(Prayers: Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment and order dated 21.12.2022 in S.C.No.267 of 2019 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai.
Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment and order dated 21.12.2022 in S.C.No.267 of 2019 and SC No.107/2022 for A3 and A10 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai.
Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment and order dated 21.12.2022 in S.C.No.267 of 2019 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai.)|
Common Judgment:
N. Anand Venkatesh, J.
1. These appeals have been filed by the accused persons aggrieved by the conviction and sentence in the following manner:
| Rank of the accused | Appeal No. |
| A6 | 97/2023 |
| A2,A3,A4,A5,A9 and A10 | 144/2023 |
| A1 and A8 | 222/2023 |
| Rank of the accused | Offences for which convicted (IPC) | Sentenced to undergo |
| A6 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default to undergo one year simple imprisonment |
| A2 | 120(B) r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment | |
| 342 | One year rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one month simple imprisonment | |
| A1 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.25,000/- in default to undergo one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.25,000/- in default to undergo one year simple imprisonment | |
| 419 | Rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for six months | |
| 341 | Rigorous imprisonment for one month and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one week | |
| 342 | Rigorous imprisonment for one year with a fine of Rs.1,000/-, in default to undergo one month simple imprisonment | |
| A3 and A10 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment | |
| 419 | Rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months | |
| 341 | Rigorous imprisonment for one month and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one week | |
| A3 and A10 | 342 | Rigorous imprisonment for one year with a fine of Rs. 1,000/-, in default to undergo one month simple imprisonment |
| A4 and A5 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment | |
| A9 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment |
| 368 r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment | |
| A8 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to one year simple imprisonment |
2. The case of the prosecution is that PW1 was residing in a joint family in Madurai. They were having a Mill in which the father of A1 was working as an Accountant for several years. After his demise, solatium was given to the family of the deceased. It is alleged that A1 and his family was not satisfied with the amount given as solatium and hence, A1 is said to have conspired with other accused persons for kidnapping the children of PW1 for ransom.
2.1. On 16.11.2017 at about 8.10 a.m., PW3, who was the driver working under PW1, took the children of PW1 in an Innova Car bearing registration No.TN64 P6666 from the house to drop them at VMJ School situated at New Ramnad Road, Madurai. A1 and A10 dressed as Traffic Police came along with A3 and stopped the Innova car on the pretext of conducting search. A3, at this point of time, is said to have taken custody of the car and he compelled PW3 to go to the back seat of the car.
2.2. A1 and A10 got into the car and is said to have kidnapped the two girl children. A2 is said to have followed in his motorbike the Innova Car in which the two girl children were kidnapped. PW3 was administered with Haloperidol-IP medicine by A1 and he became unconscious.
2.3. A4 and A5 were waiting in a TATA Indica Car bearing registration No.TN-07-AQ-0495 near a vacant land and the two girl children were shifted to the said car and they were taken to the house of A9. A9 took the children into her custody in her house.
2.4. A3 drove the Innova Car along with A10 and PW3 and PW3 was dropped at Meenakshi Mission Hospital, Madurai and the Innova Car has also parked in the hospital.
2.5. A2 thereafter called PW5, who is the co-brother of PW1 and he was informed about the kidnapping of the two children and ransom of Rs.Two crores was demanded. The family of PW1 and PW5 in order to save the children consented to give Rs.50 lakhs. This was informed to A2 in a conversation that took place over mobile phone by PW5 and A2 instructed the amount to be kept near the electric post at Madurai Tamil Sangam Building.
2.6. PW1 and PW5 left with no other option managed to arrange for the funds and kept the amount in the chosen place as directed by A2. This amount was collected by A5 and it was handed over to A7 to ensure safe custody to A1. This amount was lying in the house of A7, who is alleged to be aware of the fact that the amount was towards kidnapping the children of PW1.
2.7. After the ransom amount was paid, A1 and A3 arranged an autorickshaw owned by PW19 and the two kidnapped children were taken from the house of A9 and they were dropped near Chandramathi Mahal, behind the house of PW1.
2.8. In the meantime, PW1 lodged a complaint (Ex.P1) on 16.11.2017 at about 21 hrs., before PW26, who registered an FIR (Ex.P40) in Crime No.1134 of 2017 for offence under Section 364A IPC.
2.9. PW27 took up the investigation and he arrested A1 to A4 on 19.11.2017 and based on their confession statement, recovered the injection with syringe, Indica Car, Haloperidol medicine and cash of Rs.16,23,500/- was recovered from A1. Insofar as A2 is concerned, cash of Rs.10,20,000/- was recovered. Insofar as A3 and A4 are concerned, a sum of Rs.2 lakhs was recovered from each of the accused person. The two wheeler was recovered from A2.
3. On the next day, ie., on 20.11.2017, PW27 arrested A6 and A8 and recovered the police uniform dresses and other materials from A6 along with cash of Rs.2 lakhs. A mobile phone was recovered from A8. PW27 arrested A7 and recovered cash of Rs.10 lakhs including the missing mobile phone. A5 was arrested on 20.11.2017 and A10 was arrested on 31.12.2017 and two two-wheelers were recovered from A10.
4. PW27 took steps for conducting the test identification parade for PW1, PW5 and PW19 to identify the accused persons. Accordingly, a requisition was made to the Judicial Magistrate, based on which, a test identification parade was conducted for identifying A1 to A5 and A9.
5. The statements of PW1, PW5 and PW19 were recorded under Section 164 Cr.P.C. The conversation between A2 and PW5 was sent to the Forensic Sciences Department to compare with the sample voice of the accused No.2 and PW5.
6. After recording all the statements of the witnesses under Section 161 Cr.P.C., and after collecting all the materials, the final report came to be laid before the Judicial Magistrate, No.I Madurai, as against 10 accused persons, which was taken on file in PRC No.4/2018. A3 and A10 absconded and they were not able to be secured in spite of the issuance of non bailable warrant. Hence, the case was split up for A3 and A10 and it was numbered as PRC No.177/2019. The original case was committed to the Principal District Court, Madurai and it was numbered as SC No. 267/2019. The case was made over to the Sessions Court, Mahalir Neethimandram, Madurai.
7. The split up case was also committed after the appearance of A3 and A10 and it was taken on file in SC No.107/2022.
8. The trial Court framed charges against the accused persons in the following manner:
| S.No. | Rank of the accused | Offences under Sections (IPC) |
| 1 | A1,A2,A3 to A10 | 120(B) read with 364A |
| 2 | A1, A3, A10 | 419 |
| 3 | A1, A3, A10 | 341 |
| 4 | A1, A2, A10 | 342 |
| 5 | A1,A2, A3, A4,A5, A7 and A10 | 364A |
| 6 | A9 | 368 r/w 364A |
10. The prosecution examined PW1 to PW27 and marked Exs.P1 to Ex.P48. They also placed reliance upon MO1 to MO28. The aggravating circumstances and evidence were put to the accused persons when they were questioned under Section 313(i)(b) of Cr.P.C., and they denied the same as false.
11. DW1 was examined on the side of the defence and Ex.D1 was marked. The trial Court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the prosecution has proved the case beyond reasonable doubts against all the accused persons and accordingly they were convicted and sentenced in the manner stated supra.
12. A7 had also filed an appeal in Crl.A.(MD) NO.112/2023, but, however, he died during the pendency of the appeal and hence, that appeal was closed as abated on 24.03.2026. The remaining accused persons aggrieved by the judgment passed by the trial Court are prosecuting the present appeals before this Court.
13. For ease of understanding, the case of the prosecution can be simplified as follows:
On 15.11.2017, A1, A6 and A8 purchased traffic police constable uniform and other materials from the shop of PW16. On 16.11.2017 at about 8.10 a.m. A1 and A10 wearing police uniform and A3 in normal attire stopped the Innova car, which was driven by PW3 in the pretext of searching the car. They, thereafter, kidnapped the children along with PW3 and the car was followed in a two wheeler by A2. A1 is said to have injected Haloperidol – IP to PW3 and as a result, PW3 became unconscious. In the course of the same transaction, A4 and A5 came in a TATA Indica car and the girl children were transferred to this car and they were taken along with A1 to the house of A9. In the meantime, A3 and A10 took PW3 to Meenakshi Mission Hospital and parked the car there along with PW3 and went away from that place.
13.1. A9 helped in confining the two kidnapped girls in her house. A2 had conversation with PW5 and was demanding for cash as a condition precedent to release the children. It was agreed to give Rs.50 lakhs. Pursuant to the same, A5 took the cash from the specified place and handed it over to A7, who kept it in his house. On receipt of money, A1, A3 andA5 engaged an auto belonging to PW19 and dropped the children at Chandramathi Mahal behind the house of PW1.
14. In order to have a bird's eye view on the specific role that was attributed against each accused person by the prosecution and the witnesses and the materials that were relied upon to prove the charge as against each accused person, the same is tabulated hereunder:
| Sl. No. | Accused | Role Attributed by the Prosecution | Evidence Adduced |
| 1 | Ravindran / A1 | Happens to be the mastermind behind the entire occurrence; batched conspiracy with other Accused; had procured the Police Dress; indulged in act of kidnapping the victims; had administered Haloperidol-IP; causing sedation to the Driver/PW3; shifter PW3 in the Innova Car along with A3 and A10 & dropped at Meenakshi Mission Hospital, dropping of the victims near their residence; shared the booty. | ● Alleged conspiracy witnesses PW8 to PW11 turned hostile● Oral evidence of PW3 & PW4 speak about the alleged kidnapping● PW16 speaks about the alleged purchase of the Police Dress and also the downloading of CCTV footages from the shop in CD (MO24)● PW.19 - Auto Driver speaks about dropping the victims near their residence accompanied by A3. ● PW.21 speaks about the side-effects of Haloperidol and Ex. P32 is the Report. ● PW.12, PW.13 and PW.14 speaks about the purchase of Bolero Vehicle from the ill-gotten money (MO.1). ● PW.15 speaks about the Arrest and Recovery of Mos. ● PW.22 speaks about the issuance of certificate/Ex. P33 regards MO.24 ● PW.24 Judicial Magistrate speaks about TI Parade conducted regards A1/ Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/ Vairamuthu; and A9/Jeeva @ Jeevajothi ● PW.3, PW.4 and PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings |
| 2 | Kannan @ Pitchaikannu / A2 | Alleged to have hatched the conspiracy with the other accused; followed the other accused and victims in two-wheeler after kidnap; demanded ransom for the release of victims with PW5 | ● Alleged Conspiracy Witnesses PW.8 to PW.11 turned hostile. ● PW.5 speaks about the demand of ransom and negotiation.●PW.22/Sundaravadivel, Technical Inspector speaks about downloading of the alleged conversation between A2 and PW.5 from the mobile phone of PW.5 and recording the same in DVD/MO.28● PW.22 had issued Certificate / Ex.P34. ● PW.24 Judicial Magistrate speaks about TI Parade conducted regards A1/Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/Vairamuthu; and A9/Jeeva @ Jeevajothi ● PW.3, PW.4 and PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings ● PW.25 speaks about the voice comparison conducted pursuant to the requisition by the IO before Judicial Magistrate for collection of sample voice of A2 vide. Ex.P43 and the subsequent comparison of the Audio Recordings in MO.28. Ex. P39 is the Report submitted by her. ● PW.29/IO deposes of the fact that A2's Mobile No. 7502604531 and the same was in repeated contact with PW.5's Mobile 9843777788 on 16.11.2017 and Ex.P44 & Ex.P45 – CDR Details |
| 3 | Maniraj/A3 | Alleged to have hatched the conspiracy with the other accused; Accompanied A1 in the act of kidnapping the victims ; administering sedation to the Driver/PW3; dropping of the victims near the residence; shared the booty. | ● Alleged Conspiracy Witnesses PW.8 to PW.11 turned hostile.● Oral evidence of PW.3 & PW.4 speak about the alleged kidnapping.● PW.19 - Auto Driver speaks about dropping the victims near their residence accompanied by A3.● PW.15 speaks about the Arrest and Recovery of Mos. ● PW.24 Judicial Magistrate speaks about TI Parade conducted regards A1/ Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/Vairamuthu; and A9/Jeeva @ Jeevajothi PW.3, PW.4, PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings |
| 4 | Manikandan/ A4 | Alleged to have hatched the conspiracy with the other accused; (Reached the ground along with A5 in the Indica Car and thereafter had taken away the victims along with A1 and dropped them at the house of A9); shared the booty. | ● Alleged Conspiracy Witnesses PW.8 to PW.11 turned hostile.● PW.15 speaks about the Arrest and Recovery of Mos.● PW.24 Judicial Magistrate speaks about TI Parade conducted regardsA1/ Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/Vairamuthu; and A9/Jeeva @ Jeevajothi ● PW3, PW4 and PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings |
| 5 | Vairamuthu/ A5 | Alleged to have hatched the conspiracy with the other accused; (Took the amount dropped by PW5 at Tamil Sangam and handed over to A7/Radhakrishnan. | ● Alleged Conspiracy Witnesses PW.8 to PW.11 turned hostile.● PW.15 speaks about the Arrest ● PW.24 Judicial Magistrate speaks about TI Parade conducted regards A1/Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/Vairamuthu; and A9/Jeeva @ Jeevajothi● PW.3, PW.4 and PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings |
| 6 | Gunasekaran/ A6 | Alleged to have hatched the conspiracy with the other accused; shared the booty. | ● Alleged Conspiracy Witnesses PW.8 to PW.11 turned hostile.● PW.15 speaks about the Arrest and recovery of Mos. |
| 7 | Kaladevi / A8(Wife of A1) | Alleged to have hatched the conspiracy with the other accused; Accompanied A1 to the shop of PW16 for purchase of police dress; | ● Alleged conspiracy witnesses PW8 to PW11 turned hostile● PW16 speaks about the alleged purchase of the Police Dress and also the downloading of CCTV footages from the shop in CD (MO24)● PW.15 speaks about the Arrest Sl. No. Accused Role Attributed by the Prosecution Evidence Adduced |
| 8 | Jeeva @ Jeevajothi / A9 | Alleged to have hatched the conspiracy with the other accused; the children/victims were kept in her residence; | ● Alleged conspiracy witnesses PW8 to PW11 turned hostile● PW4 speaks about her presence in the place where they were confined.● PW9 speaks about A9 residing at Mathichiyam● PW17 speaks about A9 residing at Mathichiyam wherein she heard the noise of the children who were detained but had turned hostile. ● PW.15 speaks about the arrest and recovery of MOs. ● PW.24 Judicial Magistrate speaks about TI Parade conducted regards the accused namely, A1/ Ravindran; A2/Kannan @ Pitchaikannu; A3/Maniraj; A4/ Manikandan; A5/ Vairamuthu; and A9/Jeeva @ Jeevajothi ● PW.3, PW.4 and PW.19 had participated in the TI Parade Ex.P37 TI Parade Proceedings |
| 9 | Chinnadurai/ A10 | Had hatched conspiracy with the other accused; had procured the police dress; indulged in act of kidnapping the victims; shifted PW3 in the Innova Car along with A1 and A3 and dropped at Meenakshi Mission Hospital | ● Alleged conspiracy witnesses PW8 to PW11 turned hostile● Oral evidence of PW3 and PW4 speak about the alleged kidnapping;● PW16 speaks about the alleged purchase of the police dress● PW.15 speaks about the arrest and recovery of MOs. |
| Sl.No. | Rank of accused | Date of Arrest | Recovered object |
| 1 | A1-Ravindran | 19.11.2017 at about 22.00 hours at Iravathanallur, Check Post, Madurai | MO1-Bolero Car bearing Regn No.TN64K4133 (photo)MO11-Anesthesia 4 bottlesMO12-Indica Car bearing Regn. No.TN07AQ0495 (photo)MO13-Haloperidol 5 bottles MO14-cash Rs.16,23,500/- |
| 2. | A2-Kannan | 19.11.2017 at about 22.00 hours at Iravathanallur, Check Post, Madurai | MO15-Cash Rs.10,20,000/-MO16-Samsung Mobile PhoneMO19-Two Wheeler TVS Access Regn. No,TN59AT7806 |
| 3 | A3-Maniraj | 19.11.2017 at about 22.00 hours at Iravathanallur, Check Post, Madurai | MO17-Cash Rs.2,00,000/- |
| 4 | A4-Manikandan | 19.11.2017 at about 22.00 hours at Iravathanallur, Check Post, Madurai | MO18-Cash Rs.2,00,000/- |
| 5 | A5-Vairamuthu | 20.11.2017 at about 10.00 at Annai Chandramathi Marriage Hall -Nil- | |
| 6. | A6-Gunasekaran | 20.11.2017 at about 4.00 am., Vel Foundation, Madurai. | MO2-Half Hand White Shirt – 2MO3-Red Colour Whistle Chord-2MO4-Star 4 NosMO5-Red and Blue Colour Ribbon-4 Nos. MO6-TP Badge – 4 Nos. MO7-Khaki Colour Pant – 2 Nos. MO8-Traffic SI Cap – 2 Nos. MO9-SI Belt-2 Nos. MO10-Brown Colour Shoe – 2 Pair MO20 – Cash Rs.2,00,000/- |
| 7. | A8-Kaladevi | 20.11.2017 at about 5.15 am., Vandiyur Sathasivan Nagar | MO21 ASVS Cell Phone |
| 8 | A9-Jeevajothi | 20.11.2017 at about 5.15 am., in front of her house, North Street, Mathichiyam,Madurai. | - Nil - |
| 9 | A10-Chinnadurai | 31.12.2017 at about 11.00 a.m. Mattuthavani Bus Stand | MO25-Black Colour Royal Enfield Bullet Regn. No.TN59BH1836MO26-Biscuit Colour Honda Activa Regn. o.TN59BM9030 |
17. This Court has carefully considered the submissions made on either side and the materials available on record.
18. The prosecution in order to prove the charges broadly relied upon oral testimonies, documents and material objects on the one hand and scientific evidence in terms of CCTV footages, audio recording and CDR particulars on the other hand. Insofar as the former is concerned, the prosecution is heavily relying upon the evidence of PW3, PW4, PW13, PW14, PW15, PW16, PW18 and PW19. Insofar as the scientific evidence is concerned, the prosecution is relying upon PW21, PW22, PW23 and PW25.
19. When a Court marshals the facts of the case and appreciates evidence, it should not divest itself from the existing reality. In a case involving kidnapping for ransom and more particularly when it involves children, the Court, while undertaking the process of appreciation of evidence, should not do it in a manner in which it is done for instance in a case of murder. In the process of appreciation of evidence, the same yardstick cannot be applied in every case and each case has to be dealt with considering its nature and the circumstances surrounding the case. One size fits all approach must be avoided in the process of appreciation of evidence.
20. In the process of appreciation of evidence, this Court has to broadly analyse this case by undertaking two steps. The first step is as to whether a kidnapping for ransom has taken place as alleged by the prosecution and if so, the second step is to see whether the prosecution has established the charge as against each of the accused person regarding their involvement in the incident.
21. PW3 in this case is the driver of the car engaged by the family of PW1 and PW5. It is the case of the prosecution that PW3 normally goes to the house of PW1 to pickup PW4 and her sister to drop them in the school. On 16.11.2017, PW3 picked up the two children in an Innova car bearing registration number TN64 P6666. When this car was going near Muktheeswarar Temple, it was intercepted and stopped by three persons. Two persons were in traffic police uniform and the other person was in his normal attire. PW3 in his evidence states that all those three persons entered the car and PW3 was taken to the backseat and one of the person started driving the car. The car was halted in an open space/vacant land.
22. The above evidence tendered by PW3 is also spoken to by PW4, who is one of the kidnapped girl. Both of them also state about PW3 being administered with injection and as a result he became immobile. Both these witnesses also stated the fact that the two children were shifted to a Tata Indica car bearing registration number TN-07-AQ-0495.
23. The further evidence of PW3 is that when he gained consciousness, he realised that he was near Meenakshi Mission Hospital inside the same Innova car.
24. PW3 identified A1, A3 and A10 in the dock and he also specifically stated that it was A3, who drove the car after they took control of the car and forcibly brought PW3 to the backseat of the car. He further states that it was A1 and A10, who were wearing traffic police uniform and A3 was in his regular attire. He further states that it was A1 who administered the injection.
25. Insofar as the victim girl PW4 is concerned, she was able to identify only A1 in the Court and she was not able to clearly remember and identify the other two accused persons, who had stopped the car near Muktheeswarar Temple.
26. The victim girl PW4 further states in her evidence that she along with her younger sister were taken to the house of A9. The victim girl PW4 clearly identified A9 in the Court by describing her to be the 'fat lady' to whose house PW4 and her sister were taken and confined.
27. The evidence of PW4 further brings out the fact that A1 also came to the house of A9 and A9 attempted to serve curd rice to both the girls and PW4’s younger sister started crying. She states that both of them were threatened by showing a dog in the house of A9. Further A1 brought cake and asked these two girls to eat the cake. They found that it was of bitter taste and refused to eat, but, however, both of them were forced to eat the cake and she states that thereafter both of them became unconscious.
28. At this juncture, the evidence of PW16 assumes some importance to corroborate the purchase of traffic police uniform by A1 and his wife A8 on 15.11.2017 at 9 p.m., which is one day prior to the date of occurrence. PW16 is an independent witness, who was an employee in the shop, who speaks about the purchase of two sets of police uniform and A1 changing from his regular attire and wearing the police uniform while he left the shop along with A8. PW16, while deposing in the Court, has identified A1 and A8.
29. The next important witness whose evidence has to be considered by this Court is that of PW19. He has stated in his evidence that his services were hired by A1 and he has spoken about two independent actions that were performed by him. The first one was, when he picked up A5 and dropped him near Tamil Sangam and five minutes thereafter, after A5 returned, he was again dropped near Reliance showroom at Anna Nagar. The second part of it, is after half an hour A1 and A3 asked PW19 to go to Mathichiyam, which is the house of A9 and where A9 came with two girl children. Thereafter, on instructions of A1 and A3, the two girl children were dropped near Chandramathi Mahal. PW19, in the course of deposing before the Court, identified A1, A3, A5, and A9. The combined analysis of evidence of PW3, PW4, PW16 and PW19 along with the questions that were put to them during the cross examination, clearly establishes that two girls were in fact kidnapped as alleged by the prosecution and this kidnap drama, which commenced at around 8.10 a.m., on 16.11.2017 came to an end at about 9.30 p.m.
30. One of the main ground that was raised on the side of appellants is that there was absolutely no explanation for the delay in registering the FIR only at 21:00 hrs., and the FIR reaching the Court the next day at about 4.40 p.m. Therefore, according to the appellants, the entire kidnap for ransom was a cooked-up story, which never took place and the identity of the accused persons was also highly questionable which vitiates the very genesis of the case of the prosecution.
31. In the considered view of this Court, the evidence of all the above witnesses clearly establishes the factum of kidnap of two girls and certainly the prosecution had not come up with an imaginary case as is attempted to be projected on the side of appellants. Thus, having crossed the first stage, this Court must now analyse the evidence and see if the accused persons have been properly identified and the charges have been proved against them. While undertaking this process, this Court will also deal with the admissibility and reliability of the scientific evidence that was sought to be brought in by the prosecution to corroborate and strengthen their case.
32. Insofar as A1 is concerned, it is submitted that A1 was known to PW1 since his father was working with PW1’s father and his brothers for a long time and inspite of the same, when the complaint (Ex.P1) was given, the name of A1 was not even mentioned in the complaint.
33. The other ground that has been raised is that it was admitted by PW1, PW2, PW3 and PW5 that earlier complaints were made by PW1 and PW2 and this complaint was concealed by the prosecution and the entire case of the prosecution now proceeds on a delayed complaint that was given on 16.11.2017 only at 21:00 hrs.
34. It is further contended that the accused persons were seen in the police station on the very next day of the occurrence and they were identified in the police station and therefore, the very purpose of conducting the Test Identification Parade and identifying the accused persons in the dock becomes questionable.
35. The final contention is that the witnesses for the arrest and recovery, namely, PW15 and PW18 are none other than the employees of PW1 and PW5 and they were planted witnesses, whose evidence cannot be relied upon for the purpose of substantiating the arrest and recovery from the accused persons.
36. It must be kept in mind that the present case involves kidnap of two young school going girls and the mental trauma that has been suffered by the parents and others after they come to know about the incident. The parents and relatives and also the police will always focus upon tracing and bringing back the children, who had been kidnapped and that mindset has to be understood by the Court while analysing the evidence in a case of kidnapping for ransom. In fact, on the analysis of the evidence, it can be seen that PW3 was initially a suspect since he was the driver of the Innova car and he had been taken to the police station for questioning. In this process, it is quiet natural for the police to start the process of investigation immediately after they come to know about the incident without wasting their time in getting a formal complaint and registering the FIR.
37. The police will have to take immediate steps with the help of the family of the kidnapped girls and in this process, sometimes even the ransom amount is made ready with some identity to pass it on to the kidnappers and to rescue the young children, who have been kidnapped. In this process, it is quite natural that PW27, who is the Investigating Officer, would have enquired several persons in the police station and the evidence of PW3 becomes significant in this regard since he himself was a suspect in this case. Hence in a case of this nature, the non-availability of the alleged earlier complaint or the delay in the registration of FIR does not by itself discredit the case of the prosecution unless there are strong cogent evidence available before the Court to establish that the very complaint and the FIR registered is a made-up case after a long deliberation by fixing the accused persons. In the case in hand, certainly, the delay in the registration of the FIR and the delay in the FIR reaching the Court by itself does not discredit the case of the prosecution. In any event, an FIR is not an Encyclopaedia of the entire case and therefore, the non-mentioning of the name of A1 in the FIR does not by itself create any suspicion in the criminal law being set in motion.
38. Insofar as the identity of the accused persons in the police station is concerned, PW3, PW4 or PW15 or PW19 do not specifically say as to which accused person was seen in the police station on the next day of the occurrence. There is no clarity in this regard. Therefore, while analysing their evidence, such stray statements that were made should not be carved out of their evidence and their evidence will have to be analysed in totality. In the case in hand, A1 has been identified in the Court by PW3, PW4, PW16 and PW19. Apart from that, a sum of Rs.16,23,500/- has been recovered from A1 in the presence of witnesses and there is absolutely no explanation on the side of A1 when he was questioned under Section 313 (i) (b) of Cr.P.C., as to how he came in possession of such huge amount of cash. Significantly in this case, a close scrutiny of Ex.P13, which is the Athatchi, two of the currency notes have been given an identity by the police even when the ransom amount was sent and those identities have been specifically mentioned in Ex.P13 Athatchi.
39. The other evidence that has to be taken into consideration is the Test Identification Parade conducted by PW24. Ex.P37, which is the Test Identification Parade report, clearly demonstrates that A1 has been identified even in the course of investigation. Such identification may be insignificant in this case since he was known to most of the witnesses. It is now too well settled that Test Identification Parade is only a supporting evidence and it is not a substantive evidence and it is only meant for the investigation purposes to enable the witnesses to satisfy themselves whether the accused, whom they suspect, are really the one who were seen by them at the commission of crime. The real test of Identification must take place when the witness is in the dock and that is what is relevant and substantive for the Court to act upon and satisfy itself that the accused has been properly identified in the Court. Thus, the participation of A1 in the commission of crime has been clearly established by the prosecution beyond reasonable doubts.
40. This Court will now consider the case of A3. Insofar as A3 is concerned, he is said to have accompanied A1 in the car in the act of kidnapping the victim girls. As stated supra, the involvement of A3 has been spoken to by PW3, PW4 and PW19. Insofar as the arrest and recovery is concerned, PW15 speaks about the same. From A3, a sum of Rs 2,00,000/- was recovered under athatchi Ex.P16. Even in this case, there was one currency note, which had been specifically marked by the police and which was recovered from among the other currency notes. Whatever reasons that have been assigned for A1 will equally apply to A3 also and hence the participation of A3 in the commission of crime has been established beyond reasonable doubts.
41. This Court will now go into the case of A8, who is the wife of A1.
42. The charge of conspiracy as against A8 has not been made out since PW8 and PW11, who were examined on the side of the prosecution turned hostile. There are only two sets of evidence available as against A8. The first is the evidence of PW16, who speaks about the purchase of police dress and PW15, who speaks about the arrest of A8. Nothing has been recovered from A8. The only other evidence is the scientific evidence in terms of CCTV footages.
43. The presence of A8 along with A1 in the shop on 15.11.2017, which was spoken to by PW16 by itself does not substantiate the charge under Section 120-B r/w 364(A) IPC. The mere arrest in the course of investigation spoken to by PW15 does not in any way improve the case of the prosecution to substantiate the charge of conspiracy against A8.
44. The only other evidence to be analysed is the scientific evidence in terms of CCTV footages that was relied upon by the prosecution. This Court deems it fit to deal with this evidence at this juncture.
45. PW22, who is the Inspector of Police of IT division, went to the shop in which PW16 was working and he had recorded the CCTV footage pertaining to the particular night hours on 15.11.2017 and it was converted into a DVD, which was marked as PMO24. For this, PW22 also issued a certificate under Section 65B of the Evidence Act, which is marked as Ex.P33.
46. PW27 Investigating Officer has categorically admitted that the CCTV footage was taken and copied in the DVD on 08.12.2017 and it was produced before the Judicial Magistrate only on 12.12.2017. During this period, there is absolutely no explanation regarding the chain of custody. Apart from that, the prosecution has not attempted to collect the hard disk in which the original recording had taken place and therefore there was no occasion to analyse the contents of what was available in the hard disk and what was actually copied to the DVD. Even the hash value notings have not been made to ensure that what was copied was the one which was actually sent for analysis. In the absence of the same, it will be very unsafe for the Court to rely upon the CCTV footage as was recorded in the DVD and for which 65B certificate was given by PW22. The certificate that was given by PW22 does not pertain to the contents of the hard disk, where the original CCTV footage was recorded. Thus, the CCTV footage relied upon by the prosecution is inadmissible in evidence. Hence, merely because the trial Court and this Court had an occasion to view the recordings copied in the DVD, that by itself does not satisfy the requirements inspite of the solid evidence that was available to the prosecution in terms of CCTV footages. Due to unprofessional handling of the same, it has become inadmissible and the prosecution has lost a golden opportunity to substantiate and strengthen their case through scientific evidence.
47. In the light of the above discussion, even though there is strong suspicion regarding the involvement of A8 in this case, since the prosecution has failed to prove the charge beyond reasonable doubts, the benefit of doubt has to go in favour of A8.
48. This Court will now go into the case of A2.
49. The role played by A2, according to the prosecution, is that he played a major role in the conspiracy and he was the one who demanded the ransom by making a phone call to PW5.
50. PW5 speaks about the demand of ransom made from the mobile number 8903832399, which was received in the mobile phone number 9843777788. This telephone conversation is said to have been recorded in the mobile phone that was used by PW5. PW22, who is the Technical Inspector, speaks about downloading the same and recording it in MO28 for which he issued a certificate under Section 65B under Ex.P34.
51. PW25 speaks about the voice comparison conducted pursuant to the requisition given by the Investigating Officer for collection of the sample voice of A2 vide Ex.P43. Ex.P39 was the report submitted by PW25 identifying the voice of A2.
52. The prosecution also relies upon the telephone conversation that took place from the mobile number belonging to the wife of A2, namely, 7502604531 to the mobile number of PW5 on 16.11.2017. Ex.P44 and Ex.P45 which are the CDR details, which were marked through the Investigating Officer, are relied upon for this purpose. Apart from the above, the identity of A2 is sought to be established through the Test Identification Parade conducted by PW24 and the proceedings has been marked as Ex.P37.
53. The last piece of evidence that is relied upon by the prosecution is the recovery of cash of a sum of Rs.10,20,000/- (MO15) under athatchi Ex.P15, which contained two notes, which were given specific identity and also recovered along with the remaining currency notes.
54. The defence raised on the side of A2 is that the very arrest and the recovery of material objects from A2 including cash is questionable considering the glaring mistake pointed out in Ex.P13 and Ex.P14 regarding the time gap, which was not able to be explained by PW27. Apart from that, the athatchi did not even contain the signature of A2. The next line of defence is that the scientific evidence collected on the side of the prosecution is inadmissible in evidence since admittedly the mobile phone of PW5 in which the recording is said to have done was not even seized. Apart from that, PW22 had recorded in the MP3 format from PW5’s mobile phone, whereas what was inspected/analysed by PW25 was M4a format, which is evident from Ex.P39. There is no explanation as to how the format was converted. That apart, the voice sample of A2 was not taken in the presence of witnesses. Therefore, the so called mobile phone conversation between A2 and PW5 is entirely inadmissible and it was contended that the prosecution has not made out the case as against A2.
55. The active involvement of A2 in this case, commences from the phone call that is alleged to have been made by A2 to PW5. PW5 in his evidence states that he received a phone call from mobile number 8903832399 and there was a demand for a sum of Rs.2 crores as a ransom and this call was received around 11.30 a.m. on 16.11.2017. After negotiation, this amount was reduced to Rs.50,00,000/-. At the time of receiving this phone call, obviously, PW5 was not aware that he is receiving it from A2. Hence, if at all PW5 identifies A2, it can be only by recollecting his voice and nothing more. Admittedly, the mobile phone used by PW5 was not seized by the Investigating Officer and this was a major flaw on the part of the Investigating Officer since the mobile phone itself would become a primary evidence and there would not have been any requirement for obtaining a 65B certificate. PW22 had downloaded the recorded voice in a DVD marked as MO28 and had issued a 65B certificate, which was marked as Ex.P34. It is also relevant to take note of the verbatim transcription of the conversation that took place between A2 and PW5, which is available in the annexures to Ex.P39.
56. The prosecution is also relying upon the CDR details that were collected by the Investigating Officer in the course of investigation. Ex.P44 and Ex.P45 are relied upon for this purpose. That apart Ex.P47 is also relied upon for the details of the call received using the mobile number 8903832399. Insofar as Ex.P44 is concerned, this was the mobile number that belonged to the wife of A2 in which calls were received from different numbers and it shows that the location was within Palayamkottai, Tirunelveli district, at the relevant point of time. Nothing much turns out of this CDR details.
57. The next pertains to the call details of mobile number 9843777788. This mobile number stands in the name of Thangamuneeshwaran and PW5 gives an explanation that he is also called in this name and PW27 at the time of deposing has admitted that he was the brother of PW5, who was not examined by him. In any case, it has to be seen as to whether the phone calls were received from 89038323889. PW5 in his evidence has specifically stated that he received the phone calls from this number and he was using the mobile phone bearing number 9843777788. A careful analysis of the CDR shows that repeated calls have been made to this number. On 16.11.2017 at about 13:22:30 hrs., the call duration was for 229 seconds. Another call at 15:50:04 hrs., is for 217 seconds. Another call at 16:55:29 hrs., is for 505 seconds. There was yet another call at 11:00:54 hrs., for 76 seconds. At 11:26:53 hrs., it was for 19 seconds. At 19:13:23 hrs., for 135 seconds. At 20:01:20 hrs., for 134 seconds and this goes on till 22:19:19 hrs. The nodal officer has given the certificate under Section 65B and the CDR details have been marked through the Investigating Officer. Just because it has been marked through the Investigating Officer, that does not take away the credibility of the CDR details, which has been certified by the Nodal Officer.
58. Insofar as the details of the mobile number 8903832399 is concerned, the CDR details have been marked under Ex.P47. This mobile number stands in the name of one Jeyaraj and the said Jeyaraj has not been examined on the side of prosecution. The CDR details clearly provide the phone calls that have been made from this number to 9843777788 on 16.11.2017 repeatedly. The 65B certificate has been given by the Nodal Officer and Ex.P47 was marked through the Investigating Officer. As stated supra, that by itself does not discredit Ex.P47.
59. Even though the mobile number stands in the name of Jeyaraj, it is a very crucial fact that this mobile number has been specifically mentioned in the complaint (Ex.P1). Therefore, Ex.P47 also carries a lot of significance with respect to the CDR details.
60. The next scientific evidence is the voice comparison that was made by PW25 pursuant to the request made by Investigating Officer.
61. It was urged on the side of prosecution that the original mobile phone used by PW5 was not seized and therefore what was downloaded in a DVD cannot be the source from which a voice sample test could have been done by PW25. Fortunately, in this case, PW5 speaks about recording the conversation that took place in the mobile and also the subsequent downloading of the same in a DVD by PW22. Just because the Investigating Officer has committed a mistake in not seizing the mobile phone under an athatchi, the entire process that took place thereafter cannot be wiped off. Therefore, the evidence of PW5 has to be relied upon for the purpose of concluding that the recorded voice was downloaded from the mobile phone used by PW5, by PW22. The downloaded voice recording of PW22 was available in MO28 and for this PW22 has issued a 65B certificate. There is no reason to discard MO28 in view of the explanation that was given by PW5 read with the evidence of PW22.
62. PW25 speaks about the voice comparison conducted, which confirmed the voice of A2. Ex.P39 is the report submitted by PW25 in this regard. Just because there is a change of format from MP3 to M4a that by itself does not take away the evidentiary value of the report given by PW25. In fact, PW25 in her evidence does not anywhere state that such change of format will result in the complete change in the voice recording made. Hence, the evidence of PW25 has to be necessarily relied upon in this case.
63. Apart from the above scientific evidence, there is also recovery of a sum of Rs.10,20,000/- under athatchi Ex.P15. Ex.P15 specifically contains two identity marks made in two currency notes which were also recovered along with the other currency notes. There is absolutely no explanation on the side of A2 as to how he came in possession of such huge amount of cash. Therefore, certainly the recovery of cash also corroborates the evidence of PW5, PW22 and PW25.
64. The final limb of evidence against A2 is the Test Identification Parade that was conducted by PW24. This accused person was not identified in the Test Identification Parade either by PW3 or by PW4 or by PW19.
65. The involvement of this accused person has been clearly established by the prosecution beyond reasonable doubts more through scientific evidence. In fact, the actual demand of ransom had started only from this accused person, which resulted in payment of Rs.50,00,000/- out of which, a substantial amount of Rs.10,20,000/- was recovered from A2.
66. This Court will now take up the case of A4 and analyse the evidence available against A4 and see if the prosecution has established the charge against A4.
67. The overt act attributed against A4 is that he had hatched the conspiracy along with A5 and reached the vacant land along with A5, where the victim girls and PW3 were shifted from the Innova car to Tata Indica car. It is further alleged that A4 and A5 took the kidnapped girls in Tata Indica car along with A1 to the house of A9. The further allegation against A4 is that he had later shared the booty.
68. Insofar as the allegation of conspiracy is concerned PW8 and PW11 were examined on the side of prosecution and both of them turned hostile. PW15 speaks about the arrest and recovery of the material objects from A4. PW24 speaks about the Test Identification Parade in which PW3, PW4 and PW19 had participated. Ex.P37 is the Test Identification Parade proceedings.
69. The learned counsel appearing for A4 submitted that the so called recovery of a sum of Rs.2,00,000/- under athatchi P17 is highly doubtful and it lacks credibility. When the Investigating Officer recorded the statement of PW19 under Section 161(3) of Cr.P.C., he did not even disclose the name of A4 but however he is said to have identified A4 in the Test Identification Parade. This fact has been admitted by PW27 Investigating Officer.
70. It was further contended that A4, when questioned under Section 313(1)(b) of Cr.P.C., specifically denied the incriminating evidence stating that he was illegally detained by the police from 16.11.2017 night till 20.11.2017.
71. The learned counsel concluded his submissions by stating that PW3 and PW4, who are the key witnesses examined on the side of the prosecution, did not even whisper about the presence or involvement of A4 in the entire incident.
72. Insofar as the charge of conspiracy is concerned, the same has not been made out by the prosecution since PW8 and PW11 turned hostile. PW3 and PW4 neither identified A4 in the Test Identification Parade nor in the dock and they do not even whisper about the involvement of A4. When the statement of PW19 was recorded by the police under Section 161(3) of Cr.P.C., he does not speak about the involvement of A4.
73. The only other material that has been put against A4 is the alleged recovery of a sum of Rs.2,00,000/- in the presence of PW15. Admittedly, this recovery was not pursuant to any confession recorded by the police at the time of arrest of A4.
74. On a consummate consideration of the evidence available against A4, this Court holds that the prosecution has not proved the involvement of A4 in the incident beyond reasonable doubts. A4 cannot be implicated merely based on the recovery of money from him. The benefit of doubt has to necessarily go in favour of A4.
75. This Court will now consider the case of A5 and see if the charge has been made out against A5.
76. The allegation against A5 is that he had hatched the conspiracy against the other accused persons and he was the one who reached the vacant land along with A4 where PW3 and the victim girls were shifted in a Tata Indica car from the Innova car. The further allegation against A5 is that he was the one who took the ransom amount that was dropped by PW5 near Tamil Sangam and had handed it over to A7.
77. For the purpose of identity of A5 in the alleged incident, the Test Identification Parade was conducted by PW24 in which PW3, PW4 and PW19 had participated. Apart from that, the involvement of A5 has been spoken to by PW19 in his evidence. PW19 did not specifically identify A5 in the dock.
78. The learned counsel appearing for A5 submitted that if really PW19 took A5 in the autorickshaw to Tamil Sangam, where it is alleged that A5 took the ransom money of Rs.50,00,000/- which was kept by PW5, A5 could not have carried this amount except in a bag but however PW19 does not state that A5 carried any bag while returning back to the auto. Apart from that, in the statement that was recorded under Section 161(3) of Cr.P.C., PW19 states that he took A5 from Anna Bus Stand to Tamil Sangam but however while deposing before the Court, he states that he took A5 from Anna Nagar to Tamil Sangam. Apart from that, PW5 has stated that there was police presence near Tamil Sangam and therefore A5 could not have taken such a huge amount without the police noticing him. Even though CCTV was available as per the deposition of PW5, no such footage was produced by the prosecution. Therefore, the so called ransom amount that is alleged to have been picked up by A5 near Tamil Sangam is artificial and unbelievable.
79. The learned counsel further submitted that A5, while he was questioned under Section 313(i)(b) of Cr.P.C., had denied his involvement and had stated that he was taking treatment in the de-addiction centre of the Government Hospital and from there he was picked up to the police station.
80. The main witness whose evidence has to be taken into consideration insofar as A5 is concerned is PW19. In the Test Identification Parade PW3, PW4 and PW19 had participated. PW19 had identified A5 once in the Test Identification Parade. Apart from that PW3 had identified A5 twice during Test Identification Parade.
81. PW3 in the dock did not identify A5. In any case, there was no occasion for PW3 to speak about the involvement of A5 since his role commenced after the children were shifted to the Tata Indica car.
82. PW19 makes a specific reference to identifying A5 in the Test Identification Parade. He specifically states that A1 asked him to drop A5 near Tamil Sangam and after he was dropped, within five minutes, A5 came back and he was again dropped at Anna Nagar Reliance. He further states that except for the name of A1, he came to know about the names of the other accused persons only from the police and then the accused persons were shown to him in the police station and only thereafter the Test Identification Parade was conducted. Surprisingly, PW19 does not specifically identify A5 before the Court when he was in the dock.
83. It is further seen that, insofar as A5 is concerned, there was no recovery of any money from him except for his arrest.
84. In the considered view of this Court, there is no sufficient evidence to clinch the charges put against A5. The materials placed before this Court at the best only creates a suspicion about the involvement of A5 and nothing more. It is now too well settled that even a strong suspicion will not be enough to convict an accused person and the prosecution has to prove the case beyond reasonable doubts, which has not happened in this case insofar as A5 is concerned. Therefore, this Court has to hold that the charges against A5 has not been proved by the prosecution.
85. This Court will now take into consideration the case of A6.
86. The overt-act attributed against A6 is that he had hatched the conspiracy along with the other accused persons and had shared the booty. PW8 and PW11 were examined on the side of the prosecution to prove the charge of conspiracy and both of them turned hostile. The only other material available against A6 is the arrest and recovery of material objects which includes cash of Rs. 2,00,000/-.
87. Insofar as A6 is concerned, it is alleged that he was also involved in the purchase of traffic police uniform from the shop on 15.11.2017. It is not known as to how PW19 had identified A6 at the time of Test Identification Parade since he came into the picture only when he picked up A5 and took him to Tamil Sangam to collect the ransom and thereafter his role is attributed when he dropped the children in the auto along with A1 and A3 from the house of A9 at Chandramathi Mahal, which is behind the house of PW1. During cross examination, he has specifically admitted that he has not mentioned anything about A6 at any point of time even when an application was filed seeking for return of property.
88. The only other material available against A6 is the recovery of material objects and cash. In the considered view of this Court, the evidence available against A6 is very sketchy and it is not enough to prove the charges against A6 beyond reasonable doubts. Therefore, the benefit of doubt has to go in favour of A6.
89. This Court will now go into the case of A9.
90. As per the case of the prosecution, A9 was involved in a criminal conspiracy and the children, after they were kidnapped, were kept in the house of A9, where they were said to have been subjected to fear and threat and later these children were picked up from the house of A9 by A1 and A3 and were dropped behind the house of PW1.
91. It is submitted on the side of the defence that the charge of conspiracy has not been proved against A9 since PW 8 and PW11 turned hostile. The charge under Section 368 of IPC has also not been proved since both the observation mahazar Ex.P32 and rough sketch Ex.P23 does not mention about the availability of the house of A9 as the place of confinement.
92. Insofar as the identity of the accused person is concerned, it is highly doubtful since PW4 and PW19 had seen all the accused persons in the police station on 17.11.2017 and later identified in the Test Identification Parade on 06.12.2017. There was absolutely no recovery from A9 and therefore none of the charges were proved against A9.
93. Insofar as A9 is concerned, her involvement in the crime has been specifically spoken to by the victim girl PW4. She identified A9 in the dock by stating that she is the fat lady, who was seen in the house in which the children were confined. She further talks about curd rice being offered by A9, which was refused to be eaten and the threat exerted by showing the dog. There is nothing to discredit the evidence of PW4 insofar as the identity and the overt act attributed as against A9.
94. The other evidence that has been relied upon by the prosecution is the evidence of PW9, who turned hostile and nothing turns out of the evidence of this witness.
95. This Court finds that the evidence of PW4 on the involvement of A9 is wholly reliable considering the fact that she was a child witness and there was no need for PW4 to falsely rope in A9 in this case. In view of the same, it is not necessary for this Court to look for any corroboration for the evidence of PW4 with regard to the involvement of A9 in this incident. Thus, the prosecution has proved the case beyond reasonable doubts.
96. Finally, the case of A10 has to be dealt with by this Court.
97. The overt-act attributed against A10 is that he had hatched the conspiracy along with the other accused persons and he had worn the traffic police dress along with A1 while intercepting the Innova car. His involvement has been spoken to by PW3 and PW4. For the purchase of the police dress, the prosecution has relied upon the evidence of PW16.
98. The prosecution is placing further reliance on the arrest and recovery, which is spoken to by PW15.
99. The learned counsel for the defence submitted that the charge of conspiracy completely falls to the ground since PW8 and PW11 turned hostile. What was recovered from A10 had nothing to do with the commission of the offence of kidnapping. Therefore, such recovery is of no significance. Apart from that, A10 was not even subjected to Test Identification Parade and was straight away identified in the dock by PW3 and PW4 and the same is highly suspicious since these accused persons were seen in the police station on 17.11.2017 and were identified by the police. The key witnesses, who speak about the involvement of A10, are PW3 and PW4. As stated supra PW3 is the car driver and he deposed that A10 was one of the persons who was wearing police uniform when the car was intercepted near Muktheeswarar Temple. He further identified A10 in the dock. A10 is a person, who was seen by PW3 and PW4 along with A1 and A3 and he has been specifically identified in the dock.
100. Insofar as the identity of the accused persons in the police station, this Court has already held that there is no clarity as to which accused persons were shown to the witnesses and this issue has already been discussed in detail supra. Even during cross-examination, PW3 specifically identifies A10 and says that he was the one who was wearing the police dress at the time when the Innova car was intercepted.
101. The next is the important evidence of the child PW4. The child was not able to clearly identify any other accused person except A1. However, she specifically speaks about the three persons intercepting the car. Nothing more comes from the evidence of PW4 insofar as the involvement of A10.
102. In terms of recovery, what has been recovered from A10 are 2 two-wheelers and this recovery does not really substantiate the case of the prosecution.
103. In the light of the above discussion, what is apparent is that only effective evidence available against the involvement of A10 along with the identity comes from PW3. Admittedly, A10 was not a known person either to PW3 or PW4 and for the reasons best known to the prosecution, A10 was not subjected to Identification Parade. For the first time, A10 was identified in the Court nearly after 5 years from the occurrence. This evidence of PW3 will fall under the category of neither wholly reliable nor wholly unreliable. Therefore, the evidence of PW3 will require corroboration. There is no corroboration available. Therefore even though there is high degree of suspicion regarding the involvement of A10 in this case, that cannot take the place of proof beyond reasonable doubts which is expected of the prosecution. Hence, the benefit of doubt must go in favour of A10.
104. The learned counsel appearing for A1 and A3 submitted that even if on a demurer, the prosecution has made out a case against these accused persons, the charge under Section 364A of IPC has not been made out and at the best it can only be brought under a lesser offence of Section 363 of IPC. To substantiate this submission, the learned counsel relied upon the judgment of the Apex Court in Ravi Dhingra v. State Of Haryana reported in 2023 (2) MLJ Crl 219 and William Stephen v. State Of Tamil Nadu and another reported in 2024 (5) SCC 258.
105. Insofar as the offence under Section 364A of IPC is concerned, the prosecution has to establish that the accused persons had kidnapped or abducted the person and kept the person in detention and after such kidnapping have demanded for a ransom. In the judgments that were relied upon by the learned counsel for A1 and A3, the Court had factually ascertained that the element of threat to cause death or hurt or a reasonable apprehension that such person may be put to death or hurt is missing.
106. In order to ascertain the above ingredients, this Court carefully went through the evidence of PW4. It must be kept in mind that PW4 at the relevant point of time was studying 3rd standard and she along with her younger sister were kidnapped by the accused persons. At the time when PW4 gave evidence, she was studying 8th standard. Her capacity to understand the questions and to test her competence as required under Section 118 of the Indian Evidence Act, it has been satisfied by the Trial Court. PW4 specifically states that A9 offered curd rice and when PW4 and her sister refused to eat, she threatened them by showing a dog and therefore both of them got into the bed due to this threat. Thereafter, A1 offered cake and it was tasting bitter. When they refused to eat, A1 and A9 forced the children to eat the cake and as a result both children became unconscious.
107. Insofar as threat perspective is concerned, the threat experienced by a child cannot be gauged from the point of view of an adult for whom the same act will not amount to a threat. The Court has to necessarily put itself in the shoes of the child and ascertain if there was a threat. The children, who have been forcibly taken in a car, were brought to the house of A9 and confined. They would have already suffered fear psychosis and when they are threatened by showing a dog or forced to eat cake, which was tasting bitter, certainly they would be put to a clear threat of apprehension that if they do not comply, they will be hurt. There is a reason as to why the legislature thought it fit bringing a severe sentence of life imprisonment in a case of kidnapping for ransom. The innocent children, who have nothing to do with the entire incident, were kidnapped and put to threat by the accused persons to achieve their objectives. This incident will remain in the subconscious mind of the children throughout their life and it will certainly impact their emotional quotient. Therefore, the Courts must necessarily look into these incidents with more seriousness and ensure that stringent punishment is imposed against those who are involved in such serious crimes.
108. The upshot of the above discussion leads to the only conclusion that there was certainly a threat factor that was deployed against the children and they indeed apprehended that if they don’t act as per the command, they would be subjected to hurt or in their own mind, they thought there would be a life threat. Therefore, the charge under Section 364A has been certainly made out.
109. This Court, considering the fact that multiple accused persons were involved, took pains to deal with the case of each and every accused person and discuss the evidence available insofar as that accused person is concerned and has rendered the above findings. Insofar as those accused persons against whom it has been held that the charge has been made out, this Court took into consideration the submissions made regarding certain flaws pointed out in the investigation and this Court tested the evidence keeping in mind the judgment of the Apex Court in State of Haryana v. Bhagirath reported in 1999 (5) SCC 96 and the relevant portions are extracted hereunder:
“7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath “as a matter of abundant caution”. Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.
8. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression “reasonable doubt” is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge.”
110. Even though PW8 and PW11, who were examined as witnesses on the side of the prosecution to prove the charge of conspiracy turned hostile, insofar as A1 to A3 and A9 are concerned, the charge of conspiracy is clearly made out since on appreciation of evidence, it is seen that there was clear meeting of minds between these accused persons before the commission of the crime and as a result, each accused person had performed the role that was specifically assigned in the course of the same transaction. This could not have happened without the prior meeting of minds between these accused persons. Therefore, they are liable to be punished for the charge of criminal conspiracy also.
111. The conspectus of the above discussions leads to the conclusion that the prosecution has failed to prove the charges beyond reasonable doubts as against A4, A5, A6, A8 and A10 and hence they are entitled for the benefit of doubt and consequently acquittal from this case. Insofar as A1, A2, A3 and A9 are concerned, their conviction and sentence stands confirmed in the following manner.
for one week
| Rank of the accused | Offences for which convicted (IPC) | Sentenced to undergo |
| A1 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.25,000/- in default to undergo one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.25,000/- in default to undergo one year simple imprisonment | |
| 419 | Rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for six months | |
| 341 | Rigorous imprisonment for one month and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one week | |
| 342 | Rigorous imprisonment for one year with a fine of Rs.1,000/-, in default to undergo one month simple imprisonment | |
| A2 | 120(B) r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment | |
| 342 | One year rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo one month simple imprisonment | |
| A3 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment |
| 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment | |
| 419 | Rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months | |
| 341 | Rigorous imprisonment for one month and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one week | |
| 341 | Rigorous imprisonment for one month and to pay a fine of Rs.500/- in default to undergo simple imprisonment | |
| 342 | Rigorous imprisonment for one year with a fine of Rs.1,000/-, in default to undergo one month simple imprisonment | |
| A9 | 120B r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment |
| 368 r/w 364A | Life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo one year simple imprisonment |
113. In the result,
(i) Crl.A(MD) No.97 of 2023 stands allowed and the conviction and sentence imposed on the appellant in S.C.No.267 of 2019 dated 21.12.2022 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai. are hereby set aside and the appellant/A6 is acquitted of all the charges. Bail bond, if any, shall stand terminated. Fine amount, if any, shall be refunded.
(ii) Crl.A.(MD) No.144/2023 is partly allowed in the following terms:
(a) As far as the appellants/A2,A3,A9 are concerned, their conviction and sentence imposed on the appellants/A2, A3 and A9 in S.C.No.267 dated 21.12.2022 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai is hereby confirmed
(b) The trial Court is directed to take necessary steps to secure the presence of A9 to undergo the remaining period of sentence; and
(c) The conviction and sentence imposed on the appellants/A4, A5 and A10 in S.C.No.267 of 2019 dated 21.12.2022 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai, are hereby set aside and the appellants/A4,A5 and A10 are acquitted of all the charges and they are set at liberty forthwith. Bail bonds, if any shall stand terminated. Fine amount, if any, shall be refunded.
(iii) Crl.A(MD) No.222 of 2023 is partly allowed;
(a) As far as A1 is concerned, the conviction and sentence in S.C.No. 267 of 2019 dated 21.12.2022 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai, is hereby confirmed; and
(b) Insofar as A8 is concerned, the conviction and sentence imposed in S.C.No.267 of 2019 dated 21.12.2022 on the file of the Sessions Judge, Mahalir Neethimandram, Madurai, are hereby set aside and she is acquitted of all the charges. Bail bond, if any, shall stand terminated. Fine amount, if any, shall be refunded.