Gujarat High Court
Bharat Jinabhai Jamod vs State Of Gujarat on 7 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 342 of
2016
With
R/CRIMINAL APPEAL NO. 348 of 2016
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 2 of 2024
In
R/CRIMINAL APPEAL NO. 348 of 2016
With
R/CRIMINAL APPEAL NO. 363 of 2016
With
R/CRIMINAL APPEAL NO. 954 of 2016
With
CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 1 of
2024
In
R/CRIMINAL APPEAL NO. 954 of 2016
With
R/CRIMINAL APPEAL NO. 955 of 2016
With
R/CRIMINAL APPEAL NO. 463 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
Approved for Reporting Yes No
Yes -
=======================================
BHARAT JINABHAI JAMOD
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Versus
STATE OF GUJARAT
=======================================
Appearance:
MR EKANT G AHUJA(5323) for the Appellant/s
MR YJ PATEL for the Appellant/s
MR UMANG VYAS for the Appellant/s
MR SANJAY PRAJAPATI for the Appellant/s
MR RONAK RAVAL APP for the Respondent
=======================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK)
1. Criminal Appeal No. 342 of 2016 has been preferred by
appellant – Bharatbhai Jinabhai Jamod (accused in Sessions Case
No.196 of 2010), Criminal Appeal No.348 of 2016 has been
preferred by appellant – Satishbhai Ramnikbhai Vaghela
(accused No.1 in Sessions Case No. 183 of 2010), Criminal
Appeal No. 363 of 2016 has been preferred by appellant – Babu
@ Ganesh @ Zalavadi Vajabhai Parmar (accused No.4 in
Sessions Case No. 183 of 2010), Criminal Appeal No. 954 of 2016
has been preferred by appellant – Dineshbhai Amarabhai
Kadotara (accused No.2 in Sessions Case No. 183 of 2010),
Criminal Appeal No. 955 of 2016 has been preferred by the
appellant – Lalubha Nanubha Gohil (respondent – accused No.6
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in Sessions Case No.183 of 2010) and Criminal Appeal No. 463 of
2017 has been preferred by appellant – Bhavesh @ Bhavalo
Himmatbhai Makwana (respondent – accused No.5 in Sessions
Case No. 183 of 2010) under Section 374 of the Criminal
Procedure Code, 1973 against the judgment and order of
conviction dated 30.01.2016 passed by the learned 3 rd Additional
Sessions Judge, Bhavnagar (hereinafter be referred to as “the
trial Court”) in Sessions Case No.183 of 2010 with Sessions Case
No.196 of 2010. The learned Sessions Judge has convicted the
accused in the sessions cases for the offences punishable under
Section 364(A), 394, 120(B), 171, 34 etc of the Indian Penal Code
and under Section 135 of the Gujarat Police Act and directed that
–
(i) Accused No.1 to 6 in Sessions Case No. 183 of 2010 and
accused in Sessions Case No. 196 of 2010 to undergo rigorous
imprisonment of life for the offence under Section 364(A) r/w.
Section 34 of the Indian Penal Code and fine of Rs.1,000/- each
and in default of payment of fine, to undergo simple
imprisonment for two months;
(ii) Accused No.1 to 6 in Sessions Case No. 183 of 2010 and
accused in Sessions Case No. 196 of 2010 to undergo simple
imprisonment of two years for the offence under Section 120(B)
of the Indian Penal Code and fine of Rs.500/- each and in default
of payment of fine, to undergo simple imprisonment for one
month in both the sessions cases;
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(iii) Accused No.4 and 5 in Sessions Case No.183 of 2010 to
undergo rigorous imprisonment of ten years for the offence
under Section 394 r/w. Section 34 of the Indian Penal Code and
fine of Rs.1,000/- each and in default of payment of fine, to
undergo simple imprisonment for one month;
(iv) Accused No.4 and 5 in Sessions Case No.183 of 2010 to
undergo simple imprisonment of one month for the offence
under Section 171 r/w. Section 34 of the Indian Penal Code and
fine of Rs.200/- each and in default of payment of fine, to
undergo simple imprisonment for one month;
(v) Accused No.4 and 5 in Sessions Case No.183 of 2010 to
undergo simple imprisonment of one month for the offence
under Section 135 of the Gujarat Police Act.
The learned Sessions Judge has also ordered that all the
sentences shall run concurrently.
2. As all these criminal appeals having been arisen of the
impugned judgment and order of conviction, all these appeals
are heard together and are being disposed of by this common
judgment.
3. Brief facts of the prosecution case is that on 01.06.2010 at
about 11.30 AM, complainant – Ashokbhai Parshotambhai Gupta
in his Skoda car bearing registration No.GJ-4-AM-9937 went to his
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office situated at opposite Lakhubha Hall and thereafter, he went
to his brother’s house at Ambawadi for lunch at about 1.45 PM. It
is alleged that after lunch, the complainant at 3.00 PM
proceeded towards Alang in his car and while he himself was
driving the car, three persons on black motorcycle were following
him and they tried to stop the car and one of the persons gave
signal to stop the car, ultimately, the complainant had stopped
his car and three persons started abusing the complainant that
why he were driving his car in such a negligent manner and one
person among them was having stick and another handcuff. It is
alleged that all the three persons started giving kick and fist
blows to the complainant and thereafter one person told the
complainant that now he came at police station with them and
thereafter the complainant was made to sit on the back seat of
his car and they tied eyes of the complainant. It is alleged that
after sometime, three persons stated the complainant that they
kidnapped him and demanded Rs.1 Crore and if he failed to give
the same they will kill him and, therefore, the complainant talked
with one Angadia Agency namely Ramesh Magan to handover
the amount to one Mukeshbhai and after 20-30 minutes all
persons verified the transaction and after completion of
transaction, they robbed gold ornaments and cash amount of the
complainant. It is further alleged that after alleged crime, all the
persons dropped the complainant on highway and, hence, he
lodged the complaint.
3.1 On the basis of the complaint filed by the complainant, the
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First Information Report (FIR) being C.R.No.I-97/2010 came to be
registered with “B” Division Police Station, Bhavnagar for the
offence punishable under Sections 364(A), 394, 397, 171, 120(B),
34 etc of the Indian Penal Code and for the offence punishable
under Section 135 of the Gujarat Police Act.
3.2 After completion of investigation, as the sufficient evidence
was found, the police has arrested the accused and have filed
the charge-sheet against the accused before the Chief Judicial
Magistrate (First Class), Bhavnagar wherein it was registered as
Criminal Case No.4262 of 2010 and Criminal Case No.6483 of
2010 respectively. As the offence was triable by the Court of
Sessions, the Judicial Magistrate (First Class) has committed the
case under Section 209 of the Criminal Procedure Code to the
Court of Sessions where it has been registered as Sessions Case
No.183 of 2010 and Sessions Case No.196 of 2010.
3.3 On the basis of the material available on record, the trial
court has framed the charge vide Exhibit 9 against the accused
for the offences punishable under Sections 364(A), 394, 397,
171, 120(B), 34 of the Indian Penal Code and under Section 135
of the Gujarat Police Act and the same were explained to them.
The accused have denied having committed any offence. The
accused pleaded not guilty to the charge and pleaded for trial
and hence, the case was tried by the learned Sessions Judge,
Bhavnagar.
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3.4 Considering the evidence on record and after hearing the
respective parties, ultimately, the learned Sessions Judge has
convicted the accused – appellants herein for the aforesaid
offences and awarded the sentence as stated above.
3. It appears from the records that to prove the case, the
prosecution has examined the following witnesses:-
P.W. 01 Upenbhai Rameshbhai Bhatt Exhibit 33
P.W. 02 Manishbhai Padamchand Jain Exhibit 37
P.W. 03 Abhirajbhai Surendrabhai Vyas Exhibit 40
P.W. 04 Piyushbhai Dalsukhbhai Trivedi Exhibit 44
P.W. 05 Mayurbhai Nagindas Avlani (hostile) Exhibit 48
P.W. 06 Jayesbhai Laljibhai Gohel (hostile) Exhibit 54
P.W. 07 Pradipbhai Shantibhai Vaitha (hostile) Exhibit 56
P.W. 08 Gajanandbhai Narittamdas Gohel (hostile) Exhibit 58
P.W. 09 Chetanbhai Chandulal Patel (hostile) Exhibit 61
P.W. 10 Santoshbhai Vishvanathsinh Rajput Exhibit 63
(hostile)
P.W. 11 Shraddhanjaybhai Surendrabhai Vyas Exhibit 66
(hostile)
P.W. 12 Dipakbhai Himmatlal Shah (hostile) Exhibit 68
P.W. 13 Vikasbhai Guljharilal Gupta (hostile) Exhibit 70
P.W. 14 Pramodbhai Bishmbarnath Sharma Exhibit 72
(hostile)
P.W. 15 Ranjitsinh Gambhirsinh Jadeja (hostile) Exhibit 76
P.W. 16 Jitubhai Mohanbhai Solanki (hostile) Exhibit 78
P.W. 17 Anilbhai Mojiram Jidal (hostile) Exhibit 81
P.W. 18 Nishantbhai Satishkumar Gupta (hostile) Exhibit 83Page 7 of 38
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P.W. 19 Laxmanbhai Bansibhai Agrawal (hostile) Exhibit 86
P.W. 20 Ankitbhai Chandramohan Agrawal Exhibit 88
(hostile)
P.W. 21 Ashwinbhai Dipakbhai Mandanka (hostile) Exhibit 91
P.W. 22 Jitendrabhai Ramniklal Chauhan (hostile) Exhibit 93
P.W. 23 Kalubhai Nagjibhai Baoya (hostile) Exhibit 101
P.W. 24 Sanjaybhai Vallabhbhai Jambucha Exhibit 103
(hostile)
P.W. 25 Kalpeshbhai Bhupatrai Dave Exhibit 107
P.W. 26 Rambhai Bhakabhai Mer (hostile) Exhibit 111
P.W. 27 Kamleshbhai Laxmanbhai Mer (hostile) Exhibit 113
P.W. 28 Rajubhai Motidas Patel Exhibit 121
P.W. 29 Nareshbhai Satyanarayanbhai Jindal Exhibit 125
P.W. 30 Ishwarbhai Jerambhai Chauhan (hostile) Exhibit 128
P.W. 31 Imtiyaz Aamadbhai Kuliya (hostile) Exhibit 129
P.W. 32 Vasantrav Bhimrao Dongare (hostile) Exhibit 130
P.W. 33 Abdulmajid Abdulhamid Nabaido Exhibit 132
P.W. 34 Ashokbhai Parshotambhai Gupta (victim) Exhibit 133
P.W. 35 Dipakbhai Damjibhai Solanki (hostile) Exhibit 140
P.W. 36 Abhirajbhai Surendrabhai Vyas (hostile) Exhibit 142
P.W. 37 Jasmatbhai Dhusabhai Baraiya (hostile) Exhibit 150
P.W. 38 Ankitaben Kantibhai Parmar Exhibit 163
P.W. 39 Rajendraprasad Bhavanishankar Joshi Exhibit 167
P.W. 40 Mayursinh Gopalsinh Gohil Exhibit 173
P.W. 41 Jigneshbhai Dibubhai Desai Exhibit 182
P.W. 42 Dr. Vinodkumar Mahavirprasad Agrawal Exhibit 184
P.W. 43 Ajaybhai Parshotambhai Patel Exhibit 186
P.W. 44 Pratapsinh Dashrathsinh Parmar Exhibit 189
4. In addition to this, the prosecution has also produced the
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following documentary evidence:-
1. Original complaint Exhibit 134
2. Yadi for registration of offence Exhibit 190
3. Yadi to Medical Officer for treatment to the Exhibit 191
injured
4. Yadi made for allotment to FSL for local Exhibit 192
inspection
5. Report on site inspection made by FSL Officer Exhibit 193
6. Visitation report Exhibit 194
7. Panchnama of the scene of offence Exhibit 34
8. Arrest panchnama of Satish Ramnikbhai and Exhibit 38
minor accused
9. Point out panchnama Exhibit 41
10. Seizure panchnama of muddamal Exhibit 45
Rs.10,00,000/-
11. Seizure panchnama of muddamal, after Exhibit 49
arresting accused Bharatbhai Amarabhai and
Dinesh Arjan,
12. Point out panchnama Exhibit 55
13. Arrest panchnama of accused babu @ Ganesh Exhibit 62
and Bhavesh @ Bhavalo Makwana
14. Discovery panchnama of muddamal i.e. Exhibit 67
Rs.7,95,000/-
15. Seizure panchanama of Rs.51,900/- and Exhibit 69
ornament
16. Yadi for identification parade Exhibit 161
17. Panchnama of identification parade dated Exhibit 141
7/6/10
18. Seizure panchnama of motorcycle, handcuff Exhibit 73
and stick
19. Seizure panchnama of Rs.60,000/- Exhibit 77
20. Arrest panchnama of accused Lalubha Exhibit 82
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Nanubha
21. Seizure panchnama of Rs.70,000/- Exhibit 87
22. Panchnama with regard to Rs.10,00,000/- took Exhibit 92
out by Jayvirsinh, Rs.50,000/- seized from
Bharatbhai Amarabhai, Rs.7,95,000/- took out
by Bhaveshbhai Himatbhai
23. Arrest panchnama of Bharatbhai Jinabhai Exhibit 112
24. Discovery panchnama of cash amount of Exhibit 102
Rs.2,29,400/-
25. Panchnama of the Test Identification Parade Exhibit 151
made on 30/8/10
26. Injury certificate of injured Ashokbhai Exhibit 108
28. Report of addition of Section 120(B) in FIR Exhibit 195
29. Report of addition of Sections 397 and 171 in Exhibit 196
FIR
30. Bill of Maruti Enterprise Exhibit 197
31. Bill of Choksi Mandal, Bhavnagar Exhibit 198
32. Copy of Proclamation of weapons Exhibit 199
33. Copy of R.C. Book of motorcycle bearing Exhibit 200
registration No.GJ-4-AD-216
34. R.C. Book and Insurance Policy of Car bearing Exhibit 185
registration No.GJ-1-AP-1663
35. Delivery note of Car bearing registration Exhibit 186
No.GJ-1-AP-1663
36. Report made by Investigating Officer to D.S.P. Exhibit 201
Bhavnagar with regard to interception of the
mobile phone
37. Yadi for call detail and tower location Exhibit 202
38. Yadi for call detail of mobile holder Exhibit 203
39. Report made from IMER number of mobile for Exhibit 204
taking information
40. Yadi for call detail of mobile no. 8980763630 Exhibit 204
41. Call detailed report of seized mobile Exhibit 205
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42. Case papers of the complainant admitted in Exhibit 206
Sir T. Hospital
43. Sonography report of the complainant Exhibit 109
44. Yadi made to allocate time for identification Exhibit 110
parade.
45. Copy of entry made in station diary Exhibit 164
46. Banakhat for selling Vehicle No.GJ-1-AP-1663 Exhibit 187
5. After closure of the evidence, the statements of the
accused under Section 313 of the Criminal Procedure Code, 1973
have been recorded wherein they denied having committed any
offence and have stated that they are innocent.
6. After hearing both sides and considering the evidence on
records, the learned Sessions Judge by impugned judgment and
order dated 30.01.2016 has convicted the accused as stated
hereinabove.
7. Heard Mr.Ekant Ahuja, learned counsel appearing in
Criminal Appeal Nos.342 of 2016 and 348 of 2016 for the
appellants – accused, Mr.Y. J. Patel, learned counsel appearing in
Criminal Appeal Nos.363 of 2016 for the appellant – accused,
Mr.Umang Vyas, learned counsel appearing in Criminal Appeal
Nos. 954 of 2016 and 955 of 2016 for the appellants – accused,
Mr.Sanjay Prajapati, learned counsel appearing in Criminal
Appeal No. 463 of 2017 and Mr.Ronal Raval, learned Additional
Public Prosecutor for the respondent – State of Gujarat at length.
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8. Mr.Ahuja, learned counsel for the appellant – Bharatbhai J.
Jamod has submitted the same facts which are narrated in the
memo of appeal and has submitted that the trial Court has
committed an error of facts and law in passing the impugned
judgment and order of conviction. He has submitted that the
most of the witnesses have not supported the case of the
prosecution and the complainant has not identified the main
accused and so far as the appellant accused is concerned, the
evidence in the nature of identification parade that too before a
third person and the panchas of the identification have not
supported the case of the prosecution. He has submitted that on
one hand the amount from Angadia was collected by one
Mukeshbhai, who was friend of the complainant and on the other
hand, the trial Court has recorded the finding that since Angadia
person has identified the appellant, therefore, it is presumed
that the appellant was present and collected the amount and on
presumption, the impugned judgment and order came to be
passed by the trial Court. He has submitted that the panch
witnesses of the respective panchnamas have not supported the
case of the prosecution and some of them have declared hostile.
8.1 Mr.Ahuja, learned counsel for the appellant – Satishbhai
Ramnikbhai Vaghela has submitted that the prosecution has
examined the witnesses and their evidence is in the nature of
hearsay evidence and not supported the case of the prosecution
and therefore their testimony cannot be believed. He has
submitted that the appellant has not been identified by any of
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the witnesses nor any recovery or discovery was made. While
referring to the evidence of the P.W.28, he has submitted that
this witness has stated in his deposition that he had not paid the
ransom to the accused and neither any recovery was made from
the appellant nor any incriminating evidence is available against
the accused and no direct evidence of common intention is
available. Mr.Ahuja, learned counsel has referred to the evidence
of P.W.1 i.e. panch witness of the place of offence and P.W.11
i.e. panch witness of the recovery panchnama and has submitted
that these witnesses have not supported the contents of the
panchnama and they have declared hostile. He has submitted
that the entire story of the prosecution is based on the
statement of the co-accused and version of the juvenile accused
before the police and, therefore, on the basis of the statement of
the co-accused, the conviction cannot be recorded. He has
submitted that the T.I. Parade carried out by the Investigating
Agency was not as per Section 8 of the Evidence Act and on the
basis of such evidence, the conviction cannot be recorded and,
therefore, the case against the appellant is not proved beyond
reasonable doubt. While referring to the evidence of the
complainant, Mr.Ahuja, learned counsel has submitted that the
complainant himself has stated in his examination-in-chief that
he has not identified the accused and not in a position to
identified the accused persons involved in the crime in question.
He has submitted that looking to the evidence led by the
prosecution, there was no any ingredients of meeting of mind
and pre-plan for committing the alleged offence, not only that
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the prosecution has failed to establish the case for conspiracy
and, therefore, the basic ingredients of Sections 34 and 120B of
the Indian Penal Code is missing. He has submitted that the
prosecution has failed to prove the transaction of the amount in
question and there are several contradictions and omissions in
the evidence and versions of the witnesses. He has submitted
that the trial Court has passed the impugned judgment and order
of conviction on the basis of the assumption and summaries in
absence of cogent and direct evidence. He has submitted that
the charges levelled against the accused has not been proved
beyond reasonable doubt. Mr.Ahuja, learned counsel has also
submitted the written submissions in support of his argument.
8.2 In support of his submissions, Mr.Ahuja, learned counsel
has relied upon the decisions of the Hon’ble Supreme Court in
the case of Ramanand @ Nandlal Bharti Vs. State of Uttar
Pradesh reported in AIR 2022 SC 5273 and Subramanya Vs.
State of Karnataka reported in 2022 SCC Online SC 1400 =
(2023) 11 SCC 255 .
9. In the case of Subramanya (supra), the Hon’ble Supreme
Court has held and observed in para 82 to 84 reads as under:-
“82. We may refer to and rely upon a Constitution Bench
decision of this Court in the case of State of Uttar
Pradesh v. Deoman Upadhyaya reported in AIR
(1960) SC 1125 , wherein, Paragraph 71 explains the
position of law as regards the Section 27 of the Evidence
Act:
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“71. The law has thus made a classification of accused
persons into two: (1) those who have the danger brought
home to them by detention on a charge; and (2) those who
are yet free. In the former category are also those persons
who surrender to the custody by words or action. The
protection given to these two classes is different. In the
case of persons belonging to the first category the law has
ruled that their statements are not admissible, and in the
case of the second category, only that portion, of the
statement is admissible as is guaranteed by the discovery
of a relevant fact unknown before the statement to the
investigating authority. That statement may even be
confessional in nature, as when the person in custody says:
“I pushed him down such and such mineshaft”, and the
body of the victim is found as a result, and it can be proved
that his death was due to injuries received by a fall down
the mineshaft.” [Emphasis supplied]
83. The scope and ambit of Section 27 of the Evidence Act
were illuminatingly stated in Pulukuri Kottaya and
Others v. Emperor, AIR 1947 PC 67 , which have
become locus classicus, in the following words:
10…..It is fallacious to treat the “fact discovered” within the
section as equivalent to the object produced; the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this, and
the information given must relate distinctly to this fact.
Information as to past user, or the past history, of the
object produced is not related to its discovery in the
setting in which it is discovered. Information supplied by a
person in custody that “I will produce a knife concealed in
the roof of my house” does not lead to the discovery of a
knife; knives were discovered many years ago. It leads to
the discovery of the fact that a knife is concealed in the
house of the informant to his knowledge, and if the knife is
proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to the
statement the words be added “with which I stabbed A”
these words are inadmissible since they do not relate to
the discovery of the knife in the house of the informant.”
84. What emerges from the evidence of the investigating
officer is that the accused appellant stated before him
while he was in custody, “I may get discovered the murder
weapon used in the incident”. This statement does not
indicate or suggest that the accused appellant indicated
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anything about his involvement in the concealment of the
weapon. It is a vague statement. Mere discovery cannot be
interpreted as sufficient to infer authorship of concealment
by the person who discovered the weapon. He could have
derived knowledge of the existence of that weapon at the
place through some other source also. He might have even
seen somebody concealing the weapon, and, therefore, it
cannot be presumed or inferred that because a person
discovered the weapon, he was the person who had
concealed it, least it can be presumed that he used it.
Therefore, even if discovery by the appellant is accepted,
what emerges from the substantive evidence as regards
the discovery of weapon is that the appellant disclosed
that he would show the weapon used in the commission of
offence.”
10. Mr.Patel, learned counsel appearing for the appellant –
Babu @ Ganesh @ Zalavadi Vajabhai Parmar has submitted the
same facts which are narrated in the memo of appeal and has
submitted that the impugned judgment and order of conviction
passed by the trial Court is contrary to law and evidence on
record. He has submitted that there was a delay in lodging the
FIR, which was not explained by the complainant and the
complainant himself is the only eye witness of the incident and,
therefore, the testimony of the complainant is not reliable. He
has submitted that the complainant has not identify the accused
and as per the arrest panchnama drawn by the Investigating
Officer, he came to know about the name of the accused. He has
submitted that the panch witness namely Dipak Damjibhai of the
identification parade has been examined at Exhibit 141, but he
has not supported the panchnama of the identification. He has
submitted that the incident occurred on 1.6.2010 and T.I. Parade
held on 7.6.2010 i.e. after a period of seven days and, therefore,
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the present appellant ought to have been acquitted for the
alleged offence. He has submitted that the trial Court ought to
have appreciated the fact that the panchnama was drawn under
Section 27 of the Evidence Act, but the same has not been
considered as confessional statement before the police and,
hence, the same cannot be considered as an evidence. He has
submitted that the T.I. Parade held is not in accordance with law
and the same is not relied upon by the prosecution. He has
submitted that so far as allegation under Section 394 and 397 of
the Indian Penal Code is concerned, the prosecution has
examined one witness namely Ishwarbhai and from the cross-
examination of this witness, it was not proved that two persons
were come to his shop and purchased the weapons. Mr.Patel,
learned counsel has relied upon the decision of the Hon’ble
Supreme Court in the case of Anvar P.V. Vs. P.K.Basheer
reported in 2014 (3) GLH 305 and submitted that in the said
decision the Court has observed that without examining
responsible officer, electronic evidence cannot be treated as
evidence under Section 65(B) of the Evidence Act and, therefore,
such benefit ought to have been given to the appellant. Mr.Patel,
learned counsel has also submitted the written submissions in
support of his argument.
11. Mr.Vyas, learned counsel for the appellants – Dinesh
Arjanbhai Kantariya and Lalubha Nanubha Gohil has submitted
that the trial Court has not considered the ingredients of Section
364(A) r/w. Section 34 of the Indian Penal Code and the
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judgment and order of conviction is bad in law and contrary to
the provisions of law. He has submitted that the prosecution has
examined the witnesses and their evidence is in the nature of
hearsay evidence and not supported the case of the prosecution
and even the accused were not identified by any of the
witnesses nor any recovery or discovery was made from the
accused. Mr.Vyas, learned counsel has submitted that the
complainant himself has stated in his examination in chief that
he has not identified the accused and not in a position to identify
them involved in the crime in question. He has submitted that
looking to the evidence led by the prosecution, there was no any
ingredients of meeting of mind and pre-plan for committing the
alleged offence, not only that the prosecution has failed to
establish the case for conspiracy and, therefore, the basic
ingredients of Sections 34 and 120B of the Indian Penal Code is
missing. He has submitted that the prosecution has failed to
prove the transaction of the amount in question and several
contradictions and omissions in the evidence and versions of the
witnesses. He has submitted that the trial Court has passed the
impugned judgment and order of conviction on the basis of the
assumption and summaries in absence of cogent and direct
evidence. He has submitted that the charges levelled against the
accused has not been proved beyond reasonable doubt. Mr.Vyas,
learned counsel has also submitted the written submissions in
support of his argument.
12. Mr.Prajapati, learned counsel has submitted the same
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arguments which are made by learned counsel appearing for the
respective accused in each appeal. Over-and-above,
Mr.Prajapati, learned counsel has also submitted written
submissions.
13. Mr.Patel, learned counsel, Mr.Vyas, learned counsel and
Mr.Prajapati, learned counsel appearing for the respective
accused have supported the submission canvassed by Mr.Ahuja,
learned counsel.
14. We have carefully considered the rival contentions and
perused the impugned judgment and order as well as the
evidence placed on record minutely.
15. Before parting, certain facts are required to be noted for
arriving at our conclusion in the nature of undisputed facts. On
01.06.2010, the complainant, while proceeding towards his
home in his Skoda car bearing registration No.GJ-4-AM-9937, he
kidnapped by original accused No.4, 5 and one juvenile for the
purpose of ransom. That while the complainant was proceeding
towards Alang at about 3.00 PM, the accused juvenile along with
accused No.4 and 5 came behind him on motorcycle bearing
registration No.GJ-4-AD-216 and they intercepted the
complainant and, thereafter, they have kidnapped him for asking
ransom against the release of the complainant near Maldar Villa
Bungalow from Rupani Circle to Sanskar Mandal Road at
Bhavnagar and on persuasion, the complainant agreed to pay
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Rs.30,00,000/- against the demand of Rs.1 Crore and he made
telephone call to some Angadia Service and from there accused
No.1 to 6 of Sessions Case No. 183 of 2010 and accused of
Sessions Case No. 196 of 2010 hatched the conspiracy and
committed the alleged offence and for which, they have tried by
the concerned trial Court.
16. On perusal of the evidence of 44 witnesses, it appears that
almost 27 witnesses have declared hostile and have not
supported the case of the prosecution. It is unfortunate that the
prosecution was unable to protect the witnesses from allurement
and other circumstances and remaining 12 witnesses including
the complainant, doctor, who examined the complainant, police
witness and two panch witnesses have supported the case of the
prosecution. The Investigating Officer has collected the evidence
during the course of the investigation. On perusal of the
evidence of the said witnesses, we are of the considered opinion
that the prosecution has mainly thrashed upon and relied upon
the depositions of the P.W.34 Ashokbhai Parshotambhai Gupta at
Exhibit 133, P.W.28 Rajubhai Motidas Patel at Exhibit 28, P.W.29
Nareshbhai Satyanarayanbhai Jindal at Exhibit 125, P.W. 25
Kalpeshbhai Bhupatrai Dave at Exhibit 107, P.W.38 Ankitaben
Kantibhai Parmar at Exhibit 163, P.W. 39 Rajendraprasad
Bhavanishankar Joshi at Exhibit 167 and P.W.44 Pratapsinh
Dashrathsinh Parmar at Exhibit 189. The story put forth by the
prosecution is mainly running on one juvenile along with accused
No. 4, 5 and 6, who have been identified in Test Identification
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Parade (TI Parade). Considering the role played by the three
accused i.e. accused No.4, 5 and juvenile, the trial Court has
considered the evidence of the witnesses and while passing the
impugned judgment and order of conviction has emphasized
upon the fact that the amount which is paid by the complainant
towards ransom was recovered at the behest of those accused
and their active role and participation in the alleged offence has
been evaluated through the evidence available on record and,
therefore, the trial Court has rightly held that the offence was
proved beyond reasonable doubt by supporting the evidence of
the discovery panchnama and recovery of the ransom amount
paid by the complainant. As per the case of the prosecution, the
accused No.4 and 5 and one juvenile accused have set into the
Skoda car and they have threatened the victim for asking the
ransom and after sometime they received a message that the
amount of ransom amount was already paid and thereafter they
left the victim in his car without causing any harm or injury to
the victim. At this juncture, it is relevant to note here that from
which point of time, the victim was kidnapped and till his
released by the accused, he has not made any telephone call to
his family members and instead of that he has made telephone
call to P.W. 28 Rajubhai Motibhai Patel at Exhibit 121 for getting
amount for the purpose of paying ransom to the accused and he
referred the name of one Mukeshbhai that he would come and
collect the amount from P.W.28. P.W.28 has categorically stated
that he has collected the amount in denomination currency notes
of Rs.500, Rs.100 and Rs.50, however, to utter surprise the
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Investigating Officer has collected denomination currency notes
of Rs.1000 during the course of the investigation which
contained signed / marked on the bundle of currency notes
which was normally used by the Angadia firm while paying to
their customers and there was no satisfactory explanation
rendered by the prosecution about the currency notes.
17. On perusal of the evidence of the panch witness, it appears
that he has categorically mentioned that in his presence, the
currency note of Rs.1 Crore were recovered from the accused
persons.
18. On perusal of the evidence of friend of the victim –
complainant, it appears that he happened to be the partner of
the victim in the business namely Shaan Enterprise. In the said
firm, accused No.1 and juvenile accused were working and at
whose instance along with accused No.4 and 5 alleged to have
been conspired for kidnapping the complainant for ransom. On
perusal of the whole record and police papers and the evidence
recorded by the trial Court, the role of accused No.1, 2, 3 and 6
of Sessions Case No. 183 of 2010 and accused of Sessions Case
No.196 of 2010, it appears that there was no material
whatsoever collected and produced before the trial Court to
connect the accused with the crime in question. Though the
Investigating Officer has collected the evidence in a nature of
call history, CDR, but it was without there being any prescribed
manner under the Evidence Act. There was no corroborative
piece of evidence collected by the Investigating Officer during
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the course of the investigation either in a nature of evidence /
statement of the mobile company or any certification under
Section 65(B) of the Evidence Act. Therefore, we are of the
opinion that the finding recorded by the trial Court with regard to
involvement of accused No. 1, 2, 3 and 6 along with accused of
Sessions Case No. 196 of 2010 is raising serious doubt because
there was no any iota of evidence. From the evidence of the
victim, it appears that the victim has not described any role nor
any chain established with regard to involvement of the accused.
Before just referring to Section 361 of the Indian Penal Code
which defines ‘kidnapping from lawful guardianship’, it provides
that whoever takes or entices any minor male child under
sixteen years of age, out of the keeping of the lawful guardian of
such minor, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship. Looking
to ingredient of Section 364A is that there should be a
kidnapping or abduction of any person or a person should be
kept in detention after such kidnapping or abduction. If the said
act is coupled with a threat to cause death or hurt to such
person, an offence under Section 364A is attracted. If the first
act of kidnapping or abduction of a person or keeping him in
detention after such kidnapping is coupled with such conduct of
the person kidnapping which gives rise to a reasonable
apprehension that the kidnapped or abducted person may be put
to death or hurt, still Section 364A will be attracted. If the first
act of kidnapping or abduction of a person or keeping him in
detention after such kidnapping is coupled with such conduct of
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the person kidnapping which gives rise to a reasonable
apprehension that the kidnapped or abducted person may be put
to death or hurt, still Section 364A will be attracted. In the light
of this legal position, now we refer to the evidence of the victim.
We have carefully examined and perused the evidence of the
complainant, it appears that at the relevant time, the
complainant was the partner of Shaan Enterprise with two other
partners, out of which, one another partner (friend of the victim)
has deposed in his examination-in-chief that while the victim was
returning to his home around 3.00 PM after completing his office
work as usual in his Skoda car bearing registration No. GJ-4-AM-
9937, was intercepted by accused N. 4, 5 and juvenile accused
who came behind on motorcycle bearing registration No.GJ-4-AD-
216 and asked the victim that why he was driven the car in rash
and negligent manner, for which, he has to take the police
station. He has also deposed that the accused were having stick
like using by the police officer and handcuff and, thereafter, all
the three have boarded in the car and one of the accused have
driven the car and the victim compelled to seat in the back side
of the car where accused have blindfold the victim and also
pointed knife on the victim and he was compelled to have called
for ransom and in turn, the victim has made a phone call to the
Angadia Ramesh Agency that he was in need of Rs.30,00,000/-
and at that time, Angadia Agency was not having sufficient fund
in cash and, therefore, it had asked the victim that right now it
had no sufficient fund. He has further deposed that after about
2-3 hours the victim had made call to the Angadia person and in
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turn he had asked the Angadia person that he will sent one
Mukesh to collect the amount and, thereafter, on confirmation
the accused have received ransom amount and left the victim in
the car. During this whole episode, the accused have not caused
any injury to the victim and on the next day, after consultation
with the family members and friends, the victim lodged the
complaint against the three unknown persons and he has given
the description of the motorcycle and on the basis of that the
first juvenile accused was arrested and thereafter on the
statement of the juvenile accused, the other accused have been
arrested. On perusal of the cross-examination of this witness, it
appears that he was not knowing the name of the accused but
when on the next day the news punished in the daily local
newspapers, he came to know the name of the accused involved
in the crime. He has admitted that except accused No.1, he was
not knowing another accused. He has admitted that he has not
given any registration number of the motorcycle. He has also
admitted that he has not stated anything with regard to the
amount of Rs.30,00,000/- in his complaint. This witness has
further admitted that in the complaint, he has not stated that
Rs.16,12,000/- was received by the accused towards ransom
amount and looted cash carrying in his briefcase at the time of
incident. This witness has not identified any accused in the Court
though he has identified by accused No.4 and 5 in the T. I.
Parade. Considering the evidence of the complainant and on
careful examination, it appears that the ingredients of Sections
394, 397, 171 and 120(B) of the Indian Penal Code is not
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attracted and even Section 364A of the Indian Penal Code is also
not attracted. The conduct of the victim is not usual as he is
suppressing some facts. The accused have asked for ransom
money to the tune of Rs.30,00,000/-, however, the Investigating
Agency has recovered only Rs.22,19,500/- and odd amount
which was ultimately received by the victim, but how and in
which manner, he has recovered the said amount was not
explained by the prosecution during the course of the
investigation or before the trial Court. It is to be noted that the
victim has specifically mentioned that he received
Rs.22,19,500/- along with one golden chain and two rings which
were worn by him at the time of incident from the trial Court,
except these no other articles were received by the victim. The
victim has affirmed that the currency notes which were received
from the Angadiya, there was marked with some sign and on the
basis of that sign and symbol he has identified the currency
notes. But from the evidence of Angadiya person, it appears that
he has specifically stated before the trial Court that he has paid
currency notes in denomination Rs.500/-, Rs.100/- and Rs.50/-,
so how denomination of Rs.1 Crore were recovered by the
concerned Investigating Officer. The prosecution was unable to
explain the said circumstances or facts. So far as the
involvement of other accused are concerned, there was no
connecting material produced by the prosecution to prove the
fact that whether there was any conspiracy hatched during the
course of investigation or not and whether there was any call
details or any material to that effect was collected during the
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course of the investigation.
19. It is also worthwhile to refer to the deposition of the victim /
complainant which reads thus:-
“On 01/06/10, the date of the incident, he left for Anlag in
his Skoda car No. G.J.4-A.M.-9937. On that day, at around 3
pm, while he was going from Rupani Circle to Sanskar
Mandal and reaching Maldavila Bungalow, 3 persons came
on a motorcycle and angrily made a gesture to him with
hand to stop the car. Therefore, he stopped the car on the
side, and they came and said to him that why are you
driving like this, you want to kill someone and two of them
came to him and one of them grabbed his collar and
started beating him indiscriminately with the stick he had.
These people looked like policemen, because one had a
police stick in his hand and the other had handcuffs with
key and ‘police’ was also written on the motorcycle. The
first person told the second person that, he will not be
convinced in this way, he will have to be taken to the
police station, put handcuffs on him, and he pushed him
into the back seat of the car and made him to lay down,
and the second person sat next to him. The first person sat
on the driver’s seat and thereafter, the second person took
out a knife from somewhere and told him that, Did not
move sideways or up or down, otherwise he will kill him.
Thereafter, he took out a handkerchief from his pocket and
blindfolded him, and the second person said to the first
person, Arjuna Sir, drive the car and thereafter, he drove
the car. Thereafter, the second person handcuffed him in
the manner that both his hands remained at the backside.
Thereafter, the first person said that they have been
collecting his information for a month and they have all the
information as to where do he live, what did his work, who
were your partners, they have kidnapped him, and if he
wanted to live, he will have to give one crore rupees.
Therefore, he told them that he cannot give this much
amount, so they started giving him fist and kick blows and
threatened to kill him. In the meantime, the second
person, who was with him took out two rings and a gold
chain from his neck and a wallet from his pocket. Finally,
when he agreed to give them Rs.30 lakh from Ramesh
Magan Angadia firm, they told him to call and tell the
Angadia firm owner to give it to a person namedPage 27 of 38
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Mukeshbhai. For this time only they removed his blindfold
and told him to make a call. When he made a phone call
from his mobile number 9426919405 to Ramesh Magan
Angadiya firm’s Rajubhai Patel on his mobile number
9925004646 and said that he needed Rs.30 lakh, he told
him that it would be arranged by __ o’clock. He told him
that a person named Mukeshbhai will come and give it to
him. Thereafter, both the people were constantly talking to
someone on the phone and repeatedly assuring whether
the money was received. During that time, these people
stopped the car somewhere and I felt that they purchased
some iron goods and he heard the sound of iron. Finally,
after confirming that the money was received, they called
the person, who took the money, first to Shihor, then to
Khodiyar Temple, then to Bortalav and then to Nari
Chowkdi and finally to the rough road leading from
Bortalav towards Sidsar Road. After reaching there, they
stopped the car and told him that did not remove the
blindfold for ten minutes, otherwise he will kill him and
believed that they have taken only Rs.15 lakh in exchange
for letting him to go alive. After a while, he heard the
sound of a motorcycle coming and after sometime he also
heard the sound of a motorcycle going. He thought that
they had left, so he dared to take off the blindfold and it
was dark. His purse was not in the car nor was in his office
bag, nor was the car key in the car. He had Rs. 12
thousand cash in his purse and Rs. 40 thousand cash and
necessary papers in his office bag. They also took both of
his mobile phones. A broken cover of one of them was
lying there. Finally, he got out, closed the car door and
somehow reached the road and took a rickshaw to come
home.
Thereafter, after being convinced by his family members
and friends, he filed a complaint with the police at night.
He was shown a complaint with Mark-31/1, which bears my
signature, he identified the same and it is assigned
Exhibit – 134.
He stated the reason for this incident as this incident
happened to get money from him.
On 02/06/10 at around 7 am, he showed the police the
place where the incident took place and the place where
the said people released me. From there, the police found
a knife, my handkerchief, a rope and a broken cover of his
mobile from his car, which they seized. Thereafter, theyPage 28 of 38
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came to his residence from that place. A fennel-coloured
cloth covered over the camera kept outside from his main
entrance and a hammer found in the courtyard of his
house, which was assumed to be of the accused since it
did not belong to us, were seized by the police.
Apart from this, the police have not called him anywhere
else and have not interrogated him further.
If he was shown the muddamal, he can identify them. He
was shown the stick with muddamal Article No. 34, the
handkerchief with Article No. 3, the rope with Article No. 4
and the handcuffs with Article No. 33. After seeing them,
He stated that they were the same and he identified them.
If the accused were shown to him, he will not be able to
identify them at present. Later, during the police
investigation, he came to know the names of the accused
and among the said names, the names of Babu Rabari,
Bhavesh and Jaideep Zala, Satish and Bharat Jamod etc.
were known.
In his cross-examination, this witness has deposed that it
is not true that he has not dictated in his complaint that
“three persons came on a motorcycle and angrily made a
gesture to me with hand to stop the car. Therefore, he
stopped the car on the side, and they came and said to
him, why he was driving like this, he wanted to kill
someone.” It is not true that he has not dictated in his
complaint that “the second person said to the first person,
Arjuna Sir, drove the car, and thereafter, he drove the car.”
It is not true that he has not dictated the word “person” in
his entire complaint. He did not remember the fact
whether he has dictated in his complaint that “they have
been collecting his information for a month.”
It is true that he has not dictated in his complaint that
“during that time, these people stopped the car
somewhere and he felt that they purchased some iron
goods and he heard the sound of iron.” Now, he stated that
he did not remember at present whether he dictated such
fact or not.
It is true that he did not see as to which area the car went
and stopped. The witness voluntarily states that, at one
point, when his blindfold was slightly raised, he saw a
board named Sumit Pan Corner. Thereafter, when it came
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to their notice, they immediately lowered him blindfold
again. He did not remember at present whether he
dictated in his complaint that his blindfold was raised and
he saw the board of Sumit Pan Corner. He did not
remember at present whether he dictated in his complaint
that “finally, he got out, closed the car door and somehow
reached the road and took a rickshaw to come home.”
It is not true that if his family members and friends had not
convinced him, he would not have filed a complaint. It is
not true that, he has filed a false complaint and given
false deposition despite the fact that the incident he
described has not happened.
It is true that that he has stated the names of the accused
persons because he came to know the same from the
Police as well as newspaper and local news. It is true that
out of the names he has stated, except Satishbhai, he was
not acquainted with anyone. As Satishbhai was working at
my place, he knew him.
It is not true that he has not dictated in his complaint that
‘From my mobile No. 94269194405, he made phone call to
Rajubhai of Ramesh Magan Angadiya Firm on his mobile
no. 9925004646 and stated that he was in need of Rs. 30
Lakh.” It is true that number of motor cycle is not
mentioned in his complaint. It is not true that he did not
dictate any such fact to the police that ‘Police’ was written
on that motorcycle or there were any such marks. It is true
that he has not mentioned any amount in the complaint
regarding 30 lakh rupees. The witness voluntarily states
that he informed about this amount to the police later on.
It is true that amount of 16 lakh 12 thousand is mentioned
in the complaint.
It is true that he did not have any personal information
regarding the facts of cloth on CCTV camera installed at his
house and the weapon. It is not true that as he has
suffered financial loss in Alang business, he lodged this
false complaint to save myself from the creditors. It is not
true that though no such incident occurred, he lodged false
complaint. It is not true that he was giving false deposition
on oath.
He resided at Bhavnagar since last 45 years and he does
business of Alang. It is true that as he was doing business
of Alang, many persons work at his office as well as at
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Alang site. It is true that he does this business in
partnership. He resided at Plot No. 980, Radhakrushna
since last 15 years. It is true that he was in contact with
persons involved in Rolling Mill business as well as
business of Alang.
It is true that the muddamal handkerchief belonged to me
and it was found from his vehicle and therefore, he
identified the same before the Court today. It is true that
police persons and home guards use the kind of stick
which he has identified today. It is true that the stick was
not found from his vehicle. It is true that he cannot state
for sure that this is the same stick which was used in the
incident. It is true that similar kind of handcuffs, like the
handcuff he has identified today, were found with the
police personnel as well as jail authorities and such type of
handcuff can be found from a ship of Alang. It is true that
the police showed him this handcuff. It is true that when
this handcuff was shown to him, no one else was present
there except him and the police personnel. It is true that
he cannot state exactly that this same handcuff was used
in the incident.
It is true that before this incident, no incident of quarrel or
scuffle took place with him. It is true that prior this this
incident, he did not have any occasion to visit the police
station or to lodge any complaint. It is true that as he was
doing business of Alang, he has to face internal
competition. It is true that prior to this incident, he did not
have any rivalry or enmity against anyone. It is true that as
the incident occurred suddenly, he was frightened. It is true
that he tried himself best to save his life in this incident. It
is true that from the beginning of the incident till he was
released, he was in the rear seat of the vehicle. It is true
that during this period, he was blindfolded and he was kept
in the sleeping position. It is true that as he was
blindfolded, he could not see the persons sitting in the
vehicle. The witness voluntarily states that he saw them
during the time when scuffle took place outside the
vehicle. It is true that during this scuffle, he did not see
them in such a manner that he could identify them.
It is true that the incident took place on the road leading
from his house to the office and it occurred on the public
road. It is true that the incident occurred on the road
having continuous movement of people and residential
houses are located on both the sides of this road. It is true
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that as he was frightened at the time of the incident,
neither did he raise alarm nor did he seek help of anyone.
The witness voluntarily stated that at first he thought they
were police personnel. It is true that he did not ask them to
show their police identity card.
After the incident, when he returned home in rickshaw, the
time was about half past eight o’clock at night. It is true
that he have stated about facts of temple of Khodiyar
Goddess and Sihor etc., today on the basis of the
conversation taking place between them. It is true that
after knowing about the incident, his partners and relatives
visited his house to ask about his well-being. It is not true
that this complaint was lodged at the instance of my
partner. It is true that this complaint was lodged after
having due discussion with his friends and partners.
It is true that when he demanded the muddamal back, he
received Rs. 22,19,500/- in cash, one gold chain and two
rings from the Court; he did not get back any other article.
It is true that the police showed me the muddamal ring and
chain in the police station. It is true that stamp of ‘Shri’
was affixed on all the currency notes of the money which
he had got from Ramesh Magan Angadiya. The witness
voluntarily states that this is a custom of Angadiya firms. It
is true that as stamp of ‘Shri’ was affixed on all the
currency notes, he got this entire amount back from Court.
The witness voluntarily stated that such stamp is not
affixed on all the currency notes, but the stamp is affixed
on the bundles of notes.
It is true that he did not know as to from whom the police
recovered the muddamal notes as well as the chain and
ring. The witness voluntarily states that he only knew that
the same was recovered from the accused. It is true that
these currency notes, chain and ring were not seized in his
presence.
It is true that his vehicle was parked on the backside road
leading to Bartalav from Victoria Park. It is true that the
place where he left the vehicle was a desolate place. It is
true that the vehicle was lying in the same condition from
the time he left and till the panchnama was drawn on the
next day. The witness voluntarily states that he put handle
lock in the vehicle with hand. It is true that he had put
hand lock so that no one takes the vehicle from the spot.
He did not know that when he left from the vehicle, all the
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four door were locked or not. While leaving the vehicle, he
saw one broken mobile cover and except this, he did not
see anything else. Now he stated that he also saw one
handkerchief. It is not true that when the panchnama was
drawn on the next day, he did not know as to from where
the knife and rope came into the vehicle.
It is true that after the incident, the police used to often
call him to the police station for identification of
muddamal. It is true that the police inquired to him many
times during this entire process. It is true that at present
he was not able to state as to what he had informed to the
police during this inquiry.
It is true that when he went to lodge the complaint, his
friends and relatives accompanied him. It is true that
before registering complaint before the police, he had
informed all the facts to his friends and relatives.
It is true that his friends and relatives took him to doctor
for treatment. It is true that the doctor gave him normal
treatment. When he went to the doctor for treatment, he
went with a police yadi. It is not true that the doctor did
not ask him anything regarding the incident.
It is not true that he has not lodged complaint at the time
which he have stated. It is not true that all the facts of the
complaint have been dictated by his partner and friends
and thereafter, he made signature in the ready-made
complaint later on. It is not true that he was giving false
deposition on oath.”
20. Before parting, we are regret to mention that the
investigation carried out by the concerned Investigating Officer
was not upto the mark and there are serious loopholes in the
investigation i.e. the Investigating Officer perhaps not aware the
procedure to follow for obtaining certificate under Section 65(B)
of the Indian Evidence Act with regard to the CDR and call details
and he has not tried to get any certification from the mobile
agency.
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21. The evidence of the panch witnesses of the recovery
panchnama, executive magistrates and the police officers has
supported the case of the prosecution and, therefore, there is no
reason to disbelieve and discard the evidence of the victim that
he has identified the accused in the T.I. Parade held before the
Executive Magistrate. On perusal of the said evidence of the
witnesses we are of the opinion that the accused No.4 and 5 of
Sessions Case No. 183 of 2010 and accused of Sessions Case No.
196 of 2010 are hereby held guilty for the offence punishable
under Section 365 of the Indian Penal Code as there was no any
threat or injury caused to the victim and, therefore, the
ingredients of Section 364(A) of the Indian Penal Code is not
satisfied and ultimately they are acquitted for the offence under
Section 364(A) of the Indian Penal Code. Considering the
evidence of the witnesses, it appears that the case is not fallen
under Section 364 or 364(A) of the Indian Penal Code against
accused No.4 and accused No.5 of Sessions Case No. 183 of
2010 and accused of Sessions Case No. 196 of 2010.
22. On perusal of the entire record and the relevant
documents, it appears that one antecedent was registered
against the accused – Bharatbhai Jinabhai Jamod of Criminal
Appeal No. 342 of 2016 and two antecedents were registered
against the accused – Bhavesh @ Bhavlo Himmatbhai Makwana
of Criminal Appeal No. 463 of 2017.
23. On careful examination of the evidence of the witnesses,
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we are unable to maintain conviction qua accused No.1, 2, 3 and
6 of Sessions Case No.183 of 2010 as the prosecution has not
produced any material which led the accused to connect with the
alleged offence nor established the case against these four
accused. So far as the evidence against accused No.4 and 5 of
Sessions Case No. 183 of 2010 and accused of Sessions Case No.
196 of 2010 is concerned, the case is supported by the
independent i.e. panch witnesses of the recovery panchnama,
T.I. Parade and the Executive Magistrates have also fully
corroborated and supported the case against the said accused.
On appreciating the evidence of the witnesses, and on
examination of the evidence, we are of the opinion that accused
No.4 and 5 of Sessions Case No. 183 of 2010 and accused of
Sessions Case No. 196 of 2010, the conviction for the lesser
offence under Section 364(A) of the Indian Penal Code is
required to be altered conviction from rigorous imprisonment of
life to rigorous imprisonment of seven years. So far as accused
No.1, 2 3 and 6 of Sessions Case No. 183 of 2010 are concerned,
they are required to be acquitted from the charges levelled
against them.
24. It is worthwhile to refer to the decisions of the Hon’ble
Supreme Court in the case of William Stephen Vs. State Of
Tamil Nadu reported in (2024) 5 SCC 258 and in the case of
Gaurav Maini Vs. State Of Haryana reported in AIR 2024 SC
3601.
25. In view of the aforesaid facts and circumstances of the case
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and the decisions of the Hon’ble Supreme Court, the appeals are
partly allowed. The accused No.1, 2 3 and 6 of Sessions Case No.
183 of 2010 are hereby acquitted from the charges levelled
against them. The impugned judgment and order of conviction is
quashed and set aside qua accused No.1, 2, 3 and 6 of Sessions
Case No. 183 of 2010. These accused are ordered to be set at
liberty forthwith if not required in connection with any other
offence. The bond shall stand cancelled. Fine, if any, shall
refunded to the accused No.1, 2, 3 and 6.
26. In view of peculiar facts and circumstances of the case,
there does not appear any hurdle in alteration of conviction of
the accused No.4 – Babu @ Ganesh @ Zalavadi Vajabhai Parmar
and 5 – Bhavesh @ Bhavalo Himmatbhai Makwana of Sessions
Case No. 183 of 2010 and accused of Sessions Case No. 196 of
2010 from Section 364-A read with Section 34 of IPC to
one under Section 365 IPC. As stated hereinabove, the offence
punishable under Section 365 of IPC is of same nature and
species and it prescribed less punishment than that of Section
364-A of IPC. The evidence on record clearly makes out a case of
kidnapping as punishable under Section 365 of IPC. Accordingly,
we are of the opinion that the conviction of accused No.4 and 5
of Sessions Case No. 183 of 2010 and accused of Sessions Case
No. 196 of 2010 recorded by the trial Court under Section 364-
A of IPC should be altered and modified to one under Section
365 of IPC only.
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27. In view of the above, the conviction and sentence under
Section 364-A read with Section 34 of IPC stands set aside and
the accused No.4 and 5 of Sessions Case No. 183 of 2010 and
accused of Sessions Case No. 196 of 2010 are convicted for the
offesence under Section 365 of IPC and are sentenced to the
rigorous imprisonment of seven years and a fine of Rs 1000/-
each, and in case of default in payment of fine, the appellants
shall have to undergo simple imprisonment for two months. On
perusal of the jail remarks, it appears that accused No.4 – Babu
@ Ganesh @ Jhalavadi Vajabhai Parmar has served out the
sentence of more than 8 years, accused No.5 – Bhavesh @
Bhavalo Himatbhai Makwana has served out the sentence of
more than 5 years and accused – Bharatbhai Jinabhai Jamod has
served out the sentence of more than 7 years respectively. The
respective period of imprisonment has already been undergone
by accused No.4 – Babu @ Ganesh @ Jhalavadi Vajabhai Parmar
and accused – Bharatbhai Jinabhai Jamod. Though the accused
No.5 – Bhavesh @ Bhavalo Himatbhai Makwana was absconded
for more than 1552 days and he was arrested by the concerned
police and, therefore, he shall serve out the actual period of
seven years of sentence and on completion of the sentence, he
shall be released forthwith if he is not required in any other case.
The accused No.4 – Babu @ Ganesh @ Jhalavadi Vajabhai Parmar
and accused – Bharatbhai Jinabhai Jamod be released forthwith,
if they are not required in connection with any other case after
completion of the sentence.
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The appeals shall stand disposed of accordingly. Record
and proceedings be transmitted back to the concerned trial
Court forthwith.
Pending criminal misc. applications shall stand disposed of
accordingly.
(ILESH J. VORA,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
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