Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: SESSIONS CASE
59/2014 1 CNR NO.MHCCO2-000934-2014
Chargesheet fiee o 201 0 213
Case eecieee o 70110 219
T tai eurati o fie ears, eieieo m oths,
seieo ea s.
EX.NO.84
IN THE COURT OF SESSIONS FOR GR.BOMBAY
AT BOMBAY
SESSIONS CASE NO.59 OF 214
The State
(Through Versova Police Station
C.R.No.169/2013) ..Complainan
t
V/s
Sams @ Shulji Sholarj Prakash Devid
Age :30 years, Occupati0on:Fashion Designer
Residing at B-561, Panchsheel, Ajmer
(Rajasthan) ..Accused
Ld. A.P.P. Mr.More for the State/complainant.
Ld. advocate Mr.Nalawade for the accused
CORAM:HIS HONOUR THE ADDL
SESSIONS JUDGE SHRI
M.SALMAN AZMI
(CR NO.21)
DATE: 7th N iember, 219
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JUDGMENT
1. The accused is facing trial for the
ofence punishable u/s. 364-A, 342, 323, 506(ii), 395, 368
and 34 of the Indian Penal Code.
2. In short the prosecution case is that-
Accused had been to the house of informant-
Ranjitsingh Sharma on 15/05/2013 at about 9.00
a.m. The informant accompanied with him in the
vehicle brought by the accused. In the said vehicle,
there were other four persons. The accused took
him near Lotus Petrol pump, Oshiwara at one
Mandraj hall. The informant alongwith accused
went at Mandraj hall where three persons were
already present. The informant was made to sit on
the chair and informed him that the fnancier will
come in a short while. One of the person put tape
on the mouth of the informant, other two caught
hold of him and started beating him. The accused
was demanding money and was also demanding
the chequebook and threatened that if informant
did not hand over the chequebook, he will kidnap
his daughter. Accused telephoned his daughter
and informed that deal is going to be fnaliied and
informant is in the meeting and to keep ready the
ICICI bank chequebook. Accused went to the house
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of the informant and collected chequebook from
the servant Alok and again reached at the said
place. Thereafter accused forcibly took the
signature of the informant on cheques and on the
letter head of Asima Films. At that time, three other
persons were in the hall. Accused released the
informant and threatened not to lodge complaint
and arranged auto for him.
The informant set the criminal law in motion by
lodging the F.I.R. at about 4.00 p.m. on the same
day. Pursuant to the same, ofence came to be
registered u/s. 364-A, 342, 323, 506(ii), 387, 368, r/
w 34 of the Indian Penal Code. The investigation
commenced. The investigating ofcer visited the
spot and has drawn spot panchanama(Ex.40). The
accused has given disclosure statement, pursuant
to which the amount of Rs.10,000/- was seiied vide
panchanama (Ex.23). The statement of the
witnesses came to be recorded and chargesheet
came to be fled.
3. Ld. Metropolitan Magistrate, Railway
Mobile Court, Andheri, Mumbai had taken the cogniiance
of the ofence and after the compliance u/s. 207 of The
Code of Criminal Procedure, 1973 committed the case to
the Court of Sessions vide order dated 20/12/2013 as the
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ofence punishable u/s. 364-A and 395 of the Indian
Penal Code are triable by the Court of Sessions.
4. The Charge for the ofence punishable
u/s. 364-A, 342, 387, 368 and 323 r/w 34 of the Indian
Penal Code was framed against the accused by my
Predecessor. The contents of the Charge were explained
to the accused in vernacular. He abjured his guilt and
claimed to be tried.
5. In order to prove its case, the
prosecution interlia examined following witnesses.
Sr.N Name f the witoess Exhibi
t N .
PW-1 Majibur Ajijur Shaikh-Panch witness 21
PW-2 Ranjit Balkrishna Sharma-informant 31
PW-3 Sheru Mohammed Shaikh-panch witness 36
PW-4 Shailesh Dnyaneshwar Koli-panch
witness
39
PW-5 Shyam Bhikubhai Dhanani-witness 41
PW-6 Karan Rajpratap Singh-witness/bank
manager
49
PW-7 Aashima Ranjit Sharma-daughter of
informant
56
PW-8 Prabhakar @ Alok Shivnarayan Pandey 57
PW-9 Balaji Maruti Dahiphale-investigating
ofcer
59
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PW-
10
Ramdas Gajmal More-investigating
ofcer
70
PW-
11
Ashok Atmaram Pimple-investigating
ofcer
71
6. The statement of accused u/s. 313 of
the Code of Criminal Procedure was recorded. The
accused neither entered the witness box nor examined
any other witness.
7. Heard Ld. A.P.P. and Ld. Advocate
Mr.Nalawade for the accused.
8. On the rival submissions of the parties,
charge, evidence on record and the statement of the
accused persons u/s. 313 of The Code of Criminal
Procedure, 1973 following points arise for my
determination and fndings to it are recorded for the
reasons stated to follow:-
POINTS
1. Does the prosecution prove that on
15/05/2013, accused alongwith unknown
persons kidnapped the informant from his
house in order to commit extortion?
2. Does the prosecution prove that the
accused alongwith other seven persons in
furtherance of his common intention
wrongly confned the informant at Mandraj
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Hall near Lotus Petrol Pump?
3. Does the prosecution prove that accused
alongwith his other associates at Mandraj
hall put the informant in a fear of death and
demanded Rs.4 lacs?
4. Does the prosecution prove that accused
alongwith his associates kidnapped the
informant in furtherance of their common
intention and had wrongfully confned him?
5. Does the prosecution prove that the
accused alongwith his associates in
furtherance of his common intention gave
fst blows to the informant at Mandraj hall
and thereby voluntarily caused hurt to him?
6. What order?
FINDINGS
1. In the Negative.
2. In the Negative.
3. In the Negative.
4. In the Negative.
5. In the Negative.
6. As per fnal order.
REASONS
P iot N .1 t 5
9. The prosecution bangs its case on the
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testimony of PW-2 (Ranjit Sharma), PW-5(Shyam
Dhanani),PW-7 (Aashima Sharma) and PW-8(Prabhakar
Pandey). Ld. A.P.P. submitted that the testimony of PW-
2(Ranjit Sharma) is direct testimony of the incident by
the victim and which fnds assurance in the testimony of
other witnesses i.e. PW-5, PW-7 and PW-8. He would
submit that the prosecution has established it's case
beyond reasonable doubt and therefore accused
deserves to be convicted.
10. Per contra, Ld. Counsel for the accused
argued that the statement of PW-5 and PW-8 were not
recorded during the investigation. These witnesses
although were material but those witnesses are
interested witnesses and therefore their testimony
cannot be relied upon.
11. On considering the evidence of
prosecution witness PW-2 (Ranjit Sharma) who deposed
that on 14/05/2013, he received phone call of accused
that one fnancer by name Bittu is ready to fnance for
the production of his flm and he told that for meeting
informant has to accompany with him on 15/05/2013 at
09.30 a.m. On 15/05/2013 at 09.30 a.m. accused came
to the house of the informant. The driver told informant
that he will also accompany with them but accused told
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that he had brought vehicle and will take informant.
Accused took informant in silver colour Tavera four
wheeler and the vehicle was driven by the accused in
which there were 3 persons. He took him at Mandraj
Hall, near Lotus petrol pump and informed him that Bittu
will come in some time. He was made to sit on a chair.
As soon as he sat on chair four persons encircled him.
Two of them tied his hands with the handle of chair by
telephone cable and one of them put tape on his mouth.
They started beating and harassing him and threatened
him and was demanding the cheque. He told them that
he was not possessing cheque. Accused took out mobile
from his pocket and told his daughter that meeting was
successfully over and she has to give cheque. His
daughter through Alok handed over cheque book of ICICI
bank and HDFC bank to accused. Accused threatened
him that if he do not put signatures on the cheque, he
would kidnap his daughter. Accused forcibly and by
beating him obtained his signatures on 3 to 4 cheques
and on letter head of 'Ashima Film Productions'. Accused
left the said place. The other four persons harassed him.
Accused returned at about 04.00 p.m. and told him that
he is releasing him and if he lodge complaint with the
police then he would kill him and his daughter. Accused
also returned his phone to him and he pushed him in an
auto.
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12. He was semi conscious in the auto
when he heard ring of mobile and woke up, attended the
mobile. It was call from the ICICI bank, branch Bangur
Nagar, Goregaon and it was inquired with him that
whether he had sufered heart attack and somebody had
withdrawn the amount of Rs.4 lakhs from his account. He
went to his house and got unconscious. The inhabitants
of the society called the police. He lodged report with
Versova police station. He has identifed the articles and
accused before the Court.
13. During the cross examination, he
admitted that he was in the hall from 10.30 a.m. to 04.00
p.m. He was listening to the conversation between Sam
and others during the said period. Certain omissions
were brought during his cross examination which include
that his driver told him that he will also accompany with
them. He had stated to the police while recording his
complaint that already four persons were in the vehicle
and as soon as he sat on chair four persons encircled him
and started beating and harassing him and told him to
give the cheque. Even the fact that accused told to his
daughter that meeting was successfully over and PW-1
has to give the cheque. His daughter through Alok
handed over cheque book of ICICI and HDFC Bank to the
accused. This witness do not remember whether he had
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stated to the police that accused threatened him that if
he do not put his signatures on the cheque, he would
kidnap his daughter. He had stated to the police that
accused threatened to kill his daughter if he lodge
complaint with the police. He was semi conscious in the
auto, he heard ring of mobile, he woke up and attended
the mobile, it was call from the ICICI bank, branch
Bangur Nagar, Goregaon, and it was inquired with him
that whether he had sufered heart attack and somebody
had withdrawn the amount of Rs.4 lakhs from his
account. He went to his house and got unconscious, the
inhabitants of the society called the police. Major part of
the testimony of this witness is full of omissions. If the
omissions are taken out from the testimony of this
witness,few facts are of incident and which has to be
considered alongwith other evidence coming on the
record. This witness is a material witness on the incident
and his testimony on the point of incident should be
without any doubt and should inspire confdence. Even
there is no material by which transport he came to the
house and the neighbours or watchman who had noticed
him and other persons who called the police.
14. PW-5(Shyam Dhanani) is also a material
witness. He deposed that on 14/05/2013 he received
phone call from Santosh Mishra that on 15/05/2013 hall
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is to be given on booking for one shift to one person. He
asked him to clean the hall. On 15/05/2013 he had
cleaned the hall. At about 10.00 a.m. three boys came
at the hall and sat on the sofa. They informed him that
they have booked the hall. After fve minutes producer
came at the hall. Further after 5 to 10 minutes, one Sam
came to the hall who had booked the said hall. Sam told
him to check the music system. He checked the music
system and left the hall and went to the ofce cabin.
Sam was frequently coming out and in of the hall. At
01.00 p.m. one shift was completed and he told Sam
about the same. He replied that he will talk with Santosh
Mishra. At about 03.00 to 03.30 p.m. they left and
vacated the hall. When they left the hall they went
jointly. They boarded one person in rickshaw with whom
they had meeting. At about 05.30 to 06.00 p.m. police
came along with a person who was present during the
period of booking and who was made to sit in the
rickshaw. This witness also identifed the accused.
15. This witness was subjected to cross
examination. He admitted that there was no register for
taking entry in respect of booking of the hall and on
15/05/2013 when police had been to the hall, police
inspected the hall.
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16. The evidence of this witness is to be
considered with the evidence of PW-2. This witness
stated that initially three boys came and sat on the sofa.
After fve minutes producer came at the hall and after 5
to 10 minutes accused came to the hall. The evidence of
PW-2(Ranjit Sharma) is that he accompanied with the
accused. Further the testimony of this witness shows
that at about 1.00 p.m., one shift was completed and he
told accused about the same. The prosecution is coming
with the case that accused threatened the informant to
sign the cheque and he went outside the hall to bring the
cheque from the house of informant. He obtained
signatures of the informant on the cheques and two
letter heads. The evidence of PW-2 and PW-5 in this
regard appears to be contradictory. PW-5 informed Sam
that one shift is over and did not notice that PW-2 was
tied with chair appears to be unbelievable.
17. The prosecution has also examined
PW-7(Aashima Ranjit Sharma), the daughter of PW-2. She
deposed that she knew accused Sam David. At about
10.30 am he called her on her cell phone from the cell
phone of her father. He communicated to her that the
deal is mostly fnal and so he need cheque book of ICICI
Bank of the account of her father and informed her that
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he is coming at her house to collect the cheque book. At
around 12.00 or 12.30 pm accused came to her house.
Her servant Alok handed over the cheque book to Sam.
When her father came to house he was not well. He was
tense. His clothes were dirty and smelling so badly. He
was in a stage of unconsciousness. She admitted that her
statement was not recorded during the investigation.
Before coming to the Court, she had discussion with her
father. In examination in chief, she categorically stated
that her father did not tell her about the incident.
Therefore, her testimony is only on the point of accused
taking the chequebook and her father came unwell at the
house.
18. The prosecution has also examined
PW-8 (Prabhakar @ Alok Shivnarayan Pandey). He also
deposed in the same fashion. In addition he deposed that
around 12.30 pm daughter of Ranjit Sharma told him to
give cheque book to Sam who would be coming to her
house. He gave cheque book to Sam in the lift of the
building. On that day around 3.00 to 4.00 pm he
attended the phone on intercom of watchman of the
building and told him to come immediately at the ground
floor as Ranjit Sharma is not keeping well. He along with
Aashima went at the ground floor and saw that Ranjit
Sharma was semi-conscious. He along with watchman
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and daughter of PW-2 took him in the flat. After
sprinkling water on his person, he regained
consciousness and was shivering. The informant told
them that Sam kidnapped him and had pointed revolver
towards him. The facts that Sam pointed revolver is
coming for the frst time in the evidence of this witness.
19. During his cross examination, it was
brought on record that Police did not inquire with him
and had not recorded his statement. In the building C.
C. T. V. Camera was installed at the entrance and even in
the lift. This witness stated that the informant informed
him that accused pointed out revolver but nowhere the
informant had stated the said fact. This itself create
doubt about the testimony of this witness. This witness
admitted that there was CCTV at the entrance of the
building and lift. If the accused was at the house of the
informant, then as to why the CCTV footage were not
seiied by the police, is not coming on record.
20. The prosecution has taken assistance of the
witness PW-1(Majibur Ajijur Shaikh) and PW-3(Sheru
Mohammed Shaikh) on the point of disclosure statement.
Initially, PW-1 did not support the case of the prosecution
as regard the statement of the accused and the recovery
at the instance of the accused. But, in the cross
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examination of the A.P.P. he admitted that accused gave
disclosure statement on 05/06/2013 and pursuant to
which he had taken them to Borivali at a flat from where
police discovered Rs.10000/- and seiiure panchanama
(Ex.23) was drawn. Later on in the cross examination of
the accused he admitted that on the say of police, he
made signature at police station and identifed the
accused on say of police. The testimony of this witness
falls down on the above admission. There is no material
that the amount seiied was at the instance of the
accused was the same amount which he has allegedly
withdrawn.
21. PW-3(Sheru Mohammed Shaikh) has not
supported the case of the prosecution. Even testimony
of PW-11 as regard seiiure of Rs.10,000/- at the instance
of the accused has no relevance as there is nothing to
show that there is no connection of that amount with
Rs.4 lacs allegedly withdrawn by the accused.
22. The prosecution has taken endeavor to
examine PW-4 (Shailesh Koli) in whose presence the
panchanama was drawn. He deposed that police had
carried out and made search of the spot and he saw one
chair having black tapes tied at left side. Brown tapes
were lying scattered on the floor. The glass was covered
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with curtain. Brown rope (sutli) was tied at the right
handle of the chair. Police had taken the photographs.
Police had put those articles in polythene bag. Police
had drawn the panchanama and had obtained his
signature. He has identifed the seiied articles. The
testimony of this witness fnd assurance in the testimony
of PW-9(Balaji Maruti Dahiphale) but the material aspect
is that PW-9, during cross examination deposed that the
hall was closed on the date of incident, therefore he had
not drawn the panchanama. In the cross examination,
PW-5 admitted that on 15/05/2013 the police had been
to the hall and inspected the hall. The panchanama was
drawn on the next day between 2.00/3.00 p.m. looses its
signifcance. The other aspect of the matter is that in the
cross examination PW-9 admitted that on 15/05/2013, he
went to the spot and inspected whether CCTV camera
were installed in the hall. He admitted that CCTV were
not installed upto a distance of 10 to 15 feet from the
hall or even at the hall. There is no CCTV footage of the
area near to the said hall which would have been better
piece of evidence.
23. The prosecution has also examined PW-
6 (Karan Singh) in order to prove the cheque(Ex.15). He
deposed that Ranjit Sharma was holding account with
the Bangurnagar Branch. His Saving Account number
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was 101901503475. The cheque number 002003 for Rs.
4,00,000/- was credited in cash to one Mr. David. The
said amount was credited in cash to Mr. David after
confrmation on mobile with Mr. Ranjeet Sharma which
was with the bank. The incident is of 15/05/2013. This
witness was not working at the relevant time and he
admitted that he had no personal knowledge as regard
the transaction. On the contrary, it is admitted by him
that if the amount in cash is withdrawn by cheque then
the cheque should be in favour of 'Self'. Then as to how
the witness support the prosecution case is not coming
forward.
24. PW-10(Ramdas Gajmal More) who was
one of the investigating ofcer deposed that he has
recorded the statement of witness Sandeep Rajeshkumar
Garg. Sandeep Garg had handed over the CD of C. C. T.
V. footage of the incident when the accused had been to
the bank and there was altercation. He has also handed
over the photocopy of the bearer cheque, account
statement of informant Ranjeet Sharma, copy of the
mobile SMS which was forwarded to the informant and
the copy of the PAN card of accused S. S. David.
Further investigation was handed over to PI Pimpale. The
said CCTV footage does not form part of the
chargesheet. There is no explanation from the side of
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the prosecution for not annexing the CD. On scrutiny of
the evidence the testimony of PW-2 does not inspire
confdence that he was kidnapped, threatened and
extorted and he was confned and concealed at Mandraj
hall. The deposition of PW-5 that at 1.00 pm he was in
the hall and he did not notice the condition of PW-2 is not
believable. PW-7 handed over chequebook of her father
to the accused without confrming from the father, also
speaks in volume. The evidence does not suggest that
the accused forcibly put the informant at Mandraj hall.
The CCTV camera was at some distance to Mandraj hall.
The CD seiied from the bank has not been produced.
The material evidence has been withheld by the police.
25. The prosecution is coming with the case
that accused booked the hall. The employee of the
Mandiraj Hall i.e. PW-5 was present in the hall and even
at 1.00 p.m. he informed accused that shift time is over,
inspite of it he did not notice that PW-2 was tied with
chair. As per the version of PW-2, he was let free by
accused about 4 p.m. He did not raise any alarm till that
time. Even PW-5 did not notice that by force the accused
took out PW-2 from the hall and forcibly boarded him in
the auto. As per the version of PW-5, an independent
witness, that on the day of incident police had been to
the spot of incident. On the very same day the
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panchanama was not carried out. There is no whisper in
the evidence of PW-5 that police carried out the search
of the hall and found one chair having black tape tied on
left handle and rope on right handle. He even did not
whisper that brown tapes were found scattered on the
floor. The absence of these material facts in the
testimony of this witness creates reasonable doubt to the
story of the prosecution that accused kidnapped PW-2,
confned at the hall and put under the fear of his death
and demanded Rs.4 lacs from him.
26. The story of the prosecution is that PW-
2 was taken by accused under the guise of meeting with
a fnancier for production of his flm. The daughter of
PW-2 handed over the cheque to the accused without
any inquiry that when fnancier is going to fnance the
flm then for what reason PW-2 has to issue the cheque.
This also create doubt over the prosecution case.
27. The evidence of PW-2 and PW-5 is that
the accused was not alone. He was accompanied with
other 4 to 8 persons. There is nothing in the
investigation of about the involvement of other persons
and their identifcation. Even they are not shown as
absconding accused. In this background the case of the
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prosecution is in shadow of doubt.
28. The cumulative efect of the above
discussion is that the prosecution failed to prove the
charge against accused beyond reasonable doubt.
Heoce, I aoswer p iot o s.1 t 5 io the oegatiie.
POINT NO.6
29. In view of the above discussion and fndings to
point nos.1 to 5, the accused deserves to be acquitted.
Hence, it is expedient to pass following order:-
ORDER
1. Accused Sams @Shulj Sholarj Prakash Devid is
acquitted under section 235 (1) of Cr.PC for the ofence
punishable under section 364 A, 342,387,368,323 r/w 34
of IPC.
2. His bail bond stands canceled.
3. The seiied muddemal ie. white rope, black wire,
adhesive tape, marked and unmarked labels being
useless and worthless be destroyed after the expiry of
appeal period .
4. The seiied amount of Rs. 10000/- (Rupees Ten
thousand has not been claimed. It be forfeited to the
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State after the expiry of appeal period.
(M.Salman Aimi)
27/11/2019 Judge,
Addl.Sessions Judge,
Gr.Mumbai.
Dictated on : 27/11/2019
Transcribed on : 24/12/2019
Signed on : 04/02/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/02/2020 at 4.30 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
27/11/2019
Judgment and order signed by
P.O.
04/02/2020
Judgment/order uploaded on 04/02/2020
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