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CR.A/8320/2005 10/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 83 of 2005
With
CRIMINAL
APPEAL No. 255 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
===============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
===============================================================
DHANJIBHAI
MOHAN VAGHARI - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
===============================================================
Appearance :
MR
HARSHIT S TOLIA for Appellant(s) : 1 - 2.
MR. UR BHATT APP for
Opponent(s) :
1,
===============================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 23/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. These
two appeals arise out of a judgment and order rendered by learned 4th
Fast Track Court Judge at Gondal on 29.12.2004 in Sessions Case No.82
of 1996.
2. In
all seven persons were charged and tried
for the offences punishable under Sections 395, 397, 504, 506(2), 411
of I.P.C. and Section 135 of the Bombay Police Act. Original accused
No.1 and Nos.3 to 6 came to be convicted by the Trial Court for the
said offences and accused Nos.2 and 7 came to be acquitted by the
Trial Court on the basis of the evidence led before it by the
prosecution.
3. The present appeals are
preferred by original accused Nos.1,3,4 and 5, namely, Dhanji Mohan
Vaghri, Madhu Desha Vaghri, Himmat Desha Vaghri and Dhiru Panna
Vaghri respectively.
4. The prosecution case, in
brief, is that on 11.09.1993 between 2 to 4 hours in the early
morning of that day, the accused persons went to the house of the
first informant Champaklal Bhurabhai Vaniya located at village
Vasavad for committing robbery. They were all armed with the weapons
like dharia, knife and iron pipes etc. It is also a case of the
prosecution that they were also in black clothes and their faces were
masked, except the eyes. They break opened the doors of the house of
the first informant, entered into the house and committed robbery of
gold and silver ornaments and cash besides master shares. After
committing robbery at the house of the first informant, they tried to
rob branch of Bank of Baroda located on the ground floor of the house
of the first informant but failed and thereafter, they escaped. It is
also a case of the prosecution that during the course of this
transaction, the accused persons caused hurt to the first informant
and his wife with the help of deadly weapons on various parts of the
body.
4.1. The first informant
Champaklal Bhurabhai Vaniya lodged F.I.R. with the police on
11.09.1993 at about 9:30 hours, on basis of which, offences came to
be registered and investigation started. The investigation seems to
have spread over a long period and at the end of the investigation,
the Investigating Agency having found sufficient material, filed
chargesheet in the Court of learned J.M.F.C., Gondal. Since the
offences alleged against the miscreants were triable by the Sessions
Court exclusively, the learned Magistrate committed the case to the
Court of Sessions and Sessions Case No.82 of 1996 came to be
registered.
4.2. The charge was framed
against the accused persons at Exh.1. The accused persons pleaded not
guilty to the charge and claimed to be tried.
4.3. On the basis of the
evidence led by the prosecution, the Trial Court came to the
conclusion that the prosecution could not establish the charges
against original accused Nos.2 and 7, namely, Savjibhai @ Shivji
Mohan Vaghri and Ashok Radha Krishna @ Radha Kishan respectively and
recorded their acquittal by the judgment impugned herein. It would be
stated at this stage that no appeal is preferred against their
acquittal by the State.
4.4. The Sessions Court also
came to the conclusion that the prosecution was successful in
establishing charges against accused No.1 Dhanji Mohan Vaghri and
accused Nos.3 to 6 Madhu Desha Vaghri, Himmat Desha Vaghri, Dhiru
Panna Vaghri and Babu Popat Vaghri for the offences punishable under
Sections 395,397,504,506(2) of the Indian Penal Code and Section 135
of the Bombay Police Act. The Sessions Court awarded punishments as
under:-
Section 395 – R.I. for ten years
and fine of Rs.1,000/-, in default, to undergo S.I. for one year.
Section 397 – R.I. for seven
years and fine of Rs.1,000/-, in default, to undergo S.I. for one
year.
Section 504 of I.P.C. – R.I. for
two years and fine of Rs.500/-, in default, to undergo S.I. for
three months.
Section 506(2) of I.P.C. – R.I.
for seven years, fine of Rs.500/-, in default, to undergo S.I. for
three months and;
Section 135 of the Bombay Police
Act – R.I. for one year and fine of Rs.500/-, in default, to undergo
S.I. for three months.
It is against this conviction
and sentence, that the appellants-original accused persons
have preferred these appeals. The original accused Babu Popat
Vaghri has not preferred any appeal against conviction.
5. We have also heard learned
advocate Mr.Tolia for the appellants and learned A.P.P. Mr.U.R. Bhatt
for the respondent. We have also examined the Record and Proceedings.
6. Learned advocate Mr.Tolia
submitted that the prosecution case as it was, was that the incident
occurred in the early morning hours in the house of the first
informant. It has come in evidence of the first informant, his wife,
his son and his daughter-in-law that, at that time, there was
darkness in the house. It is also the case of the prosecution that
all the assailants were dressed in dark clothes and their faces were
masked, except their eyes. None of the witnesses to the incident,
therefore, could have identified the assailants. Mr.Tolia submitted
that in order to fix the identity, the Investigating Officer has
recorded their further statements wherein, the witnesses say that the
assailants had asked for water and in order to take water, they had
unmasked their faces and that is how they were identified. Mr.Tolia
submitted that this is a totally unbelievable and improper story.
6.1. Mr.Tolia further submitted
that Test Identification Parade which is the main foundation of
conviction is not beyond doubt. According to Mr.Tolia, before the
Test Identification Parade was conducted, the witnesses were shown
the photographs of the accused persons. He also states that there is
nothing in evidence to show that the precautions were taken to ensure
that the accused persons, who are brought for Test Identification
Parade, were not exposed to the witnesses. Mr.Tolia, therefore,
submitted that the Test Identification Parade ought not to have been
believed by the Trial Court.
6.2. Mr.Tolia further
submitted that the witnesses have, while identifying the
accused persons in the Court, committed mistakes in fixing the
identity. He submitted that the First Information Report is silent on
the names and identity of the assailants. It has not come in evidence
as to how the witnesses could recognise the accused persons by their
names after two years of the date of occurrence. If the witnesses
knew the assailants by their names, the first informant ought to have
given their names in the F.I.R. which is not done and if there was
some other reason for identifying the assailants, that aspect ought
to have come on record and in the absence thereof, it can be said
that there is no material to know as to how the witnesses have
identified the assailants as the appellants-convicts.
6.3. Mr.Tolia further submitted
that there is no recovery or discovery at the hands of any of the
convicts and, as such, there is no link established by the
prosecution to connect the convicts with the crime. Mr.Tolia
submitted that in light of the above defects in the prosecution case,
the Trial Court ought not to have recorded conviction and, in any
way, this Court may set aside the judgment of the Trial Court and
acquit the appellants of the charges levelled against them. The Trial
Court has committed error in recording conviction of the appellants
for the offences punishable under Sections 504 and 506(2) of the
Indian Penal Code in total absence of evidence.
6.4. By way of an alternative
submission, Mr.Tolia submitted that sentence awarded by the Trial
Court is too harsh for any of the offences and, if the Court is not
inclined to entertain the appeals on merits, at least the case of the
appellants may be considered sympathetically since they are in jail
for nearly seven years.
7. On the other hand, learned
A.P.P. has opposed these appeals. According to him, the witnesses
identified the assailants as the accused during cross-examination
and, therefore, that identification would deserve due weightage.
Mr.Bhatt, learned A.P.P. also submitted that the incident occurred
all of a sudden and, therefore, the first informant may not have
given names of the assailants but when he says that he had identified
the assailants in the light of streetlight soon after the incident,
there is no reason to disbelieve his version. Non recovery of
booty by itself may not be a ground for acquitting the accused.
According to Mr.Bhatt, the conviction has rightly been recorded and
the appeals, therefore, may be dismissed.
8. We have considered the rival
side submissions. From the Record and Proceedings, we find
that first informant – Champaklal Bhurabhai Vaniya was examined at
Exh.40, his wife was examined at Exh.41, his son Depak
Champaklal was examined at Exh.51 and Dipak’s wife Heenaben was
examined at Exh.88. The depositions run in number of pages but what
emerges therefrom, can be discussed as under:-
8.1. Undisputedly, there was
darkness in the house of the first informant where the robbery is
alleged to have been committed. The assailants were wearing masks on
their faces leaving open only the part of the eyes. In the F.I.R.,
the F.I.R. does not give the name of any of the assailants nor does
it give any description of any of the assailants. It does not emerge
from the F.I.R. that the assailants had asked for water and, while
taking water, they had unmasked their faces. It also does not emerge
from the F.I.R. that there was light coming from the windows with the
help of which, the assailants were identified by the first informant
or other witnesses.
8.2. It also emerges from the
evidence that the theory of the assailants asking for water and while
taking water unmasking their faces emerges from the statements
recorded of those witnesses after the Test Identification Parade.
This, in our opinion, is a clear attempt on the part of the
Investigating Agency to fill up the lacuna in the case of the first
informant and by this, an attempt is made to give colour of
truthfulness to the identification made by the witnesses in the Test
Identification Parade.
8.3. It also emerges from the
evidence of these witnesses that while deposing before the Court
witnesses Vinaybala Champaklal (Exh.41) and Dipak Chempaklal
(Exh.51) have not identified the accused persons in their examination
in chief. Unfortunately, the defence has put certain questions
regarding identity of the accused persons and during the course of
examination, the witnesses have tried to identify the accused persons
by their names as assailants but in doing so, they have committed
mistakes and have fixed the identity wrongly, incorrectly or
erroneously. As a result, the accused persons were identified by the
names of other accused persons.
9. It also emerges from the
evidence of the Investigating Officer that the photographs of the
accused persons were shown to the witnesses before Test
Identification Parade. It also emerges from the evidence that
photograph of one Anakbhai Kabubhai Kathi was also shown to the
witnesses during the course of investigation. But, thereafter, what
happened and why that Anakbhai is not arraigned as an accused is not
explained by the prosecution.
9.1. It also emerges from the
evidence that no booty is recovered or discovered from any of the
accused persons.
9.2. It also emerges from the
evidence of Executive Magistrate Dipakbhai Shukla at
Exh.146 that no precautions were taken to ensure that the accused
persons were not exposed before exposing to public or to witnesses,
before Test Identification Parade was conducted.
10. It is also on the record that
the Investigating Officer was present when the Test Identification
Parade was conducted by the Executive Magistrate. The evidence is
totally silent, so far as charges of offences punishable under
Sections 504 and 506(2) are concerned. No weapon is recovered from
any of the accused or discovered by any of them.
11. In light of foregoing salient
features and the prosecution evidence, we are of the view that the
Trial Court erred in recording their convictions and sentenced them.
The appeals are allowed. The judgment
and order of Sessions Court, Gondal dated 29.12.2004 in Sessions Case
No.82 of 1996 recording conviction of the appellants impugned in the
appeals is hereby set aside. The appellants are acquitted of all the
charges levelled against them. They be set at liberty forthwith, if
not required in any other case. Fine, if paid, shall be refunded to
them.
(A.L.DAVE,
J.)
(J.C.UPADHYAYA,
J.)
Hitesh
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