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IN THE HIGH COURT OF GUJARAT
A.M. KAPADIA, K.A. PUJ, JJ.
Akhilesh @ Mukesh Agrawal @ Sanjaysinh @ Raju Tiwari – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 265 of 2004 in Sessions Case No. 77 of 2001
Decided On : 05-03-2007
Indian Penal Code, 1860 - Sections 120B, 364A, 387 read with Section 120B and 511 - Arms Act, 1959 - Sections 25 (1) (a), 25 (1) (b) and 27 – Code of Criminal Procedure appellant/original accused challenges correctness and legality of the judgment and order dated rendered in Sessions Case by learned Additional Sessions Judge by which the accused has been convicted for commission of the offences punishable under Sections 120B, 364A, 387 read with Section 120B and 511 of Indian Penal Code and Sections 25 and 27 of the Arms Act, 1959 and sentenced to suffer R.I. for four months and fine thereof, RI for further period of 15 days for commission of offence punishable under Section 120B IPC, RI for ten years and fine thereof RI for further period of three months for commission of the offence punishable under Section 364A read with Sections 120B and 511 IPC, RI for five years and fine of thereof RI for further period of months for commission of the offence punishable under Section 387 read with Sections 120B and 511 IPC, RI for five years and fine trial court explained to the accused persons the circumstances appearing against them in the evidence of the prosecution and recorded their further statement under Section 313 of the Code. The accused persons denied the case of the prosecution in to and reiterated that they are innocent and false case has been filed against them. In further statement of the accused, A-2 has stated that on he was staying at from where he was illegally arrested and taken into custody police had beaten him was recovered from him. He did not know has filed a complaint for beating against the police before the Magistrate when he was produced before the Magistrate and therefore he was sent by the Magistrate for treatment. False case has been filed against him. He has no connection with the incident. However, he did not produce any evidence nor did he examine any witness in support of his appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court held that so far as original accused Nos. 4 and 5 are concerned – Held, Contention that there is nothing on record that the accused had any connection whatsoever with who allegedly demanded ransom from the complainant has also no substance. It has come in evidence that had demanded ransom Mehta Patel and in connection with demand of ransom A-1 to A-3 were caught hold while trying to kidnap PW-1 and therefore the accused had connection with and when they tried to kidnap they were arrested by the police charge of conspiracy of the accused with alias Sing alias Mona alias Doctor Abdul originally belonged to Bihar and at present at Dubai is duly proved – According to us, the trial court has not committed any illegality or infirmity in coming to the conclusion that the prosecution has established the charges against the accused and we are in complete agreement with reasons given and the conclusions arrived at by the trial court and on the basis of the evidence on record and on the facts and circumstances of the a se, no other conclusion is possible except the one reached by the trial court convicting and sentencing accused – Application is dismissed.
JUDGMENT :
A.M. KAPADIA, J.
1. By instant appeal under Section 374 of the Code of Criminal Procedure (‘the Code’ for short), the appellant/original accused No. 2 (‘the accused’ for short) challenges the correctness and legality of the judgment and order dated 31.12.2003, rendered in Sessions Case No. 77 of 2001 by the learned Additional Sessions Judge, Court No. 6, City Sessions Court, Ahmedabad, by which the accused has been convicted for commission of the offences punishable under Sections 120B, 364A, 387 read with Section 120B and 511 of the Indian Penal Code (IPC for short) and Sections 25 (1) (a), 25 (1) (b) and 27 of the Arms Act, 1959 and sentenced to suffer R.I. for four months and fine of Rs. 1,000/- i.d. thereof, RI for further period of 15 days for commission of offence punishable under Section 120B IPC, RI for ten years and fine of Rs. 5,000/- i.d. thereof RI for further period of three months for commission of the offence punishable under Section 364A read with Sections 120B and 511 IPC, RI for five years and fine of Rs. 1,500/- i.d. thereof RI for further period of 1½ months for commission of the offence punishable under Section 387 read with Sections 120B and 511 IPC, RI for five years and fine of Rs. 1,500/- i.d. thereof, RI for further period of 1½ months for commission of the offence punishable under Section 25 (1) (a) of the Arms Act, RI for three years and fine of Rs. 1,000/- i.d. thereof RI for further period of one month for commission of the offence punishable under Section 25 (1) (b) of the Arms Act and RI for three years and fine of Rs. 1,000/- i.d. thereof, RI for further period of one month for commission of the offence punishable under Section 27 of the Arms Act. It is also ordered that all the substantive sentences imposed on the accused shall run concurrently.
2. At the outset, be it noted that Fazlu-Ur-Raheman alias Fazlu alias Sing alias Mona alias Tanvir alias Doctor Abdul Basitali, originally belonged to Darbhanga, Bihar and at present at Dubai, Arabstan hatched the conspiracy to kidnap for ransom but he could not be arrested and, therefore, six accused persons who were arrested came to be charge-sheeted and prosecution was launched against them, and were charged for commission of the offences punishable under Sections 364A, 387, 120B and 511 IPC and also under Sections 25 (1) (a), 25 (1) (b) and 27 of the Arms Act. During the course of the trial, accused No. 6 has died, therefore, prosecution launched against him came to be abated. Since there is no evidence against accused Nos. 4 and 5, they came to be acquitted. Accused No. 3 absconded during trial. Therefore, the trial court has ordered to keep the case pending against Fazlu Raheman who has not been arrested till today and accused No. 3 who has been absconded during trial, till they are arrested.
3. The prosecution case as disclosed from the FIR and unfolded during trial, is as under.
3.1. PW-1, Pradip S. Mehta, a resident of 16, Jay Bungalows, Amavasyam Society, Opposite Lav-Kush Society, Ring Road, Satellite, Ahmedabad, doing business of export and import in the name and style of Vishal Export Overseas Limited, Toran Dinning Hall Street, Opposite Sales India, Navrangpura, Ahmedabad, lodged FIR with DCB Police Commissioner, Ahmedabad City, wherein it is, inter-alia, stated by him that for doing business he used to come to his office in Maruti Zen Car, every day at 10 A.M. and the car was driven by driver Laxmanbhai Ahir and he remain in the office till 8.30 P.M.
3.2. On 1.5.2000 when he was in the office, he received a telephone call on his telephone No. 7543251 between 1.30 and 2 P.M. From the opposite side, a person speaking in Hindi introduced himself saying Fazlu speaking from Dubai. He asked PW-1, how are you Pradipji. He inquired as to whether did PW-1 know him. PW-1 told in Hindi that he does not know him. The person from the other s
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