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Gujarat High Court · body

2016 DIGILAW 388 (GUJ)

State of Gujarat v. Jivraj

2016-02-17

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocates appearing for the respective parties. 2. All the above Appeals are directed against the judgment and order dated 03.11.2004 of the learned Additional Sessions Judge, 7th Fast Track Court, Surat in Sessions Case No. 20/2004 whereby the original accused No. 3 - Janak Revashankar Joshi was convicted for the offence punishable under Section 392 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of four years and fine of Rs. 2,000/-, in default, rigorous imprisonment for a further period of three months. The original accused No. 1 - Jivraj Trikambhai Makwana and the original accused No. 2 - Ashokbhai Kantibhai Upadhyaya were acquitted of the offences punishable under Sections 394, 395, 397, 120(B)and 34 of the Indian Penal Code. 3. Criminal Appeal No. 927/2005 is an Appeal preferred by the appellant - State against the acquittal of the above accused whereas Criminal Appeal No. 929/2005 is an Appeal preferred by the appellant - State seeking enhancement in the sentence qua the original accused No. 3. Criminal Appeal No. 225/2005 is preferred by the original accused No. 3 challenging the judgment and order of his conviction and sentence as stated above. 4. The case in brief and the incident which occurred on 24.09.1998 are as under:-- "4.1. It is the case of the complainant that he is employed as a service man with an Angadia Company (Pedhi). On the said day in the morning hours at 8.15, the complainant received about 20 packets which were addressed to different persons from the Manager of the Angadia Company and the contents of the packets were diamonds and cash. The complainant had delivered about 4 packets that morning and the next packet was addressed to one 'Pravin'. Therefore, the complainant then went to Plot No. A/24, Room No. 2, 3rd Floor, Gita Nivas which was situated on Varachha Road, Kohinoor Road, Kohinoor Society. The packet contained diamonds worth Rs. 2,000/-. The complainant called out the name of an individual - Pravin K. Patel, to which one individual dressed in loincloth came, claimed to be the said person, signed the register and took the parcel from the complainant. At that juncture, there were other two individuals present in the room. Thereafter, it is alleged that the other two individuals came and gagged the mouth of the complainant. At that juncture, there were other two individuals present in the room. Thereafter, it is alleged that the other two individuals came and gagged the mouth of the complainant. Another 4th individual came from outside and stuck a white tape on the mouth of the complainant and also tied the hands of the complainant with a wire. The complainant's eyes were blind folded. A stick was inserted between the legs and the hands of the complainant and with the help of a rope, the neck of the complainant was tied to the said stick. Thereafter, it is alleged that the complainant was lifted, put in the bathroom of the said room and the door of the bathroom was locked. Thereafter, a cash amount of Rs. 30,000/- and diamonds worth Rs. 2,22,000/- (all belonging to the company) kept in different packets, were forcefully taken away. In a period of another 5 minutes, an employee of another Angadia Company also arrived and he was given the same treatment as meted out to the complainant. With the help of each other, the complainant and the other employee of the Angadia company managed to take away the tape put on their mouths and shouted for help. The entire incident was narrated to the owner of the company, who arrived with the police authorities. 4.2. The complainant also narrated the physical description of the accused to the police and the complaint was registered as First Information Report being I-C.R. No. 320/1998. On basis of a transfer warrant dated 10.10.2003, the accused were arrested, the panchnamas done and the muddamal diamonds were recovered from the accused. PSI S.I. Sadhu submitted the chargesheet in the 1st Court of the learned Judicial Magistrate, First Class on 08.01.2004 for conducting the Identification Parade. Since it was a sessions triable case, the learned Judicial Magistrate First Class committed the case to the Sessions Court which was numbered as Sessions Case No. 20/2004. The accused pleaded not guilty and claimed to be tried. 4.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Since it was a sessions triable case, the learned Judicial Magistrate First Class committed the case to the Sessions Court which was numbered as Sessions Case No. 20/2004. The accused pleaded not guilty and claimed to be tried. 4.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Complainant Prakash Dwarkadas Patel 16 Mansukh Nagjibhai (the landlord at the place of offence) 18 Dinesh Kalidas Patel (the employee of the Angadia company) 20 Jitubhai Bahikhabhai Panwala 21 Bhikhabhai Karamshibhai Patel 22 Ketan Chandulal Joshi (the panch who was present during the arrest of the accused jivraj) 23 Kantilal Naranbhai Patel (the panch at the time of the Identification Parade) 30 Amrutbhai Ishwarbhai Patel (the panch at the scene of offence) 32 Kantilal Maganbhai Patel (the owner of Jayantilal Ambalal) 40 Ramesh Arjundas Israni (the learned Executive Magistrate at the time of Identification Parade) 41 Rajghar Dolatrav Marathe (Investigating Officer) 44 Sanju Kamalkant Ambegaonkar (Investigating Officer) 49 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Complaint 17 Panchnama of the arrest of the accused – Jivraj Jeeva 24 Panchnama of the arrest of the accused – Kantilal Upadhyay 25 Panchnama regarding the production of diamonds by Bhikhabhai Karamshibhai 26 Panchnama regarding the production of diamonds by Jitubhai Bhikhabhai 27 Panchnama regarding the production of diamonds by Ketan Chandulal 28 Panchnama regarding the arrest of Janak Revashankar 29 Panchnama of the scene of offence 33 Yadi written to the learned Executive Magistrate for conducting the Identification Parade 42 Panchnama for the Identification Parade 43 4.4. At the end of the trial, further statements of the accused under Section313 of the Code of Criminal Procedure were recorded in which they pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statements of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 5. Learned Additional Public Prosecutor Ms. Thus, after recording the further statements of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 5. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge has erred in holding that the prosecution has failed to prove offence under Section 397 of the Indian Penal Code and whereby it was held that the accused had not used deadly weapons or caused any grievous injuries, either to the complainant or the victims at the time of the incident. It is further submitted that the learned Judge has failed to appreciate that there was sufficient evidence with regard to the conspiracy for committing the offence of robbery and the complainant was looted of cash as well as valuables. It is also submitted that the learned Judge has failed to appreciate the evidence of complainant - Prakash Dwarkadas Patel at Exhibit 16 who has supported the First Information Report at Exhibit 17 and the evidence of PW2 - Mansukh Nagjibhai at Exhibit 18 the witness, who has identified the original accused No. 3. Moreover, learned Additional Public Prosecutor Ms. C.M. Shah submitted that though there were sufficient evidence on record as regards involvement of original accused No. 1 and 2, the learned Trial Judge has committed a grave error in acquitting them of the charges levelled against them. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned and the sentence of the original accused No. 3 be enhanced sufficiently and the original accused No. 1 and 2 be convicted and sentenced for the offence in question. 6. Learned Advocates appearing for the accused while supporting the judgment and order of acquittal qua original accused No. 1 and 2, have taken this Court through the judgment and order of the learned Sessions Judge and have submitted that there is no iota of evidence which surfaces to connect the accused No. 3 with the crime. Moreover, it is submitted that no cash or diamonds were recovered from either of the accused herein. Moreover, it is submitted that no cash or diamonds were recovered from either of the accused herein. It is further submitted that the learned Trial Judge has rightly concluded so far as the accused No. 1 and 2 are concerned, however, has failed to appreciate the evidence on record so far as the accused No. 3 is concerned and has committed an error of law and evidence on record in convicting him and requested to dismiss the Appeal of the State and allow the appeal filed by the accused No. 3. 7. We have heard learned Advocates for the respective parties and perused the records of the case. A period of almost 18 years has elapsed from the date of the incident. We have considered the deposition of the complainant - Prakash Dwarkadas Patel at Exhibit 16, that of Dinesh Kalidas Patel at Exhibit 20, who is the employee of the Angadia company, the owner of the Angadia company, the evidence led by the Executive Magistrate as well as the aspect of Identification Parade which was held subsequently. Considering the above, we are of the opinion that the prosecution has successfully proved the case against the original accused No. 3. It is also to be pointed out herein that initially an "A" Summary was filed and subsequently, due to non-availability of the accused, the proceedings were delayed. Further, the learned Additional Sessions Judge, while considering all the oral and the documentary evidence, has, from Paragraph 30 of the judgment and order, given cogent and convincing reasons to convict the only accused, i.e. original accused No. 3 against whom the prosecution has been able to successfully prove its case beyond reasonable doubt and has rightly been sentenced and no interference is required by enhancing the sentence more particularly after such a lapse of time. Qua the other accused who have been acquitted, we are of the view that the benefit of doubt granted by the learned Sessions Judge should not be disturbed in view of the following judgments as referred hereinunder:-- "In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:-- "54. In para 54 of the decision, the Apex Court has observed as under:-- "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court. Even in the case of State of Goa V. Sanjay Thakran & Anr., reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP., reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:-- "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 321 , the Apex Court in para 4 has held as under:-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 321 , the Apex Court in para 4 has held as under:-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:-- "This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary, (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66. 8. In the result, all the Appeals being devoid of merits, are dismissed accordingly. The judgment and order dated 03.11.2004 of the learned Additional Sessions Judge, 7th Fast Track Court, Surat in Sessions Case No. 20/2004 is hereby confirmed. The original accused No. 3 is reported to have been on bail and accordingly, he is directed to surrender to custody within 12 weeks from today to serve the remaining sentence, if any, failing which, the concerned investigating agency shall take necessary actions, in accordance with law. The accused be given set off for the period of sentence he has already undergone. If the accused has already served the period of sentence, as has been awarded by the Trial Court, he is not required to surrender to custody except if he is required in any other offence. In view of the above, Criminal Miscellaneous Application No. 13135/2005 stands dismissed. Record and proceedings be sent to the concerned Trial Court forthwith.