{"id":29120,"date":"2008-09-23T00:00:00","date_gmt":"2008-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhanjibhai-vs-these-on-23-september-2008"},"modified":"2017-07-28T07:19:14","modified_gmt":"2017-07-28T01:49:14","slug":"dhanjibhai-vs-these-on-23-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhanjibhai-vs-these-on-23-september-2008","title":{"rendered":"Dhanjibhai vs These on 23 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dhanjibhai vs These on 23 September, 2008<\/div>\n
Author: A.L.Dave,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&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\/8320\/2005\t 10\/ 12\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. 83 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 255 of 2005\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE J.C.UPADHYAYA\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\nDHANJIBHAI\nMOHAN VAGHARI - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Opponent(s)\n \n\n===============================================================\nAppearance : \nMR\nHARSHIT S TOLIA for Appellant(s) : 1 - 2. \nMR. UR BHATT APP for\nOpponent(s) :\n1, \n===============================================================\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 A.L.DAVE\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 23\/09\/2008 \n\n \n\n \n \n\n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
1.\tThese
\ntwo appeals arise out of a judgment and order rendered by learned 4th
\nFast Track Court Judge at Gondal on 29.12.2004 in Sessions Case No.82
\nof 1996.\n<\/p>\n
2.\tIn
\nall seven persons were charged and tried
\nfor the offences punishable under Sections 395, 397, 504, 506(2), 411
\nof I.P.C. and Section 135 of the Bombay Police Act. Original accused
\nNo.1 and Nos.3 to 6 came to be convicted by the Trial Court for the
\nsaid offences and accused Nos.2 and 7 came to be acquitted by the
\nTrial Court on the basis of the evidence led before it by the
\nprosecution.\n<\/p>\n
3.\tThe present appeals are
\npreferred by original accused Nos.1,3,4 and 5, namely, Dhanji Mohan
\nVaghri, Madhu Desha Vaghri, Himmat Desha Vaghri and Dhiru Panna
\nVaghri respectively.\n<\/p>\n
4.\tThe prosecution case, in
\nbrief, is that on 11.09.1993 between 2 to 4 hours in the early
\nmorning of that day, the accused persons went to the house of the
\nfirst informant   Champaklal Bhurabhai Vaniya located at village
\nVasavad for committing robbery. They were all armed with the weapons
\nlike dharia, knife and iron pipes etc. It is also a case of the
\nprosecution that they were also in black clothes and their faces were
\nmasked, except the eyes. They break opened the doors of the house of
\nthe first informant, entered into the house and committed robbery of
\ngold and silver ornaments and cash besides master shares. After
\ncommitting robbery at the house of the first informant, they tried to
\nrob branch of Bank of Baroda located on the ground floor of the house
\nof the first informant but failed and thereafter, they escaped. It is
\nalso a case of the prosecution that during the course of this
\ntransaction, the accused persons caused hurt to the first informant
\nand his wife with the help of deadly weapons on various parts of the
\nbody.\n<\/p>\n
4.1.\t\tThe first informant
\nChampaklal Bhurabhai Vaniya lodged F.I.R. with the police on
\n11.09.1993 at about 9:30 hours, on basis of which, offences came to
\nbe registered and investigation started. The investigation seems to
\nhave spread over a long period and at the end of the investigation,
\nthe Investigating Agency having found sufficient material, filed
\nchargesheet in the Court of learned J.M.F.C., Gondal. Since the
\noffences alleged against the miscreants were triable by the Sessions
\nCourt exclusively, the learned Magistrate committed the case to the
\nCourt of Sessions and Sessions Case No.82 of 1996 came to be
\nregistered.\n<\/p>\n
4.2.\t\tThe charge was framed
\nagainst the accused persons at Exh.1. The accused persons pleaded not
\nguilty to the charge and claimed to be tried.\n<\/p>\n
4.3.\t\tOn the basis of the
\nevidence led by the prosecution, the Trial Court came to the
\nconclusion that the prosecution could not establish the charges
\nagainst original accused Nos.2 and 7, namely, Savjibhai @ Shivji
\nMohan Vaghri and Ashok Radha Krishna @ Radha Kishan respectively and
\nrecorded their acquittal by the judgment impugned herein. It would be
\nstated at this stage that no appeal is preferred against their
\nacquittal by the State.\n<\/p>\n
4.4.\t\tThe Sessions Court also
\ncame to the conclusion that the prosecution was successful in
\nestablishing charges against accused No.1   Dhanji Mohan Vaghri and
\naccused Nos.3 to 6   Madhu Desha Vaghri, Himmat Desha Vaghri, Dhiru
\nPanna Vaghri and Babu Popat Vaghri for the offences punishable under
\nSections 395,397,504,506(2) of the Indian Penal Code and Section 135
\nof the Bombay Police Act. The Sessions Court awarded punishments as
\nunder:-\n<\/p>\n
\tSection 395 – R.I. for ten years
\n\tand fine of Rs.1,000\/-, in default, to undergo S.I. for one year.\n<\/p>\n
\tSection 397 – R.I. for seven
\n\tyears and fine of Rs.1,000\/-, in default, to undergo S.I. for one
\n\tyear.\n<\/p>\n
\tSection 504 of I.P.C. – R.I. for
\n\ttwo years and fine of Rs.500\/-, in default, to undergo S.I. for
\n\tthree months.\n<\/p>\n
\tSection 506(2) of I.P.C. – R.I.\n<\/p>\n
\tfor seven years, fine of Rs.500\/-, in default, to undergo S.I. for
\n\tthree months and;\n<\/p>\n
\tSection 135 of the Bombay Police
\n\tAct – R.I. for one year and fine of Rs.500\/-, in default, to undergo
\n\tS.I. for three months.\n<\/p>\n
\tIt is against this conviction
\nand sentence,  that the appellants-original accused persons
\nhave preferred these appeals. The original accused   Babu Popat
\nVaghri has not preferred any appeal against conviction.\n<\/p>\n
5.\tWe have also heard learned
\nadvocate Mr.Tolia for the appellants and learned A.P.P. Mr.U.R. Bhatt
\nfor the respondent. We have also examined the Record and Proceedings.\n<\/p>\n
6.\tLearned advocate Mr.Tolia
\nsubmitted that the prosecution case as it was, was that the incident
\noccurred in the early morning hours in the house of the first
\ninformant. It has come in evidence of the first informant, his wife,
\nhis son and his daughter-in-law that, at that time, there was
\ndarkness in the house. It is also the case of the prosecution that
\nall the assailants were dressed in dark clothes and their faces were
\nmasked, except their eyes. None of the witnesses to the incident,
\ntherefore, could have identified the assailants. Mr.Tolia submitted
\nthat in order to fix the identity, the Investigating Officer has
\nrecorded their further statements wherein, the witnesses say that the
\nassailants had asked for water and in order to take water, they had
\nunmasked their faces and that is how they were identified. Mr.Tolia
\nsubmitted that this is a totally unbelievable and improper story.\n<\/p>\n
6.1.\t\tMr.Tolia further submitted
\nthat Test Identification Parade which is the main foundation of
\nconviction is not beyond doubt. According to Mr.Tolia, before the
\nTest Identification Parade was conducted, the witnesses were shown
\nthe photographs of the accused persons. He also states that there is
\nnothing in evidence to show that the precautions were taken to ensure
\nthat the accused persons, who are brought for Test Identification
\nParade, were not exposed to the witnesses. Mr.Tolia, therefore,
\nsubmitted that the Test Identification Parade ought not to have been
\nbelieved by the Trial Court.\n<\/p>\n
6.2.\t\tMr.Tolia further
\nsubmitted that the witnesses have, while identifying the
\naccused persons in the Court, committed mistakes in fixing the
\nidentity. He submitted that the First Information Report is silent on
\nthe names and identity of the assailants. It has not come in evidence
\nas to how the witnesses could recognise the accused persons by their
\nnames after two years of the date of occurrence. If the witnesses
\nknew the assailants by their names, the first informant ought to have
\ngiven their names in the F.I.R. which is not done and if there was
\nsome other reason for identifying the assailants, that aspect ought
\nto have come on record and in the absence thereof, it can be said
\nthat there is no material to know as to how the witnesses have
\nidentified the assailants as the appellants-convicts.\n<\/p>\n
6.3.\t\tMr.Tolia further submitted
\nthat there is no recovery or discovery at the hands of any of the
\nconvicts and, as such, there is no link established by the
\nprosecution to connect the convicts with the crime. Mr.Tolia
\nsubmitted that in light of the above defects in the prosecution case,
\nthe Trial Court ought not to have recorded conviction and, in any
\nway, this Court may set aside the judgment of the Trial Court and
\nacquit the appellants of the charges levelled against them. The Trial
\nCourt has committed error in recording conviction of the appellants
\nfor the offences punishable under Sections 504 and 506(2) of the
\nIndian Penal Code in total absence of evidence.\n<\/p>\n
6.4.\t\tBy way of an alternative
\nsubmission, Mr.Tolia submitted that sentence awarded by the Trial
\nCourt is too harsh for any of the offences and, if the  Court is not
\ninclined to entertain the appeals on merits, at least the case of the
\nappellants may be considered sympathetically since they are in jail
\nfor nearly seven years.\n<\/p>\n
7.\tOn the other hand, learned
\nA.P.P. has opposed these appeals. According to him, the witnesses
\nidentified the assailants as the accused during cross-examination
\nand, therefore, that identification would deserve due weightage.
\nMr.Bhatt, learned A.P.P. also submitted that the incident occurred
\nall of a sudden and, therefore, the first informant may not have
\ngiven names of the assailants but when he says that he had identified
\nthe assailants in the light of streetlight soon after the incident,
\nthere is no reason to disbelieve his version. Non recovery of
\nbooty by itself may not be a ground for acquitting the accused.
\nAccording to Mr.Bhatt, the conviction has rightly been recorded and
\nthe appeals, therefore, may be dismissed.\n<\/p>\n
8.\tWe have considered the rival
\nside submissions. From the Record and Proceedings, we find
\nthat first informant – Champaklal Bhurabhai Vaniya was examined at
\nExh.40, his wife was examined at Exh.41, his son   Depak
\nChampaklal was examined at Exh.51 and Dipak’s wife   Heenaben was
\nexamined at Exh.88. The depositions run in number of pages but what
\nemerges therefrom, can be discussed as under:-\n<\/p>\n
8.1.\t\tUndisputedly, there was
\ndarkness in the house of the first informant where the robbery is
\nalleged to have been committed. The assailants were wearing masks on
\ntheir faces leaving open only the part of the eyes. In the F.I.R.,
\nthe F.I.R. does not give the name of any of the assailants nor does
\nit give any description of any of the assailants. It does not emerge
\nfrom the F.I.R. that the assailants had asked for water and, while
\ntaking water, they had unmasked their faces. It also does not emerge
\nfrom the F.I.R. that there was light coming from the windows with the
\nhelp of which, the assailants were identified by the first informant
\nor other witnesses.\n<\/p>\n
8.2.\t\tIt also emerges from the
\nevidence that the theory of the assailants asking for water and while
\ntaking water unmasking their faces emerges from the statements
\nrecorded of those witnesses after the Test Identification Parade.
\nThis, in our opinion, is a clear attempt on the part of the
\nInvestigating Agency to fill up the lacuna in the case of the first
\ninformant and by this, an attempt is made to give colour of
\ntruthfulness to the identification made by the witnesses in the Test
\nIdentification Parade.\n<\/p>\n
8.3.\t\tIt also emerges from the
\nevidence of these witnesses that while deposing before the Court
\nwitnesses   Vinaybala Champaklal (Exh.41) and Dipak Chempaklal
\n(Exh.51) have not identified the accused persons in their examination
\nin chief. Unfortunately, the defence has put certain questions
\nregarding identity of the accused persons and during the course of
\nexamination, the witnesses have tried to identify the accused persons
\nby their names as assailants but in doing so, they have committed
\nmistakes and have fixed the identity wrongly, incorrectly or
\nerroneously. As a result, the accused persons were identified by the
\nnames of other accused persons.\n<\/p>\n
9.\tIt also emerges from the
\nevidence of the Investigating Officer that the photographs of the
\naccused persons were shown to the witnesses before Test
\nIdentification Parade. It also emerges from the evidence that
\nphotograph of one Anakbhai Kabubhai Kathi was also shown to the
\nwitnesses during the course of investigation. But, thereafter, what
\nhappened and why that Anakbhai is not arraigned as an accused is not
\nexplained by the prosecution.\n<\/p>\n
9.1.\t\tIt also emerges from the
\nevidence that no booty is recovered or discovered from any of the
\naccused persons.\n<\/p>\n
9.2.\t\tIt also emerges from the
\nevidence of Executive Magistrate   Dipakbhai Shukla at
\nExh.146 that no precautions were taken to ensure that the accused
\npersons were not exposed before exposing to public or to witnesses,
\nbefore Test Identification Parade was conducted.\n<\/p>\n
10.\tIt is also on the record that
\nthe Investigating Officer was present when the Test Identification
\nParade was conducted by the Executive Magistrate. The evidence is
\ntotally silent, so far as charges of offences punishable under
\nSections 504 and 506(2) are concerned. No weapon is recovered from
\nany of the accused or discovered by any of them.\n<\/p>\n
11.\tIn light of foregoing salient
\nfeatures and the prosecution evidence, we are of the view that the
\nTrial Court erred in recording their convictions and sentenced them.
\nThe appeals are allowed. The judgment
\nand order of Sessions Court, Gondal dated 29.12.2004 in Sessions Case
\nNo.82 of 1996 recording conviction of the appellants impugned in the
\nappeals is hereby set aside. The appellants are acquitted of all the
\ncharges levelled against them. They be set at liberty forthwith, if
\nnot required in any other case. Fine, if paid, shall be refunded to
\nthem.\n<\/p>\n
(A.L.DAVE,
\nJ.)<\/p>\n
(J.C.UPADHYAYA,
\nJ.)<\/p>\n
Hitesh<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dhanjibhai vs These on 23 September, 2008 Author: A.L.Dave,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print CR.A\/8320\/2005 10\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 83 of 2005 With CRIMINAL APPEAL No. 255 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE […]<\/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-29120","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDhanjibhai vs These on 23 September, 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\/dhanjibhai-vs-these-on-23-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dhanjibhai vs These on 23 September, 2008 - 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