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2015 DIGILAW 904 (GUJ)

Mepa v. State of Gujarat

2015-09-11

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. 9 of 2009 by the learned District and Sessions Judge, Porbandar dated 5.2.2010 recording the conviction of the accused for the offence under Sections 397, 363, 323, 506(2) of the Indian Penal Code and imposing the sentence as stated in the impugned judgment and order. 2. The brief facts of the case are that the complainant-victim had accompanied her friend on 31.12.2008 for darshan at Rangbai Temple for which they were going from Porbandar and when they were near the temple of goddess Sikotar, they had stopped. It was a barren land. At that time at about 20:30 hours one unknown person (accused) is said to have come with the sword and asked the complainant and her friend to step out of the car and forcibly taken them to the barren area of mines and the friend of the complainant was assaulted with the sword and thereafter the friend of the complainant ran away. The accused looted the cash, mobile and watch from the complainant and left her there. Thereupon she reached to her house with the help of the friend of her husband and the complaint has been lodged next day which has been registered as FIR No. 1 of 2009 at Kamlabaug Police Station, Porbandar for the offence under Sections 397, 363, 323, 506(2) of the Indian Penal Code and Section 135of the Bombay Police Act. 3. After the investigation was over the charge sheet was filed and as the offences are triable by the court of Sessions, the case was committed to the court of Sessions. Thereupon the learned Sessions Judge framed the charge for the offence as stated above and proceeded with the trial. 4. In order to bring home the charges levelled against the accused, the prosecution examined the witnesses including the complainant victim and also produced the documentary evidence which shall be referred to in the judgment. 5. After the recording of the evidence of the prosecution witness was over the learned Sessions Judge recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure. 6. After hearing the learned APP as well as learned Advocate for the accused, the learned Sessions Judge recorded the conviction of the accused as stated above and sentenced him. 6. After hearing the learned APP as well as learned Advocate for the accused, the learned Sessions Judge recorded the conviction of the accused as stated above and sentenced him. It is this judgment and order which has been assailed in the present appeal on the grounds stated in detail in the memo of appeal inter alia that the learned Sessions Judge has committed an error in appreciating the evidence. 7. Heard learned Advocate Ms. Rekha H. Kapadia for the Appellant and learned APP Shri H.L. Jani for the Respondent State. 8. Learned Advocate Ms. Rekha H. Kapadia for the Appellant referred to the testimony of PW-1 - Panch Witness for the panchnama of recovery of the sword. She has also referred to the panchnama at Exh. 10. Similarly learned Advocate Ms. Rekha Kapadia referred to the testimony of PW-2 - Panch Witness at Exh. 11 for the panchnama of the scene of offence Exh. 12. Similarly, she referred to the testimony of the complainant victim PW-5 at Exh. 20 and submitted that her evidence is required to be considered in the manner in which the incident had occurred. She submitted that as stated by her there was darkness and it was a deserted place and therefore she could not have been able to see the accused. She therefore tried to emphasize referring to the newspaper report and submitted that on the basis of newspaper report she could have identified. She has also referred to the testimony of PW-6 (friend of the complainant victim) at Exh. 22. She pointedly referred to the testimony of this witness and also submitted that he has also stated that there was a darkness and the accused had made them get out of the car and thereafter made them walk and he was following the complainant and her friend. Therefore learned Advocate Ms. Rakha Kapadia submitted that there was no occasion to see the exact face of the accused and therefore due to darkness they could not have seen the accused. She has also referred to the cross-examination. She therefore submitted that it had been admitted about the darkness and that the area was deserted jungle area. It was also admitted in the cross-examination that before going to the Mamlatdar office for TI Parade, the accused was shown to him in the police station. Therefore, learned Advocate Ms. She has also referred to the cross-examination. She therefore submitted that it had been admitted about the darkness and that the area was deserted jungle area. It was also admitted in the cross-examination that before going to the Mamlatdar office for TI Parade, the accused was shown to him in the police station. Therefore, learned Advocate Ms. Rekha Kapadia submitted that the TI Parade is only a show and may not be believed and therefore the identification of the accused is not believable. She further referred to the testimony of the I.O. - PW-19 at Exh. 44 and submitted that as stated by him, while keeping the surveillance, he had arrested the accused and therefore he has been falsely implicated. Learned Advocate Ms. Rekha Kapadia strenuously submitted that admittedly there was a newspaper publication, on the basis of which, the accused could have been roped in coupled with the fact that the accused was shown in the police station to the PW-6 (friend of the complainant) and therefore the version of the complainant victim as stated in her testimony and her complaint at Exh. 21 may not be accepted as there are many discrepancies. She further submitted that no independent witnesses have been examined. Learned Advocate Mr. Rekha Kapadia submitted that the witnesses who have been examined are near and dear of the complainant and therefore same may not be believed and the impugned judgment and order recording the conviction may be set aside. 9. Learned APP Shri H.L. Jani however referred to the papers and pointedly referred to the testimony of the complainant victim PW-5 at Exh. 20 and also her complaint at Exh. 21. It was submitted that the complainant was accompanied by her friend. He also referred to the testimony of PW-6 (friend of the complainant victim) with regard to the manner in which the incident occurred when they were forced to get out of the car and made to walk in the deserted area of the mining and jungle and thereafter the complainant was looted and her friend ran away. He therefore submitted that as stated by the complainant, the accused had crossed their vehicle and thereafter when they stopped, they were robbed and assaulted. He therefore submitted that as stated by the complainant, the accused had crossed their vehicle and thereafter when they stopped, they were robbed and assaulted. Learned APP Shri Jani submitted that the factum of the incident and the friend of the complainant is corroborated by the medical evidence in the form of testimony of Rajendra Macwana PW-4 at Exh. 16 where he has confirmed about the history stated by the injured friend of the complainant. It is also confirmed that such an injury could be caused with the weapon like sword. Learned APP Shri Jani referred to the case papers produced at Exh. 18 and the injury certificate produced on record at Exh. 19. Learned APP Shri Jani submitted that the complainant and her friend had no reason to falsely implicate the accused as they had no animosity or ill-will against the accused. Learned APP Shri Jani submitted that as could be seen from the panchnama of the discovery/recovery produced on record, the panch witness PW-3 in his testimony at Exh. 13 has supported the prosecution case. He submitted that the panchnama at Exh. 14 as stated by this panch witness reveals about the recovery of the muddamal articles looted from the complainant. He submitted that though the other witnesses may have turned hostile, the court may consider the aspect of recovery at the instance of the accused or on the basis of the information given by the accused. He submitted that therefore assuming that it may not be a panchnama strictly under Section 27 of the Evidence Act, still it would be admissible as the incriminating material has been recovered on the basis of the information given by the accused during investigation. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2014) 8 SCC 340 in case of Chandra Prakash v. State of Rajasthan. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2014) 8 SCC 340 in case of Chandra Prakash v. State of Rajasthan. In this judgment referring to the earlier judgment of the Hon'ble Apex Court in case of Himachal Pradesh Administration v. Shri Om Prakash reported in (1972) 1 SCC 249 it has been observed: "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section27 of the Evidence Act." Learned APP Shri H.L. Jani therefore submitted that the factum of incident together with the medical evidence with regard to the injury to the friend of the complainant victim by such medical evidence and the recovery of the incriminating articles is sufficient for recording the conviction, and the impugned judgment and order recording the conviction is just and proper. Learned APP Shri Jani submitted that there might be some minor discrepancy but that cannot be a escape route for recording the acquittal. Learned APP Shri Jani also referred to the testimony of PW-6 at Exh. Learned APP Shri Jani submitted that there might be some minor discrepancy but that cannot be a escape route for recording the acquittal. Learned APP Shri Jani also referred to the testimony of PW-6 at Exh. 22 and submitted that though much emphasis has been given with regard to the TI Parade that the accused was shown, in fact the friend of the victim PW-6 in his testimony has clearly stated that he had seen the accused at the time of commission of the offence. He has denied the suggestion that he has not seen the accused involved in the crime. Learned APP Shri Jani therefore submitted that whether he is shown or not subsequently is not relevant. Learned APP Shri Jani submitted that in any case the complainant victim - PW-5 in her testimony at Exh. 20 has clearly stated about the identification of the accused and she has denied the suggestion in the cross-examination that he was previously shown to the complainant victim or there was any indication for the identify. Learned APP Shri Jani therefore submitted that, thus, when the prosecution has established the guilt of the accused, the present appeal may not be entertained. Learned APP Shri Jani also referred to the testimony of PW-11 at Exh. 33 who is a panch witness for TI Parade and submitted that as stated by him the accused was identified in his presence and he took about two hours, meaning thereby the TI Parade was conducted properly. Learned APP Shri Jani therefore submitted that the present Appeal may not be entertained. 10. In view of this rival submissions, it is required to be considered whether the present Appeal deserves consideration. 11. The submission made by learned Advocate Ms. Rekha Kapadia much emphasizing about the TI Parade regarding identification of the accused referring to the testimony of the complainant victim and her friend that as there was a darkness and as they were forced to get out from the car and were asked to walk ahead they could not have seen the accused who was following them, this requires a closer scrutiny. In fact PW-6 (friend of the complainant victim) in his testimony at Exh. 22 has stated as to what has transpired which is corroborating the complainant version also. In fact PW-6 (friend of the complainant victim) in his testimony at Exh. 22 has stated as to what has transpired which is corroborating the complainant version also. Both have stated that they were in the car and were asked to get down from the car on showing the sword and they were taken to a deserted area of jungle and the mining area. At that time he was following them and they were asked to walk ahead and thereafter the friend of the complainant was assaulted who ran away subsequently. Thus, though there may be a darkness, both have identified the accused. The emphasis about the fact that he was shown earlier to the friend of the complainant as stated by him in his testimony in the cross-examination at Exh. 22 require a close look though he has admitted that he was shown before he arrived at the Mamlatdar office. He has also stated that he had seen the accused at the relevant time of commission of the offence also, meaning thereby he had seen the accused which we recollect even otherwise. Therefore, both the complainant and her friend have identified the accused. The panch witness PW-11 in the panchnama of TI Parade has also corroborated the prosecution case on the aspect of TI Parade and the identification by the complainant. Similarly, once the incident is established with identification of the accused, the aspect of injury to PW-6 (friend of the complainant) is also corroborated regarding the injury. The aspect of the injury to PW-6 (friend of the complainant) is corroborated in the form of medical evidence of the Doctor PW-4 in his testimony at Exh. 16 when he has stated that he had recorded the history from the victim who had stated that he was assaulted by the unknown person with the sword. He has confirmed that such an injury could be caused with the sword and the case papers of the injury certificate at Exh. 19 also corroborate on the aspect of injury as stated by the victim. 12. The further aspect about the recovery discovery of the muddamal is also required to be considered. The witness for the recovery discovery panchnama - PW-3 in his testimony at Exh. 13 had clearly stated about such recovery. Similarly, PW-7 at Exh. 19 also corroborate on the aspect of injury as stated by the victim. 12. The further aspect about the recovery discovery of the muddamal is also required to be considered. The witness for the recovery discovery panchnama - PW-3 in his testimony at Exh. 13 had clearly stated about such recovery. Similarly, PW-7 at Exh. 24 though has turned hostile, he has confirmed partly about the fact that the accused was residing in his house which was rented to him. Therefore, when the incriminating material has been recovered on the basis of the information received by the police as disclosed by the accused, it would be a relevant fact proved in view of the provisions of Section 7 of the Evidence Act which referred to the facts which are the occasion, cause or effect of facts in issue, has to be read with Section 9 of the Evidence Act. Section 9 of the Evidence Act refers to the fact that if the identity of the accused is established and the eye witnesses who are the victim have identified, there is no reason or justification to brush aside such evidence. Therefore, as rightly submitted by learned APP Shri H.L. Jani relying upon the judgment of the Hon'ble Apex Court reported in Chandra Prakash v. State of Rajasthan (supra), when the material is also recovered, the conduct would also be relevant. Therefore, the identification of the accused by the complainant victim and her friend corroborated by the medical evidence with regard to the injury and recovery discovery of such incriminating articles lead to the conclusion about the offence. Therefore, the judgment and order recording the conviction of the accused cannot be said to be erroneous. This court is in broad agreement with the findings and conclusions arrived at which does not call for any interference. The Hon'ble Apex Court in a judgment reported in (2015) 7 SCC 681 in case of State of Madhya Pradesh v. Madanlal has reiterated the approach in such matters and the exercise of powers by the court. It has been clearly observed quoting from the earlier judgment reported in (2015) 6 SCC 158 in case of K. Anbazhagan v. State of Karnataka: "39.......... The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. It has been clearly observed quoting from the earlier judgment reported in (2015) 6 SCC 158 in case of K. Anbazhagan v. State of Karnataka: "39.......... The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind - sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test." 13. Therefore, keeping in mind the aforesaid broad principles and scrutiny of evidence as discussed herein above, the present Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. The judgment and order of the Sessions Court as stated above is confirmed. Bail bond shall stand cancelled and the Appellant - Accused shall surrender before the trial court forthwith. Learned Advocate shall intimate to the Appellant - Accused. Appeal Dismissed.