IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 820 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE J.R.VORA ============================================================ 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? -------------------------------------------------------------- JASHU VARSANG BARIA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR VIKRAM J THAKOR for Appellant MRS MANISHA L SHAH, APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: 31/07/2003 ORAL JUDGEMENT 1. This Appeal is preferred by the appellant against the judgment and order of conviction recorded by learned Asst. Sessions Judge, Ahmedabad (Rural) on 5th of August, 2002, in Session Case No. 129 of 2001, convicting the accused under Sections 398 and 395 of the Indian Penal Code and sentencing the appellant for the rigorous imprisonment of 7 years and fine of Rs.1,000/in default, to undergo simple imprisonment of one year for the charges proved against appellant under Section 398 of the Indian Penal Code and sentencing the appellant to undergo rigorous imprisonment of two years and fine of Rs. 1,000/-, in default, to undergo simple imprisonment of one month for the charge under Section 395 of the Indian Penal Code proved against the accused - appellant. 2. The incident which culminated in conviction of the appellant occurred on 29.1.2001 in early hours of day about 2.00 to 2.30 hours. The incident occurred at village Meroli of the Ahmedabad District. PW-7 Dashrathbhai K. Patel who keeps cattle in the village, on the night of the incident, had been to take care of his cattle from his house to his vada, where he noticed that a group of persons 10 to 12 in number were attempting to break the lock open of the Bank of Maharashtra and the Ahmedabad District Bank, situated opposite to his residence. The persons of this group were dressed in shorts and were placed with the weapons like dharia and sword. He immediately went to the house of PW-5 Chimanbhai M.Patel. He was awaken and was informed about the attempt being made to break open the above two banks. Thereafter, complainant PW-1 Kirankumar Ratilal Patel was informed, and the village persons were gathered. Village persons were spread and cordoned the village to restrict the movements of such persons. There was stone throwing from such persons from the place of incident. Some of the village persons including PW-7 Dashratbhai were injured by such stone throwing. Thereafter, from the chowk of the temple of Goddess Kodiyar, a person was apprehended by village people who is appellant in the appeal and faced the trail as an accused. The appellant was injured in the head. The village persons informed the police and at about 2.15 hours PSO PW-9 Maganbhai Jyotiram on receiving information on phone from village Meroli that an attempt has been made at the village Meroli for looting the bank as aforesaid, he informed the Police Sub-Inspector, Asali Police Station at about 2.45 hours on 29.1.2001. PSI of Asali Police Station PW-8 Dharmendrasinh S. Chauhan on receiving the information from PSO immediately with the police staff reached at village Meroli and a complaint came to be recorded of complainant Kirankumar Ratilal Patel PW-1 at about 4.30 hours on 29.1.2001. The crime was registered at Asali Police Station. On the strength of this complaint, PW-9 prepared a panchnama of scene of offence, arrested the accused on 12.30 hours on 29.1.2001 by panchanama. Thereafter, entrusted the investigation to another Police Sub-Inspector Rasikbhai V. Mandasana PW-10. After the investigation was over, a charge sheet came to be filed against the present appellant under Section 395, 398, 337 and 511 of the IPC, and for the charges under Section 135 of the Bombay Police Act. Learned Magistrate on submitting the charge sheet by the Police against the present appellant, committed the case to the Court of Sessions. The present appellant, according to the prosecution case, also informed the police about the names of other accused involved in the incident, therefore other accused are shown as non-traceable accused in the column of the charge sheet submitted against the appellant. 3. Learned Additional Sessions Judge, vide Exh.1, in the said Session Case No. 129/2001 framed charges for the offences punishable under Sections 395, 398, 337, 511 of the IPC and 135 of the Bombay Police Act, to which the appellants pleaded not guilty. 4. Prosecution examined 10 witnesses to prove the case of the prosecution. Out of them, PW-1 Kirankumar Rasiklal Patel, Exh.6, PW-3 Prashantkumar H. Patel, Exh.10, PW-4 Gokabhai Khodabhai Exh.11, PW-5 Chimanbhai Hathibhai Patel, Exh.12 and PW-7 Dasharathbhai S. Chauhan. In all 5 eye witnesses of the incident are examined by prosecution. While PW-2 Exh.8 Arjanbhai Gagabhai Desai is panch of panchnama of scene of offence. Exh.13. PW-6 Atulbhai Naginbhai Patel is panch witness of panhnama of Exh. 63, by which the appellant came to be formally arrested by IO PW-8 Exh.16. The Investigating Officer Dharmendrasinh S. Chauhan of Asali Police Station, who received the information on phone, reached at village Meroli and recorded the complaint is examined as PW8, Exh.16. PW-9 Exh.17 Maganbhai J. Prajapati, is also a police witness, who was in-charge of Asali Police Station, when he received information on phone from village Meroli about the incident and conveyed the same to PW-8 Dharmendrasinh S.Chauhan. PW-10 Rasikbhai V. Mandasana, who is the second Investigating Officer of the case. 5. The prosecution also placed on record for consideration, documentary evidence i.e. complaint given by Kirankumar Ratilal Patel PW-1 at Exh.7, panchnama of scene of offence at Exh.9, arrest panchnama of appellant at Exh. 14, and yadi by which the appellant was sent to hospital for treatment at Exh.20 and a copy of entry of Station Diary of Asali Police Station at Exh.19. 6. After recording of the evidence and the statement of the appellant under Section 313 of the Criminal Procedure Code, and after hearing the learned Additional Public Prosecutor as well as the defence Advocate, the learned Additional Sessions Judge came to the conclusion that the appellant was guilty for the charges levelled against him under Sections 395 and 398 of the Indian Penal Code and was sentenced as aforesaid. No separate punishment was awarded for the charges under Section 511 of the IPC and 135 of the Bombay Police Act. It was directed that sentence of imprisonment awarded shall run concurrently and that the appellant will be entitled to benefit under Section 438 of the Criminal Procedure Code for the period for which he was under custody during trial. Being aggrieved and dissatisfied, this Appeal is filed by the accused. 7. The Appeal came to be admitted by this Court on 21.10.2002 but vide order dated 2.2.2002 the bail of the appellant was refused by this Court, and the appeal was directed to be listed for the final hearing in the month of February, 2003. The Appeal was heard finally. 8. Learned Advocate for the appellant Mr. Vikram J. Thakar submitted that the order of conviction impugned in this Appeal is bad on various grounds. The first submission he made was in respect of the date of incident. He submitted that some of the witnesses stated that the incident occurred on 28th of January, some of the witnesses stated that the incident occurred on 29th January and one another witness stated that the incident occurred on 30th January and, therefore, the prosecution in the first place failed to prove the date of incident and this was the contradiction according to learned Advocate for creating doubt in the prosecution case. The next contradiction, which was urged, was in respect of clothes of the accused. It was submitted that almost all witnesses have stated that the mob of persons attempting to break open the lock, had worn shorts (chaddi and banian) while in arrest panchnama at Exh.14 of the appellant, he was found with shirt and pant. It was vehemently urged that none of the five eye witnesses proved beyond reasonable doubt the role played by the accused in committing the crime. None of the eye witnesses has seen the accused, according to prosecution evidence itself, committing the crime of breaking open the locks of the banks. It was also submitted that none of the witnesses say that the appellant was possessing a deadly weapon at the time of incident nor any weapon could be found from him when he was allegedly apprehended by village persons. Therefore, according to the submission of learned Advocate Mr.Thakar for the appellant that there is no involvement on the part of the appellant in the incident as alleged by the prosecution. No specific role by the appellant could be proved in the commission of crime. The appellant was not even, as per the prosecution case, seen within the vicinity of the banks and, therefore, it was urged that if the prosecution case is taken as it is, involvement of the appellant in the alleged crime, could not be established beyond doubt by the prosecution. On submission, in respect of legal aspect of the matter, it was contended that, to prove the ingredients of Section 395, it is necessary for the prosecution to prove that theft or extortion has been committed, and while committing the said crime, any person is hurt or attempted to put in danger of hurt, learned Advocate for the appellant submitted that, there is no evidence even as per the prosecution case, and as per the panchnama of scene of offence that nothing is removed nor any property is removed from the above said two banks. Therefore, there was no theft committed and secondly no injuries were caused to the prosecution witnesses while committing the theft as envisaged by Section 395 of the Indian Penal Code. When no injuries to any person is proved by the prosecution, a case under Section 395 cannot be said to have been proved by the prosecution though the witnesses deposed that some of the village people received injury in stone throwing, but no medical evidence to corroborate the say of the witnesses is produced by prosecution and, hence, according to learned Advocate for the appellant, the charge and conviction against the present appellant under Section 395 cannot be sustained. It was also contended that so far as Section 398 of the Indian Penal Code is concerned, there is no evidence at all to even indicate that the appellant was located with any arm or deadly weapon so as to constituted an offence under Section 398. Nothing was recovered from him and, therefore, no case under Section 398 is made out against the present appellant. It was contended therefore that on the submission made on the facts as well as on law, the Appeal is required to be allowed and judgment and conviction be set aside. 9. Learned APP Mrs. Manisha L. Shah has vehemently and forcibly argued that Section 391 of the Indian Penal Code makes it clear that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'. It was argued that it is not necessary to establish an offence under Section 391 to actually move the property from one hand to other hand within the terms of Section 390 of the IPC. Even attempt to commit a docoity is punishable under Section 395 and the persons when five or more in numbers commits the robbery, their mere presence would be amounting to aiding such commission or attempt to commit the robbery. It was, therefore, argued that it is not necessary at all for the prosecution to prove that the appellant had stolen any property actually or that the appellant was having deadly weapons. It was argued that it was sufficient for the prosecution to prove that five or more persons attempted to commit robbery to constitute offence of docoity and the specific role of each member of such an assembly would not require to be proved. It is enough to prove that the particular accused was the member of such an assembly present at the spot. According to learned APP, sufficient evidence has been led by the prosecution to establish the case against the appellant under Section 395 of the IPC. It is also submitted that according to witnesses, the members of the group were having the weapons like dharia, sword etc. In spite of the fact that no weapon was recovered from the appellant, the appellant is rightly made liable under Section 397 of the IPC by virtue of Section 391 of the IPC as said above. It was argued that the incident has occurred at 2.00 hours or 2.30 hours in early morning of 29.1.2001. The FIR of the offence was promptly lodged at 4.30 hours of the same day before the Police Sub-Inspector of Aslali Police Station. The witnesses especially eye witnesses PW-1 Kirankumar Ratilal Patel, PW-3 Prashantkumar H. Patel, PW-4 Gokabhai Khodabhai and PW-5 Chimanbhai H. Patel and PW-7 Dasarthbhai are the eye witnesses of the incident, and extremely independent witnesses who have no grievance against the present appellant. There is nothing on the record to disbelieve them. The witnesses have immediately informed the Aslali Police Station and Police has taken immediate steps to reach to village Meroli. It was also urged that the name of the accused was disclosed before PSI Investigating Officer at 4.30 hours and the name of the accused was correct. The fact so stands true that he offered some other names of the accused. It was further contended that an attempt was made by a group of persons to break open Ahmedabad District Cooperative Bank and Maharashtra Bank. PW-7 Dashrathbhai K.Patel is staying just opposite Ahmedabad District Cooperative Bank. When attempt was made by the witnesses to intercept those group of persons breaking open the banks, the assembly attempted to ran away from the spot, while a group was fleeing, the present accused was caught hold of amongst that group near the bank premises. Therefore, there is sufficient and reliable evidence adduced by the prosecution to bring home the charge against the accused appellant under Sections 395 and 398 of the IPC. It was argued that committing or attempting to commit docoity and on intercepting by the witnesses, running away from the group of persons, is a continuous act and during this process, there was stone throwing and injuries were caused to some of the village people. Therefore the act done by the appellant is fully covered by Section 391 of the IPC, so as to invite punishment under Sections 395 and 398 of the IPC as contended. It was also argued that the appellant belongs to Panchmahal District. There was no reason for him to be in village Meroli at late and odd hours of the night. In statement under Section 313, the accused appellant has not offered any explanation as to his presence at village Meroli at the time of commission of offence nor any justification offered by him to the village persons or to the police officers about his presence in village Meroli at 2.00 hours of the night. In respect of contradictions as highlighted by learned advocate for the appellant in respect of time and presence of the accused, it was stated that the offence has taken place on early hours of 29.12.2001 and normally and ordinarily those hours would be attached by the ordinary persons to be the late night hours of the earlier day and on that count some of the witnesses have said that the incident had occurred on 28.1.2001. Meaning thereby that on late hours of 28.1.2001, according to learned APP, this contradiction is insignificant. So far as contradiction to the presence of the accused is concerned, my attention was drawn to the evidence of PW-5 Chimanbhai H. Patel, who has stated that the accused and a group of persons wearing shorts and banians while pant and shirts were tide around waist. The case of the prosecution, as contended, cannot be disbelieved on the ground that the witnesses described the dress of the appellant to be short and banian at the time of the commission of offence and while arrest panchnama he was found in pant and shirt. The reasonable explanation, according to learned APP is found from the evidence of PW-5 Chimanbhai, as above said. It was contended that the witnesses of the scene of offence are credible, independent, and having no enmity with the accused when they deposed that the offence took place at certain time, in certain manner and at certain place, then their evidence ordinarily be accepted. In this respect, learned APP cited a decision of the Apex Court in the matter of STATE OF U.P. vs. RASID & ORS., reported in JT 2003 (5) SC 50, wherein the Apex Court accepted the evidence of eye witness in respect of time of occurrence of the incident which on probability was shrouded with doubt on account of medical evidence and the said fact was taken into consideration by the High Court so as to discard the evidence of a witness in respect of occurrence of incidence. The Apex Court observed that when neighbour and three independent prosecution witnesses deposed to a fact and when their presence at the place of incident was not challenged, the High Court erred in ignoring the acceptable evidence and proceeded on probabilities. Reverting to the facts of this case, learned APP contended that all the eye witnesses - five in numbers, have deposed that the incident had occurred at 2.00 to 2.30 hours in the early morning on 29.1.2001 and when documentary evidence supports, it cannot be said that the prosecution failed to prove the date on which the incident occurred. It was therefore urged that by the above said reliable evidence, it is established by the prosecution that the appellant was the member of the group attempting to commit docoity in respect of banks, the Appeal requires to be dismissed. 10. Having heard rival contentions and going carefully through the testimonial collections adduced by the prosecution and the documents produced, the argument on behalf of the appellant that the offence under Sections 395 and 398 of the IPC is not made out when no property is either actually stolen or extorted from the victim has no substance. Section 391 of the IPC makes it amply clear that when five or more persons conjointly commit or attempt to commit a robbery, will be liable to punishment under Section 391, even if any member of such assembly was merely present and no overt act or role is attributed to a particular member. By virtue of Section 391 of IPC such member would make himself render liable for committing or attempting to commit docoity. Likewise, if some of the members of such assembly as mentioned in Section 391 of the IPC are lashed with deadly weapons, the members who are not armed with such weapons would render themselves liable for punishment under Section 398 of the Indian Penal Code. Therefore, the factual scenario taken place at the time of committing crime alleged and revealed through the evidence of witnesses is carefully required to be re-appreciated and scrutinised particularly on the following facts. (i) Whether the prosecution proved beyond doubt that the appellant was the member of the assembly of the group of persons attempting to break open the doors of the banks at village Meroli; (ii) the second aspect would be whether prosecution proves beyond doubt that the appellant was apprehended amongst the group of person attempting to break open the doors of bank and (iii) how and from where the appellant was caught and apprehended? 11. The prosecution examined five eye witnesses of the incident. Those important eye witnesses are PW-1 Kirankumar Ratilal Patel, Exh-6, who gave complaint. PW-3 Exh.10 - Prashantkumar H.Patel, PW-4 Gokabhai Khodabhai, Exh.11. PW-5 Chimanbai Hathibhai Patel, Exh.12 and PW-7 Dashrathbhai K. Patel, Exh.15. 12. The evidence of these five witnesses was re-appreciated and scrutinised in respect of Point No.1 above, though it clearly appears to have been proved by the prosecution that a group of persons having dressed in chaddi and banian lashed with weapons like dharia and sword were attempting to break open the lock and bolts of the doors of Maharashtra Bank as well as Ahmedabad District Cooperative Bank, any of the witnesses could not establish that the appellant was one of the member of the said group. According to the evidence of PW-1 Kirankumar Ratilal Patel, who is a complainant, on informing him by Dashrathbhai on telephone he himself, Dashrathbhai, Chimanbhai, Prashantkumar, etc were gathered and chased the accused. It is on appreciating of the evidence, it is clear that when witnesses say that they chased the accused, necessarily mean that they chased the group of persons who were attempting to break open the lock and doors of the Banks and not the present appellant categorically and specifically. It is stated by him that he had seen the accused persons. Meaning thereby that a group of persons who were opening the lock of the doors of the banks and on seeing them, the group fled away and they chased the said group. Then, there was stone pelting from them. Witness Chimanbhai was slightly injured. In whole of his evidence, nowhere he has stated that the appellant was one of the member of the said group who was breaking open the lock or was present in the group of person when some members were breaking open the doors of the bank, though he has stated that he chased the accused persons and appellant was caught near the temple of Goddess Kodiyar, it is not categorically established in his deposition that the appellant was also fleeing away as a member of such group and was amongst them. While other important witness PW-3 Prashantkumar H. Patel deposed that at the instance of Hashmukbhai he was awaken and came to know that some persons are attempting to break open the doors of banks in the village. They made small groups of the village persons and the docoits thereafter ran towards village Timba road. He stated to that extent that the docoits had scuffled with them and then they started stone pelting. In his examination in chief, it is nowhere stated by him that the appellant was the member of the group of docoits as seen by him. On the contrary, in his examination in chief, once he deposed that he had not seen that the appellant was breaking open the lock. In the cross-examination, again this witness states that he had not seen the group of persons breaking upon the lock of the banks. The positive evidence of this witness denotes that this witness had not seen the group of docoits attempting to break open the lock nor positively suggests that the appellant was one of the member present even in the said group of docoits at the time of attempting to commit docoity in respect of two banks or while running away from the spot. 13. Witness PW-4 Exh.11 Gokabhai Khodabhai is also an eye witness of the incident. He is the witness residing near the bank. At the time of incident he had not slept. According to his deposition, the accused were breaking open the lock of Maharashtra Bank. It again be noted that in this context when witness refers to accused, the witness refers to the mob of docoits who were attempting