Devayatbhai Bhimbhai Khachar and Others vs State of Gujarat

Ravi R.Tripathi, J.—All these four appeals are filed against thejudgement and order dated 29th January, 1999 in SessionsCase No. 139 of 1998 by the learned Additional CitySessions Judge, Court No.9, Ahmedabad. The accused no.4was not held guilty under Sections 232 of the Code ofCriminal Procedure for the offence punishable underSections 347 and 365 read with Section 120B of theIndian Penal Code and also u/s 392 and 397 readwith Section 120B of the Indian Penal Code.

The appellants in Appeal No. 155 of 1999 areaccused nos. 1, 2, 5 and 6. They were held guilty underSection 235(2) of the Criminal Procedure Code for theoffence punishable under Sections 347 and 365, 392 and 397 read with Section 120B of the Indian Penal Code.

The appellant in Criminal Appeal No. 162 of 1999is the accused no.8 in Sessions Case No.139 of 1988 andhe was also held guilty under Sections 347, 365, 392 and 397 read with Section 120B of the Indian Penal Code.

The appellant in Criminal Appeal No. 256 isoriginal accused no.7 in Sessions Case No.139 of 1998 andhe was held guilty under Sections 347, 365, 392 and 397 read with Section 120B of the Indian Penal Code.

The appellant of Criminal Appeal No. 286 of 1999is original accused no.3 in Sessions Case No. 139 of1998 and he was also held guilty under Sections 347, 365, 392 and 397 read with Section 120(B) of the Indian PenalCode.

The learned Judge was pleased to pass thefollowing order of sentence :

(a) Accused no. 1, 2, 3, 5, 6, 7 and 8 were ordered to suffer R.I. for 7 years and pay fine of Rs. 1000 each in default to suffer more R.I. for 15 days.

(b) Accused no. 1, 2, 3, 5, 6, 7 and 8 are ordered to suffer R.I. for 10 years for the offence punishable u/s 392 and to pay fine of Rs. 1000 each in default more R.I. for 15 days.

(c) Accused no. 1, 2, 3, 5, 6, 7 and 8 are ordered to suffer R.I. for 7 years for the offence punishable u/s 397 and fine of Rs. 1000 each in default to suffer more R.I. for 15 days.

(d) Accused nos. 1, 2, 3, 5, 6, 7 and 8 are ordered to suffer R.I. for one year and to pay fine of Rs. 200 each in default to suffer more R.I. for one week.

(e) No separate sentence for offence punishable u/s 120(B) to accused no. 1, 2, 3, 5, 6, 7 and 8 was passed ;

(f) Substantive sentence is to run concurrently.

The case of the prosecution is that on 2ndOctober, 1996, one Alkaben, wife of Ajitbhai ChhaganbhaiVithlani, gave a complaint to Ghatlodia Police Stationthat her husband, Ajitbhai Chhaganbhai Vithlani, is amedical practitioner, residing at A/5, AnandbaughTenements, Opposite Alkapuri Society, Ghatlodia,Ahmedabad. He is having a clinic at Agrawal Tower atBhuyangdev area. He attends clinic in the morning from9.00 a.m. to 1.00 p.m. and in the evening from 5.00p.m. to 9.00 p.m. Over and above, he attends personalvisits. Generally, he goes for `visit'' in his own car,but, yesterday, he had to go to Chanakyapuri and so, hehas gone in the patient''s jeep. On 1st October, 1996 atclinic, there was a telephone call to Dr. Vithlani atabout 9.00 p.m. conveying that one patient is seriousand he has to visit at Chanakyapuri. A vehicle is beingsent and he has to come in the said vehicle. At 9.15p.m., Dr. Vithlani returned from the clinic. He talkedto the complainant that he had to go for a `visit'' atChanakyapuri to examine a patient. Meanwhile, one Jeepbearing Registration No. GJ1-HH-3785 having brown colourcame at about 9.40 p.m. wherein one person was sittingwith driver. A person, who was aged about 25 to 30 yearsand who was wearing khakhi colour clothes, had alightedfrom the jeep, after which Dr. Vithlani boarded the jeepand went along. He did not return upto 1.00 a.m. atnight. Hence, the complainant made search in theadjoining areas, but no whereabouts were available of herhusband and ultimately, she gave a complaint to thepolice. She has further stated in the complaint that onthe day of complaint at about 8.40 a.m. in the morning,she received a telephone call; she was told that onePravinkumar Patel from Saijpur Tower is speaking, and;she was also told that they have taken her husband for the `visit'' yesterday and that as the patient has died,they have detained the Doctor. It was also informed thatonly if Rs.10 lacs is paid, the doctor will be released.She was told that one Salimbhai will telephone her in theevening. Hence, the complainant felt that her husband isabducted under a false pretext of a `visit'' of a patientand therefore, she filed a complaint before the police.

Mr. R.H. Rathod, Police Inspector, who wasserving in `Crime Branch'' at the relevant point of time,on receiving the information that one doctor is abductedfrom Ghatlodia Police Station area, had gone to Ghatlodiaand gathered information from the investigation officer,complainant and witnesses. During the day, he continuedthe search of the doctor and accused persons. At lateevening, he received information from the informant thatDr. Vithlani, who is abducted, is detained in a field ofDevayat Khachar of Village : Noli, Taluka : Sayla,District : Surendranagar. It is the case of theprosecution that the Police Inspector had gone along withpanchas and found the doctor and some accused personsthere. A Panchnama was drawn, certain articles wererecovered from the place where the doctor was keptconfined and the accused were arrested.

The Police Inspector, thereafter, recorded thestatement of Dr.Vithlani and after investigation, achargesheet was submitted before the learned MetropolitanMagistrate.

The learned Metropolitan Magistrate supplied thepolice papers to the accused and recorded theirstatements. As the offence alleged to have beencommitted by the accused was exclusively triable by theCourt of Sessions, the learned Metropolitan Magistratecommitted the case to the Court of City Sessions Judge atAhmedabad.

The prosecution has examined Dr.AjitbhaiChhaganbhai Vithlani as PW-4 at Exh. 43. He is the starwitness, who has deposed before the Court giving accountof the entire incident in detail. He has stated that on1st October, 1996, when he was at his clinic, he receiveda telephone call at about 8.30 p.m. informing that, "I,your patient, Rameshbhai, is speaking. The callerinquired as to by what time, he reaches home afterclosing the clinic." Dr. Vithlani replied that hereturns home at 9.00 p.m. after closing his clinic. Itwas further conveyed by the said telephone call that, "apatient is serious and the doctor has to come for visitin Chanakyapuri area." It was also informed that, "adriver will come to take the doctor with a vehicle."

The doctor then went to his residence andinformed about the telephone call received by him to hiswife. In turn, the doctor''s wife informed that a similartelephone call was received at the residence. Aftertaking supper, when the doctor came out to park his carin the compound, a jeep came with two persons at about9.40 p.m. It was a commander jeep bearing registrationNo. GJ1-HH-3785. The driver of the jeep came to thedoctor and enquired as to whether he is the doctor and onhis replying in the affirmative, the driver told thedoctor that he has come to take him for a `visit'' inChanakyapuri. The doctor enquired from that person as towhere he has to go in Chanakyapuri area, to which thatperson replied that there was a telephone call fromRameshbhai and we have to go there. The doctor thenenquired as to what is the telephone number of the placewhere we have to go. The driver replied that he does notknow the telephone number, he is only a driver. Thedoctor has described this man to be of normal structure,blackish in colour and having marks on his face. Thedoctor has identified this person in the Court, who isaccused no.3.

The doctor has also deposed before the Court thathe had identified this person in the test identificationparade (hereinafter referred to as "T.I. Parade" forshort).

The doctor has deposed that the driver had toldhim that, "he does not know the address, but he has seenthe place. He told the doctor that you sit in thevehicle, I will drop you back." After the aforesaidconversation with the driver, the doctor went inside thehouse to collect his visit bag. The wife of the doctoraccompanied him while coming out. The doctor informedhis wife that neither the telephone number nor theaddress of the place of the visit is known, but she maynote down the (registration) number of the jeep. Thedoctor has categorically deposed that along with thedriver, there was another person sitting in the jeep; thedoctor boarded the jeep; then, it started, from Ghatlodiawater tank, the jeep took a turn and it was onJanatanagar Road and just before reaching JanatanagarRailway Crossing, the jeep had slowed down and at thattime, two persons standing there boarded the jeep andtook position near the doctor. One person sat on theleft and the other on the right of the doctor. Thedoctor has given description of those two persons statingthat the person sitting on his left was of strongstructure, brownish in colour and had worn white and pantshirt, while the person sitting on the right was thin,tall and having beard and mustaches. The doctoridentified these persons in the Court by saying that theperson who sat on his left is accused no.7 while theperson who sat on his right is accused no.5. The jeepinstead of proceeding towards Chanakyapuri started goingin a different direction and, therefore, the doctorenquired from the persons sitting by his side as to whereare you taking. In response to this, the person sittingon the left of the doctor took out his revolver andplaced at the throat of the doctor and the person sittingon the right took out knife and placed at the waist ofthe doctor and told that, `keep quite, do not make anynoise; you are under our control, and; have to act as perour orders''. The doctor was frightened and, therefore,kept quite. The jeep then accelerated and was on the`Sarkhej-Gandhinagar Highway'' - proceeding towardsSarkhej. Both the persons sitting by the side of theDoctor started searching the doctor. Wallet was takenout from the pocket and Rs.400 to Rs.500 along with fewvisiting cards and other miscellaneous papers were takenby the person sitting on the left of the doctor. Afterthe jeep proceeded towards Sarkhej, the person sitting onthe left applied thin insulation tape on both the eyes ofthe doctor and also made the doctor to wear blackcoloured goggles. The doctor has deposed that inapplying the insulation tape, there was some gap in thelower portion, from that he could see that the jeepturned towards Thaltej Village from Thaltej Cross Roadsand proceeded beyond Thaltej Village, on unknown road.He has further deposed that after a drive of about 3hours, the jeep stopped in a field and there, they madedoctor alight from the jeep and removed the black goglesand the insulation tape. Thereafter, the doctor was madeto walk for about one and a half kilometre, then he wasmade to sit near a room situated in some other field.The two persons, who were sitting in the jeep, took outtheir weapons. The driver and the person accompanyinghim also took out their weapons. The driver was having aknife while the remaining three were having revolvers.All these four persons started threatening and enquiringthe doctor. The person, who sat on the left of thedoctor, told him first that, "We want Rs.10 lacs andonly on receiving the same, we will release or else wewill not release. If we receive Rs.10 lacs, then only wewill release." The remaining three enquired as to fromwhere and from whom this money will be received. Inresponse to that, the doctor replied that he does nothave this amount. Then, these four persons told thedoctor that, "We have taken this much risk, we will notlet you go for nothing." Thereafter, they inquired aboutother sources from whom, they can get; they asked for thedetails of relatives or friends. Meanwhile, one personwith a spear came near the doctor. He enquired as towhom have they brought. The four persons replied that"He is a doctor". The person with a spear placed thespear at the chest of the doctor, at that time, theperson with white pant and shirt dispossessed the doctorof his wrist watch. The doctor has reiterated that theperson, who was sitting on his left in the jeep, waswearing white pant and shirt. The doctor identified theperson, who had pointed spear at his chest, as accusedno.1 in the Court. The doctor has further deposed thatthereafter, they had enquired the telephone numbers ofhis relatives and friends; the doctor had given thetelephone number of his brother-in-law, Deepakbhai,residing at Vadodara, which was 644164. The doctor hadalso given the telephone number of his Advocate friend,Mr. Kaushikbhai Pujara, which was 7473916. The thirdtelephone number which was given was of doctor''sresidence, that is, 7476933 and the fourth telephonenumber was of his patient friend, Mr. Amratbhai Birla,that is, 7470570. All these telephone numbers were noteddown by the person who was sitting on the left of thedoctor in the jeep, who had worn white pant and shirt.The person, who had noted down these telephone numbers,and some other persons enquired as to whether from thepersons of these telephone numbers, whether they will beable to get Rs.10 lacs, to which the doctor replied thatthey may or may not get immediately. Thereafter, theperson with white pant and shirt had left that place andwith him, one another person also had left. Otherpersons had detained the doctor in the room situated inthe field and the doctor was told that until money isreceived, he will have to stay there. The doctor wasdetained there for the night of 1st October, 1996, dayand night of 2nd October, 1996 and till morning of 3rdOctober, 1996. On 3rd October, 1996, the police hadreached there and had rescued the doctor.

The doctor has further deposed that while thedoctor was in the room situated in the field, the personhaving beard and mustaches, who sat on his right in thejeep, and the person wearing khakhi clothes, who wassitting in the front seat of the jeep, were keepingconstant watch while other three persons were coming andgoing and keeping watch. The doctor has further deposedthat on 03/10/1996, in the morning, when the policereached there, three persons were present while twopersons had ran away. The doctor identified accused nos.1, 2 and 6 as the persons, who were present when thepolice reached the place. The doctor also identifiedaccused nos. 5 and 8 as the persons, who were constantlykeeping watch on him and had ran away when the policereached on the scene. The doctor has further deposedthat in the room, there was an iron chain and two locks.This chain was kept for tying the doctor. In that room,there was a photograph with a frame and a carpet for thedoctor to sit. The photograph was of accused no.5, whowas keeping constant watch on the doctor and who had saton the right side of the doctor in the jeep. The doctordeposed that the police seized the carpet, chain, locks,photograph, etc., from the room. The doctor hasspecifically stated that the accused no.7 had come to thedoctor prior to about one and a half month, with acomplaint of stomachache, as his patient. He had oncecame at the residence and also at the clinic of thedoctor. Thus, he visited thrice as a patient. It isfurther deposed that the doctor had come to know that theplace at which he was confined, was a field of Village :Noli, Taluka : Sayla, District : Surendranagar. Thedoctor was brought to Ahmedabad at about 22.30 hours andwas then taken to Gayakwad Haveli Police Station forrecording his statement. The second statement of thedoctor was recorded after the second T.I. Parade.

The prosecution has also examined the wife of thedoctor, Alkaben, PW-3, at Exh.38. Alkaben has stated theincident corroborating the narration of the doctor. Sofar as it relates to receiving of the call and boardingof the jeep by the doctor for the visit. She has statedthat on 01/10/1996, her husband had reached home at about9.15 p.m. and had informed her that just before leavingthe clinic, he had received a telephone call from oneRameshbhai Patel, who informed him that he has to go fora visit to Chanakyapuri because one patient is seriousthere. She has deposed that relatives of the patient hadcome with the jeep wherein her husband, after talking to her and after having his supper, had gone. She hasdeposed that in the jeep, there was a driver and one moreperson. She has deposed that the person, who got downfrom the jeep, was wearing khakhi clothes and was agedabout 25 to 30 years. She has also identified the personsitting in the jeep as accused no.8. On a query from theCourt, the accused no.8 has given his name to be Babuji.This witness, Alkaben, wife of the doctor, has statedthat she had identified this person in the T.I. Paradebefore the Executive Magistrate. The deposition of thewitness then proceeds to narrate as to what happenedafter the doctor left at about 9.40 p.m. She waited forabout an hour and half and as her husband did not return,she enquired of her husband along with her neighbours.She enquired in the vicinity of Chanakyapuri, but she didnot get any whereabouts of her husband and, therefore, at1.30 a.m. she gave intimation to Ghatlodiya PoliceStation. She has further deposed that the jeep, whichhad came to take her husband, was a "Commander" jeep andits registration number was GJ1-HH-3785. She has alsodeposed that she had seen the driver of the jeep and thatthe said driver is present in the Court and he is accusedno.3, who on enquiry, reveals his name as Joraji Joravarsinh. She identified this Joravarsinh at the timeof her deposition. She also stated that she hadidentified him in T.I. Parade also. She has furtherdeposed that on the night of 01/10/1996, the police hadtold her that she should continue to enquire and thepolice is also enquiring and if any message is received,the same may be intimated to the police. On the next daymorning, at 8.40 a.m., a message was received ontelephone, whereby she was told by the caller that, "I amPravinbhai Patel, from Saijpur Tower. We had taken yourhusband for visit at night and that the patient has diedand, therefore, we have detained the doctor and only ifyou pay Rs. 10 lacs, we will release the doctor. Rs.10 lacs should be kept ready by evening and one Salimbhaiwill inform you in the evening by telephone." Thewitness, Alkaben, informed the details of this telephonecall to Ghatlodia Police Station and filed a full-fledgecomplaint. She also gave the details of the incident,which had taken place before one and a half month beforethe present incident. According to her, after shereturned from the clinic at about 12.30 p.m., a personhad come and told her that, "he is coming fromJantanagar, he is having an ailment of stomachache forquite sometime and the local doctor has asked him to goto Dr. Vithlani and as it is 12.30 p.m. he has come atthe residence." The witness told that person that theclinic is open till 1.00 p.m. and that the doctor willbe available at the clinic. The witness has given thedescription of that person stating that he was of amedium structure, aged about 35 to 40 years, Brownish incolour and had bluish eyes. She has also narrated thaton 01/10/1996 (the day of the incident), the witness andher husband had gone out, from where they had returned atabout 5.45 p.m. At that time, her husband had droppedher at the clinic and came to the residence to collecthis visit bag. At that time, the person, who had cameabout one and a half month before, was present at theclinic. That person showed a chit to the witness andenquired as to whether the telephone numbers writtentherein were that of the doctor. After verifying thetelephone numbers written in the chit, the witness toldthat one telephone number was that of the residence andthe other one was that of the clinic. That personenquired as to whether these telephone numbers arecorrect, the deponent replied in the affirmative.Thereafter, that person enquired as to whether the doctorgoes for a visit, to which the deponent answered in theaffirmative. Thereafter, that person told that yesterdayat about 7.30 p.m., he had made so many telephone calls,but nobody was responding. The deponent enquired as towhether on which telephone number, the calls were made tothat, the person replied that telephone calls were madeon his behalf as he was having some trouble and he wantedto call the doctor at his place. The deponent told thatperson that may be the telephone calls were made at theresidence number, and as it was clinic time, nobody musthave replied at the residence. She also told that, boththe telephones were in working condition. That personthen enquired as to whether the doctor is having twovehicles, to which the deponent could not reply as shewas talking to other patients. That person againenquired as to whether the doctor has sold of his Fronti(Car), to which the deponent replied in negative. Thatperson then told that as he was having stomachache, hewanted to get examined by the doctor. Thereafter, sayingthat he is coming, he left the place. The deponent hasidentified that person as accused no.7, who has statedhis name to be Naresh @ Narsinhbhai @ Dr. MelabhaiRaval. The deponent has also stated that she hadidentified this person before the Executive Magistrate.

Besides these two witnesses, the prosecution hasexamined number of other witnesses, namely, JagdishSundarlal Parmar, PW-1, at Exh.2, Ranjitsingh VeersinhGohel, PW-2, at Exh. 34, Jatankumar Jatil Majmudar,PW-5, at Exh. 45, Dilip Bachubhai Chauhan, PW-6, at Exh.46, Ashokbhai Dwarkadas Pandhi, PW-7, at Exh. 47,Rajubhai Ishwarbhai Kahar, PW-8, at Exh. 48, DilipbhaiVallabhbhai Dutta, PW-10, at Exh. 51, Vinod ShantilalPanchal, PW-11, at Exh. 52, Rajjabbhai Hajibhai Sheikh,PW-12, at Exh. 54, Parmeshwar Prasad Sarvajeet Pandey,PW-13, at Exh. 55, Vijaysinh Gumansinh Jhala, PW-14, atExh.61, Mansinghbhai Devjibhai Chaudhari, PW-15, at Exh.68, Ramprasad Dashrathsinh, PW-16, at Exh. 70 andRajendrasingh Hathisingh Rathod, PW-17, at Exh. 72. Theprosecution has also led documentary evidence in the formof complaint, panchnama, F.S.L. report, etc.

Out of all the witnesses, the complainant and thevictim - Dr. Ajitbhai Chhaganbhai Vithlani are the mostimportant witnesses. From whose deposition, it emergesthat a criminal conspiracy was hatched amongst theaccused before actual commission of the offence. It is amatter of common knowledge that there cannot be strictevidence of conspiracy, but at the same time, it can beculled out from the evidence on record and from the partplayed by each accused, which will be relevant to showthat there was a criminal conspiracy. From the evidenceof Dr. Vithlani and his wife, it is found that there wasan intention of abducting the doctor and then, to demandransom from the wife of the doctor or in the alternativefrom the relatives or friends of the doctor.

From the deposition of Dr.Vithlani, it transpiresthat accused no.1, who is the father of accused nos. 2and 5, had come on the scene during the enquiry made bythe persons, who had brought the doctor with a spear andhad placed the spear at the chest of the doctor. Theaccused no.1 was arrested from the scene of occurrence.The accused no.2 was keeping watch on the doctor and wasalso arrested from the scene of occurrence. The accusedno.3 was the person, who was driving the jeep and who hadbrought the doctor to the field. The accused no.4 isacquitted by the learned Judge. The accused no.5 is theperson who was sitting on the right of the doctor in thejeep, who is extensively described by the doctor beingtall, thin and having beard and mustaches, who was alsofound in the photograph, which was recovered from theroom wherein the doctor was confined. The name of theaccused no.5 is also found on the water pot kept in thatroom. It is alleged that he had ran away from the sceneof occurrence when the police reached there. The accusedno. 6 is the person against whom it is alleged that thewrist watch was recovered from him and he had caused thediscovery of spear. The accused no. 7 is the person,who was sitting on the left of the doctor in the jeep andwho had taken out the money, visiting cards and othermiscellaneous papers from the wallet of the doctor. Hehad come as a patient to the doctor prior to about oneand a half month. He was wearing white pant and shirtand had applied insulation tape and black gogles to thedoctor. He was keeping a close watch on the doctor. Hehad dispossessed the doctor of his wrist watch. He hadvisited the clinic of the doctor on the day of theincident and as stated by the wife of the doctor, he wasthe person having made a detailed enquiry regarding modeof visit by the doctor, his telephone numbers, doctor''svehicle and had made a telephone call in the name of`Rameshbhai'' at the residence as well as at the clinic ofthe doctor. The accused no.8 was sitting in the jeepalong with the driver, when the jeep came to take thedoctor for a visit. He is identified by the wife of thedoctor as a person wearing Khakhi clothes and aged about25 to 30 years. The prosecution has examined RanjitsinhVeersingh Gohel, Executive Magistrate, as PW-2, at Exh.34. The T.I. Parade was held on 09/10/1996. TheExecutive Magistrate has deposed in detail theproceedings of T.I. Parade. In this T.I. Parade,complainant, PW-3, wife of the doctor, has identifiedaccused no.3, Jorawarsingh @ Joraji. In the same T.I.Parade, the doctor has identified three persons. Anotherwitness, Jatan Majmudar, PW-5, Exh. 45, has alsoidentified accused no.3. Thus, from the evidence ofRanjitsingh Veersingh Gohel, Executive Magistrate,coupled with the panchnama of T.I.Parade,identification of accused nos. 3, 5 and 6 is proved bythe prosecution.

The prosecution has also examined one JagdishSunderlal Parmar, PW-1, Exh. 29, to prove the secondT.I. Parade, which was held on 20th November, 1996. In this T.I.Parade, the doctor and his wife haveidentified accused nos. 7 and 8. The deponent,Jagdishkumar Sunderlal Parmar, Special Recovery Officerand the Executive Magistrate, who conducted the secondT.I. Parade, has deposed in detail. JagdishkumarSunderlal Parmar was cross examined by the learnedAdvocates appearing for accused nos. 3 and 4, accusedno.7 and accused no.8, but nothing has come on record torender his deposition disbelievable and hence, accusednos. 7 and 8 stand duly identified by the doctor and hiswife in this T.I. Parade.

Mr. Y.S. Lakhani, learned Advocate appearingfor accused nos. 1, 2, 5 and 6 in Criminal Appeal No.155 of 1999 and also appearing for accused no.3 inCriminal Appeal No. 162 of 1999 on behalf of Mr. Y.M.Malik, submitted that these accused are falselyimplicated and that the prosecution is not able to proveany case against these accused. Agitating the individualcause of accused no.1, he submitted that the case of theprosecution against accused no.1 is that he came in thefield with a spear and placed the same at the chest ofthe doctor and enquired as to whom have the other accusedbrought. He also submitted that there is no evidence tothe effect that accused no.1 was the owner of the fieldand that from the evidence of photograph of accused no.5found in the room and his name inscribed on the waterpot, it cannot be said that the accused no.1 was theowner or in possession of the field in question. Hesubmitted with vehemence that no T.I. Parade is held foraccused no.1 and in absence of any T.I. Parade, mereidentification of the accused no.1 in the Court by thedoctor or other witness is of no consequence. He alsosubmitted that as the panch witnesses of the arrestpanchnama of the arrest carried out by the police on 3rdOctober, 1996 in the field, wherein it is alleged thataccused nos. 1 and 2 were arrested from the field, itcannot be said to have been proved. He submitted that inabsence of corroborating evidence of the panch witness,the arrest of accused nos. 1 and 2 cannot be said tohave been proved and their involvement in the offencecannot be believed. He also submitted that no witnesshas attributed any role to accused no.1 at any point oftime either prior to incident or later, except at thetime of coming to the field with a spear. He submittedthat from the evidence, which is placed on record by theprosecution, it cannot be said that there was a meetingof mind amongst the accused so as to held them liable for the offence alleged against them. He further submittedthat in case the aforesaid submissions are not acceptedby the Court, an important fact is required to be takeninto consideration that not a single antecedent ofaccused no.1 is placed on record coupled with the factthat the accused is more than 60 years of age. This willhave a bearing at the time of considering the case ofeach accused on the basis of the role played by themindividually. Lastly, he submitted that it is clear thatthere is no sufficient evidence to infer `conspiracy'' onthe part of accused no.1.

Mr. Y.S. Lakhani submitted that so far asaccused no.2 is concerned, the case of the prosecution isstill weak than that of accused no.1 inasmuch as only onesentence is averred against the accused no.2 by the starwitness i.e the doctor. The learned Advocate submittedthat the doctor has stated that the accused no.2 waskeeping watch over him. He submitted that neither anyovert act nor role is alleged against or attributed toaccused no.2. As in the case of accused no.1, the panchwitnesses of arrest panchnama have turned hostile, sameis the position qua accused no.2 also and hence, the sameis not proved against accused no.2 also. It wassubmitted that accused no.2 was 21 years of age on thedate of incident; there is no prior antecedent of accusedno.2 like accused no.1, and; there is no evidence aboutthe ownership or possession of the field in question ofaccused no.2 also. Like accused no.1, there is nosufficient evidence to allege conspiracy against thisaccused also.

The learned Advocate submitted that so far asaccused no.5 is concerned, the prosecution has not ledany strong evidence on the basis of which ownership ofthe field in question can be established that of accusedno.5. Photograph of accused no.5 is found in thephotograph along with some other person, which was foundin the room in which the doctor was confined, and hisname was inscribed on a water pot found in the room. Thelearned Advocate submitted that besides this, otherevidence against accused no.5 is, a tamancha and livecartridges, recovered from him. But, both the panchwitnesses have not supported the panchnama. RajjabbhaiSheikh is PW-12, Exh. 54 and Karamat Ali Umamuddin isPW-9, Exh.49. The learned Advocate submitted that inabsence of any supporting evidence of the panchwitnesses, there is no evidence so far as recovery oftamancha and cartridges are concerned. He then submittedthat, the only act which is attributed to accused no.5 isthat he pointed knife to the doctor while the doctor wasbeing brought to the field in jeep. Besides that, noother act is attributed to him. He also submitted thataccused no.5 was not found on the scene at the time ofarrest.

Mr. Y. S. Lakhani, learned Advocate, submittedthat so far as accused no.6 is concerned, taking overallview of the evidence led by the prosecution, theprosecution has weakest case against accused no.6. Thelearned Advocate submitted that he was identified in theCourt room, which is of no help to the prosecution. Sofar as his identification in so-called T.I. Parade isconcerned, the same is not proved as the ExecutiveMagistrate, Mr. Ranjitsingh Gohel, has not narrated inhis deposition that each of the three persons were takenout after identification by the doctor. Mr. Lakhanisubmitted that the accused no.6 was arrested near Paldi.Neither the doctor nor any other witness of theprosecution attributes any role to accused no.6. What isalleged against accused no.6 is that a watch wasrecovered from him. He submitted that the prosecutionhas not proved the fact that the watch was identified bythe doctor to be of his ownership. Not only that thedoctor, in his evidence, has not at any place stated thatthe watch was taken away by accused no.6 from him. Mr.Lakhani submitted that it is the case of the prosecutionthat the `spear'' was discovered at the instance ofaccused no.6. On perusal of the evidence of panchwitnesses to panchnama of discovery, there is materialcontradiction on this point as it is stated that thespear was discovered by the police of their own. LearnedAdvocate submitted that in this view of the matter, sofar as accused no.6 is concerned, there is hardly anyevidence to connect accused no.6 with the alleged offenceat all.

Mr. Kapadia, learned Advocate appearing for theappellant in Criminal Appeal No. 256 of 1999, submittedthat the accused no.7 is not properly identified. He isalleged to have been identified in Second T.I. Parade.But then, Shri Jagdish Sunderlal Parmar, ExecutiveMagistrate, PW-1, Exh. 29, has not stated that whileconducting the T.I. Parade, he had taken care to seethat other blue eyed persons were also included in thegroup of persons before proceeding with thetest-identification parade. Mr. Kapadia also submittedthat accused no.7 was arrested on 18th November, 1996 andsince then, he is in jail for the entire period exceptfor a short time when he was granted interim bail oncefor a period of 10 to 15 days and second time for twomonths. Mr. Kapadia submitted that the accused no.7 hasundergone the imprisonment for almost 5 years and withremission it will be about six years. He submitted thatthe same be treated as sufficient punishment for theoffence, if any, committed by him. Mr. Kapadia reliedupon a judgement of the Apex Court in the matter of Chander Singh Vs. The State of U.P., .

Mr. Deepak M. Shah, learned Advocate appearingfor accused no.8 in Criminal Appeal No. 162 of 1999,submitted that there is no evidence against accused no.8.He strenuously submitted that the only evidence againstaccused no.8 is that of the wife of the doctor, Alkaben,PW-3, Exh.38. But then she has deposed that, `she didnot look at the person with full attention''. She hasused the same phrase while lodging the complaint beforethe police. Mr. Shah submitted that if a person is seenonly once by the witness and that too, without payingfull attention to him, it is not possible for the witnessto identify the person during T.I. Parade. Mr. Shahrelied upon a judgement of the Apex Court in the matterof Surendra Singh Rautela @ Surendra Singh Bengali Vs. State of Bihar (Now State of Jharkhand), .

Mr. K.T.Dave, learned Additional PublicProsecutor appearing for the State, fairly conceded thatall the accused cannot be convicted for the offence underSections 392 and 397 read with Section 120(B) of theIndian Penal Code. He submitted that from the evidenceon record, they can be convicted for the offence underSections 347 and 365 read with Section 120(B). He alsosubmitted that the accused can be convicted for theirindividual act. He also submitted that in the facts ofthe present case, the accused no.7 can be said to havecommitted offence u/s 392 and 397, but then ifit is taken into consideration that recovery of currencynotes and wrist watch is not established and further whenit is not established that the watch, which was recoveredfrom accused no.6, belonged to the doctor, it is notpossible for the Court to hold that the accused no.7 wasguilty of the offence u/s 392 and 397.

On perusal of the evidence, to which the learnedAPP invited our attention and which we also peruse at theinstance of the learned Advocates appearing for theaccused, we find that the concession made by the learnedAPP is justified in view of the evidence on record.Taking into consideration the totality of the evidence,it is not possible to hold that all the accused areguilty of the offence under Sections 392 and 397 readwith Section 120(B) of the Indian Penal Code. Eventaking into consideration the individual acts of accusednos. 5, 7 and 8, they cannot be held guilty for theoffence u/s 392 and 397 for their individualacts. The Court now proceeds to consider as to whetherthe accused are guilty of the offence under Sections 347 and 362 read with Section 120(B).

On perusal of the evidence of the doctor, who hasnarrated the incident in detail and has stated that hehad received a telephone call and a similar telephonecall was received at his residence; he reached hisresidence at 9.15 p.m. after he had his supper; a jeepcame driven by accused no.3, who was accompanied byaccused no.8; the doctor was taken in that jeep and thatwhen the jeep reached near Railway Crossing, it wasslowed down and accused no.5 and 7 boarded the jeep,then, the jeep proceeded towards Sarkhej on GandhinagarSarkhej Highway; accused nos. 5 and 7 took out theirweapons and pointed them at the doctor; accused no.7 tookout wallet of the doctor and took currency notes ofRs.400=00 to Rs.500=00 along with visiting cards andother miscellaneous papers; accused no.7 appliedinsulation tape and black coloured gogles on the eyes ofthe doctor; the doctor was then brought to the field bymaking him walk for about one and a half kilometre, therehe met accused no.1, who is father of accused no.5; hewas armed with spear; he placed spear at the chest of thedoctor and then enquired as to whom the other accusedhave brought; he was told that he is a doctor;thereafter, accused no.2 in the company of accused no.1and other accused kept watch on the doctor; accused no.2 is also a son of accused no.1; and thus, accused no.5along with his brother and father, and also accused nos.3, 7 and 8 had hatched a conspiracy.

From the evidence on record, it is clear thataccused no.7 was the master mind behind the whole episodeinasmuch as accused no.7 had gone to the doctor prior toabout one and a half month. Not only that he had,thereafter, gone to the clinic of the doctor on the dayof the incident and had made detailed enquiry from thewife of the doctor, which is on record as deposed bydoctor''s wife. He is the person, who enquired about thecorrect telephone numbers of the doctor, timings of thedoctor-reaching home, vehicles of the doctor, and then,in the company of accused nos. 3, 5 and 8 brought thedoctor to the field belonging to the accused no.5. Theaccused no.7 placed the knife touching it to the waist ofthe doctor, took out money from the wallet along withvisiting cards and other miscellaneous papers and alsowrist watch of the doctor. Thus, the accused no.7 notonly masterminded the whole episode, but also acted for the fulfillment of the object of extorting money byresorting to wrongful confining and by abducting thedoctor. It was accused no. 7, who collected telephonenumbers of the relatives and friends of the doctor.

It will be appropriate at this stage to take intoconsideration the jail record of accused nos. 7 and 8produced by the learned APP. The accused no.8 wasconvicted of an offence u/s 302, 34 and 324 ofthe Indian Penal Code by a judgement and order dated 13thJuly, 1992 by the Sessions Court, Mehsana. On 30thJanuary, 1995, he was released on furlough for a periodof 14 days, but then, he did not report back and it wasonly on 25th November, 1996 (present offence is committedon 1st October, 1996) that he was arrested by the policeafter being absconding for 650 days. So far as accusedno. 7 is concerned, after he was convicted in thepresent case, by a judgement and order dated 20thJanuary, 1999 by the City Sessions Court No.9, Ahmedabad,during his release on temporary bail on 8th September,2001, for a period of 90 days, he indulged in similar notone, but three other offences, which are registered atKalol Police Station, being C.R. No. 275, 284 and 285of 2001. Therefore, he was arrested by the police on10th November, 2001. This is noted and narrated becauseit reflects the mental framework of accused no.7. As thefacts emerge, the accused no.7, after having mastermindedthe offence, took help of his friend, accused no.5, whowas having a field in a remote place at Village : Noli,Taluka : Sayla, District : Surendranagar. From theoccurrence of the events, it is clear that after thedoctor was abducted by accused nos. 3 and 8 in a jeep,accused nos. 5 and 7 boarded the jeep from RailwayCrossing and then, brought the doctor to the field ofaccused no.5, wherein, in a room, he was confined.

From the totality of the evidence, it is clearthat there was a conspiracy and, therefore, convictionunder section 120(B) is upheld. It is to be appreciatedthat the accused no. 5 has accompanied accused no.7 inthe jeep right from the beginning and has brought thedoctor to a place where in the room, a photograph ofaccused no.5 is found and his name is also foundinscribed on a water pot. In criminal cases, the Courtis not deciding the title of a property, as is decided incivil cases. In criminal cases, while appreciating theevidence, even on the basis of strong probability, it canbe ascertained that the prosecution is successful inestablishing that accused no.5 was having link/connectionwith the field in which there was a room, in which thedoctor was confined. Not only that, an important aspectthat the father of accused no.5 was present in the fieldwith a spear and as the doctor has deposed, accused nos.1 and 2 were keeping watch over the doctor while he wasconfined in that room. This is more than sufficient forthis Court to infer that all these accused were involvedin the offence alleged against them u/s 347 and 362 read with Section 120(B). The fact that there cannotbe a direct evidence of conspiracy, the same is to beinferred from the circumstances of the case and totalityof the evidence led before the Court. In the presentcase, sufficient evidence is on record which can lead theCourt to believe that all the accused had meeting ofminds. Accused no.7 plans the offence, visits the doctorprior to about one and a half month, then visits thedoctor on the day of incident at his residence,ascertains doctor''s telephone numbers, gives telephonecalls at doctor''s residence and clinic and then with thehelp of accused nos.3 and 8, who were sent to thedoctor''s residence to call him for a visit, accused nos.3 and 8 abduct the doctor, bring him in the jeep in whichaccused nos. 5 and 7 board on the way, take out deadlyweapons and point them at the doctor, take away thecurrency notes and wrist watch of the doctor; on reachingthe field, accused no.1 is found to be present with aspear; accused no.7 then collects the telephone numbersof the relatives and friends and the doctor was confinedin a room so as to extort money; and, accused nos. 1 and2 keep watch on the doctor. 26. In this view of the matter, there is no reasonfor the Court not to infer that all these accused hadhatched a conspiracy for committing offence. On perusalof the evidence of the doctor, the entire evidence is notonly inspiring confidence, but the same is to be believedin toto. It is also corroborated by the wife of thedoctor. The other evidence produced on record of the case shows that accused no.7, having found company ofaccused no.5 and a place to give final design, hascommitted offence under Sections 347 and 365 read withSection 120(B) of the Indian Penal Code.

The submissions made by the learned Advocate onbehalf of accused nos, 1, 2, 3 and 5 do not find favourand the Court comes to the conclusion that all theseaccused are guilty of the aforesaid offences. Thesubmission made by the learned Advocate, Mr. Y.S.Lakhani, for the aforesaid accused, to an extent thataccused no. 6 is not found guilty of any offence asprosecution is not able to establish any case againsthim, finds favour with the Court to the extent that whileconsidering the aspect of sentence, individual act ofeach accused is required to be appreciated. It is rightthat when accused no.1 is to be considered as againstaccused no.5, 7 or 8. The role played by accused no.7and 8 is definitely different than the role played byaccused no.1 and, therefore, while determining theliability so as to render them liable for differentsentence, it is important. So far as role played byaccused no. 1 is concerned, it is alleged that afteraccused nos. 3, 5, 7 and 8 reached the field with thedoctor, he came there when the telephone numbers werebeing noted and placed the spear with which he appearedon the scene, on the chest of the doctor and, thereafter,he kept watch on the doctor. From the fact that accusedno.1 is the father of accused no.5, it cannot be saidthat he did not know about the act committed by the otheraccused, that is, accused nos. 3, 5, 7 and 8 and,therefore, he is to be held guilty of the offence allegedagainst him u/s 347 and 365 read with Section 120(B). When the question of punishment to be imposed onaccused no.1 comes, it has to be different than thepunishment which is to be awarded to accused nos. 3, 5,7 and 8.

On appreciation of evidence and after taking intoconsideration the submissions made by the learnedAdvocates appearing for the parties, accused no.6 isacquitted as no evidence admissible is found against him.So far as accused nos. 1 and 2 are concerned, looking tothe role attributed to them and looking to the fact thatno overt act is attributed to them, though they are heldguilty of offence under Sections 347 and 365 read withSection 120(B), interest of justice will be served ifthey are sentenced for the period already undergone.

So far as accused nos. 3, 5, 7 and 8 areconcerned, these are the persons who have committed theoffence. From the evidence, it is found that they haveindulged in the act right from the beginning. Even atthe cost of repetition, it can be stated that accusedno.3 was the driver, accused no.8 accompanied him andaccused nos. 5 and 7 boarded the jeep and while thedoctor was brought in the jeep; accused nos. 5 and 7pointed deadly weapons at the doctor; accused no.7 tookout money and wrist watch of the doctor; accused no. 8has accompanied right from the beginning and he was theperson, who was also alleged to have pointed revolver atthe doctor in the field and who was constantly keepingwatch at the doctor.

As a result of the aforesaid discussion, we passthe following order :

ORDER

a) All these Criminal Appeal Nos.155/1999, 162/1999, 256/1999 and 286/1999 are partly allowed. The conviction of all the appellants recorded u/s 392 and 397 read with Section 120(B) of the Indian Penal Code as well as punishment imposed for commission of the said offence is hereby set aside.

b) In Criminal Appeal No. 155 of 1999, the conviction of appellant no.4, Jagabhai Ranabhai Khachar i.e. accused no.6 in Sessions Case No. 139 of 1998, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code as well as punishment imposed for the commission of the said offence is hereby set aside. He is ordered to be set at liberty forthwith, if not required for any other offence. Fine, if paid, is to be refunded.

c) In Criminal Appeal No. 155 of 1999, the conviction of appellant nos.1 and 2, Devayatbhai Bhimbhai Khachar and Aalaku @ Aalu Devayatbhai Khachar, accused nos. 1 and 2 respectively, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code is maintained, but, they are punished with R.I. for the period already undergone and pay a fine of Rs. 1000=00 each, in default to suffer R.I. for 15 days for the offence punishable u/s 365 of the Indian Penal Code and pay a fine of Rs.200=00 each, in default to suffer R.I. for one week for the offence punishable u/s 347 of the Indian Penal Code.

d) In Criminal Appeal No. 155 of 1999, the conviction of appellant no.3, Gabharubhai Devayatbhai Khachar, accused no.5, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code as well as sentence is maintained i.e. he is ordered to undergo R.I. for seven years and pay fine of Rs. 1000=00, in default to suffer R.I. for 15 days more for the offence punishable u/s 365 of the Indian Penal Code and R.I. for one year and to pay a fine of Rs.200=00 in default to suffer R.I. for one week more for the offence punishable u/s 347 of the Indian Penal Code.

e) In Criminal Appeal No. 162/1999, the conviction of the appellant, Babu @ Chhanaji Malaji Thakor, accused no.8, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code as well as sentence is maintained i.e. he is ordered to undergo R.I. for seven years and pay a fine of Rs.1000=00, in default to suffer R.I. for 15 days more for the offence punishable u/s 365 of the Indian Penal Code and R.I. for one year and to pay a fine of Rs. 200=00, in default to suffer R.I. for one week more for the offence punishable u/s 347 of the Indian Penal Code.

f) In Criminal Appeal No. 256 of 1999, the conviction of the appellant, Naresh @ Narsinhbhai @ Doctor Melabhai Raval, accused no.7, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code as well as sentence is maintained i.e. he is ordered to undergo R.I. for seven years and pay a fine of Rs.1000=00, in default to suffer R.I. for 15 days more for the offence punishable u/s 365 of the Indian Penal Code and R.I. for one year and to pay a fine of Rs. 200=00, in default to suffer R.I. for one week more for the offence punishable u/s 347 of the Indian Penal Code.

g) In Criminal Appeal No. 286 of 1999, the conviction of the appellant, Joraji @ Joravarsinh Rundhaji @ Rupsinh Thakor, accused no.3, recorded u/s 347 and 365 read with Section 120(B) of the Indian Penal Code as well as sentence is maintained i.e. he is ordered to undergo R.I. for seven years and pay a fine of Rs.1000=00, in default to suffer R.I. for 15 days more for the offence punishable u/s 365 of the Indian Penal Code and R.I. for one year and to pay a fine of Rs. 200=00, in default to suffer R.I. for one week more for the offence punishable u/s 347 of the Indian Penal Code.

h) No separate orders for sentence is passed for the offence punishable u/s 120(B) of the Indian Penal Code to any of the accused.

i) Substantive sentences to run concurrently.

j) Set off may be given to all accused.