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CR.A/18820/2003 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 188 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
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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 ?
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ARJUN
RAMBACHCHAN PASVAN - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR
PRAVIN GONDALIYA for Appellant(s) : 1,
MR PD BHATE, APP for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 17 & 18/11/2008
ORAL
JUDGMENT
The
instant appeal preferred under Section 374 (2) of Criminal Procedure
Code is directed against the judgment and order passed by learned
Sessions Judge, Rajkot in Sessions Case No.63 of 2001 dated
19.12.2002 by which the learned Judge convicted the appellant Arjun
Rambachchan Pasvan for the offence punishable under Section 397 for
7 years of R.I. and a fine of Rs.25,000/- in default 1 year of S.I.
The short facts
giving rise to the prosecution case are stated herein below.
The
appellant in tandem with the another accused hatched a conspiracy to
rob the Baldevbhai Parshotambhai Patel who was working in one
Angadiya Firm situated at Street No.23, Vijay Plot at Rajkot. With a
view to commit the robbery, the original accused No.1-Valo @ Vijay
Bhikhabhai Bharvad brought one Hero Honda Motorcycle from Race
Course Road at Rajkot and original accused No.4-Virendra @ Billu
Ramcharan brought prohibited weapon from the Bihar State and the
present appellant also acquired the said weapons and went to place
where the incident took place. When the victim Baldevbhai
Parshotambhai Patel was coming out from the shop, he was assaulted
by the appellant with the other accused persons on 23.3.2000 at
about 19.45 hours and the appellant fired two rounds from his
revolver towards the injured Baldevbhai Parshotambhai Patel and
after committing the robbery, he along with other accused fled from
the scene of offence. A complaint was given by Chandrakantbhai
Tribhovandas Patel on 23.3.2000 vide Exh.39 to the Police Inspector,
Malaviya Nagar, Police station, Rajkot city. On the strength of the
complaint given by Chandrakantbhai Tribhovandas Patel, investigation
was set in motion. The Investigating Officer visited the place of
incident and prepared the panchnama with regard to the scene of
offence in presence of panch-witnesses. The panchnama of the seizure
of the clothes put on by the victim and the recovery of bullet was
also prepared. The panchnama with regard to seizure of Hero Honda
Motorcycle used in the commission of offence was prepared in the
presence of panch witnesses. The panchnama of the recovery of the
Auto Rickshaw as well as T.V. which was purchased from the amount
recovered from the loot was also prepared in the presence of
panch-witnesses. The muddamal which was recovered which was sent to
FSL for the purpose of detailed analysis. The injured was sent to
Hospital for providing immediate treatment. The Investigating
Officer prepared the panchnama with regard to the identification
parade. On receipt of the injury certificate, the report form FSL
etc., the appellant along with other accused persons was
charge-sheeted and produced before the Chief Judicial Magistrate who
in turn committed the case to the Sessions Court under Section 209
of the Criminal Procedure Code as the case is exclusively triable by
the Sessions Court. The charge against the appellant and other
accused have been framed vide Exh.1 for the offence punishable under
Sections 307, 397, 120-B, 188 and 114 of IPC as well as 25(1)(A),
(1-A), (1-AA) and 27 of the Arms Act. The appellant pleaded not
guilty to the charge the levelled against him. Hence, the matter was
set down for full fledged trial, before the learned Sessions Court.
The
prosecution has, in order to prove the guilt against the appellant,
examined the following witnesses, they are as under:
PW-1,
Dr.Gaurangbhai Dharmeshchandra Dave at Exh.30.
PW-2,
Shri Navalsinh Mansinh Gohil at Exh.34.
PW-3,
Shri Chandrakantbhai Tribhovandasbhai Patel at Exh.38.
PW-4,
Shri Baldevbhai Parshotambhai Patel at Exh.40.
PW-5,
Shri Mohmadbhai Hanifbhai at Exh.41.
PW-6,
Shri Dinkarrai Kalyanjibhai Vyas at Exh.44.
PW-7,
Shri Suryakantbhai Prahladbhai Patel at Exh.46.
PW-8,
Shri Maganbhai Popatbhai at Exh.48.
PW-9,
Shri Nanubhai Ghoghabhai at Exh.50.
PW-10,
Shri Bharatbhai Ratilal at Exh.52.
PW-11,
Shri Jayrajbhai Mavjibhai Desai at Exh.54.
PW-12,
Shri Pareshbhai Chhaganbhai at Exh.56.
PW-13,
Shri Kantilal Naranbhai Patel at Exh.58.
The
prosecution has also placed reliance on following documentary
evidence, which are as under:
(1) The
compliant given by Chandrakantbhai Tribhovandas Patel
dated 23.3.2000 vide Exh.39.
(2)
The letter written to the Executive Magistrate, Rajkot city dated
28.7.2000 by PSI, Anti Theft Squad (ATS) for identification parade
vide Exh.35.
(3)
The letter written to the PSI, ATS, Rajkot city by the Executive
Magistrate, Rajkot vide Exh.36.
(4)
The panchnama under Section 162 of Criminal Procedure Code vide
Exh.37.
(5)
The panchnama of the place of incident which was prepared in the
presence of panch witnesses vide Exh.47.
(6)
The panchnama of the recovery of clothes put on by the injured
Baldevbhai Parshotambhai Patel and the bullet
which was recovered from his body vide Exh.49.
(7)
The list of the articles received by the Angadiya Firm at Exh.55.
(8)
The document at Exh.62 is the panchnama with regard to the
identification of the muddamal which was seized or recovered in the
commission of offence.
(9)
The panchnama at Exh.61 is with regard to the recovery of Rs.5,000/-
from the possession of accused Valabhai Bhikhabhai Bharvad given for
use to someone.
(10)
The panchnama at Exh.62 is the muddamal identification
panchnama.
(11)
The document at Exh.63 is the note sent to FSL, the report given by
the FSL and the detailed analysis collectively, etc. to the present
case.
During
the trial, the further statement of the appellant was recorded under
Section 313 of the Criminal Procedure Code. The appellant was
informed about incriminating evidence and the circumstances against
him in the case. The appellant submitted that a false case was
foisted on him and he has been falsely implicated in the commission
of offence.
The
learned Sessions Judge after going through the entire gamut of oral
deposition and the documentary evidence adduced by the prosecution
held the incident in question took place on 23.3.2000 at about 8
O’Clcok at night. The appellant along with the other accused persons
hatched the conspiracy to commit the robbery of the employee of the
Angadiya firm Baldevbhai Parshotambhai Patel to the tune of
Rs.4,05,660/-. With a view to commit the robbery of the said person,
they were armed with the weapons and after resorting to firing and
causing injury to the victim Baldevbhai Parshotambhai Patel on the
vital part of the body, committed the robbery. The learned Sessions
Judge held that the deposition adduced by PW-4, Baldevbhai
Parshotambhai Patel vide Exh.40 regrading the date of incident and
the manner in which he was assaulted by the appellant along with
other accused persons gets necessary corroboration from PW-5,
Mohmadbhai Hanifbhai vide Exh.41 to the present case. Dr.Gaurangbhai
D.Dave PW-1 at Exh.30 gave the treatment to the injured when he was
brought to the Hospital after sustaining injuries on 23.3.2000. He
has deposed in his testimony as to how Baldevbhai Parshotambhai
Patel sustained injuries and he also gave the injury certificate to
Baldevbhai Parshotambhai Patel. As the victim sustained serious
injuries, he was immediately operated upon and bullet was also
recovered from his body. Thus, the deposition given by the victim
get necessary corroboration from the deposition of Mohmadbhai
Hanifbhai PW-5 at Exh.41 and Dr.Gaurangbhai D.Dave, PW-1, at Exh.30
and thus, the prosecution has established the involvement of the
appellant in the commission of offence. The learned Judge further
held that the oral deposition is supported by the documentary
evidence such as the panchnama of the place of incident at Exh.47,
the complaint given by Chandrakanbhai Patel vide Exh.39, the
certificate of injury issued by Dr.Gaurang Dave vide Exh.31, the
identification parade vide Exh.36, and the panchnama prepared in
respect thereof vide Exh.37, the panchnama vide Exh.49 with regard
to the recovery of the clothes put on by the victim as well as
recovery of the bullet, the panchnama with regard to the seizure of
Hero Honda Motorcycle which was used in the commission of offence
vide Exh.53, the FSL report vide Exh.63, etc. The learned Judge has
also placed reliance on other deposition adduced by the prosecution
more particularly, the deposition adduced by Navalsinh Gohil PW-2,
at Exh.34. Chandrakantbhai T.Patel, PW-3, Exh.38, Suryakantbhai
Patel PW-7, Exh.46, Jayrajbhai Desai PW-11, Exh.54, Pareshbhai
Chhaganbhai, PW-12, Exh.56 and the deposition of PSI, Kantilal
Patel, PW-13, Exh.58 and held that considering the deposition
adduced by the prosecution witnesses and the documentary evidence,
the prosecution has established each and every link connecting the
appellant with the commission of offence punishable under Section
307 of the IPC. The learned Judge further held that the appellant
along with other accused persons, Vala @ Vijay Bharvad committed
assault with the revolver on Baldevbhai Parshotambhai Patel and as a
result of which he sustained serious injuries. After sustaining
injuries, in his scuffle the bag containing the amount which was
lying on the floor was looted and thus, the appellant has also
committed the offence punishable under Section 397 of IPC. Thus, it
is held by the learned Sessions Judge that the prosecution has
proved the involvement of the appellant in the commission of offence
under Section 307 read with Section 397 of IPC and imposed the
sentence of R.I. for 7 years and fine of Rs.25,000/- in default
further S.I. of 1 year. However, no separate sentence has been
imposed by the learned Judge while convicting the appellant under
Section 307 read with Section 188 of IPC.
The
learned advocate representing the appellant submitted that the order
passed by the learned Sessions Judge is bad in law and the contrary
to the fact and evidence on record of the case and therefore, it
requires to be quashed and set aside. The learned advocate placing
reliance on the oral deposition and the documentary evidence adduced
by the prosecution submitted that on a bare perusal of the evidence
produced by the prosecution, the case has not been established by
the prosecution against the appellant beyond all reasonable doubts.
The case of the prosecution even does not get the necessary
corroboration by the independent witness and therefore, the
appellant requires to be acquitted. The victim had not identified
the appellant during the course of identification parade and
therefore, the identification parade cannot be relied upon to
convict the appellant and the panchnama with regard to the
identification parade requires to be discarded. The learned advocate
submitted that identification parade was carried out after long
lapse of time i.e. nearly after the 4 months period and therefore,
the same cannot be believed as true and therefore, it requires to be
discarded.
The
learned advocate placed reliance on the deposition adduced by
Executive Magistrate, Navalsinh Gohil PW-2, at Exh.34 and submitted
that the deposition adduced by Navalsinh Gohil is full of
contradiction and therefore, it cannot be relied upon to convict the
appellant with the commission of offence. He made the arrangement to
call two panch witnesses. The two accused were also also produced in
his presence and at the end of cross-examination, he has deposed in
his testimony that panch witnesses were called by the Investigating
Officer. In view of the contradictions in the deposition adduced by
Navalsinh Gohil, the case of the prosecution would fall flat on the
ground as the prosecution has not established the involvement of the
appellant in the commission of offence in a conclusive manner and
the appellant is required to be exonerated for the offence
punishable under Sections 307, 397 and 188 of IPC. The learned
advocate further placed reliance on the deposition adduced by
Baldevbhai Parshotambhai Patel PW-4, at Exh.40, and submitted that
Baldevbhai Parshotambhai Patel has not, during the course of
deposition, indicated the involvement of the appellant in the
commission of offence. Only during the course of the deposition, he
has identified the appellant as he was present in the Court. While
the deposition adduced by appellant Baldevbhai Parshotambhai Patel
is not trustworthy so as to indicate the involvement of the
appellant in the commission of offence. The corroboration which the
prosecution is sought to establish by adducing deposition of
Chandrakantbhai Patel, PW-3, Exh.38 is full of contradictions and
therefore, it cannot be believed to convict the appellant for the
offence punishable under Sections 397, 307 and 188 of IPC.
Dr.Gaurang D.Dave, PW-1, is examined at Exh.30, and it is true that
he has deposed in his testimony that the incident in question took
place on 23.3.2000 at 8 O’Clcok at night. The injured was brought to
the Hospital when he was discharging his duties at night hours in
the Hospital. As per the say of Dr.Gaurang D.Dave as the injured had
sustained the serious injury, operation was performed on him and
bullet was taken out from the right hand side of his body. He was
given blood transfusion during the operation. Dr.Gaurang Dave has
given the Injury Certificate to the injured Baldevbhai Parshotambhai
Patel vide Exh.31 and narrated the injury sustained by him. However,
considering the oral deposition adduced by the victim as well as the
complainant and considering the contradictions in the deposition,
the prosecution story cannot be believed and the appellant is
required to be exonerated.
The
learned advocate submitted that oral deposition adduced by the
prosecution has not supported the prosecution story with regard to
the involvement of the appellant in the commission of offence, the
prosecution has
to bank upon the deposition adduced by the
Investigating Officer in order to prove the documentary evidence
such as panchnama of place of incident, panchnama of the clothes
put on by the victim and recovery of bullet from the body of the
victim, the panchnama on the recovery of the motorcycle used in the
commission of offence, panchnama of the recovery of auto rickshaw
and T.V.etc. The learned advocate submitted that no recovery of the
weapon which was used in the commission of offence was discovered
during the course of investigation. The appellant was in fact in
custody in connection with the offence registered vide. Criminal
Case bearing No.98 of 2000 with Malaviya Nagar Police Station. There
is also no recovery of the looted item i.e. the amount in question
to the tune of Rs.4,05,660/-. In view of the aforesaid facts and
circumstances of the case and as the prosecution has not established
the involvement of the appellant in the commission of offence by
adducing cogent, convincing and conclusive evidence, the appellant
is required to be exonerated forthwith.
The
learned advocate further submitted that the documentary evidence,
the panchnama of the place of incident, the panchnama of the seizure
of the clothes put on by the victim as well as the recovery of
bullet from the body of the victim the panchnama with regard to the
recovery of the Hero Honda which was used in the commission of
offence, the panchnama with regard to the identification parade,
etc. is a corroborative piece of evidence. When the prosecution has
not established each and every link connecting the appellant with
the commission of offence, the corroborative piece of evidence would
not carry the prosecution case any further. Thus, the learned
advocate submitted that as the evidence adduced by the prosecution
bristles with
contradictions the benefit of the same is required to be given to
appellant and he be acquitted for the offence punishable under
Sections, 397, 307 and 188 of IPC.
The
learned APP representing the State submitted that prosecution has
examined the injured Baldevbhai Parshotambhai Patel PW-4 at Exh.40.
On perusal of the deposition of Baldevbhai Parshotambhai Patel, it
becomes clear that incident in question had taken place on 23.3.2000
at about 8 O’Clcok. He has further deposed in his testimony that
when he was proceeding from Vijay Plot Office to Soni Bazar, he was
having one bag containing Rs.4.5 lacs (approximately). When he
reached near Ram Chamber at Gondal Road, he heard the big sound and
immediately when he looked at the cycle, he
found that serious injuries were sustained by him on
the back side of his body. When he sustained the injuries, the
amount containing Rs.4.5 Lacs (approximately) was lying in the bag
on the bicycle. On sustaining injuries, he became unconscious. He
regained his consciousness when he was admitted in the Hospital. He
has deposed in his testimony that the person who started firing put
on shirt of black colour
and he came on a motorcycle. During the course of the deposition, he
had identified the person who came on the motorcycle. The
deposition adduced by Baldebhai Parshotambhai Patel gets necessary
corroboration from the deposition of PW-3, at Exh.38 Chandrakantbhai
Patel. He was sitting in his office situated in Soni Bazar and at
the marginal
point of time , he received the
telephonic message from Jagdish Furniture that one person from his
firm met with an accident. When he reached the place of the
accident, Baldevbhai Parshotambhai Patel was lying in
the pool of blood near the shop of
Jagdish Furniture and he had sustained the injuries on the back
portion of his body. Thereafter, Baldevbhai Parshotambhai Patel was
taken to the Madhuram Hospital for immediate treatment. The
complaint was given by Chandrakantbhai Tribhovanbhai Patel. The
deposition given by Baldevbhai Parshotambhai Patel gets necessary
corroboration from the deposition of Chandrakant Tribhovanbhai Patel
PW-3, Exh.38. The prosecution has examined Dr.Gaurang D.Dave, PW-1,
Exh.30. Dr.Gaurang D.Dave has deposed in his testimony about the
date of incident and the injury sustained by Baldevbhai
Parshotambhai Patel. The nature of injury sustained by Baldevbhai
Parshotambhai Patel has been narrated by Dr.Gaurangbhai Dave. In his
deposition, he had performed the operation on Baldevbhai Patel and
recovered one Bullet. The injury certificate was given by Dr.Gaurang
D.Dave and same is produced at Exh.31. Thus, the learned APP
submitted that the deposition given by injured Baldevbhai
Parshotambhai Patel is supported by the complainant Chandrakantbhai
Tribhovandas Patel at Exh.38 and the complaint at Exh.39 as well as
oral deposition given by Dr.Gaurang Dave at Exh.30 to the present
case.
The deposition
adduced by Mohmadbhai Hanifbhai PW-5, at Exh.41 makes it abundantly
clear that the incident in question took place on 23.3.2000 and he
had seen the incident which took place on 23.3.2000. The injury
sustained by the victim Baldevbhai Parshotambhai Patel has been
narrated by this witness vide Exh.41. Even the appellant was
identified during the course of identification parade which was
carried out subsequently. Thus, deposition of Mohmadbhai Hanifbhai
vide Exh.41 provides ample corroboration to the deposition adduced
by Chandrakantbhai and Baldevbhai. The panchnama with regard to the
identification parade vide Exh.37 supports the prosecution story
with regard to the involvement of appellant in the commission of
offence. The prosecution has placed reliance on the deposition of
Navalsinh Gohil PW-2, Exh.34. He has deposed in his testimony that
on 23.7.2000 he was working as City Mamlatdar at Rajkot. He received
yadi from PSI-ATS from Malaviya Nagar Police Station. In pursuance
of the yadi received by him, the identification parade was carried
out on 28.7.2000 at about 5 O’Clock. During the course of
identification parade, all precautions were taken by him. During the
identification parade original accused No.1, namely, Vala @ Vijay
Bharvad and Arjun Rambachan Paswan, present appellant were
identified and the panchnama with regard to the same was prepared.
Thus, the prosecution has provided enough corroboration indicating
the involvement of appellant in the commission of offence. The
deposition adduced by Navalsinh Gohil PW-2, Exh.34 gets necessary
corroboration from the deposition of Jayrajbhai Desai PW-11, at
Exh.54, Pareshbhai Chhaganbhai PW-12, Exh.50 and the deposition of
PSI, Kantilal Patel PW-13, Exh.58. The deposition adduced by
Kantilal Patel at Exh.58 makes it clear that the investigation
entrusted to him was carried out in most
scrupulous manner and there was no lacuna in the
investigation carried out by him. As per the say of the PSI-
Kantibhai Patel, on the receipt of the complaint, the place where
the incident in question took place was visited and the panchnama
with regard to the same in the presence of the panch witnesses
was prepared. The panchnama with regard to the
recovery of weapon which was used in firing was also prepared. The
Executive Magistrate was also called by him for the purpose of
carrying out the identification parade. The muddamal which was
recovered was sent to FSL and on the receipt of the report of the
FSL and other material on record of the case, the appellant along
with other accused persons were charge-sheeted. He had identified
the muddamal articles during the course of the deposition adduced by
him. Thus, the learned APP submitted that considering the entire
oral deposition and the documentary evidence, the prosecution has
proved each and every link connecting the appellant with the
commission of offence punishable under Sections 397, 307 read with
Section 188 of IPC. Even on perusal of the reasons given by the
learned Sessions Judge, the learned Sessions Judge has also
considered the entire gamut of oral deposition and documentary
evidence produced by the prosecution and convicted the appellant for
the offence punishable under Sections 397, 307 read with Section 188
of IPC. Thus, as there is no infirmity in the judgment rendered by
the learned Sessions Judge in convicting the appellant, no
interference is called for in the appeal preferred by the appellant
is liable to be dismissed.
I
have heard the learned advocate Shri Pravin Gondaliya for the
appellant and learned APP, Shri P.D.Bhate for the State at length
and in great detail. This Court has also undertaken a complete and
comprehensive appreciation of all vital features of the case and the
entire evidence on record with reference to broad and reasonable
probabilities of the case.
On
re-appreciation and reevaluation of the entire evidence on record of
the case, it becomes clear that the incident in question took place
on 23.3.2000 at about 7.30 in the evening near Vijay Plot at Rajkot.
On the date of the incident, the injured Baldevbhai Parshotambhai
Patel was returning from the office of Vijay Plot to Soni Bazar and
was having bag containing Rs.4.50 Lacs (approximate). When he was
proceeding towards another office situated in Soni Bazar,
he was assaulted by appellant.
On sustaining bullet injuries, he became unconscious and
subsequently regained consciousness when he was admitted in the
Hospital. He has deposed in his testimony that the person who
resorted to firing had put on black colour shirt and he came on the
motorcycle at the place of incident. During the course of
deposition, he had identified the appellant as one of assailant. On
perusal of the cross-examination, nothing turns out from his
cross-examination so as to dislodge his version given in the
examination in chief. The deposition adduced by Baldevbhai
Parshotambhai Patel gets necessary corroboration from the deposition
adduced by Mohmadbhai Hanifbhai PW-5, at Exh.41. Mohmadbhai
Hanifbhai has deposed in his testimony that the incident took place
on 23.3.2000. On the date of the incident he went to the shop
situated in the Vijay Plot when he was returning from the shop
situated in the Vijay Plot at about 7.30 to 8.00 O’Clock, he saw one
person on the motorcycle
who resorted to firing. The person who was on the
bicycle, Baldevbhai Parshotambhai Patel sustained injury in the
firing. The person who was on the motorcycle took the bag containing
to the amount to the tune of Rs.4,05,660/- which was on the bicycle
and fled from the seen of offence. He was also called to identify
the accused in the identification parade in the office of Mamlatdar.
He had identified two accused persons and one of them as per his
say, was present in the Court. Thus, Mohmmad Hanif had not only seen
the incident but identified the appellant during the identification
parade as well as during the course of deposition in the Court. The
complaint was given by Chandrakantbhai Patel who has been examined
vide Exh.38 Chandrakantbhai had deposed in his testimony that on the
date of incident when he was sitting in his office situated in Soni
Bazar at Rajkot he received telephonic message from Jagdish
Furniture that one person met with an accident and sustained the
injuries. When he reached the place of incident Baldevbhai was lying
in
pool of blood near the shop of the Jagdish Furniture.
He was not fully conscious when he reached the place of incident,
Baldevbhai narrated the incident. Baldevbhai was subsequently taken
to the Madhuram Hospital for providing immediate treatment. The
complaint was given by Chandrakantbhai Patel vide Exh.39. In the
complaint, he has narrated as to the manner in which the incident in
question took place on 23.3.2000 at about 21.00 hours.
He has further narrated as to how the injured was
assaulted by the appellant who came on the motorcycle and looted the
injured. The Doctor who gave the treatment to the injured has been
examined by the prosecution at Exh.30. Dr.Gaurang D.Dave has deposed
in his testimony that when he was present in the Hospital at 8.15 on
23.3.2000, one person named Baldevbhai Patel was brought to the
Hospital. He had sustained serious injuries and therefore, operation
was performed on Baldevbhai and one Bullet was recovered from his
body. He was also given blood transfusion. The injury certificate
was given by Dr.Gaurang D.Dave and the same is produced vide Exh.31.
On perusal of the injury certificate, the injury sustained by the
injured has been narrated therein. The injuries are narrated by
Dr.Gaurang D.Dave in an elaborate manner.
The
prosecution, in order to provide corroboration has examined
Navalsinh Gohil PW-2, vide Exh.34. Navalsinh was working as a City
Mamlatdar, on 27.7.2000 at Rajkot. He had received one yadi from
PSI, ATS to carry out the identification parade. In pursuance of the
yadi received by him, the identification parade was carried out on
28.7.2000 at about 5.30 p.m. in the evening. During the course of
identification parade, the appellant and another accused Valo @
Vijay Bharvad were identified. The panchnama with regard to the
identification parade was prepared in the presence of panch
witnesses.
The
prosecution has also examined the panch witnesses in order to bring
home the guilt against the appellant. However, some of the panch
witnesses have turned hostile and not supported the prosecution case
and therefore, prosecution has placed heavy reliance on the
deposition adduced by Investigating Officer Kantibhai Patel, PW-13,
vide Exh.58. On perusal of the deposition adduced by Kantibhai
Patel, it becomes clear that the investigation was carried out in a
most scrupulous manner. The panchnama with regard to the place of
the incident was prepared. The muddamal article which was recovered
was sent to FSL for the detailed analysis. Even the weapon which was
used in the commission of
offence was recovered and the panchnama with regard to the same was
prepared. The The panchnama with regard to the place of the incident
and the clothes put on by the victim and the recovery of the bullet
was prepared. This
witness has identified the muddamal articles shown to him during the
course of the deposition. On perusal of the cross-examination,
nothing turns out from his cross-examination to dislodge his version
given in the examination in chief. The prosecution has also
produced the panchnama of the place of incident vide Exh.47, the
panchnama with regard to the recovery of the clothes put on by the
victim and recovery of bullet vide Exh.33, the panchnama of the
identification parade vide Exh.36, the panchnama with regard to the
seizure of Hero Honda Motorcycle which was used in the commission of
offence, the panchnama with regard to identification of muddamal
articles vide Exh.62, etc. to the present case. These documentary
evidence, in my considered view, provide ample corroboration to the
prosecution story indicating the involvement of the appellant in the
commission of offence.
The
prosecution has produced the detailed analysis carried out by the
FSL vide Exh.63 which provides further corroboration to the
prosecution story about the assault committed by the appellant on
the victim and the injuries sustained by the victim during the
attack. Thus, the prosecution has on the basis of the over all
evidence adduced in the present case established the entire link
connecting the appellant with the commission of offence.
For
the foregoing reasons, since the learned Sessions Judge, while
convicting the appellant for the offence punishable under Sections
307, 397 and 188 of Indian Penal Code and imposing sentence for a
period of 7 years of R.I. and a fine of Rs.25,000/- and in default
S.I. for 1 year has not committed any infirmity, the order of
conviction and sentence passed by the learned Judge requires to be
upheld and therefore, no interference is called for in the present
appeal and the appeal is hereby dismissed. Muddamal articles is to
be destroyed in terms of the order passed by the learned Sessions
Judge, Rajkot after the appeal period is over.
Accordingly,
this appeal is dismissed.
(H.B.ANTANI,
J.)
ashish//
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