Case: Harivadan Babubhai Patel Vs. State Of Gujarat

on 23.1.2006, deceased, Ashokbhai Nanubhai, accompanied by his brother-in-law, Kantibhai Manilal Patel, PW-13, had gone to Udwada R.S. Zanda Chowk on his scooter and went to a tea stall where the deceased was engaged in a conversation with one Durlabhbhai Kikubhai Bhandari,PW-15. Durlabhbhai took the deceased near the railway crossing where 3-4 persons were waiting in a Maruti car. As the prosecution story further gets unfurled, the deceased had discussion with them and, thereafter, those persons informed that they would take the deceased to the house of Gulia at Valsad and, accordingly, they took him in the Maruti car bearing No. GJ-15-K-9263. They had provided one mobile number stating that if there would be any delay in the return of the deceased, they could be contacted on that mobile number. The brother-in-law of the deceased supplied that mobile number to his sister Madhuben, PW-14, and went to Daman for his work and came back in the evening about 5.00 p.m. Thereafter, he enquired from his sister whether she had talked with the deceased on the given number or not and he was informed by her that the mobile phone was picked up by different persons who spoke differently and, at a later stage, it was switched off. Someone speaking on the mobile had also enquired from Madhuben whether she had gone to the police station. Coming to know about the situation, Kantibhai made enquiry and searched about the deceased for two days and when the deceased did not return, he lodged a complaint at Pardi Police Station on 25.1.2006 which was registered as C.R. No. 1-12/2006. After the criminal law was set in motion, the investigating agency examined the witnesses and after coming to know about the place where the accused persons had hidden themselves, the Investigating Officer arrested them and they confessed before the police that they had wrongfully confined the deceased and assaulted him. They also confessed that they had pressurized the deceased for returning the money as the money was paid to the passport agent, namely, Bharatbhai, who was introduced by the deceased, in the presence of one Ashokbhai alias Amratbhai. They also stated that they had assaulted the deceased on 23.1.2006 and when the deceased succumbed to the injuries, they buried the dead body in an agricultural farm. At the instance of the accused, the dead body of the deceased was taken out in the presence of the panch witnesses. Discovery panchnama was prepared in presence of the Executive Magistrate. After carrying out the seizure of footwear, clothes and jute old blanket, samples of the same were sent for forensic examination and thereafter, the dead body, after being identified by wife Madhuben, was initially sent to the Dungri Primary Health Centre for post mortem, but as the Medical Officer opined that it was to be done by a forensic expert, it was sent to Surat Civil Hospital Forensic Department. The identification of the accused persons was carried out by the Executive Magistrate. The Maruti car which was used for the offence was taken into possession. The investigating agency examined number of witnesses and, after completing the investigation, placed the charge-sheet before the competent court for all the offences in respect of A-1 to A-3 and as far as A-4 was concerned, he was charge-sheeted for the offence punishable under Section 201 IPC.4. The accused persons pleaded innocence and false implication and claimed to be tried.5. The prosecution, in support of its case, examined 19 witnesses and got number of documents including the FIR, discovery panchnama, panchnama of the seized articles, the FSL report and the serology report and panchnama of the test identification parade, exhibited. In the statement under Section 313 CrPC, the accused persons made a bald denial of every aspect and did not offer any explanation and chose not to adduce any evidence.6. The learned trial Judge, on the basis of the material brought on record, found A-1 and A-2 guilty of all the offences and the High Court affirmed the conviction and sentence in respect of A-1 only as stated hereinbefore.

Reasoning: We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside.