(Supp) SCC 611, the Apex Court has held that a taperecorded
statement is admissible in evidence, subject to the following
conditions.
“32. Thus, so far this Court is concerned, the conditions for
admissibility of a taperecorded statement may be stated as
follows:
The voice of the speaker must be duly identified by the
maker of the record or by others who recognize his voice. In
other words, it manifestly follows as a logical corollary that the
first condition for the admissibility of such a statement is to
identify the voice of the speaker. Where the voice has been
denied by the maker it will require very strict proof of
determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be
proved by the maker of the record by satisfactory evidence –
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part
of a taperecorded statement must be ruled out otherwise it
may render the said statement out of context and, therefore,
inadmissible.
(4) The statement must be relevant according to the rules of
Evidence Act.
(5) The recorded cassette must be carefully sealed and kept
in safe or official custody.
(6) The voice of the speaker should be clearly audible and
not lost or distorted by other sounds or disturbance.”
In the instant case, undisputedly the investigating officer had
not instructed PW1 to record the conversation. It is also to be noted
that though Pw1 had passed on the information of every subsequent
call received from the alleged kidnappers to the police and his
supplementary statements were recorded on every such occasion, in
none of the statements recorded under Section 161 of the Cr.P
.C., PW
1 had disclosed that he had recorded the conversation. It is also
pertinent to note that PW1 had not sealed the cassette. He had handed over the said cassette to PW13 only on 5 th October, 2005,
which was much after the return of his son and after the arrest of the
accused. PW1 has not explained the delay in handing over the
cassette to the Investigation Officer. These material discrepancies
give rise to the possibility of the cassette being tampered and the
conversation being recorded after the arrest of the accused.
PW3 Namdeo, in whose presence the cassette was allegedly
played and transcript was prepared and PW9 Eknath in whose
presence the voice samples of the accused were recorded have not
supported the case of the prosecution. Furthermore, there is delay in
forwarding the cassette to the scientific expert. The testimony of PW
13 does not indicate that he had kept the said cassettes in safe
custody from the date the cassettes were seized till the date the
cassettes were forwarded to the scientific expert. In the absence of
compliance of essential prerequisites for the admission of tape
recorded conversation as mandated by the Apex Court, the trial court
was not justified in placing reliance on the expert opinion at Exh. 109
and or on relying upon the transcripts of the recorded conversation.
CRIMINAL APPEAL NO. 738 OF 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Madansingh Hirasingh Bhakuni
v/s.
The State of Maharashtra
CORAM : P . HARDAS & SMT. ANUJA PRABHUDESSAI, J.
JUDGMENT PRONOUNCED ON : 14/10/2014
These appeals are directed against the judgment dated
22.05.2009 whereby the learned Sessions Judge has convicted the
aforesaid appellants, (hereinafter referred to as the accused) for the
offence punishable under Section 364A r/w 34 of the I.P and
.C.
sentenced them to under go RI for life and to pay fine of Rs.200/ in
default S.I. for 15 days and further convicted under Section 3 r/w 24
of the Arms Act and sentenced to undergo RI for one year and to pay
fine of Rs.200/ in default SI for 15 days.
The brief facts necessary to decide these appeals are as under.
2.
Punit Sanghvi, the victim and the accused no.1, Madansingh
Bhakuni were studying in Godavari High School, Chinchwad. On
29.09.2005 there was a parent teacher meet in the school. While the
victim Punit was about to leave the school, the accused Madansingh
requested him to come to his house to teach him accountancy. It is
alleged that the accused Madansingh took Punit to the room of the
coaccused Manojkumar (A3) and Mahendrasingh, a juvenile. It is
alleged that the accused Madansingh dragged Punit into the room
while the coaccused Manojkumar and Mahendrasingh had revolver
and knife in their hands and threatened to kill him in case he raised
an alarm. They informed the victim Punit that they had kidnapped
him for ransom and asked him to give the mobile number of his
father. Thereafter, they covered his face with tape and kept him
confined in the room, till 03.10.2005.
3.
It is the case of the prosecution that during the said period, the
accused made several calls to PW1 Dilip Sangvi, the father of Punit
and demanded ransom of Rs.20 lakhs. On receiving the first call on
29.09.2005, Dilip Sangvi lodged a report at Exh.22, pursuant to
which PW14 Satish Deore, P registered C.R. No.377 of 2005 at
.I.
Pimpri Police Station against the unknown persons for offence
punishable under Section 364A r/w 34 of the IPC. It is the case of
the prosecution that from 29.09.2005 till 02.10.2005, the accused
had made several ransom calls to PW1 Dilip Sangvi. PW1 had
divulged the subsequent events to the Police, pursuant to which his
supplementary statements came to be recorded. It is further the case
of the prosecution that PW1 had recorded the conversation of the
kidnappers and had handed over the said audio cassette to the
Investigating Officer, which was seized under panchanama at
Exh.130.
4.
It is alleged that on 03.10.2005, the brother of Madansingh
rescued the victim and dropped him near his house. PW14 Satish
Deore, recorded the statement of the victim Punit (PW2) and
referred him to Yeshwantrao Chavan Hospital for medical
examination. PW11 Dr. Arvind Patil examined PW2 Punit and
submitted the medical certificate at EX.101. Pursuant to the
statement of the victim, PW14 Satish Deore arrested the accused.
Upon interrogation, the accused made disclosure statements, which
led to the recovery of the revolver, knife and cookary. The police
obtained the voice samples of the accused and sent the same for
voice analysis. The police also recorded the statements of the
witnesses and on completion of the investigation, a final report
5.
implicating the accused was filed before the J.M.F.C., Pimpri, Pune.
Upon committal of the case, the learned Sessions Judge framed
charge against the accused for offence under Section 354 A of the IPC
and under Section 3 r/w 25 of the Arms Act. The accused pleaded
not guilty and claimed to be tried. The prosecution in support of its
case examined 16 witnesses. The statements of the accused were
recorded u/s 313 of the Cr.P
.C. The accused denied having committed
any offence and alleged that they were falsely implicated. On
appreciating and analyzing the evidence on record, the learned trial
Judge, held the accused guilty of the offences punishable under
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Sections 364A r/w 34 of the IPC and Section 3/25 of the Arms Act,
sentenced them as stated above. Being aggrieved by the said
6.
conviction and sentence, the accused have preferred these appeals.
Learned Counsel Shri. Jha has argued on behalf of the accused.
He has submitted that the evidence of PW1 as well as PW2 suffers
from material discrepancies and contradictions and that no implicit
ig
reliance can be placed on their evidence. He has further submitted
that the alleged rescue of the PW2 is shrouded in mystery. He has
further argued that the conduct of the victim in not disclosing the
incident to his father is highly unnatural and renders the prosecution
case doubtful.
Learned Counsel Mr. Jha has further submitted that the
7.
prosecution has not complied with the mandatory requirements as
specified by the Apex Court in the case of Ram Singh & Ors. Vs. Col.
Ram Singh, 1985 (Supp) SCC 611, hence, the conversation
allegedly recorded by the father of the victim, is not admissible in
evidence. Learned Counsel Mr. Jha has urged that the prosecution
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has failed to prove threat, violence or demand for ransom, an
essential ingredient for the offence punishable under Section 364 A
of the IPC. He has relied upon the decisions of the Apex Court in
Badshah & Ors. Vs. State of U.P 2008(3) SCC 681 and Lohit
.
Kaushal Vs. State of Haryana, 2009(17) SCC 106.
It was next argued that most of the witnesses including the
8.
ig
witnesses to the recovery panchanama have not supported the case of
the prosecution. Learned Counsel therefore contends that the
prosecution has failed to prove the charge of kidnapping and demand
for ransom. He has drawn our attention to the evidence of Nandan
Bhakuni, the brother of the accused Madan, who was examined as
defence witness pursuant to the order dated 08.10.2012 passed by
this Court and has submitted that the evidence of this witness belies
the case setup by the prosecution. He has argued that if reasonable
doubt arises regarding the guilt, the accused are entitled for benefit
of doubt. He has relied upon the decision of the Apex Court in Kali
Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808. Learned
Counsel therefore contends that the prosecution having failed to
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9.
the conviction and sentence cannot be sustained.
establish the demand for ransom as well as the charge of kidnapping,
Learned APP
, Mrs. Kejriwal has argued that the order of the trial
Judge is well reasoned and does not warrant any interference. He has
further argued that the evidence of the victim, which is duly
corroborated by his father, PW1 Dilip Sangvi, proves beyond
ig
reasonable doubt that the accused had kidnapped the victim Punit
and had demanded ransom of Rs.20 lakhs from his father. He has
argued that the evidence of the voice analyst visàvis the report at
Exh. 109 proves the demand for ransom. He has further argued that
the evidence of PW7 and PW12 as well as the medical evidence and
the recoveries of the weapons made pursuant to the disclosure
statements of the accused serve as corroborative evidence.
10.
Before adverting to the facts of the case, it would be
advantageous to refer to the definition of “kidnapping for ransom” as
defined under Section 364A, which was inserted in 1993, and which
reads as under:
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"Whoever kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction, and threatens to
cause death or hurt to such person, or by his conduct gives rise
to a reasonable apprehension that such person may be put to
death or hurt, or causes hurt or death to such person in order
to compel the Government or "any other person" to do or
abstain from doing any act or to pay a ransom, shall be
punishable with death, or imprisonment for life, and shall also
ig
be liable to fine."
In Vishwanath Gupta v State of Uttaranchal 2007
(11) SCC 633, the Apex Court has held that:
“6. The important ingredient of Section 364A is the abduction
or kidnapping, as the case may be. Thereafter, a threat to the
kidnapped/abducted that if the demand for ransom is not
made then the victim is likely to be put to death and in the
Uday S. Jagtap
event death is caused, the offence of Section 364A is complete.
There are three stages in this Section, one is the kidnapping or
abduction, second is threat of death coupled with the demand
of money and lastly when the demand is not made, then caus
ing death. If the three ingredients are available, that will con
stitute the offence under Section 364A of the Indian Penal
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Code. Any of the three ingredients can take place at one place
In the case of Suman Sood Vs. State of Rajasthan, 2007 (5)
11.
or at different places...."
SCC 634, it was held that:
"57. Before the above section is attracted and a person is con
victed, the prosecution must prove the following ingredients;
The accused must have kidnapped, abducted or detained
(1)
ig
any person; (2) He must have kept such person under custody
or detention; and (3) Kidnapping, abduction or detention must
have been for ransom.”
The division Bench of this court in Philips Fadrick D' Souza vs
12.
The State of Maharashtra, 2009(1), Bom. C.R. (Cri.) 38 has held
that : “The offence under Section 364A is not made out only upon
the commission of the unlawful act of kidnapping or abduction. The
essential ingredients of the statutory provision, apart from the act of
kidnapping, abduction or, as the case may be, keeping a person in
detention thereafter, are a threat to cause hurt or a reasonable
apprehension of such a consequence or causing death or hurt, in
order to compel the payment of ransom or the doing or abstention
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from doing any act by the government, a foreign state, an inter
governmental body or by any person. The purpose of the unlawful
act is to demand ransom or to compel the doing or abstention from
doing of a particular act. Kidnapping or the abduction by itself does
not lead to an inference of the underlying purpose with which it was
carried out. The purpose must exist at the time when the act of
kidnapping or abduction takes place. Whether such a purpose existed
ig
at that time will have to be deduced from all the attendant
circumstances. Events which take place prior to, at the time of and
subsequent to the commission of the offence would weigh in the
balance. In interpreting Section 364A the Court must be cognizant of
the fact that the provision was introduced in order to deal with the
serious menace posed by terrorism to the stability of civil society.
13.
In the case of Lohit Kaushal (Supra), the Apex Court has
cautioned that kidnapping is a reprehensible crime and the
abhorrence which it creates in the mind of the Court, tend to militate
against the fair trial of an accused in such cases. A Court must,
therefore, guard against the possibility of being influenced in its
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14.
considerations while evaluating the evidence.
judgment by sentiment rather than by objectivity and judicial
In the instant case, the findings of the trial court are primarily
based on the testimony of PW2 Punit, the victim of the crime and
PW1 Dilip Sangvi, the father of the victim. PW1 Dilip Sangvi had
lodged the F.I.R. dated 29.05.2005 at Exh.22, against unknown
ig
persons for kidnapping his son Punit for Ransom. The testimony of
PW1 visàvis the FIR at Exh. 22 indicates that his son Punit, aged
about 17 years, was studying in standard XII in Godavari Higher
Secondary School, Akurdi. PW1 and his wife as well as PW2 Punit
had attended parentteacher meet in the school on 29.09.2005. PW1
and his wife returned home at about 1.30 pm. Since PW2 did not
return home till evening, PW1 made enquiries with the school
authorities, but without any success. PW1 has further deposed that
in the same evening, he received a missed call on his mobile no.
9822432337. When he called on the said number, he learnt that the
said number was of STD booth and the call was made by the two
boys. PW1 has deposed that at about 8.00 p.m. he received another
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call on his mobile asking him to keep Rs.20 lakhs ready by the next
15.
Pune and lodged the report at Exh.22.
day for release of his son. He, therefore, went to the Crime Branch,
The testimony of PW1 reveals that he had received several calls
on the following dates asking him to come with the ransom money at
different places such as Pandit Automobiles, Dange Chowk, Pimpri
ig
Bridge, Home Science School and Shagun Chawk. PW1 has deposed
that he had been Shagun Chowk, but none had come to collect the
money. Upon inquiries, he learnt that all these calls were made from
different STD booths. He had informed the police about the said calls
whereupon the police had recorded his supplementary statements.
PW1 has deposed that he had recorded the conversation received on
his mobile and that he had handed over the said cassette to the
police.
16.
PW1 has stated that his son had returned home on 3 rd October,
2005. He has stated in his crossexamination that he had not asked
his son as to what had happened and that his son too had not told
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him anything about the incident. He has stated that from the date of
17.
asked his son as to where he had gone.
the incident till the date of his evidence i.e. 11.10.2007, he had not
There are several discrepancies in the prosecution case as
regards the demand for ransom and the involvement of the accused
in making such calls. It is to be noted that though it is alleged that
ig
PW1 had received calls for ransom, which were made from different
STD booths, the prosecution had not made any attempts to prove
that the accused were seen at the said STD booths or that they had
made calls during the relevant time from any of the said STD booths.
18.
It is also pertinent to note that the evidence of PW1 indicates
that the unknown callers had told him to come with the ransom
money at different places such as Pandit Auto Mobiles, Dange Chowk,
Home Science School, Shagun Chawk and at Pimpri Bridge. The
testimony of PW1 indicates that he had been to Shagun Chowk but
nobody was present at the said place. There is absolutely no evidence
to prove that either the investigating team or the complainant had
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visited the other places viz Pandit Automobiles, Dange Chowk,
Shagun Chowk and Pimpri Bridge and that the accused were seen
near the said places. It is thus evident that the police officers who
were informed about the said calls had not made any attempts to
ascertain whether the kidnappers had visited the above stated places
to collect the ransom and whether there was any seriousness in their
demand. They did not lay a trap and did not attempt to detect and
ig
intercept the kidnappers or to rescue the victim. In short, the
investigating agency did not take any steps to ascertain whether the
calls for ransom were hoax or real.
19.
The trial court has also relied upon the taperecorded
conversation recorded by PW1 and the evidence of PW13 Dr.
Chongthan Singh visàvis his report at Ex. 109. It may be mentioned
that PW1 has claimed that he had recorded the demands made by
the kidnappers and that he had handed over the said cassette to the
investigating officer. PW14 Satish Deore, P
.I. has deposed that PW2
had produced the said cassette before him on 5/10/2005. PW14 has
deposed that he had played the cassette and heard the conversation
in presence of Panchas Namdeo Kunjir and Sudhker Deshmukh,
prepared a transcript and sealed and seized the said cassette (Ex.A)
under panchanama at Exh.130. On 11/10/2005 he recorded the
voice samples of the accused Kuldip (Exh.B) and the juvenile(Exh.C)
under panchanama at Exh.142 and vide letter dated 24/12/2005 at
Exh. 113 he forwarded the cassette as well as the voice samples to
PW13 Dr. Chongthan Singh, Assistant Director, Forensic
20.
Central Forensic Laboratory Chandigarh for analysis and report.
Science, has deposed that he had received three sealed packets
containing three audio cassettes marked Ex. A, B and C. PW13
marked the conversation of the speakers in the cassette at Exh.A as
Q1 and Q2 and the voice samples of Kuldip and Mahendrasingh as S1
and S2 respectively. After scientifically examining the voice quality of
the questioned and specimen voice recording PW13 vide report at
Ex.109 opined that the questioned voice exhibit of the speaker at
Ex.Q1 matched with the specimen voice sample at Ex. S1, whereas
the questioned voice exhibit of the speaker at Ex.Q2 matched with
the sample voice at Ex. S2.
In the case of Ramsingh & Ors. Vs. Col. Ram Singh, 1985
21.
(Supp) SCC 611, the Apex Court has held that a taperecorded
statement is admissible in evidence, subject to the following
conditions.
“32. Thus, so far this Court is concerned, the conditions for
admissibility of a taperecorded statement may be stated as
follows:
The voice of the speaker must be duly identified by the
maker of the record or by others who recognize his voice. In
other words, it manifestly follows as a logical corollary that the
first condition for the admissibility of such a statement is to
identify the voice of the speaker. Where the voice has been
denied by the maker it will require very strict proof of
determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be
proved by the maker of the record by satisfactory evidence –
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part
of a taperecorded statement must be ruled out otherwise it
may render the said statement out of context and, therefore,
inadmissible.
(4) The statement must be relevant according to the rules of
Evidence Act.
(5) The recorded cassette must be carefully sealed and kept
in safe or official custody.
(6) The voice of the speaker should be clearly audible and
not lost or distorted by other sounds or disturbance.”
ig
(1)
22.
In the instant case, undisputedly the investigating officer had
not instructed PW1 to record the conversation. It is also to be noted
that though Pw1 had passed on the information of every subsequent
call received from the alleged kidnappers to the police and his
supplementary statements were recorded on every such occasion, in
none of the statements recorded under Section 161 of the Cr.P
.C., PW
1 had disclosed that he had recorded the conversation. It is also
pertinent to note that PW1 had not sealed the cassette. He had
handed over the said cassette to PW13 only on 5 th October, 2005,
which was much after the return of his son and after the arrest of the
accused. PW1 has not explained the delay in handing over the
cassette to the Investigation Officer. These material discrepancies
give rise to the possibility of the cassette being tampered and the
conversation being recorded after the arrest of the accused.
23.
PW3 Namdeo, in whose presence the cassette was allegedly
played and transcript was prepared and PW9 Eknath in whose
presence the voice samples of the accused were recorded have not
supported the case of the prosecution. Furthermore, there is delay in
forwarding the cassette to the scientific expert. The testimony of PW
13 does not indicate that he had kept the said cassettes in safe
custody from the date the cassettes were seized till the date the
cassettes were forwarded to the scientific expert. In the absence of
compliance of essential prerequisites for the admission of tape
recorded conversation as mandated by the Apex Court, the trial court
was not justified in placing reliance on the expert opinion at Exh. 109
and or on relying upon the transcripts of the recorded conversation.
Needless to state that exclusion of taperecorded conversation visà
ransom.
vis the report at Exh.109 further weakens the case of demand for
24.
The story of being kidnapped, as propounded by PW2, also
does not inspire much confidence. PW2 Punit has also deposed that
there was a parent’s meet in the school on 29.09.2005 at about 10.00
a.m. and that the parents of the children who had failed in the
examination were called to the school. He had deposed that the
students were allowed to go home by about 10.00 a.m. He has
stated that when he had reached near school gate, he received a
phone call from his classmate Madan (A1), requesting him to
come to his house to teach him accountancy. Accordingly, he went to
the house of Madan. Said Madan took him to the room of his friends
Manoj and Mahendra. He has deposed that he taught accountancy to
Madan and at about 2.00 to 2.30 p.m., when he was getting ready to
return home, Madan left the room saying that he would get a
motorcycle from his brother. Madan returned after a short while and
told him that his brother would come within 15 minutes. As they
were leaving the house to meet the brother of Madan, the accused
Madan dragged him back to the house. Madan had a revolver in his
hand whereas Manoj had a cookari and a knife. They pointed the
weapons at him and threatened to kill him in case he attempted to
shout. They told him that he was kidnapped and that they wanted
money from his father.
25.
PW2 has deposed that the accused had covered his entire face
with tape leaving only nose and eyes open. At about 5.30 p.m., the
accused no.2 Kuldip and friend of Madan came to the room. Said
Kuldip told him that he was kidnapped and that they wanted ransom
from his father. Said Kuldip asked him about the financial position of
his father and left the room after taking the mobile number of his
father. Mahendra and Manoj stayed with him in the house. The next
evening, Kuldip and Madan returned to the room. They did not
allow him to go out and compelled him to perform his daily ablutions
in the bathroom / sink inside the room. Madan and Kuldip left the
room leaving him with Manoj and Mahendra. Madan and Kuldip
returned on the next day. After having some discussion with Manoj
and Mahendra, they told him that he would be released after
receiving money from his father. On the next day, Kuldip and Madan
told him that they were going to talk to his father. However, on the
next day i.e. on 3rd October, 2005, while Manoj and Mahendra were
sleeping in the house, the brother of Madan came to the room and
rescued him and thereafter dropped him near his house.
26.
PW2 has stated in his crossexamination, that on the relevant
day, he was in his uniform and had carried his school bag, which had
two textbooks. He has further stated that he had directly gone to the
house of Madan to teach him Accountancy. He has further stated
that the accused used to remove the tape from his face whenever
they wanted to talk to him. He has stated that on 2 nd October 2005;
the accused had removed the tape, washed his face and cleaned the
marks of tape. Hence, when he had returned home on 3 rd October
2005, the marks of tape were not visible on his face.
27.
PW2 has further stated that as soon as he had entered the
house, his father had told him to take a wash and freshen up. He has
stated that his father had not asked him anything about the incident.
He has stated that he had informed his father that the accused
Madan had taken him to his house. He has stated that he had not
disclosed any other facts to his father till the date of his evidence.
28.
PW2 has further admitted in his crossexamination that he did
not recollect whether on the date he was rescued by the brother of
Madan, the room was latched from inside or whether the door was
open. He has stated that he as well as the accused Mahendra and
Manoj were sleeping in the room when the brother of the accused
Madan had entered the room. PW2 has stated that the brother of
the accused Madan woke him up and took him by a rickshaw and
dropped him at the distance of 3 to 4 kms away from his house. He
has admitted in his crossexamination that he had stated before the
police in his statement under Section 161 of the Cr.P
.C. that he had
rescued himself when Mahendra and Manoj were sleeping. He has
denied the suggestion that he was not abducted and that he had
The evidence of PW2 indicates that the accused had called him
29.
stayed in the said room as per his own wish and will.
to his house under the pretext of teaching him accountancy and later
taken him to the room occupied by accused Mahendra and Manoj
and confined him in the said room from 29.09.2005 to 03.102005 at
gunpoint. The room wherein PW2 was allegedly confined was one
of the ten rooms of a chawl owned by PW7 Hiraman Nakhate and
his wife PW12 Hirabai Nakhate. Their testimony indicates that they
had rented the said room to the accused Mahendra Singh. They
have deposed that on 02.10.2005, they had invited the accused for
the birthday party of their son, and that the accused had refused to
join them. The fact that the accused had refused their invitation can
hardly be considered as a suspicious conduct. Moreover, the
testimony of these witnesses does not indicate they had seen the
victim in the said room or that they had sensed any suspicious
30.
activities going on in the room.
The room wherein PW2 was allegedly confined was of 10 x 10
dimensions, with a tin sheet roof, a wooden door, and a window. The
evidence of PW7 and PW12 indicates that all the adjoining rooms
were rented and occupied by about 5060 tenants. The evidence of
these witnesses further indicates that the said chawl is situated in a
crowded locality. PW2 was in the said room for about 56 days,
despite which he had not raised an alarm. The fact that the
prosecution has not examined any of the neighbours, also leads to an
inference that the neighbours had not seen the victim in the room,
and had not suspected that some dubious activities were being
carried out by the accused in the said room.
31.
PW2 claims that on 03.10.2005, while he and the accused
Mahendra and Manoj were sleeping in the room, the brother of the
accused Madan entered the room and rescued him. It is however to
be noted that PW2 was unable to disclose whether the door of the
room was latched from inside. He was also not able to explain as to
how the brother of the accused Madan had opened the latch and
entered the room wherein he was confined. It is also pertinent to
note that PW2 had not stated in his statement under Section 161
Cr.P
.C. that he was rescued by the brother of the accused Madan on
the contrary PW2 has admitted that in his statement under section
161 Cr.PC. he had stated that he had rescued himself while the
accused were asleep. The material variation in the testimony of this
witness about his dramatic and mysterious escape on 03/10/2010
throws a grave doubt regarding the probability of kidnapping.
32.
The testimony of PW2 reveals that after he had reached home
his father had not asked him anything about the incident but had
merely told him to take a wash and freshen up. He has deposed that
after his return he had gone to his room and had a wash. PW2 has
deposed that he had told his father that he was taken by the accused
Madan and that till the date of his evidence he had not told his father
anything about the incident. The testimony of PW1 also indicates
that he had not asked his son anything about the incident and that
his son too had not informed him anything about the incident. PW1
has deposed that till the date of his evidence he had not asked his son
as to where and why he had gone. PW1 claims that he had not
informed the police that PW2 had returned home.
The victim PW2 was allegedly kidnapped for ransom and was
33.
held captive for about a week. In normal circumstances, such
traumatic experience would evoke tremendous anxiety, distress, and
intense emotions, which on reunion would transform in to a sense of
pure exhilaration. In the instant case, the evidence of PW1 and PW2
does not reveal any such emotional reunion on the contrary exhibits
total indifference. The overall indifferent attitude and conduct of
PW1 in not asking his son about the incident and the equal casual
conduct of PW2 in not sharing with his parents the ordeal he
allegedly underwent during his captivity is highly unnatural and
renders the story doubtful.
34.
There is further discrepancy regarding the attachment of the
uniform of PW2 and the presence of the police in the house on the
day PW2 returned home. It is the case of the prosecution that the
victim PW2 was in his uniform when he was kidnapped by the
accused. PW1 has claimed that PW1 was in the same uniform when
he had returned home on 03.10.2005. He claims that on the same
date, during afternoon hours, he had informed the police that his son
had returned home. He has stated that police had come to his house
in the evening and that the police had attached the uniform. He was
unable to state whether the uniform was dirty. He then claimed that
he was not at home when PW2 had returned. He has stated that he
could not recollect whether PW1 was in uniform and whether the
police had attached a washed and ironed set of uniform.
35.
PW2 has deposed that when he had reached home on
03.10.2005 at 11.00 a.m., his parents and the police were present in
the house. He has stated that he was in his school uniform and that
the police had seized the said uniform. Whereas, PW14 has stated
that on 03.10.2005 the complainant had informed him that his son
had returned home. PW14 has stated that neither he nor his
subordinates had visited the house of the complainant on
03.10.2005. He has stated that he had called PW2 to his office on
has denied having attached the uniform.
36.
03.10.2005 during evening hours and recorded his statement. PW14
Coming to the medical evidence, PW14 had referred PW2 to
the hospital for medical examination. He was examined by PW11 Dr.
Arvind Patil. The testimony of PW11 visàvis the medical certificate
at EXh. 101 reveal that there was a linear abrasion over right lateral
aspect of neck at level of thyroid cartilage, which was 2.5 cms. in
length. The doctor had opined that the age of said injury was of 4 to
5 days duration and could have been caused either by knife or
cookary.
37.
It is pertinent to note that though PW2 had claimed that he
was kidnapped at the point of gun and knife, he had not alleged that
the accused had caused him any injury by means of knife or cookary.
The victim had claimed that during his captivity from 29 th September,
2005 to 03.10.2005 he was tied by a rope and his entire face was
covered with tape. PW11 Dr. Arvind Patil has deposed that a person
who is tied with a rope would normally have weal mark on the body.
He has deposed that he did not find any such weal marks on the body
of PW2. The medical evidence does not disclose any telltale marks
of such long captivity and brutality. The medical evidence, therefore,
PW2 had claimed that during his captivity, the accused had
38.
does not support the prosecution case.
covered his entire face with a tape, leaving open his nose and eyes.
He has admitted that on the day of his return, there were no marks of
tape on his face. PW2 had claimed that the accused had washed his
face on the previous day. This explanation is also unbelievable as the
accused were certainly not aware that PW2 would be rescued or that
he would escape on 03.10.2005. Hence, there was no reason for the
accused to remove the tape and wash his face on the previous day,
and or to ensure that the marks of tape were not visible.
39.
It is also pertinent to note that PW2 had returned home on
03.10.2005 and the police had recorded his statement on the same
day. The evidence of PW2 indicates that on the same day, he had
taken the police to the room, wherein he was confined. For the
reasons not known, the Investigating Officer had not drawn the
panchanama of the said room on 03.10.2005 but had drawn the
panchanama at Exh.65 on 05.10.2005 i.e. after the arrest of the
accused and had allegedly attached some articles like ropes, tape
books etc. from the said room. The prosecution has not explained
the delay in recording the scene of offence panchanama. The
unexplained delay in conducting the panchanama gives rise to the
suspicion that the said panchanama at Exh.64 is fabricated.
40.
The prosecution has also relied upon the panchanamas at
Exh.63 / 64 and Exh. 158/159, under which a knife, cookary and a
revolver were recovered pursuant to the disclosure statements made
by Manoj and Kuldip. The witnesses to the recovery panchanama
have not supported the case of the prosecution. Besides having
disbelieved the evidence of PW2, we are not inclined to rely upon
the said circumstance of recovery of weapons.
41.
On analyzing the entire evidence, we are of a view that the
evidence adduced by the prosecution does not prove the charge of
kidnapping and the demand for ransom. On the contrary the
evidence of Nandan Bhakuni, the brother of accused Mandan
Bhakuni, who was examined as a defence witness, pursuant to the
order dated 08.10.2012 indicates that his brother Madan had called
him to the school to attend the parent teacher meet to see his
progress report. He has deposed that he was unable to go to the
school due to the heavy rains. He has deposed that the victim PW2
Punit had come to his house at about 11.00 a.m. to 11.30 a.m. and
when he had inquired with him as to why he had not returned home
and whether his father had not attended the parent meet, PW2 told
him that he did not want to talk to his father. Nandan Bhakuni has
deposed that he had left the house as his one of the friend had met
with an accident. He has further stated that on 30.09.2005 his
brother Madan had attended the school and on returning from the
school, Madan had told him that PW2 had not attended the school
and that the teachers were inquiring about him and that his father
had lodged a missing report.
42.
This witness has further deposed that on 03.10.2005 while he
was going to the flat of his maternal aunt at Pimpal Saudagar, he saw
PW2 at Nakhatenagar. He questioned PW2 as to what he was
doing and told him that his parents were searching for him. This
witness has stated that the PW2 had told him that his father had
stopped giving him pocket money since he had fared badly in his
examination and hence he had quarreled with his father and left the
house and was residing with his friend. He has deposed that after
him to his house.
much persuasion, PW2 agreed to go home and thereafter he dropped
43.
As stated earlier, the evidence of PW2 reveals that on
29.09.2005, only the parents of the students who had failed in
examination were called to attend parentteacher meet. The fact that
the parents of PW2 were called to attend this meeting probabalizes
the defence that PW2 had faired badly in his examination. The
subsequent indifferent and unnatural conduct of PW1 and PW2 also
gives an indication that all was not well between the father and son.
This fact further supports the defence that the victim had quarreled
with his father and probabalizes the defence that the victim was not
44.
are, therefore, entitled for benefit of doubt.
kidnapped but had himself left the house on his own. The accused
Under the circumstances and in view of discussion supra, in our
considered view, the evidence adduced by the prosecution cannot
form the basis for conviction. The learned trial Judge has ignored
the material discrepancies in the evidence and in our considered view
has erred in holding the accused guilty of the offence punishable
under Section 360A of the IPC.
Under the circumstances and in view of the discussion supra,
45.
the appeals are allowed and the conviction and sentence of the
appellants is hereby quashed and set aside and they are acquitted of
the offence with which they were charged and convicted. Fine, if
paid by the appellants be refunded to them. Since the appellants are
in jail, they be released forthwith, if not required in any other case.
(ANUJA PRABHUDESSAI, J.)
(P . HARDAS, J.)
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