1 Cri.Appeal No. 147 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 147 OF 2010 Santosh s/o Mahadeo Shinde, Age : 27 years, Occu.Driver, R/o Sumthana, Tal. Renapur, Dist. Latur ..APPELLANT (Orig. Accused) VERSUS The State of Maharashtra, Through M.I.D.C. Police Station Latur, Dist. Latur ..RESPONDENT Mr B.R. Kedar, Advocate for the appellant; Mr S.K. Tambe, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 15th June, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 364-A and section 394 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo R.I. for one month, with a direction that the 2 Cri.Appeal No. 147 of 2010 substantive sentences shall run concurrently, by the Ad hoc Additional Sessions Judge, Latur, by judgment dated 17.3.2010, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus :- P.W.5 A.S.I. Janardhan Narwade, who was attached to the Renapur police station was on patrolling duty from 21.9.2006 to 22.9.2006, between 11.00 p.m. to 5.00 a.m. He accordingly proceeded from the police station for patrolling at 11.30 pm. and went towards the Pimpal Phata (Pimpal cross roads) via Ambajogai road and reached near the Datta Mandir at 4.00 a.m. He saw one Tata Sumo vehicle of red colour parked near the road being registration No.MH24-C-1254. On seeing the said vehicle, the jeep in which P.W.5 A.S.I. Narwade was travelling was stopped. They heard cries for help of one boy and one girl and accordingly alighted from the jeep and noticed one boy and one girl tied with wire in the Tata Sumo vehicle. They asked the Driver of the Tata Sumo to open the door of the vehicle, but the Driver did not open. As the boy and the girl were crying loudly, the front windshield was broken with sticks. The Driver of the Tata Sumo suddenly started his vehicle in speed towards Ambajogai. At some distance, the boy and the girl jumped from the Tata Sumo vehicle. Meanwhile, the jeep of P.W.5 A.S.I. Narwade chased the Tata Sumo vehicle and gave information on wireless 3 Cri.Appeal No. 147 of 2010 to the Renapur Police Station, Control Room, Latur and Bardapur Police Station. The Tata Sumo vehicle was over-taken and accosted near the Bardapur Pati. The jeep and the vehicle accordingly started returning back. They reached near the Pimpal phata and saw the boy and the girl there. The boy and the girl accordingly identified the Driver of the Tata Sumo vehicle and the Driver disclosed his name as Santosh, who is the appellant in this appeal. The boy disclosed his name as Abhinav Koyle (P.W.6) and the girl disclosed her name as Mayuri Mane (P.W.9). The boy and the girl were then handed over to the M.I.D.C. police at the Pimpal Phata. P.W.7 Mahadeo Pawar, P.S.I. attached to the M.I.D.C. Police Station, Latur, was also on night patrolling duty on 21.9.2006 in the M.I.D.C. area of Latur. While patrolling he received a telephone of P.W.8 Manohar Mane, who informed him that one unknown person had abducted his daughter and one boy from the Ambajogai road. P.W.8 Manohar Mane had obtained the telephone number of P.W.7 Mahadeo Pawar from the M.I.D.C. Police Station. At about 4.30 to 4.45 a.m. a wireless message was received from Renapur Police station that they had found one boy and one girl in the Renapur area and they had detained a Tata Sumo vehicle with its Driver. The wireless message further requested P.W.7 P.S.I. Pawar to reach the spot of the incident. Accordingly P.W.7 P.S.I. Pawar proceeded to the Renapur Naka in a jeep and found one boy and one girl there. He inquired from them and they disclosed to him the entire incident. The boy and the girl were thereafter brought to the M.I.D.C. Police Station. P.W.10 A.P.I. Chavan, who was 4 Cri.Appeal No. 147 of 2010 attached to the M.I.D.C. Police Station, Latur recorded the complaint of P.W.6 Abhinav Koyale at Exh.36. On the basis of the report of P.W.6 Abhinav an offence vide Crime No.172 of 2006 under section 366-A, 384 and 304 of the Indian Penal Code came to be registered. On 22.9.2006 P.S.I. Pawar had produced the Tata Sumo vehicle bearing registration No.MH24-C-1254. There were some wires in the said vehicle and the said vehicle came to be seized under the panchnama at Exh.26 in the presence of panch witnesses. A cell phone of Nokia company also came to be seized in the presence of panchas at Exh.27. The complainant i.e. P.W.6 Abhinav Koyale was referred for medical examination along with the requisition at Exh.55. P.W.10 A.P.I. Chavan then visited the scene of the incident and drew the scene of the offence panchnama at Exh.28. The accused came to be arrested. Statements of witnesses came to be recorded. On 23.9.2006 P.W.9 Mayuri was referred for medical examination. During custodial interrogation the accused expressed his willingness to point out the place where the gold rings and cash of Rs. 300/- and one knife were kept. Accordingly, memorandum at Exh.29 came to be drawn in the presence of panch witness. The accused then led the police and the panch to the scene of the incident and produced the articles which came to be seized vide panchnama at Exh.30. Further to the completion of investigation, a charge-sheet against the present appellant came to be filed. 5 Cri.Appeal No. 147 of 2010 3. On committal of the case to Court of Sessions, Trial Court vide Exh.15 framed charge for an offence punishable under section 364-A, 384 and 394 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. The defence of the appellant/accused is that P.W.6 Abhinav and P.W.9 Mayuri were in search of privacy and accordingly had engaged his vehicle and had asked him to drive to the lonely place. While the appellant was asked to go out of the vehicle, P.W.6 Abhinav and P.W.9 Mayuri were in the privacy of the vehicle. The Trial Court repelled the defence of the appellant/accused and accepted the prosecution case and accordingly convicted and sentenced the appellant. 4. In order to appreciate the evidence of the prosecution, it would be useful to refer to the evidence of P.W.6 Abhinav. P.W.6 Abhinav, a boy of 20 years, states that he was studying in 12th standard at the Dayanand Science College, Latur in 2006. He states that P.W.9 Mayuri was his classmate at that time. On 21.9.2006, after attending the tuition classes, he along with Mayuri went to the ring road, Latur on a red coloured scooty. One Tata Sumo vehicle bearing registration No.MH24-C-1254 came from behind and twice swerved at the scooty and then proceeded further. On the third occasion when the Tata Sumo vehicle swerved again at the scooty, the scooty fell on the road along with P.W.6 Abhinav and P.W.9 Mayuri. The Driver of the Tata Sumo vehicle alighted from the vehicle and pointed the knife at the neck of Mayuri. The Driver took 6 Cri.Appeal No. 147 of 2010 Mayuri in his vehicle and the Driver also threatened P.W.6 Abhinav that he would assault Abhinav on his stomach with a knife if Abhinav resisted it. The Driver then took Abhinav in the vehicle and drove his vehicle towards the Ambajogai side. The Driver removed the gold ring weighing 2-1/2 grams and also removed the gold ring from the fingers of Mayuri weighing about 3 grams. The Driver of the Tata Sumo asked Abhinav to tie the hands and legs of Mayuri and accordingly Abhinav tied the hands and the legs of Mayuri with a wire. The Driver then tied the hands and legs of P.W.6 Abhinav and also assaulted Abhinav and Mayuri with the wire. The Driver of the vehicle, the accused, stopped the vehicle near one temple and demanded ransom of Rs.60,000/- stating that they were having an affair. The Driver removed the mobile phone of Nokia company from Mayuri and cash of Rs.300/- from Abhinav. At about 4.00 a.m. one police vehicle came there and on seeing the vehicle Abhinav and Mayuri started crying for help. The police broke open the glass of the jeep and the accused then started the vehicle. Abhinav and Mayuri jumped from the vehicle while police chased the Tata Sumo vehicle. Abhinav and Mayuri came to Pimpal Phata on walk and narrated the incident to the persons who were present at the Pimpal Phata. The police apprehended the accused who was Driver of the said vehicle and brought him at the Pimpal Phata. The accused disclosed his name as Santosh Mahadev Shinde. The police then brought Abhinav and Mayuri and the accused to the M.I.D.C. Police Station. He has identified the gold ring (Article 2) to be belonging to Mayuri while Article no.3 gold ring has 7 Cri.Appeal No. 147 of 2010 been identified by Abhinav as belonging to him. He has also identified the currency notes of Rs.100/- as belonging to him. He has also identified the appellant/accused, who was present in Court as the Driver of the said vehicle. He states that he had accordingly lodged his report at Exh.36. In cross-examination he has admitted that the tuition class was from 7.00 p.m. to 8.45 p.m. on 21.9.2006. He has admitted that he proceeded from his house at 6.45 p.m. for attending the class. He has admitted that he was not going with P.W.9 Mayuri daily for a ride. He has admitted as true that the area of the ring road is isolated. He has further stated that he does not remember whether the street lights were functioning on the ring road. He could not assign any reason as to why he had chosen to go to ring road for a ride. He has denied the suggestion that he and Mayuri were having an affair. He has admitted that Mayuri was driving the scooty. He has further admitted that they were on the ring road between M.I.D.C. to Renapur cross roads when the accused had swerved at their scooty. He has admitted that when the accused had dashed at their scooty, it was dark. He has admitted that when the accused pointed the knife towards Mayuri he had not resisted the accused. Abhinav volunteered to say that the accused had threatened him and, therefore, he had not resisted. He has further admitted that after keeping Mayuri in the Tata Sumo vehicle the accused came towards him. He has admitted that the accused did not stop the jeep till they reached near the temple. He has admitted that the accused had stopped the jeep when he had asked Abhinav to tie the hands and legs of Mayuri. He 8 Cri.Appeal No. 147 of 2010 has further admitted that the accused removed the rings before tying their hands and legs. He has admitted that he and Mayuri were in the rear portion of the Tata Sumo vehicle while the accused was sitting at the Driver's seat. He has further admitted that the Tata Sumo vehicle had dark tinted glasses and they were closed. He has denied the suggestion that when he and Mayuri had jumped out of the vehicle, they were nude. He has admitted that when the vehicle started, after seeing the police vehicle, he had untied the hands and legs of Mayuri. He has denied the suggestion that he had walked up to the Pimpal Phata (cross roads) and at that time they were nude. He has denied the suggestion that he along with Mayuri had first gone to the Painjan Tamasha Theatre and had borrowed clothes and thereafter had gone to the Pimpal Phata. 5. Prosecution has examined P.W.9 Mayuri. She states that she was studying in 12th standard (Science) at the Dayanand Science College, Latur. She has admitted that P.W.6 Abhinav was also studying in the same college. She has stated that the tuition class on the day of the incident was from 7.30 p.m. to 8.45 p.m. She states that after attending the tuition she along with P.W.6 Abhinav went for a ride on her scooty near the new Renapur Naka. At that time one jeep swerved at them twice and on the third occasion swerved and dashed her scooty. She has identified the jeep by its registration No.MH24-C-1254. She further states that because of the dash she and Abhinav fell on the road. The accused alighted from the jeep and threatened her and asked her to sit in 9 Cri.Appeal No. 147 of 2010 the jeep by pointing a knife at her. She states that the accused had also threatened P.W.6 Abhinav and thereafter at the point of knife had made him sit in the jeep. The jeep was started and after some time the accused asked P.W.6 Abhinav to tie the hands and legs of Mayuri. Initially, P.W.6 Abhinav declined to tie the hands and legs but the accused threatened him at the point of knife. P.W.6 Abhinav accordingly tied her hands and legs and the accused thereafter tied the hands and legs of P.W.6 Abhinav and proceeded towards the Ambajogai side. The accused stopped his jeep near the temple after crossing the Renapur Phata (Renapur cross roads) and threatened P.W.6 Abhinav and Mayuri that as they were having illicit relations they should give the accused Rs.60,000/- or he would defame them and inform their respective family members. The accused had also threatened that he would not keep them alive. The accused then snatched the gold ring and her cell phone and also removed the gold ring and cash of Rs.300/- from P.W.6 Abhinav. Mayuri then states that at about 3.30 to 3.45 a.m. a telephone call was received on her mobile. The caller was father of Mayuri and the accused threatened her father and demanded an amount of Rs.60,000/- or he would kill P.W.6 Abhinav and Mayuri. At about 4.00 to 4.30 a.m. the police patrolling jeep came near the vehicle in which Mayuri and Abhinav had been compelled to sit. She states that on seeing the patrolling vehicle she and Abhinav began crying for help and upon hearing their cries the patrolling vehicle stopped. The police asked the Driver to open the door of the jeep and the Driver refused, so the police broke the front 10 Cri.Appeal No. 147 of 2010 windshield of the jeep and also tried to open the door. She states that the rear door some how was opened and she and P.W.6 Abhinav, after untying themselves, jumped from the jeep. The Driver of the jeep started the jeep and went towards the Ambajogai side while the police jeep chased him. She further states that she along with Abhinav came to the Pimpal Phata (Pimpal cross road) by walking and narrated the incident to the persons who were present there. Meanwhile the police jeep arrived there along with the accused and the police questioned the accused who disclosed his name as Santosh. She and Abhinav were then brought to the M.I.D.C. Police Station where Abhinav lodged his report. She states that she was referred to the Civil Hospital, Latur and thereafter her father took her to her house. 6. In cross-examination she has admitted that Abhinav is not her relative. She has admitted that she was acquainted with P.W.6 Abhinav since he was in the 9th standard. She states that on the day of the incident she completed her tuition at about 8.45 p.m. and then she and P.W.6 Abhinav decided to go for a ride. She has admitted that Abhinav used to attend the tuition class on a motorcycle. She states that on the day of the incident as there was insufficient petrol in the motorcycle, Abhinav parked his motorcycle in front of a shop and thereafter both of them proceeded on her scooty towards the ring road. She has admitted that the ring road is an isolated area where there are no residential houses and at the time of the incident there was darkness. She has 11 Cri.Appeal No. 147 of 2010 admitted that the vehicle of the accused came from behind. She has stated that P.W.6 Abhinav was driving the scooty. She has admitted that she had sustained a bleeding injury on her knees and elbow. She has admitted that when the accused placed the knife at her neck Abhinav was attempting to stand. She has stated that when the accused took her towards the jeep, at that time Abhinav was standing on the road. She has stated that when the accused placed the knife on the stomach of Abhinav, she did not try to rescue Abhinav. She states that when they had reached the Datta Mandir, the accused threatened them for about fifteen minutes and thereafter removed the gold rings. She has admitted that she and Abhinav had not cried for help when the other vehicles had passed their vehicle as the other vehicles were going in speed. She has admitted that all the doors of the jeep were locked and the windows were closed. She has denied the suggestion that she and Abhinav were nude when they had jumped from the jeep. She has denied the suggestion that in that condition they had walked upto the Pimpal Phata. She has denied the suggestion that she was nude when she was brought to the Renapur Police Station. She has admitted that she along with Abhinav had gone for a ride prior to the date of the incident. The other suggestions pertaining to the defence of the accused have been denied by Mayuri. 7. Prosecution has examined P.W.2 Rajbhau Mane, the Manager of the Painjan Loknatya. P.W.2 Rajabhau states that since four years he was working as Manager of the "Painjan Loknatya Pimpal Phata". He 12 Cri.Appeal No. 147 of 2010 states that on the day of the incident, at about 3.30 to 4.00 a.m. he had come at the Pimpal Phata along with one Sahebrao Buktar and had noticed one boy and one girl while coming towards the Pimpal Phata. Both of them were frightened and he, therefore, asked the boy and the girl how they had come there and where they were residing. The boy and the girl then narrated to him the entire incident. At about 5.00 a.m. to 6.00 a.m. the police brought the accused and thereafter went towards the Police Station. In cross-examination he has admitted "the boy and the girl were having wearing clothes.". 8. P.W.3 Ashok Koyale, father of P.W.6 Abhinav states about Abhinav studying in 12th standard and attending the tuition classes. He has stated that P.W.8 Manohar Mane was residing near his house. He states that on 21.9.2006 Abhinav had gone to attend the class as usual but did not return home. He states that he had inquired from the friends of Abhinav but could not trace his whereabouts. He states that on the same day, at about 3.00 to 3.30 a.m. he received a call from one person who informed him that his son Abhinav was in his custody and if he wants Abhinav back, an amount of Rs.60,000/- be paid as ransom. He states that at about 4.00 to 4.15 a.m. he received a call from P.W.8 Manohar Mane, who also informed him that Abhinav and Mayuri had been abducted and detained and a demand for Rs.60,000/- was made. He states that he along with P.W.8 Manohar Mane went to the M.I.D.C. Police Station at about 7.00 to 7.15 a.m. While proceeding to the 13 Cri.Appeal No. 147 of 2010 M.I.D.C. Police Station, P.W.8 Manohar Mane received a call from the police that Abhinav and Mayuri were in the police station. P.W.3 Ashok Koyle has been cross-examined at length but nothing of importance has been elicited in his cross-examination. There is nothing in the cross- examination which would reflect upon the credibility of this witness, particularly about receiving the call from the accused and demanding Rs. 60,000/-. 9. P.W.8 Manohar also deposes on similar lines. He states that since Mayuri did not return home till 9.00 p.m., he called on her mobile but could not connect the call. He states that he inquired about the whereabouts of Mayuri but could not trace Mayuri. At about 3.45 a.m. he called on the phone of Mayuri and the phone was answered by a male person who informed him that the boy and the girl were in his custody and he, if wanted the girl, he should give ransom of Rs.60,000/-. The unknown person also disclosed to him that the name of the boy was Abhinav Koyale. He states that thereafter he had informed the said fact to the police on telephone and also informed the relatives of Abhinav. Father of Abhinav had disclosed to him that he too had received a phone call demanding ransom of Rs.60,000/-. He states that at about 6.30 or 6.45 a.m. he had received a phone from the police informing him that the girl and the boy had been traced and were being brought to the M.I.D.C. police station. He states that thereafter he along with father of Abhinav went to the M.I.D.C. Police Station and took the children home. In cross- 14 Cri.Appeal No. 147 of 2010 examination he has admitted that he had called Mayuri on her mobile at 9.30 p.m., but the phone of Mayuri had been switched off. Minor omission has been proved that he had not stated in his previous statement that while talking to the unknown person he had asked that unknown person that he may be permitted to talk to Mayuri, but the unknown person had disconnected the telephone call. Similarly, omission on a very minor matter about seeing the Tata Sumo vehicle in the police station, when he had gone to the Police Station, is proved. Despite cross-examination of this witness, the accused has not been able to affect the statement of this witness about receipt of a telephone call where a demand for ransom of Rs.60,000/- was made. 10. Prosecution has examined P.W.7 P.S.I. Pawar, who states that P.W.8 Mane had disclosed to him that the accused had kidnapped his daughter and Abhinav. He states about receipt of a wireless message from the Renapur Police Station at about 4.30 to 4.45 a.m. and proceeding to the spot. He states about bringing Mayuri and Abhinav from the Renapur cross roads to the M.I.D.C. Police station. In cross- examination omission has been duly proved that P.W.8 Manohar Mane had not disclosed to him the name of the accused as Santosh. This omission, according to us, does not in any manner affect the evidence of P.W.8 Manohar Mane as P.W.8 never claims to have disclosed the name of accused or the kidnapper as Santosh. Similarly, omission has been duly proved that he had not stated in his previous statement about receipt 15 Cri.Appeal No. 147 of 2010 of the wireless message at 4.30 to 4.45 a.m. He was unable to state with any degree of certainty, whether he had received a call from P.W.8 Manohar Mane or P.W.3 Ashok Koyle. In further cross-examination he has stated that a mob of people was present at the Renapur cross roads which had become aggressive, so he had taken the girl and the boy to the Renapur police station. He has further admitted in the cross- examination that the mob became aggressive as the girl was nude. He has further admitted that woman from Painjan Loknatya gave clothes to the girl. We reproduce ad verbatim the answers given by him in the cross-examination :- "As the mob of people present at Renapur Naka became aggressive, so I took the said boy and the said girl to Renapur Police Station. The