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2016 DIGILAW 507 (GUJ)

State of Gujarat v. Kanubhai Prabhudas Patel

2016-03-02

M.R.SHAH, MOHINDER PAL

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and having dissatisfied with the judgment and order of acquittal dated 29.9.2004 passed by learned Additional Sessions Judge, Fast Track Court, Gandhinagar in Sessions Case No. 12 of 2004 by which the learned trial Court has acquitted the respondents-original accused for the offences under sections 363, 364-A, 365 & 114 of the Indian Penal Code (IPC), the State has preferred the present Criminal Appeal under section 378 of the Code of Criminal Procedure (Cr.P.C). 2. As per the case of the prosecution, son of the complainant, namely, Jayeshbhai aged 12 years and prosecuting his studies in VII Std., was kidnapped at about 07.00 p.m. on 27.11.2000 when he was riding his by-cycle after returning from tuition. According to the case of the prosecution, while the victim Jayesh returning from tuition from Sector 19, Gandhinagar, accused came in a white Maruti Fronti Car and forcibly lifted victim Jayesh in the said Maruti Car and he was kidnapped. According to the prosecution, his eyes were wrapped with a bandage. According to the case of the prosecution, the accused first tried to contact the father of the victim, namely Vipinbhai, and demanded Rs. 10 lakhs as ransom money. Thereupon, an FIR came to be lodged, initially against unknown persons, for the offences under sections 363, 364-A, 365 and 114 of the IPC. The FIR was investigated by one Mr. Kartikbhai K. Rathod, Police Inspector, Section-21 Gandhinagar Police Station. According to the case of the prosecution, during the course of investigation, the original complainant received information from one Mithalal of village Palachar and said Mithalal told him that his son is with him at village Palachar. The grandfather of the victim Jayesh and some other persons went to the place of Mithalal along with the Investigating Officer and got custody of victim Jayesh. The Investigating Officer recorded statements of concerned witnesses. He also recovered the mobile phone alleged to have been used by the accused. He also recovered the Maruti Car alleged to be used by the accused in the commission of the offence from the place of the brother-in-law of original accused No. 1. A yadi was thereupon sent to the Executive Magistrate for conducting identification parade. First T.I. Parade was conducted by the Executive Magistrate, named Mr. He also recovered the Maruti Car alleged to be used by the accused in the commission of the offence from the place of the brother-in-law of original accused No. 1. A yadi was thereupon sent to the Executive Magistrate for conducting identification parade. First T.I. Parade was conducted by the Executive Magistrate, named Mr. Shankarbhai Jemurbhai Rabari on 05.12.2000 in which the victim identified one Shaileshbhai Narsinhbhai Patel-original accused No. 3 and Rohitkumar Hirabhai Pate-original accused No. 4. Second T.I. Parade was conducted by the very Executive Magistrate on 13.12.2000 in which victim Jayesh identified one Shaileshkumar Prabhudas Patel-original accused No. 5. He prepared panchnama of the T.I. Parade. During the investigation, Jasmin Sureshbhai Patel, Narsinhbhai Maganbhai Patel, Kanu Prabhudas Patel and Laxman Solanki were arrested on 1.12.2000. One Shailesh Narsinhbhai Patel and Rohitkumar Hirabhai came to be arrested on 03.12.2000 and thereafter Shailesh Prabhudas Patel, accused No. 5, came to be arrested on 06.12.2000. Upon conclusion of the investigation, the Investigating Officer filed chargesheet against five persons only (though during the investigation, the Investigating Officer arrested in all 7 persons). The investigating Officer filed chargesheet against Kanu Prabhudas Patel, Jasmin Sureshbhai Patel, Shailesh Narsinhbhai Patel, Rohitkumar Hirabhai Patel and Shaileshkumar Prabhudas Patel for the offences under sections363, 364-A, 365 & 114 of the IPC. It appears that, with respect to other two persons, the Investigating Officer did not file chargesheet, however filed a report under section 169 of the Cr.P.C. As the case of exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Sessions Court, Gandhinagar. It was transferred to the Court of learned Additional Sessions Judge, Fast Track Court, Gandhinagar. Learned trial Court framed charges against all the accused for the offences under sections 363, 364-A, 365 & 114 of the IPC. All the accused pleaded not guilty and, therefore, all of them came to be tried by learned trial Court for the aforesaid offences. 3. To prove the case against the accused, the prosecution examined as many as following 21 witnesses: 1. Pritiben Narendrasinh 2. Ghanshsyambhai Kanaiyalal Purohit 3. Panar Kishorchandra Prabhudas 4. Mathurbhai Kanabhai Patel 5. Ranchhoddas Khodidas Patel 6. Dahyabhai Varvabhai Patel 7. Mithalal Manilal Shah 8. Kamal Girishbshai Patel 9. Ambalal Dahyabhai Patel 10. Ramsinh Shankersinh Thakore 11. Mohmadbdhai Ismailbhai Patel 12. Shakarbhai Jemurbhai Rabari 13. Chanduji Pratapji Thakore 14. Rupsanghji Manaji Thakore 15. Dasmukhbhai Govindbhai Patel 16. Pritiben Narendrasinh 2. Ghanshsyambhai Kanaiyalal Purohit 3. Panar Kishorchandra Prabhudas 4. Mathurbhai Kanabhai Patel 5. Ranchhoddas Khodidas Patel 6. Dahyabhai Varvabhai Patel 7. Mithalal Manilal Shah 8. Kamal Girishbshai Patel 9. Ambalal Dahyabhai Patel 10. Ramsinh Shankersinh Thakore 11. Mohmadbdhai Ismailbhai Patel 12. Shakarbhai Jemurbhai Rabari 13. Chanduji Pratapji Thakore 14. Rupsanghji Manaji Thakore 15. Dasmukhbhai Govindbhai Patel 16. Jyotsnaben Hasmukhbhai Patel 17. Jayeshbhai Hasmukhbhai 18. Bipinbhai Govindbhai Patel 19. Gordhanbhai Bapudas Patel 20. Chadeerabhai Sajabhai 21. Kantibhai Kikaabhai Rathod. 4. Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidences: 1. Ex. 53 Complaint of Hasmukhbhai Gordhanbhai 2. Ex. 40 Panchnama drawn while taking custody of cycle, plastic bag and books. 3. Ex. 41 Panchnama of the place of incident 4. Ex. 30 Panchnama of the articles given to accused by the victim jayesh. 5. Es. 42 Medical Certificate of jayesh Hasmukh Patel 6. Es. 32 Panchnama of the field where victim Jayesh was kept at night by the accused. 7. Ex. 26 Panchnama of taking custody of the mobile phone used by the accused in the offence. 8. Ex. 27 Panchnama of taking in custody of the Maruti Car used by accued Kanubhai Prabhudas in the offence 9. Ex. 21 Panchnama regarding physical condition of accused Shailesh Narsinhbhai and Rohitkumar Hirabhai 10. Ex. 45 Panchnama of identification parade of accused Shaileshkumar and Rohitkumar. 11. Ex. Panchnama of physical condition of accused Shaileshkumar and taking custody of Herohonda Splendor. 12. Ex. 37 Panchnama of taking possession of the scooter used by Navnitbhai Patel in the offence. 13. Es. 28 Panchnama of taking possessionof Mobile and Maruti Fronti Var used by accused Shaileshkumar in the offence. 14. Ex. 39 Panchnama of identification parade in respect of accued Shaileshkumar Prabhudas. 5. After closing pursis submitted by the prosecution, further statements of the accused came to be recorded under section 313 of the Cr.P.C. All the accused have stated that they have not committed any offence as alleged. All the accused gave their separate further statements also. Original accused No. 1-Kanubhai Prabhudas Patel specifically stated in his further statement that he had not shown the Maruti Fronti Car either to the police or any person of the panchas. It was stated that panchwitness Ranchhod Patel was the friend of complainant Hasmukhbhai Govindbhai and, therefore, at his instance the panchwitness has given false evidence. Original accused No. 1-Kanubhai Prabhudas Patel specifically stated in his further statement that he had not shown the Maruti Fronti Car either to the police or any person of the panchas. It was stated that panchwitness Ranchhod Patel was the friend of complainant Hasmukhbhai Govindbhai and, therefore, at his instance the panchwitness has given false evidence. Original accused No. 2 stated in his further statement that he has been falsely implicated in the case and, though there was no evidence against him, he was forcibly arrested. He also stated that as such he is a civil engineer and a partner in the motorcycle dealership at Himatnagar and his father is having an agency of Kinetic Scooters. Original accused No. 3, 4 & 5 also gave their further statements denying any offence having been committed by them as alleged. 6. After conclusion of the trial, by the impugned judgment and order, learned trial Court has acquitted all the accused for the offences under sections 363, 364-A, 365 & 114 of the IPC. 6.1 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned trial Court, the State has preferred the present criminal appeal under section 378(1)(3) of the Cr.P.C. 7. Mr. Dabhi, learned APP appearing for the State, has vehemently stated that, in the facts and circumstances of the case and considering the evidence on record, the learned trial Court has materially erred in acquitting the original accused. 7.1 Learned APP, appearing for the State, submitted that in the present case the prosecution has been successful in proving the case against all the accused by examining 21 prosecution witnesses and producing on record the relevant documentary evidence. It is submitted that, therefore, the learned trial Court has materially erred in acquitting the original accused. 7.2 It is further submitted that the learned trial Court has not properly appreciated the deposition of the victim Jayesh who has been examined at Exh.55 and who as such can be said to be an important eye witness. It is submitted that the trial Court has materially erred in not believing the deposition of the victim Jayesh and/or discarding his deposition. It is submitted that the trial Court has materially erred in not believing the deposition of the victim Jayesh and/or discarding his deposition. It is submitted that, though the said witness had added certain more things than stated in the complaint and/or before the police, the learned trial Court ought to have appreciated that he being a child there is bound to be some contradictions. However, it is submitted that by that itself the entire evidence of victim Jayesh was not required to be discarded in its entirety. 7.3 It is further submitted that in the present case as such the prosecution has been successful in proving that victim Jayesh was kidnapped in a Maruti Car. It is submitted that the Maruti Car used in the commission of the offence was recovered from the house of the brother-in-law of original accused No. 1, and the brother-in-law of original accused No. 1 in his deposition has categorically stated that original accused No. 1 kept the car at his residence. It is submitted that, therefore, the learned trial Court has materially erred in acquitting original accused No. 1. 7.4 It is submitted that in the present case even there is recovery of mobile phone from original accused No. 2 & 5 used in the commission of the offence. It is submitted that from the aforesaid mobile, threats were given to the uncle of the victim. It is submitted that the prosecution has been successful in proving that the mobile was initially purchased by original accused No. 2 which in turn was sold to original accused No. 5. It is submitted that, in view of the above, learned trial Court has materially erred in acquitting original accused No. 2 & 5 also. 7.5 It is further submitted by Mr. Dabhi, learned APP, that in the present case even victim Jayesh identified original accused Nos. 3, 4 & 5 in separate T.I. Parades conducted by the Executive Magistrate. It is submitted that their identification by victim Jayesh in the T.I. Parades has been established and proved by examining the Executive Magistrate. It is submitted that even victim Jayesh has also identified original accused No. 5 in the Court. It is submitted that, therefore, the learned trial Court has materially erred in acquitting the original accused. It is submitted that their identification by victim Jayesh in the T.I. Parades has been established and proved by examining the Executive Magistrate. It is submitted that even victim Jayesh has also identified original accused No. 5 in the Court. It is submitted that, therefore, the learned trial Court has materially erred in acquitting the original accused. 7.6 Making the above submissions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order of acquittal passed by learned trial Court and has also requested to convict all the accused for the offences for which they were tried. By submitting that the findings recorded by the learned trial Court can be said to be on misrepresentation of the evidence on record, both oral and documentary, interference by this Court in exercise of the appellate jurisdiction is called for. 8. The appeal is opposed by Shri Dharmesh Patel, learned advocate for Shri S.K. Patel, learned advocate appearing for original accused Nos. 1 & 5, and Shri Mohit Pathak, learned advocate appearing for Mr. Jal Unwalla, learned advocate appearing for original accused No. 2 herein and Shri Amit Patel, learned advocate appearing for Shri Ashish Dagli, learned advocate for original respondents No. 3 & 4. 9. Learned advocates appearing on behalf of the respective accused submitted that the present is an appeal against the order of acquittal passed by the learned trial Court. It is submitted that cogent reasons have been given by learned trial Court on appreciation of evidence while acquitting the original accused. It is submitted that the findings recorded by learned trial Court are on appreciation of evidence. It is submitted that, therefore, on appreciation of evidence brought on record, learned trial Court has acquitted the accused which may not be interfered by this Court in exercise of its appellate jurisdiction. 10. Learned advocates for the original accused finally submitted that in the present case the prosecution has failed to establish and prove involvement of the accused in commission of the alleged offence. It is vehemently submitted that nothing has been led by the prosecution to prove that the Maruti Car which was found from the house of the brother-in-law of original accused No. 1 was in fact used in the commission of the offence. It is vehemently submitted that nothing has been led by the prosecution to prove that the Maruti Car which was found from the house of the brother-in-law of original accused No. 1 was in fact used in the commission of the offence. It is further submitted that even the prosecution has not led any evidence to prove that the mobile which was recovered from original accused No. 2 and/or 5 was in fact used in the commission of the offence, more particularly while holding out threats to the uncle of victim Jayesh. It is submitted that, in view of the above, when learned trial Court has acquitted all the accused, it cannot be said that the trial Court has committed any error. 11. It is further submitted that even no proper procedure, which was required to be conducted while holding T.I. Parade, was followed by the Executive Magistrate. It is submitted that for acquittal cogent reasons have been given by learned trial Court. It is further submitted that even the victim himself has admitted in his cross-examination that he identified the accused falsely at the instance of Police authorities. It has come on record that before victim Jayesh identified original accused No. 5 in the Court-room, he was shown by the Police and even thereafter also, victim Jayesh was not able to identify original accused No. 5. However, by showing him at the instance of the grandfather of the victim, the victim identified original accused No. 5 in the Court-room. 12. It is further submitted by learned advocates appearing for original accused that even there are material contradictions in the deposition of victim Jayesh and the original complainant-father of the victim and maternal uncle of the victim as well as uncle of the victim. It is submitted that even the conduct on the part of the victim himself is improbable and his deposition cannot be said to be natural and/or trustworthy and reliable, and as such learned trial Court has rightly discarded the deposition of victim Jayesh. 13. It is further submitted that in the present case even the person (adivasi) who allegedly took victim Jayesh to the house of Mithalal, who subsequently telephoned to the original complainant, has not been examined. 13. It is further submitted that in the present case even the person (adivasi) who allegedly took victim Jayesh to the house of Mithalal, who subsequently telephoned to the original complainant, has not been examined. It is further submitted that, therefore, the story so stated by victim Jayesh in his deposition that after some of the accused left the victim on the road on scooter he went to the place of Mithalal, creates doubt. It is submitted that it has also come on record and so specifically admitted by the victim himself that for half an hour, he was all alone and not a single accused was with him, however, he did not try even to run away and/or escape. He submitted that, therefore, in the aforesaid facts and circumstances of the case, learned trial Court has not committed any error in acquitting the original accused. 14. Making the above submissions, it is requested to dismiss the present appeal and confirm the impugned judgment and order of acquittal passed by the learned trial Court. 15. Heard learned advocates appearing for the respective parties at length. We have re-appreciated the entire evidence on record as well as the findings recorded by learned trial Court while acquitting the original accused. 15.1 At the outset it is required to be noted that the original accused were charged with the offences under sections 363, 364-A, 365 & 114 of the IPC for abducting/kidnapping one Jayesh for a ransom. By the impugned judgment and order and by giving cogent reasons which are recorded on appreciation of evidence, learned trial Court has acquitted the original accused for the aforesaid offences. 16. On re-appreciation of the entire evidence on record, the prosecution has miserably failed to establish and prove involvement and/or identity of the accused in commission of the offences. 16.1 On considering the deposition of victim Jayesh who has been examined as PW.17 at Ex.55, we are of the opinion that his deposition is full of contradictions and it will not be safe to convict the original accused relying upon the deposition of the said witness. According to the said witness, after he was kidnapped in a Maruti car, he was taken to a field and kept there and one of the accused telephoned from mobile initially to his father and thereafter to his uncle and asked for a ransom of Rs. 10 lakhs. According to the said witness, after he was kidnapped in a Maruti car, he was taken to a field and kept there and one of the accused telephoned from mobile initially to his father and thereafter to his uncle and asked for a ransom of Rs. 10 lakhs. According to the said witness, thereafter on the next day one of the accused took him on a scooter, left him on the road and thereafter he met one adivasi to who took him to one Mithalal Manilal Shah of village Palachar and from there he telephoned to his parents. It is required to be noted that no such scooter has been recovered. Even the adivasi who is alleged to have taken the victim Jayesh to the house of Mihtalal Manilal has not been examined. Neither said Mithalal Manilal nor the Sarpanch have identified any of the accused. It has also come on record in the cross-examination of Jayesh that for approximately half-an-hour he was all alone, however, no efforts were made by him to run away. Eve the manner in which the entire incident has been narrated by Jayesh creates doubt and suspicion. Under the circumstances, it is not safe to convict the original accused relying upon the deposition of the victim Jayesh. 16.2 It is also required to be noted that even one mobile was recovered from one of the accused, however, no efforts were made by the investigating agency by leading evidence from the caller I.D. etc. to prove that from the said mobile the accused talked with the uncle of Jayesh and others and asked for ransom. Under the circumstances, it is not proved that from the mobile which was recovered any threats were administered and any ransom was demanded. 17. It is also required to be noted that, at the first instance and thereafter two other accused were identified, however, there are procedural defects which creates doubt about identification. The panchas of panchnama for T.I. Parade has not supported the case of the prosecution. Cogent reasons have been given by learned trial Court in para 19 not to believe identification of the accused in T.I. Parades conducted on 5.12.2000 and 13.12.2000 respectively. The panchas of panchnama for T.I. Parade has not supported the case of the prosecution. Cogent reasons have been given by learned trial Court in para 19 not to believe identification of the accused in T.I. Parades conducted on 5.12.2000 and 13.12.2000 respectively. From the deposition of the Executive Magistrate Shri Shakarbhai Jamurbhai Rabari who has been examined at Ex.43, it appears that no sufficient precautions were taken by him which were required to be taken while conducting T.I. Parade. No precautions were taken by the Executive Magistrate to bring other persons having similarity with the accused. Though he has identified some of the accused in the Court, however, he does not know names of the accused. It is required to be noted that one of the persons who was identified in the Court by him has given his name Bhaichand Ramabhai Patel. 18. It is also required to be noted that as per the case of the prosecution, one Pritiben Narendrasinh who has been examined at Ex.19 along with her friend Neil saw the incident of kidnapping and taking Jayesh in a Maruti car on 27.11.2000. However, she has not identified any of the accused. It is required to be noted that as per the case of the prosecution, mother of Neil informed the Police control on telephone No. 100 about kidnapping of Jayesh, however, neither the said information is forthcoming on record nor prosecution has examined the mother of Neil who gave the first information to the Police control. 18.1 As observed hereinabove, neither Mihtalal Manilal Shah of village Palachar nor Sarpanch Mathurbhai Kanabhai Patel have identified any of the accused. As observed hereinabove, even the adivasi who is alleged to have taken Jayesh to the place of Mithalal Manilal Shah for telephoning has not been examined. Said adivasi labourer who is alleged to have taken Jayesh to the place of Mithalal Manilal of village Palachar is a crucial and important witness. However, unfortunately he has not been examined. 18.2 Even involvement of the Maruti car which has been recovered from the house of cousin of one of the accused has not been established and proved by the prosecution by leading cogent evidence. There is no evidence worth to prove that the Maruti car recovered was used in commission of the offence. 19. 18.2 Even involvement of the Maruti car which has been recovered from the house of cousin of one of the accused has not been established and proved by the prosecution by leading cogent evidence. There is no evidence worth to prove that the Maruti car recovered was used in commission of the offence. 19. Considering the facts and circumstances of the case and on appreciation of the evidence, learned trial Court has acquitted the original accused and it cannot be said that learned trial Court has committed any error. The findings recorded by learned trial Court are on appreciation of evidence which are neither perverse nor contrary to the evidence on record. Present is an appeal against the order of acquittal passed by learned trial Court. Therefore, unless and until it is found that the findings recorded by learned trial Court are perverse and/or contrary to the evidence on record which has resulted into miscarriage of justice, interference of the order of acquittal by the appellate Court is not justified. 20. In view of the above facts and circumstances, present appeal fails and the same deserves to be dismissed and accordingly dismissed. Impugned judgment and order dated 29.09.2004 passed by learned Additional Sessions Judge, Fast Track Court, Gandhinagar in Sessions Case No. 12 of 2004 acquitting the original accused is hereby confirmed.