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2016 DIGILAW 638 (GUJ)

Dilipbhai Galabbhai Parmar v. State of Gujarat

2016-03-18

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is filed by the appellants-accused under Section 374 of the Code of Criminal Procedure, 1973 challenging the judgment and order rendered in Sessions Case No. 119/2007 by the 4th Additional Sessions Judge, Anand dated 13.01.2012 recording conviction of the appellants-original accused for the offence under Sections 394, 397 read with Section 114 of the Indian Penal Code sentencing them to undergo RI for 4 years under Section 394 of the Indian Penal Code and RI for 7 years under Section 397 of the Indian Penal Code with fine as stated in detail. 2. The facts of the case briefly summarized are as follows:- "2.1 On 12.03.2003, the employees of the complainant, who is the Deputy Engineer, GEB at Vaso, had gone to Village : Petali for the recovery of the electricity bills and the victims were returning back after collection of the amount to GEB Office at Vaso. However when they were passing near Deva road on scooter, the accused persons are said to have assaulted with the stick and dharia and looted amount and suitcase containing cash and had run away. The victims were taken to the hospital and the complainant, Executive Engineer at GEB Office, Vaso lodged the complaint, which has been registered as C.R. No. I-17/2003 at Sojitra Police Station. 2.2 After the investigation was over, the chargesheet was filed and as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions, Anand. 2.3 Thereafter, the Court below proceeded with the trial and recorded the further statements of the accused under Section 313 of the Criminal Procedure Code. 2.4 After hearing the learned APP as well as learned advocate for the defence, the Sessions Court recorded conviction of the appellants-accused and sentenced them as stated in the impugned judgment." 3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri Vipul Sundesha appearing for learned advocate, Shri P.P. Majmudar for the appellants-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Sundesha appearing with learned advocate, Shri Majmudar referred to the testimony of the complainant, PW-1, Exh.10 and also his complaint at Exh.11. 4. Heard learned advocate, Shri Vipul Sundesha appearing for learned advocate, Shri P.P. Majmudar for the appellants-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Sundesha appearing with learned advocate, Shri Majmudar referred to the testimony of the complainant, PW-1, Exh.10 and also his complaint at Exh.11. Learned advocate, Shri Sundesha also referred to the testimony of PW-6, who is injured eyewitness and also testimony of PW-7, who is also injured eyewitness (victim) at Exh.31. Learned advocate, Shri Sundesha referred to the testimony of both these injured witnesses, who are the victims and also the panchnama of TI parade at Exh.35. He strenuously submitted that the procedure for TI parade has not been properly followed, which he tried to demonstrate from the panchnama at Exh.35. Learned advocate, Shri Sundesha also submitted that one of the injured witnesses, PW-7 has stated about the identification of the accused persons at Sr. Nos. 7 and 4, who are different persons and not the accused. He therefore submitted that it raises doubt about the procedure. For that purpose, he also referred to the testimony of the Executive Mamlatdar, PW-8 at Exh.34 and submitted that the procedure for the TI parade is not properly followed as homogeneous persons, who have been kept with other description, are not kept present. For that purpose, he submitted that some people aged 35-40 were kept present and they were not made to cover the face and, therefore, such TI parade raises doubt. He also submitted that the history given by the victims before the doctor referred to by way of unidentified person and the accused persons are sought to be implicated on the basis of such identification, which is not proper. He submitted that the Court below has failed to appreciate this aspect. In support of this, learned advocate, Shri Sundesha referred to and relied upon the judgment of the Division Bench of the High Court of Gujarat in case of State of Gujarat v. Mahmad @ Munno Usmanbhai Chauhan, reported in 1996 (2) GLR 821 and submitted that as observed in this judgment in paragraph No. 6, the evidence is required to be scrutinized and the infirmities in the identification parade would raise doubt. He therefore submitted that in the same manner, the benefit should have been gone to the accused persons. He therefore submitted that in the same manner, the benefit should have been gone to the accused persons. Learned advocate, Shri Sundesha submitted that like in that case, the age of the people, who were kept present aged, was from 20-40 years and, therefore, the present appeal may be allowed. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Budhsen v. State of Uttar Pradesh, reported in 1970 (2) SCC 128 and emphasized the observation made in paragraph No. 18 to support his submission that erroneous way of dealing with the test identification parade may cause failure of justice. He therefore submitted that the present appeal may be allowed. 6. Alternatively, it was submitted that as the appellants have undergone sentence for a period of four years, same may be reduced or modified. 7. Learned APP Ms. Punani submitted that the background of the facts reveal that who have been assaulted, are two eyewitnesses, who have been examined and they have identified the appellants-accused in TI parade. Therefore, there is no reason to doubt about the prosecution case and the conviction may be sustained. She referred to the testimony of PW-6, Exh.30 and testimony of PW-7, Exh.31, who are the victims and injured eyewitnesses. She submitted that assuming that one of the injured witnesses has not properly referred to serial number, fact remains that one of the injured witnesses has categorically identified the appellants-accused, which does not leave any scope for any doubt. She further submitted that the panchnama of TI parade is sufficiently corroborated by the evidence of witnesses and the injured eyewitnesses. Learned APP Ms. Punani also referred to the testimony of the Bhaleshkuma Asari, PW-8 at Exh.34 and submitted that he has also stated about the manner and the procedure for TI parade and it does not leave any doubt that any prejudice is caused to the appellants-accused. Learned APP Ms. Punani submitted that the issue, which is sought to be joined with regard to the involvement and identification of the accused persons based on the panchnama of the IT parade and the testimony of the witnesses, is misconceived. Learned APP Ms. Learned APP Ms. Punani submitted that the issue, which is sought to be joined with regard to the involvement and identification of the accused persons based on the panchnama of the IT parade and the testimony of the witnesses, is misconceived. Learned APP Ms. Punani submitted that the testimony of Investigating Officer, PW-10, Exh.38 would clearly reveal that the discovery panchnama of recovery of the muddamal has been made, which has been recovered from the field of the grandfather of the appellants-accused and the said panchnama is at Exh.19. Similarly, the discovery panchnama of recovery of weapon used in the offence is also made at Exh.25 as stated by the Investigating Officer in his statement at Exh.38. She submitted that this muddamal as well as weapons have been recovered and discovered at the instance of the accused persons from the field of the grandfather of the appellants-accused and, therefore considering the provision of Section 27 of the Evidence Act, the recovery of such incriminating material at the instance of the accused itself would be sufficient. She therefore submitted that the present appeal may not be allowed. 8. Learned APP Ms. Punani has also referred to the testimony of Dr. Samir Patel, PW-12 at Exh.43 and submitted that in the history, it has been recorded that the assault by unknown persons and, thereafter, the investigation is revealed about the involvement of the appellants-accused with the recovery of incriminating material as stated above. 9. Further, learned APP Ms. Punani submitted that alternate submission with regard to the modification of the sentence may not be considered in light of the nature of offence and also injury caused to one of the injured victims, who has been assaulted with dharia and was seriously injured. For that purpose, she referred to the medical evidence in the form of testimony of Dr. Samir Patel, PW-12, Exh.43. Therefore, learned APP Ms. Punani submitted that the present appeal may not be entertained and even alternate prayer may not be entertained. 10. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 11. Samir Patel, PW-12, Exh.43. Therefore, learned APP Ms. Punani submitted that the present appeal may not be entertained and even alternate prayer may not be entertained. 10. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 11. As it transpires from the material and evidence on record, which has been discussed in the impugned judgment and order and also referred to by both sides at length clearly suggest that the victims, who are the employees of GEB were assaulted when they were returning with cash in suitcase and the accused persons are said to have assaulted with stick and dharia and the injury caused to them is corroborated by the medical evidence that such injury could be caused. Further much emphasis even on the issue with regard to the identification and the TI parade is also misconceived inasmuch as the injured witness in his testimony at PW-6, Exh.13 has clearly identified the appellants-accused as the assailants, who had assaulted. Therefore merely because some doubt is sought to be raised from the panchnama regarding some mistake here or there would not justify brushing aside the testimony of the injured eyewitnesses, who are the victims and who have categorically identified the appellants-accused in TI parade and the panchnama for the TI parade at Exh.35. 12. Assuming without admitting as it is sought to be raised some doubt, the Executive Mamlatdar, PW-8 at Exh.34 has clarified on this aspect regarding the procedure followed and identification made by the injured eyewitnesses. 13. Moreover, the emphasis that the accused persons cannot be connected with the offence as the panchnama for the TI parade at Exh.35 is doubtful, is misconceived. The submissions, which have been made require closer scrutiny raising doubt about the panchnama of the TI parade at Exh.35. It is required to be stated that one of the injured eyewitnesses has identified the appellants-accused persons, which is not in dispute. It is not even the case of the appellants that there was any predetermination suggesting a false implication. The observation made by the Hon'ble Apex Court in a judgment in case of Budhsen (supra) has to be read in context and the background of the facts in a given case. It is not even the case of the appellants that there was any predetermination suggesting a false implication. The observation made by the Hon'ble Apex Court in a judgment in case of Budhsen (supra) has to be read in context and the background of the facts in a given case. The Hon'ble Apex Court has observed that relevant two considerations have to be born in mind; one with regard to the life of liberty of the accused and second is that justice should be done in identification. In the facts of the case, as stated hereinabove, one of the injured eyewitnesses, who is the victim, has categorically identified both appellants-accused in TI parade and, therefore, the submissions raising doubt about the panchnama of TI parade on the ground that the procedure is not followed, is misconceived. Merely because the contention has been raised that the procedure is not followed, it would not make the panchnama doubtful particularly when the injured witness, who is victim himself, has identified the accused persons, who had assaulted him. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Noorahammad & Ors. v. State of Karnataka, reported in AIR 2016 SC 679 . The Hon'ble Apex Court on the aspect of TI parade has discussed with reference to the test identification parade and has also referred to the earlier judgment Budhsen (supra). Further it has been observed referring to earlier judgment of the Hon'ble Apex Court in case of State of H.P. v. Lekh Raj, reported in AIR 1999 SC 3916 , "test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration". In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In the case of Ramanbhai Naranbhai Patel it was observed: "It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case." The Court further observed: "the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight". In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court." 14. In any case, it is not the only aspect or the evidence, by which, the accused have been convicted as there is sufficient other material and evidence which has been considered like the discovery of the muddamal of the weapon at the instance of the accused persons. The said discovery of muddamal of weapon at the instance of the accused persons made from the field of the grandfather of the accused persons itself would be sufficient for negating such submission with regard to the involvement of the accused persons. Both the panchnamas are at Exhs.19 and 25. The provision of Section 27 of the Evidence Act with regard to such panchnama has been considered by the Hon'ble Apex Court in catena of judicial pronouncement. The provision of Section 27 of the Evidence Act is based on the view that if a fact is actually discovered in consequence of the information given, said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by discovery or articles or instrument of crime. It has reference to the disclosure made by the accused. It has reference to the disclosure made by the accused. It could not be within the knowledge of the Investigating Officer and the facts which have been disclosed are of such a nature, it was only within the knowledge of the accused. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2007) 9 SCC 360 and AIR 1994 SC 2420 . 15. Therefore in view of the aforesaid position, it can hardly be said that there is no evidence to connect the appellants-accused with the crime as sought to be canvassed. 16. Further the accused have assaulted with the weapons which have been recovered and the injury caused to the victims is corroborated by the medical evidence in the form of testimony of Dr. Samir Patel, PW-12 in his testimony at Exh.43 suggesting serious injuries to one of the injured eyewitnesses, which would establish the manner in which the offence is committed. 17. It is in this background, the nature of the offence and the weapon used would be relevant for considering the alternate submission with regard to the modification of the sentence. Though the submissions have been made for modification or reduction of the sentence, nature of offence and the weapon used and the manner in which the assault is made, would not justify any such indulgence. It is well settled that judicial discretion is required to be exercised for the purpose of adequate sentence. According to Black's Law Dictionary, "judicial discretion" means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law. Thus the Courts are also under obligation to impose adequate sentence, which would respond to the expectation of the society for justice. 18. Therefore, the present appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.