IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 105 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AJAYSINGH ALIAS FAUJI S/O MEHARSINGH JATAP Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 105 of 1999 MR MH BAREJIA for Appellant No. MR BS SUPEHIA for Appellant No. MR LR POOJARI ADDL PP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 05/10/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.K.TRIVEDI) The appellants original accused Nos. 1, 2 and 3, have filed the present appeal through advocate Shri Barejia and challenged the judgement and order conviction and sentence recorded by the learned Additional City Sessions Judge, Ahmedabad, Court No. 9 convicting the appellants original accused for the offences under Sections 397, 120(B) of the IPC and ordered to suffer RI for 10 years and fine of Rs.3000 each and in default of fine, further RI for 3 months as well as also recorded conviction for the offence under Section 452 of the IPC and sentenced to suffer RI for 5 years and fine of Rs.2000 each, in default of fine, further RI for 2 months. The learned trial Judge has also convicted appellant accused Nos. 1 and 2 for the offence under Sections 25 (1) and 27 of the Arms Act as well as for the offence under Section 135 (1) of the Bombay Police Act and sentenced to undergo RI for one month and fine of Rs.100 each and in default of fine, further RI for a week and for the offence under Section 135 (1) of the Bombay Police Act, the appellant Nos. 1 and 2 were ordered to suffer RI for one month and fine of Rs.100 and in default of fine, further RI for a week. 2. The appeal filed by the appellants got admitted by the Division Bench on 17th September, 1999. The appellants No. 2 and 3 had moved the appeal through jail and the said two appeals being Criminal Appeal Nos. 63 of 1999 and 223 of 1999, in which the office has made appointment of Shri Supehia, learned advocate and when all the three appeals were notified before the Division Bench on 17th September, 199. The Division Bench has in turn while admitting the appeal observed, which reads as under :- "Mr. Supehia has submitted that this Criminal Appeal has been filed on behalf of three appellants against the order of their conviction and sentence and this Appeal has been filed through their lawyer M.H. Barejia. It has also been pointed out that the Criminal Appeal No. 63/99 in which Mr. B.S. Supehia has been appointed to represent one of the appellants, namely Satpal Singh alias Bitu S/o. Bharatsingh Sangram Singh Chauhan, had been received through jail and Criminal Appeal No. 223 of 1999 had been filed on behalf of two appellants, namely Ajaysingh alias Mohansingh Jatap and Vikramsinh alia Sushil alias Pappu. Mr. B.S. Supehia has also pointed out that both these Appeals Nos. 63/99 and 223/99 have been moved by the same appellants whereas the appellant in these Appeals are also the appellants in Appeal No. 105/99. Admit. Records of Criminal Appeal No. 63/99 and Criminal Appeal No. 223/99 shall remain tagged with this appeal." 3. Thereafter, the appellants accused had moved an application through jail and requested for providing legal aid and said application being Criminal Misc. Application No. 5527 of 2001 was considered by the Division Bench and office was directed to provide legal aid to the appellants accused in view of the order dated 27.8.2001. When the matter was listed before us for final hearing, we had as per order dated 30.9.2004 had directed the registry to furnish the paperbook to Mr. Supehia, who was appointed to represent the appellants accused in the present appeal and the request for adjournment sought for by Mr. Supehia was granted and accordingly, this matter reached for final hearing before us on 4.10.2004. 4. Mr. Supehia, learned advocate during hearing has taken us through the evidence of the prosecution witnesses recorded during trial as well as the documentary evidence namely certain panchnamas drawn by the Investigating Agency in presence of the panchas regarding arrest of the accused, recovery of the weapon at the instance of the accused and complaint filed by Shri Shankarbhai Suvera Ex.21, who was at the relevant time working as Assistant Manager in Central Bank of India, having its branch situated at Gandhi Ashram, Sabarmati and the FIR Ex. 21 and the panchnama in respect of the identification parade arranged by the Investigating Officer before the Executive Magistrate Shri Ranjeet Gohil PW-1 and panchnama of identification parade recorded during the identification parade held by Shri Gohil and the judgement under challenge. 5. While taking us through the evidence and the judgement, Mr. Supehia has vehemently contended before us that the learned trial Judge was not right in accepting the prosecution case and conviction recorded by the learned trial Judge is accordingly not proper and the same deserves to be set aside. Mr. Supehia has also in his submission has vehemently contended that in the present case, the independent witness namely panchas have not supported the prosecution case and which the result that the recovery or the arrest of the accused persons is not proved through independent witnesses and in view of the finding recorded by the learned trial Judge convicting the accused, the said finding recorded by the learned trial Judge is not in accordance with law and the same is required to be set aside. He next urged that most of the important witnesses of the prosecution, who according to the prosecution were an eye-witness, the said witnesses have not supported the case and evidence of other witnesses, who according to him, they are very much interested for seeking conviction of the accused and the order of conviction is deserves to be set aside. Mr. Supehia has in support of his submission while taking us through the evidence of PW-3 Anand K. Rathod, has not supported the case of the prosecution and he was treated hostile to the prosecution and further that the conviction recorded by the learned trial Judge on the basis of the evidence of interested persons, who have interested in securing conviction of the accused, is not proper and accordingly, prayed that order of conviction and sentence recorded by the learned trial Judge deserves to be set aside by allowing the present appeal. Mr. Supehia has alternatively urged before us that considering his submission and on going through the entire evidence with the judgment recorded by the learned trial Judge, the prosecution has established the case beyond reasonable doubt against the accused, then, according to him that the conviction recorded and the sentence imposed by the learned trial Judge deserves to be modified and the sentence imposed by the learned trial Judge be modified by passing an order of sentence undergone looking to the age of the accused persons at the time of commission of offence, according to Mr. Supehia that accused No. 2 was young boy of 20 years while accused No. 3 was a young boy of 23 years and accused No. 1 was young man of 32 years. Looking to the age and further that even as per the prosecution case, though from the accused person, the deadly weapons like country made revolver was found and knife were possessed by the accused persons, However, the accused has not used these weapons and no cash amount has been in fact looted as according to the prosecution case, all the currency notes were put in one bag and while running the accused persons have thrown away the bag in the Bank itself and ultimately, no loss to the Bank and according to Mr. Supehia that this is a case in which, while confirming the order of conviction and sentence, the order of sentence be modified as the accused are in jail for more than 7 years and in view of the provisions of Section 397, minimum sentence provided is of 7 years, which according to him, the ends of justice will meet if the order of sentence undergone is passed by allowing the appeal partly. According to Mr. Supehia that all the three accused are residents of other State namely State of Hariyana and State of Rajesthan. 6. Mr. Poojari, learned Addl.P.P. has vehemently urged that prosecution has established the case beyond reasonable doubt. It is a Bank robbery case, where the accused though at the young age had involved themselves in such criminal activities, the accused had also kept lethal weapons like country made pistol and knife and have committed offence, though they are from other States, no leniency is to be shown to them and requested us that this is a case, in which, appeal filed by the appellants accused be dismissed. He has also submitted that no interference is required by this court even while considering the request made by Mr. Supehia for reducing the sentence imposed on the accused. 7. In light of the contentions raised before us, in brief, we will examine the prosecution case. 8. The incident in question has occurred on 5th May, 1997 at Central Bank of India having its branch situated at Gandhi Ashram. PW-2 complainant Shankarbhai, who was at the relevant time in-charge manager of the said Branch. When he was on duty in the Bank at about 1 to 1-15 PM, one person came near his table and spoke in Hindi by asking him not to move and whatever cash is lying with him, be handed over to him. The Branch Manager with surprise saw upward and he found another man standing near counter with pistol in his hand. The person who was standing near the table of the complainant was holding knife in one hand and revolver in another hand and also spoke in Hindi to hand over the cash, failing which, he will fire. The Branch Manager including the other staff members of the Bank got frightened. During that time, one another third person came and entered in the counter, he passed near the table of the complainant and stood behind the chair of the complainant and cut down the telephone wire and the said person went near cashier Mr. A.M. Bhatt near cash counter and bundle of currency notes given by cashier to him had put by that third person in plastic bag. At that time, he saw one another fourth person on main door of the Bank. Then, he realised that said person turned to loot out the Bank. With a view to save the bank from looting, he tried to press the button of siren lying beneath his table, but on seeing the movement of the complainant, the person standing near him showed revolver to him and told him that don't move. So with a fear, he did not press the siren button. At that time, one customer named Anand Karshanbhai Rathod came inside the Bank, he was blocked by the person standing near the main door and brought him in the office and gave a push towards strong room. Thereafter, the person standing near his table who was leader of all persons had told to go inside. On listing the words of that person, Shri Jasbirsing, A.M. Bhatt and Shinde gone in the strong room as well as branch Manager was also put inside. The complainant was last in it and he was hesitating to go inside the strong room, then the person standing near him spoke that you will die. On saying that, he forcibly took out the complainant from the chair and gave a push in the strong room. The person who had previously taken cash from Cashier Mr. A.M. Bhatt, came inside the strong room and got opened the safe through Mr. Bhatt and took out Rs.10,000/- cash and cartridges of 12 bore. When they are taking these articles and cash, complainant told that why they are taking cartridges, I will not permit you to take cash and cartridges. Thereafter, the leader of four persons' group gave a kick blow to the complainant, at that time, person who had taken the cash gone out of the room and leader person came out of the strong room and tried to close the door from outside, at that time, complainant closed the door from inside, so he could not close from outside. Thereafter, that leader person also ran away from the Bank, so complainant immediately came out of the room and ran behind them shouting" caught them" "caught them". All the four persons have tried to run away on motor cycle of customer Anand Rathod. Before motor cycle came on the tar road, the complainant caught hold the person sitting on the motor cycle and so all the four persons fell down. The complainant caught hold one person and another three persons tried to run away with cash put up in the bag towards Gandhi Ashram. Meanwhile one police jeep was going and on hearing the shouts, police personnel got down from the jeep and person who was caught hold by the complainant got down of the clutches of the complainant and tried to run away. The complainant also tried to run away after him. Then person who was running with cash bag thrown away the cash bag which was taking away by the complainant and tried to run back towards the Bank with cash and handed over to peon Shinde. Meanwhile police persons caught hold one person and another person was caught hold by public. Meanwhile police vehicle had come and they have handed over these two persons to police. The complainant telephoned to his head office. The names of the persons caught hold were asked in the presence of Bank staff people and customer Mr. Anand. Their names were stated by the complainant in his complaint and also they came to know the name of the person who ran away. Thus, complaint of loot of Rs.2,21,138=00 by the accused were lodged by the complainant before Sabarmati Police. This complaint is proved, which is at Ex. 21. 9. First of all, we will discuss the evidence of Shankarbhai Motibhai Suvera, who was working as in-charge Manager of Central Bank of India, Gandhi Ashram Branch. He has deposed to the effect and further deposed that on 5.5.1997 at 11.00 hrs. he has gone to the said Bank. He was posted at the extension counter where he had to look after for the transaction of the Bank and also to look after the whole business of the Bank. He has deposed that at about 1 to 1-15 PM, one tall person came and stood near his table and told him in Hindi that not to move further and whatever cash is lying, be handed over to him. On hearing this, he surprised and when he has seen upward, he saw another person standing near the counter with hand made revolver. The person who was standing near his table was armed with knife and revolver who further told in Hindi that whatever cash is lying be handed over to him, otherwise, he will fire. Third person entered in the counter and passed near his table behind his chair and cut off the wire of the telephone. The same person sat near the cashier near Mr. Bhatt's table. The currency notes' bundle given to Mr. Bhatt for transaction and lying on the counter was taken by the said person and tried to put the same in the plastic bag. At that time, he saw towards the main door of the bank where another person was standing. Then he realised that four persons came to loot the Bank. He has tried to push the button of the siren. That person was standing near him told not to move further, so he did not press the button. At that time, one customer Mr. Anand Rathod has come who was brought by the person standing near the main door and gave his push in the strong room. The person standing near the table of the manager told to the other staff members that all should go in the strong room and all shall follow. The witness was last man gone in the strong room with hesitation. At that time, said person told that, you will die and gave push to him in the strong room. The person who had previously taken the cash from Mr. Bhatt got opened the safe from Mr. Bhatt and took out Rs.10,000/- from him and 12 bore cartridges. Then witness said that "why you are taking cash and cartridges. He will not allow him to take the same." AT that time, leader of four persons gave kick blow to the witness. At that time, person who had put cash in the bag was out of the strong room, last person came out of the strong room from outside but witness is repeatedly closing the same inside, so it will not close from outside. All the four persons tried to run away from the bank and they have gone out of the bank premises. The witness has opened the strong room and rushed towards four person who have already started the motor cycle of customer Mr. Anand Rathod. All persons sat on it. They were about to bring the said motor cycle on tar road, witness went near them and tried to catch all the four persons together and in doing so, all five persons including the witnesses fell down on the road along with motor cycle. He was forcibly caught hold one person and others have run away. Meanwhile, one police van was passing near it, and on hearing the shouts, police people got down from the van. They have tried to follow the absconding persons. The person to whom witness caught hold had tried to run away from the clutch of the witness and he ran away. On seeing the police men following them, the person who had a plastic bag with currency notes etc., thrown away the bag on the road which was already taken by the witness and brought the same to the bank and gave it to one peon Shinde. Thereafter, he had informed his head office. The witness has deposed that out of running persons, one person was caught hold by public and another was caught hold by police. Both were handed over to police as police people have come in the van. The persons who were caught hold there, their names was asked. The details of the names given by the said persons were given by the witness in his deposition. They also gave name of the absconding person the detail of which is given by the witness in his evidence. Then cash was counted which comes to Rs.2,21,138=00. 16 cartridges were also found. He has categorically deposed that the person who was standing near his table and who was ordering all the other persons and he is accused no. 1 before the court. He also identified accused No. 2 as Satpalsing who had taken the cash from cashier Mr. Bhatt and also got opened the safe through Mr. Bhatt and took Rs.10,000=00 and sixteen cartridges. The third person was arrested by police to whom he is identified in the identification parade, whose name is Vikramsing alias Sushil alias Pappu who is accused No. 3 before the Court. 9.1 The witness was cross-examined at length. But nothing was found in his cross-examination which leads to disbelieve his evidence. As found from the cross-examination, the complainant was not knowing the names of the appellants, who has recorded his complaint. It is further found that the police has not taken the register maintained by the Bank showing the presence of the staff attached to the Bank. However, according to the complainant, the police has also seen the present register. It is further found from the cross-examination that they also maintained the register in which they made entry about the cartridges as well as the rifle, which has been kept. However, the police has not taken any entry from the register. However, according to him, the police has seen the said register. He has not stated in his complaint about the description given by the person, who was standing near by him. He has also note stated by making report that telephone wire were cut by the accused persons and he was not remembered that whether by calling expert any panchnama is drawn in his presence. It is further found in his cross-examination that in his complaint, he has not mentioned that he has informed on telephone to his Divisional Manager at his Head Office. The rest of the suggestion made to the witness were denied. It is further found from the cross-examination that on the date of incident, the police has remained in the bank upto 5-00 PM and persons from news paper had come after 3-00 PM and took photographs of the persons, who were arrested with police persons. He has denied the suggestion that he has not identified any persons before the Executive Magistrate and further he has also denied that prior to holding of identification parade, police has shown the accused persons to him. 10. Anand Karshanbhai Rathod, PW-3, who was the customer of the Bank and who visited the Bank on the day of incident and his police statement was recorded by the police, he has not supported the prosecution case and accordingly, the said witness was treated as hostile and Public Prosecutor has examined the police statement, which was put to him, in which, the witness has denied of making such statement. However, this police statement is proved through evidence of the Investigating Officer, who has recorded his statement. It is also to be seen that as per the evidence of the witness, identification parade held by PW-1 Shri Gohil, who has supported the prosecution case fully and as per the evidence of Shri Gohil, Executive Magistrate, even after the accused were arrested, identification parade was arranged on 6.5.1997 and 7.5.1997 and as found from the panchnama Ex. 18, Shri Anand Rathod - PW-3 has identified the accused, who were arrested and their identification parade was arranged in presence of panchas by PW-1 Shri Gohil and this part of the evidence is not challenged by the defence. 11. Another important witness examined by the prosecution is Shri Haresh Nanakram Jethwani PW-4, who is running the business in the name of Vijay General Stores, near Kamal Cinema in Sabarmati area. It seems that at the time when accused Nos. 1, 2 and 3 were arrested immediately after the offence is committed and from personal search of accused No. 1 Ajaysinh, a cash memo in the name of Vijay General Stores was recovered and this cash memo recovered from accused No. 1 is muddamal article No. 8 namely the bill issued by Vijay General Stores. As found from the evidence of PW-4, Haresh Jethwani, he is dealing in the business of ready made garments including the bags, luggage bag and certain cutlery articles. After the incident, he was called after three days in the court situated at Ghee Kanta. A person, who came to him to purchase one bag and he has issued bill for Rs.35-00. Before the Executive Magistrate, he has identified the person, who had purchased the bag from