CR.A/139920/2004 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1399 of 2004 With CRIMINAL APPEAL No. 1041 of 2005 With CRIMINAL APPEAL No. 643 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 ? ========================================================= ASHOKKUMAR RAMNARAYAN PANDE - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS ROOPAL R PATEL for Appellant(s) : 1, MR AJ DESAI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 25/11/2008 CR.A/139920/2004 2/18 JUDGMENT COMMON ORAL JUDGMENT 1. As the common question of fact and law is involved in all these appeals, they are heard together and disposed of by this common judgment. 2. These appeals preferred under Sections 374(2) of Criminal Procedure Code are directed against the judgment and order rendered by Additional Sessions Judge, 3rd Fast Track Court, Panchmahal at Godhra in Sessions Case No.289 of 2003 by which the learned Judge imposed the sentence of 5 years of R.I. and fine of Rs.500/- in default S.I. for 1 month under Section 328, 7 years of R.I. and fine of Rs.500/- in default S.I. for 1 month under Section 394 and imprisonment for 6 months under Section 120(1)(B) of Indian Penal Code to each of the appellants. 3. The short facts giving rise to the present appeals are stated herein below. 4. On 26.2.2001, the complainant and other persons were travelling in general compartment of Sabarmatri Express for visiting their native place. As per the prosecution case, during the course of the journey, two persons approached the complainant and other persons and offered a cup of tea and cream biscuits. The complainant and other persons when took the tea along with the biscuits, they became unconscious. They regained their consciousness on reaching hospital at Ujjain. As per the prosecution case, after giving the complainant and other persons a CR.A/139920/2004 3/18 JUDGMENT sleep inducing material in the biscuit, the appellants robbed them of Rs.20,000/- as well as the bags, clothes etc. The complaint was given by Ramprakash Shrikant Nai to the Ujjain Police. On receipt of the compliant, the investigation was set in motion. The complainant and other persons who were given sleep inducing material in the biscuit were admitted in the hospital for immediate treatment. The panchnama with regard to the identification parade of the accused was carried out. On receipt of the medical report as well as certificate and other material on record of the case, the appellants were charge-sheeted on 25.8.2003 in the Court of JMFC (Railway), Godhra for the offence punishable under Sections 328, 394 and 120(1)(B) of the IPC. As the case is exclusively triable by the Sessions Court, the learned JMFC committed the case to the Sessions Court under Section 209 of Criminal Procedure Code. The Sessions Case was numbered as 289 of 2003 before the Sessions Court. The learned Sessions Judge framed the issues vide Exh.2 for the offence punishable under Sections 328, 394 and 120(1)(B) of the IPC. The appellants pleaded not guilty to the charge levelled against them. Therefore, the matter was set down for full fledge trial before the learned Sessions Judge. 5. The prosecution has examined the following witnesses in order to bring on the guilt against the appellants, they are under: (1) PW-1, Manojbhai Bhagwandas Gupta vide Exh.8. (2) PW-2, Akshay Uttambhai Jain vide Exh.10. CR.A/139920/2004 4/18 JUDGMENT (3) PW-3, Jashwantkumar Shanabhai Patel vide Exh.13. (4) PW-4, Yunus Abbasbhai Mansuri vide Exh.16. (5) PW-5, Ramprakash Shrikantbhai vide Exh.19. (6) PW-6, Ramprashad Gayaprashad Rajput vide Exh.24. (7) PW-7,Abhimanyu Ramcharit Upadhayaya vide Exh.25. (8) PW-8,Dr.Rameshkumar Chhaganbhai Tiwari vide Exh.27. (9) PW-9, Dipak Shantilal Vyas vide Exh.36. (10) PW-10,Kaushik Dinkarrai Pandya vide Exh.38 to the present case. 6. The prosecution has produced following documentary evidence to prove the involvement of the appellants in the commission of offence, they are as under: (1)FIR given by Ramprakash vide Exh.20. (2)The panchnama with regard to the identification of appellant, Ashokkumar Ramnarayan Pande, vide Exh.9. (3) The panchnama with regard to the identification of appellant, Gayaprashad as well as Rajesh vide Exh.11. (4) The yadi sent to Hospital Authority to examine the Ramprakash Vide Exh.28. (5) The Medical Certificate issued to Ramprakash vide Exh.39. (6) The Medical Certificate issued to Chandrika vide Exh.40. (7) The Medical Certificate issued to Abhimanyu vide Exh.41. CR.A/139920/2004 5/18 JUDGMENT (8) The Medical Certificate issued by Hospital Authority to Ramprashad vide Exh.42. (9) The medical case papers issued by Hospital to Chandrika vide Exh.33. (10) The medical case papers issued by Hospital to Abhimanyu vide Exh.34. (11) The medical case papers issued by Hospital to Ramprakash vide Exh.35. 7. At the conclusion of the trial, the learned Judge recorded the statements of each of the appellants under Section 313 of the Criminal Procedure Code and also pointed out incriminating the evidence against each of the appellants. 8. The appellants submitted that false case was foisted on them and they have been falsely implicated in the commission of offence. 9. The learned Additional Sessions Judge on appreciation of the entire evidence on record of the case held that prosecution has successfully established that on 26.2.2001 when the complainant and other persons were travelling in the general compartment of Sabarmati Express for visiting their native place, they were approached by the appellants who offered them a cup of tea and cream biscuits. As soon as the complainant and other persons took the cup of tea and the biscuits, they became unconscious. The appellants were intending to rob the complainant and other persons and with a view to facilitate in the commission of robbery, they offered the complainant and other persons a cup of CR.A/139920/2004 6/18 JUDGMENT tea and biscuits having sleep inducing material. The learned Judge held that the prosecution has examined PW-1, Manojbhai Bhagwandas Gupta vide Exh.8, PW-2, Akshay Uttambhai Jain vide Exh.10, PW-3, Jashwantkumar Shanabhai Patel vide Exh.13 PW-4, Yunus Abbasbhai Mansuri vide Exh.16, PW-5, Ramprakash Shrikantbhai vide Exh.19 and established the involvement of the appellants in the commission of offence punishable under Sections 328, 394 as well as 120(1)(B) of the IPC. The deposition adduced by the prosecution witnesses gets necessary corroboration from the deposition adduced by Dr.Rameshkumar Tiwari, PW-8, vide Exh.27 as well as the deposition of the Investigating Officer, Dipak Vyas, PW-9, Vide Exh.36. Thus, the prosecution, by adducing cogent and convincing evidence, proved the involvement of the appellants in the commission of offence. The learned Judge further held that the oral deposition adduced by the prosecution gets necessary corroboration from the documentary evidence i.e.the FIR given by Ramprakash vide Exh.20, the panchnama of the identification of the appellant Ashokkumar Pande vide Exh.9, the panchnama with regard to the identification of the appellant Gayaprashad and Rajesh vide Exh.11 and the medical certificate issued to Ramprashad vide Ehx.39, Chandrika vide Exh.40, Abhimanyu vide Exh.41, and Ramprashad vide Exh.42. As the prosecution established the involvement of appellants in the commission of offence, the learned Judge convicted the appellants for the offence punishable under Sections 328, R.I. for 5 years and fine of Rs.500/- and in default 1 month S.I. under Section 394 R.I. CR.A/139920/2004 7/18 JUDGMENT for 7 years and fine of Rs.500/- and in default S.I. for 1 month and under Section 120(1)(B) 6 months imprisonment. 10. Being aggrieved by the order passed by the learned Additional Sessions Judge, the appellants have challenged the same by filing the present appeal. 11. The learned advocate, Ms.Roopal Patel, appearing for the appellants submitted that the appellants are charged for the offence punishable under Sections 328, 394 and 120(1)(B) of the IPC. The learned advocate submitted that if the deposition adduced by the prosecution witnesses is taken into consideration then the prosecution has miserably failed to establish the offence punishable under Section 328 as well as 394 of the IPC and 120(1)(B) of the IPC. Even the basic ingredients contained in Section 328 of IPC are not established by the prosecution so as to bring on the guilt against the appellants. The complainant and other persons after they were giving sleep inducing material in the biscuits were admitted in the Hospital at Ujjain and immediate treatment was provided to the victims but no fluid was extracted from the stomach of each of the victim and sent to detailed analysis in the FSL in order to establish that the victims were given sleep inducing material in the biscuits. The learned advocate submitted that this is a lacuna on the part of the prosecution case and it goes to the root of the matter, therefore, the benefit of same is required to be given to the appellants. The learned advocate submitted that the complaint was given by, CR.A/139920/2004 8/18 JUDGMENT Ramprakash PW-5 at Exh.19 but on perusal of his deposition, it becomes clear that he had not seen the appellants and even during the course of the deposition as the appellants were not brought to the Court, he had no opportunity to identify the appellants and therefore, this raises doubt about the involvement of appellants in the commission of offence. PW-1, Manojbhai Bhagwandas Gupta vide Exh.8 and PW-2, Akshay Uttambhai Jain vide Exh.10, have identified the appellants and the panchnama with regard to the identification parade is proved vide Exh.9 but the identification parade was carried out after long lapse of time i.e. approximately after 2 years i.e. the date of incident. This would also raise doubt about the identification of the appellants in the commission of offence and therefore, this lacuna also goes to the root of the matter and the benefit of same is required to be given to the appellants and they be exonerated forthwith for the offence punishable under Sections 328, 394 and 120(1)(B) of the IPC. The learned advocate submitted that no panchnama with regard to the recovery of the amount of Rs.20,000/- or the bag or the clothes was prepared in order to bring on the guilt against the appellants and this lacuna is also glaring and therefore, the benefit of same is required to be given to the appellants. Thus, the learned advocate submitted that considering the entire oral deposition and documentary evidence adduced by the prosecution even the basic ingredients of Section 394 cannot be said to have been attracted in the facts and circumstances of the case. The prosecution has miserably failed to CR.A/139920/2004 9/18 JUDGMENT establish that the appellants gave the cup of tea and sleep inducing biscuits with a view to rob the persons. On bare perusal of Section 394, it becomes clear that there was no intention on the part of the appellants of committing robbery and as the prosecution has not established the recovery or discovery of articles from the appellants, the benefit of same is required to be given to the appellants. Thus, it is submitted by the learned advocate that the judgment rendered by the learned Judge suffers from infirmity and the evidence which is relied upon by the learned Judge is bristled with contradiction and as the prosecution has not established each and every link connecting the appellants with the commission of offence punishable under Sections 328, 394 and 120(1)(B), they are liable to be exonerated. 12.The learned APP representing the State submitted that complaint was given by Ramprakash. The prosecution has examined the complainant-Ramprakash, PW-5, vide Exh.19 who had deposed in his testimony that on 26.2.2001 he was proceeding from Ahmedabad to his native place in Sabarmati Express. When he was travelling in the train, he was confronted by some unknown persons and was offered tea and biscuits by these persons. After eating biscuits, he became unconscious and he regained his consciousness on reaching at Ujjain. He was robbed and the cash amount as well as beg and clothes which he carried with him. He has further deposed in his testimony that after taking treatment for three days in the Hospital, he was discharged from the Hospital. He CR.A/139920/2004 10/18 JUDGMENT could not identify the person who had given sleep inducing material in the biscuit. The prosecution has examined PW-1, Manojbhai Bhagwandas Gupta vide Exh.8 one of the panch-witnesses who was called on 26.6.2003. The panchnama was prepared in his presence and he had identified the appellant. PW-2, Akshay Uttambhai Jain has been examined vide Exh.10 and he was called on 8.7.2003 at about 5.30 in the office of the Mamlatdar. He was called as one of the panch witnesses for the purpose of identifying the accused and prepare the panchnama in respect thereof. He has identified the appellant Gayaprashad and Rajesh. The panchnama with regard to the identification parade is produced at Exh.9. The learned APP submitted that the deposition adduced by these witnesses provide necessary corroboration to the deposition adduced by Mohmmad Yunus PW-4 at Exh.16 and the yadi produced by this witness vide Exh.17. Ramprashad Gayaprashad Rajput PW-6, vide Exh.24 has deposed in his testimony that the incident in question took place before 4 years. When he was travelling in the train, he was approached by the appellants and he along with other persons offered tea and biscuits. On consumption of the same, they became unconscious and they regained consciousness in the Hospital at Ujjain. He had lost cash amount to the tune of Rs.20,000/-. He was called to identify the accused on 26.6.2003 and the appellants were identified during identification parade, Abhimanyu PW-7 is examined vide Exh.25. He has also reiterated the version given by Ramprashad Gayaprashad Rajput. Further corroboration is forthcoming in the deposition adduced by CR.A/139920/2004 11/18 JUDGMENT Dr.Rameshkumar Tiwari, PW-8 at Exh.27 as well as the Investigating Officer Kaushik D.Pandya PW-10 at Exh.38. The prosecution has also examined PW-9 Dipak S.Vyas at Exh.36. Thus, prosecution has on the basis of the oral deposition established the involvement of the appellants in the commission of offence. The deposition adduced by the prosecution witnesses gets necessary support from the documentary evidence. 13.Thus, the learned APP further submitted that considering the overwhelming the oral deposition and the documentary evidence adduced by the prosecution, the prosecution has successfully established the involvement of the appellants in the commission of offence and therefore, the order of conviction and sentence passed by the learned Judge requires to be confirmed and the appeal deserves to be dismissed. Even on the perusal of the reasons assigned by the learned Judge, the learned Judge has considered the entire gamut of oral deposition and the documentary evidence in its proper perspective while convicting the appellants for the offence punishable under Sections 328, 394 and 120(1)(B) of the IPC and therefore, no interference is called for in the appeal preferred by the appellants and as the appeal is devoid of merits the same is liable to be dismissed. 14.I have heard learned advocate, Ms.Roopal Patel for the appellants and learned APP, Shri A.J.Desai, for the respondent-State. 15.In order to bring on the guilt against the CR.A/139920/2004 12/18 JUDGMENT appellants, the prosecution has examined 10 witnesses. Out of 10 witnesses, PW-5, Ramprakash who is examined vide Exh.19 who gave the complaint. He has narrated in the complaint and as to in what manner he and other persons, travelling in the Sabarmati Express to the native place, were offered tea and biscuits and after consuming the same, they became unconscious. He has further narrated in the complaint as well as in deposition that they regained their consciousness in the Hospital at Ujjain. The deposition adduced by Ramprakash provide necessary corroboration to the deposition adduced by PW-3, Jashvantkumar vide Exh.13, PW-4, Mohmmad Yunus vide Exh.16, PW-6 Ramprashad -6 vide Exh.24, and PW- 7, Abhimanyu vide Exh.25. The identification parade in order to identify the accused persons was carried out and the panch-witnesses PW-1 Manojbhai vide Exh.8, PW-2, Akshay at Exh.10 have supported the prosecution story with regard to the identification of the appellant in the commission of offence. The panchnama with regard to the identification parade is also produced vide Exh.9. PW-3, Jashwant is examined vide Exh.13 and he was working as Executive Magistrate. As per his say, police constable having buckle No.1369 came with the yadi for identification parade on 26.6.2003. He put his endorsement on the yadi received by him and he fixed identification parade on 26.6.2003 on 17.15 hours in the Court Room No.1. Thereafter, all the procedure for identification parade was carried out by him in a careful manner, and that fact is reflected in his deposition vide Exh.13. After completing the identification parade, the panchnama with regard to CR.A/139920/2004 13/18 JUDGMENT the identification parade was prepared in the presence of panch witnesses and the signatures were obtained in the panchnama. Mohmmad Yunus PW-4 is examined vide Exh.16 and he has deposed in his testimony that on 7.7.2003 one police constable having buckle No.1014 came with the yadi at 16.15 hours to carry out the identification parade. On receiving the yadi, he had put his signatures in the same and thereafter, the identification parade was fixed on 8.7.2003 at 17.00 hours. After completing the formality of the identification parade the panchnama in respect thereof was prepared and the panch witnesses had put their signatures to the said panchnama. He has also deposed in his testimony that all meticulous care was taken during the identification parade. Ramprasad PW-6, has been examined vide Exh.24. He has supported the prosecution story which took place before 4 years. He was proceeding from Ahmedabad to his native place in Sabarmati Express along with Chandrika, Abhimanyu, etc. They were offered cup of tea and biscuits by the appellants. On consuming the same, they became unconscious. They regained their consciousness in the Hospital at Ujjain. He had lost the bag containing Rs.20,000/-. The other persons who accompanied him also lost their baggage. 16.He has further deposed in his testimony that on 26.6.2003, he was called at the Ghhekanta Court for identification parade by the Mamlatdar. He had put his signatures in the writing which was obtained and prepared by the Mamlatdar. During the course of the deposition, he had identified the appellants who CR.A/139920/2004 14/18 JUDGMENT were present during the identification parade. Abhimanyu PW-7 is examined vide Exh.25. As per his say, he travelled in the Sabarmati Express for going to his native place. When he was travelling in the train, he was offered tea and biscuits by the appellants, thereafter, he became unconscious. He regained his consciousness in the Hospital at Ujjain. He also lost his baggage as well as ticket. Dipak PW-9, is examined vide Exh.36. He has deposed in his testimony that on 28.6.2003 when he was carrying out the investigation in respect of C.R.No.I-81 of 2003 for the offence punishable under Sections 394, 328, 120(1)(B), he was informed by the Higher Officer that identification parade was required to be carried out in the matter and therefore, on 26.6.2003, the identification parade in respect of C.R. No.I 11/2001 for the offence punishable under Sections 328, 394 in connection with the appellant, Ramprashad, was carried out. The panchnama with regard to the identification parade was prepared in his presence and signatures of the panch witnesses were obtained. Kaushik PW-10 vide Exh.38. He is Investigating Officer who carried out the investigation in the matter. As per his say, all procedural steps were taken to carry out investigation. He has deposed in his testimony that all meticulous care was taken to complete the investigation and after completing the formality, he had failed the charge sheet against the appellants. 17.The prosecution has over and above, the oral deposition adduced and documentary evidence in order to bring home the guilt against the appellants. I CR.A/139920/2004 15/18 JUDGMENT have also perused the FIR produced at Exh.20, the panchnama of the identification of the appellant Ashokkumar Pande vide Exh.9, the panchnama with regard to the identification of the appellant Gayaprashad and Rajesh vide Exh.11 and the medical certificate issued to Ramprashad vide Ehx.39, Chandrika vide Exh.40, Abhimanyu vide Exh.41, and Ramprashad vide Exh.42. Considering the documentary evidence, it becomes clear that the prosecution has save and except producing the medial certificate, the panchnama with regard to the identification parade and the FIR etc. has not produced, the panchnama of the place of incident, the panchnama of the recovery of the muddamal article, etc. in order to establish the entire link connecting the appellants with the commission of offence. Even on perusal of the deposition adduced by prosecution, it becomes clear that the prosecution has successfully established the involvement of the appellants in the commission of offence punishable under Section 328 of the IPC but there is no material on record of the case which would indicate the involvement of appellants in the commission of offence punishable under Sections 394 of IPC as well as on 120(1)(B) of the IPC. I have also taken into consideration the ingredients of Section 328 of IPC as well as 394 of the said Code. Considering the ingredients of both the Sections, the prosecution, in my view, has established the involvement of appellants in the commission of offence punishable under Section 328. However, with regard to the involvement of appellants in the commission of offence punishable under Section 394 the prosecution has not adduced CR.A/139920/2004 16/18 JUDGMENT cogent, convincing and conclusive evidence. The prosecution case suffers from infirmity and this aspect has not been considered by the learned Judge while convicting the appellants for the offence punishable under Section 394 of IPC. Even the basic ingredients contained in Section 394 has not been established by the prosecution and therefore, appellants, in my view, cannot be convicted for the offence punishable under Section 394 of IPC. Further on perusal of the Jail remark sheet, the appellants have undergone 5 years sentence (approximately) under the provisions of Section 328, 394 and 120(1) (B) of the IPC. The learned Judge has while convicting for the offence punishable under Section 328 imposed the sentence of 5 years of R.I. and fine of Rs.500/- in default 1 month S.I. while under Section 394, 7 years of R.I. and fine of Rs.500/- and in default 1 month S.I. and under Section 120(1) (B) 6 months sentence imposed. 18.In view of the discussion at length with regard to involvement of the appellants in the commission of offence punishable under Sections 328, 394 and 120(1)(B) of the IPC, I am of the view that appellants cannot be convicted for the offence punishable under Section 394 as well as 120(1)(B) of IPC. Therefore, the order of conviction and sentence passed by the learned Additional Sessions Judge, FTC, Panchmahals at Godhra convicting the appellants for 7 years of R.I. and fine of Rs.500/- in default 1 month S.I. under Section 394 and 6 months sentence under Section 120(1)(B) is required to be quashed and the same is hereby quashed. CR.A/139920/2004 17/18 JUDGMENT 19.However, as the prosecution has successfully established the involvement of appellants in the commission of offence punishable under Section 328 of IPC is concerned, the order of conviction passed by learned Judge under Section 328 of the appellants for a period of 5 years of R.I. and fine of Rs.500/- in default sentence of 1 month is required to be upheld. 20.For the forging reasons these appeals are partly allowed. Hence, the following order is passed: 21.This appeals are partly allowed. Hence, the following order is passed: 22.The order of sentence passed by the learned Judge imposing the sentence of 5 years of R.I. and fine of Rs.500/- in default further S.I. of 1 month under Section 328 is hereby confirmed. 23.The order passed by the learned Judge imposing the sentence of 7 years