CR.A/1992/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1992 of 2004 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 ? ========================================================= CHHATRASINH VIRSINH NAYAK - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS BHARTI H RANA for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 05/05/2008 ORAL JUDGMENT 1. The appeal arises out of judgement and order dated 08.10.2004 passed by the learned Additional Sessions Judge,Godhra, in Sessions CR.A/1992/2004 2/8 JUDGMENT Case No.382/2003. The appellant was the original accused. He was by the impugned judgement and order convicted for offence punishable under Section 395 of the Indian Penal Code and sentenced to five years of rigorous imprisonment. Fine was also imposed. 2. As per charge-exh.8, it was alleged that appellant with other accused on 7.8.2003 at about 10:30 hours descended into the house of the complainant with weapons such as iron pipes, knives, etc. They created atmosphere of terror and with force and coercion took away the keys of the locker and had stolen away VCD, gold locket, cash, etc., and also had taken away the gold and silver ornaments worn by members of the family and had thereby robbed the complainant to the extent of Rs.15,900/- worth of cash ornaments and goods. 3. The complainant Karsanbhai Ramabhai Bariya-PW1 was examined at exh.21. He stated that the incident took place before six months. He was at home at that time along with his wife Chandrikaben, his son Vijay, his daughter Kailasben and his daughter-in-law Sudhaben. At 10:30 at night near his house, he was lying down on a cot when some people arrived flashing torch in his eyes which blindened him. He requested not to flash the torch upon which these people held knives and revolvers and made CR.A/1992/2004 3/8 JUDGMENT to follow him quietly inside the house. After entering the house, they also surrounded the other family members and started looting. They had opened the locker and broken the inner compartments. They had taken away one gold locket which was lying in the locker. They had also taken away gold earrings and other gold ornaments. From suitcase, they had stolen cash of Rs. 600/-. They also took away silver ornaments and tape recorder and VCD and two speakers. They also took away the ornaments worn by his wife, his daughter and his daughter-in- law. He identified muddamal articles, two tape recorders which was taken away from his house by the accused. He was shown the remote of the VCD which also he identified. He was shown gold and silver to which he stated that what was stolen from his house was ornaments and not gold and silver pieces. He stated that the tape recorder was discovered at the instance of accused No.1 present appellant. 3.1 In the cross examination, he admitted that in the complaint he had not given any names of the accused. He admitted that he did not have the bills of purchase of muddamal articles. 4. It may be noted that almost all the panch witnesses turned hostile. 5. However, one Arvindbhai Sanabhai-PW16(exh.47) CR.A/1992/2004 4/8 JUDGMENT stated that he had paid Rs. 1200/- to the appellant for the purchase of CD Player in October 2003 which was seized by the police from him. 6. Daughter of the complainant, Kailasben Karsanbhai-PW18 was examined at exh.50. She also supported prosecution and stated that on the date of incident, when she was sleeping inside the house, some seven to eight people armed with iron pipes, knives, etc. forcibly entered her house and had taken nose-ring, earring, etc. which she was wearing. They had taken away other things from locker. She identified the appellant before the Court as one of the assailants. 7. Vijaykumar Karsanbhai Bariya-PW19(exh.51) was the son of the complainant. He was also present when the incident took place. He also gave somewhat similar version of the events. He stated that since he did not have the key to the locker, his wife had given the keys. The assailants had opened the front door of the locker and thereafter, broken the internal lock with the iron bar. He also identified the accused before the Court as one of the assailants. 8. Chandrikaben Karsanbhai-PW20(exh.52) was the wife of the complainant. She also identified the appellant before the Court. CR.A/1992/2004 5/8 JUDGMENT 9. Sudhaben Vijaybhai-PW21(exh.53) was the daughter-in-law of the complainant. She stated that on the date of incident, she was talking to her mother-in-law when the robbers came. She had run to her room. Assailants however, stopped her. They were carrying knife. They had taken away ornaments and also had broken the lock inside the locker and taken away some more ornaments. She also identified the appellant before the Court. 10.Initial investigation was carried out by Jivanbhai Bhikusinh Solanki-PW23(exh.55). After his transfer, he had handed over the investigation to Balwantbhai Chaturbhai Medha- PW24(exh.56). They described the detailed manner in which investigation was carried out, in particular, Balwantbhai-PW24 stated that at the instance of Chhatrasinh, gold locket was seized. He had also carried out identification parade of Chhatrasinh and Vikram Bhailalbhai in presence of panchas. It may be noted that such identification parade was not carried in presence of Executive Magistrate. 11.On basis of above evidence, prosecution sought to establish their charge. 12.Learned Judge acquitted all except the present applicant for offence punishable under Sections CR.A/1992/2004 6/8 JUDGMENT 395, 412 of the Indian Penal Code. The appellant was convicted for offence punishable under Section 395 and as noted sentenced to five years of rigorous imprisonment. 13.From the evidence on record, it can be seen that the appellant was identified by all the witnesses namely the complainant Karsanbhai Ramabhai Bariya-PW1, Kailasben Karsanbhai-PW18, Vijaykumar Karsanbhai Bariya-PW19, Chandrikaben Karsanbhai-PW20 and Sudhaben Vijaybhai-PW21. Such identification before the Court was carried out before six to eight months after the incident. During the investigation, witnesses would have fair opportunity to see the face of the accused. There is nothing to suggest that accused had tried to hide their faces. Additionally, I also find that there is no suggestion that there was any previous enmity between the appellant and the complainant and his family. There is no reason why witness after witness should falsely implicate the appellant. Their identification before the Court within short time of the incident would thus carry significant weight. Additionally, Arvindbhai Sanabhai-PW16 also stated that he had purchased VCD by paying Rs. 1200/- to the appellant to whom he also identified before the Court. The complainant also had identified the muddamal articles as those stolen from his house. He had been honest enough to state that gold and silver CR.A/1992/2004 7/8 JUDGMENT pieces were not in the same form in which they were stolen from his house since what was stolen was gold and silver ornaments. Thus the witness comes across as a truthful witness and a reliable one. There is absolutely no reason to discard the evidence on record pointing unfailingly to the guilt of the appellant. 14.The fact that incident of robbery did take place is absolutely not in doubt. Sole question is was the appellant involved in such an offence. 15.I have perused the decision under challenge. Learned Judge has given cogent reasons to believe the involvement of the appellant. Independently also, I come to the same conclusion. There is overwhelming evidence on record in the form of eyewitnesses account including that of complainant and his family members as well as of Arvindbhai Sanabhai-PW16 to implicate the appellant. By way of corroboration, we also have on record the discovery of certain important articles at the instance of the appellant. 16.In the result, I see no infirmity in the order of conviction recorded by the learned Judge in the impugned order against the appellant. 17.Learned advocate for the appellant submitted CR.A/1992/2004 8/8 JUDGMENT that sentence be reduced. I see no scope of reduction of sentence also. For Offence punishable under Section 395 of the Indian Penal Code, maximum punishment prescribed is upto 10 years and the appellant has been awarded five years of imprisonment for offence of robbery. 18.In the result, no interference is called for. The appeal is devoid of merits. Same is hereby dismissed. (Akil Kureshi,J.) (raghu)