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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NEUTRAL CITATION
R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025
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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 Page 2 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 4 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 5 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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. 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 83 Page 7 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 8 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 9 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 10 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined
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 Page 12 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 13 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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:Page 14 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025
NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined "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 Page 15 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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, Page 16 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 17 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 18 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 19 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 20 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 21 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 22 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 23 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 24 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 25 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 26 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 named Page 27 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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, they Page 28 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 29 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 30 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 31 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 32 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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, Page 34 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 35 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025 NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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.
Page 36 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined
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.
Page 37 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025NEUTRAL CITATION R/CR.A/342/2016 JUDGMENT DATED: 07/02/2025 undefined 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 Page 38 of 38 Uploaded by V.R. PANCHAL(HC00171) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 02:31:17 IST 2025