Abdulvahab Abdulmajid Shaikh & Ors Vs. State of Gujarat  Insc 440 (24 April
K.G. BALAKRISHNAN & G.P. MATHUR
CRIMINAL APPEAL NO. 129 OF 2005 State of Gujarat Appellant Versus Abdulvahad
Abdulmajid Shaikh & Ors. Respondents CRIMINAL APPEAL NO.130 OF 2005 State
of Gujarat Appellant Versus Yasin Ganibhai Haveliwala & Ors. Respondents
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 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 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 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
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:- ". 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 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
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 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.
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."
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 (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 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
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 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.