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CASE NO.: Appeal (crl.)  526 of 2001

PETITIONER: Prakash Kumar @ Prakash Bhutto

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. 545 OF 2001  Abdulwahab Abdulmajid Shaikh & Ors.             \005Appellants Versus State of Gujarat                                                \005Respondent CRIMINAL APPEAL NO. 665 OF 2001 Musa Khan @ Baba Khan                                   \005Appellant Versus State of Gujarat                                                \005Respondent

K.G. BALAKRISHNAN,  CJI          All these appeals arise out of common judgment dated  19-3-2001 of the Designated Court at Ahmedabad for trial of  TADA cases  in Terrorist Criminal Case No. 33 of 1994 and  Terrorist  Criminal Case No. 24 of 1996. There were seven  accused in Terrorist Criminal case No. 33 of 1994 and four  accused in Terrorist Criminal case No. 24 of 1996. One  accused died during the pendency of the case and six accused  were convicted for the offences punishable under Sections  120, 365 read with Section 120-B of the Indian Penal Code  (IPC) and Section 342 read with Section 120-B IPC.   

The appellant in Criminal Appeal No. 526/2001 was the  ninth accused and was convicted for the offences punishable  under Sections 120 B, 342 and 365 IPC.  All the accused were  charged for various offences under IPC, TADA Act and Arms  Act. The allegation against the appellant was that on 26-9- 1993 at about  2.00 P.M, he alongwith other accused  kidnapped one Babulal Misrimal Jain  and kept him in  confinement for two days and extorted money.  The said  Babulal Misrimal  was the owner of  Ratnamani Tubewell  Limited at Kalol.  On 26-9-1993, he went for a community  lunch held at Rani Sati Hall in Ahmedabad. After the lunch he  was standing outside the hall with his friends when the  accused came in a Maruti-van and accused No. 2 Mohammad  Salim   (now deceased), accused No. 3 Iqbal Hussain and  accused No. 10 Mohammad Atik dragged him into that van.   Thereafter they took him to an unknown place and kept in  confinement.  When Babulal  Misrimal  was being taken away,  some of his friends and relatives standing outside made a hue  and cry and it was alleged that accused No. 3 Iqbal Hussain   and accused No. 10 Mohammad Atik opened fire by using  their revolvers. Babulal Misrimal  was taken to Amul Process  House at Danilimbad  owned by accused No. 6.  Thereafter,  the accused demanded Rs. 60 lacs from the brothers and  relatives of Babulal Misrimal.  Finally, the deal was struck at  Rs. 25 lacs.  The amount of ransom was received and it was

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shared amongst all the accused. The major share of Rs. 4 lacs  was paid to accused No. 1 Abdulwahab.  An amount of Rs.  40,000/- was received by accused No. 10 Mohammad Atik.   Prosecution also alleged that some of the accused purchased  properties making use of the money received from Babulal  Misrimal.  The accused No. 1 is reported to have also applied  for a passport under a fictitious name. Another accused  namely, Sherjada died during the course of investigation.   Accused Abdul Latif though charge-sheeted died before the  charge could be framed against him by the court.

On 26-9-1993 at about 2.30 P.M. Dinesh Ramanlal Shah  gave a complaint  to the Shahibaug Police Station. They  registered the crime and informed the superior Police Officers  about the incident. PW 18 visited the scene  of occurrence and  recovered two empty cartridges from the place and also the  chappals and slippers. Police inspector Jivabhai Ratnabai  Prajapati (PW 19) took over further investigation. He visited  the scene of occurrence and recorded the statements of some  of the witnesses who were available. Later, the investigation  was handed over to another officer and on 9-4-1994 accused  No. 3 was arrested. Thereafter Police Inspector Udaykumar  Tribhavan took over the investigation and arrested accused  Nos. 6 and 7 on 27-7-1994.  A-4, A-1 and A-2 were also  arrested later.  On 8-9-1994, the investigation was handed  over to ACP, Shri B.R. Patil.  He requested for Government  sanction for invoking the provisions of TADA Act against the  accused.  A-8 was arrested on 12-3-1996. Accused Sattar  Battery expressed his willingness to give a confession and  accordingly the Assistant Commissioner of Police B.R. Patil  recorded his confession under Section 15 of the TADA Act.    PW 25, B.R. Patil,  Assistant Commissioner of Police in Crime  Branch at Ahemdabad arrested Babakhan s/o Ismailkhan on  11-1-1995. On 14-1-1995, accused Babakhan (A-11)  expressed his desire to make a confession and he was  produced before the Deputy Commissioner of Police, Shri A.K.  Surolia. On the next date, that is, 15-1-1995, PW 25 was  asked to produce A-11 Babakhan and his confession was  recorded.  Deputy Commissioner of Police, Shri A.K. Surolia  gave the confession of A-11 Babakhan in a sealed cover to PW  25 B.R. Patil and asked him to produce A-11 Babakhan, along  with the sealed cover containing his confession, before the  Chief Metropolitan Magistrate.

A-11 Babakhan gave a detailed statement regarding the  commission of the crime and the relevant part of the  confession is as follows :- "About quarter and one year, in the ninth  month of 1993, during last week, Atik told me that  Shejada sits in the office situated opp. Mirzapur  Court where Prakash Bhutto is sitting.  He told us  that on 26th Noon, in Rani-Sati Hall, near  Shahibaug, Underbridge, there is Community lunch  of Baniya, wherein leading persons are to come and  for their abduction, there would be no difficulty and  crores of rupees would be obtained.  After such talk,  Sherjada called me, Atik, Vahab, Iqbal Bhuriyo,  Salim Ando and Yasin Chipa of Jamalpur at his  home he gave Point 45 Revolver to Atik and Point 38  Revolver to Ibu.  The number plate of Maruti-van of  Sherjada being No. GJ-9-1045 was affixed and  taking it, we went to Rani Sati Hall. Salim Ando was  driving the vehicle.  We stood at one place.  Outside  the Hall, Prakash Bhutto pointed out one fat  industrialist seated on the scooter by making the

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sign, whom we identified exactly.  Salim Ando took  the Maruti-van towards him and brought it near  said fat man and stopped it.  Lifting the said fat  man and while throwing him in the vehicle, some  scuffle took place.  At that time, Ibu and Atik fired  shots from their Revolvers and therefore, people  scattered and hence, said fat man was thrown in  the vehicle.  Applying bandage on his eyes, via  Underbridge he was brought to Amul Process House  in Dani Limda.  There also bandage continued on  the eyes of said fat man.  Sherjada and Vahab  telephoned  to the friends and relatives at their  residence of the fat man, and demanded money. The  name of the said fat man was Babulal Sanghvi.  On  the next day, Vahab told that transaction was over  and let us release Babulal.  I do not know, what  amount was taken for the release of Babulal  Sanghvi.. But subsequently Vahab told  that Rs.  15/- lacs were obtained.  Latifbhai has told not to  make disposal.  And Vahab applied the cotton and  the bandage of medicine on the eyes of Babulal and  putting Balck-gogles on it, Vahab told Atik, Ibu and  Sherjada to take Babulal at Kankaria and get him  seated in rickshaw, allowing him to go  to  Shahibaug.  Accordingly, on the motor cycle of  Sherjada, Atik and Ibu seated Babulal Sanghvi and  dropped him at Kankaria.  Subsequently Vahab  gave me Rs. 50,000/- for this work."

Based on the above confession made by A-11 Babakhan,  the appellant in Criminal Appeal No. 526/2001 was convicted  for the offences punishable under Sections 120 B, 342 and  365 IPC.            The confession of a co-accused by itself is not sufficient  to hold the other accused guilty. It has been held repeatedly by  this Court that the confession of a co-accused is a fragile and  feeble type of evidence and it could only be used to support the  other evidence, if any, adduced by the prosecution.  [ See :   Haricharan Kurmi  Vs.  State of Bihar, [1964 (6) SCR 623].   Though in State through Superintendent of Police, CBI/SIT    Vs.  Nalini and Others,   (1999) 5 SCC 253,    it   has been  held   that  confession  is  a  substantive   piece   of      evidence, but as a ’Rule of Prudence’  the court should seek  other corroborative evidence to test its veracity.

       The prosecution could not adduce any other supporting  evidence to prove the guilt of the appellant.  Even based on the  confession of the co-accused, the only allegation against the  appellant is that he was in the company of the other co- accused and had pointed out towards the victim by making a  sign whereupon the other accused over-powered the victim  and took him forcibly in the Maruti van. To prove that the  appellant was in the company of other accused, there is no  other independent evidence. Even though the prosecution  adduced other evidence to prove that the victim Babulal  Misrimal Jain was forcibly taken and kept in unlawful  custody, the complicity of the appellant could not be proved.  The prosecution has failed to prove the case against the  appellant.  

       Therefore, the finding of the Special Judge is erroneous.   Criminal Appeal No. 526/2001 is allowed and the appellant  herein is acquitted of all the charges framed against him. The  appellant, who is on bail, is discharged from the liability of bail

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bonds.          Criminal Appeal No. 545/2001 and Criminal Appeal No.  665/2001 filed against the same judgment are also  accordingly allowed and the appellants therein are acquitted of  all the charges framed against them.  The appellants, who are  on bail, are discharged from the liability of bail bonds.