CR.A/28519/1999 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 285 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE D.N.PATEL ========================================================= 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 ? ========================================================= MOHMAD HARUN MOHMAD ANWAR SHAIKH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ANIL S DAVE for Appellant(s) : 1 MR MR AJ DESAI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL Date : 04/08/2008 ORAL JUDGMENT CR.A/28519/1999 2/16 JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.Present appellant-original accused has been arrested by the investigating authority on 3- 6-1996 in connection with an offence alleged to have been committed by two persons which has taken place on 22-11-1995 at about 8.30 a.m. in Anand Town more particularly on Ishwar Petlikar Road in the corner of Krishna Nagar Society which has been registered with Anand Town Police Station being I.C.R.No.433 of 1995 under Sections 397, 302 and 34 of IPC Code. Out of them, one was not arrested till date. The present appellant was taken on remand by the police and during the remand period, he has been identified by two witnesses namely, P.W.Nos.4 and 5-Rinku Satishbhai Patel and Ishwarbhai Punjabhai Parmar respectively. Police also recorded the statements of various witnesses and at the end of investigation, charge sheet was submitted and the present appellant was tried by the learned Addl. Sessions Judge, Nadiad, and at the end of trial, he has been convicted for the offence under Sec.397 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.3,000/-, in default, to undergo simple imprisonment for a further period of one month and for the offence under Sec.302 of IPC, he was CR.A/28519/1999 3/16 JUDGMENT convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a further period of one month, by the learned Additional Sessions Judge, Nadiad, vide judgment and order dated 12th March, 1999 passed in Sessions Case No.49 of 1997. Being aggrieved by the said judgment and order of conviction and sentence, present appeal has been preferred by the appellant. 2.The short facts of the prosecution case are that P.I., Shri Dalal was on duty at Anand Town Police Station on 22-11-1995 at about 8.30 a.m. and while on duty he received vardhy from PSO of Anand Police Station regarding commission of cognizable offence and, therefore, first he went to Nagarpalika Hospital, Anand, from where he came to know that the injured succumbed to the injuries and, therefore, he recorded the complaint Ex.14 against two unknown persons and sent the same to PSO, Anand Town Police Station for registering the offence along with yadi and FIR. On receiving the same, offence has been registered as Anand Town Police Station I.C.R.No.433 of 1995 for the offence punishable under Sections 397, 302 and 34 of IPC Code. He also made arrangements for inquest panchnama, filled up the Marnotar CR.A/28519/1999 4/16 JUDGMENT Form and handed over dead body of the deceased with yadi Ex.8 to doctor for performing post mortem. He then straightaway went to the place of scene of offence where he called two panchas and prepared the panchnama of scene of offence in presence of panchas and also recorded statements of various witnesses including two eye witnesses i.e. Rinku Satishbhai Patel and Ishwarbhai Punjabhai Parmar and also tried to search the accused but he could not find the accused and therefore he continued with the investigation. Meanwhile, PSO at the Nagarpalika Hospital came to Police Station and handed over clothes worn by the deceased which were received by him from the doctor who performed post mortem on the dead body of the deceased and same were seized after drawing necessary panchnama. Meanwhile, he came to know that the accused was arrested in other offence by Vatva Police Station and therefore he went there and took custody of the accused on 3-6-1996 and produced him before the concerned Court and his remand was granted for a period of 10 days. During that period, he also made arrangements for conducting TI parade and same was held by the Executive Magistrate after following proper procedure. Both the eye witnesses i.e. P.Ws.4 CR.A/28519/1999 5/16 JUDGMENT and 5 i.e. Rinku Satishbhai Patel and Ishwarbhai Punjabhai Parmar respectively independently identified the appellant- accused as the assailant and on completion of the remand period, accused was sent to judicial custody and arrangements were made to send the muddamal to FSL and on receipt of FSL report, same has been kept in investigation file along with inquest panchnama, post mortem note etc. At the end of investigation, he submitted the charge sheet against the accused into Court of learned Judicial Magistrate (First Class), Anand. 3.As the offence alleged against the accused being exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class), Anand, committed the case to the Court of Sessions at Kheda at Nadiad where it was numbered as Sessions Case No.49 of 1997. For the purpose of disposing of the same on merits, same was allotted to the Court of learned Addl. Sessions Judge, Nadiad. 4.On production of the accused, learned Addl. Sessions Judge, Kheda at Nadiad, framed charge at Ex.3 against the accused. The accused pleaded not guilty to the charge and prayed for trial. Therefore, to prove the charge against the accused, prosecution CR.A/28519/1999 6/16 JUDGMENT examined in all 10 witnesses and also produced and placed reliance upon various documentary evidence numbering 16. 5.On submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua incriminating evidence. The accused mostly denied the evidence. He has not examined any witness nor stepped into the witness box. Therefore, upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Kheda at Nadiad, delivered the judgment whereby the appellant-original accused was convicted as narrated in the earlier part of this judgment, which is giving rise to prefer the present appeal. 6.Heard learned counsel, Mr.Anil S.Dave for the appellant and Mr.A.J.Desai, learned A.P.P. for respondent-State. 7.It has been mainly argued by the learned counsel for the appellant that the appellant is innocent and has not committed any offence. According to him, there is no recovery or discovery alleged to have been made by the prosecution from the appellant. Here in this case, the prosecution has relied upon the evidence of only two witnesses CR.A/28519/1999 7/16 JUDGMENT namely P.W.4, Rinku Satishbhai Patel,Ex.15 and P.W.5, Ishwarbhai Punjabhai Parmar, Ex.16. He has also taken us through the above referred evidence including the oral evidence of P.W.1, Dr.Arvindbhai Jethabhai Dalvadi, Ex.6, who performed post mortmen on the dead body of the deceased as well as of I.O., Chandravadan Prabhulal Dalal, P.W.10, Ex.24 and argued that as such, P.Ws.4 and 5 are not the witnesses of incident. P.W.4 was not at his home on the first floor and after hearing the shout for help, he came down. In the meanwhile, the assailants had left the place of incident and, therefore, according to him, P.W.4, had no opportunity to see the assailants. Same argument has been advanced qua P.W.5 also. Except that, there are no other witnesses. 8.It is further argued that before holding TI parade, both the aforesaid witnesses had an opportunity to see the accused. Even opportunity has been given to them by the police Officer and, therefore, TI parade has been held in an improper and illegal manner. 9.It is further argued that the appellant is in judicial custody from the date of his arrest i.e. 3-6-1996 but he has fairly informed this Court that present appellant was released on temporary bail on the ground of sickness of CR.A/28519/1999 8/16 JUDGMENT his son for a period of 35 days from 25-6- 2005 but he misused his liberty and absconded for a considerable period of 629 days and that too also he was arrested by the police on 19-4-2007. Looking to the facts and circumstances and keeping in mind the role alleged to have been played by the present appellant, it is prayed that the sentence which the appellant has already undergone may be ordered to be treated as the sufficient punishment so as to meet the ends of justice. 10.Learned APP, Mr.A.J.Desai, has objected the same and argued that it is a well reasoned judgment delivered by the court which does not require any interference. He has placed reliance on the oral evidence of P.Ws.1, 4, 5 and 10 on which reliance has been placed by the otherside. 11.Taking us through the map drawn by the Circle Inspector at running page 217 along with the panchnama of scene of offence at Ex.21 page 155, it is argued that the panchnama of scene of offence has been proved by the prosecution through the evidence of panchas and police officers. As per the panchnama, the corner house of Krisnna Nagar Housing Society which is known as Petlikar Road is the place of scene of offence which is in front of house of P.W.4. According to CR.A/28519/1999 9/16 JUDGMENT him, looking to the time of incident, usually person will be at his residence and, therefore, the presence of P.W.4 cannot be discarded. Moreover, when the incident has taken place very near to his house, his presence at the scene of offence can also not be discarded. However, their evidence is required to be scrutinized before the same is acted upon by the Court. 12.It is lastly argued that the present appellant is one of the assailants whose role has been established by the prosecution beyond reasonable doubt and he has involved himself into the dacoity with murder and has been convicted for life in both the offences and hence, no leniency should be shown to him as he has killed an innocent person. 13.We have gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties more particularly the oral evidence of P.W.4, Rinku Satishbhai Patel,Ex.15 and P.W.5, Ishwarbhai Punjabhai Parmar, Ex.16 respectively along with the evidence of P.W.1, Dr.Arvindbhai Jethabhai Dalvadi, Ex.6, who performed post mortem on the dead body of the deceased as well as the evidence of I.O., Chandravadan Prabhulal Dalal, P.W.10, Ex.24. CR.A/28519/1999 10/16 JUDGMENT 14.It is required to be noted that to prove the guilt against the accused, the prosecution has mainly relied upon the oral evidence of P.W.4, Rinku Satishbhai Patel,Ex.15 and P.W.5, Ishwarbhai Punjabhai Parmar, Ex.16 respectively. 15.Both the above referred witnesses have categorically deposed before the court below in their evidence that P.W.5, who was serving as a driver in the metador owned by P.W.4 came to the residence of P.W.4 for taking the metador. As there was a vardhy, P.W.5 came there and took the metador outside the society and parked on the Petlikar Road very near to the place of offence and was cleaning it. At that time, P.W.4 was also with him. Both have categorically deposed that they have seen a motor cycle black in colour 40-50 feet away from the place of incident along with two persons. They have also given the description of both the assailants about their height, complexion, clothes they have worn, etc. According to them, both have seen the assailants for about 10-15 minutes. As per the deposition of P.W.4, thereafter, he went inside his house while P.W.5, driver of the metador was there. When P.W.4 was putting his towel on the fence to dry, he heard the shouts for help and hence, he turned towards CR.A/28519/1999 11/16 JUDGMENT that place when he saw at a distance of 40-50 feet that two persons were beating the victim and they were armed with iron pipe and knife. The victim fell down there and therefore, he went near to him. Thereafter, both the assailants tried to escape on motor cycle and while leaving, they took one cloth bag containing some articles. Immediately, he made arrangements to send the injured to the hospital for treatment and also informed the police from his residence regarding the incident. Both have further deposed that on the same day, police recorded their statements in which they gave full account of the incident along with description of the assailants. They have further deposed that they were called by Executive Magistrate for TI parade of the appellant. They went there and were permitted to enter into the TI parade room one by one and both have individually identified the accused as the assailant. They have also identified the accused in the court also. Certain questions were asked to them in their cross examination as to the place of incident, weapons used by the accused, injury caused to the victim, TI parade and their presence at the scene of offence. However, no contrary material has come out in their cross-examination which CR.A/28519/1999 12/16 JUDGMENT turtle the evidence of both the witnesses on material point. 6.Mr.Desai has rightly argued that looking to the time of incident which has taken place in the morning, presence of P.W.4 at his residence with his driver, P.W.5 is quite natural. 7.We have also gone through the panchnama of scene of offence along with the map. It is noted that panchnama of scene of offence Ex.21 has been proved by the prosecution with the help of panchas and I.O. It reflects from the said panchnama as well as the map that place of scene of offence is in front of house of P.W.4. Society map also shows that house of P.W.4 is in the corner of the society and it is abutting towards Petlikar road where incident has taken place which is also very near to his house. Therefore, there is no reason to disbelieve his say that he has seen the incident at a distance of 40-50 feet as he came out of his house at a distance of 30 feet at the entrance of his house. P.W.4 has fairly admitted in two parts one, he was with P.W.5 outside his society on Petlikar road when P.W.5 was cleaning the metador and two, he saw both the assailants along with black colour motor cycle at a distance of 40-50 feet for 15-20 minutes. CR.A/28519/1999 13/16 JUDGMENT 8.It is true that they have fairly admitted and we do not doubt about their presence as they had an opportunity to see the assailants for 15-20 minutes and, therefore, if they had given the description of the assailants about their complexion, height, the clothes they had worn, etc. it is not unnatural but we can say quite natural. Thereafter also, they had an opportunity to see assailants at the time when they were assaulting the victim to complete their intention of dacoity and, therefore, within a short period, twice they had an opportunity to see the assailants. Thus, they were able to give the detailed account in their statements recorded by the I.O. at the earliest. They have categorically deposed that both have assaulted the victim with pipe and knife. 9.This has been proved by way of post mortem note and evidence of P.W.1, Dr.Arvindbhai Jethabhai Dalvadi, Ex.6, who performed post mortem on the dead body of the deceased. Dr.Arvindbhai has categorically deposed regarding the external mark of injuries received by the deceased which are 8 in number. Same has been narrated by him in Column Nos.17 and 20 of the post mortem note. He has also deposed regarding corresponding injuries i.e. injury Nos.1,2 and 5 and CR.A/28519/1999 14/16 JUDGMENT deposed that injuries 1 and 9 were independently sufficient to cause death of the deceased. Injuries Nos.1,2 and 5 are possible by way of knife while injury Nos.1,2 and 3 are possible by way of pipe and no cross-examination has been done by the learned counsel for the appellant on that issue. He has also proved post mortem note at Ex.8-A. 10.Thus, prosecution is able to prove the injury received by the victim at the time of incident and as per the expert opinion, these are the injuries of knife and pipe which tally with the oral evidence of two eye witnesses i.e. P.Ws.4 and 5 that victim has been assaulted with knife and pipe. However, only on the ground that no recovery has taken place including the motor cycle in view of the fact that the accused was arrested after a considerable period of 7 months, no benefit should be given to the assailants. It is worth noting that the appellant has been identified in the TI parade also. It is established from the evidence of Police Inspector that motor cycle could not be seized as the number plate applied on the motor cycle was fake. Thus, what is important is the oral evidence of two witnesses which tally with the evidence of doctor and I.O. CR.A/28519/1999 15/16 JUDGMENT 11.Apart from that, prosecution case is substantiated by the evidence of the partner of Shroff Shop namely, Anileshbhai Navinchandra Shah, P.W.3 at Ex.13. He has deposed that the victim, who is the owner of the Shroff Shop, had come to his house for taking the key of the shop along with a cloth bag containing money. Said testimony tallies with the oral evidence of P.Ws.4 and 5 that the victim had a cloth bag in his hand. Not only that, said cloth bag has been snatched away by the assailants and for that purpose, the victim has been assaulted by the assailants with a preplan. The assailants were knowing that the victim was serving in a money lending firm and he would come out at that time and, therefore, they were waiting outside the Society gate and as soon as the person came out of of the society, he was assaulted and incident in question has taken place. This is further supported by the test identification parade and the evidence of Executive Magistrate that proper care and caution has been taken at the time of holding TI parade. 12.From the entirety of the facts and circumstances narrated hereinabove, it is clear that the guilt against the accused has been proved by the prosecution beyond CR.A/28519/1999 16/16 JUDGMENT reasonable doubt and no illegality or irregularity has been committed by the court below in passing the impugned judgment and order of conviction and sentence and hence, we do not interfere with the same in this appeal. This appeal is therefore required to be dismissed. 13.Thus, the appeal is dismissed. [R.P.DHOLAKIA,J] [D.N.PATEL,J.] radhan/