Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 963 (GUJ)

State of Gujarat v. Vijaybhai Mohanbhai Prajapati

2015-10-01

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Present appeals, assail the judgment and order dated 04/01/2014 passed by the learned Additional Sessions Judge, Court No. 10, Ahmedabad City, Ahmedabad in Sessions Case No. 181 of 2012, whereby the learned trial Judge was pleased to acquit the original accused Nos. 2, 3, 5 and 6, whereas, convicted the original accused No. 1 for the offence punishable under Section 397 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and sentenced him to undergo five years' simple imprisonment and a fine of Rs. 3,000/- and in default of payment of fine, to undergo further simple imprisonment for six months. The accused No. 1 was also convicted for the offence punishable under Section 451 of the IPC and sentenced to undergo two years' simple imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to undergo further simple imprisonment for three months. Further, for the offence punishable under Section 342 of the IPC he was sentenced to undergo six months' simple imprisonment and a fine of Rs. 500/- and in default of payment of fine, to undergo further simple imprisonment for one month. All the sentences were to be undergone concurrently. The case against the accused No. 4 was abated since he was died pending trial. Accordingly, Criminal Appeal No. 330 of 2014 has been filed by the State for enhancement of sentence of original accused No. 1, whereas, Criminal Appeal No. 1111 of 2014 has been filed by the original accused No. 1 against conviction and the Criminal Misc. Application No. 14559 of 2014 has been filed by the accused No. 1 for suspension of sentence pending appeal. 2. Brief facts of the prosecution case are that on 05/04/2011 when complainant - Priyankaben Arijit Karpurkayastha was alone at her resident, at about 3:30 p.m., two persons came to her residence in the guise of delivering some gift and asked for Flat No. 22, however, since, the said flat did not belong to the complainant, she informed them accordingly and hence, they went away. However, on the next day i.e. on 06/04/2011 at about 3:00 p.m., again they came to the home of the complainant with the same theory and said that yesterday they did not know the address properly and the gift belonged to the husband of the complainant and accordingly, one person opened the door and rushed into the house and before the complainant could do anything, he pressed the mouth of the complainant and tied her hands and the mouth with medical tape and thereafter, she was threatened by showing knife was made to seat in the bedroom and committed loot worth Rs. 3,34,500/- viz. cash of Rs. 6,000/- and other gold and silver jewellery. The accused persons, then locked the complainant in the bathroom and fled away from there and thus, the accused committed the alleged offence for which, a complaint came to be lodged against the accused for the offence punishable under Sections 395, 397, 451 and 342 of the IPC and Section 135(1) of the Bombay Police Act. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the City Sessions Court, Ahmedabad City. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the original accused, the prosecution has examined as many as 21 witnesses and also produced several documentary evidence. 2.4 At the end of the trial and after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused No. 1, as aforesaid, by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, present appeals have been filed. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the State and Mr. Vaibhav A. Vyas, learned advocate for the accused No. 1, at length. 3.1 Ms. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, present appeals have been filed. 3. We have heard Ms. C.M. Shah, learned Additional Public Prosecutor for the State and Mr. Vaibhav A. Vyas, learned advocate for the accused No. 1, at length. 3.1 Ms. Shah, learned Additional Public Prosecutor for the State submitted that though the offence was proved against the accused No. 1, the learned trial Court has committed an error in imposing lesser punishment than what is prescribed under the law and hence, she requested to allow the present appeal and enhance the sentence. Whereas, Mr. Vyas, learned advocate for the accused No. 1, while opposing the appeal filed by the State for enhancement of sentence, vehemently submitted that there are material contradictions and improvements in the case of the prosecution and the accused No. 1 has wrongly been implicated in the offence and in that view of the matter, the trial Court has committed an error in convicting the accused No. 1, more so when, no Test Identification Parade was conducted, besides, several omissions and lapses and hence, he requested to dismiss the enhancement appeal and allow the appeal filed by the accused No. 1. 4. We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. 4.1 We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it. The crucial witness is PW-1 - Priyankaben Arijit Kapurkayastha, the complainant. She has narrated the whole story of the prosecution that on 05/04/2011 when she was alone at her resident, at about 3:30 p.m., two persons came to her residence in the guise of delivering some gift and asked for Flat No. 22, however, since, the said flat did not belong to the complainant, she informed them accordingly and hence, they went away. However, on the next day i.e. on 06/04/2011 at about 3:30 p.m., again they came to the home of the complainant with the same theory. However, on the next day i.e. on 06/04/2011 at about 3:30 p.m., again they came to the home of the complainant with the same theory. They informed the name of the complainant, her husband and the service place of the husband and said that yesterday they did not know the address properly and the gift belonged to the husband of the complainant and accordingly, one person opened the door and rushed into the house and before the complainant could do anything, he pressed the mouth of the complainant and tied her hands and the mouth with medical tape and thereafter, by showing knife ousting from the socks, they removed the three gold rings and bangles from her hands and gold chain with pendent from her neck and threatened her to kill if she would speak or shout and also asked her to show the hidden things and thereafter, they also looted the valuables from the safe. They also looted three gold rings from the cupboard, diamond Mangalsutra, three gold bracelets, six earrings and four gents gold rings besides, silver jewellery set and immitation jewellery, silver lamp and one Nikia mobile phone, cash of Rs. 6,000/- and Titan watch and the Canon Digital camera. They put all the things into a bag, locked the complainant in the bathroom and again threatened her not to shout and then left away. Thus, she narrated whole incident. Moreover, she also identified the accused No. 1 in the Court. Besides, the prosecution has also examined other witnesses and proved the case against the accused No. 1 successfully. So far as the contention on behalf of the accused that no Test Identification Parade was conducted and the accused was identified in the Court, Hon'ble Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal, reported in (2012) 7 SCC 646 , more particularly, para 80, 81 and 82, has observed as under: "80. It is equally correct that the CrPC does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P. and Sheo Shankar Singh v. State of Jharkhand. 81. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case. 82. In the present case, certainly Shyamal Ghosh, accused was not identified at the time of Test Identification Parade held on 28th November, 2003. However, Sadhu alias Satyajit Das was identified. PW-14 is the learned Judicial Magistrate who had recorded the statement of Manik Das under Section 164, Cr.P.C. as well as held the Identification Parade on 28th November, 2003. Other accused were neither subjected to Identification Parade nor could the question of identifying them arise. The mere fact that Shyamal Ghosh accused was not identified by Manik Das is not of great relevancy in the present case. Other accused were neither subjected to Identification Parade nor could the question of identifying them arise. The mere fact that Shyamal Ghosh accused was not identified by Manik Das is not of great relevancy in the present case. Firstly, for the reason that Manik Das was never examined as a witness in the court and even his statement under Section 164, Cr.P.C. has not been relied upon by any court while convicting the accused. Secondly, not only one, but all the witnesses i.e. PW-7, PW-8, PW-9, PW-11, PW-17 and PW-19, duly identified the accused in Court and they did so without any demur or hesitation. Manik Das was a person who himself was under a threat and was asked to take the gunny bags for their disposal near the Barrackpore Dum Dum Highway. Thus, we are of the considered view that non-identification of Shyamal Ghosh by Manik Das is inconsequential in the present case." 4.2 In aforesaid view of the matter, when the learned advocate for the accused No. 1 is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order. We are, therefore, of the considered opinion that the findings recorded by the trial Court in convicting the accused No. 1 of the charge levelled against him are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court. However, so far as sentence awarded to the accused No. 1 is concerned, the same appears to be lesser and inadequate, more particularly, on going through the section in question, the minimum sentence prescribed for the offence punishable under Section 397 of the IPC is imprisonment for seven years and in our opinion, the learned trial Court has committed an error in recording lesser punishment and accordingly, we are of the opinion that the sentence imposed upon the accused No. 1 for the offence punishable under Section 397 of the IPC is required to be enhanced to the minimum prescribed for the section i.e. imprisonment for seven years and to that extent, the impugned judgment and order is required to be modified. 5. In view of the aforesaid discussion, Criminal Appeal No. 330 of 2014 filed by the State for enhancement of Sentence succeeds and the impugned judgment and order dated 04/01/2014 passed by the learned Additional Sessions Judge, Court No. 10, Ahmedabad City, Ahmedabad in Sessions Case No. 181 of 2012 is modified to the aforesaid extent and it is held that the original accused No. 1 shall have to undergo seven years' imprisonment instead of five years' as has been imposed by the trial Court. Accordingly, Criminal Appeal No. 1111 of 2014 filed by the original accused No. 1 against conviction stands dismissed. In view of dismissal of Criminal Appeal No. 1111 of 2014, Criminal Misc. Application No. 14559 of 2014 filed by the accused for suspension of sentence pending appeal, stands disposed of. Registry to return the R&P, if any, to the trial Court forthwith.