CR.A/265/2004 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 265 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AKHILESH @ MUKESH AGRAWAL @ SANJAYSINH @ RAJU TIWARI - Appellant Versus STATE OF GUJARAT & 1 - Respondent ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant MR KT DAVE ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 05/03/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/265/2004 2/58 JUDGMENT 1. By instant appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short), the appellant/original accused No.2 ('the accused' for short) challenges the correctness and legality of the judgment and order dated 31.12.2003, rendered in Sessions Case No.77 of 2001 by the learned Additional Sessions Judge, Court No.6, City Sessions Court, Ahmedabad, by which the accused has been convicted for commission of the offenecs punishable under Sections 120B, 364A, 387 read with Section 120B and 511 of the Indian Penal Code ('IPC' for short) and Sections 25 (1) (a), 25 (1) (b) and 27 of the Arms Act, 1959 and sentenced to suffer R.I. for four months and fine of Rs.1,000/- i.d., thereof, RI for further period of 15 days for commission of offence punishable under Section 120B IPC, RI for ten years and fine of Rs.5,000/- i.d., thereof RI for further period of three months for commission of the offence punishable under Section 364A read with Sections 120B and 511 IPC, RI for five years and fine of Rs.1,500/- CR.A/265/2004 3/58 JUDGMENT i.d., thereof RI for further period of 1 ½ months for commission of the offence punishable under Section 387 read with Sections 120B and 511 IPC, RI for five years and fine of Rs.1,500/- i.d., thereof, RI for further period of 1 ½ months for commission of the offence punishable under Section 25 (1) (a) of the Arms Act, RI for three years and fine of Rs.1,000/- i.d., thereof RI for further period of one month for commission of the offence punishable under Section 25 (1) (b) of the Arms Act and RI for three years and fine of Rs.1,000/- i.d., thereof, RI for further period of one month for commission of the offence punishable under Section 27 of the Arms Act. It is also ordered that all the substantive sentences imposed on the accused shall run concurrently. 2. At the outset, be it noted that Fazlu-Ur- Raheman alias Fazlu alias Sing alias Mona alias Tanvir alias Doctor Abdul Basitali, originally belonged to Darbhanga, Bihar and at present at CR.A/265/2004 4/58 JUDGMENT Dubai, Arabstan hatched the conspiracy to kidnap for ransom but he could not be arrested and, therefore, six accused persons who were arrested came to be charge-sheeted and prosecution was launched against them, and were charged for commission of the offences punishable under Sections 364A, 387, 120B and 511 IPC and also under Sections 25 (1) (a), 25 (1) (b) and 27 of the Arms Act. During the course of the trial, accused No.6 has died, therefore, prosecution launched against him came to be abated. Since there is no evidence against accused Nos.4 and 5, they came to be acquitted. Accused No.3 absconded during trial. Therefore, the trial court has ordered to keep the case pending against Fazlu Raheman who has not been arrested till today and accused No.3 who has been absconded during trial, till they are arrested. 3. The prosecution case as disclosed from the FIR and unfolded during trial, is as under: CR.A/265/2004 5/58 JUDGMENT 3.1. P.W.1, Pradip S. Mehta, a resident of 16, Jay Bungalows, Amavasyam Society, Opp. Lav-kush Society, Ring Road, Satellite, Ahmedabad, doing business of export and import in the name and style of Vishal Export Overseas Limited, Toran Dinning Hall Street, Opp. Sales India, Navrangpura, Ahmedabad, lodged FIR with DCB Police Commissioner, Ahmedabad City, wherein it is, inter alia, stated by him that for doing business he used to come to his office in Maruti Zen Car, every day at 10 A.M. and the car was driven by driver Laxmanbhai Ahir and he remain in the office till 8.30 P.M. 3.2. On 1.5.2000 when he was in the office, he received a telephone call on his telephone No. 7543251 between 1.30 and 2 P.M. From the opposite side, a person speaking in Hindi introduced himself saying Fazlu speaking from Dubai. He asked P.W.1, how are you Pradipji. He inquired as to whether did P.W.1 know him. P.W.1 told in Hindi that he does not know him. The person from CR.A/265/2004 6/58 JUDGMENT the other side said that P.W.1 may ask Vasant Adani, the brother of Gautam Adani to know as to who is Fazlu and to give him Rs.50 lakhs. P.W.1 told him that he has nothing to do with Fazlu. On saying so Fazlu cut the telephone. 3.3. It is further case of the prosecution that again on 6.5.2000 when P.W.1 was present in the office at that time, at about 2-2.30 P.M. the telephone call came on the same telephone which P.W.1 received. The person making the telephone call said to P.W.1 in Hindi that he is Fazlu speaking and inquired “Idiot why have you not telephoned up till now” and P.W.1 said that he had gone out of State for business and so he had not telephoned. The caller threatened as to what have he thought about money. The caller informed that P.W.1 has still twenty four hours time. P.W.1 may call for as many security as he likes but he will definitely take Rs.50 lakhs from him. Fazlu also informed P.W.1 that his persons are ready and he shall get him kidnapped and killed CR.A/265/2004 7/58 JUDGMENT by firing. 3.4. It is further case of the prosecution that thereafter on 8.5.2000 when P.W.1 was in his office between 2 and 3 P.M. the telephone call came on his aforesaid telephone and he received the same. Fazlu was speaking in Hindi from the other end and threatened that P.W.1 will realize when he receive a bullet. Fazlu threatened P.W.1 saying that P.W.1 should give Rs.50 lakhs otherwise it will not be proper. His persons have reached around P.W.1 and he can do anything. If P.W.1 wants his safety, give rupees fifty lakhs to Fazlu. 3.5. It is further case of the prosecution that P.W.1 therefore personally met the Deputy Police Commissioner Surelia, crime Branch on 9.5.2000 and informed him the aforesaid facts. While informing Surelia about the said facts, it came to the knowledge of P.W.1 that Fazlu Raheman has also given threat to other rich businessmen CR.A/265/2004 8/58 JUDGMENT and industrialists of Ahmedabad, named Jayant Somabhai Patel of Tea Merchant C Somabhai, (2) The proprietor of Unjha Pharmacy, (3) Piyush Desai of Gujarat Tea traders and (4) Jagdishbhai Patel of Sarvottam Sugar. Fazlu Raheman had also demanded ransom from them. Therefore, PW 1 was asked by Surelia to go to crime Branch. P.W.1 therefore appraised about the said incident to crime branch. The crime branch therefore arranged police personnels to keep a secret watch for the safety of P.W.1. 3.6. As per further case of the prosecution P.W.1 went out of station for business purposes on 13.5.2005 and thereafter he went to his in- laws at Botad. At that time Fazlu Raheman telephoned at his office between 1.45 and 2 P.M which was attended by Dipakbhai, the younger brother of P.W.1. Dipakbhai thereafter telephoned to P.W.1 at his in-laws and informed that there was a phone call from Fazlu Raheman and Fazlu Raheman asked for how many days he would remain CR.A/265/2004 9/58 JUDGMENT away? Close the matter otherwise he will realize on receiving a bullet. Dipakbhai informed P.W.1 about these threats and P.W.1 conveyed the same to the police. The police instructed him to get in touch with them immediately and the attempts were in progress by the police. On the day of the incident the police informed the complainant that an information was received that Fazlu Raheman's persons are in Ahmedabad and so P.W.1 should be careful and he was also informed that the P.W.1 is under the close watch of the police. 3.7. It is further case of the prosecution that on the day of the incident, at about 8.30 evening when P.W.1 was about to board his car which was parked below his office, two unknown persons tried to drag him. At that time Assistant Police Commissioner Subhash Trivedi, PSI DS Goswami, PSI KS Desai and PSI RB Joshi and other team of police personnels arrived there immediately and cordoned and caught both of them and a third person standing nearby. All the said CR.A/265/2004 10/58 JUDGMENT three persons took out country made revolvers ('tamancha') kept on their waist and scuffle took place. The police personnels dashed the said three persons on the ground by using minimum force and caught them and they asked their names and addresses which are as under: (i) Jhaur Ahmed alias Mahesh Agrawal, son of Mashrud Ahmed Pathan, residing at Room No.4, Lane No.5, Bahadurganj, Taluka Bahadurganj, District Shahjahan, Uttarpradesh. (ii)Akhilesh alias Mukesh Agrawal alias Ajar sing alias Raj Siward's, son of Hailing Hildebrand Siward's, residing at Motijil colony, Lucknow (U.P.) (iii) Prashantkumar alias Raju son of Sitaram Chauhan, residing at village Kasba Kalpi Taluka Kalpi, District Nilone (UP). 3.8. As per further case of the prosecution, three tamanchas and fifteen live cartridges were found from the three persons. In sum and substance, Fazlu Raheman, demanded a big amount CR.A/265/2004 11/58 JUDGMENT of Rs.50 lakhs by giving threats of kidnapping P.W.1 and his brother Dipakbhai and witnesses. As they did not give the amount, original accused Nos.1, 2 and 3 tried to kidnap P.W.1 at 8.30 P.M. when he was about to sit in his car. The three accused persons are arrested with loaded tamanchas. At the time of arrest of the accused Nos.1 to 3, panchnama with regard to recovery of tamancha with live cartridges was drawn by P.W.14, Subhash Trivedi. 3.9. A complaint in this regard was lodged before P.W.14, Subhash Trivedi, ACP Ahmedabad City which was registered vide CR No.I-14 of 2000 at DCB Ahmedabad City Crime Branch against the accused Nos.1, 2 and 3 for commission of the offences under Sections 364A, 387, 120B, 511 IPC and 25(1) (a), 25(1)(b) and 27 of the Arms Act, which is on record at Ex.66. 3.10. Pursuant to the registration of the complaint, investigation was started by P.W.17 BR CR.A/265/2004 12/58 JUDGMENT Patel. During the course of investigation, he recorded the statement of witnesses and the police remand of the accused was obtained. He has also drawn two panchanamas Ex.83 and 85 of the finger print of the accused on the Maruti Car of the complainant in presence of Panchas. 3.11. Thereafter the investigation was handed over to P.W.18, Ashrafkhan A Chauhan, who interrogated the three accused persons with regard to involvement of other accused. During the course of interrogation, it was brought to his notice that accused Nos.4, 5 and 6 were also involved in the said scam. Therefore, he informed his superior. He thereafter inquired from Hotel Sahil, Hotel Chirag Palace, Hotel Jasraj, etc. where the accused stayed and recorded the statement of the managers of those hotels. Statement of the employees working in the office of P.W.1 were also recorded, statement of Dipakbhai, brother of P.W.1 was also recorded. He also recorded the statement of other persons of CR.A/265/2004 13/58 JUDGMENT Ahmedabad who have received such type of telephone calls from Fazlu Raheman. He also arrested the remaining three accused Nos.4, 5 and 6 and thereafter he sent the muddamal to FSL. 3.12. On receipt of the report from the FSL and as sufficient incriminating evidence was found against all the accused, he filed charge sheet against all the accused for commission of the offences punishable under sections 120B, 364A, 387 read with 120B and 511 IPC and also under Sections 25 (1) (a), 25 (1) (b) and 27 of the Arms Act before the Metropolitan Magistrate (Court No.11), Ahmedabad. 3.13. As the offences with which the accused were charged are exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the City Sessions Court, Ahmedabad. 3.14. On committal, the learned Additional CR.A/265/2004 14/58 JUDGMENT Sessions Judge (Court No.6), City Sessions Court, Ahmedabad, to whom the case was made over for trial, framed charge against all the accused for commission of the offences under sections 120B, 364A, 387 read with 120B and 511 IPC and also under Section 25(1) (a), 25 (1) (b) and 27 of the Arms Act. The charge was read over and explained to them. As the accused persons pleaded not guilty to the charge and claimed to be tried, they were tried in Sessions Case No.77 of 2001. 3.15. To prove the culpability of the accused, the prosecution has examined in all 18 witnesses and relied upon their oral testimonies, the details of which are as under: P.W. No. Name Status Ex. No. Page Nos. 1 Pradip S Mehta Complainant 65 153- 190 2 Jayantbhai S Patel Owner of Somabhai Tea Company 70 191- 210 3 Govindbhai H Patel Panch of Car 82 211- 220 CR.A/265/2004 15/58 JUDGMENT P.W. No. Name Status Ex. No. Page Nos. 4 Narendrabhai B Kahar Panch of car 84 221- 224 5 Kanaiyalal J Auditya Panch 86 225- 226 6 Jagdishbhai S Patel Proprietor, Jagdishchand ra and company – Dealer in sugar 92 227- 236 7 Kiranbhai B Shah Owner of Laxmi Telcom. Near Jasraj Hotel 100 237- 240 8 Mehul S Gupta Owner of Mukesh Telecom. Near Jasraj Hotel 101 241- 244 9 Dipakbhai P Gangnani Estate Broker 102 245- 248 10 Kalubbhai S Desai PSI Crime Branch, Ahmedabad City, Member of raiding party 109 249- 288 11 Devendragiri H Goswami PSI Crime Branch, Ahmedabad City, Member of raiding party 117 289- 310 12 Darshan C Shah Panch – recovery of weapons 133 311- 316 13 Maheshbhai H Dave Finger Print Expert 135 317- 336 CR.A/265/2004 16/58 JUDGMENT P.W. No. Name Status Ex. No. Page Nos. 14 Subhashbhai G Trivedi ACP Crime Branch Ahmedabad City, Member of the raiding party 148 337- 362 15 Rameshkumar B Joshi PSI Crime Branch Ahmedabad City, Member of raiding party 166 363- 382 16 Hasmukhbhai K Parmar Panch of Panchnama of the office of Vag-Bakri Tea 168 383- 386 17 Bhupendrakumar R Patel, PI Crime Branch Ahmedabad City, Investigatin g Officer who conducted investigatio n till 17.5.2000 173 387- 396 18 Ashrafkhan A Chauhan PI Crime Branch Ahmedabad City, Investigatin g Officer who conducted investigatio n from 18.5.2000 180 397- 412 CR.A/265/2004 17/58 JUDGMENT 3.16. To prove the charge levelled against the accused persons, the prosecution has also produced number of documents and relied upon the contents of the same such as, complaint, panchnama of the recovery of tamancha and cartridges from the accused, panchnama of the motor car as well as scene of offence, opinion of finger print expert, panchnama of the office of Karsanbhai Patel of Nirma and FSL report, the relevance of which for deciding the case will be discussed at the appropriate time hereinafter in this judgment. 3.17. After recording the evidence of the prosecution, the trial court explained to the accused persons the circumstances appearing against them in the evidence of the prosecution and recorded their further statement under Section 313 of the Code. The accused persons denied the case of the prosecution in toto and reiterated that they are innocent and false case CR.A/265/2004 18/58 JUDGMENT has been filed against them. In further statement of the accused, A-2 has stated that on 14.5.2000 he was staying at Hotel Jasraj from where he was illegally arrested and taken into custody. The police had beaten him. No tamancha was recovered from him. He did not know Fazlu Raheman. He has filed a complaint for beating against the police before the Magistrate when he was produced before the Magistrate and therefore he was sent by the Magistrate for treatment. False case has been filed against him. He has no connection with the incident. However, he did not produce any evidence nor did he examine any witness in support of his defence. 3.18. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court held that so far as original accused Nos.4 and 5 are concerned, the prosecution has failed to prove the charge levelled against them and therefore they came to be acquitted. So far as original accused Nos.1 and 2 are concerned, the CR.A/265/2004 19/58 JUDGMENT trial court observed that there is ample and voluminous evidence that they and accused No.3 who has absconded during trial hatched the criminal conspiracy with Fazlu Raheman for collecting ransom tried to kidnap P.W.1 with a view to get ransom of Rs.50 lakhs on 15.5.2000 when P.W.1 was about to sit in the car and in the trap arranged by the police department all the three were caught red-handed by the police officers with tamancha. Therefore, the charge against them that they have given threat of kidnapping P.W.1 with a view to collect ransom of Rs.50 lakhs is established and the prosecution has also established the charge against them for trying to kidnap P.W.1 and also for threatening to cause death or hurt to him in order to commit extortion and to collect ransom from him. Therefore complicity of accused Nos.1 and 2 is established and in doing so they also tried to attack with tamancha. Therefore, complicity of the accused for commission of the offences as per the charge levelled against them has been duly CR.A/265/2004 20/58 JUDGMENT proved. The trial court therefore held them guilty for the said charges and convicted accused Nos.1 and 2 for commission of the offenecs punishable under Sections 120B, 364A, 387 read with 120B, 511 IPC and 25(1)(a), 25 (1)(b) and 27 of the Arms Act and sentenced them to suffer RI to which reference is made in earlier paragraphs of this judgment, giving rise to this appeal at the instance of the original accused No.2. The trial Court also ordered to keep the case pending against Fazlu Raheman who has not been arrested till today and accused No.3 who has been absconded during trial, till they are arrested. 4. So far as A-1 is concerned, it is stated at the bar by Mr. KT Dave, learned APP for the respondent State of Gujarat that he has not chosen to file any appeal against the conviction and sentence passed against him. The said fact he has verified from the jailer, Ahmedabad Central Jail, who has recorded statement of accused No.1 CR.A/265/2004 21/58 JUDGMENT who is languishing in Ahmedabad Central Jail. He has also produced a statement of accused No.1 for perusal of this Court which has been taken on record of the case. Besides this, this Court has also called the information from the registry. The registry has also confirmed the said fact that A-1 has not filed any appeal against the order of conviction and sentence recorded against him before this Court. Mr. KT Dave has also stated that no appeal is filed against accused Nos.4 and 5 who have been acquitted of the offences with which they were charged. Therefore, this Court has examined the case against accused No.2 only. 5. Mr. YS Lakhani, learned advocate for the accused, has contended that the complaint was registered at 22.30 hours by the PSO whereas panchnama Ex.150 was started at 22.15 hours wherein Crime register number of the complaint was mentioned by the Assistant Commissioner of Police. Thus the mentioning of the CR No. in the CR.A/265/2004 22/58 JUDGMENT panchnama which was prepared prior to registration of the offence, speaks a lot about foul play on the part of the police officers, whereby the accused was falsely roped in the commission of serious offences and speaks about the dishonest investigation made by DCB and they have falsely implicated the accused in the case. It is also highlighted by him that it is the case of the accused from the beginning that the accused was arrested from Hotel Jasraj on 14.5.2000 and was beaten up badly by the police officers and thereafter he was falsely implicated in the commission of the alleged offences. The said fact is specifically mentioned by him in his further statement under section 313 of th Code along with the documentary evidence in the from of medical certificate issued by Medical Officer (GMS) Ahmedabad Central Jail. The accused has also preferred a complaint against the police officers when he was produced before the Magistrate for the first time. At that time also the accused was sent for medical examination to CR.A/265/2004 23/58 JUDGMENT Civil Hospital, Ahmedabad. However, the said injury certificate issued by the civil Hospital was not provided to the accused and the said complaint against the police officers is pending in the Metropolitan Magistrate's Court. Therefore also the investigation does not appear to be bona fide. It is also asserted by him that no independent witnesses though available are examined by the prosecution. It is also pointed out by him that no statement of telephone record, though available with the investigating officer, was ever provided to the accused or produced before the trial court. Thus the oral testimony of the complainant is not corroborated by any documentary evidence, though the same, according to the police officers, was available with the investigating officer. He has also contended that no person from Jasraj Hotel is examined by the prosecution. No record of telephone calls being made is collected by the investigating officer from the telephone booth operators. It is also pointed out by him that there is nothing on CR.A/265/2004 24/58 JUDGMENT record that the accused had any connection whatsoever with Fazlu Raheman who allegedly demanded ransom from the complainant. He has also contended that the circumstances in which the finger prints are obtained from the car of the complainant are fishy and therefore the same cannot be relied upon. The complainant in his cross-examination has categorically stated that the car of the complainant was not taken into custody by the police officer. He has further stated that he did not take his car to the police station. It has been further stated by him that the car was kept open laying at his office and that it was kept there for three days whereas according to the investigating officer the said car was taken to the police station on 16.5.2000. Therefore, there is a contradiction in this regard. Lastly it is also asserted that though the fact regarding commission of cognizable offence was disclosed to the ACP as well as DCP no complaint whatsoever was registered by them, in gross violation of the provisions of the Code. CR.A/265/2004 25/58 JUDGMENT Not even an entry to that effect was made anywhere at any point of time. There is also no evidence on record that the alleged raid was conducted at any point of time. On aforesaid premises, according to Mr. Lakhani the whole case is concocted and the accused have been falsely roped in the serious crime. 5.1. On the aforesaid premises, according to him, the judgment and order of conviction and sentence for commission of the offences for which the accused was charged is contrary to the evidence on record and, therefore, the same deserves to be quashed and set aside. He therefore urged to allow the appeal and acquit the accused of the offenecs with which he