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Gujarat High Court · body

2019 DIGILAW 514 (GUJ)

Zaidul Khalidbhai Sheikh v. State Of Gujarat

2019-05-01

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal has been filed by the appellant-accused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 14.09.2016 passed by learned Principal District & Sessions Judge, Gandhinagar in Sessions Case No.38 of 2015, whereby the appellant-accused was convicted for the offences under Sections 120(B), 395 and 397 of the Indian Penal Code (herein after referred to as IPC for short). By the impugned judgment, under Section 120(B) of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of five years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of six months was imposed and under Section 395 of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and ordered to pay Rs.10,000/- fine and in default of payment of fine, simple imprisonment for a period of one year was imposed and under Section 397 of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.5,000/- fine and in default of payment of fine, simple imprisonment for a period of six months was imposed and all the sentences are ordered to run concurrently. 2. The case of the prosecution in short is that on 01.06.2006, the complainant was sleeping at his house situated in the fields and at around 1:30 a.m., the appellant along with other accused persons came to the house of the complainant armed with deadly weapons and assaulted the complainant and his wife on the head and the mother of the complainant also got knife injury near the head and one Samsung mobile phone of the complainant was looted. Therefore, the complaint was lodged with the police. 2.1 Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellant-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 14.09.2016 passed by learned Principal District & Sessions Judge, Gandhinagar in Sessions Case No.38 of 2015, the appellant-accused has preferred the present appeal before this Court. 3. Learned advocate Mr. A.V. Nair for the appellant contended that the appellant-accused was found guilty upon the strength of alleged discovery panchnama of place of occurrence at Exh.15 as well as the appellant-accused came to be identified by the complainant during the course of T.I. Parade at Exh.16. Learned advocate for the appellant contended that prosecution failed to bring on record as to how he had been made accused and thereafter, as the accused was taken to the scene of occurrence where he was already shown to the complainant three days prior to holding T.I. Parade and therefore, the entire procedure of carrying out T.I. Parade had become a farce and the learned trial court has wrongly placed reliance on such sort of evidence and wrongly convicted the appellant-accused as such. 4. On the other hand, learned APP Ms. Hansa Punani supported the judgment of learned trial court and argued that the complainant has not only identified the appellant-accused during T.I. Parade, but he has also been identified during trial and the appellant-accused has shown the place of scene of occurrence and therefore, the appellant-accused has been sufficiently linked with the crime in question and learned trial court has rightly convicted him and there appears no point to take any other view than the view taken by the learned trial court. 5. 5. As per the case of prosecution, during nocturnal hours on 31.05.2006, the complainant as well as his family members were sleeping in the open agricultural field situated nearby their house and at about 1:30 a.m. while the complainant was sleeping, somebody suddenly assaulted over his head due to which he woke up and at that time another person also assaulted his wife and one person assaulted his mother due to which they shouted for help and at that time, one Mr. Rameshbhai who was residing nearby, came over there to rescue them due to which the unknown 8 to 10 dacoits left the place of incident and they also snatched away one Samsung mobile worth Rs.2000/- and out of them two had worn baniyan and others were wearing simple dress and they were in the age group of 25 to 30 years, that was the precise case of the prosecution. 6. P.W.1-Dipaksinh Vakhatsinh Zala – the complainant deposed that at the time of incident, he was serving as Principal in the primary school at Village: Kadjodara and on the day of incident i.e. 31.05.2006, during summer, he was sleeping along with his family members in the open agricultural field and at that time 8 to 10 unknown persons assaulted him as well his mother and wife and they shouted for help due to which one Mr. Rameshbhai who was residing nearby, came to rescue them and after that all the dacoits fled away snatching away his mobile phone. He further deposed that on 06.08.2007, he identified the appellant-accused. In the cross-examination, he admitted that in his further statement before the police, he had stated that dacoits were unknown persons and he could not identify them. He further admitted that police had brought the appellant-accused to his house prior to T.I. Parade. He also admitted that his agricultural field is one kilometer away from the village. 7. PW.2-Induben Dipaksinh Zala-wife of the complainant and victim deposed that on the day of incident, there were four unknown persons who assaulted them and they were aged about 20 years and further deposed that she could not identify the accused at the time of trial. 8. 7. PW.2-Induben Dipaksinh Zala-wife of the complainant and victim deposed that on the day of incident, there were four unknown persons who assaulted them and they were aged about 20 years and further deposed that she could not identify the accused at the time of trial. 8. PW.3 Champaben Vakhatsinh Zala-mother of the complainant as well as victim deposed that on 31.05.2006, there was an incident of assault over them and she was also assaulted near her left ear due to which she shouted and the accused fled away from the place of incident and she further deposed that she had not identified anybody and she had not seen any accused. 9. PW.4-Amitsinh Dipaksinh Zala-son of the complainant deposed that his parents received injuries during the incident, but he had not seen any accused and therefore, he could not identify them. 10. The prosecution also examined witness nos.5 to 9 – the police officials, but none of them have undertaken any sort of investigation. 11. On the overall evaluation of aforesaid evidence on record, it appears that this is a pure and simple case wherein the complainant was residing with his family members in the open agricultural field situated at about one kilometer away from the village. On 31.05.2006, while they were sleeping during nocturnal hours at about 1:30 a.m., for about 8 to 10 unknown persons arrived there and out of them, 3 persons assaulted the complainant and other 2 injured witnesses due to which the complainant and other 2 injured witnesses received injuries and they were taken to the hospital. 12. Since the complaint came to be lodged against unknown persons, the appellant-accused came to be apprehended after about one year and two months from the date of incident and soon after the appellant-accused got apprehended, he was taken to the scene of occurrence and panchnama under Section 27 of the Indian Evidence Act was drawn on 03.08.2007 and at that time the appellant-accused was shown to the complainant and thereafter, T.I. Parade came to be held on 06.08.2007, wherein the complainant alleged to have identified the present appellant-accused. 13. 13. On the overall evaluation of aforesaid evidence on record, since the appellant-accused was already presented at the scene of occurrence 3 days prior to holding of T.I. Parade before the complainant and thereafter, T.I. Parade came to be arranged in presence of Executive Magistrate three days later on, wherein as per the case of prosecution, the complainant identified the present appellant-accused as one of the dacoits as such. In that view of the matter, records and proceedings clearly indicates that the incident in question happened during the nocturnal hours in the open agricultural field and they were sleeping in the open agricultural field and they came to be assaulted while they were sleeping and as admitted by the prosecution witness nos.2, 3 and 4, they had not even seen the accused and they were not even able to identify them. In that situation, the fact that the incident in question occurred during nocturnal hours and while the complainant was also sleeping in the midnight and T.I. Parade came to be arranged after showing the accused 3 days prior to the holding of T.I. Parade, vitiate the entire procedure of holding the T.I. Parade. Even otherwise also, the incident in question happened during nocturnal hours and the complainant came to be assaulted while he was sleeping, there might be less chance of viewing faces of 8 to 10 miscreants and even there happened nothing except assault by three persons and snatching away of mobile thereof. 14. In view of aforesaid nature of evidence, learned advocate Mr. A.V. Nair for the appellant-accused pointed out that previously other co-accused were also came to be tried by the same Sessions Court in Sessions Case No.14 of 2011 in the same set of evidence and they came to be acquitted as the learned trial court did not believe the evidence of T.I. Parade as conclusive evidence. 15. In view of aforesaid nature of evidence, it would be very hazardous to confirm the conviction recorded by learned Sessions Judge based upon the aforesaid nature of faulty evidence on record. 16. In the result, present appeal succeeds and stands allowed. The judgment and order of conviction dated 14.09.2016 passed by learned Principal District & Sessions Judge, Gandhinagar in Sessions Case No.38 of 2015 stands quashed and set aside. The accused is acquitted of the charges levelled against him. 16. In the result, present appeal succeeds and stands allowed. The judgment and order of conviction dated 14.09.2016 passed by learned Principal District & Sessions Judge, Gandhinagar in Sessions Case No.38 of 2015 stands quashed and set aside. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail and bail bond stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.