*THE HON’BLE SRI JUSTICE R.KANTHA RAO +Criminal Appeal No.1385 of 2006 % 25-08-2011. # 1. V.Sandeep Chowdary @ Vajram @ Sandeep 2. Mohd.Saleem … Appellants/A-1 & A-4 Vs. $ State of Andhra Pradesh, Rep. By Public Prosecutor, High Court, Hyderabad. … Respondent/State ! Counsel for the Appellants: Sri T. Venkat Reddy ^ Counsel for the Respondent: Addl. Public Prosecutor, High Court of A.P., Hyderabad. < Gist: > Head Note: ? Cases referred: IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAAY THE TWENTYFIFTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1385 OF 2006 Between: 1. V.Sandeep Chowdary @ Vajram @ Sandeep 2. Mohd. Saleem … Appellants-A1 & A4 V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad. … Respondent-Complainant Counsel for the Appellants : Sri T.Venkat Reddy Counsel for the Respondent : Addl.Public Prosecutor The Court made the following : (Judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1385 OF 2006 J U D G M E N T : This Criminal Appeal arises out of the judgment passed by the II-Additional Metropolitan Sessions Judge, Hyderabad in SC.No. 468 of 2005, dated 20-09-2006 convicting A-1 and A-4 the appellants herein for the offence punishable under section 365 of IPC and sentencing each of them to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.1,000/- each and in default to suffer Simple Imprisonment for a period of three months each. 2. Briefly stated is the prosecution case is that on 12-04-2005 at about 05:30 a.m., PW-1Mr. V.Chanmundeswaranath went for wakj to K.B.R. Park, parked his car at Gate No.1 of KBR Park Opposite TDP Office and came out of the car. Immediately some unknown persons pushed him into a white Maruti Van, masked his face with monkey cap and took him away in the said van. After 20 minutes of journey in the Maruti Van they shifted him into TATA Sumo van and removed the mask from his face. At that time PW-1 saw A-1 in driving seat of Tata Safari, who demanded him an amount of Rs.5 lakhs as ransom. It is said that the friends of PW-1 who were watching the incident at the KBR Park reported the incident to the Police and the Police were alerted. Thereafter the Police started calling on his cell phone and they also alerted all the police stations. It is the version of the prosecution that while PW-1 was stopped he received a phone call, A-1 switched off the speaker of phone as he noticed that the call was made by none other than the Assistant Commissioner of Police, Banjara Hils. On knowing the said fact, A-1 and others dropped PW-1 at Masab Tank and threatened to kill him if he reveals their names to anybody. Thereafter, PW-1 came to the Police Station Banjara Hills and lodged a report. Basing on his report, a case in Crime No.325/2005 for the offence under section 365 IPC was registered and investigated into by PW-10 the Inspector of Police. After completing the investigation, a charge sheet was laid against nine accused. A-7 to A-9 were found by the Investigating Officer absconding and the trial proceeded against A-1 to A-6. 3. The A-1 to A-6 were tried by the learned trial Court for the following charges: Firstly, under section 364-A of IPC; Secondly, under section 365 of IPC and Thirdly, under section 386 of IPC. 4. The prosecution in order to prove the guilt of A-1 to A-6 before the trial Court examined PWs 1 to 11, marked Exs.P-1 to P-18 and MOs-1 to 4. 5. The learned trial Court acquitted A-2, A-3, A-5 and A-6 of all the charges but convicted A-1 and A-4 the appellants herein for the offence under section 364 of IPC and sentenced them to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.1,000/- each and in default to suffer Simple Imprisonment for a period of three months each. 6. Now the point for consideration is that whether the order of conviction and sentence passed by the learned trial Court can be sustained ? 7. The defence version is that in fact no incident as alleged by the prosecution did take place. PW-1 created a false story to implicate A-1 and the remaining accused, since A-1 had a love-affair with the daughter of PW-1 and wanted to marry her and it was against the will of PW-1. According to the defence, PW-1 wanted to threaten A-1 and his friends, and therefore, resorted to file a false report with the police and using his influence against the police some how got filed the charge sheet against them. 8. In view of the theory putforth by the defence, the evidence of the prosecution witnesses has to be scrutinized with great care and caution and a decision has to be arrived at basing on the probability factor. PW-1 Mr.V.Chamundeswarnath was the Chairman of the Selection Committee of Ranji Trophy and admittedly a person having influence in the police circle. To test the veracity of his version, it is necessary to look into the report lodged with the police, which is marked as Ex.P-1. A perusal of Ex.P-1 reveals that does not contain the name of A-1. It also does not contain the fact of A-1 demanding ransom of Rs. Five lakhs from PW-1. Further according to the version of PW-1 earlier on 19-2-2005 at about 05:30 a.m. while PW-1 who came for walk opposite to Cancer Hospital three persons suddenly came there, took him in Tata Safari Car. At that time also they put mask to his face and took him to Kukkatpalli and demanded him Rs.10,00,000/-. PW-1 stated before the trial Court that he told them that he did not have such huge amount and told that he would pay whatever money he got if they came to his house. Accordingly they came along with A-1 to his house in the car and A-2 followed on scooter and he paid them Rs.4,40,000/-. It is also his version before the trial Court that at that time he was having 300 Uros and credit cards in his valet. A-1 and A-2 took 300 Uros. 9. Strangely, PW-1 stated before the trial Court that he did not inform the incident to the Police and he offers the explanation for not giving report to the effect that A-1 threatened him to kill and being afraid of A-1 and his associates he did not give any report. Even in Ex.P-1 report which was lodged by PW-1 in regard to the present incident also he did not make any mention about the incident which occurred on 19-2-2005. Therefore, non-mentioning of earlier incident even in Ex.P-1 report and non-mentioning of the fact of A-1 demanding him to pay Rs. Five lakhs, is a serious lapse in the prosecution version and would certainly vitiate the case of the prosecution. This aspect assume importance because from the evidence of PW-1 it is obvious that he is familiar to the police officials and he received a phone call from the Assistant Commissioner of Police, Banjara Hills while he was being taken in Maruti van by A-1 and others. After the entire incident when he was let-off by A-1 and his associates, he came to the Police Station and lodged Ex.P-1 report. Therefore, it is highly difficult to believe that he being afraid of A-1 and his associates, hesitated to mention about the earlier incident and to disclose the name of A-1 to the police. 10. PW-10 the Investigation Officer admitted in the cross- examination that before registering FIR the Sub-Inspector of Police made G.D. entry, the FIR in Crime No. 325/2005 the GD entry is shown at 09:27 a.m. Therefore, even before PW-1 received Ex.P-1 report, the Police concerned received information about the inaction of abduction of PW-1 but no crime was registered. He also admitted in the cross-examination, that PW-1 did not state before him that A-1 took away Uros and credit cards from PW-1 when the earlier incident occurred on 19-2-2005. He also admitted in the cross-examination that PW-1 stated to him that he gave 300 Uros currency and Rs.4,40,000/- Indian currency to A-1 and A-2 and that A-1 and A-2 took away his purse containing the said Uros currency and credit cards. PW-10 admitted that PW-1 did not state before him that A-1 accompanied him in his car on that day and A-2 followed him on the scooter to the house of PW-1. According to the evidence of PW-10, PW-1 stated before him that he gave a complaint in the Bank about the loss of credit cards and requesting them to cancel the credit cards but even though an amount of Rs.4,40,000/- was extorted from PW-1. It is quite unconvincing that PW-1 did not lodged any report with the police on 19-2-2005. The evidence of PW-1 therefore is unconvincing, omission to mention material facts in the F.I.R. namely about the earlier incident on 19-2-2005 when amount of Rs.4,40,000/- was extorted by A-1 and A-2 from PW-1 and non-mentioning the name of A-1 and his demanding ransom of Rs. Five lakhs renders the version of the prosecution witnesses before the court untrustworthy and basing on such evidence the learned trial Court ought not to have convicted the appellants for the offence under section 365 of IPC. Section 365 of IPC reads as follows : Kidnapping or abducting with intent secretly and wrongfully to confine person - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine. 11. Even if the entire evidence of PW-1 in regard to the incident is believed, it does not attract the offence under section 365 of IPC and the conviction recorded by the trial Court against the appellants for the offence under section 365 of IPC is not only unsustainable but also bad in law. 12. Further the learned trial Court acquitted the appellants for the offences under section 364-A and 386 of IPC disbelieving the entire prosecution version. If that is so, there is no basis for the trial Court to invent a third case and convict the appellants for the offence under section 365 of IPC. Moreover when the evidence of PW-1 tested on the probability factor it does not inspire any confidence and it is quite unsafe to convict the appellants basing on the testimony of PW-1. 13. For the foregoing reasons, the order of conviction and sentence passed by the learned trial Court against the appellants under section 365 of IPC is set aside and the appellants are acquitted of the said offence. The appeal is therefore allowed. The fine amount, if any, paid by the appellants shall be refunded to them. ______________________ JUSTICE R. KANTHA RAO. 25-08-2011 I s L NB: LR copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No. 1 3 8 5 OF 2006 Circulation No. 22 Date:25-08-2011 Court Master: I s L Computer No. 43