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2016 Supreme(Guj) 389
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah and Mohinder Pal, JJ.
State of Gujarat – Appellant
Vs.
Kanubhai Prabhudas Patel and Ors. – Respondents
Criminal Appeal No. 878 of 2006
Decided On: 02.03.2016
Advocate Appeared:
For Appellant : L.B. Dabhi, Addl. Public Prosecutor
For Respondents:Dharmesh Patel, Advocate for S.K. Patel, Advocate
The main legal point established in the judgment is the requirement for the prosecution to establish the involvement and identity of the accused in the commission of the offenses beyond a reasonable doubt.
Headnote:
Kidnapping - Indian Penal Code - 363, 364-A, 365, 114 - The judgment discusses the prosecution's case of kidnapping a 12-year-old boy and the subsequent acquittal of the accused. The court re-evaluated the evidence and found that the prosecution failed to establish the involvement and identity of the accused in the commission of the offenses. The court highlighted contradictions in the victim's deposition, procedural defects in the identification process, and the lack of evidence to prove the involvement of the accused. The court concluded that the findings of the trial court were based on the appreciation of evidence and acquitted the accused.
Fact of the Case:
The prosecution alleged the kidnapping of a 12-year-old boy for ransom. The trial court acquitted the accused due to the prosecution's failure to establish their involvement and identity in the offenses.
Finding of the Court:
The court re-evaluated the evidence and found that the prosecution failed to prove the involvement and identity of the accused in the offenses. It highlighted contradictions in the victim's deposition, procedural defects in the identification process, and the lack of evidence to prove the accused's involvement.
Issues: The main issue was the prosecution's failure to establish the involvement and identity of the accused in the commission of the offenses.
Ratio Decidendi: The court's decision was based on the re-evaluation of the evidence, which revealed contradictions in the victim's deposition, procedural defects in the identification process, and the lack of evidence to prove the accused's involvement.
Final Decision: The court confirmed the acquittal of the original accused, stating that the findings of the trial court were based on the appreciation of evidence and not perverse or contrary to the evidence on record.
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. 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,
