CR.A/631/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 631 of 2007 With CRIMINAL APPEAL No. 822 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= HARSHADBHAI @ KALPESHBHAI MOHANBHAI PATEL - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR PR ABICHANDANI for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 21/10/2008 ORAL COMMON JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) Both these appeals arise out of the judgment and order CR.A/631/2007 2/13 JUDGMENT rendered by the Ld. Addl. Sessions Judge, Fast Track Court No. 3, Surendranagar [for short 'the Ld. Trial Judge'] on 9/3/2007 in Sessions Case No. 14 of 2006. The appellant Harshadbhai alias Kalpeshbhai Mohanbhai Patel of Criminal Appeal No. 631 of 2007 was original accused no. 3 in the aforesaid Sessions Case and the appellant Salim Babukhan Pathan of Criminal Appeal No. 822 of 2007 was original accused no. 2 in the aforesaid Sessions Case. Both the appellants – accused persons came to be convicted for the offences punishable under section 395 of the Indian Penal Code [IPC] and section 135 of the Bombay Police Act [B P Act] and each of them was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000/-, in default to further undergo simple imprisonment for 3 months for the offence punishable under section 395 of the IPC. No separate order of sentence was passed so far as the conviction for the offence punishable under section 135 of the B P Act was concerned. It is further pertinent to note that the original accused no. 1 – Irfanali Subhanali came to be acquitted by the Ld. Trial Judge by the impugned judgment and order. In the result, the original accused nos. 2 and 3, who came to be convicted, preferred these two appeals challenging the legality and validity of the impugned judgment. 2. The prosecution case, in nutshell, is as under :- CR.A/631/2007 3/13 JUDGMENT 2.1. As per the case of the prosecution, the present appellants along with 5 other accused persons had entered into a conspiracy to loot the tanker bearing Registration No. MP-09-KB-4579 driven by the first informatn Dilip Ramvamanrao Gadgile. That in furtherance to said conspiracy, on 22/10/2004 at about 11.00 p.m., during the night hours when the tanker was passing on the National Highway near village Sayla, the appellants along with the co-accused persons, who were travelling in a Tata Sumo car, chased said tanker and intercepted said tanker. The first informant was constrained to stop the tanker. He was compelled to come out of the tanker. He was shown knife and was threatened and was forcibly made to sit in the Tata Sumo car in which the accused persons were allegedly travelling. It is further alleged that some intoxicant substance was administered to the first informant, which made him to lose his consciousness and the accused persons looted the aforesaid tanker in which there was 24,000 litres of diesel oil. It is further alleged that the first informant was tied and thrown on the roadside and upon regaining consciousness on the next day, he telephoned the owner of the tanker and ultimately the first informant Dilip Ramvamanrao lodged the First Information Report [FIR] in Sayla Police Station which was registered. The police investigation was commenced. The police recorded statements of material witnesses. 3 accused persons including the present 2 CR.A/631/2007 4/13 JUDGMENT appellants came to be arrested. Test Identification Parade [for short 'TIP'] was conducted in the office of the Executive Magistrate. Required panchnamas were drawn in presence of panchas. After completion of the police investigation, charge-sheet came to be filed in the Court of the Ld. Judicial Magistrate First Class, Wadhvan against the 3 accused persons including the 2 appellants. As the offence was exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Sessions Court, Surendranagar. 2.2. The Ld. Trial Judge framed charge at exh. 6. The appellants – accused persons did not plead guilty and claimed to be tried. Thereupon the prosecution adduced oral and documentary evidence. After the completion of the evidence, Ld. Trial Judge recorded further statements of the accused persons under section 313 of the Code of Criminal Procedure wherein the accused generally denied all the allegations levelled against them and submitted that they were falsely implicated in this case. 2.3. After considering the evidence on record and after hearing the arguments advanced on behalf of both the parties, the Ld. Trial Judge delivered the impugned judgment and order and he was pleased to acquit the original accused no. 1 – Irfanali Subhanali, but recorded conviction qua the 2 accused persons, who are appellants herein. CR.A/631/2007 5/13 JUDGMENT 3. Learned advocate Mr. P R Abichandani for the appellants submitted that on the same set of evidence, the Ld. Trial Judge came to the conclusion that so far as the original accused no. 1 – Irfanali was concerned, the prosecution failed to prove its case beyond reasonable doubt and on the same set of evidence the appellants came to be convicted holding that the prosecution proved its case beyond any reasonable doubt. That so far as the 2 appellants are concerned, their names were not referred by the first informant in the FIR nor their descriptions were mentioned. The so called incident occurred during night hours and as admitted by the first informant in his deposition, there was absolute darkness and the darkness was such that no person can be identified. Admittedly, the appellants were totally unknown to the first informant. Even at the time of incident, there was no opportunity for the first informant to identify them or even to see their faces. That the prosecution relies upon the evidence of TIP wherein it is alleged that the first informant could identify the appellants. However, considering the deposition of the first informant, before the TIP, he was shown both the appellants in the police station. Even after very long time from the date of so called offence, the TIP was conducted. That there is no satisfactory evidence as to how the first informant could remain present in the office CR.A/631/2007 6/13 JUDGMENT of the Executive Magistrate for the purpose of TIP. That barring the evidence adduced by the Executive Magistrate in connection with the TIP, which is not otherwise trust-worthy, there is no evidence whatsoever to come to the conclusion that both or any of the appellants are involved in this crime. That nothing incriminating article was recovered from the appellants nor at their behest anything was discovered. That unattended and abandoned tanker was recovered by drawing panchnama exh. 21. That the original accused no. 1 Irfanali said to have produced 40 barrels of diesel oil before the police and the same was recovered by drawing panchnama exh. 28. Irfanali ultimately came to be acquitted by the Ld. Trial Judge. Thus, nothing was recovered from the appellants. Therefore, it is submitted that the appeals be allowed and the appellants may be acquitted. 3.1. Ld. APP Mr. Bhatt for the respondent – State vehemently opposed these appeals and submitted that so far as the appellants are concerned, the prosecution successfully proved its case beyond any reasonable doubt. That the appellants were identified by the complainant during the course of TIP as well as in the Court at the time when his deposition was recorded. That as per the evidence on record, the appellants along with other co-accused persons compelled the complainant to sit in Tata Sumo car, he was administered intoxicant CR.A/631/2007 7/13 JUDGMENT substance. Thus, there was ample opportunity at the time of commission of the offence for the complainant to look at the faces of the appellants and to mark their special features. Thus, the evidence in form of TIP panchnama and the deposition of Executive Magistrate coupled with the testimony of the complainant cannot be doubted. Both the appellants were within the close proximity of the complainant. Therefore, the fact that the incident occurred during night hours and there was darkness is totally irrelevant. Therefore, it is submitted that both these appeals be dismissed. 4. Considering the submissions made before us on behalf of both the sides as well as considering the record of the Sessions Case No. 14 of 2006, there is no dispute that both the appellants were totally unknown to the first informant Dilip Ramvamanrao. Considering the record of the case as well as the impugned judgment delivered by the Ld. Trial Judge, so far as the appellants are concerned, the entire controversy centers round the question of their identification. 4.1. Considering the deposition of the first informant Dilip Ramvamanrao exh. 45, narrating the incident, he stated that while he was driving the tanker and at about 11.00 p m during night hours, while he was passing on the National Highway near Sayla, at that time one Tata CR.A/631/2007 8/13 JUDGMENT Sumo car overtook his tanker and his tanker was intercepted. Some unknown persons came out from the car and he was compelled to get down from his tanker. He was made to sit in the car. He was administered some intoxicant liquid. 2 to 3 unknown persons took away his tanker. He was thrown on the road-side and he became unconscious. After gaining consciousness, he telephoned the owner of the tanker and thereafter lodged the FIR. It is pertinent to note that during the course of his examination-in-chief, he stated that he had identified 2 accused persons [the appellants] in the office of the Executive Magistrate, but those 2 accused persons whom he had identified, were not present in the Court. The Ld. Trial Judge who recorded the deposition of the complainant Dilip Ramvamanrao made note in the deposition that the witness could not identify any of the accused persons. Thereafter, it seems that he identified both the appellants. In his cross-examination he stated that after about 2 months from the date of incident, he was called for the purpose of TIP. In para. 4 of his cross-examination, he out-rightly admitted that when he was called for the purpose of TIP, at that time both the appellants were in police custody and he was shown both the appellants. He stated that he does not know as to when he was called for the purpose of TIP to identify the accused persons. He admitted that before going to the office of the Executive Magistrate, he had gone to the police station. In para. 8 CR.A/631/2007 9/13 JUDGMENT of his deposition, he further admitted that at the time of incident, there was a darkness and that the darkness was such that no-one can be identified. 4.2. Thus, considering the deposition of the first informant and the FIR exh. 47, it clearly transpires that both the appellants were totally unknown to him. It further transpires that in the FIR exh. 47, no names of the robbers were mentioned, but even their description was not mentioned. Only some description regarding colour of their clothes is given, but no special features or how they were looking like, etc., have not been specifically narrated by the first informant in the FIR. The same is the situation if we peruse his deposition. He clearly admitted that there was darkness and the darkness was such that nobody can be identified. Even during the course of his entire deposition, he does not say that he could identify the appellants either because when he was made to sit in the car, the appellants were in the car or that they gave him some intoxicant substance and, therefore, he was able to identify them during the TIP. On the contrary, as stated above, in his examination-in-chief itself he could not identify the appellants – accused persons in the Court. The Ld. Trial Judge had to make special note in this regards in his deposition. Thereafter, however, he could identify them. This makes his version doubtful. At one point of time, he was not in a position to CR.A/631/2007 10/13 JUDGMENT identify the appellants in the Court and subsequently abruptly he was in a position to identify them. 4.3. A very material aspect of the matter is that as admitted by the first informant Dilip Ramvamanrao in his testimony, before he attended the TIP in the office of the Executive Magistrate to identify the accused persons, he had gone to the police station wherein both the appellants were present and the police had shown him both the appellants. When both the appellants were shown to him before TIP, the evidence adduced by the prosecution regarding the TIP panchnama loses its credibility. 5. The prosecution examined Executive Magistrate Mr. Patel at exh. 55. The TIP panchnama is produced at exh. 58. The TIP proceedings took place on 31/5/2005. The incident took place on 22/10/2004. After about 6 months from the date of incident, the TIP proceedings took place. As stated above, at the time of incident, the first informant Dilip Ramvamanrao was not at all in a position to identify any of the appellants. Even on the day of TIP dated 31/5/2005 before he went to the office of the Executive Magi Mr. Patel, he was already shown the appellants by the police. Considering the deposition of Executive Magistrate Mr. Patel, it is clear that he had not sent any written intimation to the first informant to remain present during the course of CR.A/631/2007 11/13 JUDGMENT TIP. According to him, he received letter from the Investigating Officer on 30/5/2005 to arrange TIP and on very next day on 31/5/2005 the TIP was arranged. He further admitted that the first informant Dilip belonged to Maharashtra. According to him, if any, witness who is required in the TIP for the purpose of identification, resides at far distance, then appropriate time is given to the witness so that he can keep himself present during the TIP. However, in this case, though the first informant was staying in Maharashtra, on the very next day from the date of receiving the intimation, TIP was arranged. 6. Considering the evidence on record, there is nothing that any incriminating article was recovered either from any of the appellants or at their behest any incriminating article was seized. Considering the panchnama exh. 21, unattended and abandoned tanker was seized by the police which was there on Mehsana-Modhera road near village Ranola. Considering the panchnama exh. 28, it is stated that the original accused no. 1 – Irfan, who ultimately came to be acquitted, produced 40 barrels of diesel oil alleged to have been looted from the tanker. 7. Considering the deposition of P.S.I. Mr. Pathan exh. 73, who conducted the investigation, in his deposition, he admitted that the first CR.A/631/2007 12/13 JUDGMENT informant was resident of Maharashtra. He had requested the Executive Magistrate on 30/5/2005 to arrange TIP, which was arranged on 31/5/2005. He admitted that the first informant was not issued any notice or any writing to attend the office of the Executive Magistrate, but instead, he deposed that, he had telephoned the first informant. The first informant Dilip Ramvamanrao in his deposition, no-where stated that the Investigating Officer telephoned him and, therefore, he remained present in the office of the Executive Magistrate. On the contrary, considering para. 6 of the deposition of the first informant Dilip Ramvamanrao exh. 45, he stated that he does not know as to on which date and time he was called to remain present in the office of the Executive Magistrate and how he was called. Considering the deposition of P.S.I. Mr. Pathan, he further admitted that on the day of TIP proceedings, the first informant had come to his police station and at that time both the appellants were present in the police station. 8. In light of the aforesaid discussions, we are of the considered opinion that the Ld. Trial Judge erred in holding that the prosecution proved beyond reasonable doubt the involvement of the appellants in this offence. No satisfactory evidence can be said to have been adduced by the prosecution regarding the identification of the appellants. Thus, the very CR.A/631/2007 13/13 JUDGMENT substratum of the prosecution case loses its credibility. We are, therefore, of the opinion that both these appeals deserve to be allowed and the appellants deserve acquittal. 9. For the foregoing reasons, both the appeals are allowed and the impugned judgment and order delivered by the Ld. Trial Judge in Sessions Case No. 14 of 2006 recording the conviction of the appellants for the offence under section 395 of the IPC is hereby set aside. The appellants are ordered to be released from the jail forthwith, if they are no longer required in any other case. Fine, if paid, to be refunded to them. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) *Pansala.