Gujarat High Court
Vinod vs State on 12 November, 2008
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.A/252120/2005 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2521 of 2005
With
CRIMINAL
APPEAL No. 183 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
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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 ?
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VINOD
BHASKAR CHAGUNDE - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
IN
CRIMINAL APPEAL NO.2521 OF 2005
MR
NN PRAJAPATI for
Appellant(s) : 1,
MR PD BHATE APP for Opponent(s) : 1
IN
CRIMINAL APPEAL NO.183 OF 2006
MS SG PATEL FOR APPELLANT (S) : 1
MR PD BHATE APP FOR OPPONENT(S)
:1
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 12 & 13/11/2008
ORAL
JUDGMENT
1. As common question of fact and law is involved in both these appeals, they are heard together and disposed of by the common judgment.
2. These appeals preferred under Section 374(2) of the Code of Criminal Procedure, 1973 are directed against judgment dated 28.10.2005 passed by the learned Additional Sessions Judge, F.T.C. No.3, Valsad in Sessions Case No.9 of 2004 by which, the learned Judge has convicted both the appellants for the offence punishable under Section 394 read with Section 34 for a period of 7 years R.I. and a fine of Rs.1,000/-, in default, S.I. for two months, under Section 397 read with Section 34 for 7 years R.I. and fine of Rs.1,000/-, in default, S.I. for two months and under Section 398 read with Section 34 for 7 years R.I. and fine of Rs.1,000/-, in default, two months' S.I. It is held by the learned Additional Judge that the sentences shall run concurrently.
3. The short facts giving rise to the present appeals are stated hereinbelow.
4. The complainant was passing through the road situated near Nutan Saw Mill compound, near railway station situated at Bhilad on 03.08.2003 at about 20.30 hrs. The accused, who were armed with knife and country made revolver and riding a motorcycle, came to the Nutan Saw Mill compound near Railway Station and after throwing chili power in the eyes of the complainant and with a view to rob the complainant and the other witnesses, committed the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The appellants, after pouring chili powder in the eyes of the complainant, also made an attempt to fire from the country made revolver on the complainant and the other witnesses and made an attempt to snatch the chain valued at Rs.7,000/- from the complainant and thus, they have committed offence punishable under Sections 394 and 397 read with Section 34 of the Indian Penal Code. As the appellants were armed with deadly weapons, they have also committed offence punishable under Section 25(1)(C) of the Arms Act as well as under Section 135 of the Bombay Police Act.
5. In view of the complaint given by the complainant-Vijaykumar Jayantilal Bhavsar, the investigation was set in motion. The Investigating Officer visited the place of incident and prepared Panchnama with regard to the place of incident. The motorcycle on which the appellants came to the scene of offence and assaulted the complainant and the other witnesses, was seized and Panchnama was prepared in that regard. The muddamal was recovered in the presence of Panch witnesses and the Panchnama with regard to the recovery of muddamal was also prepared. The complainant and the other injured witnesses were sent to the hospital for immediate treatment. The muddamal was sent to the F.S.L. for detailed analysis. After receiving the medical certificate from the hospital and the report from F.S.L., the appellants were chargesheeted for the offence punishable under Sections 307,394,397 and 398 read with Section 34 of the Indian Penal Code as well as under 25(1)(C) of the Arms Act and Section 135 of the Bombay Police Act. The appellants were, thereafter, produced before the Chief Judicial Magistrate First Class at Umargam, who, in turn, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure, as the case is exclusively triable by the Sessions Court.
6. The charge against the appellants was framed vide Exh.9 for the offence punishable under Sections 307,394,397 and 398 read with Section 34 of the Indian Penal Code as well as under Section 25(1)(C) of the Arms Act and Section 135 of the Bombay Police Act and the appellants pleaded not guilty to the charge levelled against them. Therefore, the matter was set down for full-fledged trial before the learned Sessions Court.
7. The prosecution has examined following witnesses in order to prove inextricable involvement of the appellants in the commission of crime:-
PW 1 Vijaykumar Jayantilal Bhavsar vide Exh.19 PW 2 Vimalkumar Vijaykumar Bhavsar vide Exh.24 PW 3 Tejalben Vijaybhai Bhavsar vide Exh.26 PW 4 Nimesh Pravinchandra Bhavsar vide Exh. 29 PW 5 Nimesh Abubhai Jadav vide Exh.32 PW 6 Kamlesh Chunilal Shah vide Exh.34 PW 7 Champak Fakirbhai Patel vide Exh.36 PW 9 Mangalbhai Kabhabhai Megha vide Exh.45 PW 10 Amrutbhai Lallubhai Desai vide Exh.47 PW 11 Rakeshchandra Ramanlal Patel vide Exh.60
8. The prosecution has also placed reliance on the following documentary evidence, which are as under:-
The complaint given by Vijaykumar Jayantilal Bhavsar vide Exh.20.
Panchnama with regard to seizure of the motorcycle used in the commission of offence vide Exhs.30 and 31.
Panchnama of the scene of incident Exh.33.
Panchnama with regard to person of accused as well as recovery of the Muddamal vide Exh.35.
Medical certificate issued to Vijay Jayantilal Bhavsar vide Exh.37.
Medical certificate issued to Vimal Vijaybhai Bhavsar vide Exh.38.
Medical certificate issued to Tejal Vijay Bhavsar vide Exh.39.
Medical certificate issued to Pranalika Vijay Bhavsar vide Exh.40 and Report of F.S.L. vide Exhs.48,49 and 50 etc. to the present case.
9. The learned Judge, by appreciating the entire gamut of oral deposition and the documentary evidence, held that the incident in question took place on 03.08.2003 at 20.30 hrs. in night when the complainant and the other witnesses sustained injuries. The prosecution has, on the basis of the evidence adduced by the complainant PW 1 - Vijaykumar Jayantilal Bhavsar vide Exh.19, PW 2 Vimalkukar Vijaykumar Bhavsar vide Exh.24 and PW 3 Tejalben Vijaybhai Bhavsar vide Exh.26, established the involvement of the appellants in the commission of offence. The learned Judge further held that the deposition adduced by the three witnesses gets necessary corroboration from the deposition adduced by the doctor - Champak Fakirbhai Patel-PW 7 vide Exh.36 and the same is also supported by the injury certificate and, therefore, the prosecution has established the entire link connecting the accused with the commission of offence and, as the prosecution has established the entire link connecting the accused with the commission of offence, the learned Judge convicted the appellants for the offence punishable under Sections 394,397 and 398 read with Section 34 of IPC.
10. The learned advocate appearing for the appellants submitted that the learned Additional Sessions Judge has not considered the evidence adduced by the prosecution in its proper perspective while convicting the appellants for the offence punishable under Sections 394, 397 and 398 read with Section 34 of IPC. The learned advocate submitted that as per the prosecution story, the appellants and the other accused had intention to rob the complainant, who was carrying a bag containing Rs.15,000/- while going towards his house after closing his shop during the night hours but, unfortunately, the investigating officer could not recover such bag or money during the course of investigation which was carried out. Even, on perusal of the evidence adduced by the prosecution witnesses, nothing turned out from the said evidence to indicate that any recovery was made by the investigating officer during the course of investigation and no Panchnama was drawn to that effect. The aforesaid aspect was not taken into consideration by the learned trial Judge while convicting the appellants for the commission of offence punishable under Sections 394, 397 and 398 read with Section 34 of IPC and, therefore, the order passed by the learned Judge is required to be quashed and set aside and the appellants are required to be exonerated for the offence punishable under Sections 394,397 and 398 read with Section 34 of IPC. The learned advocate submitted that the witnesses, who were examined during the course of the trial, were all related and interested witnesses. They were related to the complainant and, therefore, their deposition is required to be discarded. The learned advocate submitted that no independent witnesses were examined by the prosecution in order to prove the involvement of the appellants in the commission of offence. Even the deposition adduced by the witnesses, who were examined on behalf of the prosecution, do not inspire confidence and, therefore, the appellants could not be convicted on the basis of the deposition adduced by the interested witnesses, who were related to the complainant. Thus, the order passed by the learned Additional Sessions Judge is required to be quashed and set aside. The learned advocate submitted that considering the provisions of Sections 394, 397 and 398 of IPC, the provisions of Section 397 and 398 cannot be invoked in the present case. The appellants, at the most, can be convicted for the offence punishable under Section 394 of IPC. As the basic ingredients of Sections 397 and 398 were not made out in the facts and circumstances of the case by the prosecution, the conviction of the appellants under Sections 397 and 398 is required to be quashed and set aside. The learned advocate submitted that if the provisions of Section 394 are attracted, then the conviction of the appellants for the offence punishable under Section 394 for a period of 7 years R.I. and fine of Rs.1000/-, in default, two months S.I., is required to be modified by imposing the sentence which the appellants have already undergone. The learned advocate submitted that the appellants have already undergone sentence of 6.5 years' R.I. out of 7 years and, therefore, they be released forthwith. Thus, it is submitted by the learned advocate for the appellants that there are many chinks in the armour of the prosecution case and, therefore, the benefit of the same is required to be given to the appellants and the order passed by the learned Additional Sessions Judge is required to be quashed and set aside. The learned advocate, in the alternative, submitted that if the conviction is upheld then in that event, the sentence on the appellants be imposed which they have already undergone as on today i.e. for a period of 6.5 years R.I. in the facts and circumstances of the case.
11. The learned A.P.P. representing the State submitted that considering the reasoning assigned by the learned Judge while convicting the appellants for the offence punishable under Sections 394, 397 and 398 read with Section 34 of IPC, no interference is called for and the order of sentence imposed by the learned Judge is required to be upheld. The learned A.P.P. submitted that the prosecution has examined complainant Vijaykumar Jayantilal Bhavsar PW 1 at Exh.19. He has deposed in his testimony about the incident which took place on 03.08.2003 after 8:00 pm at night. He has further deposed in his testimony as to how he was confronted by the three accused persons and after pouring chili power in his eyes, he was assaulted. Further, the family members, who accompanied him, were also assaulted. The deposition adduced by Vijaybhai gets necessary corroboration from his own complaint at Exh.20 and the deposition adduced by PW 2 Vimalkumar Vijaykumar Bhavsar vide Exh.24 and PW 3 Tejalben Vijaybhai Bhavsar vide Exh.26 to the present case. The deposition adduced by these witnesses is consistent and there are no contradictions in the deposition adduced by them. The doctor, who had given treatment to the injured, is examined vide Exh.36 to the present case. The injury certificate given to the injured is also produced by the prosecution in support of the deposition adduced by the doctor vide Exh.36. Thus, the deposition given by the doctor corroborates the version given by the complainant and the two witnesses. The prosecution has over and above the aforesaid oral deposition and the documentary evidence, produced the complaint given by Vijaykumar Jayantilal Bhavsar vide Exh.20, Panchnama with regard to seizure of the motorcycle used in the commission of offence vide Exhs.30 and 31, Panchnama of the scene of incident Exh.33, Panchnama with regard to person of accused as well as recovery of the Muddamal vide Exh.35, Medical certificate issued to Vijay Jayantilal Bhavsar vide Exh.37, Medical certificate issued to Vimal Vijaybhai Bhavsar vide Exh.38, Medical certificate issued to Tejal Vijaykumar Bhavsar vide Exh.39, Medical certificate issued to Pranalika Vijay Bhavsar vide Exh.40 and Report of F.S.L. vide Exhs. 48, 49 and 50 etc. in support of the prosecution story indicating involvement of the appellants in the commission of offence. Thus, the prosecution, as per the submission of the learned A.P.P., has established the guilt of the appellants in the commission of offence and, therefore, the learned A.P.P. submitted that no interference is called for in the appeals preferred by the appellants and the same are required to be dismissed. The learned A.P.P. further submitted that the provisions contained in Sections 397 and 398 make it abundantly clear that the punishment which is imposed on the convict shall not be less than 7 years. Considering the aforesaid facts and circumstances, no lenient view is required to be taken in the matter and as the prosecution has established the inextricable guilt of the appellants in the commission of offence, the order of sentence passed by the learned Additional Sessions Judge is required to be upheld and the appeals be dismissed.
12. I have heard learned advocate Ms.S.G. Patel for the appellants and learned A.P.P. Mr.P.D. Bhate for the respondent-State at length and in great detail. I have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reference to broad and reasonable probabilities of the case.
13. On re-appreciation and reevaluation of the entire evidence on record of the case, it becomes clear that the incident in question took place on 03.08.2003 when the complainant-Vijaykumar Jayantilal Bhavsar was returning from his shop at about 8:00 pm at night. When he was proceeding towards his house, he was confronted by the appellants. After throwing chili power in his eyes, an attempt was made to loot the complainant and when he raised alarm, Vimalkumar Vijaykumar Bhavsar came from the house to his rescue and thereafter a scuffle took place and one of the appellants gave blow on the left elbow of his hand with sharp cutting weapon. The other appellant was having country made revolver and he was about to fire but, as he was prevented by Vimalkumar, he could not resort to firing. In the scuffle, two daughters of the complainant-Pranalika and Tejal sustained injuries. The deposition adduced by Vijaykumar Bhavsar at Exh.19 is supported by his own complaint vide Exh.20 given on 03.08.2003 wherein, he has reiterated as to in what manner he was confronted by the appellants and how he was injured in the scuffle and his son Vimalkumar Vijaykumar Bhavsar and daughters Pranalika and Tejal sustained injuries. Vimalkumar Vijaykumar Bhavsar PW 2 has been examined at Exh.24. He has deposed in his testimony that the incident in question took place on 03.08.2003 when his father was returning after closing the shop at about 08:30 at night. He was confronted by the appellants, who were armed with the weapons. When his father raised an alarm, he immediately come out from the house to the rescue of his father. He has further deposed that the appellants were armed with the weapons and caused injuries to his father as well as two sisters. Tejalben Bhavsar-PW 3 is examined vide Exh.26 and she has reiterated in the deposition about the incident and the manner in which the incident took place and how the appellants assaulted Vijaykumar and the other members of his family. The prosecution has also examined Panch witnesses in order to prove the Panchnama of the place of incident, Panchnama and recovery of Muddamal articles and the person of accused as well as Panchnama of seizure of the vehicle which was used in the commission of offence. The deposition adduced by three witnesses gets necessary corroboration from the deposition of doctor - Champak Fakirbhai Patel - PW 7 at Exh.36. He has deposed in his testimony that the incident in question took place on 03.08.2003 as per the history given by the injured on 03.08.2003. He was working in the C.H.C. Bhilad as Medical Officer and the injured persons i.e. Vijaykumar Jayantilal Bhavsar, Vimalkumar Vijaykumar Bhavsar, Tejalben Vijaybhai Bhavsar and Pranalika Vijaybhai Bhavsar were brought to the hospital at 9:30 at night. They had given history about the assault committed by the appellants. The doctor has narrated in an exhaustive manner the injuries sustained by the victims in his deposition and has also issued certificate with regard to the injuries sustained by the victims. The prosecution has examined PW 9 Mangalbhai Kabhabhai Megha vide Exh.45 and PW 10 Amrutbhai Lallubhai Desai vide Exh.47 in support of the submission that the investigation of the case was done in a most scrupulous manner and there was no lacuna or lapse in the investigation conducted by the prosecution. The oral deposition adduced by the witnesses and the medical certificate issued by the doctor gets necessary corroboration from the report of the F.S.L. produced at Exhs.48, 49 and 50 etc. Thus, the prosecution, in my view, has established the entire link connecting the accused with the commission of offence. It has been contended by the learned advocate on behalf of the appellants that the appellants have already undergone 6.5 years R.I. which is imposed by the learned Additional Sessions Judge out of 7 years R.I. under Sections 394,397 and 398 read with Section 34 of IPC and, therefore, it was urged that the sentence which is undergone by the appellants be considered as sufficient and they be released forthwith. However, considering the provisions of Sections 394, 397 and 398, it becomes clear that the discretionary power is given to the Court under Section 394 of IPC. While considering the provisions of Sections 397 and 398, it is stated therein that If, at the time of committing robbery and dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous heart to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. While in Section 398, it is stated that If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
14. In view of the aforesaid facts and circumstances, since punishment is not less than seven years, this Court, in my considered view, cannot reduce the sentence, as urged by the learned counsel for the appellants. The prosecution has, in my considered view, duly established the involvement of the appellants in the commission of offence. The appellants were armed with the weapons and as they have committed offence punishable under Sections 394, 397 and 398 read with Section 34 of IPC, the learned Judge has rightly convicted the appellants under these Sections. I have also considered the provisions of Section 34 which is attracted in the facts and circumstances of the present case. It is held in case of Hari Om V/s. State of Uttar Pradesh in (1993) 1 Crimes 294 (SC) that in order to bring a case under Section 34 it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of occurrence. While in case of Ram Bilas Singh V/s. State of Bihar (1989) Cr.LJ 1782, it is held that in order to convict a person vicariously liable under Section 34 or Section 149 it is not necessary to prove that each and everyone of them had indulged in overt acts. In view of the ratio laid down in the aforesaid judgment, there is no room for doubt that the appellants have committed the offence punishable under Sections 394,397 and 398 read with Section 34 of IPC. Thus, considering the overwhelming evidence and reasons on record, the learned Additional Sessions Judge, in my view, has not committed any infirmity in convicting the appellants for the offence punishable under Sections 394,397 and 398 read with Section 34 of IPC.
15. For the foregoing reasons, the appeals are liable to fail and the same are hereby dismissed. The appellants shall be entitled to get the set off. The Muddamal is to be destroyed in terms of the order passed by the learned Additional Sessions Judge, F.T.C. No.3, Valsad.
(H.B.ANTANI,J.) Hitesh Top