CR.A/187/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 187 of 2006 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 ? ========================================================= TERU VICHHIYA BHURIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MADANSINGH O BAROD for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1. The appellant who was original accused in CR.A/187/2006 2/11 JUDGMENT Sessions Case No.19 of 2002 preferred this appeal challenging the legality and validity of the impugned judgment and order rendered by Additional Sessions Judge, Gandhidham on dated 30.4.2005 recording conviction of the appellant – accused for the offences punishable under Sections 397 of Indian Penal Code ('IPC', for short) and 25(1)(A) of Arms Act and was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.5000/- and in default of payment of fine, to undergo further imprisonment for 15 days for the offence punishable under Section 397 of IPC and rigorous imprisonment for 3 years for the offence punishable under Section 25(1)(A) of Arms Act. Both the sentences were ordered to run concurrently. 2. The prosecution case in nutshell is that on dated 5.9.2001, at about 9.45 p.m. in the outskirts of town Anjar, the appellant – accused along with four unknown persons caused serious injuries to the first informant Vijayaben Bharatbhai Sorathiya and looted golden and silver ornaments, wrist watch and cash amount, in all worth Rs.35,725/-. It is further alleged that the appellant – accused as well as unknown co-accused persons were armed with tamancha and sticks and caused serious bodily injuries to first informant Vijayaben. In connection with this incident, first informant Vijayaben lodged FIR before police and the offence was CR.A/187/2006 3/11 JUDGMENT registered. The police investigation was commenced. During the course of investigation, statements of material witnesses were recorded, test identification parade ('TIP', for short) was arranged. Some of the ornaments in their original forms were seized by drawing panchnamas. After the police collected required material for the purpose of filing chargesheet, the chargesheet came to be filed in the Court of J.M.F.C., Gandhidham. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Additional Sessions Judge, Gandhidham. 3. The learned trial Judge framed charge against the accused at Exh.1 to which the accused did not plead guilty and claimed to be tried. Therefore, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, the learned trial Judge recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure and in his further statement, the accused generally denied all the allegations levelled against him and stated that he was innocent and the evidence adduced by the prosecution is false and he is falsely implicated. 3.1 After appreciating the evidence on record and after considering the arguments advanced on behalf of both the parties, the learned trial Judge CR.A/187/2006 4/11 JUDGMENT delivered the impugned judgment and order, recording the conviction of the appellant – accused for the offences punishable under Sections 397 of the IPC and 25(1)(A) of the Arms Act and awarded sentence as hereinabove referred. 4. We have heard the arguments advanced by learned advocate Mr.Barod for the appellant and learned APP Mr.Bhatt for the respondent – State and we have considered the records and proceedings of the trail Court in light of the submissions made on behalf of both the parties. 5. Learned advocate Mr.Barod for the appellant – accused submitted that since the charge was framed only against the appellant – accused, and therefore, the conviction of the appellant – accused for the offence punishable under Section 397 of the IPC by the trial Court is wrong and illegal. It is further submitted that co-accused persons have not been arrested as yet. That the TIP arranged by the Executive Magistrate was nothing, but farace. The learned trial Judge erred in relying upon the evidence on TIP. That there is no allegation worth the name that the appellant – accused was armed with tamancha, yet, he was wrongly convicted for the offence under the Arms Act. That the learned trial Judge erred in not properly appreciating the testimonies of first informant Vijayaben and her son Ravi. It is submitted that at the instance CR.A/187/2006 5/11 JUDGMENT of the accused, as per the prosecution case, one anklet was recovered. The learned trial Judge erred in appreciating the evidence of recovery of anklet for the purpose of arriving at the conclusion that the prosecution proved its case beyond reasonable doubt. That the silver anklet was such, which was easily available in market. There is no evidence worth the name to come to the conclusion that the anklet belongs to first informant Vijayaben, which was robbed. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order, recording the conviction of the appellant – accused be set-aside and the appellant-accused be acquitted. 6. Learned APP Mr.Bhatt vehemently opposed this appeal and submitted that the evidence in form of testimonies of first informant Vijayaben and her son Ravi is cogent, consistent and trustworthy. All the required details have been deposed by them in their testimonies. The appellant – accused was duly identified by the first informant and her son Ravi, during the course of TIP. The anklets of the first informant Vijayaben robbed by the accused and the four unknown other persons, was discovered at the instance of the appellant in presence of Panchas. It is submitted that thus, there is ample evidence to convict the accused for the offence charged against him and there is no CR.A/187/2006 6/11 JUDGMENT reason for this Appellate Court to interfere with the impugned judgment and order rendered by the trial Court. 7. Considering the evidence of first informant Vijayaben, Exh.15, she narrated that at the time of offence, while she was about to shut the main-door of her house, at that time five persons came there, they pushed the door, and therefore, she could not close the door. All the five persons entered her house, they were armed with tamancha, sticks, axe etc. That she was threatened by showing the tamancha and that she sustained serious injuries, as the stick blows were inflicted on her body. That golden chain, bangles and rings, which she had worn, were looted by the persons. She stated that the appellant – accused snatched the earnings in such a manner which caused serious injuries of tearing her lower part of both the ears. She described the unknown persons in her deposition. She further stated that her silver anklets were also robbed. That she herself and her son Ravi were pushed and they fell on the ground. That the persons were speaking in Hindi. Weapons like tamancha etc. were shown to her and she identified the same. She was shown the golden ring and silver anklets and she identified the same. She further stated that on dated 12.9.2001, she was called to identify the accused in the office of Executive Magistrate, CR.A/187/2006 7/11 JUDGMENT Anjar, wherein 20 to 22 persons were present in queue and she identified the appellant – accused and further stated that the accused had snatched away earrings worn by her at the time of incident in such a manner that she sustained serious tearing injuries in her ears. She was cross-examined at length by the defence, but, nothing emerges from her cross-examination, which will make her testimony doubtful. 7.1 Almost identical is the testimony of Ravibhai, examined at Exh.34. He also narrated in his testimony the entire incident in the same line as narrated by his mother – first informant Vijayaben. Witness Ravi also stated that he was called to identify the accused in TIP arranged in the office of Executive Magistrate and he had identified the appellant – accused, who was present in the Court. 7.2 The prosecution examined Panch witness Dayabhai Madhavi at Exh.19 and he stated that he was called as Panch to remain present in TIP. He stated that the first informant identified the appellant – accused, who was present in the queue of about 20 persons. He further stated that thereafter, one boy was called, who also identified the appellant – accused. Panch witness Dayabhai fully supported the TIP panchnama, Exh.20, in his deposition. 7.3 The prosecution examined Panch Mansukhbhai Doshi at Exh.25 and according to his testimony, he was called in the police station and at that time, the appellant – accused was present in the police CR.A/187/2006 8/11 JUDGMENT station and appellant – accused stated that he was prepared to produce the silver anklets, which he had concealed and accordingly the accused took them to one house and in the compound of that house, there was a tree and near the tree, digging some earth, the silver anklets, one tamancha and its cartridge were discovered by the accused. Discovery panchnama was drawn, which is at Exh.26. Panch Mansukhbhai fully supported the contents of the discovery panchnama, Exh.26. As stated earlier, during the course of deposition of first informant Vijayaben, she identified her anklets, which were discovered at the instance of the appellant – accused. 7.4 Considering the deposition of witness Rakesh Bharatbhai, Exh.35, he stated that at the time of incident, he was inside the house and five unknown persons entered his house and looted the golden and silver ornaments from the body of his mother, the first informant Vijayaben. He identified the accused as one of the robbers. He also stated that along with the appellant – accused, all the persons who entered his house, were armed with weapons like tamancha, sticks, axe, etc. He also stated that during the course of TIP, he identified the appellant – accused. 7.5 Considering the deposition of Police Constable Ratubhai Sanjabhai, Exh.37, he stated that soon after the lodgment of the FIR, he himself and one other Constable Dineshbhai, went to find out the robbers accompanied by Vishrambhai and almost near CR.A/187/2006 9/11 JUDGMENT the vicinity of the house, where the robbery had taken place, they could apprehend the appellant – accused. 7.6 Executive Magistrate Mr.Bhagora is examined at Exh.39, and in his evidence, he deposed that TIP was arranged in his office on dated 12.09.2001 and in the TIP, along with the appellant – accused, 20 dummy persons were called and during the course of TIP, the first informant Vijayaben and her son identified the appellant – accused. 8. In the impugned judgment the learned trial Judge at length discussed and appreciated the oral and documentary evidence adduced by the prosecution and observed that the involvement of the appellant – accused in the robbery was duly established by the prosecution. On behalf of the appellant, it was submitted that when there was only one accused before the Court, the learned trial Judge erred in convicting him for the offence punishable under Section 397 of the IPC. We do not find any justification in the submission, for the simple reason that as per the prosecution case, five persons including the appellant – accused entered the house of first informant and committed robbery and they were armed with deadly weapons like tamancha, axe, sticks etc. and caused serious injuries to Vijayaben. The appellant – accused came to be arrested, and therefore, the chargesheet was filed only against the appellant – accused, but, CR.A/187/2006 10/11 JUDGMENT the fact remains that the appellant – accused along with four other unknown persons committed the offence. Therefore, the learned trial Judge did not err in convicting the appellant – accused for the offence punishable under Section 397 of the IPC. It has come in evidence that at the time of incident, tamancha was shown to the first informant and she was threatened and she was beaten by sticks. The appellant – accused in presence of Panch, discovered the tamancha and the anklet belonging to first informant, which was looted in the incident. Thus, the prosecution successfully proved its case beyond any reasonable doubt against the appellant – accused. 9. Lastly, learned advocate Mr.Barod for the appellant – accused submitted that the sentence imposed by the learned trial Judge is very harsh. Learned trial Judge awarded sentence of rigorous imprisonment for 10 years and fine of Rs.5000/- for the offence punishable under Section 397 of the IPC. Considering the facts and circumstances of the case, we do not find any justification to reduce the quantum of punishment. 10.For the foregoing reasons, the appeal deserves to be dismissed. The appeal stands dismissed. CR.A/187/2006 11/11 JUDGMENT (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)