JUDGMENT
Akil Kureshi, J.
1. These appeals arise out of common Session Case No. 67 of 2003 which came to be disposed of by learned Additional Sessions Judge, Bharuch by judgment and order dated 14.5.2004. By the said judgment, learned Judge was pleased to convict the present appellants who are original accused Nos.2, 3 and 5 in the said sessions case for offences punishable under Section 342, 365, 395 and 392 of IPC. They were sentenced to R.I. for one year for offence under Section 342, R.I. for 5 years for offence under Section 365 and R.I. for 7 years for offence under Section 392, no order under Section 395 was passed. All sentences, however, were made concurrent. They were also directed to pay fine.
1.1 It may be noted that original accused No. 1, Pokhraj Gotaram and original accused No. 4, Sajjansing Vijaysing were also similarly convicted and sentenced by the learned Judge. They had filed Criminal Appeal No. 759 of 2005 which came to be dismissed by this Court by judgment dated 10.8.2007.
1.2 Original accused No. 6, Mukeshbhai Shah, was convicted for offence punishable under Section 411 of IPC and sentenced to R.I. for 30 months. His appeal, however, is not before me.
1.3 It may be noted that Sukhvirsing, original accused No. 2, is the appellant in Criminal Appeal No. 1008 of 2004, Haribhai Devaji, original accused No. 3, is the appellant in Criminal Appeal No. 1007 of 2004 and Jitendrasing Kaptansing, original accused No. 5, is the appellant in Criminal Appeal No. 1339 of 2006.
2. As per charge Exh.5, it was alleged that on 21st September, 2001, original complainant, Parshuram Gandu, was driving his truck No. KA-22-A-5992 on national highway No. 8. In his truck, he was carrying MRF tyres. When the truck was passing near Zanoor Cross Road, the accused came in a truck No. MP-09-541 from behind, overtook the truck of the complainant, forced him to stop his truck and forcibly entered the cabin of the truck. The accused pushed the driver from the driving seat and beat him up before tying him up. They took over the truck. Later on the complainant was left on the road. The accused took away the cash which the driver and the cleaner of the Truck were carrying and also decamped with the tyres in the truck and thereby committed robbery worth Rs. 13,35,440/-.
3. It appears that the accused were later on detained under suspicious circumstances and were thereafter, offered for identification parade. They were identified by the complainant.
4. It may be noted that though virtually all panch-witness turned hostile in the present case, the complainant has fully supported the prosecution case. Additionally, there was also the evidence of Executive Magistrate who had carried out the Test Identification Parade (T.I.P.) as well as evidence of I.O. to reveal the manner in which the investigation was carried out. We have also on record evidence of Dr.Kalpanaben Indravadan who had treated both driver and the cleaner of the Truck for multiple injuries on the bodies.
5. Complainant, Parshuram Gandu, PW-9, was examined at Exh.25. He stated that he was the driver of Truck No. KA-22-A-5922. The conductor of the Truck was one Farshuram. At the time of the incident, he was driving his truck from Goa to Ahmedabad carrying 150 Tyres of MRF Company. He had reached near Nabipur at about 12 O’Clock in the night. At that time, two trucks came from behind, one truck followed his truck and after overtaking him, intercepted his truck. Some 7 or 8 people climbed in his truck and started beating him and the cleaner. They were tied up with ropes. They were lifted and thrown in the other truck. Later on, they were thrown on the side of the road in the bushes at night. They came to the road rolling and a passerby untied his hands. They, thereafter, reached the hotel on the road side and informed the Police who were passing in a jeep, who carried them to the Police Station for filing the complaint. He had identified the accused before the Court.
5.1 In the cross-examination, though he agreed that on the national highway, there was traffic through out the day, he explained that since it was raining on that day, there was less traffic. He admitted that in his complaint he stated that three people had boarded his truck.
6. Vasantbhai Patel, PW-11, Exh.31 was the Executive Magistrate and who had carried out the test identification parade of the accused on 4.10.01. He described the manner in which the procedure was followed. Though, the complainant could not identify original accused No. 4, he successfully identified the other accused including the present appellants.
7. Panchnama of test identification parade was produced at Exh.35. He also recored the fact that the complainant identified accused No. 1, 2, 3 and 5 during the Test identification Parade.
8. Indravadan Kanubhai, PW-14, Exh.39 was the police witness. He stated that on the night of the incident, when he was discharging his duties on a mobile van, at the night time near Diamond Hotel, he found two people in frightened condition. Upon inquiry, they told him that their truck carrying tyres had been stolen and they had been thrown out of the truck.
9. Dr.Kalpanaben Indravadan, PW-17, Exh.46 had treated the complainant-Parshuram, as well as his cleaner, Farshuram Hanuman at Civil Hospital, Bharuch where she was discharging her duties as Medical Officer. She had examined the patients on 21st September, 2001. They had given the history of having been beaten up by unknown people. She found multiple injuries on various parts of the bodies of both the persons.
10. Dharmendrasinh Sarjusinh, PW-18, Exh.50 was police witness who had on information arrested the original accused Nos.1 to 5 on 28.9.2001. He stated that he had arrested these accused with country made gun and they had made preparation for committing dacoity. During the interrogation, they disclosed their involvement in the robbery of the tyres of the Truck from the national highway. They led the police to the muddamal articles, namely, the tyres from the godown of one Mukesh Dhirajlal.
11. Shri Kaushik Pandya, PW-20, Exh.56, was the Investigating Officer. He narrated the manner in which the investigation was carried out.
12. Primarily, on the basis of the above evidence, the prosecution sought to prove the charges.
13. Having heard the learned advocates appearing for the parties and having perused the evidence on record, I find that there was ample evidence to hold that the present appellants were involved in the offence. The appellants were arrested when they had made preparation for committing dactoity. Their arrest led to the discovery of the earlier stolen articles, namely, the truck and the MRF tyres.
14. More, importantly, the complainant Parshuram PW-9 successfully identified all these accused in the Test Identification Parade carried out on 4.10.2001. The incident took place on 21st September, 2001. There was thus a very short time gap between the incident and the time when Test Identification Parade was carried out. There is no reason to disbelieve this witness and identification of the accused. Executive Magistrate who carried out Test Identification Parade also described the manner in which the necessary procedure was followed.
15. Complainant, Parshuram, PW-9, narrated in detail the manner in which the incident took place. He was driving the truck in question on national highway No. 8 going from Goa to Ahmedabad at night on 21st September, 01. His truck was intercepted by the accused. He and the cleaner were beaten up and thrown out and they were later on thrown on the road side. The assailants then took the truck and the tyres. It is true that there are certain minor contradictions in his version, particularly, when he stated before the Court that some 7 or 8 persons had entered his cabin whereas in his complaint he stated that three people had entered in his cabin. Such minor differences, however, would not destroy the entire prosecution case which finds corroboration from other supporting evidence.
16. The appeal filed by the original accused Nos.1 and 4 who were similarly situated as present appellants being Criminal Appeal No. 759/2005 came to be dismissed by this Court. While dismissing the appeal by judgment dated 10.8.2007, learned Judge of this Court made following observations:
8. It submitted by Ms.Mansuri, learned Counsel appearing for the appellant that because it was night time or it was dark and the accused were more in number, the say of the complainant ought not to have been accepted by the learned trial Judge. When the complainant was dragged out of his truck from the driver’s seat, he was beaten up by the accused persons and he was thereafter tied up and kept in the truck and then he had ample opportunity to look to the faces of the persons who were there. On the contrary, the Court can reasonably infer that at least for some time the lights of the truck of the complainant must have remained ‘ON’ and the truck driver who is on the higher padestal can see the person/s coming from the front side towards his truck after coming out from the offending truck or the truck parked in front of his truck. So the arguments of Ms.Mansuri are not found valid that the learned trial Judge ought to have held that the complainant or his cleaner must not have seen the faces of the accused persons and they may have committed error in identifying both the appellants at the time of drawing of Test Identification parade panchnama and again identified both of them in the Court when the complainant was called for deposition.
17. I have no reason to discard the important and otherwise very reliable eye-witness account of the complainant. His identification of the accused during the TIP as well as before the Court also inspires confidence. As noted, TIP was conducted very shortly after the incident. The complainant had no reason to falsely implicate the appellants. Additionally, the arrest of the appellants and other accused were made when they were allegedly preparing for committing dacoity. This had lead to discovery of the stolen articles. Executive Magistrate also corroborated the fact that the complainant identified the present appellants
18. Under the circumstances, I do not find that the learned Judge committed any error in convicting and sentencing the appellants.
19. In the result, appeals are devoid of merits and are hereby dismissed.
