CR.A/1126/2006 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1126 of 2006 With CRIMINAL APPEAL No. 1127 of 2006 With CRIMINAL APPEAL No. 1181 of 2006 With CRIMINAL APPEAL No. 1269 of 2006 With CRIMINAL APPEAL No. 1299 of 2006 With CRIMINAL APPEAL No. 1459 of 2006 With CRIMINAL APPEAL No. 1460of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= MAYURBHAI MANSUKHLAL DHOTIJOTAWALA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR J.D.SUTHAR for MR NK MAJMUDAR for Appellants in Cr.A Nos.1126, 1127,1299,1459,1460 of 2006 & Mr.DJ BHATT for Appellants in Cr.A Nos. 1181 & 1269 of 2006 MR LR PUJARI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 30/09/2008 COMMON ORAL JUDGMENT CR.A/1126/2006 2/34 JUDGMENT 1. The learned Addl. Sessions Judge and Presiding Officer, 2nd Fast Track Court, Surat by his common judgment and order dated 26.4.2006 in Sessions Case No.69 of 2005, convicted appellants accused (1) Digvijay @ Digo Chandrakant Modi; (2) Ketan @ Pintoo Madhukarbhai Joglekar; (3) Pankaj @ Pako Babulal Kadva Patel; (4) Mukesh Naginbhai Panchal; (5) Bharat @ Pintu Balubhai Vasava; (6) Ravi @ Ilu Arjun Sirsat and (7) Mayurkumar Mansukhlal Dhothi Jothawala for the offences punishable under Sections 394 read with Section 120(B) of Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- each, in default, to further undergo simple imprisonment for three months. The learned Judge also ordered appellant-accused No.5 to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default, to further suffer simple imprisonment of three months for the offence punishable under Section 397 read with Section 120(B) of Indian Penal Code. However, the learned Judge acquitted all the accused for the offence punishable under Section 135 of the Bombay Police Act and ordered to give set off for the period during which the accused were in jail and that all the sentences to run concurrently. As one of the CR.A/1126/2006 3/34 JUDGMENT accused, namely, Mahadev was absconding, the learned Judge has not imposed any punishment and therefore, no order was passed with regard to the muddamal articles. 2. The present appeals are preferred against the aforesaid common judgment and order which have been numbered accordingly by each of the accused. Hence, all these appeals are heard together and disposed of by this common judgment of mine. 3. Heard learned Advocate Mr.J.D.Suthar for Mr.N.K.Majmudar for the appellant - original accused No.3-Pankaj @ Pako Babulal Kadva in Criminal Appeal Nos.1126 of 2006; for original accused No.4-Mukesh Naginbhai Panchal in Criminal Appeal No.1127 of 2006; for original accused No.2-Ketan Pintoo Madhukarbhai Joglekar in Criminal Appeal No. 1299 of 2006; for accused No.5-Bharat @ Pintoo Babulal Vasava in Criminal Appeal No.1459 of 2006; for original accused No.6 – Ravi @ Ilu Arjunbhai Sirsath in Criminal Appeal No.1460 of 2006; and learned advocate Mr.D.R.Bhatt for original accused No. 1 – Digvijay @ Digo Chandrakant Modi in Criminal Appeal No.1269 of 2006; and for original accused No.3 – Pankaj @ Pako Babulal Patel in Criminal Appeal No.1181 of 2006. I CR.A/1126/2006 4/34 JUDGMENT have also heard learned APP Mr.L.R.Pujari for respondent State. 4. It is argued by learned advocate Mr.Suthar for the concerned appellant-original accused that there are major contradictions in the evidence of the witnesses and glaring lacunae are found in the investigation and the learned Addl.Sessions Judge has ignored the same has erred in convicting the appellants-accused. It is also argued by Mr.Suthar that most of the witnesses have turned hostile and have not supported the case of the prosecution. However, without taking into considering this aspect, the trial Court has committed a grave error in convicting the accused. He further submitted that accused Mayurkumar was not identified by the complainant during the investigation parade though the complainant had identified other four accused and in spite of that, accused Mayurkumar has been convicted. So far as accused Mayurkumar is concerned, he is convicted only on the basis of recovery of Yamaha Motor-cycle which was used in committing the crime and the trial Court has committed error in convicting the accused. The evidence with regard to the investigation parade conducted as per the CR.A/1126/2006 5/34 JUDGMENT provisions of Section 9 of the Evidence, does not inspire confidence and this evidence is totally shaky and on the basis of relying upon this, the trial Court has committed error in convicting this accused. So far as accused No.1 – Digvijay @ Digo Chandrakantbhai Modi and accused No.2 – Ketan @ Pintoo Madhukarbhai Joglekar are concerned, there is no iota of evidence which establishes that both of them were involved in the conspiracy and that they have played any role in committing the crime and therefore, the offence under Section 120(B) of IPC is not prima facie proved and therefore also, the trial Court has committed an error in convicting both these accused. It is also argued by Mr.Suthar that as per the prosecution, when the investigating Officer reached Lonawala, he found that the accused were sitting in the hotel and thereafter, they left the hotel and the Investigating Officer found them in the Esteem Car on Bombay-Lonawala Road and both the accused were asked to come to Surat Police Station. However, the Investigating Officer had not informed the concerned Police station of Lonawala nor drawn any panchnama on the spot and thereafter 5-6 hours after they reached the Surat Police Station, both the CR.A/1126/2006 6/34 JUDGMENT accused were arrested which clearly leads to the conclusion that both the accused were subsequently, as an afterthought, involved in committing the crime and therefore, the trial Court has committed error in not considering this vital aspect which goes to the root of the case of prosecution and hence, the trial Court has committed a grave error in convicting both these appellants-accused. As against that, learned advocate Mr.D.J.Bhatt argued that except the evidence of Mobile Number of accused No.3 – Pankaj found in the Mobile of the other accused, he has also been involved in committing the crime. It is submitted by him that no Mobile Number is produced along with the charge sheet. It is also submitted that accused Pankaj is serving as a Peon with the Bank and he received serious injuries and he remained in hospital as an indoor patient and except this evidence, nothing has come out as evidence which connects this accused with committing the crime and therefore,the trial Court has committed an error in convicting this accused. 5. Learned APP Mr.L.R.Pujari has submitted that the prosecution has proved its case beyond reasonable doubt. He has submitted that as per accused No.3- CR.A/1126/2006 7/34 JUDGMENT Pankaj, accused No.5-Mukesh, and accused No.7- Mayurkumar, there is no sufficient evidence by which they can be convicted for the charges levelled against them and a doubt is created regarding their involvement in the commission of the offence and so, they deserve to be acquitted. But, as far as the convicted accused persons are concerned, the prosecution has succeeded in proving its case beyond reasonable doubt by adducing cogent, reliable and convincing evidence as there is direct as well as circumstantial evidence which is established between the accused with the commission of the crime and the trial Court has rightly convicted them and so their appeals are required to be dismissed. 6. The prosecution case, in nutshell, are as under: 6.1 One Rakesh Govindbhai Patel, the complainant, was working as a Clerk in Mehsana Urban Co.op.Bank Ltd., Surat Branch. At the relevant time, accused No.3-Pankaj was serving as a Peon in the said Bank. According to the prosecution case, at the relevant time, the complainant used to collect cash as per the instructions of the Manager of the Bank from Surat District Co.op.Bank Ltd. The alleged incident took place on 24.1.2005. It is stated that on that day, as CR.A/1126/2006 8/34 JUDGMENT per the instruction of the In-Charge Bank Manager Mr.Patel, the complainant Rakesh Patel and Pankaj, Peon (accused No.3), of the Bank had gone in an auto rickshaw to the Surat District Co.op.Bank Ltd. After collecting an amount of Rs.15 lakhs from the said Bank, the said cash was put in two green coloured bags. Thereupon the complainant and accused No.3 came out from the Surat District Co.op.Bank Ltd. And the complainant hired an auto rickshaw to reach their Bank. While the complainant and accused No.3-Pankaj were returning with the bag containing cash, the rickshaw driver stopped the rickshaw and threw chilly powder in the eyes of the complainant and because of the pain in the eyes, the complainant shouted. During this time, one person came with a knife and inflicted knife blows on the complainant and while the complainant was trying to save himself as well as the amount of Rs.15 lakhs kept in the bag, but because of pain in the eyes and as a result of injuries sustained by him, he could not succeed in stopping the accused persons and the accused persons ran away from the scene. Because of shouting by the complainant, people from nearby gathered and gave water to the complainant, sprinkled water in his eyes and thereafter, he found that accused No.3-Pankaj was CR.A/1126/2006 9/34 JUDGMENT also lying on the floor in a bleeding condition after receiving injuries. At that time, somebody had informed the Police and thereafter the police came to the spot and complainant Rakeshbhai lodged the complaint before the police station and on that basis, the offence was registered. During investigation, the Investigating Officer drew the panchnama of scene of offence and also recorded the statement of the persons who were residing near to the spot and also seized the rickshaw by drawing panchnama which was used by the accused persons. The complainant and accused No.3-Pankaj were sent to the Civil Hospital with police yadi for treatment. During the investigation, accused were arrested and the muddamal currency notes were recovered by drawing necessary panchnama and the weapon-knife and the two motor cycles were also seized by drawing panchnama. At the end of the investigation, the Investigating Officer filed the charge sheet against the accused persons for the offences punishable under Sections 397, 394 and 120(B) of IPC and Section 135 of the Bombay Police Act before the learned Judicial Magistrate, First Class, Surat on 30.3.2005 which was registered as Criminal Case No. 750 of 2005. The learned Judicial Magistrate, First Class by his order CR.A/1126/2006 10/34 JUDGMENT dated 15.4.2005 committed the case to the Court of Sessions, since the case was triable by the said Court under the provisions of Section 209 of Cr.PC. 6.2 On committal of the said case, the learned Sessions Judge framed the charge which is at Exh.8 for the above referred offences, but as the accused persons denied the charges, they claimed to be tried. 7. To prove the case, the prosecution has examined the following witnesses as well as evidence: 1. PW-1: Rakeshbhai Govindbhai Patel – Exh.19 2. Xerox copy of cheque cleared – Exh.20 3. Original complainant of the complainant – Exh.21 4. PW-2: Jayavadan Pratapbhai – Exh.22 5. Panchnama of scene of offence – Exh.23 6. PW-3: Amishaben Yashwantbhai – Exh.24 7. PW-4: Manojkumar Vasantbhai (Panch witness) -Exh.25 8. Panchnama of the clothes worn by the complainant – Exh.26 9. PW-5:Iqbal Mahmad Miya – Panch witness -Exh.27 10.PW-6: Kamleshbhai Bhagwanbhai Patel – Panch -Exh.28 CR.A/1126/2006 11/34 JUDGMENT 11.Clothes of victim Pankaj, Peon – Exh.29 12.PW-7: Daxesh Babubhai Patel -Panch - (Brother of Pankaj) - Exh.30 13.PW-8: Kantibhai Haribhai Patel – Exh.31 14.PW-9: Jayantilal Manilal Modi – Exh.32 15.PW-10: Hemantbhai Manubhai Desai – Exh.33 16.Statement of Urban Co.op.Bank of Surat Dist.Co.op.Bank, Mehsana – Exh.34. 17.PW-11: Hitendrabhai Baldevbhai Patel – Exh.35 18.Extract of Xerox copy of Register of Mehsana Urban Co.op.Bank – Exh.36 19.Xerox copy of Cheque record slip – Exh.37 20.PW-12: Mahavir Shantilal Jain – Exh.38 21.PW-13: Sunil Rangrao Patil – Exh.39 22.Amount lost in loot and the Maruti Esteem purchased thereby Recovery Panchnama (6,70,000/-) cash – and 1,70,000/- Maruti Esteem purchased (8,40,000/-) - Exh.41 23.PW-14: Husen Aarif – Exh.41 24.Amount lost in loot: Balance Rs.20,000/- Recovery Panchnama (Exhibition of amount given by accused to Mukesh, which amount CR.A/1126/2006 12/34 JUDGMENT was given Bhavnaben Mukesh Patel wife of Mukesh)– Exh.42 (25)PW-15: Narayan Motiram Chowdhari – Exh.43. (26)Panchnama of looted amount Rs.5,19,000/- black coloured Rexin bag having chain being produced by Yamunaben of accused Ilu's portion before DCB Police – Exh.44 (27)PW-16: Rafiq Nazir Pathan – Panch – Exh.45 (28)Panchnama of body condition of accused Pankaj @ Pako Patel and accused Mukesh Nagin Panchal with consent – Exh.46 (29)PW-19:Mahmad Iqbal Ismail Shekh – Panch – Exh.47 (30)Recovery Panchnama of motor cycle No.GJ- S-9797 of Ketan @ Pintoo Joglekar – Exh.48 (31)PW-18:Shekh Habib Shekh Vazir–Panch witness-Exh.49 (32)PW-19:Mukeshbhai Dahyabhai Dandawala – Exh.50 (33)Arrest Panchnama of accused Ravi @ Ilu Sirsat and Mansukhlal Dhoti Jotawala – Exh.51 CR.A/1126/2006 13/34 JUDGMENT (34)PW-20: Suleman Ismail – Panch witness (Exh.42, 52 (35)PW-21: Jitubhai Gangaram -Panch Witness- 54)-Exh.53 (36)Recovery Panchnama of Mobile Phone No.9825655575 witness Daxesh which has been given to his in this offence i.e. Pankaj @ Pako, Peon-Exh.54 (37)PW-22:Bhavnaben Mukeshbhai Panchal – Exh.55 (38)PW-23:Amarbhai Ishwarbhai – Exh.56 (39)PW-24: Siraj Ismail Vora (Seller of Maruti Esteem)-Exh.57 (40)PW-25:Niteshbhai Rameshbhai (Bag was put at the shop of the witness by absconder Mahadev for handing over to accused Ketan). (41)PW-26: Mohanbhai Shravanbhai Singhe – witness – Exh.60. (42)Recovery panchnama of vehicle No.GJ-5-B- 12-5267 by accused Digvijay @ Digo with consent – Exh.61 (43)Delivery note of Maruti Esteem – Exh.62 (44)Copy of the agreement of sale of motor vehicle -Exh.63 CR.A/1126/2006 14/34 JUDGMENT (45)PW-27:Subhash Sakaram Kharake, Hotel Manager, Lodge – Exh.65 (46)Copy of extract of Hotel Register – Exh.66 (47)PW-28: Rukhiben Kolbhai Chaudhari (Maternal aunt of accused Mukesh) -Exh.67 (48)PW-29:Yamunaben Chudaman Dhivare (bag of accused Ilu exhibited)– Exh.68 (49)P-W-30:Bahadurbhai Nathubhai Patel (Exe.Magi.-Parade) – Exh.71 (50)Original letter – For Identification Parade Yadi -Exh.72 (51)Original panchnama of Identification Parade -Exh.73 (52)PW-31:Waghjibhai Shankarbhai Rabari P.I.Salabatpura)- Exh.74 (53)Original yadi for registering offence- Exh.75 (54)PW-32:Razak Mahmad Munshi (Broker of selling Maruti Esteem) – Exh.81 (55)PW-33:Shantaram Pandurang Patil(P.S.O.,) -Exh.82 (56)Original copy of Station Diary – Exh.83 (57)PW-34:Dineshsinh Mahavirsinh Chauhan CR.A/1126/2006 15/34 JUDGMENT -Exh.88. Thereupon, the further statement under Section 313 of Cr.PC was recorded of the accused persons. Accused No.1-Digvijay @ Digo has stated in his further statement that he has no knowledge of the loot and he never went to Lonawala and he did not know any other accused of the said crime and he was never arrested with Maruti Esteem, but the police has falsely involved him in committing the offence. Accused No.2-Ketan @ Pintoo has stated that he is innocent and he never purchased Maruti Esteem bearing No. GJ-5-PP-8682 and Exh.63 and 64 delivery note and agreement were subsequently got-up by the police. He has also stated that he never went to Lonawala and the police never arrested him with Esteem Car at Lonawala and a false case is filed against him. He has also submitted that his motor cycle CBZ bearing No. GJ-15-S-9797 was wrongly seized by the police. Accused No.3-Pankaj Patel has stated that he is innocent and after throwing something in his eyes by some unknown persons, he was also attacked by unknown persons and thereby received serious injuries and on account of receiving injuries, he had to be admitted in the hospital as an indoor patient. He has also CR.A/1126/2006 16/34 JUDGMENT stated that though there is no evidence against him, he has been falsely involved in committing the crime. Accused No.4-Mukesh in his evidence has stated that during investigation, the police has wrongly recorded the statement of Rukhiben to involve him in committing the crime despite the fact that there is no evidence is against him to involve him in the crime. Accused No.5-Bharat Vasava has stated in his further statement that he has not committed any robbery and on the basis of mere suspicion, he has been wrongly involved in the committing the crime. Accused No.6-Ravi @ Ilu has stated in his evidence that he is innocent and has never committed any robbery and he has been wrongly implicated in the offence. As far as accused No.7-Mayurkumar is concerned, there is no evidence against him except the panchnama at Exh.5, but he has become hostile and does not support the case of the prosecution. The only allegation against him is that he was the owner of the Yamaha motor cycle bearing No.GJ-5-SS-1129. But it is pertinent to note that nothing has come on evidence which establishes that this motor cycle is used in committing the alleged crime. As per the deposition of the Investigating Officer Mr.Chauhan, he could not get any evidence regarding use of this CR.A/1126/2006 17/34 JUDGMENT motor cycle in committing the crime. In his cross examination also, as well as from the panchnama and documents, this witness could not get any evidence against accused No.7. So, it is not proved by the prosecution that this accused is involved in committing the crime and therefore the prosecution has failed to prove the guilt against this accused No.7 beyond reasonable doubt and thus, the trial Court has committed an error in convicting this accused also. Thus, all the accused have denied to have committed the offence and denied to examine themselves on oath and also refused to give any evidence in support of their defence. 8. After hearing the arguments of learned APP as well as the learned advocates of the appellants- accused, the trial Court has convicted the accused persons as referred to hereinabove in paragraph No.1 of this judgment. 9. In light of the arguments as advanced above, it is necessary to appreciate the evidence on record. The evidence of PW-1:Rakesh is recorded at Exh.19. As per his evidence, he is serving as a Clerk-cum- Cashier in Mehsana Urban Co.op.Bank, Surat and from the very beginning he has been serving on the said CR.A/1126/2006 18/34 JUDGMENT post. According to him, on the day of incident, as per the instruction from the In-Charge Branch Manager of the Bank, he along with accused No.3-Pankaj had gone to Surat District Co.op. Bank at about 3.20 p.m. for collecting an amount of Rs.15 lakhs. The cheque was signed by him as well as Manager Jitubhai Patel, which is at Exh.20. The said cheque was presented before the Surat District Co.op.Bank and after collecting the cash of Rs.15 lakhs, they put the amount in two bags and they came out of the Bank and hired the rickshaw of accused No.6-Ravi Arjun. As per this witness, the rickshaw driver did not take the rickshaw on the routine way they always used to go to the Bank, but through another way the rickshaw was taken. Therefore, this witness asked the rickshaw driver as to why he has taken the rickshaw through the said way, then the rickshaw driver said sorry and told the complainant that as the reverse gear is not working, he could not be able to return. But, after going further, he took the rickshaw on the right way. As per his evidence, after going further, accused Pankaj asked the driver to stop the rickshaw and the rickshaw was stopped on the side and suddenly the rickshaw driver (accused No.3-Pankaj) threw chilly powder in his eyes and so this witness shouted and CR.A/1126/2006 19/34 JUDGMENT tried to save himself and the cash despite the pain in the eyes. According to this witness, during this period, a scuffle took place and the complainant also gave kick blow to one person. According to this witness, during this time, suddenly one person came there with a knife and so the complainant came under pressure and he tried to put his hand on the two bags containing cash, but he did not find the bags and therefore, he stepped down from the rickshaw and saw that two persons were running away on a motor cycle. According to him, he threw stone at them. During the scuffle, this witness received injuries on his right hand as well as on the left leg. The evidence of this witness, i.e. complainant is reliable. This witness has identified accused No.6-Ravi as rickshaw driver, accused No.3-Pankaj, Peon, accused No.4 Mukesh and also identified Bharat Vasava (accused No.5). After very lengthy cross examination, the defence advocate tried to raise doubt about the evidence of this witness saying that he was not in a position to see the other accused persons as his eyes were closed due to the effect of chilly powder. The defence has also tried to raise a doubt by putting number of questions regarding this fact if he falls, it was not possible for the complainant to identify CR.A/1126/2006 20/34 JUDGMENT the accused persons. Nothing is coming out from the cross examination which falsifies the evidence of this witness. The evidence of this witness corroborates with the evidence given by the complainant before the Police Officer. No doubt, in cross examination, he has admitted that it is not mentioned in the complaint that the accused Pankaj had asked the rickshaw driver to stop the rickshaw. He has also admitted that he came to know that accused Pankaj received more injuries than him. He also admitted that the rickshaw was hired by him. He has fairly stated before the Court that accused Pankaj was serving since six years and as he is sincere and honest, he was assigned the liability of collecting cash. As far as the version of this witness is concerned, he has specifically stated that he identified him and there is all possibility of identification of this accused as Accused No.6 as the incident took place in a broad day-light. So the prosecution has proved its case beyond reasonable doubt against accused No.6. 10. As far as the evidence of accused No.2-Ketan @ Pintoo and appellant - accused No.5-Bharat @ Pintoo are concerned, they have also identified accused CR.A/1126/2006 21/34 JUDGMENT No. 6 as rickshaw driver, but as far as other accused persons, they were not sure about their identity. 11. The prosecution has also examined PW-11: Jitendrabhai Patel at Exh.35. According to this witness, on the day of the incident, he was In-Charge of Manager of the Bank and he signed the cheque as well as complainant Rakeshbhai (PW-1) for withdrawing an amount of Rs.15 lakhs in cash from the Surat District Co.op.Bank and for this purpose complainant Rakesh as well as Pankaj, Peon were deputed and accordingly, they went to the Surat District Co.op. Bank. According to him, after receiving the message over telephone, he went to the police station where he found Rakesh in an injured condition and complainant Rakesh narrated before him about the incident which took place. According to him, at that time, he learnt that accused No.3 - Pankaj was removed to Civil Hospital and so he went to the hospital where Pankaj was found in a serious condition. According to him, after two or three days, he visited Pankaj in the hospital and Pankaj told him that four persons were involved in committing the CR.A/1126/2006 22/34 JUDGMENT crime and two persons were on motor cycle and they ran away with the bag containing cash and he tried to save it. The prosecution has examined witness Daxesh Babubhai (PW-7: Panch witness), at Exh.30, who happens to be the brother of accused Pankaj. According to him, after the incident, injured Pankaj was admitted in Civil Hospital and thereafter he was admitted in K.P.Singhvi Hospital and he signed in the panchnama. According to him, the