CR.A/1176/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1176 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= RAMESH @ LIMBUSHETTY VITTHAL NAYAK - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR GAJENDRA P BAGHEL for Appellant(s) : 1, Mr L R Pujari, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 02/09/2008 ORAL JUDGMENT 1. This appeal has been filed by the appellant- original accused No.4 challenging the judgment and order of conviction and sentence dated 22.9.2006 CR.A/1176/2007 2/13 JUDGMENT passed by the learned Addl.Sessions Judge, Surat in Sessions Case No.40 of 2005 whereby the appellant was convicted for offence punishable under section 392 of IPC and sentenced to suffer rigorous imprisonment for a period of 5 years with a fine of Rs.2000/-. In default, he was directed to undergo further rigorous imprisonment for 6 months, and for offence punishable under section 394 of IPC, he was sentenced to suffer rigorous imprisonment for a period of 7 years and a fine of Rs. 3000/-, in default he was directed to undergo rigorous imprisonment for 9 months. 2. The brief facts of the case are as under: The complainant-Tulsibhai Ganeshbhai Raval, residing at Madhi Kadod Road, Near Railway crossing, Taluka: Bardoli, District: Surat, was doing labour work of polishing diamonds. He gets rough diamonds for polishing from Sheru Germs company and after polishing, he returns the said diamonds to the company on every Monday and Tuesday. 3. The incident in question took place on 16.2.2004. The complainant, along with driver CR.A/1176/2007 3/13 JUDGMENT Rajeshbhai, Sanmukhbhai, Pareshbhai, Watchman- Vinodbhai left at 7.20 am for going to Sheru Gems in a Safari Car bearing No. GJ-5-PP-8785 for the purpose of handing over the polished diamonds as usual. The goods (diamonds) in question were worth Rs. 70 lakhs. Rajeshbhai was driving the car at the time of the incident and the complainant was sitting in the front seat beside the driver. When the said car was passing via Manekpore road, an Esteem car came and hit their car from behind, overtook them and stopped in front of the vehicle in which they were travelling. Thereafter, from the Esteem car five persons stepped out with weapons like iron bar, knife, sticks etc. in their hands and they started smashing the glass panes of the car. One person carrying tamancha attacked the driver and asked where were the goods lying. Thereupon, they opened the door of the vehicle and those persons have snatched away the bag containing the diamonds which was kept near the legs of the complainant, after injuring him with knife. During this time, the watchman who had gun with him came out of the car and two to three unknown persons tried to snatch the gun CR.A/1176/2007 4/13 JUDGMENT from the watchman and in this process, the gun went off accidentally, and one of those persons caused injury with iron bar on the head of Vinodbhai, the watchman and one unknown person stabbed Vinodbhai causing him injury. Witness Pareshbhai also was pushed down by the accused persons and he fell down and received injuries. All the unknown persons were speaking Hindi language and they were well built. They were wearing pants and shirts. After snatching and robbing the bag containing polished diamonds, the accused fled the scene in the Esteem car towards Bardoli. The number of the said Esteem Car was MH 01- 5322. On the basis of the complaint lodged by the complainant, offence was registered and during the investigation the accused was arrested and charge sheet was filed against all of them. During the investigation, T.I. parade was conducted and necessary muddamal was recovered. During the investigation, some muddamal articles were sent to FSL for analysis, statements of the relevant witnesses were recorded and at the end of the investigation, charge sheet was filed. CR.A/1176/2007 5/13 JUDGMENT 4. In all six accused persons were charge sheeted for the offences punishable under sections 395, 397 read with 120B of Indian Penal Code and section 25 (1)(A)(B) and 27 (1) of Arms Act. 5. As the other accused were absconding and upon the arrest of the said accused by the police, supplementary charge sheet were filed against the accused persons. Totally 5 charge sheets were filed against six accused persons. As the court of the learned Judicial Magistrate First Class has no jurisdiction to try the case under section 397 of IPC, the said court committed the said case to the Sessions Court which was numbered as Sessions Case No.8/05, 40/05, 41/05 and 43/05. 6. On behalf of all the accused, application at Exh.40 had been given submitting that all the above referred Sessions Cases arise out of one and the same FIR and requested to take the common evidence in all the Sessions Cases. This application was granted by the trial court by its order dated 9.9.2005 and charge was framed which is at Exh.8 for the above CR.A/1176/2007 6/13 JUDGMENT referred offences. All the accused persons have denied their charges and claimed to be tried. To prove its case, the prosecution has examined 39 witnesses including the complainant, Doctor, Executive Magistrate who carried out the T.I. parade, panchas, Investigating Officer and the eye witnesses. To prove its case, the prosecution has also produced complaint at Exh.36, injury certificate Exh. 151 Vinodbhai Ramsevak Yadav, panchnama of Esteem Car which is alleged to have been used in committing the crime and other panchnamas i.e. recovered muddamal, Tata Safari vehicle where the complainant and the injured witnesses were travelling, discovery panchnama, panchnamas of scene of offence and recovery of muddamal etc. Muddamal diamonds as well as panchnama of recovery of clothes and other things which were seized from the Esteem car, arrest panchnama of the person, FSL report Exhs. 104, 105 and 106 also produced by the prosecution to prove its case. At the end of the trial, after filing closing pursis by the Government Pleader, further statement of the accused under section 313 of Criminal Procedure Code, were recorded in which all the CR.A/1176/2007 7/13 JUDGMENT accused submitted that they were falsely implicated in the case and false case has been filed against them. 7. After hearing the learned APP as well as the learned advocate for all the accused persons, the learned trial Judge has convicted the present appellant-accused No.4 for the offences under section 392 and 394 of IPC. For the offence punishable under section 393, five years rigorous imprisonment and a fine of Rs.2000/- was awarded, in default, six months and for offence under section 394, seven years rigorous imprisonment and a fine of Rs.3000/-, in default, nine months' Rigorous Imprisonment was awarded by the trial court. The trial court has also passed order to run all the sentences concurrently. Benefit of set off for the period spent in jail was also given under section 428 of the Criminal Procedure Code, 1973. The said judgment and order is challenged by filing this appeal by the original accused No.4 Ramesh @ Limbushetty Vithal Nayak, the present appellant. CR.A/1176/2007 8/13 JUDGMENT 8. Heard the learned advocate Mr G.P. Baghel and Mr L R Pujari, the learned APP for the State. Learned advocate Mr Baghel took this court through the entire evidence on record and the judgment delivered by the trial court. This court has also gone through the evidence on record. It is found that one accused Raju P.V. Vasu was also arrested by the police but all these witnesses stated on oath before this court that accused Raju was not present during the incident in question. As per the evidence of the complainant-Tulsibhai, 5 persons were present at the time of the incident. As per the evidence of PW 8, Rajeshbhai, three or four persons were present at the time of the incident. So far as the evidence of this witness is concerned, he very specifically stated on oath before the court that after his statement was recorded, after a lapse of 4- 5 months, from the newspaper he came to know that the accused were arrested and this witness along with the other witnesses were called for T.I. parade before the Magistrate, Valod. As per the evidence of this witness, he was not able to identify the accused persons. Though the accused were present in the CR.A/1176/2007 9/13 JUDGMENT court, he deposed that he was not able to identify them. 9. As per the evidence of PW 9-Pareshbhai, 5 persons were present at the time of the incident of robbery, but during the cross-examination he admitted that in the police statement he mentioned that only 3 persons were present at the time of the incident and that it was a wrong statement. So from the evidence of this witness also, it is not specifically proved by the prosecution whether three persons or five persons were present on the spot. 10. As per the evidence of PW 39,Jagdishsinh Chudasma, PSI of Valod police station, eye witness- Sanmukhbhai Nayar has stated in his statement that four persons were present on the spot and they have smashed the glass panes of the safari car in which they were travelling and thereafter they robbed the bag containing polished diamonds. As per the evidence of Vinodbhai Yadav, watchman of the factory and the injured witness, four persons were had stepped down from the Esteem car and they attacked CR.A/1176/2007 10/13 JUDGMENT them and committed the crime. As per the evidence of this witness he could identify two persons but he could not identify the other two persons. According to his evidence, a tall person (present accused) has caused injury with knife on him. He also identified the present appellant-accused before the court also and before the Executive Magistrate also. 11. From the evidence of these witnesses, it is not proved beyond reasonable doubt as to how many persons were present at the time of the incident. It is pertinent to note that as per the evidence of the complainant, in a brown colour car, the accused travelled but as per the panchnama, the colour of the car was blue. There is also some overwriting in the complaint in recording the number of the car. The number mentioned in the panchnama and the FIR were also doubtful. It has also not come on record why accused Raju was arrested by the police though he has not played any role in committing the crime. It is also pertinent to note that the present appellant- accused was identified by the complainant as well as by witness-Vinodbhai who received knife injuries CR.A/1176/2007 11/13 JUDGMENT caused by this witness before the trial court. He was also convicted by the trial court. 12. Mr Baghel, learned advocate for the appellant, alternatively submitted that, if the court comes to the conclusion that the accused was rightly held guilty for the offences for which he was convicted by the trial court, taking into consideration the entire evidence on record, he requested this court to reduce the sentence of the present appellant-accused. It is also submitted by him that at the time of the incident, the appellant was 24 years old and in his family, his aged parents and two of the sisters are unmarried and liability of maintaining all these persons are on the shoulder of the appellant. 13. In support of his argument, the learned advocate has placed reliance on a decision in the case of Sunil v. State of Haryana (AIR 1994 SC 1536) wherein taking into consideration the extenuating circumstances, while confirming the conviction of the appellants, looking to the facts CR.A/1176/2007 12/13 JUDGMENT and circumstances of the case, the sentence was reduced to four years rigorous imprisonment. 14. This court has gone through the entire evidence on record. Taking into consideration various parts of the evidence on record as well as the facts and circumstances of the case, in the opinion of this court, the submission made by the learned advocate regarding the age of the parents and the fact that the two sisters of the appellant are yet to be married, requires consideration and the sentence awarded is required to be reduced. 15. In the result, this appeal is partly allowed. The judgment and order of conviction and sentence dated 22.9.2006 passed by the learned trial Judge against the appellant stands modified to the extent that the sentence imposed upon the appellant to suffer rigorous imprisonment for five years is reduced to four years for offence punishable under section 392 of IPC. So far as the default clause is concerned, six months' R.I is reduced to 2 months. So far as offence punishable under section 394 of IPC CR.A/1176/2007 13/13 JUDGMENT is concerned, the sentence to suffer rigorous imprisonment for seven years is reduced to 4 years and in default, the R.I for 9 months is reduced to three months. So far as payment of fine is concerned, it is not altered. Both the sentences are ordered to run concurrently. The accused is entitled to get benefit of set off for the period already undergone, under section 428 of the Criminal Procedure Code. Rest of the judgment and order of conviction and sentence remains unaltered. 16. Looking to the peculiar facts of this case, this order may not be treated as a binding precedent in other matters. [M.D. SHAH, J.] msp