Document Fragment View

Matching Fragments

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 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.

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.

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 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 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 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 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 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 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.