CR.A/231/2005 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 231 of 2005 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 ? ========================================================= DHIRU @ DHARAMSHI BARAIYA DEVIPUJAK - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SHAILESH C SHARMA for Appellant(s) : 1, MS HANSA PUNANI, APP Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/05/2008 ORAL JUDGMENT Appellant is original accused. By the impugned judgment and order dated 24.9.2003 passed by the learned Additional Sessions Judge, Veraval, he was CR.A/231/2005 2/8 JUDGMENT convicted for offence punishable under section 397 of the Indian Penal Code and sentenced to 7 years of rigourous imprisonment and fine of Rs.500/-. 2. As per charge Ex.1, it was alleged against the accused that on 13th March 2002 (which appears to be a typographical error and the alleged incident had taken place on 12th March 2002) at 13.30 hours, when the complainant was going on his Hero Hondo Motorcycle from village Pipariya to Nana Samadhiyala, in the sim of vilage Samadhiyala, the accused gave an axe blow and thereafter robbed the complainant of Rs.700/- cash, two gold rings which he was wearing and a wrist watch. 3. Complainant, Mukeshbhai, PW-1 was examined at Ex.8. In his deposition, he stated that on 12th March 2002, at about 1 O' clock in the afternoon, he was going from Pipaliya to Samadhiyala. On the way, he saw one person carrying an axe with a long handle. Near the field of Maganbhai Ramabhai, the person straightway gave one blow with the axe on his left hand. He tried to brake the motor-cycle and in the process fell down. He fell down on the road side. The person came to him, put his axe on the neck and asked him to hand over all that he had. He had taken away two gold rings and a duplicate Rado wrist watch and cash of Rs.700/- which the witness was carrying. He further stated that thereafter, he came on the road from the ditch where he met Ratibhai who in a tractor of Ramjibhai took him to the house of CR.A/231/2005 3/8 JUDGMENT Naranbhai. He was, therefore, taken to Dr.Pathak's hospital at Una. From there, he was taken to Dr.Mehta's hospital for x-ray. Sometimes thereafter, he was called by the police to identify the accused. During identification, he had identified the accused. Before the Court also, he identified the accused. He identified the axe used in the commission of offence. He also identified the wrist watch which was taken away by the accused from him. In the cross-examination, he stated that the road on which he was travelling was a kachha road. 4. PW-3, Jaisukh Devshi was the panch witness of the panchnama of Ex.13. As per the panchnama and this witness, the accused had led the police party to the scene of the incident. 5. PW-5, Jamalbhai Nanabhai, Ex.16 was the panch witness to the panchnama Ex.17 according to which the accused had led the police party to the house of one Dhirubhai Lakhmanbhai to whom the accused had given the stolen wrist watch for using. Though this panch witness turned hostile, contents of the panchnama were sought to be proved through the evidence of I.O. 6. Laljibhai Balabhai, PW-7, Ex.19 was the Executive Magistrate who carried out the test identification parade on 14.6.2002. He described the manner in which the TIP was conducted and the fact CR.A/231/2005 4/8 JUDGMENT that the complainant had successfully identified the accused from out of total eight persons. 8. Panchnama of the TIP was produced at Ex.21. 9. Panch witness Arvindkumar, PW-8, Ex.22 also supported the prosecution. He had witnessed the test identification parade. 10. Ratibhai Raghavbhai, PW-9, Ex.23, was the first person who had helped the complainant after he got injured. In his deposition, he stated that at about 1 O' clock on 12.3.2002, when he was going on Pipariya- Samadhiyala road towards his farm, he found Mukeshbhai lying near the field of Ramjibhai. Mukeshbhai had informed him that he was hit with an axe by an unknown person and he was robbed of his cash, gold rings and wrist watch. The witness thereafter called Naranbhai and with his help, Mukeshbhai was taken to the house of Rambhai. 11. Goberbhai, PW-10, Ex.24 had taken Mukeshbhai to doctor at Una in a tractor. 12. Dhirubhai Lakhmanbhai, PW-11, Ex.25 stated that he new the accused. The accused had given a Rado wrist watch for wearing. He identified the wrist watch as muddamal article No.1. He could not state as to from where the accused had got the watch. He agreed that the Police had seized the watch from him. CR.A/231/2005 5/8 JUDGMENT 13. PW-12, Amubhai Gordhanbhai, Ex.26, was the jeweler to whom the accused had sold the gold rings. He stated that the accused had come to his shop to sell two gold rings of total of 6 grams. He had paid Rs.1000/- for the rings. He had melted the rings for making other ornaments. Thereafter, the police had come with the accused and inquired about the gold rings. 14. Ramjibhai, PW-14, Ex.31 was the person in whose tractor Mukeshbhai was shifted in the afternoon of 12th March 2002. 15. Mangalbhai Shardulbhai, PW-15, Ex.32 was the panch witness to the panchnama of discovery of the weapon used in the offence. He, however, turned hostile. The contents of the panchnama were sought to be proved through the deposition of IO. 16. Dr.Ramash Nimavat, PW-16, was examined at Ex.34. He had treated the complainant on 13th March 2002 at Mehta's Trust Hospital in which he was a surgeon in the Orthopedic Department. He stated that the patient was brought to him at 10 O' clock on 13th March 2002 after having been taken to emergency treatment from a private doctor. Since earlier police report was not made, he had informed the police on telephone. He put a plaster. He had found an injury between the elbow and shoulder on left hand which prevented movement of the hand. The patient had given history that on the previous day in the CR.A/231/2005 6/8 JUDGMENT afternoon when he was on a motor-cycle, an unknown person had hit him with an axe. 17. Bhagwanbhai Rambhai, PW-19, Ex.45 was the IO, who described the manner in which the investigation was carried out. 18. In the nutshell, the prosecution relied on the above evidence to prove the charge. 19. Having perused the evidence and having heard the learned APP for the State, I find that there was overwhelming evidence against the accused in the present case. Complainant, Mukeshbhai has clearly stated in his deposition the manner in which the incident had taken place. Accused was arrested in connection with another offence and was offered for identification, some three months after the incident. The complainant identified the accused during TIP. He also identified before the Court. 20. The incident happened in the broad day light and after giving an axe blow to the complainant when he fell down, the accused also demanded cash and valuables from him. After collecting cash, wrist watch and gold rings, he disappeared. Thus the complainant had ample opportunity to see the accused in broad day light for a fairly long time. His identifying the accused about 3 months after the incident, therefore is not surprising. CR.A/231/2005 7/8 JUDGMENT 21. Deposition of the complainant Mukeshbhai is corroborated by other evidence on record. PW-9, Ratibhai, who had helped the complainant immediately after the incident also supported the prosecution. Goberbhai, PW-10, had taken the complainant to the doctor. All these witnesses support the version given by the complainant. Ramjibhai Lakhmanbhai, PW-14, Ex.31, had shifted the complainant in his tractor to the hospital at Una. Apart from the said eye-witness account, prosecution also had seized the wrist watch from Dhirubhai Lakhmanbhai to whom the accused had given the watch for wearing. The accused had led the police and the panch to the house of Dhirubhai from where the watch was recovered. In fact, Dhirubhai Lakhmanbhai, PW-11, Ex.25 also stated that the watch was given to him by the accused. 22. The prosecution also examined the gold-smith, Amubhai, PW-12, to whom the accused had sold the gold rings. He also stated before the Court that he had paid a sum of Rs.1,000/- to the accused to purchase the gold rings. Additionally, the axe used in the commission of offence was also discovered at the instance of the accused. Further Dr.Ramesh Nimavat, PW-16, Ex.34 who had treated the complainant on 13th March 2002 also described the injuries suffered by the complainant which corroborated the deposition of the complainant that he was hit by the accused. 23. In view of he above unimpeachable and extensive evidence on record, there is no doubt left in my mind CR.A/231/2005 8/8 JUDGMENT that the accused was involved in the commission of offence. While committing robbery he had used a deadly weapon. His conviction under section 397 of the IPC was, therefore, justified. The learned Judge imposed sentence of 7 years which is the minimum prescribed under the said section. 24. In the result, I see no merit in the appeal and the same is therefore dismissed. (Akil Kureshi, J.) (vjn)