.1 was fictitious. Hence, he had lodged a report with Ayesha Nagar Police Station. He then learnt that the said vehicle was used for kidnapping. He has identified the vehicle which was seized in the course of investigation. He has stated before the Court that he was acquainted with Autowala Shaikh Rafique and had entered into an agreement with Rajendra Patil at the instance of Rafique. It appears that the original accused No.1 had given his fictitious identity from time to time. 14. PW-13 Vasant Pagar is the panch for seizure of the cassettes in which the recording of the phone call received by the complainant was made. The said panchmama is at EX.55. 15. PW-14 Jyotsna Upasani is the resident of Shyamji Nagar, Satana. Her statement was recorded by the police on 29.2.2004. According to her, on 28.2.2004, she was watering "Tulsi" at the backside of her house. She resides in proximity of Arihant Provisions. She saw a boy of about 7 years. He had gone to Arihant Shop. She then saw a green coloured van standing in front of the shop. Alphabets K.G.N were inscribed on that van. As soon as the boy had purchased the tea packets and was returning, he was lifted that boy and put him into the van and had taken away the boy in the van. She has identified accused No.1 in the Court. She has also identified Sarthak as the boy who was kidnapped by accused No.1. She had identified the accused No.1 in the T.I. Parade. 16. PW-15 is Satyaprakash Pandey who was running a STD booth. According to him, on 29.2.2004, when he was in booth shop at about 5 p.m., one person had come to his STD booth and asked him to dial number 0255223895. He had taken a entry in his register to that effect. The said phone number belongs to the complainant. 17. PW-16 Ramdas Sonawane also runs an STD booth. On 2.3.2004, the accused No.1 had been to his booth for making a call. He had dialed number 223895 which is that of the complainant. PW-16 has identified accused No.1 before the Court. 18. The said phone number belongs to the complainant. 17. PW-16 Ramdas Sonawane also runs an STD booth. On 2.3.2004, the accused No.1 had been to his booth for making a call. He had dialed number 223895 which is that of the complainant. PW-16 has identified accused No.1 before the Court. 18. PW-17 Shantaram Awasare is the API to was attached to Vani Police Station in the year 2004. He had received a phone from the P.I. Satana who informed him that a boy was kidnapped and the person who had kidnapped him had contacted the father of the boy from phone number 0255570365 and was talking on that phone. As the police station was near to the spot, he rushed and accosted the original accused No.1. Upon enquiry at the police station, accused No.1 had disclosed that the boy was in the custody of accused No.2 at Surat. He had given detailed address. Pw-17 therefore went to Limbayati Police Station and then to Maharana Pratap Ngar. He had caused house search of room No.3 and seized the articles in the presence of panch as. The house was belonging to one Asha Patil and she was present at that time. Accused No.2 is the same lady who was brought to the police station along with that boy. It is clear that she had also changed her name. However, one thing is established that the kidnapped boy was found in the custody of the present appellant in room No.3 of Maharana Pratap Nagar and the boy was in detention. It is elicited in the cross-examination that he had not recorded the statement of the victim in Limbayati Police Station. He has denied the suggestion that the boy was brought to the police station along with the victim prior to reaching Lingayati Police Station. He has stated that he has not recorded statement of Asha. He ha stated that he has not recorded statement of Asha Patil on that day. 19. PW-19 Ramesh Shinde is the Police Inspector who was attached to Satana Police Station as Police Inspector of 28.2.4004. Kailas Pagar had initially lodged mossing report. He had taken the investigation of Crime No.28/2004. Kailas had informed him on the same day i.e. he received a call from Phone No.2521/220896. 19. PW-19 Ramesh Shinde is the Police Inspector who was attached to Satana Police Station as Police Inspector of 28.2.4004. Kailas Pagar had initially lodged mossing report. He had taken the investigation of Crime No.28/2004. Kailas had informed him on the same day i.e. he received a call from Phone No.2521/220896. wherein ransom of Rs.5 1akhs was demanded and the caller had informed him that he would be informed about the location subsequently where he has to pay the amount. PW-19 arranged for a trap at the S.T. Booth at Village Talasari and had accosted accused No.1. He had recorded memorandum of original accused No.1. The school identity card of Sarthak was seized. It appears that there are certain lapses on the part of the Investigating Officer in respect of the handwriting in the handbook record. 20. Upon perusal of the evidence adduced by the prosecution, it is clear that:- (i) The prosecution has established that the boy Sarthak @ Munna Kailas Pagar was kidnapped by original accused No.1. (ii) The lady who was accompanying the original accused No.1 was in the Van in which Sarthak was taken to Surat. (iii) While in transit, she had not only gagged the mouth of the victim, but had administered a tablet and forced him to drink water after which he felt drowsiness while in transit. (iv) On 2.3.2004, at the instance of original accused No.1, the police had been to room No.3 of Maharana Pratap nagar at Surat. The victim was found in the custody of the present appellant. (v) The victim had disclosed to the police that he was in the custody of the accused No.2 from 28.2.2004 to 2.3.2004. (vi) The victim had also disclosed that he was in the company of both the accused during that period. (vii) The original accused No.1 had made phone calls for ransum. (ix) That the appellant had shared the common intention with the original accused No.1. It was a premedidated step and therefore, she was aware that the boy has been kidnapped for a ransom. 21. The learned Counsel for the appellant submits that the appellant had not personally demanded ransom and therefore she is not liable to be convicted under Section 364A of IPC. She can, at the most, be convicted for offence punishable under Section 363 of IPC and may be sentenced to the period already undergone. 21. The learned Counsel for the appellant submits that the appellant had not personally demanded ransom and therefore she is not liable to be convicted under Section 364A of IPC. She can, at the most, be convicted for offence punishable under Section 363 of IPC and may be sentenced to the period already undergone. The learned APP has submitted that the accused No.2 had shared the common intention with the original accused No.1 and therefore it can be said that she also had the knowledge that the child was kidnapped for a ransom. 22. Section 364A of IPC is punishable with death or imprisonment or life and fine. In the case of Ram Chandra and another vs. State of U.P. Reported in AIR 1957 SC 381 , the Apex Court has held that "In a case like this where the two accused acted in concert by virtue of a common intention and of a criminal conspiracy, their entire activities cannot, in the very nature of things, be brought out in evidence. Obviously such daring offences would necessarily have called for active planning and co-operation of both these accused together and probably of others. It is not, therefore possible to make any distinction between them even as regards the sentence." 23. In view of the aforesaid case and upon appreciation of evidence, the appellant cannot be awarded with a different sentence. She does not deserve any leniency in any way. Hence, the findings recorded by the Sessions Judge do not call for any interference and conviction of the appellant for offence punishable under Section 364-A read with Section 34 of IPC is upheld. The Appeal is dismissed. Appeal dismissed.