Full Judgment Text
1 Crapeal513.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.513/2003
Salim Abbas Chaudhari,
aged 22 years, Occ.Tailoring Work,
r/o Hari Masjid Lane, LBS Marg, Mumbai,
Presently at District Prison, Akola. .....APPELLANT
...V E R S U S...
State of Maharashtra, through
Police Station Officer, Police Station,
Ramdaspeth, Akola. ...RESPONDENT
Mr. Vinay Dahat, Advocate Appointed for appellant.
Mrs. Swati Kolhe, A.P.P. for respondent.
CORAM: MANISH PITALE, J.
DATED : JULY 16, 2018
ORAL JUDGMENT
1. By this petition, appellant has challenged the judgment
st
and order dated 04.08.2003 passed by the Court of 1 Ad hoc
Additional Sessions Judge, Akola (trial Court) in Sessions Trial
No.132/2002, whereby the appellant (accused no.2) stood
convicted for an offence punishable under Sections 363 and 365
read with Section 34 of the Indian Penal Code (IPC) and he stood
sentenced to suffer rigorous imprisonment of 4 years and to pay a
fine of Rs.500/ each on both counts.
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2. The appellant was the original accused no.2. As per the
prosecution case, on 01.05.2002, Anwar Ali (accused no.1) took
Shahajad Ali (PW2), minor son of Shamsher Ali (PW1), from near
his home in Akola. When Shamsher Ali (PW1) looked for his son,
he could not find him and on the next day, he lodged an oral
report on 02.05.2002 in Police Station, where First Information
Report (FIR) was registered under Sections 363 and 366 of the
IPC. The said witness Shamsher Ali (PW1) stated that he
suspected Anwar Ali (accused no.1) for having kidnapped his son
because the said Anwar Ali was initially employed with Shamsher
Ali (PW1) and that there had been a quarrel between them. Later,
Shamsher Ali (PW1) claimed to have received a call and he was
informed that he should pay a ransom of Rs.2,00,000/, if he
wanted his son to be safe and that the amount be paid at Lucky
Hotel, Saki Naka, Mumbai. According to the prosecution case,
Anwar Ali (accused no.1) had taken the child victim Shahjad Ali
(PW2) to Mumbai to one of his friends where they stayed in the
night and on the next day i.e. on 03.05.2002, Anwar Ali (accused
no.1) took Shahjad Ali (PW2) to the shop of a tailor Jinnan Ali
(PW7), where the appellant (accused no.2) met accused no.1. It is
from there that both the accused took Shahjad Ali (PW2) in an
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autorickshaw from Saki Naka to near Lucky Hotel, where Anwar
Ali (accused no.1) told the appellant to get down from the auto
rickshaw and collect the bag full of ransom money, which
Shamsher Ali (PW1) had brought. According to the prosecution,
Shamsher Ali (PW1) had been told that when the bag full of
ransom amount was collected from him, he should give a signal
and upon doing so, policemen in plain clothes followed the
appellant, who had by then started walking towards autorickshaw
in which Anwar Ali (accused no.1) and child victimShahjad Ali
(PW2) were sitting. It was near a STD booth that the auto
rickshaw had been waiting, but upon the policemen chasing the
appellant, he ran towards the said booth where he was caught by
the policemen and, thereafter, Anwar Ali (accused no.1) was also
apprehended. Custody of the child victimShahjad Ali (PW2) was
handed over to his father Shamsher Ali (PW1). On this basis, both
the accused including the appellant, were charged with having
committed an offence under Sections 363, 365 and 384 read with
Section 34 of the IPC.
3. The prosecution examined nine witnesses in support of
its case. The material witnesses were; Shamsher Ali (PW1), father
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of the child victim, Shahjad Ali (PW2), the child victim, Mari
Muthu (PW6), autorickshaw driver and Dnyandeo Choudhari
(PW9), the investigating officer. Hira Choudhari (PW3), Jumma
Kasam (PW4) and Sk. Jumma Sk Buddhu Choudhari (PW5) were
the pancha witnesses, who had turned hostile.
4. On the basis of the evidence and material placed on
record, the trial Court found that although the witnesses had
claimed that ransom amount was handed over by Shamsher Ali
(PW1) to the appellant, but it was not seized. No currency notes
were ever seized by the investigating officer during the course of
investigation. On this basis, the trial Court found that the offence
under Section 384 of the IPC was not made out against the
accused. But, insofar as the offences under Sections 363 and 365
read with Section 34 of the IPC were concerned, the trial Court
found that both the accused, including the appellant, had
committed the said offences as there was sufficient material on
record to prove their guilt beyond reasonable doubt. The trial
Court convicted and sentenced the appellant and accused no.1 in
the aforesaid manner.
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5. Mr. Vinay Dahat, Advocate appointed by this Court on
behalf of the appellant, submitted that insofar as the appellant
(accused no.2) was concerned, there was hardly any evidence on
record to show that he had committed an offence punishable
under Sections 363 and 365 of the IPC. It was submitted that
even if evidence of the prosecution was taken as it is, ingredients
of the offence, for which he was convicted, were not made out in
the present case. It was submitted that the evidence of child
victimShahjad Ali (PW2), autorickshaw driverMari Muthu
(PW6) and tailorJinnat Ali (PW7), also did not bring on record
any material to show that the appellant had indeed taken or
enticed the child away without the consent of his guardian or that
he had kidnapped the child with intent to cause that child to be
secretly or wrongfully confined. It was submitted that the trial
Court did not appreciate the evidence and material on record in
correct perspective and while convicting Anwar Ali (accused no.1),
the trial Court also convicted the appellant, without appreciating
that role of the appellant was not that of a person who could be
held responsible for kidnapping Shahjad Ali (PW2).
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6. On the other hand, Mrs. Swati Kolhe, learned A.P.P. on
behalf of the respondentState, submitted that evidence on record
was sufficient to demonstrate that the appellant had accompanied
Anwar Ali (PW1) from the shop of the tailorJinnan (PW7) to
Lucky Hotel along with child victimShahjad Ali (PW2) and that
the material on record indicated that the appellant was equally
guilty for the offence punishable under Sections 363 and 365 of
the IPC. It was submitted that the trial Court had correctly
appreciated the material on record to convict the appellant along
with accused no.1.
7. Heard counsel for the parties. Perused the evidence and
material on record. The appellant in the present case is accused
no.2. The evidence and material on record shows that the
appellant was not at all involved from the stage when the child
victimShahjad Ali (PW2) was taken away from Akola and brought
to Mumbai. As per the prosecution case, Anwar Ali (accused no.1)
had taken away the said child from Akola to a city and from there
to Mumbai. The appellant appeared on the scene on 03.05.2002
in the shop of tailorJinnan (PW7). It is from this instant that the
role of appellant had started till the time he was apprehended by
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the police, a little while later near Lucky Hotel when he was
allegedly taking away the bag full of ransom amount. The
evidence of Shamsher Ali (PW1), Shahjad Ali (PW2), Mari Muthu
(PW6) and Jinnan (PW7) is relevant for understanding as to what
was the role attributed to the appellant, even as per the
prosecution case.
8. Evidence of Shamsher Ali (PW1) shows that according
to this witness, the appellant came to Lucky Hotel on 03.05.2002
and asked as to who was Shamsher Ali, upon which Shamsher Ali
(PW1) stood up. The appellant orally asked Shamsher Ali (PW1)
to hand over bag of cash to him and upon taking the said bag, the
appellant left the hotel. According to Shamsher Ali (PW1), police
in plain clothes followed the appellant and caught him near auto
rickshaw wherein Anwar Ali (accused no.1) and the child victim
Shahjad Ali (PW2) were sitting. It is relevant that the cash
amount was never seized by the police. In fact, the trial Court has
completely disbelieved the theory of ransom amount being handed
over to the appellant, due to which the appellant and the co
accused have been acquitted of the offence under Section 384 of
the IPC. Thus, evidence of Shamsher Ali (PW1) as against the
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appellant only gets restricted to the appellant entering Lucky Hotel
and asking for Shamsher Ali (PW1)
9. Evidence of child victimShahjad Ali (PW2) shows that
he saw the appellant for the first time in the shop of tailorJinnan
(PW7). The said witness further stated that Anwar Ali (accused
no.1) told the appellant that he would pay Rs.1,000/ and give
him work. Thereupon, Anwar Ali (accused no.1) allegedly told the
appellant to go to Lucky Hotel and bring the amount from the
person named Shamsher Ali. Thereafter, statement of this witness
is similar to that of Shamsher Ali (PW1), regarding the appellant
being apprehended by the police. As the trial Court itself has
found that the theory of existence of ransom amount was not
believable because currency notes were not seized by the police,
the statement of this witness that Anwar Ali (accused no.1) had
told the appellant to go to Lucky Hotel and bring amount from
Shamsher Ali, cannot be believed. The evidence of child victim
Shahjad Ali, shows that the appellant came to the tailor shop
where he met Anwar Ali (PW1), who promised the appellant to
give some work and that both of them took Shahjad Ali (PW2) to
Lucky Hotel.
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10. The evidence of Mari Muthu (PW6), auto rickshaw
driver, shows that Anwar Ali (accused no.1) along with the
appellant took child victimShahjad Ali (PW2) to Lucky Hotel.
This witness clearly stated that the appellant had asked Anwar Ali
(accused no.1) for giving work to him, upon which Anwar Ali
(accused no.1) stated that his work was going on at 4 to 5 places
and that he could give a job of supervisor to him. This witness
then stated that Anwar Ali (accused no.1) asked the appellant to
go to Lucky Hotel and to see whether one person had come or not.
Thereafter, his evidence is consistent that the appellant was
apprehended by the police. The evidence of this witness clearly
shows presence of the appellant in the autorickshaw and there
was conversation between two accused, indicating that Anwar Ali
(accused no.1) promised the appellant to give him some job.
There is no mention of any amount to be collected by the
appellant from the person whom he would meet at Lucky Hotel.
11. Evidence of tailorJinnan (PW7) shows that Anwar Ali
(accused no.1) had come with Shahjad Ali (PW2) to his shop at
about 11.00 a.m. and thereafter again at about 3.00 p.m. It was
this time that the appellant came to the said shop and that
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thereafter all three of them went away from the shop. In cross
examination, this witness had stated that the appellant was doing
tailoring work and that he used to come to the shop some times.
12. Thus, this is the nature of evidence of the prosecution
witnesses as regards role of the appellant (accused no.2) in the
present case. The evidence of these witnesses, even if accepted in
totality, at worst, attributed the role to the appellant of having
accompanied Anwar Ali (accused no.1) from Saki Naka to Lucky
Hotel along with child victimShahjad Ali (PW2) and having met
Shamsher Ali (PW1). Since evidence regarding ransom amount
had been completely disbelieved by the trial Court due to absence
of seizure of cash amount, it cannot be said that the appellant
could be connected to any demand or collection of ransom amount
in the present case. In fact, the trial Court itself had acquitted
both the accused of offence punishable under Section 384 of the
IPC. The relevant question, therefore, in the present case, insofar
as the appellant is concerned, is whether it could be said that the
evidence and material on record proves beyond reasonable doubt
guilt of the appellant for offence punishable under Sections 363
and 365 of the IPC.
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13. Section 363 of the IPC pertains to punishment for
kidnapping and the offence is defined under Section 361 of the
IPC i.e. kidnapping from lawful guardianship. The essential
ingredients of this offence are; taking or enticing a minor child
from the custody of lawful guardian without the consent of such a
guardian. In the present case, there is nothing on record to show
that the appellant took away or enticed Shahjad Ali (PW2) from
his lawful guardian i.e. his father Shamsher Ali (PW1). Child
victim in the present caseShahjad Ali (PW2) was taken away or
enticed from Akola and even as per the prosecution, the entire role
in this regard was attributed only to Anwar Ali (accused no.1). In
this situation, when even as per the prosecution case, the
appellant for the first time appeared in the shop of tailorJinnan
(PW7), where Anwar Ali (accused no.1) was already present with
Shahjad Ali (PW2), it could not be said that the appellant had
taken or enticed Shahjad Ali (PW2) from his lawful guardian at
Akola. It is not even the prosecution case that the appellant was
involved with Anwar Ali (accused no.1) right from the time when
Shahjad Ali (PW2) was taken away from his house at Akola. There
is no evidence or material on record to connect the appellant with
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the role attributed to Anwar Ali (accused no.1) from the time
Shahjad Ali (PW2) was taken away from Akola.
14. Insofar as Section 365 of the IPC is concerned, it is
pertaining to kidnapping of a person to be secretly or wrongfully
confined. The appellant was with Anwar Ali (accused no.1) and
child victimShahjad Ali (PW2) only for the time period when they
left from Saki Naka in the autorickshaw and reached Lucky Hotel,
where the appellant got out from the autorickshaw on the
instructions of Anwar Ali (accused no.1) to go and meet a person
called Shamsher Ali (PW1). Other than the aforesaid time period,
there was no material on record to show that the appellant was in
the company of Anwar Ali (accused no.1) or Shahjad Ali (PW2).
The evidence of the prosecution witnesses indicates that the
appellant was looking for work and that Anwar Ali (accused no.1)
did inform him that he could be given the job of a supervisor to
him as there were 4 to 5 places where the work of Anwar Ali
(accused no.1) was going on. In fact, child victimShahjad Ali
(PW2) himself stated in his evidence that Anwar Ali (accused
no.1) had told the appellant that he would give him Rs.1,000/ for
doing the work. All this material and the fact that the appellant
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was in the company of victim childShahjad Ali (PW2) only for a
brief period i.e. during the autorickshaw drive from the tailor's
shop at Saki Naka to Lucky Hotel, clearly demonstrates that the
essential ingredients of offence punishable under Section 365 of
the IPC i.e. kidnapping with intention to cause the kidnapped
person to be secretly or wrongfully confined, are not satisfied in
the present case. As the ingredients of both the offences
punishable under Sections 363 and 365 of the IPC are not made
out, the trial Court could not have convicted and sentenced the
appellant along with Anwar Ali (accused no.1).
15. In fact, a perusal of the impugned judgment and order
of the trial Court shows that the role of the appellant has not been
appreciated by the trial Court by analysing the evidence of the
relevant prosecution witnesses in the correct perspective.
Therefore, the impugned judgment and order, insofar as it convicts
and sentences appellant (accused no.2), is erroneous and hence
unsustainable.
16. In the light of the above, the appeal is allowed. The
impugned judgment and order of the trial Court is set aside. The
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appellant (accused no.2) is acquitted of the offence for which he
was charged. Consequently, order dated 03.10.2017, issuing
bailable warrant against the appellant stands recalled.
Professional charges of Mr. Vinay Dahat, learned
Advocate appointed on behalf of the appellant, are quantified at
Rs.5,000/
(Manish Pitale, J.)
kahale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.513/2003
Salim Abbas Chaudhari,
aged 22 years, Occ.Tailoring Work,
r/o Hari Masjid Lane, LBS Marg, Mumbai,
Presently at District Prison, Akola. .....APPELLANT
...V E R S U S...
State of Maharashtra, through
Police Station Officer, Police Station,
Ramdaspeth, Akola. ...RESPONDENT
Mr. Vinay Dahat, Advocate Appointed for appellant.
Mrs. Swati Kolhe, A.P.P. for respondent.
CORAM: MANISH PITALE, J.
DATED : JULY 16, 2018
ORAL JUDGMENT
1. By this petition, appellant has challenged the judgment
st
and order dated 04.08.2003 passed by the Court of 1 Ad hoc
Additional Sessions Judge, Akola (trial Court) in Sessions Trial
No.132/2002, whereby the appellant (accused no.2) stood
convicted for an offence punishable under Sections 363 and 365
read with Section 34 of the Indian Penal Code (IPC) and he stood
sentenced to suffer rigorous imprisonment of 4 years and to pay a
fine of Rs.500/ each on both counts.
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2. The appellant was the original accused no.2. As per the
prosecution case, on 01.05.2002, Anwar Ali (accused no.1) took
Shahajad Ali (PW2), minor son of Shamsher Ali (PW1), from near
his home in Akola. When Shamsher Ali (PW1) looked for his son,
he could not find him and on the next day, he lodged an oral
report on 02.05.2002 in Police Station, where First Information
Report (FIR) was registered under Sections 363 and 366 of the
IPC. The said witness Shamsher Ali (PW1) stated that he
suspected Anwar Ali (accused no.1) for having kidnapped his son
because the said Anwar Ali was initially employed with Shamsher
Ali (PW1) and that there had been a quarrel between them. Later,
Shamsher Ali (PW1) claimed to have received a call and he was
informed that he should pay a ransom of Rs.2,00,000/, if he
wanted his son to be safe and that the amount be paid at Lucky
Hotel, Saki Naka, Mumbai. According to the prosecution case,
Anwar Ali (accused no.1) had taken the child victim Shahjad Ali
(PW2) to Mumbai to one of his friends where they stayed in the
night and on the next day i.e. on 03.05.2002, Anwar Ali (accused
no.1) took Shahjad Ali (PW2) to the shop of a tailor Jinnan Ali
(PW7), where the appellant (accused no.2) met accused no.1. It is
from there that both the accused took Shahjad Ali (PW2) in an
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autorickshaw from Saki Naka to near Lucky Hotel, where Anwar
Ali (accused no.1) told the appellant to get down from the auto
rickshaw and collect the bag full of ransom money, which
Shamsher Ali (PW1) had brought. According to the prosecution,
Shamsher Ali (PW1) had been told that when the bag full of
ransom amount was collected from him, he should give a signal
and upon doing so, policemen in plain clothes followed the
appellant, who had by then started walking towards autorickshaw
in which Anwar Ali (accused no.1) and child victimShahjad Ali
(PW2) were sitting. It was near a STD booth that the auto
rickshaw had been waiting, but upon the policemen chasing the
appellant, he ran towards the said booth where he was caught by
the policemen and, thereafter, Anwar Ali (accused no.1) was also
apprehended. Custody of the child victimShahjad Ali (PW2) was
handed over to his father Shamsher Ali (PW1). On this basis, both
the accused including the appellant, were charged with having
committed an offence under Sections 363, 365 and 384 read with
Section 34 of the IPC.
3. The prosecution examined nine witnesses in support of
its case. The material witnesses were; Shamsher Ali (PW1), father
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of the child victim, Shahjad Ali (PW2), the child victim, Mari
Muthu (PW6), autorickshaw driver and Dnyandeo Choudhari
(PW9), the investigating officer. Hira Choudhari (PW3), Jumma
Kasam (PW4) and Sk. Jumma Sk Buddhu Choudhari (PW5) were
the pancha witnesses, who had turned hostile.
4. On the basis of the evidence and material placed on
record, the trial Court found that although the witnesses had
claimed that ransom amount was handed over by Shamsher Ali
(PW1) to the appellant, but it was not seized. No currency notes
were ever seized by the investigating officer during the course of
investigation. On this basis, the trial Court found that the offence
under Section 384 of the IPC was not made out against the
accused. But, insofar as the offences under Sections 363 and 365
read with Section 34 of the IPC were concerned, the trial Court
found that both the accused, including the appellant, had
committed the said offences as there was sufficient material on
record to prove their guilt beyond reasonable doubt. The trial
Court convicted and sentenced the appellant and accused no.1 in
the aforesaid manner.
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5. Mr. Vinay Dahat, Advocate appointed by this Court on
behalf of the appellant, submitted that insofar as the appellant
(accused no.2) was concerned, there was hardly any evidence on
record to show that he had committed an offence punishable
under Sections 363 and 365 of the IPC. It was submitted that
even if evidence of the prosecution was taken as it is, ingredients
of the offence, for which he was convicted, were not made out in
the present case. It was submitted that the evidence of child
victimShahjad Ali (PW2), autorickshaw driverMari Muthu
(PW6) and tailorJinnat Ali (PW7), also did not bring on record
any material to show that the appellant had indeed taken or
enticed the child away without the consent of his guardian or that
he had kidnapped the child with intent to cause that child to be
secretly or wrongfully confined. It was submitted that the trial
Court did not appreciate the evidence and material on record in
correct perspective and while convicting Anwar Ali (accused no.1),
the trial Court also convicted the appellant, without appreciating
that role of the appellant was not that of a person who could be
held responsible for kidnapping Shahjad Ali (PW2).
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6. On the other hand, Mrs. Swati Kolhe, learned A.P.P. on
behalf of the respondentState, submitted that evidence on record
was sufficient to demonstrate that the appellant had accompanied
Anwar Ali (PW1) from the shop of the tailorJinnan (PW7) to
Lucky Hotel along with child victimShahjad Ali (PW2) and that
the material on record indicated that the appellant was equally
guilty for the offence punishable under Sections 363 and 365 of
the IPC. It was submitted that the trial Court had correctly
appreciated the material on record to convict the appellant along
with accused no.1.
7. Heard counsel for the parties. Perused the evidence and
material on record. The appellant in the present case is accused
no.2. The evidence and material on record shows that the
appellant was not at all involved from the stage when the child
victimShahjad Ali (PW2) was taken away from Akola and brought
to Mumbai. As per the prosecution case, Anwar Ali (accused no.1)
had taken away the said child from Akola to a city and from there
to Mumbai. The appellant appeared on the scene on 03.05.2002
in the shop of tailorJinnan (PW7). It is from this instant that the
role of appellant had started till the time he was apprehended by
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the police, a little while later near Lucky Hotel when he was
allegedly taking away the bag full of ransom amount. The
evidence of Shamsher Ali (PW1), Shahjad Ali (PW2), Mari Muthu
(PW6) and Jinnan (PW7) is relevant for understanding as to what
was the role attributed to the appellant, even as per the
prosecution case.
8. Evidence of Shamsher Ali (PW1) shows that according
to this witness, the appellant came to Lucky Hotel on 03.05.2002
and asked as to who was Shamsher Ali, upon which Shamsher Ali
(PW1) stood up. The appellant orally asked Shamsher Ali (PW1)
to hand over bag of cash to him and upon taking the said bag, the
appellant left the hotel. According to Shamsher Ali (PW1), police
in plain clothes followed the appellant and caught him near auto
rickshaw wherein Anwar Ali (accused no.1) and the child victim
Shahjad Ali (PW2) were sitting. It is relevant that the cash
amount was never seized by the police. In fact, the trial Court has
completely disbelieved the theory of ransom amount being handed
over to the appellant, due to which the appellant and the co
accused have been acquitted of the offence under Section 384 of
the IPC. Thus, evidence of Shamsher Ali (PW1) as against the
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appellant only gets restricted to the appellant entering Lucky Hotel
and asking for Shamsher Ali (PW1)
9. Evidence of child victimShahjad Ali (PW2) shows that
he saw the appellant for the first time in the shop of tailorJinnan
(PW7). The said witness further stated that Anwar Ali (accused
no.1) told the appellant that he would pay Rs.1,000/ and give
him work. Thereupon, Anwar Ali (accused no.1) allegedly told the
appellant to go to Lucky Hotel and bring the amount from the
person named Shamsher Ali. Thereafter, statement of this witness
is similar to that of Shamsher Ali (PW1), regarding the appellant
being apprehended by the police. As the trial Court itself has
found that the theory of existence of ransom amount was not
believable because currency notes were not seized by the police,
the statement of this witness that Anwar Ali (accused no.1) had
told the appellant to go to Lucky Hotel and bring amount from
Shamsher Ali, cannot be believed. The evidence of child victim
Shahjad Ali, shows that the appellant came to the tailor shop
where he met Anwar Ali (PW1), who promised the appellant to
give some work and that both of them took Shahjad Ali (PW2) to
Lucky Hotel.
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10. The evidence of Mari Muthu (PW6), auto rickshaw
driver, shows that Anwar Ali (accused no.1) along with the
appellant took child victimShahjad Ali (PW2) to Lucky Hotel.
This witness clearly stated that the appellant had asked Anwar Ali
(accused no.1) for giving work to him, upon which Anwar Ali
(accused no.1) stated that his work was going on at 4 to 5 places
and that he could give a job of supervisor to him. This witness
then stated that Anwar Ali (accused no.1) asked the appellant to
go to Lucky Hotel and to see whether one person had come or not.
Thereafter, his evidence is consistent that the appellant was
apprehended by the police. The evidence of this witness clearly
shows presence of the appellant in the autorickshaw and there
was conversation between two accused, indicating that Anwar Ali
(accused no.1) promised the appellant to give him some job.
There is no mention of any amount to be collected by the
appellant from the person whom he would meet at Lucky Hotel.
11. Evidence of tailorJinnan (PW7) shows that Anwar Ali
(accused no.1) had come with Shahjad Ali (PW2) to his shop at
about 11.00 a.m. and thereafter again at about 3.00 p.m. It was
this time that the appellant came to the said shop and that
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10 Crapeal513.03.odt
thereafter all three of them went away from the shop. In cross
examination, this witness had stated that the appellant was doing
tailoring work and that he used to come to the shop some times.
12. Thus, this is the nature of evidence of the prosecution
witnesses as regards role of the appellant (accused no.2) in the
present case. The evidence of these witnesses, even if accepted in
totality, at worst, attributed the role to the appellant of having
accompanied Anwar Ali (accused no.1) from Saki Naka to Lucky
Hotel along with child victimShahjad Ali (PW2) and having met
Shamsher Ali (PW1). Since evidence regarding ransom amount
had been completely disbelieved by the trial Court due to absence
of seizure of cash amount, it cannot be said that the appellant
could be connected to any demand or collection of ransom amount
in the present case. In fact, the trial Court itself had acquitted
both the accused of offence punishable under Section 384 of the
IPC. The relevant question, therefore, in the present case, insofar
as the appellant is concerned, is whether it could be said that the
evidence and material on record proves beyond reasonable doubt
guilt of the appellant for offence punishable under Sections 363
and 365 of the IPC.
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11 Crapeal513.03.odt
13. Section 363 of the IPC pertains to punishment for
kidnapping and the offence is defined under Section 361 of the
IPC i.e. kidnapping from lawful guardianship. The essential
ingredients of this offence are; taking or enticing a minor child
from the custody of lawful guardian without the consent of such a
guardian. In the present case, there is nothing on record to show
that the appellant took away or enticed Shahjad Ali (PW2) from
his lawful guardian i.e. his father Shamsher Ali (PW1). Child
victim in the present caseShahjad Ali (PW2) was taken away or
enticed from Akola and even as per the prosecution, the entire role
in this regard was attributed only to Anwar Ali (accused no.1). In
this situation, when even as per the prosecution case, the
appellant for the first time appeared in the shop of tailorJinnan
(PW7), where Anwar Ali (accused no.1) was already present with
Shahjad Ali (PW2), it could not be said that the appellant had
taken or enticed Shahjad Ali (PW2) from his lawful guardian at
Akola. It is not even the prosecution case that the appellant was
involved with Anwar Ali (accused no.1) right from the time when
Shahjad Ali (PW2) was taken away from his house at Akola. There
is no evidence or material on record to connect the appellant with
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12 Crapeal513.03.odt
the role attributed to Anwar Ali (accused no.1) from the time
Shahjad Ali (PW2) was taken away from Akola.
14. Insofar as Section 365 of the IPC is concerned, it is
pertaining to kidnapping of a person to be secretly or wrongfully
confined. The appellant was with Anwar Ali (accused no.1) and
child victimShahjad Ali (PW2) only for the time period when they
left from Saki Naka in the autorickshaw and reached Lucky Hotel,
where the appellant got out from the autorickshaw on the
instructions of Anwar Ali (accused no.1) to go and meet a person
called Shamsher Ali (PW1). Other than the aforesaid time period,
there was no material on record to show that the appellant was in
the company of Anwar Ali (accused no.1) or Shahjad Ali (PW2).
The evidence of the prosecution witnesses indicates that the
appellant was looking for work and that Anwar Ali (accused no.1)
did inform him that he could be given the job of a supervisor to
him as there were 4 to 5 places where the work of Anwar Ali
(accused no.1) was going on. In fact, child victimShahjad Ali
(PW2) himself stated in his evidence that Anwar Ali (accused
no.1) had told the appellant that he would give him Rs.1,000/ for
doing the work. All this material and the fact that the appellant
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13 Crapeal513.03.odt
was in the company of victim childShahjad Ali (PW2) only for a
brief period i.e. during the autorickshaw drive from the tailor's
shop at Saki Naka to Lucky Hotel, clearly demonstrates that the
essential ingredients of offence punishable under Section 365 of
the IPC i.e. kidnapping with intention to cause the kidnapped
person to be secretly or wrongfully confined, are not satisfied in
the present case. As the ingredients of both the offences
punishable under Sections 363 and 365 of the IPC are not made
out, the trial Court could not have convicted and sentenced the
appellant along with Anwar Ali (accused no.1).
15. In fact, a perusal of the impugned judgment and order
of the trial Court shows that the role of the appellant has not been
appreciated by the trial Court by analysing the evidence of the
relevant prosecution witnesses in the correct perspective.
Therefore, the impugned judgment and order, insofar as it convicts
and sentences appellant (accused no.2), is erroneous and hence
unsustainable.
16. In the light of the above, the appeal is allowed. The
impugned judgment and order of the trial Court is set aside. The
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14 Crapeal513.03.odt
appellant (accused no.2) is acquitted of the offence for which he
was charged. Consequently, order dated 03.10.2017, issuing
bailable warrant against the appellant stands recalled.
Professional charges of Mr. Vinay Dahat, learned
Advocate appointed on behalf of the appellant, are quantified at
Rs.5,000/
(Manish Pitale, J.)
kahale
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