VIJAY RANGLAL CHORASIYAversusSTATE OF GUJARAT

                    (2014] 5 S.C.R. 755


                VIJAY RANGLAL CHORASIYA                          A
                              V.
                   STATE OF GUJARAT
            (Criminal Appeal No. 953 of 2009)
                      APRIL 25, 2014
                                                                 B
         [T.S. THAKUR AND C. NAGAPPAN, JJ.]

    Penal Code, 1860:

       s.364-A rlw s.120-8 - Kidnapping for ransom- Out of 10 c
accused, 5 convicted - High Court further convicting one of
the accused who had earlier absconded and when
apprehended tried separately and acquitted by trial court -
Appeal by two of 5accused convicted by trial court as also by
accused whose acquitta/'was reversed by High Court - Held: 0
As regards concurrent orders of conviction passed by trial
court and High Court in respect of two appellants, there is no
reason to take a view different from the one taken by courts
below, as prosecution has proved guilt of two accused-
appellants beyond reasonable doubt - There is no perversity E
in the view taken by the courts below to warrant interference
under Art. 136 of the Constitution - In respect of appeal of
the accused whose acquittal was reversed by High Court, the
order passed by High Court is set aside and matter remitted
to it for disposal afresh keeping in view the observations made
in the judgment - Constitution of India, 1950 - Art. 136.       F

    Evidence:

     Voice in tape recorded machines - Voice spectography
- Held: Voice of one of the accused, in tape recorded            G
machine, was identified by witnesses as one of the callers who
had demanded ransom for release of victim - Scientific officer
examined Voice Spectrography of the caller to prove that
voice recorded was of the accused - Peal Code, 1860 - s. 163-
A.
                             755                                 H
    756      SUPREME COURT REPORTS                [2014] 5 S.C.R.


A         Code of Criminal Procedure, 1973:

        s.299 - Record of evidence in absence of accused -
  Accused absconding - Trial of other accused persons
  resulted in conviction of some of accused persons -
  Absconding accused later tried separately - Application of
8
  prosecution for transfer of depositions in earlier Sessions Trial
  to subsequent Sessions Trial rejected by trial court - Accused
  acquitted - High Court relying on the evidence in previous
  trial, convicting the accused - Held: High Court does not
  appear to have taken note of the rejection order - It has, on
C the contrary, erred in proceeding on the basis that the
  evidence adduced in the previous trial was evidence in the
  case against the appellant validly transferred uls 299 - Even
  assuming that the deposition in terms of s. 299 had been
  transferred to the case against the appellant, it may have been
D open to appellant-accused to argue that such a transfer was
  not valid in the eyes of law and could not, therefore, be read
  against him - Matter remitted to High Court for hearing and
  disposal afresh in accordance with law keeping in view the
  observations made in the judgment.
E
        The appellants-accused A-2 and A-4 alongwith A2,
  A3, A5, A11, A7, AB, A9 and A10 were prosecuted for
  abducting PW-13 for ransom. The appellant, in criminal
  appeal no. 1125 of 2009 (AG), had absconded and was
F tried separately when apprehended. The trial court
  convicted A2 to A5 and A 11 uls 3G4-A read with s. 120-8,
  IPC and sentenced them to undergo imprisonment for
  life. A7, AB, A9, A10 and AG were acquitted. In the appeals
  filed by the accused against their conviction and
  sentence and the State Government challenging the
G acquittal of A7 to A10 and AG, the High Court upheld the
  conviction and sentence of A2 to A5 and A11 and
  dismissed the appeal of the State Government against
  acquittal of A7 to A10. The High Court further reversed
  the acquittal of AG and convicted him u/s 3G4-A read with
H
VIJAY RANGLAL CHORASIYA v. STATE OF·GUJARAT 757

s. 120-B IPC and sentenced him to imprisonment for life.      A
A-3, A-4 and. A-11 did :10t agitate the matter any further.

    Disposing of the appeals, the Court

     HELD: 1.1. In so far as the concurrent orders of
conviction passed by the trial court and the High Court       8
against A2 and A5 are concerned, on a careful appraisal
of the evidence adduced by the prosecution, there is no
reason much less a compelling one to take a view
different from that taken by the courts below, as the
depositions of witnesses examined at the trial have           C
proved the guilt of these two accused persons beyond
a reasonable doubt. The evidence adduced at the trial
connects these two accused persons with the
commission of the crime they stand charged with. That
evidence is reliable and has been rightly accepted by the     D
courts below. [para 12] [766-G-H; 767-A-B]

     1.2. In particular, A2 was one of the persons who had
participated in the actual act of abduction of the victim,
and was identified by him not only in the test                E
identification parade but also in the court. There is no
reason to disqelieve the version given by the victim in his
deposition especially because the nature of the incident,
the time and place from where the victim was abducted
and the fact that the victim had not only been physically
                                                              F
assaulted but had spent considerable time with the
abductors in the Ceilo car used for the abduction, gave
to the victim sufficient time to recognise the accused
persons and identifying them at the test identification
parade conducted subsequently. It is significant to note
that the incident had left an indelible impression upon the   G
victim's mind. Therefore, there is no reason to disbelieve
his evidence that A-2 was one of those who had
participated in the crime. [para 12] [767-B-E]

    1.3. Besides, the deposition of PW8, PW-9 and PW-         H
   758     SUPREME COURT REPORTS              [2014] 5 S.C.R.


A 10, who are owners of STD PCOs, prove that A2 had
  made calls from the telephone booths owned by them.
  They identified A-2 as the person who made calls from
  their telephone booths. Further, PW-16 and PW-17, both
  owners of STD PCOs have testified that on 16 and 17 July,
B 1997 calls were made from their PCOs on a number that
  happens to be the residential telephone number
  registered in the name of the victim's father. There is, in
  the light of these depositions and other evidence
  discussed by the trial court and the High Court at some
c length, no doubt that A2 was indeed one of the persons
  who was involved in the act of abduction of the victim for
  ransom in conspiracy with the remaining accused
  persons found guilty by the courts below. Accordingly,
  there is no reason to interfere with the judgments and
D orders passed by the courts below holding A2 guilty u/s
  364-A read with s. 120-8, IPC nor is there any reason to
  interfere with the sentence of life imprisonment awarded
  to him. [para 13-14] [767-F-H; 768-A-E]

       1.4. As regards A-5, the trial Court as also the High
E Court have both carefully appraised the evidence
  adduced by the prosecution to connect this accused
  with the incident of abduction and to prove the charge
  framed against him. Apart from other evidence adduced
  at the trial, deposition of PW3, father of the victim has
F also been relied upon by the courts below. The witness
  identifies the voice of AS as one of the callers who had
  demanded ransom for release of the victim. Depositions
  of PW-11 and PW-12 who happen to be uncles of the
  victim also support the prosecution case in this regard.
G More importantly they have identified the voice in the tape
  recorded machines set up by the police for the
  surve.illance of the residential telephone number of the
  victim's family. Also important in this connection are the
  depositions of PW-28, a Divisional Engineer of telephone
H department and PW29, a Scientific Officer of the CBI, who
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 759

had examined the Voice Spectrography of the caller to         A
prove that tape recorded voice was that of A5. [para 15-
16] [768-F-G, H; 769-A-D]

     1.5. It has been established by the evidence on
record that the police got its first break from the           8
information provided by A5 that led to the arrest of the
remaining accused persons and the seizure of arms and
ammunitions from them, apart from discovery of the place
from where the victim was eventually rescued. The
deposition of the witnesses, thus, connects the appellant     C
(A5) with the commission of crime who has been rightly
found guilty by the courts below. On a careful re-appraisal
of the evidence available on record, there seems to be no
perversity in the view taken by the courts below to
warrant interference under Art. 136 of the Constitution.
[para 17] [769-E-H]                                           D

    2.1. An application seeking for transfer of the
depositions of witnesses examined in Sessions Case
No.99 of 1998 to Sessions Case No. 99 of 2002 filed by
the public prosecutor before the trial court, was rejected.   E
The High Court does not appear to have taken note of
the rejection order. It has, on the contrary erred in
proceeding on the basis that the evidence adduced in the
previous trial was e'1idence in the case against the
appellant validly transferred u/s 299, CrPC. [para 19-20]     F
[770-H; 771-A; 772-C~D]

     2.2. Even assuming that the deposition in terms of s.
299, CrPC had been transferred to the case against the
appellant, it may have been open to the accused to argue
that such a transfer was not valid in the eyes of law and     G
could not, therefore, be read against him. The High Court
ought to have addressed two questions falling for
determination before it, viz. (i) whether evidence recorded
in Sessions Trial No.99 of 1998 was and/or could be
transferred to the case against the appellant and read        H
    760     SUPREME COURT REPORTS                [2014] 5 S.C.R.

A against him and, (ii) if such evidence recorded in
  Sessions Case No.99 of 1998 was not or could not be
  transferred, was there any other evidence to support an
  order of conviction against him. Both these questions
  having escaped the attention of the High Court, the case
B would, call for a remand to the High Court to enable it to
  hear and dispose of the matter afresh. [para 20-21) [772-
  D-E, G-H; 773-A]

      2.3. The order passed by the High Court qua accused
  A-6 is set aside and the matter remitted back to the High
C Court for hearing and disposal afresh in accordance with,
  the law keeping in view the observations made in the
  judgment. Meanwhile A-6 shall be released on bail. [para
  23 arid 24) [773-C-D]

D        Jayendra Vishnu. Thakur v. State of Maharashtra and
    Anr. 2009 (8) SCR 591 = (2009) 7 SCC 104 - cited.

                          Case Law Reference:
          2009 (8) SCR 591        cited                 para 20
E
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 953 of 2009.

      From the Judgment & Order dated 21.01.2009 of the High
F Court of Gujarat at Ahmedabad in Criminal Appeal No. 99 of
  2000.

                                 WITH
    Criminal Appeal No. 1125 of 2009, 2297 of 2010.
G         Haresh Raichura, Shilpa Singh for the Appellant.

          H. Wahi, Puja Singh for the Respondent.

          The Judgment of the Court was delivered by
H         T.S. THAKUR, J. 1. These appeals arise out a common
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 761
               [T.S. THAKUR, J.]
judgment and order dated 21st January, 2009 passed by the          A
High Court of Gujarat at Ahmedabad whereby Criminal Appeal
No.244 of 2000 filed by Gautam Kumar @ Sudhir Kumar
Manila! and Criminal Appeal No.99 of 2000 filed by Vijay
Ranglal Chorasiya against their conviction and sentence of
imprisonment for life have been dismissed while Acquittal          8
Appeal No.1326 of 2006 filed by the State against the acquittal
of Gautam Kumar Devijibhai (appellant in Criminal Appeal
No.1125 of 2009) has been allowed and the said appellant
convicted for offences punishable under Sections 364A read
with Section 1208 IPC and sentenced to undergo                     c
imprisonment for life. Conviction and sentences awarded to the
appellants Gautam Ramanuj @ Sudhir Kumar Manilal and Vijay
Ranglal Chorasiya under Section 364 read with Section 120(8),
Sections 341, 342, 343 and 346 read with Section 34 IPC have
also been upheld by the High Court with the direction that the     0
sentences shall run concurrently.

     2. Manish, examined at the trial as PW13 in Sessions
Case No.99 of 1998, was on 15th July, 1997 returning home
from his office around 7.30 p.m. in his Maruti car bearing
registration No.GJ-1-16A-9992. At the railway bridge near          E
ONGC office, Ankleshwar, a Cielo car overtook and stopped
him. Three occupants travelling in the Cielo car came out and
assaulted Manish on the pretext that he had ignored their signal
while driving over the bridge. He was pushed into the Cielo car
and driven away from the spot.                                     F

     3. At around 8.20 p.m. Manish was asked to make a
phone call at his residence which was answered by Maltiben,
his mother. Manish simply told her that he will not come home
for dinner. Manish was forced to make another phone call at        G
10 minutes past 10 in the evening in which he was asked by
his captors to tell his father 8hupendra Prabhulal Shah (PW3)
that he had been abducted. This call was followed by another
call made at 10.30 p.m. in which the abductors demanded a
ransom of rupees one crore for the safe release of Manish, their   H
    762      SUPREME COURT REPORTS                   [2014] 5 S.C.R.

                                                                  -·
A   catch. Bhupendra Prabhulal Shah (PW3) pleaded that he did
    not have the amount demanded by the abductors, but the latter
    declined to scale down their demand.

          4. On the following day i.e. 16th July, 1997 three more calls
B   were received from the abductors at the residence of
    Bhupendra Prabhulal Shah (PW3) for payment of the ransom
    amount demanded by them. The abductors during these calls
    are alleged to have brought down the ransom demand from qne
    crore to rupees fifty lakhs only. Bhupendra Prabhulal Shah
    (PW3) had, in the meantime, informed his brothers
C   Mahendrabhai Prabhulal Shah (PW11) and Pravinchandra
    Prabhulal Shah (PW12) about the abduction and the demand
    of ransom made by the abductors. Information about the
    incident was also passed on to Mr. Ashish Bhatia (PW34), the
    then District Superintendent of Police. Based on the information,
D   the police appears to have made whaf is described as a "Janva
    jog" entry marked Exh.174 about the incident on 16th July, 19S7
    at GIDC, Ankleshwar. The police swung into action and installed
    a tape recording machine at the victim's residence fcrr
     surveillance on 16th July, 1997 itself. This was followed by
E    station entry No.42/97 about the incident made on 17th July,
     1997 and a formal FIR registered ~n 18th July, 1997 at 22.30
     hrs. on the basis of a formal complaint made by Bhupendra
     Prabhulal Shah (PW3) father of the victim.

F      5. Several calls, according to the prosecution, were made_
  at the residence of the victim on 17th July, 1997 asking the
  father of the victim to come to Ahmedabad Narol Cross Road,
  with the ransom amount and reach Koba Patiya through Indira
  Bridge where someone was supposed to give a signal to PW3
G by raising a paper in the hand. Bhupendra Prabhulal Shah
  (PW3) father of the victim followed the instructions given to him
  and accordingly reached Koba Circle Cross Road at 9.00 p.m.
  but found no one raising the paper in his hand even when he
  waited for the signal till 12.30 at night. Disappointed Bhupendra ~
H Prabhulal Shah (PW3) returned from the spot to keep the
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 763
               [T.S. THAKUR, J.]
ransom money that he had carried, with one of his relatives in        A
Ahmedabad. He eventually returned to Ankleshwar on 18th July,
1997 in the morning.

     6. At about 9.00 a.m. on the 18th July, 1997 Bhupendra
Prabhulal Shah (PW3) received another call from the abductors
                                                                      8
asking him to come to Nilam Hotel on Vadodara Cross Road
 in Surat, by 12.00 noon. The abductors were told that it was
 not possible for Bhupender Prabhulal Shah (PW3) to rush to
Ahmedabad since the distance between Ahemdabad and
 Surat was not less than 3SO kms. The abductors were unhappy
with this reply-~uia threatened Bhupendra Prabhulal Shah with         C
dire consequences. The conversation between the two was
tape recorded in the machine installed at the house of the victim.
,This was followed by another call on 18th July, 1997 itself
 allegedly made by Vijay Ranglal Chorasiya (AS), appellant in
 Criminal Appeal No.9S3 of 2009 from a Bharuch landline               D
telephone No.43S33. Since the telephone at the victim's house
wa~ under surveillance, a police party immediately rushed to
the place where the calling number was installed and found the
 same to be a STD PCO owned by Vijay Ranglal Chorasiya
 (AS) but manned by Paresh Kayasth (PW39) his employee who            E
 informed the police that the phone call to the house of the victim
 had been made by none other than the owner Vijay Ranglal
 Chorasiya (AS). This information led to the apprehension of
 Chorasiya by Abhay Singh Chudasama (PW27) on 18th July,
  1997 giving to the police its first break in the case.              F

     7. Interrogation of Vijay Ranglal Chorasiya (AS) revealed
that the abductors were holed up in Divya Apartment in
Ahmedabad. A police team accordingly reached Divya
Apartment only to find Gautam Kumar@ Sudhir Kumar Manila!             G
(A2) appellant in Criminal Appeal No.2297 of 2010, Kamlesh
Barot (A1), Paresh @ Pappu Ranglal Chauhan (A3),
Bhavnaben (A8) and Minaben (A9) wife of Pravin in one of the
apartments. The police took all of them into custody and
recovered two revolvers and some CC!rtridges from the                 H
    764     SUPREME COURT REPORTS                [2014] 5 S.C.R.


A apartment. When questioned as to the whereabouts of the
  victim, Kamlesh Barot (A 1) is alleged to have told the police
  that the victim had been taken by Paresh @ Pappu Ranglal
  Chauhan (A3) and Pravin Haklo (A4) to a farm owned by Pravin
  Haklo (A4) situated on the outskirts of Dediyasan village. A
B police team headed by Deputy Superintendent of Police
  Abhaysingh Chudasama (PW27) rushed to the Dediyasan
  village with Kamlesh Barot (A 1) but saw no signs of Pravin
  Haklo (A4) or Manish the victim. Instead the police found
  Ramesh Patel (A7) the brother of Pravin Haklo (A4) and
c arrested him from the farm house. He informed the police that
  Pravin Haklo (A4) had taken Manish the victim to Ahmedabad.
  The police returned to Divya Apartment with Ramesh Patel (A7)
  in its custody. While at Divya Apartment, a telephone call wa~
  received by Gautam Kumar @ Sudhir Kumar Manilal (A2)
  appellant in Criminal Appeal No.2297 of 201 O who told the
0
  police that the call had been made by Pravin Haklo (A4). At
  the instance of the police Gautam Kumar Manila! (A2) called
  Pravin Haklo (A4) to a place nearby Judges Bungalow,
  Vastrapur, Ahmedabad, where the police arrested Pravin Haklo
  and recovered from his possession a country made pistol. Arrest
E of Pravin Haklo (A4) led the police party to village Naranpura
  falia, Taluka Patdi from where the police arrested Navthan
  Jairam Thakore (A 11) apart from rescuing and restoring
  Manish, the victim to his father.

F      8. Further interrogation of the accused by the police led
  to the arrest of Gautam Kumar Devjibhai Rathod (A6) appellant
  in Criminal Appeal No.1125 of 2009 who was called to the
  Divya Apartment along with the Ceilo car allegedly used for the
  abduction of Manish. Pager No.475625 was also recovered
G from his possession on which a message was received on 18th
  July, 1997 asking him to contact telephone No.43533
  belonging to Vijay Ranglal Chorasiya (AS). The police also
  seized from the possession of Devjibhai Rathod (A6) a carbine
  besides 58 cartridges and a revolver. Completion of the
H investigation led to the filing of a chargesheet before the
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 765
               [T.S. THAKUR, J.]
jurisdictional Magistrate who committed the case to the Court      A
of Sessions Judge before whom the accused pleaded not guilty
and claimed a trial.

     9. At the trial, prosecution examined as many as 66
witnesses in support of its case against the accused except        8
accused Gautam Kumar Devijibhai Rathod (A6) who
absconded and was tried separately. The accused, however,
did not choose to lead any evidence in their defence. The trial
Court ever:itually convicted Gautam Ramanuj (A2), Patesh @
Patulal Ranglal Chauhan (A3), Pravin Haklo (A4}, Vijay Ranglal     C
Chorasiya (A5) and Navgan Jairam Thakore (A 11) under
Section 364-A read with Section 120-B of the IPC and
sentenced them to undergo imprisonment for life. Ramesh Patel
(A7), Bhavanaben and Minaben (AS and A9) and Tillu @
Mohammad Rafit Mohamad Siddik (A 10) were, however,
acquitted by the trial Court. Gautam Devjibhai Rathod (A6)         D
absconding in Session Trial No.99of1998, was finally arrested
on 2nd September, 2000 and tried in Session Case No.99 of
2002 separately but acquitted by the trial Court of the charges
framed against him.
                                                                   E
     10. Aggrieved by their conviction ansi the sentence
awarded to them Gautam Ramanuj (A2}, Patesh @ Patulal
Ranglal Chauhan (A3), Pravin Haklo (A4), Vijay Ranglal
Chorasiya (A5) and Navgan Jairam Thakore (A 11) preferred
Criminal Appeals No.244 of 2000, 313 of 2000, 762 of 2000,         F
99 of 2000 and 610 of 2000 before the High Court of Judicature
at Ahmedabad. Acquittal Appeal No.227 of 2000 challenging
the acquittal of A-7 to A-10 was also filed by the State against
the order passed by the trial Court. So also the State filed
Acquittal Appeal No.1326 of 2006 against the order passed          G
by the Trial Court acquitting Gautam Devjibhai Rathod (A6). The
High Court has, by the common order impugned in this appeal,
upheld the conviction and sentence awarded to the convicted
appellants before it namely Gautam Ramanuj (A2), Vijay
Rang la I Chorasiya (A5) and Navgan Jairam Thakore (A 11)          H
    766      SUPREME COURT REPORTS                  [2014] 5 S.C.R.


A while it has dismissed Acquittal Appeal No.227 of 2000
  challenging the acquittal of A-7 to A-10. By the same order, the
  High Court has reversed the acquittal of Gautam Devjibhai
  Rathod (A6) and convicted and sentenced him to ,undergo
  imprisonment for life for offences punishable under Section
B 364-A read with Section 120-8 of the Indian Penal Code. The
  present appeals assail the said order passed by the High
  Court, as mentioned earlier.

         11. We have heard learned counsel for the parties at
    considerable length who have taken us through the evidence
C   adduced before the trial Court and the judgments delivered by
    the Courts below. As noticed, in the ~arlier part of this
    judgment, only three of the convicted persons are in appeal
    before us. While Gautam Ramanuj (A2) and Vijay Ranglal
    Chorasiya (A5) have challenged the concurrent orders passed
D   by the Courts below convicting and sentencing them to
    imprisonment for life, Gautam Devjibhai Rathod (A6) has in the
    appeal filed by him assailed the reversal of his acquittal by the
    High Court. Patesh @ Patulal Ranglal Chauhan (A3), Pravin
    Haklo (A4) and Navgan Jairam Thakore (A11) have not
E   appealed against their conviction or the sentel)ces awarded to
    them. We are, therefore, called upon only to examine whether
    the conviction of Gautam Ramanuj (A2) and Vijay Ranglal
    Chorasiya (AS) by the Courts below is justified in the light of
    the evidence adduced at the trial. We shall separately deal with
F   the contentions that were urged by Mr. K.T.S. Tulsi on behalf
    of Gautam Devjibhai Rathod (A6) whose acquittal by the trial
    Court stands reversed by the High Court.

       12. In so far as the concurrent orders of conviction passed
G by the Trial Court and the High Court against Gautam Ramanuj
  (A2) and Vijay Ranglal Chorasiya (AS) are concerned, we have
  on a careful appraisal of the evidence adduced by the
  prosecution found no reason much less a compelling one to
  take a view different from the one taken by the trial Court and
H the High Court in appeal. We say so because the depositions
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 767
               [T.S. THAKUR, J.]
of witnesses examined at the trial have proved the guilt of these    A
two accused persons beyond a reasonable doubt. The
evidence adduced at the trial connects these two accused
persons with the commission of the crime they stand charged
with. That evidence is, in our view, reliable and has been rightly
accepted by the two Courts below. In particular, we find that        B
Gautam Ramanuj (A2) was one of the persons who had
participated in the actual act of abduction of Manish, the victim,
and has been identified by him not only in the test identification
parade but also in the Court. We see no reason to disbelieve
the version given by Manish in his deposition especially             c
because the nature of the incident, the time and place from
where the victim was abducted and the fact that the victim had
not only been physically assaulted but had spent considerable
time with the abductors in the Ceilo car used for the abduction
gave to the victim sufficient time to recognise the accused          D
persons and identifying them at the test identification parade
conducted subsequently. We need to remember that the
incident of the kind with which we are dealing could and does
appear to have left an indelible impression upon the victim's
mind. We, therefore, have no reason to disbelieve Manish             E
according to whom Gautam Ramanuj (A2) was indeed one of
those who had participated in the commission of the crime by
abducting Manish in the manner and from the place mentioned
by him in his deposition.

     13. The statement of the victim apart, the deposition of        F
Mehboob Rusul Shaikh (PW8) who himself is an owner of an
STD PCO at Pavagadh Bus Stand, proves that Gautam
Ramanuj (A2) had made a call from the telephone booth owned
by him. So also the deposition of Vahibhat Abdul Haji (PW9)
who also runs an STD PCO at Pavagadh Road has identified             G
Gautam Ramanuj (A2) in the test identification parade and
deposed that on 15th July, 1997 a blue/black colour Ceilo car
came and some persons came out of the car to make a call.
Arvind Kumar (PW-10), an STD PCO owner at Halol-Godhara
                                                                     H
        768   SUPREME COURT REPORTS              [2014] 5 S.C.R.

A Road has similarly identified Gautam Ramanuj (A2) as the
  person who had made a call from his booth.

       14. We may also refer to the depositions of Rajnikant Patel
  (PW-16) and Masumali Rahimbhai Kadiwala (PW-17), both
  owners of STD PCOs who have testified that on 16th and 17th
8
  July, 1997 calls were made from their PCOs on a number that
  happens to be the residential telephone number registered in
  the name of the victim's father. There is, in the light of these
  depositions and other evidence discussed by the trial Court and
  the High Court at some length, no doubt left in our mind that
C Gautam Ramanuj (A2) was indeed one of the persons who was
  involved in the act of abduction of the victim for ransom in
  conspiracy with the remaining accused persons found guilty by
  the Courts below. We, accordingly see no reason to interfere
  with the judgments and orders passed by the Courts below
D holding Gautam Ramanuj (A2) guilty under Section 364-A read
  with Section 120-8 of the Indian Penal Code nor do we see
  any reason to interfere with the sentence of life imprisonment
  awarded to him.
    \

E      15. That leaves us with Vijay Ranglal Chorasiya (AS) who
  too has been found guilty by both the Courts below and
  sentenced to undergo imprisonment for life for the offence
  punishable under Section 364-A read with Section 120-8 of the
  Indian Penal Code. The trial Court as also the High Court have
F both carefully appraised the evidence adduced by the
  prosecution to connect this accused with the incident of
  abduction and to prove the charge framed against him. Apart
  from other evidence adduced at the trial, deposition of
  8hupendrabhai Prabhulal Shah (PW3), father of the victim has
  also been relied upon by the Courts below. Deposition of
G Bhupendrabhai Prabhulal Shah (PW3) proves that Manish was
  abducted and ransom calls started for his release. The witness
  also proves the fact that landline telephone No.55167 was used
  to record the conversation between him and the abductors from
  time to time. The witness also identifies the voice of Vijay
H
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 769
               [T.S. THAKUR, J.]
Ranglal Chorasiya (A5) as one of the callers who had                A
demanded ransom for release of Manish.

      16. Depositions of Mahendralal Prabhulal Shah (PW-11)
and Pravinchandra Prabhulal Shah (PW-12) who happen to be
uncles of the victim-Mani!;>h also support the prosecution .case    8
in the above respects. More importantly they have identified the
voice in the tape recorded machines set up by the police for
the surveillance of the residential telephone number of the
victim's family. Also important in this connection is the
deposition of Atul Kumar Sharma (PW-28), a Divisional
Engineer who stated that Vijay Ranglal Chorasiya (A5) had           C
initially been allotted telephone No.33149, who had then sought
transfer of the said telephone number and had been allotted
telephone No.43533. Reference may also be made to the
deposition of Chandra Kumar Mahendra Kumar (PW29)
Scientific Officer of the CBI who had examined the Voice            D
Spectrography of the caller to prove that tape recorded voice
was that of Vijay Ranglal Chorasiya (A5).
  ' .,,_
      17. It is fairly well estaQlished by the evidence on record
that the police got its first break from the information provided   E
by Vijay Ranglal Chorasiya (A5) that led to the arrest of the
remaining accused persons and the seizure of arms and
ammunitions from them, apart from discovery of the place from
where Manish was eventually rescued from. But for the
information given by Vijay Ranglal Chorasiya (A5), there was        F
no way the police could possibly reach Deviya Apartments nor
could they have eventually caught up with the remaining
abductors who were holding the victim a captive for ransom at
a place unknown to everyone except to the abductors. The
deposition of the witnesses, thus, connects the appellant Vijay     G
Ranglal Chorasiya (A5) with the commission of crime who has
been rightly found guilty by the Courts below. On a careful re-
appraisal of the evidence available on record, we see no
perversity in the view taken by the Courts below to warrant
interference under Article 136 of the Constitution.
                                                                    H
    770      SUPREME COURT REPORTS                  [2014] 5 S.C.R.


A        18. That leaves us with the appeal filed by Gautam
   Devjibhai Rathod (A6). This accused-appellant, as mentioned
   earlier, had been acquitted by the trial Court. The reversal of
   the acquittal by the High Court came under criticism in this
   appear as according to Mr. K.T.S. Tulsi, learned Senior Counsel
B appearing for the said appellant, the High Court had committed
   a palpable error in reading against the said accused person's
   evidence that had been recorded in the trial Court against the
   remaining accused persons. Mr. Tulsi submitted that the
   appellant-Gautam Devjibhai Rathod (A6) was no doubt
c absconding when Session Trial No.99 of 1998 was conducted
  -but the transfer of the depositions of some of the witnesses to
   Session Trial No.99 of 2002 against the appellant-Gautam
   Devjibhai Rathod (A6) was not legally permissible. At any rate
   the transfer of the depositions was not in accordance with the
   provisions of Section 299 of the Code of Criminal Procedure,
0
   1973. It was also contended that the High Court had while
   finding the appellant guilty relied upon certain depositions which
   had not been recorded or validly transferred under Section 299
   and that independent of the said evidence which according to
   the learned counsel could not be treated as evidence against
E the appellant, there was no other evidence on the basis whereof
   the High Court may have recorded a finding of guilt against the
   appellant. It was also contended by Mr. Tulsi that the trial Court
   had specifically rejected an application under Section 299 filed
   by the public prosecutor seeking transfer of the depositions
F recorded in the Session Case No.99 of 2002 but the High Court
   had remained oblivious of the said rejection order and
   proceeded on an erroneous assumption that the evidence
   recorded in Session Case No.99 of 1998 was admissible and
   stood validly transferred for being read as evidence in the case
G against the appellant.

        19. We find merit in the submission made by the learned
    Counsel. An application seeking for transfer of the depositions
    of witnesses examined in Sessions Case No.99 of 1998 to
H . Sessions Case No. 99 of 2002 was admittedly filed by the
     VIJAY RANGLAL CHORASIYA v. STATE OF                   771
            GUJARAT [T.S. THAKUR, J.]
public prosecutor before the trial Court. That application was,   A
however, rejected by the said Court by an order dated 28th
March, 2003. The trial Court had while doing so observed:

    "Ordinarily in any criminal case accused has right to
    cross-examine witnesses of prosecution and this right         8
    should be given as per principle of natural justice.

         But Learned Public Prosecutor has argued that if
    the accused has waived this right by his conduct, he
    cannot cross examine them now.
                                                                  c
          xxx                    xxx              xxx

          ... this principle has been elaborated and as per new
    Section 299 of Cr.P. C. this provision is exception to rule
    that all evidence should be taken in the presence of
                                                                  0
    accused.

           The principle behind this exception is that normally
     court insists on best evidence but there are possibilities
     of evidence being destroyed and therefore the present
     exception is carved out.

          The authority further states that if any person has
    by his conduct chosen that evidence may be taken in his
    absence, then later he cannot say that as per principle
    of natural justice evidence should have been taken in his     F
    presence.

           xxx                   xxx              xxx

           In the present case before us, against the accused
     in session's case No.99 of 1998 there is no order that       G
     evidence be recorded against accused in his absence
     U/sec. 299 of Cr.P. C.

           xxx                   xxx              xxx

           Thus, in above circumstances, the evidence which       H
    772      SUPREME COURT REPORTS                [2014] 5 S.C.R.

A         is recorded in Sessions Case No. 99 of 1998 cannot be
          taken as evidence against the present accused and
          without analyzing the said evidence and without giving
          opportunity of cross-examination to accused. Thus
          arguments of Ld. PP cannot be accepted.
B
               xxx                   xxx              xxx

               ... And therefore I believe that application of the
          prosecution is required to be rejected."

c       20. The High Court does not appear to have taken note
  of the above rejection order. It has, on the contrary, proceeded
  on the basis that the evidence adduced in the previous trial was
  evidence in the case against the appellant validly transferred
  under Section 299 of the Code of Criminal Procedure. That
0 apart even assuming that the deposition in terms of Section 299
  of the Code of Criminal Procedure had been transferred to the
  case against the appellant, it may have been open to the
  petitioners to argue that such a transfer was not valid in the
  eyes of law and could not, therefore, be read against him ..
E Reliance before us was placed upon the decision of this Court
  in Jayendra Vishnu Thakur v. State of Maharashtra and Anr.
  (2009) 7 sec 104 which deals with some of these aspects.

       21. The High Court has, it is evident from the impugned
  order, remained oblivious of the above aspects and proceeded
F to appreciate the evidence adduced in the previous Sessions
  Case No.99 of 1998 as though the said evidence had been
  adduced in the case against the appellant. In doing so, the High
  Court committed an error. The High Court ought to have
  addressed two questions falling for determination before it, viz.
G (i) whether evidence recorded in Sessions Trial No.99 of 1998
  was and/or could be transferred to the case against the
  appellant and read against him and, (ii) if such evidence
  recorded in Sessions Case No.99 of 1998 was not or could
  not be transferred, was there any other evidence to support an
H order of conviction against him. Both these questions having
VIJAY RANGLAL CHORASIYA v. STATE OF GUJARAT 773
               [T.S. THAKUR, J.]

escaped the attention of the High Court, the case would, in our      A
opinion, call for a remand to the High Court to enable it to hear
and dispose of the matter afresh.

    22. In the result, we dismiss Criminal Appeal No.953 of
2009 filed by Vijay Ranglal Chorasiya (A5) and Criminal              8
Appeal No.2297 of 2010 filed by Gautam Kumar (A2).

     23. Criminal Appeal No.1125 of 2009 filed by Gautam
Devjibhai Rathod (A6) is, however, allowed, the order passed
by the High Court set aside qua the said accused and the
matter remitted back to the High Court for a fresh hearing and       C
disposal in accordance with the law keeping in view the
observations made above.

      24. Since we have set aside the order passed against the
appellant G·autam Devjibhai Rathod (A6), and since the acquittal     o
appeal has to be heard and disposed of afresh, we direct that
the said appellant shall be released from custody on furnishing
bail bonds in a sum of Rs.50,000/- with two sureties in the like
amount to the satisfaction of the Registrar of the High Court of
Gujarat at Ahmedabad unless of course he is required in              E
connection with any other case. The High Court would do well
to hear and dispose of the appeal at an early date as the matter
is fairly old and has remained pending for a long time.

Rajendra Prasad                               Appeals disposed of.