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Gujarat High Court · body

2016 DIGILAW 779 (GUJ)

Taufik Razakbhai Musani v. State of Gujarat

2016-04-07

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Criminal Appeal No. 570 of 2014 is filed by the Appellants/Original Accused Nos. 1 and 5 in Sessions Case No. 147 of 2010 and Criminal Appeal No. 569 of 2014 is filed by the Appellant/Original Accused No. 1 in Sessions Case No. 176 of 2010, under Section 374 of the Code of Criminal Procedure, 1973, challenging the common impugned judgment and order rendered in both the aforesaid Sessions Cases by the learned Additional Sessions Judge, Rajkot dated 31.3.2014, recording the conviction and sentence and imposing fine as stated in detail in the common impugned judgment and order, on the grounds stated in the memo of Appeals. The facts of the case briefly summarized are as follows. 2. The Complainant Laxmanbhai in Sessions Case No. 147 of 2010 lodged a complaint dated 31.5.2010 before the PSI, Jasdan Police Station that on 26.5.2010 his brother had proceeded with Icher Truck loaded with the goods, from Kothari Agritech in order to deliver the same at Jetpur. However, on 27.5.2010 one maternal uncle conveyed by mobile phone that one person is found unconscious near nala in village Badghoi and he has been removed to Jasdan Hospital and therefore the contact number of the Reporter Vijaybhai was obtained and they had proceeded to Gokul Hospital, Rajkot. The brother of the complainant was injured with several injuries for which the complaint was registered being I-CR No. 53/2010 with Jasdan Police Station for the offence under Sections 392, 394and 397 of the Indian Penal Code. 3. On the basis of the investigation made, the charge sheet came to be filed and it was committed to the Court of Sessions and registered as Sessions Case No. 147 of 2010. However, thereafter on the basis of the supplementary charge sheet against the Appellant/Original Accused No. 1 in Criminal Appeal No. 569 of 2014, Sessions Case No. 176 of 2010 was committed and after committal the Sessions Court proceeded with the trial. 4. After the recording of the evidence of the prosecution witnesses was over, further statement of the Appellants/Original Accused persons was also recorded under Section 313 of the Code of Criminal Procedure. 5. After hearing the learned PP as well as learned Advocate for the defence, the learned Additional Sessions Judge, Rajkot recorded the conviction imposing the sentence and fine as stated in detail in the common judgment and order. 6. 5. After hearing the learned PP as well as learned Advocate for the defence, the learned Additional Sessions Judge, Rajkot recorded the conviction imposing the sentence and fine as stated in detail in the common judgment and order. 6. It is this common judgment and order which has been assailed in both the Appeals by the Appellants/Original Accused persons on the grounds stated in the memo of Appeals. 7. Heard learned Advocate Shri L.R. Pathan for the Appellant No. 2 (Original Accused No. 5) in Criminal Appeal No. 570 of 2014 and for the Appellant (Original Accused No. 1) in Criminal Appeal No. 569 of 2014, learned Advocate Shri Vipul Sundesha appearing with learned Advocate Shri P.P. Majmudar for Appellant No. 1 (Original Accused No. 1) in Criminal Appeal No. 570 of 2014 and learned APP Ms. Hansa Punani for the Respondent - State of Gujarat in both the Criminal Appeals. 8. Learned Advocate Shri L.R. Pathan referred to the charge and also the Complaint at Exh. 95. Learned Advocate Shri Pathan submitted that there is a delay in filing the complaint. He referred to the papers and submitted that the message is received on 27.5.2010 and the complaint came to be filed on 31.5.2010. Learned Advocate Shri Pathan submitted that the complainant brother could not have stated about the nature of offence or about the Accused persons as he could not have known. He submitted that there is no eyewitness and therefore it requires appreciation of material and evidence. Learned Advocate Shri Pathan referred to the Complaint at Exh. 95 and the testimony of the Complainant PW-8 at Exh. 94. He submitted that the Complainant has stated that on the basis of his conversation with the Reporter on mobile, he could ascertain regarding the description of the person that it was similarly to his brother and he proceeded. Learned Advocate Shri Pathan also referred to the testimony of PW-10 at Exh. 120 and submitted that the FSL report suggest that the registration number of the Truck is changed. He referred to the FSL report at Exh. 121. Similarly, learned Advocate Shri Pathan also referred to the testimony of the Executive Magistrate PW-11 at Exh. Learned Advocate Shri Pathan also referred to the testimony of PW-10 at Exh. 120 and submitted that the FSL report suggest that the registration number of the Truck is changed. He referred to the FSL report at Exh. 121. Similarly, learned Advocate Shri Pathan also referred to the testimony of the Executive Magistrate PW-11 at Exh. 123 and submitted that it is stated that the letter was received on 2.7.2010 and the T.I. Parade has been conducted in July 2010, which is being delayed and therefore, there is no explanation for conducting such T.I. Parade with delay. Learned Advocate Shri Pathan submitted that actually the T.I. Parade is not held properly after following the due procedure. He submitted that the panch-witnesses have not supported. Learned Advocate Shri Pathan referred to the testimony of panch-witnesses. He also referred to the testimony of Kasambhai PW-13 at Exh. 140 who is a panch-witness. Learned Advocate Shri Pathan submitted that he is a selected panch as he is serving in the Panchayat office and therefore he would be called for the work of the Executive Magistrate/Mamlatdar. Learned Advocate Shri Pathan also referred to the testimony of PW-20 at Exh. 187 and submitted that he was on duty for checking the vehicles and though he has identified the Appellants/Original Accused persons in Sessions Case No. 147/2010, how he could have identified the Appellant in Sessions Case No. 176 of 2010 as he was not there and therefore he would not have the occasion to see the Appellant (Original Accused No. 1) in Sessions Case No. 176 of 2010. Learned Advocate Shri Pathan also referred to the cross-examination and submitted that when he has admitted that the Appellant (Original Accused No. 1) in Criminal Appeal No. 176/2010 used to visit Bhavnagar Court and therefore he knew him. Similarly, learned Advocate Shri Pathan referred to the testimony of Dr. Kaushikkumar Patel - PW-22 at Exh. 191 and submitted that the Doctor who had treated the victim has stated that the victim was discharged on 2.6.2010. However, the statement of the victim was recorded by the Police on 30.6.2010 and in the meanwhile the Accused are arrested. He also referred to the medical certificate at Exh. 192. Learned Advocate Shri Pathan submitted that though the Police was informed that the victim was to be discharged, no effort was being made to record the statement. However, the statement of the victim was recorded by the Police on 30.6.2010 and in the meanwhile the Accused are arrested. He also referred to the medical certificate at Exh. 192. Learned Advocate Shri Pathan submitted that though the Police was informed that the victim was to be discharged, no effort was being made to record the statement. He therefore submitted that the investigation is not fair. 9. Further, learned Advocate Shri Pathan referred to the testimony of the I.O. PW-23 at Exh. 198 and pointedly referred to some of the contradictions as stated in detail. He also referred to the testimony of PW-25 at Exh. 209 and submitted that he was serving at Jasdan Police Station. When the victim was unconscious and Dr. Kaushikkumar PW-22 in his testimony at Exh. 191 has stated that he was brought when he was unconscious. However, when he was discharged he had regained the consciousness and therefore his statement could have been recorded, but as stated above, it has been recorded much later. Similarly, he referred to the evidence and submitted that no muddamal is recovered from Mahmoob M. Rafiq and the Truck was seized. Therefore, there is nothing against the Accused persons. Learned Advocate Shri Pathan therefore submitted that all the aforesaid is relevant for; the delay in holding the T.I. Parade, delay in lodging the complaint and also delay in recording the statement and which suggest that the investigation is not fair, and after the arrest of the Accused persons, the statements are recorded. He also submitted that the photographs were published in the newspaper which would suggest that the T.I. Parade was held after the news item was published and when it was known to the people, and therefore, any such identification of the Accused persons would not be legal and valid. 10. Learned Advocate Shri Pathan has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1970 SC 1321 in case of Budhsen v. State of Uttar Pradesh regarding the T.I. Parade and submitted that it is a weak piece of evidence, which require corroboration. 11. 10. Learned Advocate Shri Pathan has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1970 SC 1321 in case of Budhsen v. State of Uttar Pradesh regarding the T.I. Parade and submitted that it is a weak piece of evidence, which require corroboration. 11. Learned Advocate Shri Vipul Sundesha for learned Advocate Shri P.P. Majmudar for Appellant No. 1 (Original Accused No. 1) in Criminal Appeal No. 570 of 2014, submitted that he would adopt the submissions made by learned Advocate Shri L.R. Pathan and would make submission on some of the issues. He referred to the papers and the material and evidence on record and submitted that the recovery of the goods and the Truck is not established by cogent evidence. He submitted that even the T.I. Parade does not inspire confidence. Similarly, he referred to the testimony of PW-20 at Exh. 187 and again emphasized that he could not have seen the Appellant (Original Accused) in Criminal Appeal No. 569 of 2014 and still he has identified him. Similarly, there is a discrepancy in the evidence as it is stated that there were four persons in the Truck, which suggest the improvisation. Similarly, the panchnama of the panch-witness is not corroborating and supporting the prosecution case. Learned Advocate Shri Sundesha submitted that the evidence of PW-23 Madhubhai at Exh. 198 require a closer scrutiny. He submitted that the trial court has discussed at this stage the evidence and has acquitted the two accused persons. Learned Advocate Shri Sundesha submitted that even if it is assumed that the possession of such muddamal was with the Appellants (Original Accused Nos. 1 and 5) of Criminal Appeal No. 570 of 2014, it would not be sufficient to establish the offence of robbery merely because such goods are recovered from the Appellants (Original Accused Nos. 1 and 5 in Criminal Appeal No. 570 of 2014). Learned Advocate Shri Vipul Sundesha again referred to the judgment of the Hon'ble Apex Court reported in AIR 1970 SC 1321 in case of Budhsen v. State of Uttar Pradesh (supra) and submitted that the T.I. Parade is not properly held and in any case it is a weak piece of evidence which would require corroboration. 12. Learned APP Ms. Hansa Punani referred to the papers and submitted that as stated by the victim PW-9 in his testimony at Exh. 12. Learned APP Ms. Hansa Punani referred to the papers and submitted that as stated by the victim PW-9 in his testimony at Exh. 117 that from the talks he could gather the name of the Accused persons and therefore he could identify in the T.I. Parade held by the Magistrate. Learned APP Ms. Punani submitted that even in the Court he has identified and therefore the issues which are sought to be raised regarding the T.I. Parade are misconceived. Learned APP Ms. Punani submitted that if the T.I. Parade is sufficient to establish the identity of the accused persons, it does not require corroboration in every case. Learned APP Ms. Punani referred to the cross-examination of the testimony of the victim PW-9 at Exh. 117 and submitted that in the cross-examination he does not say or no suggestion has been put that the witness was having any idea about the accused persons. She therefore submitted that the victim is the eyewitness and therefore no corroboration is required. 13. Learned APP Ms. Hansa Punani further submitted that in fact no explanation has been offered by the accused persons in their further statement recorded under Section 313 of the Code of Criminal Procedure and therefore all such contentions are misconceived. Learned APP Ms. Punani referred to the testimony of the Executive Magistrate PW-11 at Exh. 123 and submitted that there is no procedural lapse or irregularity. She pointedly referred to the cross-examination and submitted that it has been clearly stated and clarified how the T.I. Parade was conducted and the accused persons were identified. She submitted that the accused persons were not identified on the basis of the newspaper. She submitted that there is no reason or justification why the version of the victim should not be believed. Learned APP Ms. Punani further submitted that there is no dispute nor even any justification that there is a false implication. Learned APP Ms. Punani therefore submitted that when there is no motive for any false implication and the complaint is given by the brother as the victim was unconscious, it cannot be said that it does not inspire confidence. Learned APP Ms. Punani therefore submitted that the common judgment and order passed by the learned Additional Sessions Judge, Rajkot is just and proper. 14. Learned APP Ms. Punani therefore submitted that the common judgment and order passed by the learned Additional Sessions Judge, Rajkot is just and proper. 14. In rejoinder, learned Advocate Shri L.R. Pathan submitted that the prosecution has to prove and establish the charges beyond reasonable doubt and the accused persons have not to establish or prove and therefore benefit of doubt ought to have been given. 15. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 16. As could be seen from the submissions made by learned Advocate Shri L.R. Pathan, the emphasis is that there is a delay in filing complaint as well as there is a delay in recording the statement of the victim and therefore the investigation is not fair. Though these submissions have been made, a close scrutiny of the material and evidence would clearly suggest that there is no such delay and it could not be said that there is no explanation for the same. The message is received on 27.5.2010 and thereafter the complainant brother of the victim after getting the necessary message rushed to the scene of offence and thereafter to Jasdan Hospital and Rajkot Gokul Hospital. He has specifically stated that when he reached Gokul Hospital, Rajkot, the victim brother was unconscious. The complaint at Exh. 95 clearly refers to this aspect. The victim PW-9 in his testimony at Exh. 117 has also stated as to what has transpired and he could get the name of the accused persons from the conversation. He has specifically stated that in the T.I. Parade held by the Executive Magistrate/Mamlatdar, he could identify the accused persons. Further, in a specific question, which has been put to him that after he had gone to sleep, the vehicle Icher could have been looted and in response thereto there is a specific answer by the victim denying the suggestion and has specifically stated that the accused persons had looted and he has also stated that after he was asleep naturally under the influence of some drugs, he would not know. The testimony of the Executive Magistrate PW-11 at Exh. 123 clarifies about the T.I. Parade and the similar homogeneous persons kept for the purpose and identification of the accused persons, for which there is no reason to doubt. The testimony of the Executive Magistrate PW-11 at Exh. 123 clarifies about the T.I. Parade and the similar homogeneous persons kept for the purpose and identification of the accused persons, for which there is no reason to doubt. The submission that after the photographs were published in the newspaper, the identification has been made, is misconceived inasmuch as it is not suggested that on the identification of such photographs, the accused persons were identified. The submissions which have been made with much emphasis that T.I. Parade is not held properly as per the procedure, cannot be readily accepted in view of the testimony of the Executive Magistrate PW-11 at Exh. 123. 17. A useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in AIR 2016 SC 679 in case of Noorahammad & Ors. v. State of Karnataka. The Hon'ble Apex Court has discussed referring to the earlier judgment in case of Budhsen v. State of Uttar Pradesh (supra). It has been 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." 18. One more submission which has been referred to and emphasized with regard to the identification of the Appellants (Original Accused No. 1) in Criminal Appeal No. 569 of 2014 inasmuch as the I.O. PW-23 in his testimony at Exh. 198 has stated about the recovery of muddamal, for which the panchnama is also made. It is required to be noted that the Truck and the looted muddamal which was recovered from the field and which is an ancestral property of one of the accused at village Damrada would also establish about the involvement of the accused persons. 198 has stated about the recovery of muddamal, for which the panchnama is also made. It is required to be noted that the Truck and the looted muddamal which was recovered from the field and which is an ancestral property of one of the accused at village Damrada would also establish about the involvement of the accused persons. It is stated that the search was made for the two other accused persons and thereafter they have been arrested. Thus, the recovery of muddamal article is from the vicinity of the ancestral property of the co-accused for which the panchnama is also made coupled with the fact that on the basis of the disclosure statement the other two accused persons were arrested. PW-20 in his testimony at Exh. 187 has stated referring to the panchnama about the recovery of muddamal. However he has stated in his testimony at Exh. 187 that while checking the vehicles and on inquiry from the driver accused Taufiq, the disclosure was made. Therefore, the submission that the accused Rafiq could not have been identified, is misconceived. 19. The another facet of the submission that no effort is made to record the statement though it was known that the victim has regained the consciousness is misconceived. The testimony of the victim PW-9 at Exh. 117 is required to be read with testimony of PW-22 at Exh. 191. After the discharge of the victim on 2.6.2010, he may not be in a position/fitness to give the statement to the Police looking to the injuries. In fact in such cases, sometimes, it may be medically advisable that no stress is given for some time. Medical certificate at Exh. 192 is also required to be considered with the testimony of Dr. Kaushikkumar PW-22 at Exh. 191 and the certificate at Exh. 192, who has stated about the injury. Therefor, having regard to the nature of injuries, it may not have been possible to proceed to record the statement of the victim as soon as the patient is discharged. Assuming that there is any delay, it does not cause any prejudice to the prosecution witnesses and it cannot be said that there is any deliberate delay for the false excuse. There is no reason why the version of the victim should not be believed particularly when there is not even a suggestion for the false implication. Assuming that there is any delay, it does not cause any prejudice to the prosecution witnesses and it cannot be said that there is any deliberate delay for the false excuse. There is no reason why the version of the victim should not be believed particularly when there is not even a suggestion for the false implication. Therefore, there is no procedural lapse as sought to be canvassed. Further the Executive Magistrate PW-11 in his testimony at Exh. 123 has also clarified that he was not aware about the reports in the newspaper. Therefore, it cannot be said that there is no corroboration and in fact the recovery of the muddamal coupled with the testimony of the injured victim PW-9 at Exh. 117 clearly establish the involvement and the guilt of the accused persons. 20. Further, it is well accepted that mere discrepancy or a slight discrepancy would not be sufficient to discard the entire evidence unless it can be shown that the discrepancies are such major contradictions which go to the root of the matter, and every such small discrepancy could not be a ground or excuse for grant of benefit of doubt. The testimony of the victim PW-9 at Exh. 117 is sufficiently corroborated and the accused persons have not explained particularly with regard to the recovery of muddamal from the vicinity or the field of one of the accused. The burden would shift on the person to explain about the possession which has not been discharged in the present case. 21. Therefore, on overall scrutiny and appreciation of the material and evidence on record, the common judgment and order recording the conviction of the Appellants (Original Accused Nos. 1 and 5) in Sessions Case No. 147 of 2010 and conviction of the Appellant (Original Accused No. 1) in Sessions Case No. 176 of 2010) by the learned Additional Sessions Judge, Rajkot dated 31.3.2014 does not call for any interference and both the Appeals deserve to be dismissed and accordingly stands dismissed.