Gujarat High Court
State Of Gujarat vs Dhavnik Dilipkumar Shah on 9 July, 2025
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R/CR.A/282/2013 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 282 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY Sd/-
and
HONOURABLE MR.JUSTICE D. M. VYAS Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DHAVNIK DILIPKUMAR SHAH & ORS.
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR MURALI N DEVNANI(1863) for the Opponent(s)/Respondent(s) No.
1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 09/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH
ROY)
1. This appeal is directed against the judgment dated 18.10.2012
rendered in Sessions Case No.142 of 2012 on the file of Additional
Sessions Judge, Ahmedabad, whereby the respondents herein, who are
accused nos.1 to 4 in the said case, were acquitted for the offences
punishable under Sections 363, 364A, 365 and 120B of the Indian Penal
Code, 1860 (for short "the IPC")
2. Brief overview of the facts of the prosecution case, may be stated
as follows:-
2.1 It is a case of kidnap for ransom. The boy, said to have been
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kidnapped by the accused, is a minor aged about 5 years. Accused no.4 is
the niece of PW-1, who is the father of the minor boy. It is stated that on
25.10.2011, accused no.4, who is the niece of PW-1 has allured the minor
son of PW-1 stating that he will take him out and accordingly, has taken
the minor boy at about 7:00 p.m. on that day from the lawful custody and
guardianship of PW-1. Thereafter, they did not return to the house. So,
PW-1 lodged a report with the police on the night of 25.10.2011 at about
10:30 p.m. Police registered the said report as an FIR for the aforesaid
offences.
2.2 Sometime, thereafter PW-1 received a phone call stating that his
son was kidnapped and the person, who called him over phone demanded
Rs.1 crore towards ransom to give back the custody of the minor boy to
PW-1. There were negotiations between PW-1 and the persons who
called him over phone and ultimately, it was agreed that a sum of
Rs.25,00,000/- to be paid to return the custody of the minor boy.
2.3 It is stated that they asked PW-1 to come near to Karnavati Club
and pay the ransom. The said fact was informed by PW-1 to the Police.
So, police laid a trap. On the next day morning, at about 4:15 a.m., on
26.10.2011, PW-1 went near to Karnavati Club and he noticed accused
nos.1, 2 and 4 present in the car at that place and accused no.2 collected
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black bag from PW-1 containing currency notes of Rs.25,00,000/-
towards ransom. But, PW-1 did not find his minor son with them at that
time. It is stated that while accused no.2 was receiving the bag with cash
from PW-1 that PW-6, who is the Investigating Officer caught him red
handed while receiving the ransom in the presence of the mediators
examined as PW-3 and PW-4. Accused nos.1 and 4 were also arrested at
that time in the presence of the said mediators.
2.4 Thereafter, PW-7, who is the Police Officer in the investigation
team, came to know that the boy was hidden in the office at Wall Street,
part-2 Building bearing office nos.707 and 708. Accordingly, they
reached the said office along with the mediator PW-5. It is the case of the
prosecution that accused no.3 was available in the said office and the
minor boy, who was kidnapped, was with him in the said office. So,
accused no.3 was arrested in the presence of the mediator PW-5.
Thereafter, accused nos.1 to 4 were shown as accused in this case as the
culprits, who have committed the offence of kidnap of the minor boy,
who is the son of PW-1. After completion of the investigation, police
filed charge-sheet against the accused for the offences punishable under
Sections 363, 364A, 365 and 120B of the IPC.
2.5 The trial court framed charges under Sections 363, 364A, 365 and
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120B of the IPC against accused nos.1 to 4. The accused denied the said
charges and claimed to be tried.
2.6 In the trial that has taken place in the trial court, prosecution got
examined PWs 1 to 9 witnesses and got marked 10 exhibits to
substantiate its case against the accused.
2.7 At the culmination of the trial, after considering the evidence on
record and on appreciation of the same, the trial court found the accused
not guilty for any of the charges levelled against them and thereby,
acquitted them of all the said charges.
2.8 Aggrieved thereby, the State has preferred the instant appeal
challenging the legality and validity of the impugned judgment of
acquittal.
3. When the appeal came up for hearing, we have heard learned APP
Mr.Bhargav Pandya for the State and Mr.D.M. Devnani, learned advocate
for respondent nos.1 to 4 and have perused the material and the evidence
on record.
4. The fact that accused no.4 is the niece of PW-1 is not in dispute.
According to the prosecution version, accused no.4 has taken away the
minor son of PW-1 from his house at 7:00 p.m. in the evening on his
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Activa two wheeler on the ground of taking him out for a ride. None have
witnessed accused no.4 taking the son of PW-1 from the house of PW-1
as per the prosecution version. After the son of PW-1 was not found in
the house, PW-1 lodged a report with the police on the night of
25.10.2022 at about 10:30 p.m. The said report was registered as an FIR
in this case. No names of the persons, said to have kidnapped the boy,
were mentioned in the FIR nor the names of any suspects are also
furnished in the FIR. So, in the FIR, it is not stated that either accused
no.4 or accused nos.1 to 3 have kidnapped the minor boy.
5. As per the prosecution version, PW-1 received a phone call on that
night stating that his minor son was kidnapped and demanding ransom of
Rs.1 Crore to return the custody of the child. It is stated that after
negotiations, the deal was struck for Rs.25,00,000/- and that he was asked
to come near to Karnavati Club with the said sum of Rs.25,00,000/- to
take back the minor boy. However, it is significant to note that although
the cell phones of the accused herein were seized during the course of
investigation, the mediators in whose presence the said cell phones were
seized, did not support the prosecution case. Therefore, seizure of cell
phones from the accused is not proved in this case. Further, even if the
said cell phones are seized from the accused, there is nothing on record in
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the form of any evidence to connect or link the user of the cell phones in
the present offence as the call details report of the said cell phones are not
collected by the Investigating Officer during the course of investigation
and no certificate under Section 65B(4) of the Evidence Act was also
obtained. So, it is not proved in this case that any of the accused called
PW-1 through their cell phones informing him that his minor son was
kidnapped and that they demanded him the ransom of Rs.1 Crore and
ultimately, agreed to receive Rs.25,00,000/- towards the ransom. So, the
vital link is miserably missing in this case as the prosecution failed to
prove that accused made any phone call to PW-1 demanding ransom from
him.
6. Further, as per the prosecution version, the accused demanded PW-
1 to come with Rs.25,00,000/- near to Karnavati Club and when PW-1
went to Karnavati Club with cash of Rs.25,00,000/- in a black bag along
with the police, that they found accused nos.1, 2 and 4 waiting in a car
and that accused no.2 collected the said black bag with cash of
Rs.25,00,000/- from PW-1 and at that time, he was caught red handed by
the police along with the black bag in the presence of mediators PW-3
and PW-4 and he was arrested in their presence and at the same time,
accused nos.1 and 4, who were at that place, were also arrested in the
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presence of PW-3 and PW-4. But, the fact that accused no.2 was caught
red handed when he was receiving the bag with Rs.25,00,000/- from PW-
1 and that he was arrested at that time and accused nos.1 and 4, who were
present at that place, were also arrested at that time, is not proved in this
case, as the alleged mediators PW-3 and PW-4, in whose presence they
were caught and arrested, did not support the case of the prosecution.
They turned hostile to the case of the prosecution. Therefore, if the
evidence of PW-3 and PW-4 is eliminated from consideration as they did
not support the case of the prosecution, except the evidence of PW-1,
who is the complainant and PW-7, who is the Investigating Officer, there
is no other evidence to prove the said fact.
7. Now, while considering evidence of PW-1 and subjecting his
evidence to judicial scrutiny, several inconsistent versions and infirmities
are emanating from his testimony, which makes his testimony and the
testimony of PW-7-the Investigating Officer wholly unreliable. The
denomination of the currency notes said to have been given by PW-1 of
Rs.25,00,000/- to PW-1 did not match with the denomination of the
currency notes spoken to by PW-1. This is what was noticed by the trial
court in its judgment. The currency notes numbers of the seized currency,
are also not noted. Therefore, the evidence of PW-1 and PW-7 also
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cannot be relied upon to arrive at any definite conclusion that PW-1
handed over the black bag with the currency notes of Rs.25,00,000/- to
accused no.2 and that at that time, he was caught red handed.
8. Accused nos.1 to 3 are strangers to PW-1 and as accused no.2 to
whom it is alleged that the black bag with currency notes was handed
over is an unknown person and a stranger to PW-1. The trial court held
that the police did not conduct any Test Identification parade. The trial
court also found this is an infirmity in the case of the prosecution. But, in
our considered view when it is the case of the prosecution that accused
nos.1, 2 and 4 were caught while receiving ransom in the presence of
mediators, no Test Identification is required. As the mediators did not
support the case of the prosecution, the said fact is not proved in this case.
Though PW-1 has identified accused no.2 again in the court while giving
the evidence for the first time, the said identification cannot be believed.
The alleged incident took place on 26.10.2011 and the said identification
in the court took place on 26.06.2012 almost eight months after the
incident. PW-1 has seen accused no.2 again only on 26.06.2012. So,
identifying a stranger and unknown person after seeing only once after a
period of eight months cannot be believed.
9. Accused no.3 was not along with accused nos.1, 2 and 4 at
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Karnavati Club. According to prosecution, accused no.3 was in the office
at Wall Street, Part-2, Building bearing office nos.707 and 708 and he
was with the minor boy and that they arrested him in the presence of the
mediator, who is examined as PW-5. But, this fact is also not proved as
PW-5 did not support the prosecution case and did not state that he was
arrested in his presence at that office. He turned hostile to the prosecution
case. Further, prosecution did not collect the ownership details of the said
office to prove as to whom the said office belongs and in whose name it
is and how accused no.3 was present in the said office along with the
minor boy. These material facts are not properly explained.
10. It is also relevant to note that the black bag, in which it is stated
that the currency notes of Rs.25,00,000/- was handed over by PW-1 to
accused no.2 was not seized in this case. No explanation is forthcoming
for its non-seizure.
11. Therefore, the prosecution miserably failed to prove that accused
no.4 in collusion with accused nos.2 to 4 kidnapped the minor son of PW-
1 and demanded ransom and collected Rs.25,00,000/- from PW-1 as per
the case projected by the prosecution against the accused. The said
allegations ascribed by the prosecution against the accused are not proved
with any acceptable legal evidence beyond any reasonable doubt. The
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finding of acquittal of the accused recorded by the trial court is based on
proper appreciation of evidence on record and we do not find any
manifest error of law in the said finding warranting interference of this
Court in this appeal. After considering the evidence on record and on
reappraisal of the same, we are also of the considered view that the
prosecution miserably failed to prove the guilt of the accused for any of
the charges levelled against them beyond any reasonable doubt with
acceptable legal evidence. Therefore, the impugned judgment of acquittal
is perfectly sustainable under law and it is not liable to be set aside. So,
the appeal fails and it is liable to be dismissed.
12. Resultantly, the appeal is dismissed confirming the impugned
judgment of acquittal of the trial court. The bail bonds of the respondents,
if any, shall stand discharged. Record and Proceedings and also the paper
book be sent back to the concerned trial court.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J)
Sd/-
(D. M. VYAS, J)
ABHISHEK
