CR.A/323/2004 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 323 of 2004 With CRIMINAL APPEAL No. 324 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================= SINDHY ZALABHAI CHHAYABHAI Versus STATE OF GUJARAT ============================================================= Appearance : MR SHAKTISINH GOHIL for Appellants MR SP HASURKER APP for Respondent ============================================================== CORAM :HON'BLE MR.JUSTICE J.R.VORA Date : 13/07/2005 ORAL COMMON JUDGMENT 1. Both these Appeals are preferred against a judgment and order delivered by Additional Sessions Judge, Fast Track Court No.3, Patan, on 23rd of January, 2004, in Sessions Cases No. 638 of 2002 and 25 of 2003. The incident in question being same for both the sessions cases, learned Additional Sessions Judge disposed of both the above said sessions cases with aforesaid judgment and order. In fact, accused Sindhy Zalalbhai Chhayabhai and Sindhy (Rathod) Dodalbhai Sumarbhai were the accused of same crime, but accused Sindhy Zalalbhai Chhayabhai was arrested on 13th of March, 2003, and hence a supplementary charge sheet CR.A/323/2004 2/39 JUDGMENT was submitted against him and his Sessions Case was given as Sessions Case No. 25 of 2003, while accused Sindhy (Rathod) Dodalbhai Sumarbhai was arrested on14th of June 2002 and charge sheet was submitted against him and his Sessions Case was given Sessions Case No. 638 of 2002. 2. Both the accused were charged for the offences punishable under Sections 392, 397 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The learned Trial Judge found both the accused guilty for the offences punishable under Sections 392, 397 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Each of the accused was sentenced to undergo rigorous imprisonment of seven years and to pay fine of Rs. 500, and in default, to undergo simple imprisonment of three months for the offence punishable under Section 392 to read with Section 114 of the Indian Penal Code. Each of the accused was sentenced to undergo rigorous imprisonment of seven years and to pay fine of Rs. 500/-, in default to undergo simple imprisonment of three months for the offences punishable under Sections 397 to read with Section 114 of the Indian Penal Code. Each of the accused was sentenced to undergo imprisonment of one month for the offence punishable under Section 135 of the Bombay Police Act. The learned Trial Judge also directed that the sentences inflicted upon each of the accused shall run concurrently, and each of the accused shall be given set off for the period during which each of the accused was under trial prisoners. The learned Trial Judge did not pass any order in respect of muddamal because other absconded persons were yet to be arrested till the pronouncement of the judgment. CR.A/323/2004 3/39 JUDGMENT 3. Against the above said judgment and order, accused Sindhy Zalalbhai Chhayabhai preferred Criminal Appeal No. 323 of 2004 while Sindhy (Rathod) Dodalbhai Sumarbhai preferred Criminal Appeal No. 324 of 2004. Both these appeals have arisen from the same judgment and order and hence are heard together. 4. Incident in question took place at about 4.15 am on 21st of May, 2002. Complainant Bhagwanbhai Amarsinh Solanki , residing at Ahmedabad, was doing job as a driver with NID. On the day of incident, complainant and his other relatives were travelling in one Ambassador car, bearing No. GJ-1-1774. They were going to attend marriage ceremony of a relative at village Govna. They reached near Village Sardhav at about 4.00 am and found a diversion on the said road. Near the diversion, there was a bump on the road. Therefore, the car was slowed down. At that very juncture, rear left tyre of the car was punctured and hence the car was stopped near the road. Complainant and his brother came out of the car and took spare wheel and jack from the boot of the car. They removed the punctured wheel for fixing a spare wheel. At that time, in Hindi somebody shouted from the filed adjoining the road that what had happened. The complainant stated that the car was punctured. Thereafter the persons who had inquired what had happened, started pelting stones and came nearer to the complainant and the car. Complainant was frightened and the persons who had come nearer, threatened the complainant and all the passengers of the car to sit tight, and directed them to hand over everything having with them. Those persons took out knife and threatened to cut them down. One of them put such knife at the throat of CR.A/323/2004 4/39 JUDGMENT wife of brother of the complainant and snatched a necklace from her neck. Complainant and his other relatives stated that they might not be beaten because they were prepared to give ornaments. Thereafter the ornaments like gold chains, rings, etc. were taken away by those persons and they also snatched two suit cases kept in the boot of the car. Thereafter said persons went away in the darkness in the field, and after 10 minutes, a police car was noticed by the complainant passing through the road, so he stopped the said car and informed about the incident. In said suit case, cash belonging to the complainant of Rs. 7,200/- was also taken away by those persons. According to the complainant, those persons were chatting in Hindi and were appearing young. Thereafter, Investigating Officer of Harij Police Station Tribhovanbhai Karsanbhai Patel was in the said police car, recorded the complaint of the complainant and informed Patan Police Control, and the said complaint was sent to Patan Police Station for registering offence, which was registered by PSO Satuji Nathuji Chavda, at about 8.15 a.m. Said P.I. Tribhovanbhai Karsanbhai Patel investigated the offence and as above said accused Sindhy (Rathod) Dodalbhai Sumarbhai was arrested on 14th of June, 2002, and a charge sheet was submitted against him. While the second accused Sindhy Zalalbhai Chhayabhai was arrested on 14th of March, 2003 and supplementary charge sheet was submitted against him. 5. On both the cases being committed to the Court of Sessions at Patan, vide Exh.4 in Sessions Case No. 638 of 2002, and vide Exh.1 in Sessions Case No. 25 of 2003. charges were framed against each of the accused, and on pleading not guilty to the charge, prosecution examined as many as 18 witness. CR.A/323/2004 5/39 JUDGMENT Complainant's witness 1. Anandba Pratapsinh Darbar PW-7 Exh.21 2. Shanagarba Amarsinh Darbar PW-8 Exh.22 3. Bhagwanji Amarsinh Solanki PW-11 Exh.29 4. Vikramsinh Arjunsinh Solanki PW-12 Exh.31 5. Natawarlal Mafatlal Soni PW-13 Exh.33 6. Muralidhar Jaikishan Sindhy PW-14 Exh.34 7. Narendra Prakashchandra Soni PW-15 Exh.36 8. Manilal Punjabhai Pundiya PW-10 Exh.25 Panch Witnesses 9. Narayanbhai Chandulal Pandya PW-1 Exh.7 10.Vijaykumar Sonaji Thakore PW-2 Exh.9 11.Kanjiji Chhaganji Vaghela PW-3 Exh.10 12.Rajesh Jayantilal Joshi PW-4 Exh.12 13.Veera Aalji Solanki PW-5 Exh.13 14.Baldevji Gopalji Darbar PW-6 Exh.19 Police Witnesses 15.Satuji Nathaji Chavda PW-9 Exh.23 16.Tribhovanbhai Karsanbhai Patel PW-16 Exh.38 17.Harishchandra Ratubha Jhala PW-17 Exh.44 18.Lakhmanbhai Khimjibhai ChauhanPW-18 Exh.47 CR.A/323/2004 6/39 JUDGMENT The prosecution to prove its case also produced following documents on record. 1. Panchnama of Identification Parade - Exh.8 2. Panchnama of red shawl which did not belong to complainant – Exh.11 3. Panchnama of place of incident shown by Dodalbhai Sumarbhai - Exh. 14 4. Panchnama of place of incident – Exh.20 5. Depute order – Exh. 24. 6. List regarding identification parade – Exh. 26 and 39 7. List regarding identification parade – Exh. 27 8. Panchnama of identification parade of Zalal Chhaya – Exh.28 9. Complainant's complaint – Exh. 30 10.Certificate regarding weight of ornaments – Exh.35 11.Panchnama regarding ornaments recovered from goldsmith Natwarlal – Exh- 37 12.Receipt for mudammal recovered from Natwarlal Mafatlal – Exh.40 6. The learned Trial Judge recorded further statements of each of the accused under Section 313 of the Cr.P.C. where the defense of both the accused was of total denial. After hearing both the sides, the learned Trial Judge delivered impugned judgment and order and hence both these Appeals. 7. As being Appellate court, it becomes the duty of this Court to look into CR.A/323/2004 7/39 JUDGMENT the evidence adduced in the case and arrive at an independent conclusion as to whether the evidence produced during trial can be relied upon or not, and whether the case against the appellants could be proved beyond all doubts during trial on the evidence adduced. The credibility of a witness has to be adjudged in drawing inference from proved and admitted facts emerging from the evidence of the prosecution. After undertaking independent scrutiny of the evidence, objective satisfaction has to be reached affirmatively that the case of prosecution was substantially true and that the guilt of the accused was proved beyond reasonable doubt during trial. Needless it is to say that the judicial approach in dealing with the case where an accused is charged of grave and serious offence has to be cautious, circumspect and careful. Before convicting the accused by the Trial Court and while upholding the conviction, this Court has to consider the matter carefully and examine all relevant material circumstances of the case. Therefore, it is necessary to appreciate the evidence adduced on record of the case in its entirety. 8. The evidence adduced by the prosecution can be classified in three categories. First victims and other witnesses, second panch witnesses and third police witnesses. It appears that the case of prosecution is mainly based upon the evidence of test identification parades held in respect of both the accused and recovery of muddamal - ornaments - golden chains, stated to have been sold by the accused to the goldsmith. 9. Considering first the evidence of panch witnesses, in all, the CR.A/323/2004 8/39 JUDGMENT prosecution examined six panch witnesses out of total 18 witnesses. Except PW-6 Baldevji Gopalji Darbar, Exh. 19, the panch of panchnama at Exh.20 about the Ambassador car, none of other five panchas supported the prosecution case and turned hostile. Panch Narayanbhai Chandubhai Pandya PW-1 is panch of panchnama Exh. 8 of test identification parade held by PW-10 Manilal Punjabhai Pundiya Exh.25. The said panchnama at Exh. 8 was drawn on 17th of June, 2002 by Executive Magistrate at 16.30 hours in the chamber of Executive Magistrate, Harij. It is the prosecution case in the said panchnama that, on that day, accused Sindhy (Rathod) Dodalbhai Sumarbhai was handed over to the Executive Magistrate for test identification parade and in presence of PW-1 Naryanbhai Chandubhai Pandya and PW-2 Vijaykumar Sonaji Thakore, both the panchas, complainant Bhaganbhai Amarsinh Solanki, identified accused Dodalbhai Sumarbhai, standing in between persons No.2 and No. 3. The accused was given opportunity to change his appearance, and according to his demand, one hand-kerchief was given to him, which he tied on his head, and thereafter he was identified by the complainant during test identification parade. However, both the above said panchas i.e. PW-1 Narayanbhai Chandubhai Pandya and PW-2 Vijaykumar Sonaji Thakore did not support the prosecution case. 10. So far as other panchas are concerned, PW-3 Kanjiji Chhaganji Vaghela is a panch of panchnama at Exh.11 by which one shawl was found near the scene of offence and complainant stated that said shawl did not belong to his. PW-3 Kanjiji Chhaganji Vaghela did not support the panchnama at Exh.11 and likewise PW- CR.A/323/2004 9/39 JUDGMENT 4 second panch of that panchnama Rajeshkumar Jayantilal Joshi also did not support the prosecution case. PW-5 Exh. 13, Veerabhai Maljibhai Solanki was examined as panch of panchnama Exh. 14. The panchnama Exh.14 is in respect of scene of offence as shown by accused Dodalbhai Sumarbhai Sindhy. It is the prosecution case that in police custody, said accused willingly prepared to lead the police and panchas to the scene of offence and he led the police and panchas to the scene of offence. This panchnama is dated 17th of June, 2002. The preliminary panchnama was prepared at 11.00 am and thereafter the latter part of the panchnama at the scene of offence said to have been completed at 12.30 hours. PW-5 Veerabhai Maljibhai Solanki, Exh. 13, being panch of said panchnama, stated that he only signed the panchnama and said panchnama Exh.14 was never drawn in his presence. As stated above, Baldevji Gopalji Darbar, panch of Exh. 20 in respect of the Ambassador car, is examined at Exh. 19. He supported the said panchnama though he admitted that the complainant happened to be his nephew. Panchnama Exh. 14 was drawn on 17th of June, 2002 at 9.00 am and according to this panchnama, the status of the Ambassador car is mentioned as well as it was also found that near the field of the said road, two suit cases were lying and the clothes were thrown nearby. In presence of panchas, complainant identified the said suit cases to be his. 11. From the witnesses present at the time of incident as passengers of Ambassador car, four were examined by the prosecution. Bhaganbhai Amarsinh Solanki, complainant, is examined as PW-11 Exh. 29, who after describing the incident, as mentioned in the complaint Exh. 30, stated in his deposition that he was CR.A/323/2004 10/39 JUDGMENT called by the police for the test identification parade twice. Each time there were separate accused. He identified muddamal and corroborated the complaint filed by him at Exh. 30. In his examination in cross, in Sessions Case No. 638 of 2002, he stated that he did not recognize accused Dodalbhai Sumarbhai at the time of incident and he could not say whether the said accused was present at the time of incident. He stated that he identified Dodalbhai Sumarbhai on 17.6.2002 , but he saw the said accused in police station. He stated that he stayed half an hour in the police station and took tea with PSI. PSI introduced accused Dodalbhai to him. He admitted that had he not seen the accused in police station, he could not have identified accused Dodalbhai Sumarbhai during test identification parade. While during cross- examination in Sessions Case No. 25 of 2003, he stated that the car was driven by his cousin Vikramsinh, and he was sitting in the front seat. He admitted that it was dark at the scene of offence. He stated that in the incident there were in all three persons. He further stated that one truck passed through the road and, therefore, he identified the accused Zalalbhai Chhayabhai in the incident. He stated that he tried to stop the truck. Two out of three persons were snatching ornaments from his relatives while third person was standing little away. He admitted that he could not say when test identification parade of the accused Zalalbhai Chhayabhai was conducted. He had been to Harij Police Station. He denied that at that time accused Zalalbhai Chhayabhai was present in police station. He denied that accused Zalalbhai Chhayabhai was introduced by PSI to him. He further stated that when he went to the Executive Magistrate's office, the accused had come there. He reached at the office of Executive Magistrate at about 3.00 pm and after 30 minutes the test identification parade was CR.A/323/2004 11/39 JUDGMENT conducted. He denied that he did not identify the accused Zalalbhai Chhayabhai. He denied that he had seen the accused Zalalbhai because he was taken out from the hostage and was taken to the court on each date and therefore he stated falsely that he did not know the accused Zalalbhai. 12. The other eye witness Vikramsinh Arjunsinh Solanki is examined as PW-12 at Exh. 31. He stated that on account of bump on the road, he slowed down the car and found that the rear left tyre of the car got punctured. Therefore, he took the car on left side of the road and started to make preparation to change the punctured tyre after taking out the spare wheel from the boot of the car. At that time there was stone pelting from the adjoining field and someone came near and had shown knife. The said person directed us to resume our seats in the car. Therefore he was frightened. He stated that the complainant had tried to stop a truck. Thereafter, the persons who were pelting stones had robbed them of all ornaments and they also took away two suit cases from the car which were found from the field near to the road. He stated that the accused were chatting in Hindi. From female members, the accused robbed ornaments and accused also took away Rs. 2,200/- from him. He stated that there was dark at night and, therefore, he could not identify the accused at the time of incident. In cross-examination he stated that he saw in all three persons, but out of them, one had beard and the other had muffled his face. 13. The third eye witness Anandba Pratabsinh Darbar is examined as PW- 7 at Ex.21. She stated that complainant happened to be the elder brother of her CR.A/323/2004 12/39 JUDGMENT husband. They were going to village Govna along with other relatives. At about 4.00 am when they reached near Village Sardhav, the car was punctured and was stopped near by road. At that time, three persons came from the adjoining field and they had demanded to hand over all the ornaments belonging to them. Therefore, they handed over ornaments to them including cash of Rs. 7,000/-. She did not identify those persons, but in cross-examination she stated that it was dark at the time of incident to the extent that even the persons standing nearby, could not be identified. She stated that she was frightened and this incident continued for about 25 minutes. 14. The fourth eye witness is examined as PW-8 Shanagarba Amarsinh Darbar at Exh. 22. She stated that complainant was her brother and incident took place on 21st of July, 2004. All were going to village Govna from Sidhpur in Ambassador car. Near village Sardhav, tyre of Ambassador car was got punctured and, therefore, the car was parked near the road. Three persons came and stated to hand over all the ornaments, so they handed over the ornaments to them. Police reached at the spot. The complaint was lodged by her brother and police also recorded her statement. In her examination in cross, she stated that there was darkness at the time of incident and she did not identify any of the accused. 15. So, this was the evidence of four witnesses present at the time of the incident. 16. PW-10 Manilal Pujabhai Pundiya is examined at Exh. 25 because he CR.A/323/2004 13/39 JUDGMENT conducted two test identification parades, one on 17th of June 2002 in respect of accused Dodalbhai Sumarbhai and second on 27th of March, 2003 in respect of accused Zalalbhai Chhayabhai. In his deposition he stated that on 17th of June 2002, in pursuance of the instructions received from the police, he conducted test identification parade in respect of Dodalbhai Sumarbhai. At about 16.45 hours police produced accused Dodalbhai Sumarbhai before him. He was made to sit in his chamber. Thereafter, dummy persons were called for performing test identification parade and they were made to stand in a lane and accused Dodalbhai Sumarbhai was instructed to take his place of choice in the said lane, and if so desired by him, he might change his appearance. This test identification parade was conducted in the presence of panchas. Thereafter, complainant was called and identified accused Dodalbhai Sumarbhai standing at No.3 in the lane in the presence of panchas. He further stated the he conducted second identification parade on 27th of March, 2003 upon instructions received from the police. He received yadi in this respect at 16.30 hours, which he produced on record at Exh.27. In the meantime, complainant reached at his office and he was instructed to sit in other room. Thereafter, two panchas and other persons performing test identification parade were called. They were instructed and sounded about test identification parade. The dummy persons were instructed to form a standing lane. Thereafter, accused Zalalbhai Chhayabhai was instructed to take his place amongst the persons standing in the lane and was allowed to change his appearance if so desired by him. Accused Zalalbhai Chhayabhai changed his shirt and stood between the persons standing at No. 4 and 5. Thereafter, the complainant was called and was asked to identify the accused. The complainant identified accused CR.A/323/2004 14/39 JUDGMENT Zalalbhai Chhayabhai standing between persons at Sl. No. 4 and 5. Thereafter again the accused Zalalbhai Chhayabhai was instructed to change his appearance if he so desired, and the complainant was called once again for identifying accused. This time accused took his place between persons standing at Sl. No. 2 and 3 and complainant second time identified accused Zalalbhai Chhayabhai. He produced both the panchnamas at Exh. 8 and 28. In his cross-examination he stated that he called panchas and other persons in his office at 16.45 hours. He stated that before accused was produced before him he had called panchas and other persons. He admitted that he called persons without seeing the accused. All the persons participated in the test identification parade wore pants and shirts. He admitted that the appearance of persons took part in the test identification parade was not noted by him. He stated that Police Station and Mamlatdar Office at Harij are situated in the same complex. He denied that he could see anything of the police station from his chamber. He denied that at the time of test identification parade IO was present. In his cross-examination in Sessions Case in Session Case No. 25 of 2003 for accused No.2 , he stated that when accused was produced in his chamber, the complainant was not present. After production of the accused, after 10minutes complainant reached to his office. The complainant was called by police. He took five minutes in calling panchas and other persons. He admitted that he called panchas and other person after the accused was produced before him. He denied that in the second panchnama the police staff was present. He denied that police had produced complainant and accused simultaneously in his chamber. This is the evidence of the Executive Magistrate. CR.A/323/2004 15/39 JUDGMENT 17. Now in respect of recovery of muddamal of ornaments from PW-13 Natvarlal Mafatlal Soni Exh.33 is concerned, the evidence of three witnesses are required to be gone into. Those witnesses are PW-13 Natvarlal Mafatlal Soni, Exh.33, PW-14 Muralidhar Jaikishan Sindhy and PW-15 Narendra Prakashchandra Soni Exh. 36. It is the case of the prosecution that the Investigating Officer Tribhovanbhai Karsanbhai Patel recorded the statements of the accused and in that pursuance he recovered and seized muddamal from PW-13 Natawarlal Mafatlal Soni as said muddamal was sold by the accused to this witness. Deposition of Natwarlal is recorded at Exh.33, but he denied that any ornaments were sold to him by accused. He denied that he knew accused Dodalbhai Sumarbhai or the other accused and he denied that the police had recovered any muddamal of this case from his shop and that complainant was never present in his shop for the identification of the said muddamal of ornaments. So in all respects, he did not support the prosecution case that accused Dodalbhai Sumarbhai Sindhy and Zalabhai Chhayabhai had been to him and had given golden ornaments which were belonging to the complainant to him. He has been cross-examined by the prosecution. The next witness in this connection is PW-14 Muralidhar Jaikishan Sindhy is examined at Exh. 34. It is the prosecution case that on seizure of muddamal from PW-13 Natvarlal Mafatlal Soni, the same was weighed by this witness Muralidhar Jaikishan Sindhy in the presence of panchas. In his deposition at Exh. 34, witness Muralidhar Jaikishan Sindhy stated that he had never been to the shop of Natawarlal Mafatlal Soni, but he was called at Police Station and was asked to give certificate about weights of muddamal recovered which he gave. He also did not support the case of prosecution.