{"id":107987,"date":"2007-04-24T00:00:00","date_gmt":"2007-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdulvahab-abdul-majid-shaikh-vs-state-of-gujarat-on-24-april-2007"},"modified":"2015-03-25T13:31:04","modified_gmt":"2015-03-25T08:01:04","slug":"abdulvahab-abdul-majid-shaikh-vs-state-of-gujarat-on-24-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdulvahab-abdul-majid-shaikh-vs-state-of-gujarat-on-24-april-2007","title":{"rendered":"Abdulvahab Abdul Majid Shaikh & … vs State Of Gujarat on 24 April, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Abdulvahab Abdul Majid Shaikh & … vs State Of Gujarat on 24 April, 2007<\/div>\n
Author: K Balakrishnan<\/div>\n
Bench: K.G. Balakrishnan, G.P. Mathur<\/div>\n
           CASE NO.:\nAppeal (crl.)  525 of 2004\n\nPETITIONER:\nAbdulvahab Abdul Majid Shaikh & Ors\n\nRESPONDENT:\nState of Gujarat\n\nDATE OF JUDGMENT: 24\/04\/2007\n\nBENCH:\nK.G. BALAKRISHNAN & G.P. MATHUR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
WITH
\nCRIMINAL APPEAL NOS. 1316-17 OF 2004
\nState of Gujarat \t\t\t\t\t\tAppellant
\nVersus
\nAbdulvahab Abdulmajid Shaikh & Ors.\t\tRespondents
\nCRIMINAL APPEAL NO. 1318 OF 2004
\nState of Gujarat\t\t\t\t\t\tAppellant
\nVersus
\nSalim Noormahammad Haveliwala & Anr.\tRespondents<\/p>\n
K.G. BALAKRISHNAN, CJI<\/p>\n
\tAll these appeals arise out of a Common Judgment in
\nTADA Crime Case No. 4\/1995 and TADA Crime Case No.
\n27\/1996 delivered by the Additional Designated Judge at
\nAhmedabad.\n<\/p>\n
\tThere were 11 accused persons before the Designated
\nCourt charged for various offences under the Indian Penal
\nCode (IPC), TADA Act, Indian Passport Act, Motor Vehicles Act
\nand Bombay Police Act.  By the impugned judgment, A-1 to A-
\n4 and A-9 were convicted for the offences punishable under
\nSection 120 B IPC and under Sections 342, 365 and 384 IPC
\nread with Section 120 B IPC, but all the accused were
\nacquitted of various other charges framed against them. Out of
\nthe 5 accused convicted by the designated court, 3 of them
\nhave filed Criminal Appeal No. 525\/2004 and the two other
\nappeals before us have been preferred by the State of Gujarat
\nchallenging the acquittal of the other accused.\n<\/p>\n
\tThe case of the prosecution was that PW 3 Jayendra
\nMahendra Tripathi was a builder having a construction
\ncompany of his own.  He was also working as a teacher during
\nthe relevant period and staying in Kundan Apartment in
\nVasna area in Ahmedabad.  The office of the construction
\ncompany was in Deep Apartment at Vasna.  He used to go to
\nhis office in the evening.  On 19.1.1994, he left his house at
\n4.00 p.m. on way to the office. Walking towards office, when
\nhe reached the place near Vasna Bus Stand, a Maruti van
\ncame and stopped near him.  He was shown a visiting card by
\nthe occupants of the van to enquire about the address
\nmentioned thereon.  While PW 3 Jayendra Mahendra Tripathi
\nwas reading the visiting card, somebody pushed him from
\nbehind and he was forced into the Maruti van.  Inside the van,
\nhis head and face were covered with a woolen cap.  5-6
\npersons were sitting in the Maruti van and after the victim was
\nforced into the van, the van moved and travelled for 30-45
\nminutes and eventually he was taken to the cellar of a
\nbuilding.  There, the victim gave the telephone number of his
\nconstruction company, but as there was no response from that
\ntelephone number, he gave the telephone number of his friend
\nK.K. Vaidh.  PW 3 Jayendra Mahendra Tripathi was kept in a
\nroom in that building and according to the prosecution, the
\naccused persons made a demand of Rs. 5 lakhs from the
\npartners of the construction company.\n<\/p>\n
\tThe partners of the construction company withdrew Rs.
\n10 lakhs from the Union Bank of India and a relative of the
\nvictim, namely, PW 4 Kirtikumar Tapishanker Tripathi, was
\nasked to come with Rs. 3 lakhs near Anjali Cinema on
\n19.1.1994 at an evening time by the victim himself who spoke
\nto him on telephone.  He was asked to come by a rickshaw and
\nto handover Rs. 3 lakhs to a person who would identify
\nhimself by a code (No. 500).  He came with Rs. 3 lakhs near
\nAnjali Cinema Square Road.  A person came on a motorcycle,
\nidentified himself with the aforesaid code and the bag
\ncontaining Rs. 3 lakhs was given to that person.\n<\/p>\n
\tPW 2 Harshad Premjibhi Gajjar gave a complaint to the
\npolice on the same day, i.e. 19.1.1994.  A case was registered
\nby PW 14 Police Inspector and investigation started.  During
\ninvestigation, the house of A-6 Salim Haveliwala was searched
\non 23.3.1994 and a sum of Rs. 50,000\/- was recovered.
\nThereafter, the house of his father-in-law A-7 Yakub Ganibhai
\nwas also searched and Rs. 1,75,000\/- was recovered.  Bundles
\nof notes recovered from his house were showing the slips of
\nUnion Bank of India, C.G. Road, Relief Road and Rajpur
\nbranches, Ahmedabad.  During investigation, A-1 Abdulvahab
\nAbdulmajid Shaikh, A-5 Mohammadrafik Abdulrahim Shaikh,
\nA-3, Abdulsattar @ Sattar Ghanti, A-4 Mahammadsalim @
\nSalim Tolo and A-2 Najirmahammad Alimahammad Vora were
\narrested.  Pursuant to the information furnished by A-4
\nMahammadsalim @ Salim Tolo, six cartridges were recovered
\nfrom a heap of bricks. On 8.9.1994, the investigation was
\ntaken over by ACP Shri B.R. Patil.  He arrested A-9 Musakhan
\n@ Babakhan Ismailkhan Pathan.  This accused expressed his
\ndesire to give a confession and A-9 Musakhan @ Babakhan
\nwas produced before PW 1 DCP, Shri Suroliya.  Shri Suroliya
\nrecorded the confession statement of A-9 Musakhan @
\nBabakhan and the investigating officer finally filed the charge-
\nsheet.\n<\/p>\n
\tOn the side of the prosecution, 18 witnesses were
\nexamined and series of documents were produced by the
\nprosecution as exhibits.  The appellants, when questioned
\nunder Section 313 Cr. PC, completely denied their involvement
\nin the case. A-6 Salim Haveliwala and A-7 Yakub Ganibhai
\nadmitted the recovery of Rs. 50,000\/- and Rs. 1,75,000\/-
\nrespectively from their houses, but contended that the money
\nbelonged to them.  A-9 Musakhan @ Babakhan stated that he
\nwas never produced before PW-1 DCP, Shri Suroliya and
\ndenied having given any statement before him.\n<\/p>\n
\tThe Designated Judge, though accepted the evidence of
\nrecovery of the money from the two accused, held that the
\nprosecution could not prove their identity and hence no
\nimportance was attached to the recovery effected by the police.
\nIn the appeals filed by the State, the main thrust has been
\ngiven to the acquittal of these accused persons and it has been
\nurged that the Designated Judge failed to appreciate the
\nevidence in proper perspective.  The Designated Judge relied
\non the confession statement given by A-9 Musakhan @
\nBabakhan and it was held that the confession given by A-9
\nMusakhan @ Babakhan has been supported by other items of
\nevidence and on that basis A-1 to A-4 and A-9 were convicted
\nfor some of the offences charged against them.\n<\/p>\n
\tThe short question that arises for consideration is
\nwhether the confession given by A-9 Musakhan @ Babakhan
\ncould be relied upon.  The learned Counsel for the appellants
\nstrenously urged before us that the confession made by A-9
\nMusakhan @ Babakhan was not at all truthful and voluntary
\nand it was prepared at the instance of the two police officers
\nand therefore, it is not admissible under Section 15 of the
\nTADA Act.  The learned Counsel for the appellants also
\ncontended that the confession of a co-accused is not a
\nsubstantive piece of evidence and if at all, it could be relied on
\nonly as a corroborative piece of evidence and in the absence of
\nany other evidence the confession of a co-accused by itself
\nshall not be used as primary evidence to prove the complicity
\nof the co-accused and convict him.  Reliance was placed on
\nthe decision of the Privy Council in Bhuboni Sahu Vs. R  [AIR
\n1949 Privy Council 257] and it was urged that the confession
\nof a co-accused is obviously a fragile and feeble type of
\nevidence and it could only be used to lend credence to other
\nitems of evidence.  Our attention in this behalf was drawn to
\nSection 30 of the Indian Evidence Act, the application of which
\nwas explained in detail in Haricharan Kurmi Vs. State of
\nBihar   [1964 (6) SCR 623].\n<\/p>\n
\tIt is true that the confession of the co-accused by itself is
\nnot sufficient to find a co-accused guilty unless there is other
\nsupporting evidence to prove that the accused was guilty.  In
\nState through Superintendent of Police, CBI\/SIT   Vs.
\nNalini and Others (1999) 5 SCC 253, this court held that the
\nconfession is a substantive piece of evidence, but as a ‘Rule of
\nPrudence’ the Court should seek other corroborative evidence
\nto test its veracity.  Having regard to the above principle, we
\nfind that the evidence in this case indicates that there is
\nsufficient corroboration of the confession given by A-9
\nMusakhan @ Babakhan.  It is to be remembered that all
\nprocedural formalities were complied with in recording the
\nconfession of A-9 Musakhan @ Babakhan.  The learned
\nCounsel for the appellant in Criminal Appeal No. 525\/2004
\nvehemently contended that the confession given by A-9
\nMusakhan @ Babakhan was retracted the moment he was
\nproduced before the Magistrate and, therefore, it is to be
\ntreated as “not voluntary”.  The learned Counsel also pointed
\nout that when PW-1 DCP, Shri Suroliya was recording the
\nconfession of A-9 Musakhan @ Babakhan, the Magistrate was
\nvery much available and the Police Officer should have
\nproduced the accused before the Magistrate in order to record
\nthe confession of the accused.  It was argued that failure to
\nproduce the accused before the Magistrate indicated that the
\nconfession was not voluntary and the same was not given by
\nthe accused.  We do not find much force in this contention.
\nThe Police Officer was empowered to record the confession and
\nin law such a confession is made admissible under the
\nprovisions of the TADA Act.  The mere fact that A-9 Musakhan
\n@ Babakhan retracted subsequently is not a valid ground to
\nreject the confession.  The crucial question is whether at the
\ntime when the accused was giving the statement he was
\nsubjected to coercion, threat or any undue influence or was
\noffered any inducement to give any confession.   There is
\nnothing in the evidence to show that there was any coercion,
\nthreat or any undue influence to the accused to make the
\nconfession.  A-9 Musakhan @ Babakhan who was questioned
\nunder Section 313 Cr. PC had no case that he was subjected
\nto any third degree treatment or threatened with dire
\nconsequences.  He only stated that he had not given any
\nstatement before PW-1 DCP, Shri Suroliya.\n<\/p>\n
\tThe narration of evidence given by A-9 Musakhan @
\nBabakhan would show that the confession was voluntary.  A-9
\nMusakhan @ Babakhan had given various details of the
\nconspiracy of kidnapping and subjecting the victims to
\nwrongful confinement.\n<\/p>\n
\tThe relevant portion of the confession relating to the
\nkidnapping of PW-3 Jayendra Mahendra Tripathi are given by
\nA-9 Musakhan @ Babakhan in his confession  as follows :\n<\/p>\n
“.\tAfter four or five days of last Uttarayan,
\nSherjada called Nazir Vora, Salim Tola, Sattar
\nBattery and me at the house of Wahab situated at
\nDevi Park Society in Dani-Limda.  When we went
\nthere, Sherjada and Wahab were present.  Sherjada
\nand Wahab made a plan to kidnap one Jayendra
\nTripathi, a builder at Vasna and deciding this, at
\nabout 3 pm., we took the Maruti Van of Sherjada
\naffixing bogus number plate on it and went to
\nVasna.  Wahab and Sherjada had revolvers.\n<\/p>\n
Sherjada was knowing Jayendra Tripathi and he
\nhad also seen his house.  Hence, while going near
\nKundan Apartment, situated near Mehta Hospital in
\nVasna, there is house of Tripathi and we sat there
\nin Maruti Van for keeping watch.  At 4 PM,
\nJayendra Tripathi used to go out from his home,
\nwhich was told by Sherjada.  Therefore, we waited
\nfor some time.  At about 4:00 hrs., when Jayendra
\nTripathi came out, Sherjada identified him and from
\nthere he kidnapped him and threw him in Maruti
\nVan applying old cap and took him to Devi Park.
\nTaking the telephone number of victim’s friends and
\nrelatives, Wahab and Sherjada threatened them on
\nphone and extorted money.  On the next day,
\nTripathi was released.  I was taking lunch and Tiffin
\nfrom outside for Tripathi.  But for this work, no
\nmoney was paid to me.\n<\/p>\n
”\n<\/p>\n
\tFrom the confession statement, it is evident that
\nsome persons came to Vasna area and while PW-3
\nJayendra Mahendra Tripathi was walking near the
\nKundan Apartment, he was kidnapped and forced into
\nthe Maruti van and his face and head were covered by an
\nold cap and he was taken to Devi Park.  A-9 Musakhan @
\nBabakhan speaks about the involvement of other
\naccused persons.  In the confession, it is also stated that
\nPW-3 Jayendra Mahendra Tripathi was released on the
\nnext day after the ransom amount was paid.  A-9
\nMusakhan @ Babakhan also says that he was not paid
\nanything in this transaction.  The fact that a Maruti van
\ncame and PW-3 Jayendra Mahendra Tripathi was
\nkidnapped in that vehicle is spoken to by the victim
\nhimself who was examined as a witness for the
\nprosecution.\n<\/p>\n
\tThese appeals before us are disposed of as follows.
\nCriminal Appeal No. 525\/2004<\/p>\n
\tThe main evidence in this case is the confessional
\nstatement of accused Musakhan @ Babakhan.  Of course, the
\nconfession statement is generally not treated as the primary
\nevidence, but this Court in Nalini’s case (supra) has held that
\nthe confession recorded under Section 15 of the TADA Act is a
\nsubstantive piece of evidence and it could be accepted
\nprovided there is corroboration by other material particulars.
\nIn the instant case, there is substantial corroboration of the
\nconfession of A-9 Musakhan @ Babakhan by other items of
\nevidence.   The counsel for the appellants strongly urged
\nbefore us that the confession itself is highly suspicious and it
\ncannot be relied upon to convict the appellants, but we find no
\nforce in that contention.   The confession was recorded strictly
\nin accordance with Section 15 of the TADA Act.   The accused
\nwas apprised of the fact that in case any such confession is
\nmade, it would be used against him.  The police officer who
\nrecorded the confession also stated that it was voluntary in
\nnature.   The counsel for the appellants contended that the
\nChief Judicial Magistrate was readily available to record the
\nconfession and when  such a facility was available, the police
\nofficer should not have recorded the confession.  It was also
\npointed out that when A-9 Musakhan @ Babakhan was
\nproduced before the C.J.M., he retracted the confession and
\nthat itself is sufficient to hold that the confession was not
\nvoluntary in nature.   Under Section 15 of the TADA Act, a
\npolice officer is permitted to record the confessional statement
\nof accused and certain strict procedure is prescribed.  The
\nappellants have no case that this procedure has in any way
\nbeen violated.    Merely because the confession was retracted,
\nit may not be presumed that the same was not voluntary.   It
\nis important to note that when A-9 Musakhan @ Babakhan
\nwas produced before the Magistrate, he had no case that he
\nwas subjected to any third degree method.   He only stated
\nthat he had not made any confession before the police.
\n \tIn the confessional statement, A-9 Musakhan @
\nBabakhan has given detailed narration of the incident relating
\nto the abduction of victim Jayendra Mahendra Tripathi.   He
\nstated that accused  Vahab & Sherzada were armed with
\nrevolvers.  In the course of investigation, the revolver was
\nrecovered  from one of the accused.    The accused was seen at
\nthe apartment near the Mehta hospital in Vasna where the
\nvictim Jayendra Mahendra Tripathi was staying.   The accused
\nstated in his confession statement that Jayendra Mahendra
\nTripathi was abducted at about 4 p.m. when he came out of
\nthe house.   The victim Jayendra Mahendra Tripathi was
\nexamined as PW-3.   He deposed that he had been staying at
\nKundan apartments in Vasna. He further deposed that on
\n19.1.1994 at about 4 o’ clock he started from his  house for
\nhis office and on the way 5-6 persons came in a Maruti van
\nand he was forcibly dragged into that Maruti van and taken  to
\nsome distant place.  He also deposed that he was asked to give
\nthe telephone number of his company and that he gave the
\ntelephone number of his friend also. All these facts are spoken
\nof by A-9 Musakhan @ Babakhan in his confession statement.
\n\tTo prove the abduction and extortion of money from
\nJayendra Mahendra Tripathi, the prosecution examined
\nseveral other witnesses.   PW-7 deposed that Mahendrabhai,
\nthe partner of Tripathi had withdrawn Rs. 10 lakhs from the
\nUnion Bank of India by giving four cheques.   PW-4 Kirtikumar
\nTapsishanker Tripathi deposed that he had paid Rs. 3 lacs to
\none motorcyclist on 21.1.1994.   It is also pertinent to note
\nthat in the confession statement,  A-9 Musakhan @ Babakhan
\nreferred to the presence of A-1, A-2, A-3  and A-4 in the
\nconspiracy and  later in the abduction of Jayendra Mahendra
\nTripathi.\n<\/p>\n
\tOn consideration of confession statement, which is amply
\ncorroborated by other items of evidence, we have no hesitation
\nin accepting the same as truthful and voluntary.  The
\ncomplicity of A-1 to A-4 in the abduction is proved beyond
\nreasonable doubt.\n<\/p>\n
\tIn the result, the conviction of these three appellants for
\nthe offences punishable under Sections 120-B,  342, 365, 384
\nread with Section 120-B of the IPC is only to be confirmed.
\nCriminal Appeal No. 525 of 2004 would accordingly stand
\ndismissed and the appellants would surrender to their bail
\nbonds.\n<\/p>\n
Criminal Appeal No. 1318\/2004
\n\tIt is an appeal preferred by the State against the
\nacquittal of A-6 and A-7.   Counsel for the appellant-State
\nsubmitted that the  acquittal of A-6 and A-7 was  palpably
\nwrong as there is evidence  to show that they were party to the
\nabduction and extortion of money from the victim.   This
\nsubmission is based on the evidence of recovery of Rs.
\n50,000\/- from the house of A-6 Salim Noor Mohammed  and
\nRs.1,75,000\/- from the house of A-7 Yakub Ganibhai.    The
\nrecovery of these amounts, though stands proved, the
\nprosecution could not prove that these amounts were actually
\nthe amounts paid by the agents of Tripathi as ransom to these
\naccused.   These accused gave some explanation as to how
\nthese amounts  happened to be in their house.  A-6 claimed
\nthat it was an amount belonging to him and he was keeping it
\nfor his business purposes.    There was no bank slip or any
\nother item of evidence to show that the amount was
\nwithdrawn from the bank  on 21.1.1994.   Though the bank
\nofficials were examined as prosecution witnesses, they also
\ncould not give any satisfactory evidence to prove that the
\ncurrency notes recovered from these two accused were
\nrelatable  to the amounts withdrawn from the Bank.
\nMoreover,  in the   confession statement,  A-9 did not involve
\nthese accused.    In the above circumstances, the acquittal of
\nA-6 and A-7 was correct.  The appeal is without any merit and
\nis dismissed accordingly.\n<\/p>\n
Criminal Appeal Nos. 1316-17\/2004
\n\tThese appeals are filed against acquittal of all the
\naccused charged for offences punishable under the TADA Act.
\nThese accused were charged under Sections 3 and 5 of the
\nTADA Act read with Section 120-B IPC.   The ground urged by
\nthe appellant-State is that Jayendra Mahendra Tripathi was
\nabducted at gun point from a notified public place and that
\nthe accused are hardcore criminals.   Therefore,  they ought to
\nhave been convicted under Sections 3 and 5 of the TADA Act.
\n\tThe contention of the State is that these accused should
\nnot have been acquitted of the charges under Sections 3 and 5
\nof TADA Act as the crime committed by them was of grave
\nnature and came within the purview of the said provisions of
\nthe TADA Act.  It is further contended that the Special Judge
\nhas not given any specific reasons as to why these accused
\nwere acquitted of the charges.  But the prosecution could not
\nadduce any evidence to prove that these accused had
\ncommitted the offences charged against them.  The act of
\nkidnapping for extorting ransom from the victim cannot be
\ntermed as an act committed “with intent to overawe the
\nGovernment as by law established”.  There is also no evidence
\nto show that the accused intended to strike terror in the
\nlocality. Their primary objective was to extort money from the
\nvictim.  There is also no evidence to show that these accused
\nwere supporting any communal elements or intended to create
\ndisharmony among different sections of the people.  These are
\nall main ingredients to constitute offence punishable under
\nSection 3 of the TADA Act.  So also, there is no evidence to
\nshow that these accused were in possession of any arms or
\nammunition during the commission of the crime, for which
\nthey have been charged.  The accused have been rightly
\nacquitted.  Criminal Appeal Nos. 1316-17\/2004 are without
\nany merits and dismissed accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Abdulvahab Abdul Majid Shaikh & … vs State Of Gujarat on 24 April, 2007 Author: K Balakrishnan Bench: K.G. Balakrishnan, G.P. Mathur CASE NO.: Appeal (crl.) 525 of 2004 PETITIONER: Abdulvahab Abdul Majid Shaikh & Ors RESPONDENT: State of Gujarat DATE OF JUDGMENT: 24\/04\/2007 BENCH: K.G. BALAKRISHNAN & G.P. MATHUR JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-107987","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAbdulvahab Abdul Majid Shaikh & ... vs State Of Gujarat on 24 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdulvahab-abdul-majid-shaikh-vs-state-of-gujarat-on-24-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdulvahab Abdul Majid Shaikh & ... vs State Of Gujarat on 24 April, 2007 - 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