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2001 Supreme(Guj) 863
IN THE HIGH COURT OF GUJARAT
Jayant Patel, Paresh Upadhyay, JJ.
Shaukat Hussein Hajibhai Shaikh - Appellant
Versus
State of Gujarat - Opponent
Criminal Appeal No. 73 of 2006 with Criminal Appeal No. 709 of 2006
Decided On : 21-12-2011
For the Appellants :A.R. Majmudar with N.K. Majmudar, Advocates
For the Opponent : K.J. Pandya, A.P.P.
Headnote:
A. Indian Penal Code, 1860 - Sections 212, 364A, 387, 365, 394 and 120B - Robbery - Conspiracy - Harbouring - Identification of accused - Contention of appellant that Section 364A would apply in a case of kidnapping for ransom of only Government or Foreign State or International Inter-Governmental Organisation or its employee -where victim had identified offender in T.I. parade, fact that victim had not identified offender in Court - Such fact would not frustrate case of prosecution - Further, considering material evidence by Executive Magistrate T.I. parade credible irrespective of fact that panch witness turned hostile - Offence of robbery, held, proved by evidence of discovery of increminating articles, at instance of accused - Findings recorded by Sessions Judge for the offence under Section 394 of IPC were contrary and rather perverse to the record of the material evidence of the witnesses - Acquittal of charge of offence under Section 394 reversed - Mere act of allowing accused to stay in his house not sufficient to bring home charge under Section 212 of the Code - There has to be a conscious knowledge on part of accused that person who has given shelter to is involved in offence - No evidence had been led by the prosecution to show that A-3 had any knowledge that A-1 was an offender involved in serious offence - View taken by Sessions Judge for acquitting A-2 and A-3 did not call for interference - Acquittal is confirmed - Appeal dismissed
JUDGMENT :
Jayant Patel, J.
As the present appeals arise from the very judgment and order of the learned Sessions Judge, they are being considered together. The only distinction is that Criminal Appeal No.73 of 2006 is against the conviction, whereas Criminal Appeal No. 709 of 2006 is against the acquittal granted by the learned Sessions Judge.
2. Both the appeals arise from the judgment and order of the learned Sessions Judge in Sessions Case No.61 of 2003 dated 28.10.2005, whereby Accused-1 (Appellant in Criminal Appeal No.73 of 2006 - hereinafter referred to 'A-1') has been convicted for the offences under Section 364-A, Section 387, Section 365, Section 120(B) and Section 506(2) of IPC and sentence has been imposed upon A-1; (a) life-imprisonment with the fine of Rs. 10,000/- for the offence under Section 364-A; (b) R.I. for 5 (five) years with the fine of Rs. 2,000/- for the offence under Section 387 of IPC; and (c) R.I. for 4 (four) years with the fine of Rs.2,000/- for the offence under Section 365 of IPC and life-imprisonment with the fine of Rs. 2,000/- for the offence under Section 120(B) of IPC. No separate punishment has been imposed for the offence under Section 506(2) of IPC. All punishments are ordered to run concurrently. However, A-1 has been acquitted for the offence under Section 394 of IPC. A-2 is acquitted for the offence charged under Section 394, 387, 364-A, 365, 506 and 120B. A-3 has been acquitted for the offence under Section 212 of IPC. As recorded herein above, A-1 has preferred appeal against the order of conviction, whereas State has preferred appeal against the order of acquittal, but both from the very judgment and order of the learned Sessions Judge from the very Sessions Case No.61/2003.
3. As per the Prosecution Case, the complaint was filed by Mohammad Faruk - PW-1, stating that some unknown calls were being received at the shop, where the complainant and his father are doing business. On 25.1.2000 his father left the shop earlier and when the complainant reached at his residence, he was told by his mother that his father had already gone out, saying that he might come late. At 2.30 a.m., a phone call was received at the residence and when it was picked up, the inquiry was made about Farukbhai, and the phone was disconnected. At that time, the complainant found that his father had not come back. Again such type of calls were received about five times and the phone calls were disconnected from other end. At about 3 a.m., again one phone call was received and the said call was picked up by the wife of the complainant and she was conveyed that within short time they would arrange for the talk between Faruk - complainant and his father Babubhai. Therefore, the complainant doubted about the whereabout of his father, whether something had happened or not and, therefore, he picked up the phone when it was received next time and when he started talking he found that his father was speaking on the other end but the phone was disconnected. Since the voice of his father was identified by the complainant he realised that somebody might have kidnapped his father and, therefore, he called the other relatives. The other phone-calls were also received. Thereafter, at 4 a.m., one person talked on the phone and told the complainant that the complainant might talk to Babubhai and when the complainant talked with his father, he (father) said that he was kidnapped and those persons are demanding Rs.10 lac. Therefore, the complainant should make arrangement for the amount by 1 O'clock noon and he was also told that again phone call would be made and complainant would be informed about the place at which the amount was to be given at about 2 O'clock and the complainant was asked to bring the amount somehow or the other and if the amount was not given, the kidnappers would kill the victim. The complainant thereafter approached the police officer, who asked for keeping watch over the phone and the caller ID facility was
