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Gujarat High Court · body

2015 DIGILAW 1228 (GUJ)

Kishanbhai v. State of Gujarat

2015-12-02

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. 1. The present appeal is directed against the judgment and order rendered in Sessions Case No. 83/2007 by the Addl. Sessions Judge & Presiding Officer, Fast Track Court, Valsad dated 14.7.2008 recording conviction of the appellant-accused for the offence under sec. 412 of IPC and imposing sentence as stated in detail in the impugned judgment and order. 2. The facts of the case, briefly stated, are as follows: 2.1 It is the case of the prosecution that on 25.1.2007 when the complainant was sleeping outside of his house in the court-yard and his wife was sleeping in the house, two persons had come with the face covered and armed with knife and iron rod and threatened them to give keys of the cupboard and thereafter had looted the ornaments, cash and other articles as stated in detail in the complaint. Therefore, FIR being C.R. No. I-08/2007 came to be registered before the Kaprada Police Station for the offence under sec. 395 of IPC well as sec. 135 of the Bombay Police Act. 2.2 After the investigation was over, the charge-sheet was filed and as the offences were triable by the Court of Sessions, the case was committed to the Court of Sessions The learned Addl. Sessions Judge, Valsad framed the charge for the offences as stated above and proceeded with the trial. 2.3 In order to bring home the charges levelled against the accused persons, the prosecution examined the witnesses including the complainant victim and also produced documentary evidences which shall be referred to in the judgment. 2.4 After recording of the evidence of the prosecution witnesses was over, the learned Addl. Sessions Judge recorded Further Statement of the accused persons under sec. 313 of the Cr.P.C. 2.5 After hearing the learned APP as well as the learned advocate for the defence, the learned Addl. Sessions Judge acquitted the accused for the offence under sec. 395 of IPC. However, he was convicted for the offence under sec. 412 of IPC and sentenced him as stated hereinabove. 2.6 It is this judgment and order which has been assailed in the present appeal by the appellant, accused No. 2, on the grounds stated in the memo of appeal, inter alia, that the court below has committed an error while recording the conviction. 3. 412 of IPC and sentenced him as stated hereinabove. 2.6 It is this judgment and order which has been assailed in the present appeal by the appellant, accused No. 2, on the grounds stated in the memo of appeal, inter alia, that the court below has committed an error while recording the conviction. 3. Heard learned advocate M.O. Barod for the appellant and learned APP Shri HL Jani for the respondent-State. 4. Learned advocate Shri Barod referred to the charge and submitted that the charge is for the offence under sec. 395 of IPC whereas their conviction is for the offence under sec. 412 and he has been acquitted of the charges for which the charge was framed under sec. 395 of IPC. He also referred to the testimony of the panch witness, PW-1 at Exh. 8 who is the panch witness for recovery/discovery of the muddamal. He also referred to the testimony of another panch witness, PW-2 at Exh. 12. Learned advocate Shri Barod also referred to the testimony of the complainant, PW-5 at Exh. 17 and the testimony of the wife of the complainant at Exh. 19. 5. Learned advocate Shri Barod referred to the testimony of PW-1 at Exh. 8 and submitted that the panchnamas at Exh. 10 and 11 cannot be said to have been proved. He referred to the testimony of PW-1 at Exh. 8 and submitted that in his testimony he has clearly admitted in the cross-examination that on 18.8.2007 he was called at Kaprada Police Station where one person Kisanbhai was present and he had shown certain articles. He has also stated that thereafter one Haribhai had gone and he has not gone. He referred to the cross-examination and submitted that he has stated that whenever police calls him he remains present and he has been a panch earlier many times. Learned advocate Shri Barod pointedly referred to the cross-examination and emphasised that he has admitted in the cross-examination that the muddamal articles were brought by the police and he does not know from where they have brought it. He has further admitted that he went to the police station for signing the panchnama and thereafter he has not gone out. Learned advocate Shri Barod referred to the panchnama, Exh. He has further admitted that he went to the police station for signing the panchnama and thereafter he has not gone out. Learned advocate Shri Barod referred to the panchnama, Exh. 11, and submitted that he is one of the panchas who is said to have accompanied the accused who took the police to the shop of the jeweller at Thane in Maharashtra from where the muddamal article ornaments are said to have been recovered. He has therefore submitted that the conviction which has been recorded may not be sustained. 6. Learned APP Shri Jani however referred to the panchnama at Exh. 10 and the panchnama at Exh. 11. He submitted that the recovery is proved by the examination of the panch witness who has corroborated both the panchnamas. He referred to the testimony of the panch witness, PW-1 at Exh. 8 and and he further submitted that this muddamal articles which have been recovered by the police from the jeweller (goldsmith) are identified by the wife of the complainant in her testimony at Exh. 19. He submitted that this shows that as stated in the panchnama the articles were mortgaged and the amount of Rs. 55,000/- was paid by the goldsmith. He submitted that therefore the ornaments have been recovered from the shop of the goldsmith at Thane at the instance of the accused which has been brought to the police station and thereafter it has been identified by the wife of the complainant in her testimony at Exh. 19. He therefore submitted that the recovery of such articles from the goldsmith in the shop in presence of the panch witness who has fully corroborated the panchnama would establish the fact of recovery in presence of the accused and the goldsmith has identified the accused when he had taken the police to the shop of the goldsmith. He therefore submitted that when the recovery is established and the same muddamal is recovered at the instance of the accused, the conviction for the offence under sec.412 recorded is just and proper. 7. In support of his submission, learned APP Shri Jani has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2001) 10 SCC 340 in the case of Limbaji and Ors. v. State of Maharashtra and emphasised the observations made in Head Note B as well as para 16. 7. In support of his submission, learned APP Shri Jani has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2001) 10 SCC 340 in the case of Limbaji and Ors. v. State of Maharashtra and emphasised the observations made in Head Note B as well as para 16. He submitted that in that case also theft of ornaments sold to a jeweller came to be recovered at the instance of the accused. Therefore, the stolen ornaments recovered by the police was held to be recovered on the basis of the panchnama. He has also emphasised that in the facts of the case also the recovery would establish the incriminating article/ornaments at the instance of the accused and therefore the presumption under sec. 114 would apply. He emphasised that the stolen articles recovered from the goldsmith suggests about knowledge of concealment of such articles at the instance of the accused which has also been recovered at the instance of the accused and therefore the charges held to be proved is just and proper. 8. He also referred to the judgment of the Hon'ble Apex Court in the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra, reported in (2007) 2 SCC 310 , and again submitted that on the basis of the information given by the accused about the object which is recovered the charges have been held to be proved. 9. In rejoinder, learned advocate Shri Barod submitted that as it is stated by the wife of the complainant in her testimony at Exh. 19, she could not identify the persons who had committed the loot and therefore the offence under sec. 395 has not been held to be proved. He further submitted that therefore merely because ornaments are recovered from the goldsmith cannot be said to be at the instance of the accused on the basis of the panchnama, Exh. 11, when the panch witness has not gone or accompanied. He emphasised that the jeweller is not also examined which could have been a direct evidence. He submitted that the panchnama could be said to be a corroborative evidence which is also not supported by the testimony of the panch witness. He therefore submitted that the present appeal may be allowed. 10. In view of these rival submissions, it is required to he considered whether the present appeal deserves consideration. 11. He submitted that the panchnama could be said to be a corroborative evidence which is also not supported by the testimony of the panch witness. He therefore submitted that the present appeal may be allowed. 10. In view of these rival submissions, it is required to he considered whether the present appeal deserves consideration. 11. Admittedly, the charge was framed for the offence under sec. 395 which is not held to be proved as discussed in the impugned judgment and order recording the reasons. The testimony of the wife of the complainant, Exh. 19, suggests that she could not identify the persons. Therefore, the moot question is whether the conviction of the accused for the offence under sec. 412 of IPC can be sustained on the basis of the evidence as it emerges. 12. Emphasis has been laid by learned counsel Shri Barod for the appellant that the panchnama cannot be said to have been proved in light of the testimony of the panch witness, PW-1 at Exh. 8. On the other hand, learned APP has emphasised referring to the panchnamas at Exh. 10 and 11 that the same muddamal recovered at the instance of the accused are identified by the wife of the complainant. However, a close look at the panchnama at Exh. 11 and the testimony of PW-1 at Exh. 8 would clearly reveal that the panch witness has not visited the place though the panchnama at Exh. 11 records that the said articles were recovered at the instance of the accused from the shop of the goldsmith at Thane where the police had proceeded with the accused and the panch. However, PW-1 panch witness in his testimony at Exh. 8 has clearly stated that he had not gone. He has, on the contrary, stated that he does not know from where the police has got the muddamal articles. Therefore, though it has been accepted, the panchnama cannot be said to have been proved. 13. The submissions which have been made by learned APP Shri Jani relying on the judgment of the Hon'ble Apex Court in the case of Limbaji and Ors. (supra) would not be of any help in the present case inasmuch as there it was a confessional statement on the basis of which the recovery of ornaments was made by making the panchnama which was treated as a panchnama of recovery/discovery under sec. (supra) would not be of any help in the present case inasmuch as there it was a confessional statement on the basis of which the recovery of ornaments was made by making the panchnama which was treated as a panchnama of recovery/discovery under sec. 27 of the Evidence Act. In the facts of the case, it cannot be said that any such panchnama was proved. Further, if the articles which have been recovered from the goldsmith even if are assumed it only suggests about possession of the articles with the goldsmith, but cannot indicate about any link between the articles and the accused as to how it came and how it was with the goldsmith when the panchnama, Exh. 11, is not proved. Therefore, as the panchnama at Exh. 11 is not proved, the panchnama at Exh. 10 with regard to identification by the wife of the complainant will not have much relevance. 14. Further, the observations made in the judgment of the Hon'ble Apex Court in the case of Amitsingh Bhikamsingh Thakur (supra) relied upon by learned APP Shri Jani again has a reference to the discovery of fact in consequence of information received from accused and in that judgment the Hon'ble Apex Court has made the observations in para 13 and 14 that such panchnamas could be only a corroborative piece of evidence. The Hon'ble Apex Court in this judgment has referred to the aspect of various ingredients and the scope of sec. 27 as to when the facts can be said to have been proved for the purpose of discovery. In this very judgment it has been observed, "as observed in Pulukuri Kotayya case [ AIR 1947 PC 67 ] it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P.[ AIR 1962 SC 1788 ]" It is in background of these facts and discussion made hereinabove, the impugned judgment and order recording conviction of the accused for the offence under sec. 412 cannot be sustained. 15. The present appeal, therefore, deserves to be allowed and accordingly stands allowed. The impugned judgment and order passed by the learned Addl. 412 cannot be sustained. 15. The present appeal, therefore, deserves to be allowed and accordingly stands allowed. The impugned judgment and order passed by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court, Valsad in Sessions Case No. 83 of 2007 dated 14.7.2008 recording conviction of the appellant-accused for the offence under sec. 412 of IPC is hereby quashed and set aside. The bail bond shall stand cancelled."