CR.A/339/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 339 of 2005 With CRIMINAL APPEAL No. 64 of 2005 With CRIMINAL APPEAL No. 66 of 2005 With CRIMINAL APPEAL No. 2356 of 2006 With CRIMINAL APPEAL No. 65 of 2005 With CRIMINAL APPEAL No. 63 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 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 ? =============================================== SATTAR @ GHELA UMAR DAFER – Appellant. Versus THE STATE OF GUJARAT & Another. =============================================== Appearance : Criminal Appeal No.339 of 2005 Mr. BK OZA for the Appellant. Mr. UR BHATT, APP, for Respondent No.1-State. NOTICE SERVED for Respondent No.2. Criminal Appeals No.63, 64, 65 & 66 of 2005 Mr. JM BUDDHBHATTI for the Appellants. CR.A/339/2005 2/10 JUDGMENT Mr. UR BHATT, APP, for the Respondent-State. Criminal Appeal No.2356 of 2006 Mr PK SHUKLA for the Appellant. Mr. UR BHATT, APP, for the Respondent-State. =============================================== CORAM : HONOURABLE Mr JUSTICE A. L. DAVE and HONOURABLE Mr JUSTICE J. C. UPADHYAYA Date : 13/10/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) 1. These appeals arise out of a judgment and order rendered in Sessions Case No.76 of 2003 on 23rd December, 2004, by the learned Presiding Officer of Fast Track Court No.5, Bharuch, convicting the appellants for offence punishable under Section 397 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for 15 days. Besides the appellants, one Dario alias Dariyabhai Kalubhai Dafer was also tried for the same offence in Sessions Case No.11 of 2004, who came to be acquitted by this very judgment. 2. As per the prosecution case, the first informant, Hansaben Barot, along with her sister, Madhuben Barot and her sister's husband, Radheshyam Purushottambhai, were travelling by Jeep Car No.GJ-18-A 2476 from Surat to Mehsana on National CR.A/339/2005 3/10 JUDGMENT Highway No.8. The jeep car was being driven by by one Siddharth V. More. After they travelled beyond Nyamandir Hotel, near Bharuch, for a distance of about 12 kms., the jeep car had a breakdown. The driver, therefore, pulled it aside and Radheshyam went to make a phone call for the purpose, while Hansaben and Madhuben remained seated in the jeep car and driver, Siddharth, also remained with them. He was standing outside the jeep car. Around 10.30 P.M., a group of about 9 persons suddenly emerged there and, firstly, some of them attacked Siddharth, dragged him to the bushes nearby the road and caused hurt to him. The other persons attacked the two ladies sitting in the car and robbed them of their ornaments and other articles worth Rs.1,15,500/-. The attackers, thereafter, went away. Madhuben's hasband, thereafter came to the spot and learnt about the incident. Ultimately, they approached Nabipur Police Station, where Hansaben lodged the F. I. R. On the basis of that F. I. R., offence was registered and investigated. Virtually, nothing happened thereafter for about six months. Then the accused persons came to be arrested. Hansaben and Siddharth were called by police for identifying the assailants and, as per the case of the prosecution, they identified the accused persons as the assailants. Later on, accused No.3-Dinmohammed was remanded to police custody. It is the case of the prosecution that, he discovered the ornaments in their original shape, which came to be identified by the victims. Ultimately, charge sheet was filed in the Court of Judicial Magistrate, First Class, Bharuch, who, CR.A/339/2005 4/10 JUDGMENT in turn, committed the case to the Court of Sessions as the offences were triable by the Court of Sessions. That is how Sessions Case No.76 of 2003 and Sessions case No.11 of 2004 came to be registered. 3. The accused persons denied the charges against them and claimed to be tried. The Sessions Court, considering the evidence on record, came to a conclusion that the prosecution had failed to established charges against Dario alias Dariyabhai Kalubhai Dafer and recorded his acquittal. The Sessions Court also came to a conclusion that the prosecution was successful in proving the charges against accused Nos.1 to 4, 6 and 7 for the offence punishable under Section 397 of the I. P. C. and convicted as herein referred to above and, hence, this appeal. 4. So far as accused No.5-Bhanbai, widow of Sulaiman Allarakha Dafer, is concerned, she came to be convicted for offence punishable under Section 414 of the I. P. C. and was sentenced to undergo rigorous imprisonment for a period of two years and six months and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for 15 days. She does not, however, seem to have preferred any appeal. 5. We have heard learned Advocates, Mr. Buddhbhatti, CR.A/339/2005 5/10 JUDGMENT Mr. Oza and Mr. Shukla for the appellants and learned Additional Public Prosecutor, Mr. Bhatt, for the respondent-State. 6. According to the learned Advocates for the appellants, the Trial Court committed an error in recording conviction of the appellants. The evidence to connect the appellants with the offence is very scanty. The incident occurred in the late evening hours in the month of December, i.e. around 10.30 P.M. on a highway and, obviously, there was darkness. The witnesses do not claim to have identified the assailants. They have been, however, identified in the T. I. Parade after a period of about six months and before the Court after a period of about three years. It has also come in evidence that the accused persons were seen in the Police Station when the witnesses were called to identify the ordinance. It is also submitted on behalf of the appellants that the evidence regarding discovery/recovery of the ornaments after a period of about ten months is also not sufficient. One of the Panchas has not supported the prosecution case and the other Panch has not been examined. The evidence of the Investigating Officer in whose presence the so called discovery was undertaken is also vague and non-specific. It is, therefore, submitted that the ordinance would not establish any nexus between accused No.3-Dinmohammed and the crime. The Trial Court has overlooked these aspects and recorded conviction. The appeal, therefore, may be allowed. CR.A/339/2005 6/10 JUDGMENT 7. On the other hand, learned Additional Public Prosecutor, Mr. Bhatt, opposed this appeal. He relied on the identification of ornaments in their original shape by the victim, their recovery and find of licence in the name of accused- Dinmohammed. According to him, this would establish the case against at least Dinmohammed. He submitted that the assailants have been identified by the witnesses both in the T. I. Parade and in the Court and, therefore, the Trial Court was justified in convicting the appellants. He submitted that the conviction may, therefore, be upheld and the appeals may be dismissed. 8. Hansaben J. Barot, the first informant, is examined at Exhibit 22. Madhuben R. Barot is examined at Exhibit 26 and Sidhharth More is examined at Exhibit 27. 8.1 Upon reading these depositions, we find that Madhuben Barot, though an eye-witness to the incident, has not identified any of the assailants. She was not summoned for T. I. Parade, but she has only identified six of the persons as the assailant only before the Court after about three years of the incident. She does not specify which six of the seven accused were the assailants. She admits during her cross-examination that she identifies all the six appellants not on the basis of any special identification mark. She CR.A/339/2005 7/10 JUDGMENT also admits in her cross-examination that she could not see the assailants so as to be able to describe them. She admits that she was not called for T.I. Parade because she was not in a position to identify the assailants. She also admits that she had seen the photographs in the album and had given the names on the basis of suspicion. 8.2 So far as witness-Hansaben is concerned, her deposition also does not inspire confidence. The description of the assailants that she gave in her deposition is that they were aged 25 to 30 years and were wearing pants and bush-shirt. They were speaking Gujarati language and were using a particular abusive word frequently. She does not give exact details as to who were the accused who were identified as assailants during T. I. Parade. She admits during cross-examination that before the police, she had stated that she was not able to identify the assailants. However, she admits in the next breath that if she is shown such persons, she may identify them. There seems to be discrepancy in the description of the ornaments as well, allegedly, robbed in the incident. She admits that there was darkness at the time when the incident occurred. She also admits that she did not know the assailants prior to the incident. She also admits that since the assailants had taken the driver away, she could not see the faces of the assailants nor could she notice any special identification marks of the assailants. She also admits that when she went to the Police CR.A/339/2005 8/10 JUDGMENT Station for identification of ornaments, the accused persons were in the Police Station and were interrogated in her presence. It is also admitted by her that she had not identified the assailants on the basis of any special marks of identification, but only on seeing their faces. 8.3 Siddharth More is examined at Exhibit 27. He was the driver of the jeep car and was standing outside the jeep car. He was dragged into the bushes and was severely beaten up. He was not in a position to give any specific description of the assailants except the cloth worn by one of the assailants. He stated that he had lost orientation and came back to senses after he was taken to the hospital. He was also subjected to cross-examination. During the examination-in-chief, he said that he had identified the assailants because of the jeep car headlights, but admits during cross-examination that he had not stated these aspects in the statement before the police. He also admits that there was darkness in the bushes and that, on being beaten up, he had become unconscious. He also admits that before T. I. Parade, he was called in the Police Station. The cross-examination also reveals that he has made several improvements in his deposition from his version before the police. He also admits that he had identified the accused as assailants not on the basis of any special identification marks particularly. CR.A/339/2005 9/10 JUDGMENT 9. From depositions of Hansaben and Siddharth, in our view, the identification of the accused as the assailants cannot be said to have been properly proved by a cogent and reliable evidence. The witnesses admit that the incident occurred during night; that there was darkness and that when they went to the Police Station, the accused were present and were interrogated in their presence. This happened after six months of the incident and the identification in the Court took place after three years. Under the circumstances, in our view, it is not safe to confirm a conviction on the basis of such evidence. 10. Now comes the question regarding discovery/recovery of muddamal ornaments made after about ten months from the date of incident and that too, in its original shape. This evidence can, at the most, connect accused-Dinmohammed with the crime because even as per the prosecution case, the discovery was made by him. However, we find that the discovery Panchnama was drawn in presence of Panchas, Amit and Shaileshbhai. Amit has not been examined and Shailesh has been examined although he has not supported the prosecution case at all. Investigating Officer, Mathurbhai Shamjibhai Nathani (Exhibit 61) also does not say anything about discovery by accused No.3-Dinmohammed. If his deposition is read, an impression is created that the ornaments CR.A/339/2005 10/10 JUDGMENT were recovered and not discovered. The only argument that is sought to be pressed into service by learned Additional Public Prosecutor, Mr. Bhatt, is the find of licence from the house wherefrom the ordinance are allegedly recovered. Here, in absence of any other evidence, find of the ornaments from the house wherefrom the muddamal ornaments have been recovered would not establish the nexus between the decoity and accused No.3-Dinmohammed, for which he is convicted. 11. For the foregoing reasons, we are of the view that the Trial Court committed an error in convicting the appellants. The conviction cannot be upheld and has to be set aside. The judgment and order of conviction and sentence passed against the appellants is set aside. The appellants be set at liberty forthwith, if not required in any other case. Fine, if any, paid be refunded to them. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt