CR.A/172/2003 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 172 of 2003 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 ? ========================================================= VINODSING @ MANISHRAY PARAM HANSRAY BHUMOHAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS NITA C BANKER for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/01/2008 ORAL JUDGMENT 1. This appeal arises out of judgement and order dated 30.11.2002 rendered by the learned CR.A/172/2003 2/10 JUDGMENT Additional Sessions Judge, Fast Track Court, Surat in Sessions Case No.10/2001. 2. The appellant herein was the original accused No.1 who was charged with offences punishable under Sections 328,379 read with Section 114 of the Indian Penal Code along with one Raju Murgasan Pillai. Learned Additional Sessions Judge vide his impugned judgement convicted the appellant of the said offence. Original accused Raju Pillai however, was acquitted. 3. Prosecution case broadly was that on 29.8.2000 at about 3 O' clock in the afternoon the complainant was sitting on platform No. 2/3 of Surat Railway Station. At that time, accused No.1 approached him and struck an acquaintance. He thereafter, offered him milk apparently containing some intoxicating substance which made the complainant unconscious. The complainant was carrying a bag of artificial jewellery as well as certain other items. The bag was stolen by the appellant along with a gold chain of four and half Tolas and a gold ring of the complainant. 4. The complainant Prakashchandra Ambalal Jain-PW7 was examined at exh.18. He stated that on 23.8.2000 he had gone to Jaipur from Mumbai. He returned to Ahmedabad on 28th. He collected some money from Ahmedabad and on 29th at 11 O' clock, CR.A/172/2003 3/10 JUDGMENT he reached the railway station where he found that the train is available only at 4 or 5 O' clock. He therefore, came to Surat from Ahmedabad by bus. He inquired about the availability of train to reach Mumbai. He was told that train would depart at about 7:30. He therefore, purchased the ticket and went to platform No.3. He sat down near the stall and started reading his book. The appellant came where the witness was sitting and had put down his suitcase there and entered into a conversation with the witness. He left the suitcase and went for some refreshment. After 10 minutes he returned and offered milk in bottle which the witness consumed. At that time he had one suitcase with him. Thereafter, he does not remember when he lost his consciousness. He did not know when the train arrived and left. He did not know who took him to the civil hospital. He regained consciousness on 31st in the civil hospital. From his telephone diary, he had called his relative. He was informed that police people had also contacted the relatives. When he regained consciousness, he realised that his suitcase was missing. The suitcase contained 130 pieces of jewellery and cash of Rs.28,000/- which he had collected from Ahmedabad. He showed police the place where he had consumed the milk. Part of the stolen articles were retrieved later on including his gold chain and ring. CR.A/172/2003 4/10 JUDGMENT 4.1 In the cross examination, he stated that he accepted milk and drank it since he was engrossed in reading the book. 5. One Dilipbhai Ratilalbhai Visar-PW12 was examined at exh.33. He was the Head Constable at Surat Railway Police Station. He was on the date of incident discharging his duties at Surat Railway Station. When he was in duty, the Station Master gave him a Memo stating that on platform No.2/3, one person is lying in unconscious stage. He therefore, went to the spot and drew panchnama before he informed the PSI about the incident. He thereafter, took the person to the hospital. After he regained consciousness on 31.8.2000 he had recorded his statement. He was told that the person who had approached the complainant was in habit of eating Gutkha and that he was Hindi speaking person. 6. Dr. Vijay Ishwarlal Seth-PW5 was examined at exh.14. He was the Medical Officer at Civil Hospital at Surat when the complainant was brought for treatment. He stated that the complainant was brought to him by the police on 30.8.2007. During investigation, it was found that patient had consumed intoxicating substance. He was admitted in the hospital and treated accordingly. The patient had informed him that some unknown person had given him milk CR.A/172/2003 5/10 JUDGMENT when he was travelling from Ahmedabad to Surat by bus. 7. Mr. Mumtazali Rasoolmiya Sayed-PW6 was examined at exh.17. He was the Executive Magistrate in whose presence identification parade of the accused was carried out. He described the manner in which the complainant had identified the appellant. 8. Mr. Mohammadali Hamidmiya Saikh-PW11 who was PSI at Surat Railway Police Station was examined at exh.29. He described the manner in which investigation was carried out. He stated that he was investigating CR No.162/2000 under Sections 328, 379 of the Indian Penal Code. During the investigation it was revealed that these accused had committed the present offence. They were therefore, arrested and questioned under remand. They had led the police party to a lady in village Badalpur in Kalyan District from where part of the stolen articles were retrieved. He also produced FSL report of the contents of the milk bottle supposed to have been consumed by the complainant before he was rendered unconscious. On the basis of above evidence, prosecution sought to prove the charge against the appellant. 9. Appearing for the appellant, learned advocate Ms. Banker submitted that FSL report did not CR.A/172/2003 6/10 JUDGMENT indicate any poisonous substance in the milk bottle. She submitted that the Muddamal articles were not recovered from the accused. She further pointed out that as per Dr. Vijay Ishwarlal Seth-PW5, the complainant had given history of consumption of milk while he was travelling from Ahmedabad to Surat by bus. 10.On the other hand, learned APP Mr. P.D. Bhatte for the State supported the judgement under challenge. He submitted that there was sufficient evidence against the appellant to convict him for the said offence. The appellant was involved in other cases also and the modus operandi was similar. 11.Having heard the learned advocates appearing for the parties and having perused the evidence on record, it can be seen that the complainant had given account of the entire incident in his deposition. The complainant had started from Ahmedabad to reach Mumbai. He was carrying some cash, valuable articles and was also wearing gold ornaments himself. He could not catch the train from Ahmedabad to Mumbai. He therefore, travelled upto Surat by bus. After inquiring about the next available train to Mumbai, he purchased the train ticket and sat himself down on platform no. 2/3. At that time, the appellant approached him and struck a conversation and tried to strike an acquaintance. After some CR.A/172/2003 7/10 JUDGMENT time, he offered him milk laced with intoxicating substance. Upon consumption of milk the complainant lost consciousness. When he regained his consciousness he was in the hospital. His suitcase and gold ornaments were missing. 12.This witness had sufficient opportunity to see the facial features of the accused. He later on identified the accused during the Test Identification Parade. Version of the complainant is well corroborated by other witnesses. As noted Dilipbhai Ratilalbhai Visar-PW12 was the Head Constable at Surat Railway Station. He was informed by the Station Master that one person was lying in unconscious stage on the platform. He had thereupon gone to the place, drawn panchnama and sent the complainant for medical treatment. Dr. Vijay Ishwarlal Seth-PW5 had treated the complainant and he confirmed that the complainant was brought to him in unconscious stage and that he had lost his consciousness upon consumption of intoxicating substance. The fact that the appellant was involved in the incident is thus established by cogent reliable evidence. No material contradictions have been extracted by the defence in the cross examination of these witnesses. It is true that Dr. Vijay Ishwarlal Seth-PW5 in his deposition stated that the complainant had given history of having consumed CR.A/172/2003 8/10 JUDGMENT milk during his bus journey from Ahmedabad to Surat. This however, would not be fatal. The complainant in his deposition stated that he was travelling from Ahmedabad to Surat by bus. He had thereafter tried to board the train from Surat to Mumbai. While waiting for train there he was offered milk by the appellant which apparently contained intoxicating substance. Thus after a passage of time, if Dr. Vijay Ishwarlal Seth-PW5 made a minor misstatement in the exact sequence of events, same would not materially destroy the effect of the evidence of complainant himself. The complainant had actually travelled from Ahmedabad to Surat by bus and this part is not doubted. 13.Insofar as FSL report is concerned, it may be noted that same does not detect any poisonous substance in the milk sample. This also would not give any benefit to the accused since it is not even the case of the prosecution that the complainant had consumed a poisonous substance. The fact that he was rendered unconscious after consuming milk offered by the appellant is established by oral evidence of the complainant himself as corroborated in other aspects by the testimony of Head Constable Dilipbhai Ratilalbhai Visar-PW12 and Dr. Vijay Ishwarlal Seth-PW5 who treated the patient. It is true that the sample vomit of the complainant was sent by the police for FSL report, but report CR.A/172/2003 9/10 JUDGMENT was not produced before the Court. Such lapse on part of the prosecution however, would not obliterate the evidence on record. I find that eyewitnesses accounts are reliable and lead to the inescapable conclusion of the guilt of the appellant. Such minor lapse on part of the prosecution would not be sufficient to shake the foundation of the conviction recorded by the Court below. 14.Considering all these aspects of the matter, I find no merits in the appeal. Conviction and sentence is confirmed. The appeal deserves to be dismissed. 15.Before parting one aspect of the matter needs to be mentioned. The appellant was convicted and sentenced for a similar offence by a judgement and order dated 30.11.2002 passed by learned Joint District & Additional Sessions Judge, 3rd Fast Track Court, Surat in Sessions Case No.11/2001. The appellant had filed Criminal Misc. Application No.15380/2005 seeking expeditious hearing of the present appeal as well as Criminal Appeal No.168/2003 challenging his conviction in the above-mentioned separate criminal cases. By an order dated 24.1.2006, Learned Single Judge of this Court expediting hearing of the appeals stated that the relief regarding two sentences to run concurrently shall be decided at the time of hearing of the CR.A/172/2003 10/10 JUDGMENT appeal. 16.It may be noted that when the above order was passed by this Court on 24.1.2005, it was not brought to the notice of the Court that Criminal Appeal No.168/2003 was already disposed of by Learned Single Judge of this Court by judgement dated 20.1.2005. Be that as it may, I have inquired that the appellant has undergone both sentences even while not treating the same as concurrent. In that view of the matter, this issue could not be dilated any further. 17.In the result, appeal fails, is hereby dismissed. (Akil Kureshi,J.) (raghu)