CR.A/122/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 122 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BIRENDRA @ BILOO RAMCHANDRA PASWAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PRAVIN GONDALIYA for Appellant(s) : 1, MR HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 27/03/2008 ORAL JUDGMENT Appellant is original accused No.4. He was charged with offence punishable under section 397, 452 and 114 of the Indian Penal Code along with CR.A/122/2004 2/11 JUDGMENT other co-accused. Learned Additional Sessions Judge, Rajkot, by his impugned judgment and order dated 22nd December 2003 passed in Sessions Case No.187 of 2000, convicted the present appellant of offence punishable under section 397 and sentenced to 7 years of RI. He was also convicted of offence under section 452 of the Indian Penal Code and sentenced to RI for one year. Both sentences were made to run concurrently. 2. As per the charge Ex.19, allegations against the appellant and other co-accused were that on 19th February 2000, between 20.30 and 20.45 hours with an intention to commit robbery, the appellant and other co-accused entered the house of one Kishorbhai Jamnadas which was situated at Aradhana Society, Rajkot. One of the accused was carrying a revolver, the appellant was carrying a knife. By threatening, Kishorbhai and his wife, they extorted Rs.33,000/- from a bag lying in the house, Rs.1,000/- lying in the cup-board and a gold chain of 2½ tolas worn by the wife of the complainant, Kishorbhai. It was further alleged that the appellant had threatened the complaint with a knife. His description was given by the complainant being a tall person having a mole on his nose. 3. It appears that the appellant was arrested in connection with another robbery case some five months after the incident. During test identification parade,the complainant identified the CR.A/122/2004 3/11 JUDGMENT appellant and accused No.2 Arjun Rambachan. The Investigating Agency recovered a Hero Honda Motorcycle believed to have been used in commission of offence and the gold chain allegedly extorted from the wife of the complainant. Panchas who were part of various panchanamas, however, turned hostile. Panchnamas were however, sought to be proved thorugh the evidence of the Investigating Officer. It may be noted that neither the revolver nor the knife allegedly used for commission of offence were recovered. 4. Prosecution examined the complainant, Kishorbhai, PW-1 at Ex.36. He stated that when he was at his house at Aradhana Society at about 8.30 to 8.45 at night, two people entered his house. One more person entered thereafter. At that time, he and his wife Sarlaben were the only people present at home. The visitors inquired about their son Hiren. When being told that he has gone out, one person entered the bed room and took out a revolver. The witness identified this person as Dhanji who was present before the Court. Another person took out a knife and held it against the stomach of the witness. This accused was identified as Birendra Paswan, that is, appellant herein, accused No.4. Third person had covered his face with a handkerchief. They took the bag containing cash and the gold chain worn by his wife. Dhanji had snatched away the gold chain. They had disconnected the phone line. They made him open the cub-board and took out Rs.1000/- which was CR.A/122/2004 4/11 JUDGMENT inside. In his cross-examination, it is stated that on the date of the incident, only his wife and he were at home. Their son Hiren was at his office. He stated that neither his wife nor he shouted for help. His brother's house is right behind their house. He had gone there and his brother informed the police. One hour thereafter, the police had arrived. He stated that he did now know about 4 months after the incident, there was newspaper report indicating arrest of gang of persons from Bihar in which mention of robbery at his house was also made. He, however, agreed that police had informed him about the arrest of the accused and had brought the accused to his house. However, since his wife was very scared, he told the police not to bring them again. 5. Wife of the complainant, Sarlaben, PW-2 was examined at Ex.38. She stated that she is invalid since childhood. Her husband also is invalid from child-hood. On 19.2.2000 at about 8.30 at night,when she and her husband were at home, the incident had taken place. Three people had entered their house. One of them had his face covered by a piece of cloth. They took out a revolver and a knife and asked for whatever is there in the house. Her husband then handed over the brief case containing Rs.33,000/- in cash. They also took the gold chain worn by her, CR.A/122/2004 5/11 JUDGMENT which one of them snatched away. The entire incident lasted for about 3 to 5 minutes. The man whose face was covered with a handkerchief stayed in the house while the other two left. She thereafter could hear starting of a vehicle, upon which the third person also left the house. She identified accused No.2, Arjun Rambachan and the present appellant Birendra before the Court. Particularly, the appellant herein was identified as the person carrying a knife. She stated that the assailants had also taken away Rs.1,000/- from the cup-board. 6. In the cross-examination, she stated that she subscribes to Gujarat Samachar daily and not any evening newspaper. She stated that she was shown two papers and instructed to depose accordingly. She, however, added that she was instructed to state as the incident had happened. She admitted that she had never seen the appellant before the incident and thereafter for the first time she saw them in the court room. She could not identify the third person whose face was covered with the handkerchief. 7. PW-10, Navalsinh, Ex.50 was the Mamlatdar and Executive Magistrate who had carried out the test identification parade. The complainant had identified the present appellant as well as accused No.2 Arjun Rambachan during the said TIP. In examination-in-chief, he narrated the manner in which the TIP was conducted. In cross-examination, he could not state from where did the police collect the CR.A/122/2004 6/11 JUDGMENT dummies and the complainant. He denied that the identification parade was carried out in presence and supervision of PSI Shri Patel. 8. Gulabsinh Harishsinh, PW-11, Ex.53 was the panch who had drawn the panchnama Ex.51 with respect to the conduct of the test identification parade. 9. Kantilal Naranbhai Patel, PW-14, Ex.59 was the PSI who had carried out the investigation. In the examination in chief, he described the manner in which the investigation was carried out. In particular, he stated that accused Arjun Rambachan while he was in police custody was taken to the society where the robbery had taken place and had shown the place of incident, upon which the panchnama was drawn. He had seized a Hero Hondo Motorcycle believed to have been used in the commission of offence. He was shown a copy of the Fulchhap Daily published on 27th July 2000, upon perusal of which he stated that on its last page under the heading of arrest of robbery gang with deadly weapons, there are photographs of the robbers as well as the police officers. He stated that he had taken Arjun Rambachan to the place of robbery once between 26th July 2000 and 4th August 2000. He, however, denied that he had taken all the accused to the place of incident and thereafter had carried out the identification parade. He denied that he had collected the panch as well as dummies during the test identification parade. CR.A/122/2004 7/11 JUDGMENT 10. It is primarily on this evidence that the prosecution has sought to establish the charge against the appellant. 11. Learned advocate Shri Vijal Desai for the appellant vehemently submitted that there was insufficient evidence to prove the charge. He submitted that no weapons were recovered. He further submitted that neither the motorcycle nor the gold chain was discovered at the instance of the appellant herein. He pointed out that all panch witnesses had turned hostile and not supported the prosecution. He submitted that test identification was carried out in an improper manner. He further argued that there are large number of contradictions in the prosecution version. He submitted that the photographs of the accused were published in the local newspapers before TIP was carried out. 12. On the other hand, learned APP Ms.Punani opposed the appeal. She submitted that prosecution had proved the charge beyond doubt and that the learned Judge, therefore, rightly convicted the appellant. 13. Having heard the learned advocates appearing for the parties, with respect to the incident of robbery at the house of the complainant Kishorbhai is concerned, there is hardly any doubt possible. As per the say of the complainant as well as his wife, CR.A/122/2004 8/11 JUDGMENT at about 8.30 to 8.45 in the nigher of 19.2.2000, three people entered their house. They were carrying a revolver and a knife and by threatening the inmates of the house decamped with a bag containing cash of Rs.33,000/-. They also made the couple to open the cupboard, took away Rs.1,000/- lying therein. They also snatched away a gold chain worn by the wife. With respect to these allegations, there is total consistency in the depositions of both the eye- witnesses. The question that calls for closer scrutiny is whether the appellant was involved in the said incident. 14. At the outset, it may be noted that the test identification parade was conducted in a manner and under such circumstances as would render any reliance thereon wholly unsafe. Firstly, the defence has been successful in bringing on record the fact that in the daily Fulchhap published on 27.7.2000, photographs of the accused were published. In the same article, mention of the robbery at the house of the complainant was also made. There would, therefore, be every possibility that the complainant would have noticed the news report and also seen the photographs of the accused. In fact, the complainant in his cross-examination stated that the police had brought the accused to his house. However, since his wife was very scared, he had requested the police not to bring them again. Though the I.O. Kantilal Patel, PW-14 agreed that he had taken accused Arjun Rambachan to the house of the complainant, he denied CR.A/122/2004 9/11 JUDGMENT that he had taken other accused also similarly. Additionally, I also find that there are procedural irregularities in conduct of the test identification parade. The Executive Magistrate stated that the police officer collected the dummies which was not the task of the I.O. The I.O., however, clearly denied having performed such a task. Who collected the dummies and what manner thus remained unclear. 15. Considering all these aspects of the matter, the value of test identification parade gets completely diluted. However, the question is in absence of any successful test identification parade also, was it not possible for the prosecution to prove the charge against the accused. 16. In this regard, we may recall that both the eye-witnesses, complainant Kishorbhai, PW-1 as well as his wife Sarlaben, PW-2 narrated the incident of 19.2.2000. The incident took place between 8.30 and 8.45 at night when both of them were at their residence. As per the version of these witnesses, the incident lasted for about five minutes. The appellant as well as Arjun Rambachan did not have their faces covered. These witnesses, therefore, could identify only the appellant as well as accused No.2, Arjun Rambachan. They rightly stated that they could not identify the third assailant since his face was covered with a piece of cloth. It is true that CR.A/122/2004 10/11 JUDGMENT their depositions were recorded before the court fairly long time after the incident. However, the incident, as noted, lasted for nearly five minutes. There would naturally be light in the house. It is not even the suggestion of the defence that there was total darkness in the house. Additionally, the complainant had given vivid description of the appellant of being a man of above average height and having a mole on his nose. When two eye-witnesses identified the appellant before the Court, there is no reason for me to discard such testimony and to disbelieve their version. 17. In view of this consistent, reliable and largely unshakable testimony of the complainant and his wife, I find that the prosecution had succeeded in establishing the charge against the appellant. In view of the reliable nature of evidence of both the eye-witnesses, the fact that the knife which the appellant was carrying at the time of the incident was not recovered by the police would be of no consequence. There is no reason why the complainant or his wife should have falsely implicated the appellant. They had with a fair degree of consistency narrated the incident and had identified the accused before the Court. In absence of any previous enmity or any other reason why they should have implicated the appellant falsely, it is not possible to discard their testimony. Therefore, I find that the appeal is devoid of merits and is required to be dismissed. CR.A/122/2004 11/11 JUDGMENT 18. The appeal is therefore dismissed and the conviction and sentence is upheld. (Akil Kureshi, J.) (vjn)