IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 345 of 2001 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JASHWANT ALIAS YASHWANT SHAMJI KADAM Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 345 of 2001 MR RAJESH M AGRAWAL for Appellants MR HL JANI APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 05/11/2004 ORAL JUDGEMENT 1. This Appeal is preferred by the appellants under Section 374(2) of the Code of Criminal Procedure against the judgment and order dated 21st of March 2001, delivered by learned Additional Sessions Judge, Court No.8, Ahmedabad City, where in a Sessions Case No. 325 of 2000, both the appellants were convicted by learned Trial Judge for the offence proved against the appellants under Sections 397 read with Section 120(B) of the Indian Penal Code and sentencing them for rigorous imprisonment of 7 years. Appellant No.1 was also convicted for the offence under Section 25(1) of the Arms Act and was sentenced to undergo 3 years rigorous imprisonment and to pay fine of Rs. 5,000/- in default to undergo rigorous imprisonment for one month. Appellant No.2 was also convicted for the offence punishable under Section 135(1) of the Bombay Police Act and was sentenced to undergo rigorous imprisonment for one and half months and fine of Rs. 500/- in default to undergo 15 days rigorous imprisonment. 2. In all 8 accused came to be tried by learned Trial Judge in Sessions Case No. 325 of 2000. Original Accused Nos. 3 to 8 came to be acquitted while present appellants - original accused Nos. 1 and 2 were convicted as aforesaid. 3. As per the prosecution case, the incident in question occurred on 10th of December, 1999. Victim complainant Harshadbhai Baldevbhai Patel was doing business of financing in the City of Ahmedabad at Galaxy Complex, Surbhi Hotel, Naroda. He had two employees along with him. One Jiggar Arvindbhai Patel and the other Nileshbhai Panchal. One Atulbhai Sakarchand Patel was working in the office of the complainant as Manager. As per routine, complainant was coming to his Office at 10.00 a.m. and was closing at 7.00 p.m. On the day of the incident, he as usual came to his office at about 10.00 a.m. Thereafter, at about 1.30 p.m. five unknown persons plunged in his office. His above said two employees and one of his friend Gajrajsinh Raghunathsinh Solanki were present. At that time, Manager was not present. All the five persons had worn pants and shirts. Out of those five persons, there were revolvers with three persons wrapped in hand kerchief and other two had knives. All the five persons as soon as they forcibly entered in the office, started giving abuses to complainant. Three persons separately aimed and kept revolvers at the temples of complainant, Gajrajsinh Raghunathsinh Solanki and Dinesh Panchal. Out of the other two persons, one person kept knife on the stomach of complainant. The fifth person also aimed knife against Jiggar Arvindbhai Patel. Out of five persons, one person said that complainant had 10 lacs rupees and that he belonged to Dawood Gang and enquired about where the monies were kept. Three persons started beating complainant with fist. Complainant stated that the money is kept in the drawer of the table and that he should not be beaten. Thereafter, all the five persons dragged these four persons to inner room and were made to sit and others opened the drawer of the table and took out amount of Rs. 1,70,000/- lying in the drawer of the table kept in one Wallet. Complainant and other three persons had ornaments on their bodies and those ornaments were robbed by those five persons. In the meanwhile Manager Atulbhai Sakarchand Patel, who had been to Bank for brining amount of Rs. 30,000/- came down there, and those five persons also robbed Rs.30,000/- from Atulbhai Patel. Thereafter, those five dacoits dragged complainant and party in the bathroom and bathroom was closed. Thereafter, complainant and party started shouting from ventilation of the bathroom. The dacoits thereafter ran away from the office, and soon thereafter complainant and other four persons also came out of the bathroom. They noticed that outside the office, out of five dacoits, one showed revolver to one jeep driver and made him to stop. All the five dacoits thereafter boarded in the said jeep. Complainant and party shouted and therefore the crowd was gathered. All persons including complainant ran after them. In the road ahead, there was railway crossing of Naroda area. Since the train was to pass through, the said railway crossing was closed and, therefore, the jeep in which the dacoits were there, was stopped, and all the five dacoits got down from the jeep there, and out of five dacoits, three of them ran towards Noblenagar while two of them ran towards Chhiloda. The complainant and other persons gathered there, ran after two persons, who have attempted to escape towards Chhiloda. The said two dacoits were apprehended by the crowd and was handed over to the Police. Complainant informed Sardarnagar Police Station and his complaint was recorded by J.K. Vacchani, the then Senior P.I. of Sardarnagar Police Station. The said complaint given by the complainant was registered at Sardarnagar Police Station. The investigation was handed over to Jayantilal Karmanbhai Vachhani. In the meanwhile, as informed by PSO of Sardarnagar Police Station to Balwantsinh Dalpatsinh Rana, the then PSI of Kubernagar Police Station that near Galaxy Cinema at Naroda, loot has been committed and, therefore, Balwantsinh Dalpatsinh Rana reached near the office of complainant, where he was informed that the dacoits after committing loot, have absconded towards Naroda Railway Crossing in a jeep. Therefore, Balwantsinh Dalpatsinh Rana also reached at Naroda Railway Crossing, where he found that on the other side of Naroda Railway Crossing towards Gujarat Agro Industries, two persons were lying on the road in injured condition. From the persons around, it was known by Balwantsinh Dalpatsinh Rana that the crowd of people had beaten these two persons. One country revolver was lying near one dacoit. In the meantime, Police van came there. Therefore, the two dacoits, who were in injured condition, were sent to Civil Hospital along with Head Constable Babulal and other persons in a mobile van. Thereafter, the Investigating Officer Mr. J.K.Vachhani reached near Naroda Crossing and on inquiring it was found that out of those two persons apprehended by the crowd, one was named as Surendrakumar Krishanlal Chaudhry, while other was named as Jashwant Samaji, who are appellants in this Appeal. 4. After investigation and arresting the accused, charge-sheet came to be filed by the Investigating Officer in the Trial Court. Appellant No.1 came to be arrested on 14th of December, 1999 and appellant No.2 came to be arrested on 12th of December, 1999 after they are discharged from the hospital. 5. Since the case was triable by the Court of Sessions, the case was committed by the learned Metropolitan Magistrate to the Court of Sessions. 6. Against all the accused, learned Additional Sessions Judge, Ahmedabad City, Court No.8, framed charge on 16.11.2000 at Exh. 11. All the accused including present appellants denied the charges and, therefore, prosecution examined as many as 23 witnesses and produced on record necessary documents like complaint, discovery panchnama, arrest panchnama etc. Before noting the contentions of learned counsels of the parties, for the purpose of appreciation, it is necessary to go through carefully the evidence recorded by learned Trial Judge. 6.1 PW-1 Harshadbhai Baldevbhai Patel, Exh.25 complainant while PW-2 Exh. 39 Gajrajsinh Raghunathsinh Solanki; PW-3 Exh.40 Atul Sakarchand Patel; PW-4 Exh. 41 Jiggar Arvindbhai Patel are the witnesses, who are victims in this incident. All of them stated in their depositions that while they were sitting in the Office of Complainant, as above stated, five unknown persons, who are dacoits, committed dacoity on the day of incident. All these four persons have stated that out of five dacoits, three dacoits had revolvers in their hands while other two dacoits were laced with knives. Complainant Harshadbhai Baldevbhai Patel stated that five dacoits demanded money from them and they were made to sit in inner room. He identified accsued appellant No.1 and accused appellant No.2 in the court and stated that other three persons were not present in the court. He identified appellant No.1 to be a person who aimed revolver at his temple and identified appellant No.2 who aimed knife at his stomach. He stated that the persons who committed dacoity in his office had worn pants and shirts and was about 25 to 30 years of age. He identified muddamal revolver, which was found near railway crossing, Naroda near appellant No.1. He gave deposition in support of his complaint. He also stated that his friend Gajrajsinh as well as his two other employees were robbed by the dacoits. He has been cross-examined in detail. An attempt has been made to bring about and to show that the exact word which the complainant narrated in the complaint were not reproduced in his deposition and, therefore, there were contradictions. He was cross-examined about whether PW-3 Atul Sakarchand Patel and PW-4 Jigger Arvindbhai Patel were his employees, and for that, in cross-examination, register kept according to law, was got produced. It was also alleged against the complainant in cross-examination that he was headstrong person of that area and was known as bobi boss, which complainant denied. 6.2 PW-2 Exh. 39 Gajrajsinh Raghunathsinh Solanki also stated that while he was sitting in the office of the Complainant and his two employees i.e. Nilesh and Jiggar were present, five dacoits forcibly entered in the Office and they had worn pants and shirts and were around 25 to 30 years of age. One of them straightaway aimed revolver at the temple of the complainant and said that he was the person of Dawood and company and demanded the amount of Rs. 10 lacs. They were robbed out all the ornaments put on their body, and after pushing them, they were taken into the inner room. The dacoits had also beaten them with fists and kick. Three golden rings and one necklace worn by him were snatched by the dacoits. They also took out an amount of Rs.3,500/- from his pocket and snatched a mobile phone. Thereafter, from the drawer of the table of the complainant they took out some cash and they were confined in the bathroom and thereafter those five dacoits ran away from the office. According to this witness, thereafter they came out of the bathroom and saw that the five dacoits were absconding in a jeep and, therefore, they chased the jeep through vehicles which were available at that time. Witness stated that on account of railway crossing of Naroda being closed, jeep was stopped and out of five dacoits, three ran towards Noblenagar while two ran towards Himatnagar. Crowd of persons apprehended two persons who ran towards Himatnagar. When out of those two persons, one person fired his revolver in the air, even then, they were caught by the crowd. In the meanwhile, Police reached there and those two persons were handed over to Police. This witness also identified appellants No. 1 and 2 in the court and stated that the person who aimed revolver to him could not be identified by him, but the persons, who took part in the dacoity and apprehended by the crowd, were identified by the witness as appellants No. 1 and 2. He has been cross-examined in detail but there appears no contradictions with his police statement. 6.3 PW-3 Exh. 40 Atul Sakarchand Patel deposed that he had been to Naroda Nagarik Bank for bringing Rs. 30,000/- and he got three bundles of notes of denomination of Rs.100/-. After getting money from the bank, he came to the Office of the Complainant Harshadbhai. He went inside the office and as soon as he entered, somebody caught hold of him from behind. He noticed two persons holding knives. He was taken to the inner room. There he saw three persons, each having revolver in their hands. He noticed that in the inner room, the Complainant Harshadbhai, Gajrajsinh Solanki, Nileshbhai and Jiggarbhai were made to sit and Harshadbhai was under the threat of firing because one person had aimed revolver against him and was demanding money and was saying that you have Rs.10 lacs and was enquiring about where the monies were kept, and they were beaten by kicks and fists. The dacoits robbed Rs. 30,000/- which he brought from the Bank and they also robbed the ornaments which he had worn like rings, necklace, wrist watch, etc. and they were made to go in a bathroom and they were confined in the bathroom. They shouted from the ventilation and therefore all the five dacoits ran away. On opening the door of bathroom, complainant and other persons according to this witness, came out of the office and saw that the dacoits were running away in a jeep and, therefore, all of them chased the jeep in the vehicles which were available with them. On account of Naroda Railway Crossing being closed, jeep came to be stopped and five dacoits got down and started running. Three of them ran towards Noblenagar while two of them ran towards Himatnagar. The crowd of people gathered and ran towards two persons who ran towards Himatnagar - Chhiloda. This witness also identified appellants No.1 and 2 and stated that appellant No.1 had revolver in his hand while appellant No.2 had knife. The witness also stated that they are the persons, who were apprehended at Naroda Railway Crossing. He identified the muddamal shown to him, which was robbed from him. He was cross-examined in detail especially on the issue that what was there to show that on that day witness Harshadbhai had amount of Rs. 1,70,000/- with him and whether any documentary evidence was there to denote that on that day this witness obtained Rs. 30,000/- from the Bank. The witness denied all the allegations made against him. No contradiction is brought about in cross-examination in respect of his police statement. 6.4 PW-4 Exh. 41 Jiggar Arvindbhai Patel deposed that on the day of the incident while complainant Harshadbhai, his friend Gajrajsinh, Nilesh and himself were present at the office of complainant, five dacoits entered in the office. Out of 5 dacoits, there were revolvers in the hands of three dacoits while two were holding knives. Out of them, one aimed revolver on the temple of Harshadbhai and other threatened by attaching knives on the stomach of Harshadbhai. They were speaking abuses and were demanding the amount of Rs. 10 lacs. He stated that what was robbed from Harshadbhai he could not say, but his Timex make wrist watch with black dial was robbed by these dacoits and thereafter they were taken to bathroom. After dacoits ran away from the office, they came out of the bathroom and chased the dacoits, who were running away in a jeep. The jeep came to halt near the Naroda Railway Crossing and out of five persons, two persons attempted to abscond towards Chhiloda and were apprehended by public and they were beaten by the crowd. Thereafter, police came to the spot and these two persons were handed over to the Police. He sufficiently identified accused appellant No.1 and accused appellant No.2 to the extent that appellant No.1 was aiming revolver towards complainant Harshadbhai and appellant No.2 threatened with knife. He also has been cross-examined by the defence. He stated in the cross-examination that bathroom was locked from outside and from the window they shouted and, therefore, the dacoits ran away. He apprehended the accused and was handed over to Police by him. He also has been cross-examined about whether the complainant was doing business of gambling and though this witness was helping Harshadbhai in his gambling business, to which this witness denied. He denied that on account of insistence of Harshadbhai, he deposed falsely before the Court. No contradiction whatsoever is brought about by the defence in the cross-examination, so far as the police statement of this witness is concerned. 6.5 PW-5 Nikhilbhai Ranchhodbhai Patel, Exh.43, stated that he resides near Galaxy Cinema and doing business in his house. On the day of incident at about 1.30 p.m. while he was on his counter of business place, he noticed five persons coming out of the office of Harshadbhai. Out of those five persons, three had revolvers in their hands and thereafter Harshadbhai and other persons also came out from the office. He inquired that what had happened and came to know that dacoity was committed in the office of Harshadbhai. He went to his office and got his scooter and went to Himatnagar road. The railway crossing of Naroda was closed and when the crossing was opened for the traffic, he found that two persons lying on the road and crowd of 100 to 150 persons. He identified before the Court that appellant No.1 and appellant No.2 to be the persons lying there and he also identified these two persons to be the persons who were coming out of the office of Harshadbhai on the day of the incident. For the fact stated by this witness before Police about whether appellant fired revolver in the crowd, APP asked permission of the Court to cross-examine the witness and the same was granted, and in his cross-examination by the prosecution, he denied that he saw that out of those two persons, one fired revolver in the air. In cross-examination of the defence, a theory is put that were hutments near the road of Naroda Railway crossing, and those hutmen were fighting amongst themselves, and due to this fighting, hutmen were injured. He had been asked that how he could remember the exact date of the incident. He admitted that in his police statement description of appellants No. 1 and 2 were not given. He also admitted that before the incident he never saw any of the appellants. 6.6 PW-6 Exh. 44 Manojkumar Nanumal Sindhi, is panch of panchnama Exh.45, and he stated that on 10th of December, 1999, he was called in the office of the complainant and made panchnama there. From there they went to Himatnagar Highway and from there they went to Naroda Railway Crossing. Near the Gujarat Agro Industries found one revolver and there were four cartridges which were fired. He and other panchas signed the panchnama. He has been cross-examined and stated that which Police Constable had been to call him was not known to him. He signed the panchnama prepared by the Police near Gujarat Agro Industries and after signing the same he went away. 6.7 PW-7 Exh.46 Rameshbhai Gulabbhai Sindhi is a panch of panchnama at Exh. 47 by which the clothes of the accused were seized by the Police. He has supported the panchnama at Exh.47. 6.8 PW-8 Rameshkumar Ramlalit Thakore is panch of discovery panchnama at Exh.50. In his deposition at Exh. 49, he stated that on 15th of December, 1999, he was called by the Police at 9.00 a.m. at Sardarnagar Police Station. There were police personnel and one more person, who was sitting in a bed. Police informed him that he was called as a panch in a loot case. The person who had committed loot had a plaster in the right leg and had bandages on his left leg, and his name was Yashwantbhai. The police personnel asked Yashwantbhai to inform panchas that where the muddamal was kept. The appellant No.1 Yashwantbhai stated that he be carried to a place which he would show where the muddamal was kept. Both the panchas, according to this witness, thereafter signed the panchnama. This witness identified appellant No.1 in the court. Thereafter carrying appellant No.1, second panch and police personnel started in a jeep and came near Gujarat Agro Industries. Reaching near the Gujarat Agro, appellant No.1 stated that there was a heap of garbage and he throw muddamal in the heap of garbage. There was a babul tree nearby. One Police Constable went there and found one plastic bag. The police man confirmed from appellant No.1 that whether the said plastic bag contained muddamal to which appellant No.1 confirmed. On opening the said bag, two golden rings, one necklace were found. Thereafter, one goldsmith was called by the Police and weighed the ornaments found from the place. The witness stated that thereafter he had signed both the panchnamas. This witness identified ornaments found from the Gujarat Agro Industries before the Court. He has been cross-examined in detail. He admitted that the place where muddamal was found, there was a high way and constant traffic movements on the said highway. There were shops and residential houses nearby. He denied that he knew complainant Harshadbhai. He denied that he did not go with the Police to recover muddamal. He denied that the goldsmith was called and ornaments were weighed. He denied that he deposed because he was relative of the complainant and only that Police Inspector Vachhani obtained his signature because he was known to Police Inspector Vachhani. Some details of panchnama is asked in cross examination. 6.9 PW-9 Exh. 52 Tilakdas Mirchumal Soni is a witness, who was called by the Police for weighing ornaments found in the heap of garbage. He stated that he weighed a chain of 13 grams, the other chain weighing 78 grams, one necklace weighing 23 grams and gold ring weighing 4 grams and other gold ring weighing 17 grams. He stated that he tested the metal and was found that two ornaments were of gold. In his cross-examination, he was asked about Exh. 51, which is a document prepared by the Police in respect of weight of the ornaments. He stated in the cross-examination that when he went to the Police Station there were 4 to 5 police officers, and in his presence, he executed writing Exh. 51. He denied that at the instance of complainant and PI Vachhani, he gave false evidence. 6.10 PW-10 Exh. 53 Rameshbhai Hiralal Sindhi is panch of panchnama at Exh. 54 in respect of a jeep used by the accused, but this witness did not support panchnama at Exh. 54 in any respect. 6.11 PW-11 Exh. 55 Uddhav Bhagvandas Harjani is panch of panchnama by which the clothes of the accused were seized by the Police. He stated that he was called by the Police at Sardarnagar Police Station and accused were there. He stated that there were blood stains on the clothes worn by the accused. His clothes were changed and were wrapped in a paper. He identified the clothes before the court but stated that the person whose clothes were seized could not be identified by him. 6.12 PW-12 Exh. Exh. 56 Gordhandas Vaghumal Aswani, is a witness did not support the prosecution case, perhaps he was cited as witness because he stated before the Police that one of the accused had purchased knife from him. This witness is not important for this Appeal. 6.13 PW-13 Arvindji Jivanji Thakore, Exh. 57 is examined by the prosecution as owner of Jeep bearing Regn. No. GJ 2-K 3520, and it was the prosecution case that one Amratji Vajajihad hired this jeep, in which accused had travelled from Kalol to Ahmedabad. The witness did not support the prosecution case, but so far this appeal is concerned, this witness is also not important. 6.14 PW-14 Amratji Manaji Thakore, Exh. 58 is also