PRAKASH KUMAR @ PRAKASH BHUTTO versus STATE OF GUJARAT

K.G. BALAKRISHNAN, CJI. I .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 120of the Indian Penal Code (!PC) and Section

pp. 533–534, margin F

The appellant in Criminal Appeal and was convicted for the offences punishable 365 !PC. All the accused were charged Act and Arms Act. The allegation against at about 2.00 P.M, he alongwith other accused Jain and kept him in confinement for two Babula! Misrimal was the owner ofRatnamani 26-9-1993, he went for a community lunch After the lunch he was standing outside accused came in a Maruti-van and accused deceased), accused No. 3 Iqbal Hussain dragged him into that van. Thereafter they kept in confinement. When Babula! Misrimal his friends and relatives standing outside alleged that accused No. 3 Iqbal Hussain Atik opened fire by using their revolvers. Process House at Danilimbad owned by demanded Rs. 60 lacs from the brothers Finally, the deal was struck at Rs. 25 lacs. and it was shared amongst all the accused. paid to accused No. I Abdulwahab. An by accused No. 10 Mohammad Atik. the accused purchased properties making Babula! Misrimal. The accused No. I passport under a fictitious name. Another during the course of investigation. sheeted died before the charge could

p. 534, margin B

On 26-9-1993 at about 2.30 P.M. to the Shahibaug Police Station. They superior Police Officers about the incident. occurrence and recovered two empty chappals and slippers. Police inspector took over further investigation. He recorded the statements of some of the the investigation was handed over to another No. 3 was arrested. Thereafter Police over the investigation and arrested accused A-4, A-1 and A-2 were also arrested later. On 8-9-1994, the investigation handed over to ACP, Shri B.R. Patil. He requested for Government for invoking the provisions of TADA Act against the accused. arrested on 12-3-1996. Accused Sattar Battery expressed his willingness give a confession and accordingly the Assistant Commissioner of Police Patil recorded his confession under Section 15 of the TADA Act. PW Patil, Assistant Commissioner of Police in Crime Branch at Ahemdabad Babakhan s/o lsmailkhan on 11-1-1995. On 14-1-1995, accused Babakhan 11) expressed his desire to make a confession and he was produced the Deputy Commissioner of Police, Shri A.K. Surolia. On the next is, 15-1-1995, PW 25 was asked to produce A-11 Babakhan and his was recorded. Deputy Commissioner of Police, Shri A.K. Surolia confession of A-11 Babakhan in a sealed cover to PW 25 B.R Patil him to produce A-11 Babakhan, along with the sealed cover containing confession, before the Chief Metropolitan Magistrate.

pp. 534–535, margin A

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, last week, Atik told me that Shejada sits in the office situated Mirzapur Court where Prakash Bhutto is sitting. He told 26th Noon, in Rani-Sati Hall, near Shahibaug, Underbridge, Community lunch of Baniya, wherein leading persons are to for their abduction, there would be no difficulty and crores would be obtained. After such talk, Sherjada called me, Atik, Iqbal Bhuriyo, Salim Ando and Yasin Chipa of Jamalpur at he gave Point 45 Revolver to Atik and Point 38 Revolver to number plate of Maruti-van of Sherjada being No. GJ-9-1045 affixed and taking it, we went to Rani Sati Hall. Salim driving the vehicle. We stood at one place. Outside the Hall, Bhutto pointed out one fat industrialist seated on the scooter making the sign, whom we identified exactly. Salim Ando Maruti-van towards him and brought it near said fat man and it. Lifting the said fat man and while throwing him in the vehicle, scuffle took place. At that time, Ibu and Atik fired shots Revolvers and therefore, people scattered and hence, said fat thrown in the vehicle. Applying bandage on his eyes, via Underbridge he was brought to Amul Process House in Dani Limda. There bandage continued on the eyes of said fat man. Sherjada and 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 Babula!. I do not know, what amount was taken for the release of Babula! Sanghvi.. But subsequently V ahab 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 Babula! and putting Balck-gogles on it, Vahab told Atik, Ibu and Sherjada to take Babula! at Kankaria and get him seated in rickshaw, allowing him to go to Shahibaug. Accordingly, on the motor cycle of Sherjada, Atik and !bu seated Babula! Sanghvi and dropped him at Kankaria. Subsequently Vahab gave me Rs. 50,000/- for this work."

pp. 535–536, margin C

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 !PC.

p. 536, margin C

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 th&t 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 : Haricharan Kurmi v. State of Bihar, [1964) 6 SCR 623, Though in State through Superintendent of Police, CBI/SIT v. Nalini and Others., [1999) 5 SCC 253, it has been 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.

p. 536, margin D

The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of the coaccused, 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 Babula! Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant.

p. 536, margin E

Therefore, the finding of the Special Judge is erroneous. Criminal Appeal No. 526/200 I is allowed and the appellant herein is acquitted of all the charges framed against him. The appellant, who is on bail, is discharged from A the liability of bail bonds.

pp. 536–537, margin G

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 bonds. B NJ. Appeal allowed. .. •.

p. 537