CR.A/8320/2005 1/12 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 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 ? ============================================================== = DHANJIBHAI MOHAN VAGHARI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ============================================================== = Appearance : MR HARSHIT S TOLIA for Appellant(s) : 1 - 2. MR. UR BHATT APP for Opponent(s) : 1, ============================================================== = CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 23/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/8320/2005 2/12 JUDGMENT 1. These two appeals arise out of a judgment and order rendered by learned 4th Fast Track Court Judge at Gondal on 29.12.2004 in Sessions Case No.82 of 1996. 2. In all seven persons were charged and tried for the offences punishable under Sections 395, 397, 504, 506(2), 411 of I.P.C. and Section 135 of the Bombay Police Act. Original accused No.1 and Nos.3 to 6 came to be convicted by the Trial Court for the said offences and accused Nos.2 and 7 came to be acquitted by the Trial Court on the basis of the evidence led before it by the prosecution. 3. The present appeals are preferred by original accused Nos.1,3,4 and 5, namely, Dhanji Mohan Vaghri, Madhu Desha Vaghri, Himmat Desha Vaghri and Dhiru Panna Vaghri respectively. 4. The prosecution case, in brief, is that on 11.09.1993 between 2 to 4 hours in the early morning of that day, the accused persons went to the house of the first informant – Champaklal Bhurabhai Vaniya located at village Vasavad for committing robbery. They were all armed with the weapons like dharia, knife and iron pipes etc. It is also a case of the prosecution that they were also in black clothes and their faces were masked, except CR.A/8320/2005 3/12 JUDGMENT the eyes. They break opened the doors of the house of the first informant, entered into the house and committed robbery of gold and silver ornaments and cash besides master shares. After committing robbery at the house of the first informant, they tried to rob branch of Bank of Baroda located on the ground floor of the house of the first informant but failed and thereafter, they escaped. It is also a case of the prosecution that during the course of this transaction, the accused persons caused hurt to the first informant and his wife with the help of deadly weapons on various parts of the body. 4.1. The first informant – Champaklal Bhurabhai Vaniya lodged F.I.R. with the police on 11.09.1993 at about 9:30 hours, on basis of which, offences came to be registered and investigation started. The investigation seems to have spread over a long period and at the end of the investigation, the Investigating Agency having found sufficient material, filed chargesheet in the Court of learned J.M.F.C., Gondal. Since the offences alleged against the miscreants were triable by the Sessions Court exclusively, the learned Magistrate committed the case to the Court of Sessions and Sessions Case No.82 of 1996 came to be registered. 4.2. The charge was framed against the accused CR.A/8320/2005 4/12 JUDGMENT persons at Exh.1. The accused persons pleaded not guilty to the charge and claimed to be tried. 4.3. On the basis of the evidence led by the prosecution, the Trial Court came to the conclusion that the prosecution could not establish the charges against original accused Nos.2 and 7, namely, Savjibhai @ Shivji Mohan Vaghri and Ashok Radha Krishna @ Radha Kishan respectively and recorded their acquittal by the judgment impugned herein. It would be stated at this stage that no appeal is preferred against their acquittal by the State. 4.4. The Sessions Court also came to the conclusion that the prosecution was successful in establishing charges against accused No.1 – Dhanji Mohan Vaghri and accused Nos.3 to 6 – Madhu Desha Vaghri, Himmat Desha Vaghri, Dhiru Panna Vaghri and Babu Popat Vaghri for the offences punishable under Sections 395,397,504,506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act. The Sessions Court awarded punishments as under:- 1. Section 395 - R.I. for ten years and fine of Rs.1,000/-, in default, to undergo S.I. for one year. 2. Section 397 - R.I. for seven years and fine of CR.A/8320/2005 5/12 JUDGMENT Rs.1,000/-, in default, to undergo S.I. for one year. 3. Section 504 of I.P.C. - R.I. for two years and fine of Rs.500/-, in default, to undergo S.I. for three months. 4. Section 506(2) of I.P.C. - R.I. for seven years, fine of Rs.500/-, in default, to undergo S.I. for three months and; 5. Section 135 of the Bombay Police Act - R.I. for one year and fine of Rs.500/-, in default, to undergo S.I. for three months. It is against this conviction and sentence, that the appellants-original accused persons have preferred these appeals. The original accused – Babu Popat Vaghri has not preferred any appeal against conviction. 5. We have also heard learned advocate Mr.Tolia for the appellants and learned A.P.P. Mr.U.R. Bhatt for the respondent. We have also examined the Record and Proceedings. 6. Learned advocate Mr.Tolia submitted that the prosecution case as it was, was that the incident occurred in the early morning hours in the house of the first informant. It has come in evidence of the first informant, his wife, his son and his daughter-in-law CR.A/8320/2005 6/12 JUDGMENT that, at that time, there was darkness in the house. It is also the case of the prosecution that all the assailants were dressed in dark clothes and their faces were masked, except their eyes. None of the witnesses to the incident, therefore, could have identified the assailants. Mr.Tolia submitted that in order to fix the identity, the Investigating Officer has recorded their further statements wherein, the witnesses say that the assailants had asked for water and in order to take water, they had unmasked their faces and that is how they were identified. Mr.Tolia submitted that this is a totally unbelievable and improper story. 6.1. Mr.Tolia further submitted that Test Identification Parade which is the main foundation of conviction is not beyond doubt. According to Mr.Tolia, before the Test Identification Parade was conducted, the witnesses were shown the photographs of the accused persons. He also states that there is nothing in evidence to show that the precautions were taken to ensure that the accused persons, who are brought for Test Identification Parade, were not exposed to the witnesses. Mr.Tolia, therefore, submitted that the Test Identification Parade ought not to have been believed by the Trial Court. CR.A/8320/2005 7/12 JUDGMENT 6.2. Mr.Tolia further submitted that the witnesses have, while identifying the accused persons in the Court, committed mistakes in fixing the identity. He submitted that the First Information Report is silent on the names and identity of the assailants. It has not come in evidence as to how the witnesses could recognise the accused persons by their names after two years of the date of occurrence. If the witnesses knew the assailants by their names, the first informant ought to have given their names in the F.I.R. which is not done and if there was some other reason for identifying the assailants, that aspect ought to have come on record and in the absence thereof, it can be said that there is no material to know as to how the witnesses have identified the assailants as the appellants-convicts. 6.3. Mr.Tolia further submitted that there is no recovery or discovery at the hands of any of the convicts and, as such, there is no link established by the prosecution to connect the convicts with the crime. Mr.Tolia submitted that in light of the above defects in the prosecution case, the Trial Court ought not to have recorded conviction and, in any way, this Court may set aside the judgment of the Trial Court and acquit the appellants of the charges levelled against them. The Trial Court has committed error in recording conviction CR.A/8320/2005 8/12 JUDGMENT of the appellants for the offences punishable under Sections 504 and 506(2) of the Indian Penal Code in total absence of evidence. 6.4. By way of an alternative submission, Mr.Tolia submitted that sentence awarded by the Trial Court is too harsh for any of the offences and, if the Court is not inclined to entertain the appeals on merits, at least the case of the appellants may be considered sympathetically since they are in jail for nearly seven years. 7. On the other hand, learned A.P.P. has opposed these appeals. According to him, the witnesses identified the assailants as the accused during cross-examination and, therefore, that identification would deserve due weightage. Mr.Bhatt, learned A.P.P. also submitted that the incident occurred all of a sudden and, therefore, the first informant may not have given names of the assailants but when he says that he had identified the assailants in the light of streetlight soon after the incident, there is no reason to disbelieve his version. Non recovery of booty by itself may not be a ground for acquitting the accused. According to Mr.Bhatt, the conviction has rightly been recorded and the appeals, therefore, may be dismissed. 8. We have considered the rival side submissions. From CR.A/8320/2005 9/12 JUDGMENT the Record and Proceedings, we find that first informant - Champaklal Bhurabhai Vaniya was examined at Exh.40, his wife was examined at Exh.41, his son – Depak Champaklal was examined at Exh.51 and Dipak's wife – Heenaben was examined at Exh.88. The depositions run in number of pages but what emerges therefrom, can be discussed as under:- 8.1. Undisputedly, there was darkness in the house of the first informant where the robbery is alleged to have been committed. The assailants were wearing masks on their faces leaving open only the part of the eyes. In the F.I.R., the F.I.R. does not give the name of any of the assailants nor does it give any description of any of the assailants. It does not emerge from the F.I.R. that the assailants had asked for water and, while taking water, they had unmasked their faces. It also does not emerge from the F.I.R. that there was light coming from the windows with the help of which, the assailants were identified by the first informant or other witnesses. 8.2. It also emerges from the evidence that the theory of the assailants asking for water and while taking water unmasking their faces emerges from the statements recorded of those witnesses after the Test Identification Parade. This, in our opinion, is a clear CR.A/8320/2005 10/12 JUDGMENT attempt on the part of the Investigating Agency to fill up the lacuna in the case of the first informant and by this, an attempt is made to give colour of truthfulness to the identification made by the witnesses in the Test Identification Parade. 8.3. It also emerges from the evidence of these witnesses that while deposing before the Court witnesses – Vinaybala Champaklal (Exh.41) and Dipak Chempaklal (Exh.51) have not identified the accused persons in their examination in chief. Unfortunately, the defence has put certain questions regarding identity of the accused persons and during the course of examination, the witnesses have tried to identify the accused persons by their names as assailants but in doing so, they have committed mistakes and have fixed the identity wrongly, incorrectly or erroneously. As a result, the accused persons were identified by the names of other accused persons. 9. It also emerges from the evidence of the Investigating Officer that the photographs of the accused persons were shown to the witnesses before Test Identification Parade. It also emerges from the evidence that photograph of one Anakbhai Kabubhai Kathi was also shown to the witnesses during the course of CR.A/8320/2005 11/12 JUDGMENT investigation. But, thereafter, what happened and why that Anakbhai is not arraigned as an accused is not explained by the prosecution. 9.1. It also emerges from the evidence that no booty is recovered or discovered from any of the accused persons. 9.2. It also emerges from the evidence of Executive Magistrate – Dipakbhai Shukla at Exh.146 that no precautions were taken to ensure that the accused persons were not exposed before exposing to public or to witnesses, before Test Identification Parade was conducted. 10. It is also on the record that the Investigating Officer was present when the Test Identification Parade was conducted by the Executive Magistrate. The evidence is totally silent, so far as charges of offences punishable under Sections 504 and 506(2) are concerned. No weapon is recovered from any of the accused or discovered by any of them. 11. In light of foregoing salient features and the prosecution evidence, we are of the view that the Trial Court erred in recording their convictions and sentenced them. The appeals are allowed. The judgment and order of CR.A/8320/2005 12/12 JUDGMENT Sessions Court, Gondal dated 29.12.2004 in Sessions Case No.82 of 1996 recording conviction of the appellants impugned in the appeals is hereby set aside. The appellants are acquitted of all the charges levelled against them. They be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to them. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) Hitesh