Kumar @ Prakash Bhutto Vs. State of
Gujarat  Insc 444 (24
K.G. BALAKRISHNAN & G.P. MATHUR
CRIMINAL APPEAL NO. 545 OF 2001 Abdulwahab Abdulmajid Shaikh & Ors. Appellants
Versus State of Gujarat Respondent CRIMINAL APPEAL NO. 665 OF 2001 Musa Khan @
Baba Khan Appellant Versus State of Gujarat Respondent 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 shared amongst all the accused. The
major share of Rs. 4 lacs was paid to accused No. 1 Abdulwahab. An amount of
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 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 :
Though in State through Superintendent of Police, CBI/SIT 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
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 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
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