R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (FOR ENHANCEMENT) NO. 1316 of 2011

With

R/CRIMINAL APPEAL NO. 1066 of 2011

With

R/CRIMINAL APPEAL NO. 1071 of 2011

With

R/CRIMINAL APPEAL NO. 1092 of 2011

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

==========================================================

Approved for Reporting Yes No

==========================================================

STATE OF GUJARAT

Versus

VISHALKUMAR SOMCHANDRA SHAH & ORS.

==========================================================

Appearance:

In Cr.A.No.1316/2011

MR BHARGAV PANDYA, APP for the Appellant - State

HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1

MR ASHISH M DAGLI(2203) for the Opponent(s)/Respondent(s) No. 5

MR G R MANAV(6064) for the Opponent(s)/Respondent(s) No. 2,4

MR PV PATADIYA(5924) for the Opponent(s)/Respondent(s) No. 1

RULE SERVED for the Opponent(s)/Respondent(s) No. 2,4,5

In Cr.No.1066/2011

MR JIGAR SALVI for the Appellant- Original Accused No.4

In Cr.No.1071/2011

MR JK PARMAR for the Appellant – Original Accused No.2

In Cr.No.1092/2011

MR ASHISH DAGLI for the Appellant – Original Accused No.5

==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 17/02/2026

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1.Since the facts of the case and issue involved in the captioned

appeals, are identical and arise out of the same judgment, the appeals

are taken up together and are being disposed of by this common

judgment.

Page 1 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

2.Before the Additional Sessions Judge, Nadiad at Kheda, five

accused were being chargesheeted for the offences punishable under

Sections 170, 419 and 395 read with Section 114 of the Indian Penal

Code. After the chargesheet and during the trial, original accused no.1

– Vishal Somchandra Shah and original accused no.3 – Mehmud

Pathan passed away. The trial of the case proceeded against original

accused nos.2, 3 and 4 namely Mahendrapratap Rajput, Kehul Kantilal

Shah and Lata @ Muskan Laxmandas Santvani.

3.Vide judgment and order of sentence dated 12.08.2011, passed in

Sessions Case No.136 of 2010, the Additional Sessions Judge, Nadiad

at Kheda convicted and sentenced all three accused for the offences

punishable under Sections 170, 419, 395 read with Section 114 of the

Indian Penal Code and sentenced in the manner stated hereinafter:

Accused Conviction

under

Section

Punishment Fine In

default

of fine

Kehulkumar Kantilal

Shah

S.395 of

IPC

RI for 5 yearsRs.5,000/-RI for 6

months

Kehulkumar Kantilal

Shah

S.419 r/w

114 IPC

RI for 1 yearRs.1,000/-RI for 1

month

Kehulkumar Kantilal

Shah

S.170 r/w

114 IPC

RI for 6 monthRs.500/-RI for

15 days

MahendrapratapVans

hdharsinh Rajput

S.395 of

IPC

RI for 5 yearsRs.5,000/-RI for 6

month

MahendrapratapVans

hdharsinh Rajput

S.419 r/w

114 IPC

RI for 1 yearRs.1,000/-RI for 1

month

Page 2 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

MahendrapratapVans

hdharsinh Rajput

S.170 r/w

114 IPC

RI for 6 monthRs.500/-RI for

15 days

Lataben@

Muskanben

S.395 IPCRI for 5 yearsRs.5,000/-RI for 6

month

All the sentences were ordered to run concurrently.

4.Hence, all three accused have individually by challenging the

impugned judgment, filed appeals bearing Criminal Appeal No.1066 of

2011 (Kehul Kantilal Shah), Criminal Appeal No.1071 of 2011

(Mahendrapratap Rajput) and Criminal Appeal No.1092 of 2011 (Lata

@ Muskan Santvani).

5.The State has preferred the enhancement appeal on the ground of

inadequacy of the sentence imposed upon the accused-appellants

(Criminal Appeal No.1316 of 2011).

6.Factual background:

6.1The appellants-accused were prosecuted and tried for the offence

punishable under Sections 170, 419 and 395 read with Section 114 of

the Indian Penal Code.

6.2The appellant-original accused no.5 – Lata @ Muskan requested

the complainant Prakash Patel (PW.1) for giving her a lift on his

motorbike as on 04.01.2010, the complainant by riding his motorbike,

was on the way from Ahmedabad to Nadiad. The accused Lata being a

pillion of the motorbike, requested the complainant to have intimate act

Page 3 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

in a secluded place. The complainant (PW.1) drew the motorbike

towards Hari Om Ashram, Nadiad and stopped the motorbike in the

secluded place. The accused – A5 Lata @ Muskan, after came down

from the bike, had gone for urination. Meanwhile, four accused namely

Vishal Shah, Mahendra Rajput, Mehmudkhan Pathan and Kehul

Shantilal Shah were alerted by the accused Lata and upon receiving a

signal, they round up the PW.1 and the accused lady. They introduced

themselves as police officials of Local Crime Branch, Kheda and asked

certain questions to the complainant (PW.1) that why you coming here

and what you are doing with the lady and further alleged that, you are

forcing the lady to indulge in the sex. The complainant explained that,

they are passing their time and come for a ride. The four accused, did

not accept the explanation and by hurling abusive, the complainant was

beaten up with the stick and was further threatened by the accused that,

they will lodge the FIR and asked the complainant to take a seat in the

Indica car.

6.3In the Indica car, the accused demanded Rs.50,000/- for

settlement. The complainant was not having sufficient amount with

him and said that, he has only Rs.300 with him. The accused looted

Rs.300/-, a copy of the licence and a mobile from the complainant. The

complainant, thereafter, agreed to pay Rs.50,000/- at Ahmedabad. The

accused and the complainant proceeded from the place to Ahmedabad

for securing the amount. The accused Mehmudkhan Pathan (A3) was

directed to come on the motorbike of the complainant.

Page 4 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

6.4When the car reached at the crossroad of Bilodara Jail, the Local

Crime Branch Police Officials were checking the vehicles. The

accused threatened the complainant that, if the police ask anything to

you, then you should not disclose anything. However, the complainant

(PW.1), sought the help of the police officials and asked them that,

please check the official designation of the persons sitting in the car as

the accused impersonated LCB Police Officials. The police officials

PW.2 – Vijaysinh Ratansinh, PW.2 – Yakubmiya Malek and others

have cordoned the accused and upon inquiry, it was found that, they

pretended themselves falsely to be police officials. The LCB, Kheda,

arrested the accused under Section 41(D) of the Cr.P.C. on the ground

of suspecting of having committed an offence. Thereafter, PW.1 had

lodged an FIR with Nadiad Rural Police Station, which registered as

C.R.No.I- 4 of 2010 under Sections 386, 419, 170 read with Section

114 of the Indian Penal Code. The accused officially came to be

arrested by the I.O. During the investigation, the I.O. of the case seized

and recovered Rs.300/-, a copy of licence and a mobile phone of the

complainant from the accused, seized the Indica car allegedly used in

the commission of the crime, also seized the mobile phones of the

accused, recorded the statements of the witnesses more particularly, the

police officials, who were posted for vehicle checking at the crossroad

of Bilodara Jail, Nadiad and after due investigation, the chargesheet

filed for the offences punishable under Sections 170, 419, 395 read

with Section 114 of the Indian Penal Code.

As the case was exclusively triable by the Court of Sessions, it was

committed to the Court of Sessions, Nadiad at Kheda. The Sessions

Page 5 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

Court framed the charges against the appellants–accused, they did not

admit the charge and claimed to be tried.

7.The prosecution, in order to prove the charge, adduced the

following oral and documentary evidence, in support of its case.

Oral evidence-14

PW 1 – Exh.27 Prakash Keshavlal Patel, Complainant

PW 2 – Exh.32 Vijaysinh Ratansinh, Head Constable

PW 3 – Exh.37 Yakubmiyan Abdulmiya Malik

PW 4 – Exh.48 SabirhusseinMayudin Saiyyed, panch witness

PW 5 – Exh.49 RajnikbhaiBachubhai Malik, panch witness

PW 6 – Exh.53 RamsinghbhiDesaibhai Parmar, panch witness

PW 7 – Exh.55 MangubenAshabhai Rajput, panch witness

PW 8 – Exh.56 RamanbhaiOmabhai Dabhi, panch witness

PW 9 – Exh.58 BhagwanbhaiDayhabhai Chouhan, panch witness

PW 10 – Exh.59Bismillahbanu Abdulmiya Saiyyed

PW 11 – Exh.60RishitkumarRavindrabhai Bhatt

PW 12 – Exh.62Dr. Krunalkumar Rajibhai Sharma

PW 13 – Exh.65Raijibhai, PSO

PW 14 – Exh.66Rajendrabhai Babubhai, IO

Documentary evidence - 5

Exh.28 Original Complaint

Exh.39 Panchnama of CrPC 41(1)d

Exh.54 Panchnama of state of body of accused

Page 6 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

Exh.57 Panchnama of place of offence

Exh.64 Medical certificate of Complainant

8.After closure of the prosecution evidence, statements of the

accused under Section 313 of the Cr.P.C., were recorded, to which,

they stated that they have been falsely implicated in the offence and

they are innocent and have not committed any offence.

9.Though opportunity was extended, no oral evidence being

adduced by the appellants–accused.

Trial Court findings:

10.After hearing the parties and upon appreciation of material

evidence, the accused held guilty for the offence punishable under

Sections 170, 419 and 395 read with Section 114 of the Indian Penal

Code and while convicting the accused, the Trial Court has mainly

relied upon the evidence of victim (PW.1) and police officials, who

were discharging their duty at the traffic point. The Trial Court has

recorded that, accused nos.1 to 4 falsely pretended to be Local Crime

Branch Police Officials and by doing so, put the complainant in fear

and commits the extortion and robbed the cash amount as well as a

copy of the licence and mobile phone from the complainant, whereby

the accused have committed the offences, as referred above. The Trial

Court has awarded a maximum punishment of five years for the

offence punishable under Section 395 of the Indian Penal Code.

Page 7 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

11.Evidence adduced by the prosecution:

(1)Prakashkumar Keshavlal Patel (PW.1) :This witness is the

victim of the alleged incident and being a complainant of the case, has

stated in his chief-examination that, on 04.01.2010, at about 10:30

a.m., he proceeded on his bike bearing Registration No.GJ-18-FN-

6371 from his home Ahmedabad to Nadiad for business purpose and

when he was 10 kilometers away from Nadiad, he saw one lady

standing on the road and her hand was in standing position and while

reaching near her, she had asked for lift on his bike and the lady was

accused no.5. The accused no.5 sought a lift to reach at Nadiad and she

was talking in Hindi language. The witness has further stated that, after

giving her lift, she took her seat as a pillion of the bike, and thereafter,

he proceeded towards Nadiad and before they could reach Nadiad, the

lady accused no.5, in Hindi language told him that, “today, I am totally

free and I intend to keep intimate relations with you.” The witness –

complainant agreed with the proposal and drew the bike towards Hari

Om Ashram, Nadiad Road and stopped his bike near secluded place.

The witness has further stated that, the lady accused, after getting down

from the bike, directed him to wait for some time as she intends to go

for urination. The lady, thereafter, went for washroom and meanwhile,

he was standing at a secluded place. The witness has further stated that,

the lady accused came thereafter before him and meanwhile, four

persons in Indica car came over there. The witness has further stated

that, four persons directly attacked him and asked him that fromwhere

are you coming? Who is this lady? Why you are standing here and for

Page 8 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

what purpose, you are coming over here? After this questionery, one

person took out a stick from the car and started assaulting him and the

person, who has beaten up, is sitting in the Court today (Kehul Kantilal

Shah-A4). The witness has further stated in his chief-examination that,

the accused themselves introduced as Crime Branch Police Officials

and one of the accused introduced himself as a Police Inspector of the

Crime Branch. It is further stated by the witness that, the accused

threatened him that, they will register the case and direct him to sit in

the car. The witness has further stated that, he along with the lady

accused, took their seats in the rear side of the car. The witness has

further stated that, the accused Mahendrapratap Rajput took his bike.

The witness has further stated that, the car was driven by Kehul

Kantilal Shah. It is stated that, he was intercepted in the car by the

accused and was asked to give whatever he is having with him. The

witness has further stated that, at the relevant time, he was carrying

Rs.300/- with him, a driving licence and a mobile phone. The witness

has further stated that, the accused took away the cash amount and

mobile as well as licence and further demanded Rs.50,000/- as a part of

settlement, and further threatened that be ready for the consequences.

The witness has further stated that, at relevant time, he was in trauma

and fear.

The witness has further stated that, when the car was passing near the

cross-road at Nadiad, the police officials of S.R.P. Group doing vehicle

checking and upon seeing the police, the accused threatened him that,

if anything asked by the police, then you should reply that we are

friends and are going for a ride. The witness has further stated that, the

Page 9 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

car was stopped by the police and at that time, he managed to escape

from the clutches of the accused and informed the police about the

atrocities and acts of the accused. The witness has further stated that,

he along with the five accused, had been restrained by the police and

taken to the LCB Office, Kheda, and thereafter, he was permitted to

lodge an FIR with Nadiad Rural Police Station, where he has lodged

the FIR, which is produced by him at Exh.28. The witness has further

stated that, the police has referred him to the Civil Hospital, Nadiad for

medical examination where he took treatment for the injuries caused

by the accused. The witness has identified all the accused in the Court.

In the cross-examination, the witness has stated that, he does not know

the road directions of Hari Om Ashram. The witness has stated in cross

that, he did not have given a history of the case before the doctor, nor

disclosed his mobile number or license number in the complaint and

the denomination of the currency notes.He has further stated that, at the

board of Village: Varsova, except the presence of the accused Muskan,

whether any other persons were present or not that he does not know.

The witness has further stated in the cross that, upon the request of

accused Muskan, he agreed to give her lift on his bike. The witness has

stated in cross that, the accused Muskan has not suggested the

particular place where they will have to stay. The witness has denied to

the suggestion that, he is interested in Muskan and that is why, he took

her forcefully at the place of incident. The witness has denied to the

suggestion that, in order to save his image and credentials, the false

complaint has been filed against the accused.

Page 10 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

(2)Vijaysinh Ratansinh (PW.2), Yakubmiya Malek (PW.3),

Rishitkumar Bhatt (PW.11): All these witnesses are police officials of

the Local Crime Branch, Kheda at Nadiad and at that time i.e. on

04.01.2010, they were busy with the official work of vehicle checking.

The witnesses, in their deposition, have supported to the case of

prosecution. The witnesses have stated in their chief-examination that,

when they were on watch, they cordoned the Indica car, wherein five

persons were found inside the car. Out of five, one was lady. They

further stated that, out of five, one person namely Prakash Patel told

them to inquire about the designation of the accused to the effect that

whether they are really associated with the Crime Branch or not. They

have further stated that, one person also coming riding on the bike and

he was also restrained along with the passengers of the Indica car. The

accused Vishal Somchandra Shah was found on the driving seat and

from his possession, Rs.300/- and other things were being recovered

and the witness Prakashbhai identified the accused as well as his

amount of Rs.300/- allegedly extorted by the accused. All the

witnesses have stated that, after intercepting the accused and the car,

they were unable to show the papers of the car and also failed to

explain about possession of the stick, as a result, by invoking Section

41(D) Cr.P.C., the things were seized and accused came to be arrested.

the witnesses have stated that, the complainant-victim apprised them

about the entire incident and act of robbery as well as demand of

Rs.50,000/- by the accused. The witnesses have stated that, the

complainant-victim thereafter, sent to Nadiad Rural Police Station for

filing of complaint. The witnesses during the recording of the

Page 11 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

deposition, identified the accused as well as seized muddamal articles.

In the cross-examination, the defence has tried to prove that, the

accused have been falsely implicated under the guise of vehicle

checking and at relevant time, they were not present for vehicle

checking, but on the aspect of incident and caught the accused red

handed, their evidence is not shaken in the cross-examination, and

therefore, we deem it fit not to refer the entire cross-examination.

(3)Dr. Krunalkumar Sharma (PW.12):This witness being a

Medical Officer of Civil Hospital, Nadiad, had examined the PW.1 –

Prakash Patel. The witness has stated that, on 05.01.2010 in the night

hours, the witness Prakash Patel brought before him with Police Yadi

and in the history, he has stated that, on 04.01.2010, he was beaten up

with the lathi near Hari Om Ashram. The witness has further stated

that, the patient was having pain on the right leg and upon his

examination, there was an injury on right leg in the nature of bruise

(10X8 c.m.) and tenderness over the left forearm. The witness has

produced the certificate of examination at Exh.64.

(4)Rajendrabhai B. Desai (PW.14):This witness being an

Investigating Officer of the case, has stated that, on 04.01.2010, the

investigation after registration of the offence, was entrusted to him and

meanwhile, he received the case papers of 41(1)(d) Cr.P.C. along with

the accused and the articles from the LCB Office. The witness has

further stated that, after preliminary inquiry of the accused, he arrested

them on 04.01.2010 and recorded the statement of police officials of

LCB Office, and thereafter, drew the panchnama of scene of offence

Page 12 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

and seized and recovered the mobile phones and cash amount as well

as the stick allegedly used in the crime. In the cross-examination, he

has stated that, the mobile phone (article no.10) has not been produced

before the Court. The I.O. has also stated that, during the investigation,

he did not have seized the bike of the complainant. The I.O., in his

cross-examination state that, on the issue of ownership of the car, he

did not have investigated the case on this line. The I.O. has denied in

the cross-examination that, he has falsely arrested the accused and

despite of insufficient evidence against them, he has filed chargesheet.

Submissions:

12.We have heard Mr.Ashish Dagli, Mr.J.K. Parmar, Mr.Jigar Salvi,

learned counsels appearing for the appellants – accused and

Mr.Bhargav Pandya, learned Additional Public Prosecutor for the

State.

13.Mr. Ashish Dagli, learned counsel, while assailing the impugned

judgment and order of sentence, made the following submissions :

(i)That the learned trial Court grossly erred while convicting the

accused No. 5 Lata @ Muskan without appreciating the evidence

in right prospective. The accused Lata has been convicted only

under Section 395 of the Indian Penal Code and sentenced to

undergo RI for a period of 5 years. According to prosecution

case, she was given a lift by the complainant PW-1, and

thereafter, the parties chosen to spend their free time at the

Page 13 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

secluded place in the area of Nadiad Town. The co-accused

came at the secluded place where the accused and the

complainant and posing themselves as policed officials,

threatened the complainant and looted his Rs.300/- as well as

mobile and driving license and under the guise of settlement, the

accused demanded Rs.50,000/-. So far as accused no.5 is

concerned, there is no evidence to establish her association with

the co-accused prior to the incident and it was the complainant,

who had chosen the secluded place. The accused no. 5 had not

suggested the place of leisure and it was admitted by PW-1 that,

he himself chosen the place nearby Hariom Ashram, Nadiad. It

is not the case of the prosecution that, at the instance of accused

no. 5, the co-accused pretended themselves to be police officials

and robbed the complainant. In such circumstances, the accused

was not in any manner associated with the co-accused nor played

any role as a part of common object nor had acted in furtherance

in common intention of co-accused, and therefore, the conviction

qua accused no.5 under Section 395 is not sustainable in law as

the ingredients of offence of robbery or dacoity are not attracted

and satisfied and in that view of the matter, when the charge is

not proved beyond reasonable doubt by adducing acceptable and

cogent evidence, the judgment of conviction and order of

sentence may be set aside and accused no.5 be acquitted from all

charges.

14.Mr.Jigar Salvi and Mr. J.K. Parmar, learned counsel appearing

for and on behalf of appellant - accused No. 2 Mahendra Rajput and

Page 14 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

appellant - accused no. 4 – Kehul Kantilal Shah, have made the

following submissions:

(i)That the charge against the appellants – accused have not been

proved and established by leading cogent and acceptable

evidence and it is the one of fundamental criminal jurisprudence

that the accused is presumed to be innocent unless proved guilty.

In the facts of the present case, the entire prosecution case hinges

upon the sole testimony of PW-1, complainant Prakash Patel.

The complainant is not the resident of Nadiad Town and is not

related to the appellants accused, and therefore, it is an admitted

fact that prior to the incident, the appellants accused were not

known to each other, and therefore, merely identification of the

accused in the Court by the complainant is not sufficient to

establish the identity of the accused in the crime. The I.O. failed

to hold T.I. parade for the purpose of identification of the

appellants and on this count, the sole evidence of PW-1 cannot

be relied to establish the involvement of the accused in the

crime.

(ii)That the sole testimony of PW-1 does not inspire confidence and

trustworthy in view of the material contradictions found in his

deposition and his conduct throughout the incident, it appears

that the witnesses telling lie and with a view to come out with

relation with accused no.5, he deposed against the appellants so

as to falsely involved them into crime and thus, in absence of

any independent witness, though available, but purposely they

were not examined by the prosecution which creates a doubt in

Page 15 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

the prosecution story.

(iii)That the investigation has not been done in fair and transparent

manner and without proper investigation, the chargesheet came

to be filed. The prosecution failed to produce the proceedings

undertaken by the LCB Police, Kheda under Section 41(1)(d) of

the Cr.P.C., as it is necessary to examine the said papers and also

necessary for the defence of the accused. According to

prosecution case, the police officials of LCB Kheda, were on

duty for checking of the vehicles and the information of

suspected activities of the persons, who were travelling in the

Indica Car. None of the police official witness have produced the

facts of the information received or any other papers showing

that the appellants along with the complainant and lady accused

no.5 were detained and stopped at the cross-road of the Nadiad

Town for the verification of the information as well as vehicle

checking. In such circumstances, the testimonies of the police

officials cannot be relied upon to establish the involvement of

the appellants in the alleged crime.

(iv)That there is a delay in lodging the FIR and possibility of

concoction and embellishment cannot be ruled out as, as per the

prosecution case, the FIR came to be registered in the midnight

i.e. 12-30 and the offence alleged occurred in the noon hours

between 1=00 to 3-00. In such circumstances, despite of

opportunity to lodge FIR at the earlier in point of time, the same

has not been filed in a reasonable time, for which, there is no

explanation put-forth by the prosecution.

Page 16 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

(v)That, the necessary ingredients of offence of robbery punishable

under Section 395 are not attracted and established, as to

establish the offence of robbery the prosecution is to prove all

the elements required to prove the theft under Section 379; or the

elements of extortion as the extortion is robbery, if the offender

at the time of committing the extortion put in fear the victim of

instant death and/or instant hurt or instant wrongful restraint

induces or compel the victim to delivery of the things extorted.

In the present case, the victim was not put in fear of death, nor

received visible injury or wrongfully restrained her so as to

extort the amount, and therefore, legally, the conviction under

Section 397 of IPC is not attracted and conviction thereunder,

cannot be sustained.

15.In such circumstances referred above, the counsels appearing for

and on behalf of appellants – accused, prayed that, there being merits

in the appeals and same may be allowed and further prayed that, the

judgment of conviction and order of sentence, be set aside and the

appellants may be acquitted from all charges.

16.On the other hand, Mr.J. K. Shah, learned Additional Public

Prosecutor for the State vehemently opposed the appeals and

contended that, the Trial Court has not committed any error while

holding the appellants accused guilty for the offence. He further

submitted that there is no reason for the victim PW-1 to implicate the

accused falsely in the serious charge of robbery. The presence of the

victim PW-1 being injured witness at the place of offence, cannot be

Page 17 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

doubted and on the aspect of incident, his evidence is convincing and,

as such there is no material contradictions on the aspect of incident

found in his evidence. The evidence adduced by the prosecution proves

that, the accused with pre-plan, picked-up the victim with the aid of

lady accused and under the guise of sexual favour, the victim was lured

and taken to secluded place and as a pre-plan, the accused nos.1 to 4

came into Indica car and posing themselves as a Crime Branch Police

Officials and attacked on the victim with the weapon stick and

threatened that he will be booked under the sexual offences and as a

part of settlement, they demanded Rs.50,000/- but somehow, at

relevant time, the victim was having Rs.300/- in his pocket and same

amount being robbed along with driving licence and cell phone of the

complainant and for the remaining amount of Rs.50,000/- the accused

along with victim were coming from Nadiad to Ahmedabad and their

car was stopped by the Nadiad Police, as a part of checking drive and

during their interrogation, the police officials revealed the offence of

impersonation and robbery allegedly committed by the accused. In

such circumstances, the victim’s evidence on the aspect of act of the

accused is consistent and trustworthy. His evidence corroborated by

the police officials of Kheda and medical evidence. There is nothing on

record that at the secluded place the people of the vicinity had come to

witness the incident. In such circumstances, the testimony of victim is

wholly reliable and his evidence as a ring of truth and the Trial Court

has rightly relied upon his testimony and for placing reliance on his

evidence, has recorded sufficient and cogent reasons. The accused

were five in numbers, and at relevant time, they robbed the victim. In

Page 18 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

such circumstances, the necessary ingredients of Sections 395 & 397

have been established by the prosecution by adducing acceptable and

cogent evidence.

17.In such circumstances referred to above, the learned APP Mr. J.

K. Shah, prayed that, there being no merits in the appeals filed by the

accused and same may be dismissed.

18.So far as enhancement appeal against the insufficient sentence

awarded by the Trial Court is concerned, it was submitted that, the

offence is serious one and affecting society at large and Trial Court,

while imposing the sentence, has not taken into consideration this

aspect and discretion for awarding the sentence has not been properly

exercised and in that view of the matter, by allowing the enhancement

appeal, the maximum sentence, as prescribed for the offence

punishable under Section 395 be awarded.

19.On the other hand, learned counsels appearing for the appellants,

opposing the enhancement appeal, contended that, the sentence

imposed is too harsh and considering the background status of the

appellants, the Trial Court failed to assign special reasons for not

having extended the benefit of probation, as provided under Section

361 of the Cr.P.C., and under the provisions of the Probation of

Offender Act, 1958 and on the same ground, the sentence of 5 years is

not sustainable and the appellants accused may be ordered to be

released on probation on good conduct and in that view of the matter,

they contended that, the enhancement appeal has no merits and same

deserves to be dismissed.

Page 19 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

ANALYSIS AND FINDINGS :

20.In the present case, out of five accused, the accused A3

Mehudkhan Pathan and accused A1 Vishal Shah are no more as during

the pendency of the proceedings, they passed away. The accused no.5

Lata @ Muskan has been convicted for the offence of Section 395

Indian Penal Code only. The accused nos.2 and 4 viz. Mahendra

Rajput and Kehul Kantilal Shah have been held guilty for the offence

punishable under Sections 170, 419, and 395 of the Indian Penal Code.

21.We have considered the submissions made at the bar and

examined carefully the entire case records. The prosecution case

mainly hinges upon the testimony of PW:1 Prakash Patel, who is the

victim and three police constables i.e. PW:2 Vijaysinh Ratansinh,

PW:3 Yakubmiya Malek and PW:11 Rishit Bhatt.

22.On perusal of the testimony of PW:1, it appears that he is in the

business of hardware, doing business at Ahmedabad and due to

business purpose, he having contact with the business entity in the

Nadiad Town. The distance between Ahmedabad and Nadiad Town is

56 k.m. and in that view of the matter, it was quite possible for the

complainant PW:1 to visit Nadiad Town by riding on his bike, and

therefore, the story which he had narrated about taking visit at Nadiad

Town on his bike, is natural and acceptable and nothing wrong on his

part to travel on the two wheeler so that after completion of his work,

he could return to the Ahmedabad in a reasonable time. According to

the prosecution case and version of the PW:1 on 04.01.2010, he had

Page 20 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

proceeded from Ahmedabad to Nadiad on his bike bearing No.GJ-1-

FN-6371 and while reaching near Varsola Bus-stand which is 10 k.m.

away from Nadiad, accused no.5 by giving signal, stopped the PW:1

and sought a life on his bike as she intends to travel to Nadiad. The

complainant PW:1, in his deposition, has categorically stated that

before they could reach at Nadiad, the lady accused no.5, desirous to

have sex with him in a secluded place and complainant latterly came

into trap of the proposal made by the accused. The place near Hariom

Ashram at Nadiad being selected and near the secluded place, they

entered into bushes and stand there. The co-accused nos.1 to 4 came

there in Indica Car and assumed character of Local Crime Branch

Police Official and under the colour of such office, they beaten up the

complainant and looted cash amount from him and putting in fear,

compelled the PW:1 to pay extortion amount of Rs.50,000/- and to

enable him to pay the amount, the accused along with PW:1 proceeded

from the place of occurrence to the Ahmedabad for the payment.

Unfortunately, Indica-Car was restrained by the Local Crime Branch

Police Official, Nadiad because they were deputed for vehicle

checking on the basis of information. In these background facts, we

have no doubt about the factual aspect of the incident narrated by

PW:1 against the accused. His evidence is truthful. He does not have

any agenda for falsely implicate the accused herein and his evidence

has been corroborated by his complaint and during the cross

examination, his version on the aspect of incident and involvement of

the accused has not shaken. The Nadiad Police Official PWs:2, 3 and

11 have categorically in their testimonies stated that the PW:1 was

Page 21 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

illegally restrained in the car for the purpose of extortion amount and

the accused pretended to be Local Crime Branch Official which they

do not have any official post and despite of this, after beating the

PW:1, they on the way to Ahmedabad for extortion amount allegedly

to be paid by the PW:1. In such circumstances, the entire story as

stated by the victim PW:1 has been corroborated by the independent

police official, who had caught the accused red-handed. It is relevant to

note that at the time of incident, no one present except PW:1 lady

accused and place was secluded place and therefore, the question for

examination of independent witnesses on the part of the prosecution

does not arise. Therefore, in our opinion, the testimony of the PW:1

and Police Official are clear, cogent and creditworthy and there are no

any inconsistency and improbability in the story of incident and there

are no material contradictions or improvements found in their evidence

and therefore, the presence of PW:1 at both places are found natural

and there is a ring of truth in his evidence before he being a victim has

truthfully narrated the entire evidence and the suffering at the hands of

the accused. The presence of the victim with the accused no.5 was

natural because both have agreed to enter into the intimate relationship

at the secluded place, so in the facts of this case, it is possible to

believe his presence at the place and in absence of any inherent lacuna

in his evidence, we have no doubt in our mind about his reliability and

truthfulness on the aspect of incident and involvement of the accused

in the crime, and therefore, the witness PW:1 is wholly reliable and his

evidence corroborated by his FIR and other police official as referred

above and therefore, involvement of the accused in the crime, as stated

Page 22 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

by PW:1 is proved and established.

23.Now the question is whether the Trial Court was justified in

convicting accused no.5 Lata @ Muskan (appellant accused of

Criminal Appeal No.1092 of 2011) for the offence punishable under

Section 395 of Indian Penal Code.

24.We have carefully examined the oral as well as documentary

evidence. The accused Lata was travelled with PW:1 on his bike and

caught by the other accused at the secluded place near Hariom Ashram,

Nadiad. The PW:1 in his testimony has stated that the accused Lata did

not have proposed the place of incident. The prosecution has not

collected the CDR to prove that the accused Lata called the co-accused

at the place. Therefore, in order to prove the common intention, the

role whatever assigned to accused Lata, the evidence on record is

insufficient to draw the inference that the accused Lata with a view to

extort the amount from PW:1 had acted on behalf of the co-accused

and she was the instrumental in luring PW:1. In such circumstances,

though the presence of accused Lata was throughout with PW:1 but

whether there is sufficient evidence to hold vicariously liable as joint

liability with the co-accused or not. As discussed, there is nothing

brought on record by the prosecution to establish that she was in any

manner associated with the co-accused for the purpose of robbery. In

such circumstances, the evidence on record to create a doubt of her

involvement in commission of the offence of robbery, as a result, the

charge against the accused no.5 has not been proved beyond reasonable

doubt by acceptable and convincing evidence.

Page 23 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

25.Now, question arises for our consideration as to whether the

Trial Court was justified in convicting the accused no.2 Mahendrasinh

Rajput appellant and accused no.4 Kehul Shantilal Shah appellant for

the offence punishable under Sections 170, 419, 395, read with Section

114 of the Indian Penal Code ?

26.The prosecution case is that the accused pretended themselves to

be a Police Official of Local Crime Branch and threatened the PW:1

that he had forced the accused no.5 for sexual favour and after beating

him, took him into the car and looted Rs.300/- and under the pretext of

settlement, attempted to extort Rs.50,000/-, for which, the victim

agreed to pay at Ahmedabad because at the relevant time, he was not

having a sufficient amount with him. Admittedly, the accused were not

the police officials and despite of this, with an intention to create

atmosphere, they hold the weapon of the police, wore the dress of the

police official of Local Branch, whereby they personated and/or

pretended that they hold the office of local crime branch. Section 170

of Indian Penal Code reads as follows:

“170Personating a public servant-whoever pretends to hold any

particular office as public servant knowing that he does not hold

such office or falsely personates any other person holding such

office, and in such assumed character does or attempts to do any

act under colour of such office, shall be punished with

imprisonment of either description for a term which may extend

to two years, or with fine, or with both.”

27.Thus, the essential ingredients of an offence under this section

Page 24 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

are that the accused must have pretended to hold any particular office

as a public servant or he must have falsely personated any person

holding such a particular office as a public servant.

28.In the present case, the evidence of PW:1 proves and establishes

that at the relevant time, the accused nos.1 to 4 were not holding any

public office and impersonated themselves to be police official and

robbed the complainant whereby they did and overact in exercising the

authority of the assumed public servant. In such circumstances, the

essential ingredients of Section 170 are attracted and having regard to

the nature of evidence, the all ingredients are satisfied and the

prosecution succeeds in proving the charge under Section 170 read

with Section 114 of the Indian Penal Code against the accused

appellants.

29.So far as charge under Section 419 of the Indian Penal Code is

concerned, which provides for punishment for the act of cheating by

personation. In order to prove the charge, the prosecution is obliged to

prove that the accused cheated someone and he did so by

impersonation. The term personation is defined in Section 416 of

Indian Penal Code. The charging section is Section 419 of the Indian

Penal Code. To bring home an offence under Section 416 of the Indian

Penal Code, the elements of Section 416 are to be proved. This, apart

to bring home a charge under Section 419 of the Indian Penal Code,

the person said to be deceived must be shown to have been cheated by

personation. The offences under Section 170 of the Indian Penal Code

and Section 419 Indian Penal Code overlap each other. Cheating by

Page 25 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

personation (Section 419) is an offence of general character, under

which a person may pretend to be anyone other than what he really is.

But cheating by pretending to be a public servant (170) is a specific

offence, where one pretends to be a public servant and has all the

ingredients of cheating by personation under Section 419. In such

circumstances, having regard to the facts and circumstances of the

present case, once the charge under Section 170 of the Indian Penal

Code is established against the accused, then for the similar charge,

there is no need to convict the accused under Section 419 of the Indian

Penal Code. In such circumstances, the charge under Section 419 so far

as the role attributed to the present applicants are concerned, in view of

their conviction under Section 170, we deem it fit to acquit the accused

appellants under Section 419 of the Indian Penal Code.

30.Now let us examine the charge under Section 395 of the Indian

Penal Code. The Trial Court convicted the accused under Section 395

which provides a punishment for dacoity. Dacoity has already been

defined under Section 391 of the Indian Penal Code, which says that

when five or more persons conjointly commit or persons conjointly

committee or attempting to commit robbery, and the persons present

and aiding such commission or attempt, amount to five or more, every

person so committing, attempting or aiding, is said to commit dacoity.

In the facts of the case, as discussed in the preceding para of the

judgment, the charge under Section 395 qua accused no.5 Lata @

Muskan has not been believed and she has been acquitted of all the

charges. In such circumstances, the offence under Section 395 can be

committed only if the number of persons in the robbery is not less than

Page 26 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

five, and therefore, so far as the appellants are concerned, they cannot

be held guilty for the offence of dacoity because number of accused is

less than five.

31.In such circumstances, the accused appellants have been

acquitted from the charge under Section 395 read with Section 114 of

the Indian Penal Code. However, so far as robbery is concerned, there

is sufficient evidence led by the evidence to prove the charge of

robbery. In the present case, there is no allegation of theft, and

therefore, considering the peculiar facts of the present case, the case of

the accused would fall under Section 390 which says that when the

extortion is robbery. It is proved and established that the accused

pretended to be police official of Local Crime Branch. The armed with

police lathi and taking it from the Indica car, they beaten up the PW:1

and the medical evidence also supports to the effect that the PW:1 was

having received simple injuries over his leg. The accused did not stop

there, but under the fear of hurt, and filing a false FIR, asked the

complainant to give them whatever in his pocket, whereby they robbed

Rs.300/-, a driving licence and the mobile phone. The accused were

not police officials and that facts being proved by real police officials

of Kheda, who had stopped the car while checking drive of the vehicle.

In the Indica car, it is further proved and established that to settle the

matter, they attempted to extort Rs.50,000/- from the PW:1 and under

the fear of hurt and defamation, the PW:1 agreed to pay Rs.50,000/-

which he had to manage from Ahmedabad and that is why, the accused

along with PW:1 were travelling in the Indica car, but fortunately and

unfortunately, they caught by the real LCB police and on this aspect,

Page 27 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

we do not find any contradictions and improvements in the deposition

of PW:1. In such circumstances, at the time of committing the

extortion, PW:1 was put in fear and restraining wrongfully compelled

him to pay Rs.300/- as well as Rs.50,000/-.

32.We have carefully examined Section 390 of the Indian Penal

Code which says that in all robbery, there is either theft or extortion.

Extortion is robbery, if the offender at the time of committing

extortion, put in fear of instant hurt and wrongfully restrained the

victim and therefore, the act of robbing Rs.300/- and an attempt to

commit extortion of Rs.50,000/- would certainly fall under the

definition of robbery and in our opinion, the appellants accused were

found in the possession of Rs.300/-, a driving licence and mobile

phone of PW:1 soon after the incident of robbery and therefore, though

the charge against the accused under Section 395 is not proved, but

charge of robbery was already there and considering the number of

accused, the charge under Section 392 which provides a punishment

of robbery has been proved and established by the prosecution beyond

all reasonable doubt.

33.The defence has raised the issue of identification of parade and

contended that the PW:1 was unknown to the accused and in absence

of T.I. Parade, on the basis of dock identification, the identity of the

accused cannot be believed. It is settled position of law that a TIP

under Section 9 is not substantive evidence in criminal prosecution, but

only corroborative evidence. The purpose of holding TIP, during the

stage of investigation, is firstly to ensure that the investigating agency

Page 28 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

is proceedings in the right direction where the accused is unknown and

secondly, to serve as a corroborative piece of evidence, when the

witness identifies the accused during the trial. In other words, the

evidence of identification merely corroborates and strengthens the oral

testimony in Court which alone is the primary and substantive

evidence as to identify. In the instant case, the incident occurred in

broad day light. The accused appellants and PW:1 remained together

for about 2 to 3 hours, as after the incident, the accused wants a cash

amount of Rs.50,000/- and at the end, PW:1 agreed to pay for which,

they proceeded towards the Ahmedabad from place of occurrence.

Thus, there was sufficient time to recognize the face of the accused by

PW:1 as he was also beaten up by the accused appellants. Therefore,

even in absence of evidence of T.I. Parade, the dock identification of

the accused by PW:1 does inspire confidence proving the complicity

the accused in the crime and the same corroborated by the evidence of

LCB police official, who had caught handed the appellants accused. In

such circumstances, the issue of identification of the accused has no

merits and is without substance.

34.The defence has raised the plea of false implication. We do not

find any substance on this issue, because victim being a sufferer why

he should spare the real assailants and falsely mention the name of

another person, and therefore, the plea of false implication does not

have any merits and cannot be accepted.

35.So far as presence of PW:1 at the place as well as his reliability

of the testimony is concerned, we have assigned sufficient reasons in

Page 29 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

the preceding para of this judgment on this aspect, and therefore, on

this ground also, defence is failed.

36.In view of the reasons and discussions made hereinabove, we

fully satisfied that the charge under Section 170 of the Indian Penal

Code and Section 392 of the Indian Penal Code against the appellants

accused Mahendrasinh Rajput (A2) and Kehul Kantilal Shah (A4) have

been proved and established by acceptable, cogent and sufficient

evidence and they are the author of the crime.

37.It is the one of the alternative arguments is that in any case, the

appellants accused instead of sending jail, by taking lenient view and

considering the first offence of the offender, they may be released on

probation of good conduct, as provided under Section 360 of the Indian

Penal Code or under the Probation of Offender Act, 1958.

38.Against this, on the part of sentence, learned Additional Public

Prosecutor has opposed strongly and contended that the offence proved

is serious one and affecting society at large, and therefore, discretion

may not be exercised.

39.We have heard at length learned counsel for the respective

parties on the sentence part. The charge against the appellants accused

is proved under Section 170 of the Indian Penal Code which punishes

the person with imprisonment of either discretion for a term which may

extend to two years or with fine or with both. So far as charge of

robbery is concerned, the charging Section 392 which punishes a

Page 30 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

person with rigorous imprisonment for a term which may extend to ten

years and shall also be liable to fine and if the robbery be committed

on the highway between sunset and sunrise, the imprisonment may be

extended to 14 years.

40.We may refer to Section 4 of the Probation of Offender Act

which provides the power of Court to release offenders on probation of

good conduct. The section says that when the accused is found guilty

of having committed an offence not punishment with death or

imprisonment for life and the Court by which the accused is found

guilty is the opinion that, having regard to the circumstances of the

case, including the nature of offence, and the character of the offender,

it expedient to release him on probation of good conduct, then

notwithstanding anything contained in any other law for the time being

in force, the Court may instead of sentencing him, at once to any

punishment direct that he be released on his entering into a bond, with

or without surety, to appear and receive sentence when called upon

during such period and before making any order, the Court shall take

into account consideration the report of the probation officer

concerned.

41.The another provision of the probation, we can find from Section

360 Cr.P.C. which enables the Court, under certain circumstances, to

release the accused, who has been convicted, on probation of good

conduct. Both the provisions i.e. under Section 4 of the Probation of

Offender Act, 1958 and Section 360 of Cr.P.C. are intended to enable

the Court to deal leniently with the first offences and to carry out the

Page 31 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

object of reformation and the Court is obliged to look into the both the

provisions while dealing with the conviction. The Supreme Court, time

and again, has clarified that Section 360 shall not apply to trial of cases

in the areas where the Probation of Offender Act, 1958 has been

applicable.

42.In light of the statutory provisions, and considering the nature of

offence, its impact on the society and the circumstances in which

offence was having committed we do not agree to release the accused

on probation on good conduct. The accused posed themselves as police

official of local branch and robbed Rs.300/- and executed the offence

of robbery, as discussed hereinabove and now-a-days, such kind of

offences are increasing because the people at large earns easy money

by adopting such type of short-cuts, and therefore, considering the

seriousness of the offence and to set the example of the society, justice

would be met if the sentence of five years imposed by the Trial Court

for the offence under Section 395 would reduce to the sentence of two

years for the offence under Section 392 of the Indian Penal Code, and

accordingly, the accused appellants have been sentenced to undergo

two years for the offence punishable under Section 392 of the Indian

Penal Code. The sentence imposed for the offence Section 170 which

is of six months, does not require any modification or interference. The

fine amount as imposed remains unaltered. It is clarified that whatever

sentence undergone is given set off and sentences are ordered to be run

concurrently.

43.For the reasons aforementioned, with the aforesaid directions

Page 32 of 33

R/CR.A/1316/2011 JUDGMENT DATED: 17/02/2026

and observations, the appeals filed by appellants accused Mahendra

Rajput (A2) and Kehul Kantial Shah (A4) i.e. Criminal Appeal

No.1071 of 2011 and Criminal Appeal No.1066 of 2011, are partly

allowed. They are on bail. Their bail bonds stand cancelled. They are

directed to surrender within six weeks before the jail authority to serve

the remaining sentence.

44.Criminal Appeal No.1092 of 2011 filed by the A5 Lata @

Muskan is allowed. She is on bail. The bail bonds stand cancelled and

surety is discharged.

45.Criminal Appeal No.1316 of 2011 filed by the State for

enhancement stands dismissed.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

Rakesh/

Page 33 of 33