(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the appellant-accused feeling aggrieved by the judgment and order dated 21st November 2003 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Navrangpura in Sessions Case No.134 of 2003 whereby the learned Sessions Judge was pleased to convict the appellant-accused as under:-
The appellant is convicted under Section 363 of IPC and sentenced to undergo RI for seven years and fine of Rs.2,000, in default to undergo SI for one month.
The appellant is convicted under Section 364(A) of IPC and sentenced to undergo RI for life and fine of Rs.5,000, in default to undergo SI for two months.
The appellant is convicted under Section 365 of IPC and sentenced to undergo RI for seven years and fine of Rs.1,000, in default to undergo SI for one month.
The appellant is convicted under Section 392 of IPC and sentenced to undergo RI for nine years and fine of Rs.3,000, in default to undergo SI for one and half month.
The case of the prosecution is that on 19.12.2002 the complainant Sonu Sundardas Nanani went to his furniture shop situated at Corporate House, Judges Bungalows Road, Ahmedabad at 11 AM. After some time the wife of the complainant came there for dropping their daughter Priti aged 2-1/2 years old at his shop. After dropping Priti at the shop, the wife of the complainant went home. The complainant's wife went to Personal Point Gym for exercising. Therefore, complainant went there at about 2.45 PM for bringing her back to the shop. When he came back to the shop along with his wife in ten minutes, he could not found his daughter Priti at the shop. They made enquiries everywhere but could not found her. They went to the house of the appellant, who was working as a rickshaw puller with the complainant, but could not found him. Thereafter, the complainant came back to the shop and at about 4.50 PM he received a telephone call from one unknown persons who told him that if the complainant wants his daughter back, he should come to Paldi are on the next day morning along with Rs.5 lakhs ransom. Therefore, the complainant lodged the complaint with Satellite Police Station. The police after conducting the investigation filed the charge sheet before the court of the learned Judicial Magistrate First Class, Ahmedabad Rural.. Since the case is exclusively triable by the court of Sessions, the learned Magistrate committed the case to the Sessions Court at Ahmedabad (Rural) under Section 209 of the Code of Criminal Procedure, 1973.
The learned Sessions Judge framed the charge at Exhibit No.3. The accused-appellant pleaded not guilty and claimed to be tried. The learned Sessions Judge after conducting the trial convicted and sentenced the appellant-accused as above.
Heard learned counsel for the parties.
Learned counsel for the appellant is forthright and candid enough in admitting that the girl was taken away by the present appellant and she was rescued form him and therefore she is not arguing the appeal against the conviction and sentence of the appellant for the offence under Sections 363, 365 and 392 of IPC. As regard conviction of the appellant under Section 364A of the IPC, according to her, there is no evidence on record that the present accused-appellant ever made any demand of the nature, which would bring his case within the ambit of Section 364A. According to her, the Telephone Operator who is examined to depose that telephone call was made to the complainant by the appellant has not been very clear as to who was the accused who talked to the complainant. According to the telephone operator, there were more than one person and which one of them talked to the complainant is not deposed by that Telephone Operator. Unless the person who actually gave threat is identified, the ingredients of Section 364A would not get attracted. The learned Additional Public Prosecutor was at pains to suggest that who the actual caller was from the statements of PW No.7 Shailesh Mangaldas Vaghela and PW No.8 Mustakbhai Ibrahimbhai Nagori. It was not possible to deduce as to who the actual caller was and in that view of the matter, this Court feels that there is force in the argument of the learned counsel for the appellant that offence under Section 364A would not be made out because the actual caller and person giving threat has not been identified, because there are other accused persons who were acquitted by the trial Court and there is no State Appeal pending. In that view of the matter, we are constrained to observe that the appeal deserves to be allowed in part. The conviction and sentence of the accused for the offence under Section 364A of IPC is set aside and the conviction and sentence of the accused appellant under Sections 363, 365 and 392 of IPC is confirmed. The accused is said to be behind the bars.
He is ordered to be set at liberty forthwith if not required in any other criminal case.
(Bhagwati Prasad, J.) (J.C.Upadhyaya, J.) *mohd Top