{"id":177483,"date":"2008-11-17T00:00:00","date_gmt":"2008-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arjun-vs-unknown-on-17-november-2008"},"modified":"2017-01-07T17:33:31","modified_gmt":"2017-01-07T12:03:31","slug":"arjun-vs-unknown-on-17-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arjun-vs-unknown-on-17-november-2008","title":{"rendered":"Arjun vs Unknown on 17 November, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Arjun vs Unknown on 17 November, 2008<\/div>\n
Author: H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/18820\/2003\t 20\/ 20\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 188 of 2003\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.B.ANTANI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nARJUN\nRAMBACHCHAN PASVAN - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nPRAVIN GONDALIYA for Appellant(s) : 1, \nMR PD BHATE, APP for\nOpponent(s) :\n1, \n========================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 17 & 18\/11\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tinstant appeal preferred under Section 374 (2) of Criminal Procedure
\n\tCode is directed against the judgment and order passed by learned
\n\tSessions Judge, Rajkot in Sessions Case No.63 of 2001 dated
\n\t19.12.2002 by which the learned Judge convicted the appellant Arjun
\n\tRambachchan Pasvan for the offence punishable under Section 397 for
\n\t7 years of R.I. and a fine of Rs.25,000\/- in default 1 year of S.I.\n<\/p>\n
\tThe short facts
\n\tgiving rise to the prosecution case are stated herein below.\n<\/p>\n
The
\n\tappellant in tandem with the another accused hatched a conspiracy to
\n\trob the Baldevbhai Parshotambhai Patel who was working in one
\n\tAngadiya Firm situated at Street No.23, Vijay Plot at Rajkot. With a
\n\tview to commit the robbery, the original accused No.1-Valo @ Vijay
\n\tBhikhabhai Bharvad brought one Hero Honda Motorcycle from Race
\n\tCourse Road at Rajkot and original accused No.4-Virendra @ Billu
\n\tRamcharan brought prohibited weapon from the Bihar State and the
\n\tpresent appellant also acquired the said weapons and went to place
\n\twhere the incident took place. When the victim Baldevbhai
\n\tParshotambhai Patel was coming out from the shop, he was assaulted
\n\tby the appellant with the other accused persons on 23.3.2000 at
\n\tabout 19.45 hours and the appellant fired two rounds from his
\n\trevolver towards the injured Baldevbhai Parshotambhai Patel and
\n\tafter committing the robbery, he along with other accused fled from
\n\tthe scene of offence. A complaint was given by Chandrakantbhai
\n\tTribhovandas Patel on 23.3.2000 vide Exh.39 to the Police Inspector,
\n\tMalaviya Nagar, Police station, Rajkot city. On the strength of the
\n\tcomplaint given by Chandrakantbhai Tribhovandas Patel, investigation
\n\twas set in motion. The Investigating Officer visited the place of
\n\tincident and prepared the panchnama with regard to the scene of
\n\toffence in presence of panch-witnesses. The panchnama of the seizure
\n\tof the clothes put on by the victim and the recovery of bullet was
\n\talso prepared. The panchnama with regard to seizure of Hero Honda
\n\tMotorcycle used in the commission of offence was prepared in the
\n\tpresence of panch witnesses. The panchnama of the recovery of the
\n\tAuto Rickshaw as well as T.V. which was purchased from the amount
\n\trecovered from the loot was also prepared in the presence of
\n\tpanch-witnesses. The muddamal which was recovered which was sent to
\n\tFSL for the purpose of detailed analysis. The injured was sent to
\n\tHospital for providing immediate treatment. The Investigating
\n\tOfficer prepared the panchnama with regard to the identification
\n\tparade. On receipt of the injury certificate, the report form FSL
\n\tetc., the appellant along with other accused persons was
\n\tcharge-sheeted and produced before the Chief Judicial Magistrate who
\n\tin turn committed the case to the Sessions Court under Section 209
\n\tof the Criminal Procedure Code as the case is exclusively triable by
\n\tthe Sessions Court. The charge against the appellant and other
\n\taccused have been framed vide Exh.1 for the offence punishable under
\n\tSections 307, 397, 120-B, 188 and 114 of IPC  as well as 25(1)(A),
\n\t(1-A), (1-AA) and 27 of the Arms Act. The appellant pleaded not
\n\tguilty to the charge the levelled against him. Hence, the matter was
\n\tset down for full fledged trial, before the learned Sessions Court.\n<\/p>\n
The
\n\tprosecution has, in order to prove the guilt against the appellant,
\n\texamined the following witnesses, they are as under:\n<\/p>\n
PW-1,
\n\tDr.Gaurangbhai Dharmeshchandra Dave at Exh.30.\n<\/p>\n
PW-2,
\n\tShri Navalsinh Mansinh Gohil at Exh.34.\n<\/p>\n
PW-3,
\n\tShri Chandrakantbhai Tribhovandasbhai Patel at Exh.38.\n<\/p>\n
PW-4,
\n\tShri Baldevbhai Parshotambhai Patel at Exh.40.\n<\/p>\n
PW-5,
\n\tShri Mohmadbhai Hanifbhai at Exh.41.\n<\/p>\n
PW-6,
\n\tShri Dinkarrai Kalyanjibhai Vyas at Exh.44.\n<\/p>\n
PW-7,
\n\tShri Suryakantbhai Prahladbhai Patel at Exh.46.\n<\/p>\n
PW-8,
\n\tShri Maganbhai Popatbhai at Exh.48.\n<\/p>\n
PW-9,
\n\tShri Nanubhai Ghoghabhai at Exh.50.\n<\/p>\n
PW-10,
\n\tShri Bharatbhai Ratilal at Exh.52.\n<\/p>\n
PW-11,
\n\tShri Jayrajbhai Mavjibhai Desai at Exh.54.\n<\/p>\n
PW-12,
\n\tShri Pareshbhai Chhaganbhai at Exh.56.\n<\/p>\n
PW-13,
\n\tShri Kantilal Naranbhai Patel at Exh.58.\n<\/p>\n
The
\n\tprosecution has also placed reliance on following documentary
\n\tevidence, which are as under:\n<\/p>\n
(1)\tThe
\n\tcompliant given by Chandrakantbhai Tribhovandas Patel
\n\tdated 23.3.2000 vide Exh.39.\n<\/p>\n
(2)<\/span><\/p>\n
\tThe letter written to the Executive Magistrate, Rajkot city dated
\n\t28.7.2000 by PSI, Anti Theft Squad (ATS) for identification parade
\n\tvide Exh.35.\n<\/p>\n
(3)<\/span><\/p>\n
\tThe letter written to the PSI, ATS, Rajkot city by the Executive
\n\tMagistrate, Rajkot vide Exh.36.\n<\/p>\n
(4)<\/span><\/p>\n
\tThe panchnama under Section 162 of Criminal Procedure Code vide
\n\tExh.37.\n<\/p>\n
(5)<\/span><\/p>\n
\tThe panchnama of the place of incident which was prepared in the
\n\tpresence of panch witnesses vide Exh.47.\n<\/p>\n
(6)<\/span><\/p>\n
\t The panchnama of the recovery of clothes put on by the injured
\n\tBaldevbhai Parshotambhai Patel and the bullet
\n\twhich was recovered from his body vide Exh.49.\n<\/p>\n
(7)<\/span><\/p>\n
\tThe list of the articles received by the Angadiya Firm at Exh.55.\n<\/p>\n
(8)<\/span><\/p>\n
\tThe document at Exh.62 is the panchnama with regard to the
\n\tidentification of the muddamal which was seized or recovered in the
\n\tcommission of offence.\n<\/p>\n
(9)<\/span><\/p>\n
\tThe panchnama at Exh.61 is with regard to the recovery of Rs.5,000\/-
\n\tfrom the possession of accused Valabhai Bhikhabhai Bharvad given for
\n\tuse to someone.\n<\/p>\n
(10)<\/span><\/p>\n
\tThe panchnama at Exh.62 is the muddamal identification
\n\tpanchnama.\n<\/p>\n
(11)<\/span><\/p>\n
\tThe document at Exh.63 is the note sent to FSL, the report given by
\n\tthe FSL and the detailed analysis collectively, etc. to the present
\n\tcase.\n<\/p>\n
During
\n\tthe trial, the further statement of the appellant was recorded under
\n\tSection 313 of the Criminal Procedure Code. The appellant was
\n\tinformed about incriminating evidence and the circumstances against
\n\thim in the case. The appellant submitted that a false case was
\n\tfoisted on him and he has been falsely implicated in the commission
\n\tof offence.\n<\/p>\n
The
\n\tlearned Sessions Judge after going through the entire gamut of oral
\n\tdeposition and the documentary evidence adduced by the prosecution
\n\theld the incident in question took place on 23.3.2000 at about 8
\n\tO’Clcok at night. The appellant along with the other accused persons
\n\thatched the conspiracy to commit the robbery of the employee of the
\n\tAngadiya firm Baldevbhai Parshotambhai Patel to the tune of
\n\tRs.4,05,660\/-. With a view to commit the robbery of the said person,
\n\tthey were armed with the weapons and after resorting to firing and
\n\tcausing injury to the victim Baldevbhai Parshotambhai Patel on the
\n\tvital part of the body,  committed the robbery. The learned Sessions
\n\tJudge held that the deposition adduced by PW-4, Baldevbhai
\n\tParshotambhai Patel vide Exh.40 regrading the date of incident and
\n\tthe manner in which he was assaulted by the appellant along with
\n\tother accused persons gets necessary corroboration from PW-5,
\n\tMohmadbhai Hanifbhai vide Exh.41 to the present case. Dr.Gaurangbhai
\n\tD.Dave PW-1 at Exh.30 gave the treatment to the injured when he was
\n\tbrought to the Hospital after sustaining injuries on 23.3.2000. He
\n\thas deposed in his testimony as to how Baldevbhai Parshotambhai
\n\tPatel sustained injuries and he also gave the injury certificate to
\n\tBaldevbhai Parshotambhai Patel. As the victim sustained serious
\n\tinjuries, he was immediately operated upon and bullet was also
\n\trecovered from his body. Thus, the deposition given by the victim
\n\tget necessary corroboration from the deposition of Mohmadbhai
\n\tHanifbhai PW-5 at Exh.41 and Dr.Gaurangbhai D.Dave, PW-1, at Exh.30
\n\tand thus, the prosecution has established the involvement of the
\n\tappellant in the commission of offence. The learned Judge further
\n\theld that the oral deposition is supported by the documentary
\n\tevidence such as the panchnama of the place of incident at Exh.47,
\n\tthe complaint given by Chandrakanbhai Patel vide Exh.39, the
\n\tcertificate of injury issued by Dr.Gaurang Dave vide Exh.31, the
\n\tidentification parade vide Exh.36, and the panchnama prepared in
\n\trespect thereof vide Exh.37, the panchnama vide Exh.49 with regard
\n\tto the recovery of the clothes put on by the victim as well as
\n\trecovery of the bullet, the panchnama with regard to the seizure of
\n\tHero Honda Motorcycle which was used in the commission of offence
\n\tvide Exh.53, the FSL report vide Exh.63, etc. The learned Judge has
\n\talso placed reliance on other deposition adduced by the prosecution
\n\tmore particularly, the deposition adduced by Navalsinh Gohil PW-2,
\n\tat Exh.34. Chandrakantbhai T.Patel, PW-3, Exh.38, Suryakantbhai
\n\tPatel PW-7, Exh.46, Jayrajbhai Desai PW-11, Exh.54, Pareshbhai
\n\tChhaganbhai, PW-12, Exh.56 and the deposition of PSI, Kantilal
\n\tPatel, PW-13, Exh.58 and held that considering the deposition
\n\tadduced by the prosecution witnesses and the documentary evidence,
\n\tthe prosecution has established each and every link connecting the
\n\tappellant with the commission of offence punishable under Section
\n\t307 of the IPC. The learned Judge further held that the appellant
\n\talong with other accused persons, Vala @ Vijay Bharvad committed
\n\tassault with the revolver on Baldevbhai Parshotambhai Patel and as a
\n\tresult of which he sustained serious injuries. After sustaining
\n\tinjuries, in his scuffle the bag containing the amount which was
\n\tlying on the floor was looted and thus, the appellant has also
\n\tcommitted the offence punishable under Section 397 of IPC. Thus, it
\n\tis held by the learned Sessions Judge that the prosecution has
\n\tproved the involvement of the appellant in the commission of offence
\n\tunder Section 307 read with Section 397 of IPC and imposed the
\n\tsentence of R.I. for 7 years and fine of Rs.25,000\/- in default
\n\tfurther S.I. of 1 year. However, no separate sentence has been
\n\timposed by the learned Judge while convicting the appellant under
\n\tSection 307 read with Section 188 of IPC.\n<\/p>\n
The
\n\tlearned advocate representing the appellant submitted that the order
\n\tpassed by the learned Sessions Judge is bad in law and the contrary
\n\tto the fact and evidence on record of the case and therefore, it
\n\trequires to be quashed and set aside. The learned advocate placing
\n\treliance on the oral deposition and the documentary evidence adduced
\n\tby the prosecution submitted that on a bare perusal of the evidence
\n\tproduced by the prosecution, the case has not been established by
\n\tthe prosecution against the appellant beyond all reasonable doubts.
\n\tThe case of the prosecution even does not get the necessary
\n\tcorroboration by the independent witness and therefore, the
\n\tappellant requires to be acquitted. The victim had not identified
\n\tthe appellant during the course of identification parade and
\n\ttherefore, the identification parade cannot be relied upon to
\n\tconvict the appellant and the panchnama with regard to the
\n\tidentification parade requires to be discarded. The learned advocate
\n\tsubmitted that identification parade was carried out after long
\n\tlapse of time i.e. nearly after the 4 months period and therefore,
\n\tthe same cannot be believed as true and therefore, it requires to be
\n\tdiscarded.\n<\/p>\n
The
\n\tlearned advocate placed reliance on the deposition adduced by
\n\tExecutive Magistrate, Navalsinh Gohil PW-2, at Exh.34 and submitted
\n\tthat the deposition adduced by Navalsinh Gohil is full of
\n\tcontradiction and therefore, it cannot be relied upon to convict the
\n\tappellant with the commission of offence. He made the arrangement to
\n\tcall two panch witnesses. The two accused were also also produced in
\n\this presence and at the end of cross-examination, he has deposed in
\n\this testimony that panch witnesses were called by the Investigating
\n\tOfficer. In view of the contradictions in the deposition adduced by
\n\tNavalsinh Gohil, the case of the prosecution would fall flat on the
\n\tground as the prosecution has not established the involvement of the
\n\tappellant in the commission of offence in a conclusive manner and
\n\tthe appellant is required to be exonerated for the offence
\n\tpunishable under Sections 307, 397 and 188 of IPC. The learned
\n\tadvocate further placed reliance on the deposition adduced by
\n\tBaldevbhai Parshotambhai Patel PW-4, at Exh.40, and submitted that
\n\tBaldevbhai Parshotambhai Patel has not, during the course of
\n\tdeposition, indicated the involvement of the appellant in the
\n\tcommission of offence. Only during the course of the deposition, he
\n\thas identified the appellant as he was present in the Court. While
\n\tthe deposition adduced by appellant Baldevbhai Parshotambhai Patel
\n\tis not trustworthy so as to indicate the involvement of the
\n\tappellant in the commission of offence. The corroboration which the
\n\tprosecution is sought to establish by adducing deposition of
\n\tChandrakantbhai Patel, PW-3, Exh.38 is full of contradictions and
\n\ttherefore, it cannot be believed to convict the appellant for the
\n\toffence punishable under Sections 397, 307 and 188 of IPC.
\n\tDr.Gaurang D.Dave, PW-1, is examined at Exh.30, and it is true that
\n\the has deposed in his testimony that the incident in question took
\n\tplace on 23.3.2000 at 8 O’Clcok at night. The injured was brought to
\n\tthe Hospital when he was discharging his duties at night hours in
\n\tthe Hospital. As per the say of Dr.Gaurang D.Dave as the injured had
\n\tsustained the serious injury, operation was performed on him and
\n\tbullet was taken out from the right hand side of his body. He was
\n\tgiven blood transfusion during the operation. Dr.Gaurang Dave has
\n\tgiven the Injury Certificate to the injured Baldevbhai Parshotambhai
\n\tPatel vide Exh.31 and narrated the injury sustained by him. However,
\n\tconsidering the oral deposition adduced by the victim as well as the
\n\tcomplainant and considering the contradictions in the deposition,
\n\tthe prosecution story cannot be believed and the appellant is
\n\trequired to be exonerated.\n<\/p>\n
The
\n\tlearned advocate submitted that oral deposition adduced by the
\n\tprosecution has not supported the prosecution story with regard to
\n\tthe involvement of the appellant in the commission of offence, the
\n\tprosecution has
\n\tto bank upon the deposition adduced by the
\n\tInvestigating Officer in order to prove the documentary evidence
\n\tsuch as panchnama of place of incident,  panchnama of the clothes
\n\tput on by the victim and recovery of bullet from the body of the
\n\tvictim, the panchnama on the recovery of the motorcycle used in the
\n\tcommission of offence, panchnama of the recovery of auto rickshaw
\n\tand T.V.etc. The learned advocate submitted that no recovery of the
\n\tweapon which was used in the commission of offence was discovered
\n\tduring the course of investigation. The appellant was in fact in
\n\tcustody in connection with the offence registered vide. Criminal
\n\tCase bearing No.98 of 2000 with Malaviya Nagar Police Station. There
\n\tis also no recovery of the looted item i.e. the amount in question
\n\tto the tune of Rs.4,05,660\/-. In view of the aforesaid facts and
\n\tcircumstances of the case and as the prosecution has not established
\n\tthe involvement of the appellant in the commission of offence by
\n\tadducing cogent, convincing and conclusive evidence, the appellant
\n\tis required to be exonerated forthwith.\n<\/p>\n
The
\n\tlearned advocate further submitted that the documentary evidence,
\n\tthe panchnama of the place of incident, the panchnama of the seizure
\n\tof the clothes put on by the victim as well as the recovery of
\n\tbullet from the body of the victim the panchnama with regard to the
\n\trecovery of the Hero Honda which was used in the commission of
\n\toffence, the panchnama with regard to the identification parade,
\n\tetc. is a corroborative piece of evidence. When the prosecution has
\n\tnot established each and every link connecting the appellant with
\n\tthe commission of offence, the corroborative piece of evidence would
\n\tnot carry the prosecution case any further. Thus, the learned
\n\tadvocate submitted that as the evidence adduced by the prosecution
\n\tbristles with
\n\tcontradictions the benefit of the same is required to be given to
\n\tappellant and he be acquitted for the offence punishable under
\n\tSections, 397, 307 and 188 of IPC.\n<\/p>\n
The
\n\tlearned APP representing the State submitted that prosecution has
\n\texamined the injured Baldevbhai Parshotambhai Patel PW-4 at Exh.40.
\n\tOn perusal of the deposition of Baldevbhai Parshotambhai Patel, it
\n\tbecomes clear that incident in question had taken place on 23.3.2000
\n\tat about 8 O’Clcok. He has further deposed in his testimony that
\n\twhen he was proceeding from Vijay Plot Office to Soni Bazar, he was
\n\thaving one bag containing Rs.4.5 lacs (approximately). When he
\n\treached near Ram Chamber at Gondal Road, he heard the big sound and
\n\timmediately when he looked at the cycle, he
\n\tfound that serious injuries were sustained by him on
\n\tthe back side of his body. When he sustained the injuries, the
\n\tamount containing Rs.4.5 Lacs (approximately) was lying in the bag
\n\ton the bicycle. On sustaining injuries, he became unconscious. He
\n\tregained his consciousness when he was admitted in the Hospital. He
\n\thas deposed in his testimony that the person who started firing put
\n\ton shirt of black colour
\n\tand he came on a motorcycle. During the course of the deposition, he
\n\thad identified  the person who came on the motorcycle. The
\n\tdeposition adduced by Baldebhai Parshotambhai Patel gets necessary
\n\tcorroboration from the deposition of PW-3, at Exh.38 Chandrakantbhai
\n\tPatel. He was sitting in his office situated in Soni Bazar and at
\n\tthe marginal
\n\tpoint of time , he received the
\n\ttelephonic message from Jagdish Furniture that one person from his
\n\tfirm met with an accident. When he reached the place of the
\n\taccident, Baldevbhai Parshotambhai Patel was lying in
\n\tthe pool of blood   near the shop of
\n\tJagdish Furniture and he had sustained the injuries on the back
\n\tportion of his body. Thereafter, Baldevbhai Parshotambhai Patel was
\n\ttaken to the Madhuram Hospital for immediate treatment. The
\n\tcomplaint was given by Chandrakantbhai Tribhovanbhai Patel. The
\n\tdeposition given by Baldevbhai Parshotambhai Patel gets necessary
\n\tcorroboration from the deposition of Chandrakant Tribhovanbhai Patel
\n\tPW-3, Exh.38. The prosecution has examined Dr.Gaurang D.Dave, PW-1,
\n\tExh.30. Dr.Gaurang D.Dave has deposed in his testimony about the
\n\tdate of incident and the injury sustained by Baldevbhai
\n\tParshotambhai Patel. The nature of injury sustained by Baldevbhai
\n\tParshotambhai Patel has been narrated by Dr.Gaurangbhai Dave. In his
\n\tdeposition, he had performed the operation on Baldevbhai Patel and
\n\trecovered one Bullet. The injury certificate was given by Dr.Gaurang
\n\tD.Dave and same is produced at Exh.31. Thus, the learned APP
\n\tsubmitted that the deposition given by injured Baldevbhai
\n\tParshotambhai Patel is supported by the complainant Chandrakantbhai
\n\tTribhovandas Patel at Exh.38 and the complaint at Exh.39 as well as
\n\toral deposition given by Dr.Gaurang Dave at Exh.30 to the present
\n\tcase.\n<\/p>\n
\tThe deposition
\n\tadduced by Mohmadbhai Hanifbhai PW-5, at Exh.41 makes it abundantly
\n\tclear that the incident in question took place on 23.3.2000 and he
\n\thad seen the incident which took place on 23.3.2000. The injury
\n\tsustained by the victim Baldevbhai Parshotambhai Patel has been
\n\tnarrated by this witness vide Exh.41. Even the appellant was
\n\tidentified during the course of identification parade which was
\n\tcarried out subsequently. Thus, deposition of Mohmadbhai Hanifbhai
\n\tvide Exh.41 provides ample corroboration to the deposition adduced
\n\tby Chandrakantbhai and Baldevbhai. The panchnama with regard to the
\n\tidentification parade vide Exh.37 supports the prosecution story
\n\twith regard to the involvement of appellant in the commission of
\n\toffence.  The prosecution has placed reliance on the deposition of
\n\tNavalsinh Gohil PW-2, Exh.34. He has deposed in his testimony that
\n\ton 23.7.2000 he was working as City Mamlatdar at Rajkot. He received
\n\tyadi from PSI-ATS from Malaviya Nagar Police Station. In pursuance
\n\tof the yadi received by him, the identification parade was carried
\n\tout on 28.7.2000 at about 5 O’Clock. During the course of
\n\tidentification parade, all precautions were taken by him. During the
\n\tidentification parade original accused No.1, namely, Vala @ Vijay
\n\tBharvad and Arjun Rambachan Paswan, present appellant were
\n\tidentified and the panchnama with regard to the same was prepared.
\n\tThus, the prosecution has provided enough corroboration indicating
\n\tthe involvement of appellant in the commission of offence. The
\n\tdeposition adduced by Navalsinh Gohil PW-2, Exh.34 gets necessary
\n\tcorroboration from the deposition of Jayrajbhai Desai PW-11, at
\n\tExh.54, Pareshbhai Chhaganbhai PW-12, Exh.50 and the deposition of
\n\tPSI, Kantilal Patel PW-13, Exh.58. The deposition adduced by
\n\tKantilal Patel at Exh.58 makes it clear that the investigation
\n\tentrusted to him was carried out in most
\n\tscrupulous manner and there was no lacuna in the
\n\tinvestigation carried out by him. As per the say of the PSI-
\n\tKantibhai Patel, on the receipt of the complaint, the place where
\n\tthe incident in question took place was visited and the panchnama
\n\twith regard to the same in the presence of the panch witnesses
\n\twas prepared. The panchnama with regard to the
\n\trecovery of weapon which was used in firing was also prepared. The
\n\tExecutive Magistrate was also called by him for the purpose of
\n\tcarrying out the identification parade. The muddamal which was
\n\trecovered was sent to FSL and on the receipt of the report of the
\n\tFSL and other material on record of the case, the appellant along
\n\twith other accused persons were charge-sheeted. He had identified
\n\tthe muddamal articles during the course of the deposition adduced by
\n\thim. Thus, the learned APP submitted that considering the entire
\n\toral deposition and the documentary evidence, the prosecution has
\n\tproved each and every link connecting the appellant with the
\n\tcommission of offence punishable under Sections 397, 307 read with
\n\tSection 188 of IPC. Even on perusal of the reasons given by the
\n\tlearned Sessions Judge, the learned Sessions Judge has also
\n\tconsidered the entire gamut of oral deposition and documentary
\n\tevidence produced by the prosecution and convicted the appellant for
\n\tthe offence punishable under Sections 397, 307 read with Section 188
\n\tof IPC. Thus, as there is no infirmity in the judgment rendered by
\n\tthe learned Sessions Judge in convicting the appellant, no
\n\tinterference is called for in the appeal preferred by the appellant
\n\tis liable to be dismissed.\n<\/p>\n
I
\n\thave heard the learned advocate Shri Pravin Gondaliya for the
\n\tappellant and learned APP, Shri P.D.Bhate for the State at length
\n\tand in great detail. This Court has also undertaken a complete and
\n\tcomprehensive appreciation of all vital features of the case and the
\n\tentire evidence on record with reference to broad and reasonable
\n\tprobabilities of the case.\n<\/p>\n
On
\n\tre-appreciation and reevaluation of the entire evidence on record of
\n\tthe case, it becomes clear that the incident in question took place
\n\ton 23.3.2000 at about 7.30 in the evening near Vijay Plot at Rajkot.
\n\tOn the date of the incident, the injured Baldevbhai Parshotambhai
\n\tPatel was returning from the office of Vijay Plot to Soni Bazar and
\n\twas having bag containing Rs.4.50 Lacs (approximate). When he was
\n\tproceeding towards another office situated in Soni Bazar,
\n\the was assaulted by appellant.\n<\/p>\n
\tOn sustaining bullet injuries, he became unconscious and
\n\tsubsequently regained consciousness when he was admitted in the
\n\tHospital. He has deposed in his testimony that the person who
\n\tresorted to firing had put on black colour shirt and he came on the
\n\tmotorcycle at the place of incident. During the course of
\n\tdeposition, he had identified the appellant as one of assailant. On
\n\tperusal of the cross-examination, nothing turns out from his
\n\tcross-examination so as to dislodge his version given in the
\n\texamination in chief. The deposition adduced by Baldevbhai
\n\tParshotambhai Patel gets necessary corroboration from the deposition
\n\tadduced by Mohmadbhai Hanifbhai PW-5, at Exh.41. Mohmadbhai
\n\tHanifbhai has deposed in his testimony that the incident took place
\n\ton 23.3.2000. On the date of the incident he went to the shop
\n\tsituated in the Vijay Plot when he was returning from the shop
\n\tsituated in the Vijay Plot at about 7.30 to 8.00 O’Clock, he saw one
\n\tperson on the motorcycle
\n\twho resorted to firing. The person who was on the
\n\tbicycle, Baldevbhai Parshotambhai Patel sustained injury in the
\n\tfiring. The person who was on the motorcycle took the bag containing
\n\tto the amount to the tune of Rs.4,05,660\/- which was on the bicycle
\n\tand fled from the seen of offence. He was also called to identify
\n\tthe accused in the identification parade in the office of Mamlatdar.
\n\tHe had identified two accused persons and one of them as per his
\n\tsay, was present in the Court. Thus, Mohmmad Hanif had not only seen
\n\tthe incident but identified the appellant during the identification
\n\tparade as well as during the course of deposition in the Court. The
\n\tcomplaint was given by Chandrakantbhai Patel who has been examined
\n\tvide Exh.38 Chandrakantbhai had deposed in his testimony that on the
\n\tdate of incident when he was sitting in his office situated in Soni
\n\tBazar at Rajkot he received telephonic message from Jagdish
\n\tFurniture that one person met with an accident and sustained the
\n\tinjuries. When he reached the place of incident Baldevbhai was lying
\n\tin
\n\tpool of blood  near the shop of the Jagdish Furniture.
\n\tHe was not fully conscious when he reached the place of incident,
\n\tBaldevbhai narrated the incident. Baldevbhai was subsequently taken
\n\tto the Madhuram Hospital for providing immediate treatment. The
\n\tcomplaint was given by Chandrakantbhai Patel vide Exh.39. In the
\n\tcomplaint, he has narrated as to the manner in which the incident in
\n\tquestion took place on 23.3.2000 at about 21.00 hours.
\n\tHe has further narrated as to how the injured was
\n\tassaulted by the appellant who came on the motorcycle and looted the
\n\tinjured. The Doctor who gave the treatment to the injured has been
\n\texamined by the prosecution at Exh.30. Dr.Gaurang D.Dave has deposed
\n\tin his testimony that when he was present in the Hospital at 8.15 on
\n\t23.3.2000, one person named Baldevbhai Patel was brought to the
\n\tHospital. He had sustained serious injuries and therefore, operation
\n\twas performed on Baldevbhai and one Bullet was recovered from his
\n\tbody. He was also given blood transfusion. The injury certificate
\n\twas given by Dr.Gaurang D.Dave and the same is produced vide Exh.31.
\n\tOn perusal of the injury certificate, the injury sustained by the
\n\tinjured has been narrated therein. The injuries are narrated by
\n\tDr.Gaurang D.Dave in an elaborate manner.\n<\/p>\n
The
\n\tprosecution, in order to provide corroboration has examined
\n\tNavalsinh Gohil PW-2, vide Exh.34. Navalsinh was working as a City
\n\tMamlatdar, on 27.7.2000 at Rajkot. He had received one yadi from
\n\tPSI, ATS to carry out the identification parade. In pursuance of the
\n\tyadi received by him, the identification parade was carried out on
\n\t28.7.2000 at about 5.30 p.m. in the evening. During the course of
\n\tidentification parade, the appellant and another accused Valo @
\n\tVijay Bharvad were identified. The panchnama with regard to the
\n\tidentification parade was prepared in the presence of panch
\n\twitnesses.\n<\/p>\n
The
\n\tprosecution has also examined the panch witnesses in order to bring
\n\thome the guilt against the appellant. However, some of the panch
\n\twitnesses have turned hostile and not supported the prosecution case
\n\tand therefore, prosecution has placed heavy reliance on the
\n\tdeposition adduced by Investigating Officer Kantibhai Patel, PW-13,
\n\tvide Exh.58. On perusal of the deposition adduced by Kantibhai
\n\tPatel, it becomes clear that the investigation was carried out in a
\n\tmost scrupulous manner. The panchnama with regard to the place of
\n\tthe incident was prepared. The muddamal article which was recovered
\n\twas sent to FSL for the detailed analysis. Even the weapon which was
\n\tused in the commission of
\n\toffence was recovered and the panchnama with regard to the same was
\n\tprepared. The The panchnama with regard to the place of the incident
\n\tand the clothes put on by the victim and the recovery of the bullet
\n\twas prepared. This
\n\twitness has identified the muddamal articles shown to him during the
\n\tcourse of the deposition. On perusal of the cross-examination,
\n\tnothing turns out from his cross-examination to dislodge his version
\n\tgiven in the examination in chief.  The prosecution has also
\n\tproduced the panchnama of the place of incident vide Exh.47, the
\n\tpanchnama with regard to the recovery of the clothes put on by the
\n\tvictim and recovery of bullet vide Exh.33, the panchnama of the
\n\tidentification parade vide Exh.36, the panchnama with regard to the
\n\tseizure of Hero Honda Motorcycle which was used in the commission of
\n\toffence,  the panchnama with regard to identification of muddamal
\n\tarticles vide Exh.62, etc. to the present case. These documentary
\n\tevidence, in my considered view, provide ample corroboration to the
\n\tprosecution story indicating the involvement of the appellant in the
\n\tcommission of offence.\n<\/p>\n
The
\n\tprosecution has produced the detailed analysis carried out by the
\n\tFSL vide Exh.63 which provides further corroboration to the
\n\tprosecution story about the assault committed by the appellant on
\n\tthe victim and the injuries sustained by the victim during the
\n\tattack. Thus, the prosecution has on the basis of the over all
\n\tevidence adduced in the present case established the entire link
\n\tconnecting the appellant with the commission of offence.\n<\/p>\n
For
\n\tthe foregoing reasons, since the learned Sessions Judge, while
\n\tconvicting the appellant for the offence punishable under Sections
\n\t307, 397 and 188 of Indian Penal Code and imposing sentence for a
\n\tperiod of 7 years of R.I. and a fine of Rs.25,000\/- and in default
\n\tS.I. for 1 year has not committed any infirmity, the order of
\n\tconviction and sentence passed by the learned Judge requires to be
\n\tupheld and therefore, no interference is called for in the present
\n\tappeal and the appeal is hereby dismissed. Muddamal articles is to
\n\tbe destroyed in terms of the order passed by the learned Sessions
\n\tJudge, Rajkot after the appeal period is over.\n<\/p>\n
Accordingly,
\n\tthis appeal is dismissed.\n<\/p>\n
(H.B.ANTANI,
\nJ.)<\/p>\n
ashish\/\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Arjun vs Unknown on 17 November, 2008 Author: H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================================= 1 Whether Reporters of Local Papers may be allowed to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-177483","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nArjun vs Unknown on 17 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arjun-vs-unknown-on-17-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arjun vs Unknown on 17 November, 2008 - 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