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CASE NO.: Appeal (crl.)  1228 of 2004

PETITIONER: Abdulvahab Abdulmajid 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 NO. 129 OF 2005  State of Gujarat                                                \005Appellant Versus Abdulvahad Abdulmajid Shaikh & Ors.             \005Respondents CRIMINAL APPEAL NO.130 OF 2005 State of Gujarat                                                \005Appellant Versus Yasin Ganibhai Haveliwala & Ors.                        \005Respondents

K.G. BALAKRISHNAN, CJI

       All these appeals arise out of Judgment dated 30.7.2004  of the Addittional Designated Judge, Ahmedabad in TADA  Criminal Case No. 22/1996.  14 accused were tried for the  offences punishable under Sections 395, 365, 365A, 212, 465,  471 read with Section 120-B IPC and also under Sections 3  and 5 of the TADA Act read with Section 120B IPC.  They were  also charged under Sections 25(1)(b)(a) and 27 of TADA Act  read with Section 120B IPC.  Out of the 14 accused, accused   A-1, A-2,  A-3, A-7, A-8, A-11, A-12 & A-14 were found guilty  of offences punishable under Sections 120 B, 342, 365 and  384 IPC and were acquitted of other offences. The other  accused A-4, A-5, A-6,A-9 and A-10 were not found guilty.   Accused   A-13 died during the pendency of the trial.  Criminal  Appeal No. 1228/2004 has been filed by the accused who have  been convicted by the Special Judge.  Criminal Appeal No.  129/2005 has been filed by the State alleging that the  acquittal of the accused-appellants in Criminal Appeal No.  1228/2004 for certain other offences for which they were  charged was not justified. Criminal Appeal No. 130/2005 is  filed against the acquittal of accused A-4, A-5, A-6, A-9 & A-10  of all the offences charged against them.

       The prosecution case was that the accused persons  hatched a criminal conspiracy to kidnap PW 7 Vedprakash  Devkinandan Chidipal and extort a ransom of Rs. 1 crore from  him.  One Sherjada (now deceased) called the assistance of    A-12 Musakhan @ Babakhan Ismailkhan, A-11 Jahangir  Mahammadanwar Saiyed and A-1 Abdulvahab and together  they planned to kidnap PW 7 Chidipal.  The other accused  namely, A-2, A-3, A-8 and A-14 were also present. In  pursuance of  their common object, on 22.2.1994 they all went  to Pirana Road in a Maruti car, a Maruti Van and a Yamaha  motorcycle.  PW 7 Chidipal was found going in a Maruti 1000  car and his vehicle was driven by one Sangramsinh.  The

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Maruti car wherein some of the accused-appellants were  travelling overtook the Maruti 1000 car driven by  Sangramsinh and made that car to stop.  One of the accused  opened the door of the Maruti 1000 car near the driver’s seat,  pushed the driver from his seat and took control of the vehicle.   Two other accused entered the car and sat on either side of  PW 7 Chidipal.  The car was driven to Octroi-Naka and after  sometime, driver Sangramsinh was pushed out of the car.    PW 7 Chidipal was then moved to a White Maruti van and his  eyes were bandaged with cotton.  He was taken to a room and  confined there for two days.  The accused took the telephone  numbers of the brothers of PW 7 Chidipal.  PW 11 Jaiprakash,  brother of Chidipal was contacted and told that he shall not  inform the police and a sum of Rs. 1 crore was demanded from  him.  Nobody came forward to give money to the accused. On  24.2.1994, PW 11 Jaiprakash was contacted again and told to  reach the house of PW 9 Sattar.  PW 11 Jaiprakash and one  Shivbhagwan went to the house of PW 9 Sattar in a white  Maruti car with four bags.  Again, PW 11 Jaipakash was told  to go to Anjuman High School at Astodia and was directed to  leave his Maruti car behind a rickshaw.  They left the Maruti  car behind the rickshaw and came back to the house of PW 9  Sattar Bhai.  At about 10.00 p.m. on that day, PW 7 Chidipal  came back to his house.  Sangramsinh the driver of PW 7  Chidipal went to Vatva Police Station.  He gave a First  Information statement to the Police Inspector and investigation  started pursuant to his statement.  The Maruti 1000 car  owned by PW 7 Chidipal was found parked by the side of the  road.  It was recovered under Exh. 182-B Panchnama.  PW 24  Police Inspector searched the house of A-7 Salim  Noormahammad Haveliwala and recovered a diary which  contained the telephone number of Chidipal Textile Mill.   A-9  Prakash Shobhnath was arrested on 2.6.1994 and a sum of  Rs. 50,000/- was recovered in the course of investigation and  the accused A-1 Abdulvahab, A-3 Najirmahammad Vora, A-5  Salauddin Haveliwala, A-6 Mahammadrafik and A-8  Abdulsattar were arrested.  The Yamaha motorcycle allegedly  used by the accused was also recovered.  The first appellant  produced Rs. 1,50,000/- before the Investigating Officer.  On  11.8.1994, the Investigating Officer requested the State to  invoke the provisions of the TADA Act against the accused and  a report was sent to the DCP.  PW 27 Shri B.R. Patil was  entrusted with the task of investigation.

       A-12 Musakhan @ Babakhan Ismailkhan was arrested by  PW 27 Shri B.R. Patil and produced before PW 1 Shri Suroliya,  DCP, Ahmedabad as the accused expressed his willingness to  make a confessional statement.  At the instance of PW 1 Shri  Suroliya DCP, A-12 Musakhan @ Babakhan gave a detailed  confessional statement.  The rest of the accused were also  arrested and finally the charge sheet was prepared by the  police.

       This being the first appeal filed under the provisions of  the TADA Act, we have carefully considered the entire case  adduced by the prosecution before the Spl. Judge and heard  the arguments of the learned Counsel for the accused- appellants as well as the learned Counsel for the respondent  State.  

       The learned Counsel for the accused-appellants strongly  urged before us that the confessional statement given by A-12  Musakhan @ Babakhan was not reliable and admissible as it  was not voluntarily made.  It was also urged before us that the  confession made by a co-accused is extremely fragile and

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feeble type of evidence and it is not substantive evidence  under Section 3 of the Indian Evidence Act and is liable to be  rejected.  It was also urged by the appellant’s learned Counsel  that the confession of co-accused should not be used against  the other accused and it is only to be used as corroborative  piece of evidence and that the Court must begin with some  other evidence adduced by prosecution and in any case the  confession of a co-accused cannot be the sole ground for  conviction of the accused. The accused-appellants placed  reliance on the observations of this Court in Haricharan  Kurmi Vs. State of Bihar  [1964 (6) SCR 623].  It was further  submitted that provisions of Section 15 of the TADA Act could  make the confession admissible in evidence, but the ’Rule of  prudence’ would require that such evidence shall be supported  by other items of evidence.

       The learned Counsel for the appellant also contended  that the confession made by A-12 Musakhan @ Babakhan was  not voluntary and he was put under serious pressure and on  the very next day he had retracted the confession and that by  itself showed that it was not voluntarily made.  The learned  Counsel for the appellant also contended that the Magistrate  was very much available to record the statement of A-12  Musakhan @ Babakhan under Section 164 Cr. PC, but the  same was not done and PW 1 Shri Suroliya, DCP recorded the  confession and the confession was extracted from him by  using extreme pressure tactics.

       The learned Counsel further urged that the fact that the  confession was retracted on the very next day is indicative that  it was not voluntarily made.

       We have carefully considered the arguments advanced by  the appellant’s learned Counsel.  Merely because the  confession was retracted, it need not be taken as a confession  made under pressure.  The state of mind of the accused at the  time of making the confession is the relevant factor.  He was  arrested by the police and as he expressed his willingness to  make a confession, he was produced before the DCP and told  that he was not legally bound to give a voluntary statement  and that in case any statement is found to be false, it would be  used against him. The DCP had taken all precautions to  ascertain that the confession was voluntary.  All formalities  had been complied with and these facts are incorporated in  the confessional statement.  All confessions are invariably  retracted at a later stage, therefore, the retraction by itself is  not a ground to discard the confession by holding that it was  not voluntarily made.   

       In the instant case, the confession made by A-12  Musakhan @ Babakhan is running into several pages.  He has  given the intricate details of the incident and the manner in  which the crime was executed.  The relevant portion of the  confession made by A-12 Musakhan @ Babakhan is as  follows:-

"\005. Before one month of the murder of  Sherjada, on Piplaj-road, outside Pirana Octroi  Check-Post, he had abducted one industrialist.  The  tip was brought by Vijaybapu residing at  Maninagar.  Sherjada called me and Atik at the  house of Vahab, situated in Devi-Park during 2 to  2.30 P.M.  When we reached there, Shejada, Vahab,  Salim Chipa, Najir Vora, Sattar Ghanti, Salim Tola,  Aehmad Behro were present, and told that Chidipal

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is a big industrialist and he comes in his 1000  vehicle always.  His factory is situated on Piplaj  road and it was decided to abduct him.  Therefore,  taking the Fronti of Vahab, one Yamaha and  Maruti-van of Sherjada, we left affixing on it the  false number-plate.  Vijaybapu had given me and  Atik one revolver Point-38 of Vahab.  Sherjada and  Vahab also had with them their revolvers.  Najir  Vora was sent to keep watch towards the road  leading to Vishala Hotel.  We all also went.  I,  Vijaybapu and Atik sat in the van of Sherjada and  Salim Ando was driving it.  Sherjada had put on the  dress of Shephered.   Aehmad Behra was seated in  the Fronti of Vahab and Vahab was driving it.  We  all stayed near one Electric Sub-Station on the  road, leading to Piplaj by going via Pirana, Excise  Post.  Najir Vora came at 5 p.m. from Vishala Bridge  and told that the industrialist is coming.  Therefore,  we become alert.  After sometime, 1000 of that  industrialist came.  Vahab drover Fronti ahead of  said 1000 and Tolo drove the van behind it.  Driving  the vehicle upto some distance, Vahab stopped his  vehicle and therefore, 1000 also stopped.  We all got  down from our vehicle and ran and went near 1000.   Sherjada opened the gate of driver’s side of the said  1000 and gave him push and removed him from the  seat and he himself sat on steering.  Vijaybapu took  seat on the left-side of the driver.  The industrialist  was seated on the back-seat and around him, I and  Atik sat.  The industrialist and driver were shown  revolvers and by giving threats, they were made  silent.  Vahab drove the Fronti ahead and Sherjada  drove 1000.  Tolo was driving the van.  Crossing  Pirana Excise point, via Suez Farm, we went  towards the hospital of infectious-disease.  There  are trees and there was no movement of anyone.   Hence, the Vehicles were stopped and the  industrialist was taken into the van.  1000 was  given to Vijaybapu and he was told to leave it  anywhere and come to Devipark.  When he went  away, we all came to Devipark taking with us said  industrialist.  Vahab took away revolvers from  everybody except Sherjada.  Vijaybapu had come  after leaving 1000.  There, Sherjada and Vahab also  made a plan to extort money by taking telephone  numbers of friends and relatives of industrialist  Chidipal Vedprakash Vahab and Sherjada  went out  for doing telephone.  After sometime, they returned  and told that the work does not complete.   Subsequently, for doing telephone, they took  Chidipal to Kankaria, and after getting talk with  Chidipal from his friends and relatives, they  brought him back to Devipark and detained him.   After 3 days, Vahab and Sherjada told me and Atik  to go in rickshaw at the corner of the street opposite  Anjuman High School.  There while Maruti Fronti  would come and tell to the driver of the said Maruti  Fronti Code-Word pen and he would give you the  key.  I and Atik went in rickshaw to Gol-Limda and  Vahab and Sherjada came there on motorcycle.   Maruti Fronti had come there.  Saying code-word  Pen to its driver, he gave key to Atik.  Taking the  said Fronti, he went to old Muni quarters situated  at Gita Mandir and Vahab and Sherjada were  driving their Motorcycle behind the said Fronti.  We

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parked the Fronti there.  I and Atik were sent back  in rickshaw and we were told to come to Devi-park.   When we reached to Devi-park, at that time, Vahab  told Salim Tola to drop the industrialist Chidipal on  Isanpur Highway.  Tola put the cotton on the eyes of  Chidipal and affixed bandage of medicine on it and  put Black coloured spacts on that bandage.  On the  Yamaha Motorcycle of Najir Vora, Atik and Tola  dropped Chidipal at Isanpur.  Subsequently, Atik  told me that for the release of Chidipal, Rs. 1 crore  is received.  Vahab told us that Latif has big share  in money.  Sherjada was given Rs. 17 lacs.  Atik was  given Rs. 4,00,000/-.  I was given Rs. 2.5 lacs,  Salim Tola and Vijaybapu each got Rs. 2 lacs, while  sattar Ghanti and Najir Vora were given Rs. 1 lac  each and Aehmad Behra was given Rs. 50,000/-.   Vahab told that the said matter is given by Latif  from Dubai and he has large share.  Rs. 60 lacs are  sent to Latif by adjustment and deducting Rs. 1 lac  towards expenditure, Vahab told that he had  received only Rs. 9 lacs\005."

       The confession made by A-12 Musakhan @ Babakhan  gives an account of the kidnapping of PW 7 Chidipal.  He  mentions about the participation of other accused in the  commission of the crime.  He also mentions that an amount of  Rs. 1 crore was demanded and received and while Latif had  received a big share in the money and Sherjada was given      Rs. 17 lakhs, he himself received Rs. 2.5 lakhs. In the  confession, it is also mentioned as to how the money was  transferred to the accused and the places where these  incidents happened. From other items of evidence, ample  corroboration is found of what A-12 Musakhan @ Babakhan  had stated in the confession.

       The learned Counsel for the accused-appellants  contended that the confession of a co-accused is not a  substantive evidence as against the other accused and even  though it is admissible under Section 15 of the TADA Act, it  cannot be used for fixing  criminal liability of other accused.  It  was submitted that such confession could only be used as a  corroborative piece of evidence and unless there is a primary  evidence to prove the guilt of the accused, the confession  cannot be used against them.  In State through  Superintendent of Police, CBI/SIT Vs. Nalini and Others  (1999) 5 SCC 253, this Court held that the confession  recorded under Section 15 of the TADA Act is a substantive  piece of evidence, but as a ’Rule of Prudence’, it could be  accepted only when there is corroboration.   

       The learned Counsel for the accused-appellants also  contended that the confession was not voluntary and,  therefore, it is inadmissible in evidence.  It was pointed out  that though a Magistrate was readily available to record the  confession, A-12 Musakhan @ Babakhan was not produced  before the Magistrate and PW-1 DCP Shri Suroliya recorded  the confession without following the procedure.

       We have perused the records and observed that PW 1  DCP Shri Suroliya has followed all procedural formalities  before recording the confession. Merely because the confession  was retracted later, when A-12 Musakhan @ Babakhan was  produced before the Magistrate, that does not mean that the  confession was not voluntary in nature.  Whether the accused  was willing to give a confession voluntarily or not is to be

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determined from his mental state at the time when he gave the  confession.  There is nothing on record to show that A-12  Musakhan @ Babakhan was under pressure to give any  confession.  When he was produced before the Magistrate, he  had no case that he was put under pressure or third-degree  methods had been used against him to extract the confession.   When he was questioned under Section 313 Cr. PC, he had  only stated that he had not given any confession as recorded  by PW-1 DCP Shri Suroliya.  These facts would indicate that  the confession was voluntary and was recorded by PW-1 after  apprising him that he was not bound to give a confession and  in case he gave the confession, it would be used against him.   Therefore, we do not find any force in the contention advanced  by the learned counsel for accused-appellants regarding the  inadmissibility of the confession.  As stated earlier, there is  ample evidence to show that the confession given by A-12  Musakhan @ Babakhan was truthful and gained support from  other items of evidence.

       PW-7 Chidipal the victim had given evidence that on  22.2.1994, he went to his factory at about 10.00 a.m. in a  Maruti 1000 car and later when he came back, he got down at  Mithakhali at the residence of his relative and from there, he  started at 5 o’ clock and when the car reached near Toll Naka,  one vehicle overtook his car and stopped in front of his car.   PW-7 Chidipal further deposed that 4-5 persons got down  from that car and one of them got into his car from the driver’s  side while another one got into the car from the left front door.   Yet another person got into the car and the car was driven  towards Octroi Post. His eyes were shut with a cotton bandage  and he was kept in confinement.  On the next day, he was  asked to give the telephone numbers of his relatives and he  talked to his brother. But this witness deposed that he did not  know the identity of the kidnappers.  The evidence of PW-11  Jaiprakash, the brother of PW-7 Chidipal gives further details  as to how the kidnappers were paid money.  He deposed that  on 22.2.1994 he got a call from the kidnappers and they asked  him whether the money was ready.  He further deposed that  the kidnappers demanded Rs. 1 crore.  This witness also did  not support the prosecution but he admitted that four bags  were taken in a car and that car was parked behind a  rickshaw whereafter they left the place.  This witness would  deny having given the bags of money, but his entire evidence  would show that kidnappers were paid money.  In the cross- examination,   he admitted that he told the kidnappers that  Rs. 1 crore was ready when they asked him for money over  telephone.  From the evidence of PW-11 Jaiprakash, it is clear  that Rs. 1 crore was paid as ransom to the kidnappers.  PW-12  Jyoti Prakash is another brother of PW-7 Chidipal who also  gave evidence as to how the brothers assembled at his  residence and discussed the issue of raising Rs. 1 crore.  He  contacted his friends and relatives to make arrangements of  Rs. 1 crore, but this witness also did not fully support the  prosecution and declined to give evidence regarding the actual  payment of money.  The evidence of PW-9 Satarbhai Abdul  Rehman is also very important.  He deposed that the victim  Chidipal was known to him and this witness used to do some  designing work for him.  He deposed about the kidnapping of  PW-7 Chidipal and about his active participation in the  payment of money to kidnappers.           From  the  evidence  of  these  witnesses, it is clear that  PW-7 Chidipal was kidnapped and the kidnappers were paid  ransom amount for his release.  The details of the kidnapping,  the manner in which it was done and the extortion of money  are all spoken of by the witnesses. In the confession

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statement, A-12 Musakhan @ Babakhan has given all these  details and these details are in perfect consonance with the  evidence given by the witnesses.  But it seems that all these  witnesses were afraid of giving the identity of the accused.      A-12 in his confession has given the details of participation of  all the accused persons and has also stated that the money  was indeed received and shared by them.   

       Taking all these factors into consideration, we do not find  any difficulty in accepting the confession made by A-12  Musakhan @ Babakhan.  The confession given by him cannot  be said to be a figment of his imagination, but appears to be a  true account of the events of kidnapping and extortion of  money.  Therefore, we do not find any illegality in the  conviction as recorded against these accused-appellants.  The  Criminal Appeal No. 1228/2004 filed by the accused is  without any merits and is liable to be dismissed.

       Criminal Appeal No. 129/2005 and Criminal Appeal        No. 130/2005 are filed by the State against the acquittal of  some of the accused and also against the acquittal of some  accused for certain other offences for which they were  charged.  Going by the evidence on record, we do not find any  merit in the contentions advanced by the State.  The accused  have been convicted only for the offences where there was  satisfactory evidence against them. As regards acquittal of  other accused, we find no merit in the contentions raised by  the State.  Accordingly, these appeals are liable to be  dismissed.         In the result, all the appeals are without any merits and  are dismissed.