1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5836 OF 2009 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Asha laxmichand Lalan and Anr. ..Respondents [Ori.Accused Nos.1 & 2] .... Mr.V.B.Konde-Deshmukh APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : APRIL 12, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 8.10.2009 passed by the learned 5th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No. 978 of 2002. By the said judgment and order, the respondents i.e. original accused nos.1 and 2 came to be acquitted of the offences under Sections 120-B, 342, 343, 347, 364A, 384 and 387 read with Section 120-B or in the alternative read with Section 34 of IPC. 2 2 The prosecution case briefly stated, is that all the accused persons entered into a conspiracy to abduct PW 2 Dr. Umesh Tare. Accordingly, Dr. Tare was abducted on 2.12.1999 and 5.2.2000 by the accused persons. He was confined, beaten and harassed and demand for ransom also came to be made. FIR came to be lodged by PW 1 Sandhya Tari, wife of PW 2 Dr. Tari on 13.2.2000. After completion of investigation, charge sheet came to be filed against the respondents- accused. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Additional Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 4 In order to prove its case, prosecution has relied on the evidence of the complainant PW 1 Mrs. Sandhya Tari and PW 2 Dr. Umesh Tari. It is pertinent to note that the prosecution is in respect of 3 two incidents i.e. first incident which occurred on 2.12.1999 and the subsequent incident which occurred on 5.2.2000. As far as the incident dated 2.12.1999 is concerned, no report was lodged either by PW 1 Sandhya or PW 2 Dr.Umesh Tari in respect of the same. There is no explanation from the side of the prosecution as to why no report was filed in respect of the incident which occurred with PW 2 Dr. Umesh Tari in the month of December, 1999. It may be stated that as far as the incident dated 5.2.2000 is concerned, the names of these accused have not been disclosed by witnesses in connection with the actual incident of kidnapping. 5 In her evidence, the complainant PW 1 Sandhya Tari has stated that on 5.2.2000 her husband Dr. Umesh Tari left the house at about 10.30 a.m. intimating to her that he was leaving. However, till late night, he did not return back to the house. On 6.2.2000 also for entire day, he did not return back to the house. She was totally in dark about the whereabouts of Dr. Umesh during that period. She was waiting for her husband and ultimately on 7.2.000 she went to the police station and lodged missing complaint about her husband since 5.2.2000. 6 PW 2 Dr. Umesh Tari has stated that on 28.1.2000, 5 to 6 persons came to his clinic. They threatened him and asked him to come 4 on the next day i.e. on 29.1.2000 to Dagadi Chawl. When he was going to Dagadi Chawl, at that time, he was informed on telephone that he should not meet the accused at Dagadi Chawl but instead on 5.2.2000 he should come to Lokhandwala garden at about 5.30 p.m. The evidence of PW 2 Dr. Tari further shows that he had received several threatening calls and that the accused used to harass him, hence, on 4.2.2000 he wrote a chit (Exhibit 15) in respect of the harassment and torture at the instance of both the accused. He kept the said chit in the drawer and told his wife (PW 1 Sandhya) that if he did not come back on 5.2.2000 from Dagadi Chawl, then she should give the said chit (Exhibit-15) to the police. 7 On the other hand, PW 1 Sandhya in her examination in chief has stated that on 13.2.2000 when she was working in the house she opened the drawer of the table, she found three letters including letter (Exh.15) in the handwriting of her husband. On going through the chit she came to know that her husband was kidnapped in a Tata Sumo by the accused persons for ransom, hence, she lodged FIR (Exhibit-16) on 13.2.2000. It is her case that on going through letter dated 4.2.2000, she came to know that her husband has been kidnapped by some persons for ransom and that respondents were involved in the 5 kidnapping of her husband. Both PW 1 Sandhya and PW 2 Dr. Umesh Tari have deposed that the said chit (Exh.15) bears handwriting and signature of PW 2 Dr. Umesh Tari. If we consider this important piece of evidence then it is seen that the evidence of PW 1 Sandhya and PW 2 Dr. Umesh Tari is quite contradictory. Dr. Tari states that he had informed his wife about the contents of the chit before he left the house and also informed her that she should go with the chit to the police if he did not return on 5.2.2000. On the other hand, his wife states that she came across the chit by accident on 13.2.2000 and hence, she went to the police on 13.2.2000. 8 Though it is the prosecution case that PW 2 Dr.Tari came to be kidnapped by the accused persons on 5.2.2000, PW 1 Sandhya has lodged missing complaint with the police only on 7.2.2000. We find that the conduct of the complainant PW 1 Sandhya is very unnatural which makes her evidence unreliable. Though her husband did not return home on 5.2.2000, she did not even go to dispensary of her husband to verify whether he was available at the dispensary or not. Nor has she made any telephone call to the dispensary of her husband, to find out his whereabouts. Her evidence reveals that she did not make enquiries with anyone regarding whereabouts of her husband. This particular 6 piece of evidence raises doubt in the mind whether really PW 2 i.e. the husband of this witness was kidnapped on 5.2.2000. It is further pertinent to note that after lodging the missing report, PW 1 Sandhya has not made any enquiries with the police regarding the progress in the matter. The conduct of PW 1 Sandhya is totally unnatural as she was expected to make enquiry about her husband. However, the absence of any enquiry at all by her about whereabouts of her husband, raises serious doubt about the veracity of the prosecution case. It is highly unnatural on her part that she would remain silent though there were threatening calls from anti-social elements to her husband in December, 1999 and January, 2000 and not mention the same in her missing complaint. 9 In fact, from the evidence of PW 2 Dr. Tari it can be gathered that there was a complaint against PW 2 Dr. Tari and one Dr. Nadkar in respect of taking amount from the accused persons as well as other persons. In such case, the possibility of filing false complaint against the present respondents and others in order to avoid payment of the said amounts in the facts and circumstances of the present case, cannot be ruled out. 7 10 The evidence of PW 1 Sandhya shows that Dr. Nadkar expired and after death of Nadkar, her husband was receiving threatening calls either at his dispensary or at the house. Due to this, her husband was under tension. When she enquired with her husband as to what happened, her husband used to tell her that he was receiving threatening calls. She has further deposed that respondent nos.1 and 2 were threatening her husband that he should return the amount back otherwise they would kill her husband. She has further deposed that as her husband was disturbed and as he was under pressure and tension, probably he must have left the house and therefore, after waiting for two days, she lodged a missing complaint with the police on 7.2.2000. These facts show that she had specific knowledge that both the respondents were threatening her husband that he should return back their amount otherwise, they would kill him, yet she had not made any mention about this fact in the missing complaint nor thought it fit to lodge any FIR against the respondents on the very day i.e. on 5.2.2000 or even on 7.2.2000. 11 PW 1 Sandhya has admitted that on 5.2.2000 she was aware that there were threatening calls to her husband and therefore, it was suspected by her in the late night of 5.2.2000 and in the early morning of 8 6.2.2000 that her husband may have been kidnapped. However, despite this fact, her further deposition shows that she did not enquire about the whereabouts of her husband with his friends or with any of his relatives nor has she approached the police on 5.2.2000 or 6.2.2000. These admissions render her evidence unbelievable. 12 Even as far as evidence of PW 2 Dr. Tari is concerned, it is his case that he had received threatening calls from the accused and he also received telephone call that he should meet the accused at Dagadi Chawl on 29.1.2000. Thereafter, he was informed that instead of Dagadi Chawl, he should come on 5.2.2000 at Lokhandwala garden at about 5.30 p.m. Yet he has not approached the police. His further evidence shows that he was kidnapped by the absconding accused persons at the behest of the present respondents. In his evidence, he has stated that first he was taken to Goa, from Goa, he was taken to Delhi, from Delhi, he was taken to Indore then he was taken to Udaipur. From Udaipur, he was taken to Ahmedabad and thereafter to Rajkot. His evidence shows that he was taken to various places by aeroplane from 5.2.2000 till 23.2.2000. It is a well known fact that police personnel and security personnel are always present at the entrance of the airport, the security check area and at the boarding gate at the airport and that every 9 passenger has to pass through these areas to board the aeroplane. Despite the fact that he had travelled from place to place with other accused by flight, at no point of time, he made any attempt to escape or to complain to the police authorities who are always present at every air- port. This conduct on his part also raises serious doubt and shakes the very substratum of the prosecution case. According to Dr.Tari, on 23.2.2000 he was left by the accused persons at Dwarka bus stand and they gave him Rs. 350/- in order to go home. From Dwarka, he came by bus to Rajkot, then he came to Ahmedabad, then he came to Udaipur and then to Kandivali and then he reached his house on 24.2.2000 at 1 a.m. 13 It is the specific case of both PW 1 and PW 2 that threatening calls were received and calls seeking ransom were received at their residence and at the dispensary of PW 2 Dr. Tari. However, the evidence of PW 2 shows that they had shifted their residence and there was no telephone connection to their house. This fact also falsifies their case to a great extent. 14 We find the evidence of PW 1 Sandhya and PW 2 Dr.Umesh Tari is totally unreliable and unacceptable. The evidence of PW 1 10 Sandhya and PW 2 Dr. Umesh Tari is contradictory to each other and the evidence of PW 2 Dr. Umesh Tari is also full of improvements. There are several circumstances which go against the prosecution and in our opinion, the prosecution has failed to prove any sort of offence against any of the respondents by cogent, sufficient, reliable and acceptable evidence. 15 Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view. 16 The Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 17 In view of the above, application for leave to file appeal, is 11 rejected. Consequently the appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]