DINESH MOHANLAL BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) ALL the above -referred three criminal appeals arise out of a judgment and order rendered by learned Additional City Sessions Judge, Court No. 9, Ahmedabad on 05.11.2004 in Sessions Case No. 259 of 2003. The Criminal Appeal No. 2085 of 2004 is preferred by original accused No. 2 Dinesh Mohanlal Barot, Criminal Appeal No. 2141 of 2004 is preferred by original accused No. 1 Rakeshbhai Ramanlal Patel and Criminal Appeal No. 13 of 2005 is preferred by original accused No. 3 Jasmin @ Jatin Ramanlal Patel. For the sake of convenience, the appellants shall be referred to according to their original status before the trial Court.

(2.) ALL the three accused persons came to be convicted for the offences punishable under Sections 120B, 364A, 363, 365, 368 and 507 Indian Penal Code ('IPC', for short). All the three accused persons were sentenced to undergo R.I for life and fine of Rs. 1000/ - and in default of payment of fine, R.I for three months for the offence punishable under Section 364A IPC, R.I for one year and fine of Rs. 1000/ - and in default of payment of fine, R.I for three months for the offence punishable under Section 120B IPC so far as accused No. 1 Rakeshbhai Ramanalal Patel and accused No. 3 Jasmin @ Jatin Ramanlal Patel are concerned and R.I for six months and fine of Rs. 1000/ - and in default of payment of fine, R.I for three months for the offence punishable under Section 120B IPC so far as accused No. 2 Dinesh Mohanlal is concerned, R.I for three years and fine of Rs. 1000/ - and in default of payment of fine, R.I for three months for the offence punishable under Section 363 IPC so far as accused No. 1 Rakesh and accused No. 3 Jasmin @ Jatin are concerned and R.I for six months and fine of Rs. 1000/ - and in default of payment of fine, R.I for three months for the offence punishable under Section 363 IPC so far as accused No. 2 Dinesh Mohanlal is concerned. No order of separate sentence came to passed in connection with all the three accused for the offences punishable under Sections 365, 368 and 507 IPC.

(3.) THE prosecution case in nutshell is that the incident occurred at about 3 pm on 7.2.2003 in Sharda Primary School, situated in the area called Bhuyangdev Cross -Roads in the city of Ahmedabad. Nephew of first informant Hemantbhai Patel, named, Raj, aged about five years and six months was studying in Sr.K.G. in Sharda School, and it is alleged that the accused No. 1 Rakesh came to the school and pretended his name to be Pareshbhai and that Raj was called to attend one birthday party, and, thereafter, he kidnapped Raj from the school. It is the case of the prosecution that thereafter he took Raj to various places, like, Chotila, Gandhinagar etc. It is further the case of the prosecution that all the three accused persons in furtherance of their criminal conspiracy to kidnap Raj for demanding ransom, a telephone call was made demanding the ransom to the extent of Rs. 5 Lacs from aunt of child Raj PW -9 Falguniben. It is further the case of the prosecution that on 08.02.2003 the custody of the child was entrusted to accused No. 2 Dinesh, but at the instance of his father Mohanlal, it was revealed that in fact Raj was kidnapped and, therefore, accused No. 2 Dinesh along with his father Mohanlal consulted PW -5 Prahladji who was serving in the police department, and when they were about to go to Ghatlodia Police Station, at that time, accused No. 1 Rakesh contacted accused No. 2 Dinesh on mobile phone and as suggested by PW -5 Prahladji, he was called at Gitamandir S.T. Bus Stand, and at Gitamandir Bus Stand accused No. 1 Rakesh was apprehended. The custody of the child was entrusted to police and in turn, on 9.2.2003, the custody of the child was given to his parents. Subsequently, accused No. 3 Jasmin @ Jatin also came to be apprehended. Incident was reported to the police by first informant PW -1 Hemantbhai and his F.I.R. Was registered. During the course of investigation, statements of material witnesses were recorded, mobile phones came to be seized, phone details were collected from various mobile companies. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad. Since the offence was exclusively triable by the court of Sessions, learned Magistrate committed the case to the Court of City Civil and Sessions Court, Ahmedabad, which was numbered as Sessions Case No. 259 of 2003. The learned trial Judge framed charge against all the accused at Exh.5 to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 36 witnesses and produced necessary documentary evidence. After the prosecution concluded its oral evidence, the trial judge recorded the further statements of the accused under Section 313 Cr.P.C., and the accused in their further statements denied generally all the incriminating circumstances brought to their notice and stated that they were falsely implicated in this case. The accused No. 2 Dinesh filed his written reply at Exh.75 -A wherein he stated that he was called by accused Nos. 1 and 3 on 8.2.2003, and was entrusted the custody of Raj stating that accused Nos. 1 and 3 had to attend one marriage and they would soon come and collect the custody of Raj back from accused No. 2. That, thereafter, he read in newspaper that in fact Raj was kidnapped, and, therefore, he immediately contacted along with his father, PW -5 Prahladji who was serving in police department and who was their relative and, thereafter, when they were about to go to Ghatlodia police station to report the incident and to surrender the custody of Raj to police, accused No. 2 Dinesh received a phone call on his mobile from accused No. 1 Rakesh and at the instance of PW -5 Prahladji, accused No. 1 Rakesh and accused No. 3 Jasmin @ Jatin were called at Ghatlodia police station and at his instance (at the instance of accused No. 2 Dinesh) accused No. 1 Rakesh was apprehended and was taken to police station. He, therefore, contended that he did not commit any offence and on the contrary his defence gets corroboration through the witnesses examined by the prosecution, namely, PW -5 Prahladji and PW -12 Bipin Prahladji, the son of PW -5 Prahladji.