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2024 DIGILAW 1102 (GUJ)

Latifnagodar Hayat Sindhi v. State of Gujarat

2024-05-02

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellants under Section 374 of Code of Criminal Procedure, 1973 against the judgment and order of conviction passed by the learned Sessions Judge, Banaskantha at Palanpur (hereinafter referred to as “the learned Trial Court”) in a common judgment in Sessions Case No. 66/2014 and Sessions Case No. 63/2015 on 29.07.2016, whereby, the learned Trial Court has convicted the appellants and other co-accused for the offence punishable under Section 399 of the Indian Penal Code (hereinafter referred to as “IPC”). The appellants are hereinafter referred to as the accused as they stood in the rank and file in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 That on 27.05.2014, the complainant-Mr. M.D. Champavat, In-charge Police Inspector, SOG, Banaskantha at Palanpur got a secret information that a gang of persons was to move out to commit robbery or dacoity and a watch was to be arranged with the Investigating Officers of the LCB and hence, the complainant and other police personnel went towards Dharewada village ahead of Chhapi as the information was that the gang was to move on the single track road from Ghanwada and Naglasan towards Meloj and then from the kutchha road of Dharewada, they were to go on to the highway. That the team of police personnel went towards Dharewada near the railway crossing where the single track road has fields on the northern side and waste land on the southern side and hid themselves and at around 22.00 hours, they heard the sound of a motorcycle and as the motorcycle came nearby, they put obstacles on the road and halted the motorcycle. That the motorcycle tried to turn and flee and as there were three persons on the motorcycle, it fell down and the motorcycle fell on top of all the three persons. That immediately the police caught all the three persons and there was another bike which was coming with the headlights closed behind the said bike and as soon as the person driving the bike saw that the motorcycle in front was stopped, it switched on the light, turned around and fled away. That immediately the police caught all the three persons and there was another bike which was coming with the headlights closed behind the said bike and as soon as the person driving the bike saw that the motorcycle in front was stopped, it switched on the light, turned around and fled away. That the police personnel caught the three persons and enquired from them their names and they were Sharif Nagodar Sindhi (Dafer) residing at Ghanwada, Taluka Siddhpur who was driving the motorcycle bearing registration no. GJ-2-BB-7002 and the pillion riders were Latif Nagodar Sindhi (Dafer) residing at Ghanwada, Taluka Siddhpur and Suleman Jumma Sindhi (Dafer) residing at Ghanwada, Taluka Siddhpur. That they were searched and knives, catapults and stones, mobile phone, battery and screw drivers were found of them. That the complaint was filed by the complainant-Mr. M.D. Champavat, In-charge Police Inspector, SOG, Banaskantha at Palanpur which was registered at Chhapi Police Station being I C.R. No. 25/2014 on 27.05.2014 under Sections 398 and 399 of the IPC. That during investigation, the Investigating Officer found that the persons who had fled on the motorcycle were Hanifbhai Rahimbhai @ Rahmatullah Dafer residing at Ghanwada, Taluka Sidhhpur and Mirkhan Balukhan Sindhi (Dafer) residing at Ghanwada, Taluka Sidhhpur. That the Investigating Officer investigated the offence and the charge-sheet came to be filed before the Sessions Court, Banaskantha at Palanpur against the persons found at the spot i.e. Sharif Nagodar Sindhi (Dafer), Latif Nagodar Sindhi (Dafer) and Suleman Jumma Sindhi (Dafer) which was registered as Sessions Case No. 66/2014. That after the investigation, a charge-sheet came to be filed against Hanifbhai Rahimbhai @ Rahmatullah Dafer which was registered as Sessions Case No. 63/2015. 2.2. That all the accused were duly served with the summons and all the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973 was followed, an application came to be filed by the learned APP at Exh.15 to consolidate Sessions Case Nos. 66/2014 and 63/2015 as both the charge-sheets has arisen from the same FIR and by an order dated 19.02.2016, the application was allowed and both the cases were ordered to be consolidated and common evidence was recorded in Sessions Case No. 66/2014. Thereafter, a charge was framed by the learned Trial Court at Exh.16 and the statements of the accused were recorded at Exhs. Thereafter, a charge was framed by the learned Trial Court at Exh.16 and the statements of the accused were recorded at Exhs. 17, 18, 19 and 20 respectively. The accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused: S. No. PW Particulars Exhibit 1. 1 Mahipatsinh Dipsinh Champavat 23 2. 2 Sanjaykumar Chimanlal Mathrani 26 3. 3 Mukeshbhai Dahyalal 29 4. 4 Ranjitsinh Hirji 32 5. 5 Amrabhai Chelabhai 33 6. 6 Laxmansinh Jelamsinh 36 7. 7 Pratapbhai Devabhai 39 8. 8 Yakubkhan Mohammadkhan Belim 41 2.4 The prosecution also produced the following documentary evidence to bring home the charge against the accused: S. No. Particulars Exhibit 1. Complaint 24 2. Panchnama 27 3. Index 40 4. Yadi 42 5. FTP Message 43 2.5 That after the closing pursis was submitted by the learned APP, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded and after the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court was pleased to convict all the four accused for the offences under Section 399 of IPC and sentenced the accused to simple imprisonment of five years and fine of Rs. 1,000/- each and in default, simple imprisonment for seven days. 3. Being aggrieved and dissatisfied with the said judgment and order of conviction, the appellant no. 1-original accused no. 2 of Sessions Case No. 66/2014 and appellant no. 2- original accused of Sessions Case No. 63/2015 have filed the present appeal mainly stating that the impugned judgment and order passed by the learned Trial Court is erroneous, unwarranted and absolutely faulty and a number of discrepancies have been made by the learned Trial Court in misreading the evidence. That the reasons given by the learned Trial Court are based on conjectures, surmises and inferences which is not permissible in a criminal trial. That the reasons given by the learned Trial Court are based on conjectures, surmises and inferences which is not permissible in a criminal trial. That the learned Trial Court has held the time of incident at 01.15 hours on 27.05.2014 in the charge framed by the learned Trial Court but as per the deposition of the witnesses and the panch witness, the incident has occurred at around 08.00 pm on 27.04.2014 and there are material contradictions about the timing of the incident that had taken place. That the judgment and order of conviction is illegal and based only on this set of evidence and deserves to be quashed and set aside. That the complainant has not supported the case in his cross- examination and he has admitted that he had no personal knowledge about the information that was received and no new neutral or independent panch witnesses have been examined by the learned Trial Court. That only Police Officers have been examined and there are material contradictions in the statements of the witnesses as well as the panchnama and there is a contradiction as to how the accused have been arrested. That the prosecution witness no. 4 has stated that the accused fell down from the bike, whereas, prosecution witness no. 5 states that they had arrested the accused when they were sitting on the bike and this is a major contradiction which has not been considered by the learned Trial Court. That the appellant no. 2 was not arrested on the day of the offence and he has been arrested after a lapse of time and no one could identify him at the time that he is alleged to have been fled away and it appears that the entire story was concocted by the complainant. That if the accused in fact, wanted to commit a dacoity or robbery, they would have chosen a place where people were passing by and they would not choose a place which is lonely and hence, the judgment and order of conviction is passed without proper reasons. That even for the sake of arguments, if it is found that the catapult and stones were recovered from the appellant no. 1, the catapult cannot be said to be a dangerous / deadly weapon and there is nothing on record to show that any weapon was recovered from the appellant no. 2. That the appellant no. That even for the sake of arguments, if it is found that the catapult and stones were recovered from the appellant no. 1, the catapult cannot be said to be a dangerous / deadly weapon and there is nothing on record to show that any weapon was recovered from the appellant no. 2. That the appellant no. 2 has been falsely implicated in the said offence and as the judgment and order of conviction is erroneous, illegal and unwarranted in the facts and circumstances of the case, the impugned judgment and order must be quashed and set aside and the appellants must be acquitted of the said offence. 4. Heard learned advocate Mr. N.K. Majmudar for the appellants and learned APP Ms. Jirga Jhaveri for the respondent State. Learned advocate Mr. N.K. Majmudar for the appellants has submitted that as per the jail remarks, the appellant no. 1 has completed his sentence and has been released from jail, hence, seeks permission to withdraw the appeal qua the appellant no. 1 as the appeal has become infructuous. 5. Learned advocate Mr. N.K. Majmudar for the appellants has taken this Court through the entire evidence of the prosecution before the learned Trial Court and has submitted that the charge has been framed at Exh.16 by the learned Trial Court, wherein, a common charge has been framed against all the accused, and the charge states that on 27.05.2015 at around 01.15 hours, the accused were coming from Ghanwada village on a motorcycle being a Bajaj Discover bearing registration no. GJ-2-BB-7002 with an intention of committing robbery or dacoity with sharp knives, catapults and screw drivers and were attempting to commit robbery or dacoity and have committed the offence under Section 398 of the IPC and as they had made the preparation to commit the robbery, they had also committed an offence under Section 399 of the IPC. Learned advocate further submits that if the complaint at Exh.24 is perused, the complainant Mr. M.D. Champavat, In-charge Police Inspector, SOG, Banaskantha at Palanpur has stated that they were in a watch at 22.20 hours and hence, at the first instance itself there is a huge difference in the timing of the offence mentioned in the charge. Learned advocate further submits that if the complaint at Exh.24 is perused, the complainant Mr. M.D. Champavat, In-charge Police Inspector, SOG, Banaskantha at Palanpur has stated that they were in a watch at 22.20 hours and hence, at the first instance itself there is a huge difference in the timing of the offence mentioned in the charge. That even the complainant who has been examined at Exh.23 has stated that the primary panchnama was drawn up between 20.35 to 21.00 hours and in the cross-examination has admitted that Police Constable - Mukeshbhai had gone to call the panch witnesses at 08.05 pm. That the panch witness has not identified the appellant no. 2 and there is no evidence on record that the appellant no. 2 was present at the time when the other co-accused were arrested and it is the case of the prosecution that the motorcycle that was coming behind, was without lights and the persons who were on the motorcycle suddenly turned the motorcycle and fled away. That there is no Test Identification Parade on record and as per the charge, the appellant no. 2 and all the other three co-accused were on the same motorcycle which was Bajaj Discover bearing registration no. GJ-2-BB-7002, whereas, the case of the prosecution is that the appellant no. 2 was on another motorcycle. That no motorcycle or any deadly weapons were seized from the appellant no. 2 during the investigation and there is no iota of evidence against the appellant no. 2 and hence, the impugned judgment and order of conviction against the appellant no. 2 must be quashed and set aside and the appellant no. 2 must be acquitted in the said offence. 6. Learned APP Ms. Jirga Jhaveri for the State has submitted that the learned Trial Court has appreciated all the evidence in proper perspective. That the panch witness has supported the case of the prosecution and the learned Trial Court has appreciated and relied upon the evidence of the panch witness. That the learned Trial Court has rightly convicted the accused and hence, no interference is required in the impugned judgment and order and the appeal of the appellant must be dismissed. 7. That the panch witness has supported the case of the prosecution and the learned Trial Court has appreciated and relied upon the evidence of the panch witness. That the learned Trial Court has rightly convicted the accused and hence, no interference is required in the impugned judgment and order and the appeal of the appellant must be dismissed. 7. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 8. It is settled law that in conviction appeals, the prosecution must prove the case beyond reasonable doubts and to bring home the charge against the accused, the prosecution has examined PW-1/Mahipatsinh Dipsinh Champavat at Exh.23 and this witness is the complainant who was working as a Police Inspector in the SOG, Banaskantha at Palanpur and the witness has stated that on 27.05.2014, he was present in the office when Police Inspector, LCB - Mr. A.H. Chaudhary called him in his office and the other staff members were present. That Mr. A.H. Chaudhary had received information that a gang was preparing to commit dacoity and robbery in the Banaskantha and hence, they called for the panch witnesses and drew the primary panchnama between 20.35 hours to 21.00 hours. That they went from Chhapi on the Dharewada road near the railway track and stood on the single track road and when the motorcycle came, they halted the motorcycle and another motorcycle which was coming behind with the lights turned off, suddenly switched on the lights and fled away. That the police caught the motorcycle which had three persons and they were Sharif Nagodar Sindhi (Dafer), Latif Nagodar Sindhi (Dafer) and Suleman Jumma Sindhi (Dafer), all residing at Ghanwada, Taluka Siddhpur and they were on motorcycle bearing registration no. GJ-2-BB-7002. That the police caught the motorcycle which had three persons and they were Sharif Nagodar Sindhi (Dafer), Latif Nagodar Sindhi (Dafer) and Suleman Jumma Sindhi (Dafer), all residing at Ghanwada, Taluka Siddhpur and they were on motorcycle bearing registration no. GJ-2-BB-7002. That they were checked and knives, catapults, stones and a screw driver were found from them and the necessary panchnama was drawn and the complaint which is produced at Exh.24 was filed. During the cross-examination, the witness has stated that Police Constable - Mukhesbhai had gone to call the panch witnesses at around 08.05 pm and he does not know as to how the secret information was received. That he had mentioned the names of only the police as witnesses in the complaint. 8.1 The prosecution has examined PW-2 Sanjaykumar Chimanlal Mathrani at Exh.26 and the witness is the panch witness who was present with the police officials at the place of incident. The witness has fully supported the case of the prosecution and has stated that the accused were found with the said weapons. The witness has identified all the weapons and has identified two accused before the learned Trial Court. The panchnama is produced at Exh.27. During the cross-examination, the witness has stated that he knows Police Constable - Mukhesbhai very well and Police Constable - Mukhesbhai had called him and he had gone to be a panch witness. That they had gone in the government vehicle. 8.2 The prosecution has examined PW-3 Mukhesbhai Dahyabhai at Exh.29 and this witness is the Head Constable who was one of the member of the police party that was at the place where the accused were arrested. The witness has fully supported the case of prosecution and the witness has stated that he had gone to call the panch witnesses and the primary panchnama was drawn up between 20.35 hours to 21.00 hours. The witness has identified the accused and the muddamaal before the learned Trial Court. During the cross-examination, nothing to support the case of the accused has come on record. The witness has identified the accused and the muddamaal before the learned Trial Court. During the cross-examination, nothing to support the case of the accused has come on record. 8.3 The prosecution has examined PW-4 Ranjitsinh Hariji at Exh.32 and this witness was working as an ASI, Buckle No. 1265 in the LCB Police Station and the witness was along with the police party at the place on the date of the incident and the witness has fully supported the case of prosecution and has identified all the accused and the muddamaal before the learned Trial Court. During the cross-examination, nothing to support the case of the accused has come on record. 8.4 The prosecution has examined PW-5 Amrabhai Chelabhai at Exh.33 and the witness was working in the LCB and he has stated that his superior officer - Police Inspector - Mr. Chaudhary had received information and had called the Police Inspector, SOG and other staff members and they had gone to the place of incident where they had arrested the three accused of Sessions Case No. 66/2014. The witness has identified the accused and the muddamaal before the learned Trial Court. During the cross-examination, the witness has stated that he was present at the Police Station when the secret information was received at 22.00 hours and they had left the LCB Office at 21.00 hours. That Dharewada is about 15 kms to 17 kms away from the LCB Office and they had taken about half an hour to reach the place. 8.5 The prosecution has examined PW-6 Laxmansinh Jelamsinh at Exh.36 and this witness was working as an ASI in the SOG, Banaskantha at Palanpur and the witness has fully supported the case of prosecution. The witness was the member of the police party and has identified the accused as also the muddamaal before the learned Trial Court. 8.6 The prosecution has examined PW-7 Pratapbhai Devabhai at Exh.39 and the witness has stated that the complaint was sent to him for registration and he had entered the details in the case diary and registered the offence at Chhapi Police Station being I C.R. No. 25/2014 under Sections 398 and 399 of the IPC and had sent the papers to PSI - Mr. Y.N. Belim for investigation. Y.N. Belim for investigation. 8.7 The prosecution has examined PW-8 Yakubkhan Mohammadkhan Belim at Exh.41 and this witness is the Investigating Officer who has stated that the investigation of Chappi Police Station being I C.R. No. 25/2014 filed under Sections 398 and 399 of the IPC was sent towards him and he had investigated the matter, recorded the statements of the connected witnesses and filed the charge-sheet against three accused which was registered as Sessions Case No. 66/2014. That on 17.04.2015, the accused Hanif Rahmatullah was arrested and hence, he filed the supplementary charge-sheet before the learned Sessions Court, Banaskantha. The witness has identified the muddamaal that was seized in Sessions Case No. 66/2014. During the cross-examination, the witness has admitted that no statements of any independent witnesses were recorded. 9. On re-appreciation of the entire evidence produced by the prosecution on record, the panchnama which is produced at Exh.27 states that the three accused Sharif Nagodar Sindhi (Dafer), Latif Nagodar Sindhi (Dafer) and Suleman Jumma Sindhi (Dafer) were arrested with knives and catapults and at that time, the police personnel and the independent panch witness - Sanjaykumar Chimanlal Mathrani were present and the panchnama was drawn up. The only independent witness that has been examined by the prosecution is PW-2 Sanjaykumar Chimanlal Mathrani who has identified two of the accused and the muddamaal but as far as the evidence against the appellant no. 2- Hanifbhai Rahimbhai @ Rahmatullah Dafer of Sessions Case No. 63/2015 is concerned, there is no iota of evidence to show that the appellant no. 2 was ever present at the spot. There is no documentary evidence to show that the appellant no. 2-accused Hanifbhai Rahimbhai @ Rahmatullah Dafer was arrested on 17.04.2015 and at that time any deadly weapons or any objectionable muddamaal was recovered from him. Moreover, the allegations against Hanifbhai Rahimbhai @ Rahmatullah Dafer is that he was on a motorcycle which was being driven without the headlights and when the motorcycle in front was halted by the police, the motorcycle behind switched on the lights, turned around and fled away. There is no iota of evidence that at that time, the police personnel and the panch witnesses were present the spot had seen Hanifbhai Rahimbhai @ Rahmatullah Dafer fleeing away and that any of them had recognized him and the registration number of the motorcycle has not been stated by any witness. There is no iota of evidence that at that time, the police personnel and the panch witnesses were present the spot had seen Hanifbhai Rahimbhai @ Rahmatullah Dafer fleeing away and that any of them had recognized him and the registration number of the motorcycle has not been stated by any witness. In the entire evidence of the prosecution, no Test Identification Parade has been conducted and even in the depositions of the police personnel and the panch witness who were present on 27.05.2014, at the time when the three co- accused were arrested, any description of Hanifbhai Rahimbhai @ Rahmatullah Dafer was made. Admittedly, the three co-accused of Sessions Case No. 66/2014 were arrested in the night time when there was no light whatsoever on the place where the police personnel were hiding and waiting for the accused. There is no iota of evidence that the secret information was received by the Mr. Chaudhary - Police Inspector, LCB Police Station that the accused were attempting to commit robbery or dacoity or that they had made preparation to commit dacoity. 10. That the learned Trial Court has misread the evidence regarding Hanifbhai Rahimbhai @ Rahmatullah Dafer - the accused in Sessions Case No. 63/2015 and without there being any iota of evidence regarding the presence of the said accused at the time of incident, has passed the impugned judgment and order of conviction which cannot be sustained. 11. It is settled principle of law that unless the evidence is clear, cogent and reliable, no conviction can be recorded and the learned Trial Court has not appreciated, that in the entire evidence, there is no evidence that the accused in Sessions Case No. 63/2015 was present at the place when the accused of Sessions Case No. 66/2014 were halted by the complainant and the other police personnel. That there is no reliable evidence to prove the involvement of the accused of Sessions Case No. 63/2015 and except for the bald allegations made by the complainant that when the accused of Sessions Case No. 66/2014 were arrested, they had stated that the accused of Sessions Case No. 63/2015 and one another person were on the other motorcycle. That there is no reliable evidence to prove the involvement of the accused of Sessions Case No. 63/2015 and except for the bald allegations made by the complainant that when the accused of Sessions Case No. 66/2014 were arrested, they had stated that the accused of Sessions Case No. 63/2015 and one another person were on the other motorcycle. As discussed above, the registration number of the motorcycle has not come on record and there is no iota of evidence to show that any of the police personnel had seen the accused of Sessions Case No. 63/2015 flee away and the learned Trial Court has misread the entire evidence relating to the accused of Sessions Case No. 63/2015 and has come to a wrong conclusion and convicted the appellant no. 2 under Section 399 of IPC. Hence, the judgment and order of conviction qua the appellant no. 2 passed in Sessions Case No. 63/2015 calls for interference and consequently the appeal qua the appellant no. 2 is allowed. That judgment and order of conviction passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 63/2015 on 29.07.2016 is quashed and set aside and the appellant no. 2-Hanifbhai Rahimbhai @ Rahmatullah Dafer - the accused of Sessions Case No. 63/2015 is acquitted from all the charges levelled against him. 12. The appeal qua the appellant no. 1 has become infructuous and the same is withdrawn and the appeal qua the appellant no. 2 is allowed. 13. The appellant no. 2 - Hanifbhai Rahimbhai @ Rahmatullah Dafer is acquitted from all the charges levelled against him and is hereby ordered to be immediately released from prison if he is not wanted in any other case. 14. Fine, if paid, be refunded to the appellant no. 2-Hanifbhai Rahimbhai @ Rahmatullah Dafer - the accused of Sessions Case No. 63/2015, after due verification. 15. All these observations made above are with regard to the appellant no. 2-Hanifbhai Rahimbhai @ Rahmatullah Dafer - the accused of Sessions Case no. 63/2015 only and in no way will affect the appeal qua the other accused, if pending before this Court. 16. Record and Proceedings be sent back to the Trial Court forthwith.