VINOD DADARAO WAGHMARE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) These appeals arise out of a common judgment delivered by Addl. Sessions Judge, Beed on 18.01.2002 in Sessions Case No.32/2000, whereby accused no. 1 - Gangaram, accused no. 2 - Yadukhan and accused no. 4 - Vinod were convicted u/s 363 r/w 34 of IPC and were sentenced to undergo RI for two years and to pay fine of Rs. 2,000/-, in default, to undergo further RI for six months. Accused no. 3 - Sk. Shahabuddin was acquitted. The aggrieved accused no. 4 - Vinod has preferred Cri. Appeal No. 60/2002 challenging his conviction, while the State has preferred Cri. Appeal No. 240/2002 seeking leave u/s 378(1)(3) for filing appeal against acquittal and for conviction of all the accused u/s 364A r/w 34 IPC including that of acquitted accused no. 3 - Sk. Shahabuddin. Cri. Appeal No. 255/2002 is filed by State for enhancement of the sentence of all the accused.

(2.) The facts relevant for deciding these appeals may be stated as follows : PW9 Abhijeet, aged eight years, a student studying in 3rd std. is son of PW4 Somnath and in January-2000, he was studying in Sanskar Vidyalaya at Beed. Arrangement of common auto-rickshaw was made for to and fro journey from his house to school and PW5 Virbhadra was the auto rickshaw driver. The school timing was from 7.00 a.m. to 12.30 noon. PW4 Somnath and his brother are in business of manufacturing oil. They had a Oil Mill at MIDC, Beed. On 10.01.2000, PW5 Virbhadra dropped PW9 Abhijeet near his school at 7:00 a.m. When PW5 Virbhadra went to the school at 12:30 noon, PW9 Abhijeet was not there. He was searched but he was not traceable. The information was given to his parents and they also started search. As he could not be searched, a missing report was lodged in the same afternoon. PW4 Somnath, his brother and cousins PW7-Navnath, PW8-Arun and PW1-Suresh continued the search and contacted the relations but Abhijeet could not be traced. On next day i.e. on 11.01.2000, at about 09:00 to 09:30 a.m., an anonymous phone call was received by Sangita (PW9 Abhijeet's mother). The caller made inquiry about Soma (PW4) and when Sangita told him that her husband was not at home, he told her that he would again make a call after one hour and Soma should attend it. After one hour, the caller informed PW4 Somnath in hindi that he was calling from Mumbai and his son Abhijeet was in his custody and if he (PW4) wanted his child back, he should pay Rs. 5.00 lakhs. PW4 Somnath told him that he would be required to consult his brothers. The caller informed him that this fact should not be communicated to his brother Baban and to the police, lest he would kill his son. He told him that he would again call him in the evening. PW4 Somnath shared the information with his brother. Again there was a call at 5:00 to 5:30 p.m. The caller disclosed his name as Gawali and told him that his son was in his custody and he should come to receive him at Shivajinagar Bus Stand, Pune. Within five minutes thereafter, PW4 received phone call from a Jamadar ASI - Kale from Nigadi Police Station, Pune and informed him that Abhijeet was in their custody and the communication was arranged with Abhijeet. PW4 then reported the matter to Beed Police and he along with police at Beed reached Pune. PW9 Abhijeet was in the Police Station of Nigadi Corporation. One more person was there. On enquiry, Abhijeet informed him that when he was proceeding to his classroom, one person came to him and told him that his father had called him and he was to be taken for darshan of god and goddess. Then PW9 along with his school bag came out of the school. He was taken to a car wherein two persons were already there. Those two persons had brought him by the car to Pune and he slept in the room of one Bhaiyya. The car was driven by one person by name Gawali (accused no.1 - Gangaram). After sometime the person who had called him from the school to the car left the spot and the remaining three persons took him to Indira Gandhi Garden. After sometime, two of them went to a car and one Bhaiyya was with him. He somehow managed to run away from him and gave information to the watchman of the garden wearing uniform like a police that he was kidnapped and they were likely to kill him. The watchman reached him and the said Bhaiyya to the nearest Police Station, Nigadi. The person with Abhijeet was accused no. 2 - Yadukhan. He informed that, he along with accused no. 1 - Gangaram Gawali and accused no. 3 - Sk. Shahabuddin conspired to kidnap Abhijeet so as to extort money from his father and he was brought to Pune in a car bearing No. MTJ 5293 belonging to accused no. 1. It was agreed that a demand of Rs.5.00 lakhs should be made for releasing the boy. Accordingly, Gawali had made a demand of Rs. 5.00 lakhs. Accused no. 2 - Yadukhan also gave information that accused no. 4-Vinod was along with them from morning till the time of their arrest. Accused nos. 1, 2 and 4 were brought from Pune to Beed and on 13.01.2000, PW1 Suresh, uncle of PW9 lodged FIR at Beed City Police Station at 8:40 am. On the basis of the same, the crime was registered at C.R. No. 12/2000 u/s 363, 364, 384, 120B of IPC and the same was investigated into by PW15 Dy.S.P.-Pathak. During the investigation, personal search of accused no. 1 was taken and some petrol receipts, toll receipts and garden parking receipts were seized from accused no.1. The rest of the investigation was carried out by recording statements of material witnesses and drawing seizure panchanama. The car was seized from the custody of accused no. 1, which was containing a school bag with notebooks and lunch box of PW9. After completion of investigation, charge-sheet was submitted in the court.

(3.) In due course, the case was committed to the court of Sessions. The ld. Addl. Sessions Judge framed charge at Exh. 40 u/s 364A/34 against accused nos. 1 to 3 and u/s 120B IPC against accused nos. 1 to 4. The accused pleaded not guilty. The prosecution examined 15 witnesses. The defence of the accused is of total denial. The ld. Addl. Sessions Judge held accused nos. 1, 2 and 4 guilty u/s 363 r/w. 34 of IPC and convicted and sentenced them as referred to above. Hence these appeals.