Case: Abdulvahab Abdul Majid Shaikh  Vs. State Of Gujarat

2. There were 11 accused persons before the Designated Court charged for various offences under the Indian Penal Code (IPC), TADA Act, Indian Passport Act, Motor Vehicles Act and Bombay Police Act. By the impugned judgment,were convicted for the offences punishable under Section 120 B IPC and under Sections 342, 365 and 384 IPC read with Section 120 B IPC, but all the accused were acquitted of various other charges framed against them. Out of the 5 accused convicted by the designated court, 3 of them have filed Criminal Appeal No. 525/2004 and the two other appeals before us have been preferred by the State of Gujarat challenging the acquittal of the other accused.3. The case of the prosecution was that PW 3 Jayendra Mahendra Tripathi was a builder having a construction company of his own. He was also working as a teacher during the relevant period and staying in Kundan Apartment in Vasna area in Ahmedabad. The office of the construction company was in Deep Apartment at Vasna. He used to go to his office in the evening. On 19.1.1994, he left his house at 4.00 p.m. on way to the office. Walking towards office, when he reached the place near Vasna Bus Stand, a Maruti van came and stopped near him. He was shown a visiting card by the occupants of the van to enquire about the address mentioned thereon. While PW 3 Jayendra Mahendra Tripathi was reading the visiting card, somebody pushed him from behind and he was forced into the Maruti van. Inside the van, his head and face were covered with a woolen cap.persons were sitting in the Maruti van and after the victim was forced into the van, the van moved and travelled forminutes and eventually he was taken to the cellar of a building. There, the victim gave the telephone number of his construction company, but as there was no response from that telephone number, he gave the telephone number of his friend K.K. Vaidh. PW 3 Jayendra Mahendra Tripathi was kept in a room in that building and according to the prosecution, the accused persons made a demand of Rs. 5 lakhs from the partners of the construction company.4. The partners of the construction company withdrew Rs. 10 lakhs from the Union Bank of India and a relative of the victim, namely, PW 4 Kirtikumar Tapishanker Tripathi, was asked to come with Rs. 3 lakhs near Anjali Cinema on 19.1.1994 at an evening time by the victim himself who spoke to him on telephone. He was asked to come by a rickshaw and to handover Rs. 3 lakhs to a person who would identify himself by a code (No. 500). He came with Rs. 3 lakhs near Anjali Cinema Square Road. A person came on a motorcycle, identified himself with the aforesaid code and the bag containing Rs. 3 lakhs was given to that person.5. PW 2 Harshad Premjibhi Gajjar gave a complaint to the police on the same day, i.e. 19.1.1994. A case was registered by PW 14 Police Inspector and investigation started. During investigation, the house ofSalim Haveliwala was searched on 23.3.1994 and a sum of Rs. 50,000/was recovered. Thereafter, the house of his7 Yakub Ganibhai was also searched and Rs. 1,75,000/was recovered. Bundles of notes recovered from his house were showing the slips of Union Bank of India, C.G. Road, Relief Road and Rajpur branches, Ahmedabad. During investigation,Abdulvahab Abdulmajid Shaikh,Mohammadrafik Abdulrahim Shaikh,Abdulsattar @ Sattar Ghanti,Mahammadsalim @ Salim Tolo andNajirmahammad Alimahammad Vora were arrested. Pursuant to the information furnished byMahammadsalim @ Salim Tolo, six cartridges were recovered from a heap of bricks. On 8.9.1994, the investigation was taken over by ACP Shri B.R. Patil. He arrestedMusakhan @ Babakhan Ismailkhan Pathan. This accused expressed his desire to give a confession andMusakhan @ Babakhan was produced before PW 1 DCP, Shri Suroliya. Shri Suroliya recorded the confession statement ofOn the side of the prosecution, 18 witnesses were examined and series of documents were produced by the prosecution as exhibits. The appellants, when questioned under Section 313 Cr. PC, completely denied their involvement in the case.Salim Haveliwala andYakub Ganibhai admitted the recovery of Rs. 50,000/and Rs. 1,75,000/respectively from their houses, but contended that the money belonged to them.Musakhan @ Babakhan stated that he was never produced beforeDCP, Shri Suroliya and denied having given any statement before him.7. The Designated Judge, though accepted the evidence of recovery of the money from the two accused, held that the prosecution could not prove their identity and hence no importance was attached to the recovery effected by the police. In the appeals filed by the State, the main thrust has been given to the acquittal of these accused persons and it has been urged that the Designated Judge failed to appreciate the evidence in proper perspective. The Designated Judge relied on the confession statement given byMusakhan @ Babakhan and it was held that the confession given byMusakhan @ Babakhan has been supported by other items of evidence and on that basiswere convicted for some of the offences charged against them.

Court's reasoning:
We do not find much force in this contention. The Police Officer was empowered to record the confession and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact thatMusakhan @ Babakhan retracted subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence to the accused to make the confession.Musakhan @ Babakhan who was questioned under Section 313 Cr. PC had no case that he was subjected to any third degree treatment or threatened with dire consequences. He only stated that he had not given any statement before14. In the instant case, there is substantial corroboration of the confession ofMusakhan @ Babakhan by other items of evidence.On consideration of confession statement, which is amply corroborated by other items of evidence, we have no hesitation in accepting the same as truthful and voluntary. The complicity ofin the abduction is proved beyond reasonable doubt.17. In the result, the conviction of these three appellants for the offences punishable under Sections342, 365, 384 read with Sectionof the IPC is only to be confirmed. Criminal Appeal No. 525 of 2004 would accordingly stand dismissed and the appellants would surrender to their bail bonds.Criminal Appeal No.Moreover, in the confession statement,did not involve these accused. In the above circumstances, the acquittal ofwas correct. The appeal is without any merit and is dismissed accordingly.Criminal Appeal Nos.But the prosecution could not adduce any evidence to prove that these accused had committed the offences charged against them. The act of kidnapping for extorting ransom from the victim cannot be termed as an act committed "with intent to overawe the Government as by law established". There is also no evidence to show that the accused intended to strike terror in the locality. Their primary objective was to extort money from the victim. There is also no evidence to show that these accused were supporting any communal elements or intended to create disharmony among different sections of the people. These are all main ingredients to constitute offence punishable under Section 3 of the TADA Act. So also, there is no evidence to show that these accused were in possession of any arms or ammunition during the commission of the crime, for which they have been charged.