CR.A/154/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 154 of 2005 With CRIMINAL APPEAL No. 177 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BHAILALBHAI ARJUNBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR H.S.MULIA for Appellant in CR.A. No.154/05 MS ROOPAL PATEL for appellant in CR.A. No.177/05 MS HANSA PUNANI, APP for Opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 06/05/2008 ORAL JUDGMENT Appellant of Criminal Appeal No.154 of 2005, CR.A/154/2005 2/10 JUDGMENT Bhailalbhai Arjunbhai Vasava was original accused No.1 and appellant of Criminal Appeal No.177 of 2005, Hajratsha Indusha Divan, was original accused No.2 in Sessions Case No.50/03. By the impugned judgment and order dated 31st December 2004, the learned Joint District Judge, Anand convicted the appellants for offences punishable under section 394 and 397 of the Indian Penal Code and sentenced them to R.I. for seven years each. They were also directed to pay fine of Rs.2,000/- for each of the offences. Substantive sentences were, however, made concurrent. It may be noted that original accused No.3 Sujit Rajubhai was acquitted. 2. As per charge Ex.12, it was alleged against the accused that on 21.4.96, between 11.45 to 12.00 O' clock at night, the accused had taken a lift in an ambassador car being driven by the complainant near Vadodara at Chhani Octroi junction requesting that they be dropped at Vasad. At Vasad they had overpowered the complainant and his hands and legs were tied. He was then left there in the said condition. The accused had decamped with the ambassador car No.GJ-5-3276, Rs.400 and driving licence of the driver. It was therefore alleged that they had committed offence punishable under sections 394 and 397 read with section 120-B of the Indian Penal Code. 3. Tasvarhussain Saiyed, complainant, PW-5 was examined at Ex.35. He stated that he was engaged as CR.A/154/2005 3/10 JUDGMENT a driver by one Kalpeshbhai. On 21.4.96, in Ambassador car No.GJ-5-3276, he had dropped uncle of Kalpeshbhai from Nadiad to Vadodara station. While returning when he reached Chhani Octroi check post, he stopped the car to answer the natures call. At that time, some four people came and asked him for a lift upto Vasad. At Vasad petrol pump when he stopped the car, they requested him to drive further on. When the car reached at a dark spot, the passengers gagged him with a piece of cloth. His hands and legs tied and he was thrown on the road side. They took away the car. He somehow managed to reach near one old gentleman who helped him and took him near Sarsa Road from where he took a lift of a scooterist and reached Chikodra cross-roads. When a police van passed by, he informed them about the incident. He was then taken to Anand Police Station and lodged a complaint. The assailants had taken away Rs.400/- which he was carrying as also his silver ring. His licence was also taken away, but he had not realized it at that time. He could recognize the assailants. He stated that identification parade was not carried out in presence of the Magistrate. He, however, identified, the accused before the Court and stated that the fourth person is missing. In the cross-examination, he admitted that in the complaint he had stated that none of the persons had any weapon. He, however, stated before the Court that one of them was carrying a knife. These persons were speaking in Hindi. He denied that when the CR.A/154/2005 4/10 JUDGMENT police had called him, he had not been able to identify the accused. In further cross-examination, he stated that in Bharuch Police Station he was asked to identify the persons which he could do. He denied that after seeing the accused in Bharuch police station, he had no occasion to see them again. 4. Bansibhai Jethabhai, PW-7, Ex.39 was the panch witness during the test identification parade. He stated that the identification parade was carried out in a big hall behind the police station. In the cross-examination, he stated that besides two panch witnesses there were some police officers also present and the witnesses were also present. In presence of these persons,identification parade was carried out. 5. Victorbhai Parmar, PW-8, Ex.47 was the Executive Magistrate who had carried out the identification parade. He described the manner in which the TIP was carried out. He stated that the complainant identified accused Nos.1 & 2, but failed to identify accused No.3. He himself, however, was not in a position to identify any of the accused before the Court. According to this witness, test identification parade was carried out in Mamlatdar's office. 6. PW-3, Ajaysinh Jadeja, PSI, Bharuch Police Station was examined at Ex.32. He stated that when CR.A/154/2005 5/10 JUDGMENT he was discharging duty in Bharuch A Division Police station, one ambassador car in unclaimed condition was found on the road of Nandavad to Rahadpur. The car was seized after drawing panchnama from which weapons were found. Thereafter on 24.5.96, when they were on watch in Bharuch town, he had found two persons, namely, Sujitbhai Rajubhai, (accused No.3) and Hajratsha Indusha Divan (accused No.2) going on a moped under suspicious circumstances. When being searched, from the pocket of Hajratsha, accused No.2, driving license and car keys and other papers were found which were seized in presence of panchas by drawing panchnama. Upon perusal of the panchnama, it can be seen that from the pocket of accused No.2, keys of the ambassador car were found. The police also found the driving licence of Tasvarhussain (complainant) from the possession of the said accused. Accused No.2 also led the police to the scene of the incident as well as to the plot where the ambassador car was abandoned as can be seen from panchnama Ex.51. 7. From the above evidence, the prosecution sought to establish the charges against the appellants. 8. Insofar as the appellant No.1, Bhailalbhai Arjunbhai Vasava is concerned, I find that the evidence against him was extremely sketchy. Primarily the evidence against the said accused CR.A/154/2005 6/10 JUDGMENT relied on by the prosecution was in the form of test identification parade during which allegedly, the complainant had identified him. The complainant also identified the said accused in Court. However, solely on the basis of such identification, in the facts of the present case, I find that conviction of the said accused cannot be based. There are large number of discrepancies in the test identification parade said to have been carried out. The complainant himself stated that the identification parade was carried out in the police station. He stated that in presence of the Mamlatdar, such parade was not carried out. He in fact, stated in his cross-examination that it is not true that after seeing the accused before the police station, he had no further occasion to see them. Panch witness, Bansibhai PW-7, Ex.39 also stated that the test identification parade was carried out in the police station. Executive Magistrate, PW-8, Ex.41, however insisted that TIP was conducted in the Mamatdar's office and that the same was carried out in his presence. Panch witness, Bansibhai stated that identification parade was carried out in presence of police officers. These internal contradictions and otherwise also intrinsically week nature of evidence which the test identification parade could provide would make it extremely unsafe to base the conviction of accused No.1 solely on such identification. So far as CR.A/154/2005 7/10 JUDGMENT identification before the Court is concerned, between the date of the incident and the date of deposition, there was a gap of nearly 8 years. It is humanly impossible for the witness to recall the faces of the accused and identify them after such a distant point of time. 10. Under the circumstances, so far as accused No.1 is concerned, since there is no other evidence linking him with the commission of crime, his conviction based solely on identification by the complainant in view of the above facts, was not justified. 11. So far as accused No.2 Hajratsha Divan is concerned, in addition to the complainant identifying him during the test identification parade, there was other evidence to suggest his involvement. He was intercepted by the police party keeping a watch. During his search in presence of panch witness, police recovered keys of ambassador car as well as the license of the complainant. This accused also led the police to the scene of the incident as well as to the spot where the ambassador car was abandoned. Panchnamas to this effect were also drawn. Thus the identification of this accused by the complainant gets ample corroboration from other evidence on record. His conviction and sentence was therefore fully justified. 12. I, however, find that the learned Judge erred in CR.A/154/2005 8/10 JUDGMENT convicting accused No.2 for offence punishable under sections 394 and 397 of the Indian Penal Code. Section 394 of the IPC provides for punishment for voluntarily causing hurt while committing robbery. “394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery shall be punished with imprisonment for life, or with rigourous imprisonment for a term which may extend to ten years and shall also be liable to fine.” Section 397 of the IPC provides for punishment for robbery or dacoity with attempt to cause death or grievous hurt. Section 397 reads as follows: “397. If, at the time of committing robbery or dacoity,the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” On record, there was no evidence that accused No.2 had caused hurt while committing robbery. Section 394 of the IPC therefore had no application. The complainant, PW-5, in his deposition nowhere stated that the accused were carrying deadly weapons or any weapon at all. In the cross-examination, he agreed that in the complaint he had stated that the accused were not carrying any weapon. He, however, voluntarily stated further that one of them was carrying a knife. Thus there is no evidence to CR.A/154/2005 9/10 JUDGMENT suggest that any of the accused were carrying deadly weapons. Even the learned Judge has not come to the conclusion that knife was used while committing robbery. Under the circumstances, section 397 of the IPC also did not have any application. 13. The offence can, however, be appropriately covered under section 392 of the Indian Penal Code which reads as follows: “392. Whoever commits robbery shall be punished with rigourous imprisonment for a term which may extend to ten years and shall also be liable to fine, and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.' The offence having been committed on highway between sunset and sun-rise, maximum punishment prescribed under the section is 14 years. The learned Judge has sentenced accused No.2 for seven years of rigourous imprisonment. I, therefore, see no reason to interfere with the quantum of sentence. 14 Under the circumstances, Criminal Appeal No.154 of 2005 is allowed. Conviction and sentence of the appellant Bhailalbhai Arjunbhai Vasava is set aside. Bail bond stands cancelled. Fine if any paid shall be refunded. In Criminal Appeal No.177 of 2005, conviction of the appellant is converted into one under section 392 of the Indian Penal Code. Sentence of seven years of R.I. is maintained. He shall pay fine of Rs.2,000/- and in default of payment of fine, CR.A/154/2005 10/10 JUDGMENT shall suffer simple imprisonment for 30 days as provided by the Trial Court. Both the appeals stand disposed of accordingly. (Akil Kureshi, J.) (vjn)