Gujarat High Court Case Information System
Print
CR.A/2012/2009 8/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2012 of 2009
With
CRIMINAL
MISC.APPLICATION No. 2349 of 2010
In
CRIMINAL APPEAL No. 2012 of 2009
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 ?
=========================================================
SABBIR
IQBALBHAI JUNAJ - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MS
ROOPAL R PATEL for
Appellant(s) : 1,
MR KP RAVAL Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 09/04/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The
present Criminal Appeal is preferred by the appellant – original
accused no. 2, under section 374 of the Code of Criminal Procedure,
1973, against the judgment and order of conviction dated 31.05.2006
passed by the Additional Sessions Judge, Rajkot in Sessions Case No.
52 of 2005, whereby the accused has been convicted of the charges
leveled against him.
1.1 The
appellant – accused has been ordered to undergo rigorous imprisonment
for seven years for offence u/s 397 (u/s 394 no separate sentence) of
Indian Penal Code and fine of Rs. 5000/- in default to undergo
simple imprisonment for six months. The learned Sessions Judge has
also held the appellant – accused guilty for the offence under
Section 188 of I.P. Code and imposed fined Rs. 1000/- in default to
undergo simple imprisonment for one month and fifteen days.
2. It
is the case of the prosecution that on 13.12.2004, the complainant
along with four other people namely Driver Jaffarbhai, Umarbhai,
Sureshbhai and Amin alias Tako was standing near Deepak Industries.
At that time, the original accused nos. 1 to 3 threatened them by
showing knife. The accused forcibly took away gold chain worth Rs.
20,000/- worn by the complainant, two gold rings worth Rs. 8000/-,
cash worth Rs. 6000/- and Nokia mobile phone worth Rs. 5000/- from
the complainant. When the complainant tried to protest, the original
accused Asif also injured the complainant on his nose, stomach, ring
finger of left hand with the knife.
2.1 Thereafter
on the strength of the complaint filed by the complainant, the
offence was registered against the present appellants for the
offences punishable u/s 379, 394, 397, 504, 216(a), 188-114 of Indian
Penal Code and after their arrest chargesheet was submitted against
the appellants. Thereafter, as the case was exclusively triable by
the Sessions Court, the same was committed to the Sessions Court.
2.2 The
trial was initiated against the appellant and during the course of
trial the prosecution examined the following 15 witnesses as oral
evidences:
Chandubhai
Jagabhai Patel Ex. 18
Vijay
Bhimji Rupareliya Ex. 36
Jitenbhai
Anilbhai Ex. 39
Atulbhai
Premjibhai Ex. 47
Bharatbhai
Bhagwanjibhai Ex. 51
Tejasbhai
Bipinbhai Ex. 52
Ketanbhai
Khimjibhai Ex. 53
Umarbhai
Gagubhai Ex. 56
Jaferbhai
Tarmohmad Ex. 57
Amin
alias Tako dadubhai Ex. 63
Dr.
Hemang Vasavda Ex. 41
Bhikhubhai
Kesarisinh Ex. 45
Kishoresinh
Jhanubha Ex. 67
Rakeshkumar
Prabhudasbhai Ex. 78
Jentilal
Shantilal Joshi Ex. 83
2.3 The
prosecution also exhibited the following 27 documents
as documentary evidences:
Original
Complaint Ex. 19
Panchnama
prepared at Asif's house Ex. 32
Panchnama
about seizure of muddamal Ex. 37
Panchnama
of local place Ex. 40
Certificate
by Dr. Vasavda regarding injury caused to the complainant Ex.
42
History
in hospital form Ex. 43
Treatment
papers of the complainant in all 1 to 8 pages Ex. 44
Copy
of circular of arms prohibition Ex. 46
Regn.
Book of herohonda no. GJ-3-PP-1277Ex. 55
Original
copy of the evidence of Bharat Keshavlal Ex. 65
Arrest
panchnama in respect of sessions case no. 32/05 Ex. 66
Extract
of station diary no. 3570/04 Ex. 68
Application
requesting custody of accused Ex. 69
Letter
granting police custody of the accused from jail Ex. 70
Arrest
memo of accused Ex. 71
Letter
regarding making note of arrest of the accused in the station
diary. Ex. 72
Application
in the court by PSI for adding sections 216(1) and 411
Ex. 73
Muddamal
receipt no. 476/04 Ex. 74
Muddamal
receipt no. 475/04 Ex. 75
Letter
for handing over the muddamal by Gandhigram police station to
Bhaktinagar police station Ex. 77
Application
submitted before the Judicial Magistrate to add section 379
Ex. 79
Yadi
to districts and police stations Ex. 80
Special
report of serious offence Ex. 81
Investigation
order by Bhaktinagar PSO Ex. 82
Forwarding
letter by complainant Ex. 84
Yadi
to Executive magistrate for taking dying declaration Ex. 85
Yadi
to police control room with respect to investigation of stolen
muddamal Ex. 86
At
the end of trial, after recording the statement of the accused, and
hearing arguments on behalf of prosecution and the defence, the
learned Sessions Judge convicted the appellant of the charges
leveled against him by judgement and order dated 31.05.2006.
Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the Sessions Court the appellant has preferred the present
appeal.
Ms.
Roopal Patel, learned advocate appearing on behalf of the appellant
accused has submitted that the prosecution has miserably failed
to prove the charges under section 394, 144, 188 and 397 of Indian
Penal Code. She has submitted that the prosecution has also failed
to prove the role of the present appellant accused. She has
contended that the identification of the present appellant is not
proved beyond reasonable doubt and the T.I. Parade is also not
carried out as per the provision of law and only in the Court room
the appellant accused was identified and due to such type of
identification the present appellant accused cannot be held
guilty for the charges alleged against him. She has also contended
that the recovery as alleged by the prosecution is also not proved
beyond reasonable doubt. She has contended that the prosecution has
failed to appreciate that ingredients of robbery and decoity have
not been proved successfully by the prosecution. She has contended
that the prosecution story is based on mere presumption and
surmises. She has contended that the prosecution has failed to lead
cogent evidence which would prove the guilt of the accused in the
alleged offence. She has contended that the injury which is alleged
to have been caused to the complainant is not a grievous in nature
and even if the case against the appellant accused is assumed,
he ought to have been convicted under Section 394 of I.P. Code and
not under Section 397 of I.P. Code. She has also relied upon the
Judgment of this Court in Criminal Appeal No.520 of 2007, decided on
24.7.2009, which was filed by the co-accused and contended that the
ratio of the said Judgment would be applicable in the present case
also.
Mr.
K.P. Raval, learned APP appearing for the respondent State has
supported the order of the trial court and submitted that looking to
the facts of the complainant and the driver Jaferbhai and Umarbhai
who was an employee of the complainant, the trial court’s
appreciation of the fact and evidence is just and proper. He has has
submitted that the prosecution has successfully proved the presence
of all the three accused at the time of the incidence and has
convicted the accused as per law. However, Mr. Raval is not in a
position to controvert the submission regarding wrong imposition of
section 397.
We
have gone through the judgement and order passed by the trial court.
We have also perused the oral as well as documentary evidence led by
the trial court and also considered the submissions made by learned
Advocate for the appellant as well as learned APP.
The
trial court has gone through the evidences of the complainant as
well as witnesses at length. The complainant in his deposition has
stated that there were three persons who has roughed him up and
forcibly taken jewellery, cash and a mobile phone from him. Apart
from the jewellery, the cash and mobile phone and other muddamal
articles have been recovered from the accused. It appears that the
gold ornaments had been sold off to some jeweller. However, no
evidence regarding the same is coming forward. The prosecution has
proved the recovery of the rest of the muddamal successfully.
Moreover,
on a close scrutiny of the evidences of the witnesses, it is borne
out that there are no contradictions in the evidences of the
witnesses. As regards the proper identification of the accused
though the incident took place late night, it is clear that the road
was sufficiently lit up by street lamps of the municipality. It is
also observed that there are certain industries and factories in the
vicinity which also added to the light. The said observations are
not controverted by the learned advocates for the accused.
The
appellant has taken up a contention that the identification parade
is done in the court room for the first time. However, considering
the other facts and circumstances of the case coupled with the
evidences against the accused, this contention will not support the
case of the appellant. Identification parade is only a mode to
satisfy a complainant, the investigating agency and the court with
regard to the actual person/s involved. It cannot be considered as
primary proof. In the instant case, the witnesses have identified
the accused and even the evidences are against him. Hence the
conviction seems to be just and proper.
The
trial court has also gone through the evidence of Dr. Hemang Vasavda
P.W. 4 Ex. 41. The injuries nos. 1, 2, 3 & 5 more particularly
on nose, upper left lips and rear part of the stomach on right side
were caused due to some sharp object. The medical officer has very
clearly stated that these injuries required only a period of about
ten days to heal and are not grievous in nature. The doctor has
also stated in his cross examination that the injuries are general
in nature and that the complainant was treated for only two days in
the hospital.
In
the above view of the matter, we are of the considered opinion that
the trial court was completely justified in convicting the appellant
of the charges leveled against him. However, considering the
nature of the hurt and injury which is general the trial court ought
not to have convicted the accused under section 397. The said
contention of the appellant is required to be accepted.
Accordingly,
this appeal is partly allowed. The conviction of the appellant
under Sections 394 & 188 of the Indian Penal Code vide judgment
and order dated 31.05.2006 passed by the Additional Sessions Judge,
Fast Track Court No. 5, Rajkot in Sessions Case No. 52 of 2005 is
upheld.
The
conviction and sentence imposed upon the appellant under Section 397
of the Indian Penal Code vide judgment and order dated 31.05.2006
passed by the Additional Sessions Judge, Fast Track Court No. 5,
Rajkot in Sessions Case No. 52 of 2005 is quashed and set aside.
However, the appellant – accused is held guilty for the offence
under Section 394 of I.P. Code and he is ordered to undergo rigorous
imprisonment for five years. The remaining part of the judgement
and order of the trial Court is confirmed.
As
the main Criminal Appeal is disposed of, no order is passed in
Criminal Misc. Application No. 2349/2010 and the same is disposed of
accordingly.
(JAYANT
PATEL,J.)
(Z.K.SAIYED,
J.)
sas
Top