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CASE NO.: Appeal (crl.)  525 of 2004

PETITIONER: Abdulvahab Abdul Majid Shaikh & Ors

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 24/04/2007

BENCH: K.G. BALAKRISHNAN & G.P. MATHUR

JUDGMENT: J U D G M E N T

WITH CRIMINAL APPEAL NOS. 1316-17 OF 2004 State of Gujarat                                                \005Appellant Versus Abdulvahab Abdulmajid Shaikh & Ors.             \005Respondents CRIMINAL APPEAL NO. 1318 OF 2004 State of Gujarat                                                \005Appellant Versus Salim Noormahammad Haveliwala & Anr.    \005Respondents

K.G. BALAKRISHNAN, CJI

       All these appeals arise out of a Common Judgment in  TADA Crime Case No. 4/1995 and TADA Crime Case No.  27/1996 delivered by the Additional Designated Judge at  Ahmedabad.         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, A-1 to A- 4 and A-9 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.

       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.  5-6  persons were sitting in the Maruti van and after the victim was  forced into the van, the van moved and travelled for 30-45

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minutes 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.

       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.

       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 of A-6 Salim Haveliwala was searched  on 23.3.1994 and a sum of Rs. 50,000/- was recovered.   Thereafter, the house of his father-in-law A-7 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, A-1 Abdulvahab  Abdulmajid Shaikh, A-5 Mohammadrafik Abdulrahim Shaikh,  A-3, Abdulsattar @ Sattar Ghanti, A-4 Mahammadsalim @  Salim Tolo and A-2 Najirmahammad Alimahammad Vora were  arrested.  Pursuant to the information furnished by A-4  Mahammadsalim @ 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 arrested A-9 Musakhan  @ Babakhan Ismailkhan Pathan.  This accused expressed his  desire to give a confession and A-9 Musakhan @ Babakhan  was produced before PW 1 DCP, Shri Suroliya.  Shri Suroliya  recorded the confession statement of A-9 Musakhan @  Babakhan and the investigating officer finally filed the charge- sheet.   

       On 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. A-6 Salim Haveliwala and A-7 Yakub 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.  A-9 Musakhan @ Babakhan stated that he  was never produced before PW-1 DCP, Shri Suroliya and  denied having given any statement before him.

       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 by A-9 Musakhan @

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Babakhan and it was held that the confession given by A-9  Musakhan @ Babakhan has been supported by other items of  evidence and on that basis A-1 to A-4 and A-9 were convicted  for some of the offences charged against them.

       The short question that arises for consideration is  whether the confession given by A-9 Musakhan @ Babakhan  could be relied upon.  The learned Counsel for the appellants  strenously urged before us that the confession made by A-9  Musakhan @ Babakhan was not at all truthful and voluntary  and it was prepared at the instance of the two police officers  and therefore, it is not admissible under Section 15 of the  TADA Act.  The learned Counsel for the appellants also  contended that the confession of a co-accused is not a  substantive piece of evidence and if at all, it could be relied on  only as a corroborative piece of evidence and in the absence of  any other evidence the confession of a co-accused by itself  shall not be used as primary evidence to prove the complicity  of the co-accused and convict him.  Reliance was placed on  the decision of the Privy Council in Bhuboni Sahu Vs. R  [AIR  1949 Privy Council 257] and it was urged that the confession  of a co-accused is obviously a fragile and feeble type of  evidence and it could only be used to lend credence to other  items of evidence.  Our attention in this behalf was drawn to  Section 30 of the Indian Evidence Act, the application of which  was explained in detail in Haricharan Kurmi Vs. State of  Bihar   [1964 (6) SCR 623].

       It is true that the confession of the co-accused by itself is  not sufficient to find a co-accused guilty unless there is other  supporting evidence to prove that the accused was guilty.  In   State through Superintendent of Police, CBI/SIT   Vs.   Nalini and Others (1999) 5 SCC 253, this court held that the  confession is a substantive piece of evidence, but as a ’Rule of  Prudence’ the Court should seek other corroborative evidence  to test its veracity.  Having regard to the above principle, we  find that the evidence in this case indicates that there is  sufficient corroboration of the confession given by A-9  Musakhan @ Babakhan.  It is to be remembered that all  procedural formalities were complied with in recording the  confession of A-9 Musakhan @ Babakhan.  The learned  Counsel for the appellant in Criminal Appeal No. 525/2004  vehemently contended that the confession given by A-9  Musakhan @ Babakhan was retracted the moment he was  produced before the Magistrate and, therefore, it is to be  treated as "not voluntary".  The learned Counsel also pointed  out that when PW-1 DCP, Shri Suroliya was recording the  confession of A-9 Musakhan @ Babakhan, the Magistrate was  very much available and the Police Officer should have  produced the accused before the Magistrate in order to record  the confession of the accused.  It was argued that failure to  produce the accused before the Magistrate indicated that the  confession was not voluntary and the same was not given by  the accused.  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 that A-9 Musakhan  @ 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.  A-9 Musakhan @ Babakhan who was questioned

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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 before PW-1 DCP, Shri Suroliya.

       The narration of evidence given by A-9 Musakhan @  Babakhan would show that the confession was voluntary.  A-9  Musakhan @ Babakhan had given various details of the  conspiracy of kidnapping and subjecting the victims to  wrongful confinement.

       The relevant portion of the confession relating to the  kidnapping of PW-3 Jayendra Mahendra Tripathi are given by  A-9 Musakhan @ Babakhan in his confession  as follows :

"\005.  After four or five days of last Uttarayan,  Sherjada called Nazir Vora, Salim Tola, Sattar  Battery and me at the house of Wahab situated at  Devi Park Society in Dani-Limda.  When we went  there, Sherjada and Wahab were present.  Sherjada  and Wahab made a plan to kidnap one Jayendra  Tripathi, a builder at Vasna and deciding this, at  about 3 pm., we took the Maruti Van of Sherjada  affixing bogus number plate on it and went to  Vasna.  Wahab and Sherjada had revolvers.   Sherjada was knowing Jayendra Tripathi and he  had also seen his house.  Hence, while going near  Kundan Apartment, situated near Mehta Hospital in  Vasna, there is house of Tripathi and we sat there  in Maruti Van for keeping watch.  At 4 PM,  Jayendra Tripathi used to go out from his home,  which was told by Sherjada.  Therefore, we waited  for some time.  At about 4:00 hrs., when Jayendra  Tripathi came out, Sherjada identified him and from  there he kidnapped him and threw him in Maruti  Van applying old cap and took him to Devi Park.   Taking the telephone number of victim’s friends and  relatives, Wahab and Sherjada threatened them on  phone and extorted money.  On the next day,  Tripathi was released.  I was taking lunch and Tiffin  from outside for Tripathi.  But for this work, no  money was paid to me. \005"

       From the confession statement, it is evident that  some persons came to Vasna area and while PW-3  Jayendra Mahendra Tripathi was walking near the  Kundan Apartment, he was kidnapped and forced into  the Maruti van and his face and head were covered by an  old cap and he was taken to Devi Park.  A-9 Musakhan @  Babakhan speaks about the involvement of other  accused persons.  In the confession, it is also stated that  PW-3 Jayendra Mahendra Tripathi was released on the  next day after the ransom amount was paid.  A-9  Musakhan @ Babakhan also says that he was not paid  anything in this transaction.  The fact that a Maruti van  came and PW-3 Jayendra Mahendra Tripathi was  kidnapped in that vehicle is spoken to by the victim  himself who was examined as a witness for the  prosecution.         These appeals before us are disposed of as follows. Criminal Appeal No. 525/2004

       The main evidence in this case is the confessional

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statement of accused Musakhan @ Babakhan.  Of course, the  confession statement is generally not treated as the primary  evidence, but this Court in Nalini’s case (supra) has held that  the confession recorded under Section 15 of the TADA Act is a  substantive piece of evidence and it could be accepted  provided there is corroboration by other material particulars.   In the instant case, there is substantial corroboration of the  confession of A-9 Musakhan @ Babakhan by other items of  evidence.   The counsel for the appellants strongly urged  before us that the confession itself is highly suspicious and it  cannot be relied upon to convict the appellants, but we find no  force in that contention.   The confession was recorded strictly  in accordance with Section 15 of the TADA Act.   The accused  was apprised of the fact that in case any such confession is  made, it would be used against him.  The police officer who  recorded the confession also stated that it was voluntary in  nature.   The counsel for the appellants contended that the  Chief Judicial Magistrate was readily available to record the  confession and when  such a facility was available, the police  officer should not have recorded the confession.  It was also  pointed out that when A-9 Musakhan @ Babakhan was  produced before the C.J.M., he retracted the confession and  that itself is sufficient to hold that the confession was not  voluntary in nature.   Under Section 15 of the TADA Act, a  police officer is permitted to record the confessional statement  of accused and certain strict procedure is prescribed.  The  appellants have no case that this procedure has in any way  been violated.    Merely because the confession was retracted,  it may not be presumed that the same was not voluntary.   It  is important to note that when A-9 Musakhan @ Babakhan  was produced before the Magistrate, he had no case that he  was subjected to any third degree method.   He only stated  that he had not made any confession before the police.            In the confessional statement, A-9 Musakhan @  Babakhan has given detailed narration of the incident relating  to the abduction of victim Jayendra Mahendra Tripathi.   He  stated that accused  Vahab & Sherzada were armed with  revolvers.  In the course of investigation, the revolver was  recovered  from one of the accused.    The accused was seen at  the apartment near the Mehta hospital in Vasna where the  victim Jayendra Mahendra Tripathi was staying.   The accused  stated in his confession statement that Jayendra Mahendra  Tripathi was abducted at about 4 p.m. when he came out of  the house.   The victim Jayendra Mahendra Tripathi was  examined as PW-3.   He deposed that he had been staying at  Kundan apartments in Vasna. He further deposed that on  19.1.1994 at about 4 o’ clock he started from his  house for   his office and on the way 5-6 persons came in a Maruti van  and he was forcibly dragged into that Maruti van and taken  to  some distant place.  He also deposed that he was asked to give  the telephone number of his company and that he gave the  telephone number of his friend also. All these facts are spoken  of by A-9 Musakhan @ Babakhan in his confession statement.         To prove the abduction and extortion of money from  Jayendra Mahendra Tripathi, the prosecution examined  several other witnesses.   PW-7 deposed that Mahendrabhai,  the partner of Tripathi had withdrawn Rs. 10 lakhs from the  Union Bank of India by giving four cheques.   PW-4 Kirtikumar  Tapsishanker Tripathi deposed that he had paid Rs. 3 lacs to  one motorcyclist on 21.1.1994.   It is also pertinent to note  that in the confession statement,  A-9 Musakhan @ Babakhan  referred to the presence of A-1, A-2, A-3  and A-4 in the  conspiracy and  later in the abduction of Jayendra Mahendra  Tripathi.         On consideration of confession statement, which is amply

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corroborated by other items of evidence, we have no hesitation  in accepting the same as truthful and voluntary.  The  complicity of A-1 to A-4 in the abduction is proved beyond  reasonable doubt.         In the result, the conviction of these three appellants for  the offences punishable under Sections 120-B,  342, 365, 384  read with Section 120-B of 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. 1318/2004         It is an appeal preferred by the State against the  acquittal of A-6 and A-7.   Counsel for the appellant-State  submitted that the  acquittal of A-6 and A-7 was  palpably  wrong as there is evidence  to show that they were party to the  abduction and extortion of money from the victim.   This  submission is based on the evidence of recovery of Rs.  50,000/- from the house of A-6 Salim Noor Mohammed  and  Rs.1,75,000/- from the house of A-7 Yakub Ganibhai.    The  recovery of these amounts, though stands proved, the  prosecution could not prove that these amounts were actually  the amounts paid by the agents of Tripathi as ransom to these  accused.   These accused gave some explanation as to how  these amounts  happened to be in their house.  A-6 claimed  that it was an amount belonging to him and he was keeping it  for his business purposes.    There was no bank slip or any  other item of evidence to show that the amount was  withdrawn from the bank  on 21.1.1994.   Though the bank  officials were examined as prosecution witnesses, they also  could not give any satisfactory evidence to prove that the  currency notes recovered from these two accused were  relatable  to the amounts withdrawn from the Bank.     Moreover,  in the   confession statement,  A-9 did not involve  these accused.    In the above circumstances, the acquittal of  A-6 and A-7 was correct.  The appeal is without any merit and  is dismissed accordingly. Criminal Appeal Nos. 1316-17/2004         These appeals are filed against acquittal of all the  accused charged for offences punishable under the TADA Act.   These accused were charged under Sections 3 and 5 of the  TADA Act read with Section 120-B IPC.   The ground urged by  the appellant-State is that Jayendra Mahendra Tripathi was  abducted at gun point from a notified public place and that  the accused are hardcore criminals.   Therefore,  they ought to   have been convicted under Sections 3 and 5 of the TADA Act.         The contention of the State is that these accused should  not have been acquitted of the charges under Sections 3 and 5  of TADA Act as the crime committed by them was of grave  nature and came within the purview of the said provisions of  the TADA Act.  It is further contended that the Special Judge  has not given any specific reasons as to why these accused  were acquitted of the charges.  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

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ammunition during the commission of the crime, for which  they have been charged.  The accused have been rightly  acquitted.  Criminal Appeal Nos. 1316-17/2004 are without  any merits and dismissed accordingly.