Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 18 (GUJ)

Shekh Babubhai Siddiqbhai v. State of Gujarat

2009-01-17

A.L.DAVE, J.C.UPADHYAYA

body2009
Judgment J.C. Upadhyaya, J.—Both these appeals arise out of the judgment and order rendered by the learned Presiding Officer, Fast Track Court No. 4, Mehsana, on 29.09.2005, in Sessions Case No. 130/2005. By virtue of the impugned judgment and order, the learned trial Judge convicted the original accused No. 1 for the offences punishable under Sections 395, 397, 342 of the Indian Penal Code and Sections 25(1)(B) & 27(1) of the Arms Act read with Section 120-B of the Indian Penal Code. The original accused No. 1 was awarded sentence to undergo R.I for seven years and fine of Rs. 10,000/-, in default of payment of fine, imprisonment for one year, for the offences punishable under Sections 395 & 397, IPC, and R.I for six months and fine of Rs. 500/-, in default, imprisonment for one month, for the offence punishable under Section 342, IPC, and R.I for two years and fine of Rs. 1,000/-, in default, imprisonment for three months, for the offences punishable under Sections 25(1)(B) & 27(1) of the Arms Act. No separate sentence was awarded, so far as the conviction recorded under Section 120-B, IPC is concerned. All the sentences were ordered to run concurrently. 2. Feeling aggrieved by and dissatisfied with the conviction and sentence awarded to the original accused No. 1, he has challenged his conviction by preferring Criminal Appeal No. 2539/2005. 2.1. By virtue of the impugned judgment and order, the learned trial Judge acquitted the original accused Nos. 2 to 6 of the charges levelled against them. 2.2. Feeling aggrieved, the State of Gujarat preferred Criminal Appeal No. 202/2006 under Section 378 of the Code of Criminal Procedure, challenging the acquittal of the original accused Nos. 2 to 6. In the above set of circumstances, the appellant in Criminal Appeal No. 2539/2005 and respondents in Criminal Appeal No. 202/2006, shall hereinafter be referred to by their original status of the accused before the trial Court. 3. The prosecution case, in nutshell, is as under:— 3.1. On 8.4.2005 at about 11.15 A.M., a dacoity took place in the Courier Firm called “Patel Jayantibhai Somabhai Angadia” situated in Sardar Complex at Unjha town. 3. The prosecution case, in nutshell, is as under:— 3.1. On 8.4.2005 at about 11.15 A.M., a dacoity took place in the Courier Firm called “Patel Jayantibhai Somabhai Angadia” situated in Sardar Complex at Unjha town. As per the prosecution case, on the above-mentioned date and time, when first informant Rakeshbhai Kantilal Patel and witnesses Ramanbhai Pitamberdas and Amitkumar Somabhai were present in the Shop, five persons entered the shop, carrying deadly weapons like Tamancha and threatened all the three witnesses by showing the Tamanchas. All the three witnesses were tied by a rope and from the safe of the firm, cash amount of Rs. 6,58,755/- was looted, and from the person of first informant Rakeshbhai, cash amount of Rs. 600/- and from the person of witness Amitkumar, cash amount of Rs. 1500/- were looted. One mobile-phone was also looted. During the course of investigation, it was revealed that all the five miscreants had come to the shop in a white coloured TATA Sumo Car bearing Registration No. GJ-7H-4221, and after committing dacoity, they all went in the same Car. After the accused left the shop, the police was immediately informed on phone and immediately the police came to the shop, and Rakeshbhai Kantilal lodged the first information report. Wireless messages were sent to the surrounding police stations about the dacoity and the fact that the accused had left the shop in a Car bearing No. GJ-7H-4221. 3.2. Upon receipt of the wireless-message, Lalji Maganji Thakor, Police Sub Inspector of Santhal Police Station, arranged patrolling/ bandobast and during the course of his patrolling, TATA Sumo Car No. GJ-7H-4221 was noticed and it was intercepted. From the said Car, two persons named Babubhai Sidiqbhai and Iliyas Karimbhai came to be apprehended, whereas other four persons made their escape good. From the Car, cash amount of Rs. 6,60,855/- was seized by drawing a seizure panchnama. P.S.I. Mr. Lalji Thakor then informed the Unjha police regarding apprehension of Babubhai Sidiqbhai and Iliyas Karimbhai and seizure of the cash amount. Accordingly, both the said accused were arrested by Unjha Police in connection with this offence. During the course of investigation, remaining four accused persons came to be arrested. Test Identification Parade was arranged. The statements of the material witnesses were recorded by the police. Accordingly, both the said accused were arrested by Unjha Police in connection with this offence. During the course of investigation, remaining four accused persons came to be arrested. Test Identification Parade was arranged. The statements of the material witnesses were recorded by the police. After completion of the investigation, police filed charge sheet against all the six accused persons in the Court of learned J.M.F.C. Unjha. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions at Mehsana, where it was registered as Sessions Case No. 130/2005. 4. The learned trial Judge framed charge against all the six accused persons at Exhibit 6, to which they did not plead guilt and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence and after completion of the oral evidence by the prosecution, the learned trial Judge recorded further statements of the accused persons under Section 313 of CrPC, and the accused persons, including the convicted accused, denied generally all the allegations levelled against them by the prosecution, and stated that they were falsely implicated in this case and a false test-identification-parade was arranged. After appreciating the evidence on record and considering the arguments advanced on behalf of both the sides, the learned trial Judge recorded conviction of original accused No. 1 for the offences punishable under Sections 395, 397, 342 & 120-B of IPC, Section 25(1)(B) & 27(1) of the Arms Act, and awarded sentences, as stated hereinabove. However, original accused Nos. 2 to 6 came to be acquitted. 5. With regard to the conviction appeal being Criminal Appeal No. 2539/2005, Learned Advocate Mr. Husseni for the appellant-original accused No. 1, submitted that the learned trial Judge committed serious illegalities and irregularities in convicting accused No. 1. It is submitted that the test-identification-parade of the accused itself is under serious challenge. In the F.I.R, no specific description of any of the accused persons, including accused No. 1, was mentioned. The two accused persons, out of the six, came to be apprehended during the evening hours on the same day of the incident and they were forwarded to Unjha police. The three witnesses, including the first informant, visited Unjha Police Station on 11.04.2005 and therefore, there was all possibility of their having seen both the accused in the lock-up. The two accused persons, out of the six, came to be apprehended during the evening hours on the same day of the incident and they were forwarded to Unjha police. The three witnesses, including the first informant, visited Unjha Police Station on 11.04.2005 and therefore, there was all possibility of their having seen both the accused in the lock-up. That, on 11.04.2005, accused No. 1 was brought by the police to the shop where the incident took place for the purpose of drawing some panchnama and, therefore also, it can be presumed that the witnesses had seen accused No. 1. However, test-identification-parade was arranged on 12.04.2005. There is no evidence whatsoever on the record as to how the witnesses were called to remain present for the purpose of identification in the T.I. Parade. That, there is no evidence to come to the conclusion that due care was taken by the police as well as by the Executive Magistrate that the witnesses may not see the accused persons before T.I. Parade was held. That, during the course of T.I. Parade, the witnesses were not in a position to identify accused No. 2. Only accused No. 1 was alleged to have been identified, but, before the T.I. Parade was held, the witnesses had seen accused No. 1. That, T.I. Parade was arranged only in respect of accused Nos. 1 & 2, and no T.I. Parade was arranged for the remaining accused persons. That, as per the case of the prosecution, some cash amount came to be robbed from the courier firm. No documentary evidence is collected by the police indicating that at the time of the incident, such cash amount was there in the shop, either belonging to customers, or belonging to the firm. That, first informant Rakeshbhai outright stated that he had neither seen the TATA Sumo Car parked outside the firm, nor he himself had checked the registration number of the Car, but, he was told by other persons about the TATA Sumo Car. That, as per the prosecution case, PSI Mr. L.M. Thakor of Santhal Police Station intercepted the Car and apprehended two accused persons. A seizure panchnama was also drawn, but, the prosecution did not examine any of the panchas of the seizure panchnama. That, as per the prosecution case, PSI Mr. L.M. Thakor of Santhal Police Station intercepted the Car and apprehended two accused persons. A seizure panchnama was also drawn, but, the prosecution did not examine any of the panchas of the seizure panchnama. That, three witnesses, including the first informant, took medical treatment in connection with their injuries, but, none of them stated before the Medical Officer that they sustained the injuries during the course of dacoity or that who caused such injuries. In the history before the Doctor, they only stated that some unknown persons caused injuries to them. 5.1. It is, therefore, submitted that the prosecution failed to prove the identity of the appellant-accused No. 1 beyond reasonable doubt. That, the learned trial Judge acquitted five accused persons, whereas convicted the appellant-accused No. 1 on the basis of the same set of evidence. Ultimately, learned counsel Mr. Husseni submitted that Criminal Appeal No. 2539/2005 filed by original accused No. 1 be allowed and the conviction recorded by the trial Court be set aside. 6. Learned A.P.P. Mr. Bhatt for the respondent-State in Criminal Appeal No. 2539/2005 and on behalf of the appellant-State in Criminal Appeal No. 202/2006, submitted that the learned trial Judge rightly convicted accused No. 1 for the offences charged against him. That, accused No. 1 was duly identified by the witnesses and there is no any irregularity in conducting T.I. Parade. That, accused No. 1 came to be apprehended with booty and was handed over by Santhal police to Unjha police. Thus, there is ample evidence to connect the accused with the crime. It is submitted that the prosecution proved its case beyond reasonable doubt against all the six accused persons and, therefore, the learned trial Judge should have convicted accused Nos. 2 to 6 in connection with this incident. The learned A.P.P., ultimately, submitted that, therefore, Criminal Appeal No. 2539/2005 be dismissed and Criminal Appeal No. 302/2006 be allowed. 7. Learned Advocates for the respondents in Criminal Appeal Nos. 202/2006 submitted that the respondents-original accused Nos. 2 to 6 were not identified either by the first informant or by any of the witnesses, not only during the course of T.I. Parade, but, even during the course of recording of their depositions before the trial Court, and therefore, the learned Judge rightly granted the benefit of doubt to original accused Nos. 2 to 6. 2 to 6 were not identified either by the first informant or by any of the witnesses, not only during the course of T.I. Parade, but, even during the course of recording of their depositions before the trial Court, and therefore, the learned Judge rightly granted the benefit of doubt to original accused Nos. 2 to 6. It is therefore submitted that the learned trial Judge rightly observed that the said accused deserved acquittal. The learned counsel, ultimately, submitted that Criminal Appeal No. 202/2006, therefore, be dismissed. 8. We have taken into consideration the record and proceedings of the Sessions Case, in the context of the arguments advanced on behalf of both the sides. 9. First informant Rakeshbhai Patel is examined at Exhibit 19 and according to his version, on 8.4.2005, between 11.00 A.M and 11.15 A.M, he himself and witnesses Ramanbhai and Amitkumar were present in his courier firm called “Patel Jayantibhai Somabhai Angadia” situated in Sardar Complex at Unjha and at that time, five unknown persons entered the shop and out of them, one had aimed his tamancha at Rakeshbhai and they were threatened and tied with rope by those persons. He stated that Rs. 6,58,000/-, which were there in their Safe, were looted, and Rs. 600/-, which were in his wallet, and Rs. 1500/-, which were in the wallet of witness Amitkumar, were also looted. Thus, in all, cash amount of Rs. 6,60,855/- came to be looted and one mobile-phone was also taken away by those unknown persons. He stated that he came to know that all those six persons, after committing dacoity, left in white coloured TATA Sumo Car No. GJ-7H-4221. He immediately contacted the police on phone and police immediately came to his shop. He lodged the FIR, which is produced at Exhibit 20. 9.1. The deposition of witness Ramanbhai Pitamberdas (Exhibit 21) and that of witness Amitkumar Patel (Exhibit 22) are almost on the same line and they described the incident in their depositions almost in the same manner as described by first informant Rakeshbhai. 9.2. He lodged the FIR, which is produced at Exhibit 20. 9.1. The deposition of witness Ramanbhai Pitamberdas (Exhibit 21) and that of witness Amitkumar Patel (Exhibit 22) are almost on the same line and they described the incident in their depositions almost in the same manner as described by first informant Rakeshbhai. 9.2. Considering the depositions of the above-referred to three eye witnesses, together with the FIR Exhibit 20, it is true that general description is given by the first informant in the FIR about the clothes worn by those six persons and that out of them, one had no mustache and one was young and smart and they belonged to the age group of 25 to 30. However, it has come in evidence that after lodgment of the FIR, immediately, Unjha police sent wireless message to other police stations giving details regarding description and registration number of TATA Sumo Car and about the dacoity. On receipt of the wireless message, Mr. Lalji Thakor, PSI of Santhal Police Station arranged patrolling/bandobast and during the course of his patrolling, he intercepted TATA Sumo Car bearing Registration No. GJ-7H-4221. The evidence of PSI Mr. Lalji Thakor is recorded at Exhibit 33. According to him, after the Car was intercepted, four persons fled away from the Car, but, two persons came to be apprehended, who were Babubhai Sidiqbhai (convicted accused No. 1) and Iliyas Karimbhai (orig. accused No. 2). He further deposed that during the course of search of the Car, one bag containing cash amount of Rs. 6,60,855/- was found and by drawing a panchnama, the same were seized. Both the accused persons came to be apprehended and immediately he sent message to Unjha police regarding the apprehension of the accused and seizure of the cash amount, and forwarded both the accused persons along with the muddamal cash to Unjha police. To corroborate the evidence of PSI Lalji Thakor, the prosecution examined witness Ramabhai Nayak at Exhibit 30, who was the driver of the patrolling Jeep of PSI Mr. Lalji. Witness Ramabhai stated in his evidence that during the course of patrolling, a vehicle bearing No. GJ-7H-4221 was intercepted and from the said vehicle, four persons fled away and two were apprehended and cash was found from the Car. Thus, the version of PSI Lalji is supported by the evidence of witness Ramabhai Nayak. Lalji. Witness Ramabhai stated in his evidence that during the course of patrolling, a vehicle bearing No. GJ-7H-4221 was intercepted and from the said vehicle, four persons fled away and two were apprehended and cash was found from the Car. Thus, the version of PSI Lalji is supported by the evidence of witness Ramabhai Nayak. Both these witnesses were cross-examined on behalf of the accused, but, nothing emerged from their cross-examination, which would render their evidence doubtful. It was argued that though a seizure panchnama (Exhibit 37) was drawn in presence of panchas by PSI Mr. Lalj Thakor, the prosecution did not examine any of the panchas of the seizure panchnama, and therefore, the evidence of PSI Lalji Thakor ought not to have been accepted. It is true that panchas of the seizure panchnama were not examined by the prosecution. However, considering the oral evidence of PSI Lalji Thakor, supported by witness Ramabhai Nayak, there is no reason to doubt the case of the prosecution that during the course of patrolling, PSI Lalji intercepted the Car and apprehended two accused persons, including the original accused No. 1. Moreover, PSI Lalji during the course of recording of his evidence, produced necessary correspondence and police yadi (at Exhibits. 34, 35 & 36) regarding interception of the vehicle and apprehension of the two accused persons, which were addressed to P.I. Unjha Police Station. In this connection, investigating officer Mr. Patel (Exhibit 58) has stated in his deposition that soon after registration of the FIR, wireless message was sent to the surrounding police stations regarding the incident and the registration number of the Car involved in the incident was also indicated. He has deposed that two accused persons along with the muddamal cash were forwarded to his police station by Santhal police. Even in his cross-examination made on behalf of the accused, the fact regarding receipt of the papers from Santhal police station has not been seriously disputed. P.I. Mr. Patel, in his cross-examination, admitted that he had perused the papers, which were sent to his police station by Santhal police station. Even accused No. 1, during the course of recording of his further statement under Section 313 CrPC, does not explain the custody of the muddamal cash and the weapons found from the Car in question, but, he is only replying to the effect that it is not true. 9.3. Even accused No. 1, during the course of recording of his further statement under Section 313 CrPC, does not explain the custody of the muddamal cash and the weapons found from the Car in question, but, he is only replying to the effect that it is not true. 9.3. Under such circumstances, merely because two panchas of seizure panchnama (Exhibit 37) were not examined by the prosecution, that would not adversely affect the overall evidence adduced by PSI of Santhal Police Station, supported by his driver Ramabhai Nayak. 10. On behalf of the appellant-accused No. 1, the question regarding identification of accused No. 1 was seriously challenged. Considering the evidence on record, it is clear that the incident occurred between 11.00 A.M and 11.15 A.M on 08.04.2005 and on the same day, in the afternoon, both the accused persons along with muddamal cash were forwarded to Unjha police. As admitted by first informant Mr. Rakeshbhai, on 11.04.2005, he himself and two witnesses Ramanbhai and Amitkumar visited Unjha Police Station. However, considering the evidence of first informant Rakeshbhai, nothing emerges that in the police station he had seen the accused in the lock-up. On the contrary, in his evidence, he has stated that he came to know about the arrest of the accused persons only on 12.04.2005. Perusing the record of the case, it appears that on 11.04.2005, in presence of the appellant-accused, panchnama of the place of incident, i.e. the shop, came to be drawn. However, there is nothing on record that at that time the witnesses were present in the shop and that they had seen the accused No. 1 along with panchas and police officer. T.I. Parade was conducted on 12.04.2005. Executive Magistrate Mr. Oza is examined by the prosecution at Exhibit 27. According to him, on 11.04.2005, he received a police yadi requesting to conduct T.I. Parade and accordingly, the same was arranged in his Office on 12.4.2005. According to his evidence, prior to the T.I. Parade, due care was taken to see that the first informant may not see the accused persons in his Office. Dummies were called. He has deposed that during the course of T.I. Parade, first informant Rakeshbhai identified accused No. 1 Babubhai Sidiqbhai, however, accused No. 2- Iliyas Karimbhai could not be identified. T.I. Parade panchnama was drawn, which is produced at Exhibit 28. Dummies were called. He has deposed that during the course of T.I. Parade, first informant Rakeshbhai identified accused No. 1 Babubhai Sidiqbhai, however, accused No. 2- Iliyas Karimbhai could not be identified. T.I. Parade panchnama was drawn, which is produced at Exhibit 28. On behalf of the appellant-accused No. 1, it was vehemently submitted that prior to T.I. Parade, accused Nos. 1 & 2 came to be showed to first informant Rakeshbhai. We are of the opinion that if that was true, then first informant Rakeshbhai would have identified both the accused persons, i.e., original accused Nos. 1 & 2, and not only original accused No. 1. Even considering the evidence of first informant Rakeshbhai (Exhibit 19), nothing emerges out of his evidence to come to the conclusion that the appellant-original accused No. 1 was shown to him by the police before the T.I. Parade was conducted. 11. As per the evidence of Executive Magistrate Mr. Oza, T.I. Parade was conducted on 12.4.2005. T.I. Parade panchnama is produced at Exhibit 28. It is submitted that the panchas have not been examined by the prosecution. We are of the opinion that when the panchas of the panchnama Exhibit 28 could not have been examined by the prosecution, the evidence adduced by Executive Magistrate Mr. Oza (Exhibit 27) shall have to be minutely scrutinized. According to his version, T.I. Parade was conducted in his Chamber on 12.4.2005 at 16.00 hours. Eight dummies were called and the two accused persons were kept in a separate room. The two accused persons thereafter were called in his Chamber and they were suggested that they can take their place in row of eight dummy persons anywhere they like. Thereafter, first informant Rakeshbhai was called and according to his version, he identified only the appellant-accused No. 1- Babubhai and could not identify original accused No. 2-Iliyas Karimbhai. Executive Magistrate Mr. Oza was cross-examined at length by the defence. However, nothing emerges from his cross-examination that in his Office, before the T.I. Parade was conducted, the first informant had seen both the accused persons. Thus, the contents of the panchnama (Exhibit 28) are duly established through the deposition on oath of Executive Magistrate Mr. Oza, who is an independent witness. There is no reason to discard his evidence. However, nothing emerges from his cross-examination that in his Office, before the T.I. Parade was conducted, the first informant had seen both the accused persons. Thus, the contents of the panchnama (Exhibit 28) are duly established through the deposition on oath of Executive Magistrate Mr. Oza, who is an independent witness. There is no reason to discard his evidence. Considering the evidence of first informant Rakeshbhai (Exhibit 19) and eye witnesses Ramanbhai (Exhibit 21) and Amitkumar (Exhibit 22), all the three witnesses identified the appellant-original accused No. 1 during the course of their deposition before the trial Court. 12. In the result, considering the evidence regarding identification of the appellant-accused No. 1 and the evidence adduced by the prosecution through P.S.I. Mr. Thakore of Santhal Police Station (Exhibit 33) and his driver Ramabhai Nayak (Exhibit 30), we are of the considered opinion that the prosecution successfully proved its case against the appellant-original accused No. 1, beyond any reasonable doubt, and his involvement in the offence is duly established. 13. By virtue of the impugned judgment and order, the learned trial Judge recorded acquittal of original accused Nos. 2 to 6 - respondents in Criminal Appeal No. 202/2006 preferred by the State of Gujarat, challenging their acquittal under Section 378 of CrPC. In context with this appeal, reappreciating the entire evidence on record, it becomes clear that none, out of the three eye witnesses, identified them during the course of their depositions before the trial Court. No T.I. Parade was conducted, so far as original accused Nos. 3 to 6 are concerned. Along with accused No. 1-Babubhai Sidiqbhai, T.I. Parade of original accused No. 2-Iliyas Karimbhai was also conducted. However, even during the course of T.I. Parade, first informant Rakeshbhai was not in a position to identify original accused No. 2-Iliyas Karimbhai. In the impugned judgment, therefore, the trial Judge came to the conclusion that involvement of original accused Nos. 2 to 6 has not been duly established by the prosecution. We do not find any illegality or irregularity committed by the learned trial Judge while recording the acquittal of original accused Nos. 2 to 6. 14. From the very beginning, the case of the prosecution was that, in all, five miscreants entered the Courier shop and robbed the cash amount, putting first informant Rakeshbhai and witnesses Ramanbhai and Amitkumar under threat of killing by aiming tamancha at them. 2 to 6. 14. From the very beginning, the case of the prosecution was that, in all, five miscreants entered the Courier shop and robbed the cash amount, putting first informant Rakeshbhai and witnesses Ramanbhai and Amitkumar under threat of killing by aiming tamancha at them. One of the miscreants, i.e., original accused No. 1-Babubhai Sidiqbhai, not only came to be identified by first informant Rakeshbhai during the course of T.I. Parade, but, even in the Court, the two eye witnesses also identified him during the course of their depositions. Under such circumstances, involvement of five accused persons including the convicted original accused No. 1 has been duly established by the prosecution, but, the prosecution failed to prove that those remaining miscreants were original accused Nos. 2 to 6, who came to be acquitted by the learned trial Judge. It is further pertinent to note that considering the overall evidence of the prosecution, nothing emerges that when the Car was intercepted by P.S.I. Mr. Thakore of Santhal Police Station, at that time those miscreants, who made their escape good from the Car, were the same accused persons who came to be acquitted by the learned trial Judge. When such is the situation, we are of the considered opinion that the learned trial Judge did not err in convicting original accused No. 1-Babubhai Sidiqbhai for the offences punishable under Sections 395, 397, 342 of IPC and Sections 25(1)(B) & 27(1) of the Arms Act read with Section 120-B of IPC. We do not find any justifiable reason to interfere with the quantum of punishment fixed by the trial Court while awarding sentences. Considering the facts and circumstances of the case, the learned trial Judge rightly exercised his discretionary powers in fixing the quantum of sentences. 15. For the foregoing reasons, both the appeals fail and stand dismissed.