Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The relevant portion of the confession relating to the kidnapping of E PW-3 Jayendra Mahendra Tripathi are given by A-9 Musakhan @ Babakhan in his confession as follows : " ….. After four or five days of last Uttarayan, Sherjada called Nazir Vora, Salim Tola, Sattar Battery and me at the house ofWahab situated at Devi Park Society in Dani-Limda. When we went there, Sherjada and Wahab were present. Sherjada and Wahab made a plan to kidnap 011e Jayendra Tripathi, a builder at Vasna and deciding this, at about 3 pm., we took the Maruti Van ofSherjada affIXing bogus numberplate on it and went to Vasna. Wahab 1111d Sherjada had revolvers. Sherjada was knowing Jayendra Tripathi and he had also seen his house. Hence, while going near Kundan Apartment, situated near Mehta Hospital in Vasna, there is house of Tripathi and we sat there in Maruti Van for keeping watch. At 4 PM, Jayendra Tripathi used to go out from his home, which was told by Sherjada. Therefore, we waited for some time. At about 4:00 hrs., when Jayendra Tripathi came out, Sherjada identified him and from there he kidnapped him and threw ABDULVAHABABDULMAJIDSHAIKHv.STATEOFGUJARAT[BALAKRISHNAN,CJ.J 557 _. ~.,.. him in Maruti Van applying old cap and took him to Devi Park. Taking A the telephone number of victim's friends and relatives, Wahab and Sherjada threatened them on phone and extorted money. On the next day, Tripathi was released. I was taking lunch and Tiffin from outside for Tripathi. But for this work, no money was paid to me. "
12. From the confession statement, it is evident that some persons came B to Vasna area and while PW-3 Jayendra Mahendra Tripathi was walking near the Kundan Apartment, he was kidnapped and forced into the Maruti van and his face and head were covered by an old cap and he was taken to Devi Park. A-9 Musakhan @ Babakhan speaks about the involvement of other accused persons. In the confession, it is also stated that PW-3 Jayendra Mahendra c Tripathi was released on the next day after the ransom amount was paid. A- 9 Musakhan @ Babakhan also says that he was not paid anything in this transaction. The fact that a Maruti van came and PW-3 Jayendra Mahendra Tripathi was kidnapped in that vehicle is spoken to by the victim himself who was examined as a witness for the prosecution.
13. These appeals before us are disposed of as follows. Criminal Appeal No. 52512004
14. The main evidence in this case is the confessional statement of accused Musakhan @ Babakhan. Of course, the confession statement is E generally not treated as the primary evidence, but this Court in Nalini 's case (supra) has held that the confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and it could be accepted provided there is corroboration by other material particulars. In the instant case, there is substantial corroboration of the confession of A-9 Musakhan @ Babakhan F by other items of evidence. The counsel for the appellants strongly urged before us that the confession itself is highly suspicious and it cannot be relied upon to convict the appellants, but we find no force in that contention. The confession was recorded strictly in accordance with Section 15 of the TADA Act. The accused was apprised of the fact that in case any such confession is made, it would be used against him.
The police officer who G – ;{ recorded the confession also stated that it was voluntary in nature. The counsel for the ai;pellants contended that the Chief Judicial Magistrate was readily available to record the confession and when such a facility was avail~ble, the police officer should not have recorded the confession. It was also pointed out that when A-9 Musakhan @ Babakhan was produced before the C.J.M., he retracted the confession and th.at itself is sufficient to hold that A the confession was not voluntary in nature. Under Section 15 of the TADA Act, a police officer is permitted to record the confessional statement of accused and certain strict procedure is prescribed. The appellants have no case that this procedure has in any way been violated. Merely because the confession was retracted, it may not be presumed that the same was not voluntary. It is important to note that when A-9 Musakhan@ Babakhan was B produced before the Magistrate, he had no case that he was subjected to any third degree method. He only stated that he had not made any confession before the police.
15. In the confessional statement, A-9 Musakhan @ Babakhan has C given detailed narration of the incident relating to the abduction of victim Jayendra Mahendra Tripathi. He stated that accused Vahab & Sherzada were anned with revolvers. In the course of investigation, the revolver was recovered from one of the accused. The accused was seen at the apartment near the Mehta hospital in Vasna where the victim Jayendra Mahendra Tripathi was staying. The accused stated in his confession statement that Jayendra D Mahendra Tripathi was abducted at about 4 p.m. when he came out of the house. The victim Jayendra Mahendra Tripathi was examined as PW-3. He deposed that he had been staying at Kundan apartments in Vasna. He further deposed that on 19.1.1994 at about 4 o' clock he started from his house for his office and on the way 5-6 persons came in a Maruti van and he was E forcibly dragged into that Maruti van and taken to some distant place. He also deposed that he was asked to give the telephone number of his company and that he gave the telephone number of his friend also. All these facts are spoken. of by A-9 Musakhan @ Babakhan in his confession statement.
16. To prove the abduction and extortion of money from Jayendra p Mahendra Tripathi, the prosecution examined several other witnesses. PW- 7 deposed 'that Mahendrabhai, the partner of Tripathi had withdrawn Rs. 10 lakhs from the Union Bank of India by giving four cheques. PW-4 Kirtikumar Tapsishanker Tripathi deposed that he had paid Rs. 3 lacs to one motorcyclist on 21.1.1994. It is also pe1tinent to note that in the confession statement, A- 9 Musakhan@ Babakhan referred to the presence of A-1, A-2, A-3 and A- G 4 in the conspiracy and later in the abduction of Jayendra Mahendra Tripathi.
17. On consideration of confession statement, which is amply corroborated by other items of evidence, we have no hesitation in accepting the same as truthful and voluntary. The complicity of A-1 to A-4 in the h abduction is proved beyond reason ab le doubt. ABDUL VAHABABDULMAJID SHAIKH v. STATE OF GUJARAT [BALAKRISHNAN, CJ.] 559 "-.:..
18. In the result, the conviction of these three appellants for the offences A punishable under Sections 120-B, 342, 365, 384 read with Section 120-B of the IPC is only to be conf1IT11ed. Criminal Appeal No. 525 of2004 would accordingly stand dismissed and the appellants would surrender to their bail bonds. Criminal Appeal No. 131812004
19. It is an appeal preferred by the State against the acquittal of A-6 and A-7. Counsel for the appellant-State submitted that the acquittal of A- 6 and A-7 was palpably wrong as there is evidence to show that they were party to the abduction and extortion of money from the victim. This submission is based on the evidence of recovery of Rs. 50,000/- from the house of A- c 6 Salim Noor Mohammed and Rs.1,75,000/- from the house of A-7 Yakub Ganibhai. The recovery of these amounts, though stands proved, the prosecution could not prove that these amounts were actually the amounts paid by the agents of Tripathi as ransom to these accused. These accused gave some explanation as to how these amounts happened to be in their house. A-6 claimed that it was an amount belonging to him and he was D keeping it for his business purposes. There was no bank slip or any other item of evidence to show that the amount was withdrawn from the bank on 21.1.1994. Though the bank officials were examined as prosecution witnesses, they also could not give any satisfactory evidence to prove that the currency notes recovered from these two accused were relatable to the amounts withdrawn from the Bank. Moreover, in the confession statement, A-9 did not E involve these accused. In the above circumstances, the acquittal of A-6 and A-7 was correct. The appeal is without any merit and is dismissed accordingly. Criminal Appeal Nos. 1316-1712004
20. These appeals are filed against acquittal of all the accused charged F for offences punishable under the TADA Act. These accused were charged under Sections 3 and 5 of the TADA Act read with Section 120-B IPC. The ground urged by the appellant-State is that Jayendra Mahendra Tripathi was abducted at gun point from a notified public place and that the accused are hardcore criminals. Therefore, they ought to have been convicted under G . -~ Sections 3 and 5 of the TADA Act.
21. The contention of the State is that these accused should not have been acquitted of the charges under Sections 3 and 5 of TADA Act as the crime committed by them was of grave nature and came within the purview [2007) 5 S.C.R. A of the said provisions of the TADA Act. It is further contended that the Special Judge has not given any specific reasons as to why these accused were acquitted of the charges. But the prosecution could not adduce any evidence to prove that these accused had committed the offences charged against them. The act of kidnapping for extorting ransom from the victim cannot be termed as an act committed "with intent to overawe the Government B as by law established". There is also no evidence to show that the accused intended to strike terror in the locality. Their primary objective was to extort money from the victim. There is also no evidence to show that these accused were supporting any communal elements or intended to create disharmony amo~g different sections of the people. These are all main ingredients to C constitute offence punishable under Section 3 of the TADA Act. So also, there is no evidence to show that these accused were in possession of any arms or ammunition during the commission of the crime, for which they have _ been charged. The accused have been rightly acquitted. Criminal Appeal Nos. 1316-17/2004 are without any merits and dismissed accordingly. D D.G. Appeal dismissed. i _,