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CR.A/7/2003 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 7 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
MEENA
@ SUNGLA @ ANISHA, D/O KAMALSING GANGARAMSING THAKUR – Appellant(s)
Versus
STATE
OF GUJARAT – Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for
Appellant(s) : 1,MR KR RAVAL for Appellant(s) : 1,
MR KP RAVAL,
APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/06/2010
J
U D G M E N T
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
The
appellant original accused has filed this Appeal under Section
374 of Cr.P.C. challenging the Judgment and order of conviction
dated 29.11.2002 passed by the learned Additional Sessions Judge,
Surat in Sessions Case No. 141 of 2000, whereby the learned
Additional Sessions Judge has held the appellant accused guilty
for the offences charged against her.
Brief
facts of the prosecution case is that on 8.12.1997 the complainant
Rajeshwari Rameshbhai Desai was travelling from Ahmedabad by
Ahmedabad Janata Express Train No.8. It is alleged that when the
said train stopped at Surat Railway Station at that time she had
requested the accused to bring the bottle of milk. The accused
brought the milk and gave it to the complainant in the glass which
was with the accused. After consuming the milk the complainant
started feeling giddiness and thereafter she became unconscious. It
is alleged that on 9.12.1997 at 2.00 O’clock in the afternoon the
complainant regain consciousness and she found herself admitted in
Nagar Hospital at Mumbai. Thereafter her family members were
informed. Thereafter, complainant found that her gold bangles, gold
Chain and cash amount of Rs.17,500/- and clothes lying in the bag
have been stolen. Therefore, the complainant lodged the complaint
with Mumbai Central Railway Police Station. As the offence was
committed within the jurisdiction of Surat Railway Police, the said
complaint was transferred to Surat Railway Police. During the
investigation the police found the accused habitual in committing
such type of offences and, therefore, the Investigating Officer
arranged for identification parade by the Executive Magistrate.
During the identification parade, the complainant identified the
accused. During the interrogation, it was found that the accused has
sold away the stolen articles to one Gold Smith Pushpakar Sakharam
Dugdhikar at Solapur (Maharashtra). The police has seized the said
articles in the form of ingot in presence of Panch witnesses.
On
completion of investigation the charge-sheet against the accused
came to be submitted before the concerned Court for the offences
under Sections 328, 394 of I.P. Code. As the offences were triable
by the Court of Sessions, the learned Magistrate has committed the
said case to the Court of Sessions at Surat.
Thereafter
the charge was framed against the appellant accused. The
appellant accused denied the said charge. The prosecution has
examined in all 11 witnesses and also produced documentary evidence,
and at the end, recorded the statement of accused under Section 313
of Cr.P.C., in which she has stated that since 18th
November, 1994 she is in the Judicial custody. Thereafter, she was
in the Judicial custody for the offences registered against her by
Viramgam Railway Police and Valsad Railway Police. At the conclusion
of the trial, after considering the oral as well as documentary
evidence led by the parties and the arguments advanced, the learned
Additional Sessions Judge, vide impugned Judgment and order dated
29.11.2002, held the accused appellant guilty of the offence
under Section 328 of I.P.Code and sentenced to suffer rigorous
imprisonment for 5 years and to pay fine of Rs.1,000/- i/d to
undergo simple imprisonment for 3 months. The learned Judge also
held the accused guilty for the offence under Section 394 of I.P.
Code and sentenced the accused to suffer rigorous imprisonment for
10 years and to pay fine of Rs.1,000/- i/d to undergo simple
imprisonment for 3 months. The learned Judge ordered that both the
sentences shall run concurrently.
Being
aggrieved by and dissatisfied with the Judgment and order dated
29.11.2002 passed by the learned Additional Sessions Judge, Surat,
in Sessions Case No. 141 if 2000 the appellant (original accused)
has preferred this Appeal, through jail. The appellant accused
has requested that she is a poor lady and she may be provided the
Advocate from the Legal Aid. Therefore, learned Advocate Mr. K.R.
Raval was appointed to defend the case on behalf of the appellant
accused.
Heard
learned Advocate Mr. K.R. Raval for the appellant and learned A.P.P.
Mr. K.P. Raval on behalf of the respondent State. We have gone
through the Judgment and order passed by the learned Additional
Sessions Judge and also gone through the oral as well as documentary
evidence produced before us. We have also gone through the papers
produced before us.
Learned
Advocate Mr. K.R. Raval for the appellant accused has read the
evidence of Executive Magistrate (P.W.1) (Exh. 11) and contended
that the Executive Magistrate has not followed the direction given
by the Hon’ble Supreme Court as to how to carry out the
identification parade. He has contended that the dummies which were
used by the Executive Magistrate were not similar to the appearance
of the present appellant accused. He has contended that the yadi
(Exh. 13) given by the Police just to arrange the identification
parade is also not in a proper form. Learned Advocate has also read
the Panchnama (Exh.14) of identification parade and contended that
the prosecution has failed to prove the test identification parade
which is not as per the provisions of law. Learned Advocate has also
read the evidence of Panch witness Srinivas (P.W.2) (Exh.16) who is
the panch of recovery panchnama of gold ingot of 35 grams and
contended that the act of the present appellant accused is not
proved from the evidence of this witness and also from the panchnama
Exh.17 and simply recovery of gold runny cannot prove the offence as
per the charge. Learned Advocate Mr. Raval has also read the oral
evidence of gold smith Padmakar Sakharam Dudhgikar (P.W.3) (Exh.18)
and contended that just to avoid the harassment from the police he
has produced the piece of gold (runny) of 35 grams to the
Investigating Officer. The said witness was declared hostile.
Learned Advocate Mr. Raval has also gone through the evidence of Dr.
Parikh (P.W.5) (Exh.21), through whom the treatment was given to the
victim complainant. Learned Advocate has also read the evidence
of Panch witness Arvindbhai Laljibhai Zaveri (P.W.6) (Exh.23).
Learned Advocate Mr. Raval has contended that from the oral as well
as documentary evidence and also from the evidence of trapping
officer the prosecution has failed to establish its case. He has
also contended that looking to the oral as well as documentary
evidence the order of conviction and sentence may be quashed and set
aside. Therefore, the conviction and sentence imposed by the
learned Judge requires to be quashed.
Learned
A.P.P. Shri K.P. Raval has supported the Judgment and order of the
learned Addl. Sessions Judge. He has contended that from the oral as
well as documentary evidence it is established that the prosecution
has proved its case beyond reasonable doubt. He has contended that
from the oral evidence of Executive Magistrate, it is on record that
the present appellant accused was identified by the complainant.
Learned APP has contended that from the interrogation of present
appellant accused it was came to the knowledge of the
Investigating Officer that the stolen property of the complainant,
viz. Gold ornaments were sold to the gold smith and in presence of
panchas the muddamal articles, which were changed into ingot was
recovered and the panchnama is also proved beyond reasonable doubt.
He has contended that the evidence of panch witness is also fully
corroborated with the panchnama. He has also contended that the
evidence of Medical Officer and the case diary is also proved beyond
reasonable doubt. Learned APP has contended that from the oral
evidence of Dr. Parikh (P.W.5) it is on record that from the blood
test of the complainant contents of bartriturate was found which is
a medicine which can make a person unconscious. He, therefore,
contended that the trial Court has not committed any error in
holding the appellant accused guilty for the charges levelled
against her and, therefore, no interference is required to be called
for and the Appeal may be dismissed.
We
have gone through the Judgment and order of the trial Court. We have
also perused the oral as well as documentary evidence on record. We
have also called for the report from the jail authority. From the
report it is clearly established that the appellant accused is
habitual offender and in all in 11 cases she was found guilty for
the offences charged against her. From the remarks column of the
said report, it is found that on 12.2.2004 at 23.00 hours, she had
absconded from the Ahmedabad S.T. Bus Stand. The learned Judge has
clearly observed that from the evidence it is established that
Panchas have fully supported the recovery panchnama as per Section
27 of the Evidence Act. Learned Judge has also observed that the
Executive Magistrate, who is Public servant, is an independent
witness and he has no enmity with the present appellant and he has
no reason to falsely involve the appellant accused in such a
serious offence. Identification parade is also proved.
The
learned trial Judge has rightly not considered the plea of alibi of
the accused, in absence of any cogent and convincing material
brought on record in the form of jail record, etc. The prosecution
has also successfully brought on record that the accused has been
involved in this offence, as there is no material or vital
contradictions in the oral as well as documentary evidence led by
the prosecution.
After
considering the oral evidence of Panch and the goldsmith, who had
purchased the gold from the accused, though the witnesses have been
declared hostile, from the cross examination the prosecution has
clearly established its case in the context of evidence led by the
complainant as well as Investigating Officer, as evidence regarding
discovery, pointing out the shop of goldsmith is reliable and
trustworthy. The defence side has failed to prove any enmity so as
to discard the evidence of the witnesses regarding recovery of
muddamal gold, nor it is the case that accused has been falsely
involved due to some rivalry or enmity.
Looking
to the material evidence the Medical Officer has categorically
opined that in the blood test, contents of syrum Bartrichurate is
found which is in the form of tablet which is a slipping pill and
because of that complainant went in to deep sleep. It is also
pertinent to note that the complainant, at the very first point of
time, said about consumption of milk given by the accused and
thereafter she became unconscious, which is supported by the
medical evidence. Further the complainant has identified the accused
in identification parade and also in the Court. The conduction of
identification parade is also proved. The same is also supported by
the Executive Magistrate.
So
far as involvement of accused is concerned, from the oral evidence,
it is proved on record by the prosecution that complainant during
night hours inquired for milk and accused brought the milk and after
drinking the said milk, she became unconscious and when she regained
consciousness she found that her valuable articles are stolen.
Further, looking to the cases registered against the accused and in
view of the fact that her plea of alibi is totally found
unbelievable and untrustworthy coupled with the fact that her
presence in the train and her identity is established by the
prosecution without any shadow of doubt, in our view, the learned
trial Judge has rightly convicted and sentenced the accused and
hence no interference is called for by this Court.
From
the oral as well as documentary evidence, in our view, the learned
trial Judge has not committed any error in holding the appellant
accused guilty for the offences charged against her. Hence, the
prosecution has successfully proved its case beyond reasonable doubt
and we have no reason to disbelieve the case of the prosecution.
In
view of the aforesaid, it appears that while dismissing the appeal
on the ground that the accused appellant is reported absconding,
appropriate direction also deserve to be issued not only for the
proper enforcement of the rule of law, but also to ensure that there
is sincere effort by the police in this regard and the report
thereof is made to the officer of the Court who may be assigned with
such work.
Hence,
the following order :
Appeal
is dismissed with the aforesaid direction accordingly. The Judgment
and order dated 29.11.2002 passed by the learned Additional Sessions
Judge, Surat, in Sessions Case No. 141 of 2000, holding the
appellant accused guilty for the offence charged against her,
is hereby confirmed. It is reported that the appellant accused
is absconding and, therefore, following direction is issued :
Non-bailable
warrant shall be issued against the appellant convict who is
reported absconding, so as to bring her to the custody/jail. The
Director General of Police shall assign the work of enforcement of
the warrant to the concerned Police Officer not below the rank of
P.I. for tracing the accused and to put her to the custody.
If
the appellant convict is not found in spite of the effort by the
police, her property shall be attached and the appropriate action
shall be taken for attachment and disposal of the property as per the
Code of Criminal Procedure.
The
officer who may be marked by the Director General of Police will
also undertake the aforesaid action for attachment and for disposal
of the property in accordance with law;
The
Report shall be submitted for compliance to the aforesaid direction
by the Director General of Police to this Court within a period of
six months from today and such report shall be placed before the
Registrar (Judicial) of this Court. If the Registrar (Judicial) is
of the view that the proper action is not taken, he will place the
matter before the Court, for appropriate orders,
Record
& Proceedings be sent to the trial Court immediately.
(JAYANT
PATEL,J.)
(Z.
K. SAIYED, J.)
sas
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