Gujarat High Court
Shashikant vs State on 17 September, 2008
Author: Md Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
CR.A/96420/2002 33/ 35 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 964 of 2002
With
CRIMINAL
APPEAL No. 2160 of 2004
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 ?
=========================================================
SHASHIKANT
@ SHASHI RAMSHANKERAGNIHOTRI & 3 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
CRIMINAL
APPEAL NO.964 OF 2002
MR EE
SAIYED for
Appellant(s) : 1 - 4.MS REKHA H KAPADIA for Appellant(s) : 1-4,
MR
LR PUJARI ASST. PUBLIC PROSECUTOR for Opponent.
CRIMINAL
APPEAL NO.2160 OF 2004
MR PK
SHUKLA for Appellant(s)
MR LR
PUJARI ASST. PUBLIC PROSECUTOR for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/09/2008
ORAL
JUDGMENT
1.0 By way of these appeals, the appellants have challenged the judgment and order of the learned Additional Sessions Judge, Ahmedabad(Rural), Ahmedabad dated 18.11.2002 passed in Sessions Case No. 7 of 1999.
2.0 The appellants, herein, are original accused Nos.1 to 4 and 6 who were charged with the offence punishable under Sections 393, 398, 307 and 400 of the Indian Penal Code as well as Section 135(1) of the Bombay Police Act. The appellants, herein, were convicted for the offence punishable under Section 393 of the I.P.C. and were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/-, by each of them, and in case of default to undergo simple imprisonment for a period of fifteen days. The appellants were also convicted for the offence punishable under Section 398 of the I.P.C. and were sentenced to undergo rigorous imprisonment for seven years. The appellants were further convicted for the offence punishable under Section 135(1) of the B.P. Act and were sentenced to undergo simple imprisonment for six months and to pay fine of Rs.100/-, by each of them, and in case of default to undergo simple imprisonment for a period of ten days. Original accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani, who caused bullet injury to the mother of the complainant, was separately convicted for the offence punishable under Section 307 of the I.P.C. and was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- and in case of default to undergo simple imprisonment for a period of fifteen days. The appellants were, however, acquitted from the charge of commission of offence punishable under Section 400 of the I.P.C.. Aforesaid sentences were ordered to run concurrently.
3.0 The brief facts of the prosecution case are that on 16.06.1998, the appellants-original accused persons, with the help of each other, forcefully entered into the house of the complainant and tried to commit robbery by showing deadly weapons like knife and 'Tamancha' to the young sister and mother of the complainant. During the commission of the said offence, original accused No.4- Sanjay @ Bablu @ Denny Udhoshyam Keshvani fired one bullet at the mother of the complainant from his 'Tamancha' and caused grave injury to her. In pursuance of that the complaint was lodged and the accused were arrested. At the end of the trial, the accused were convicted and sentenced as mentioned in Para-2 of the judgment.
4.0 The prosecution, in support of its case has examined as many as fourteen witnesses i.e.(1)Ninaben Kamleshbhai Shukal-P.W.-1, (2)Manishbhai Mrugenbhai Patel-P.W.-2, (3) Gopa @ Sambhvi Kamleshbhai Shukal-P.W.3, (4) Pareshbhai Chandrakantbhai Parikh-P.W.-4, (5) Savdhanji Vajaji Darbar-P.W.-5, (6)Piyush Manubhai Patel-P.W.-6, (7) Kamleshkumar Jawaharbhai Bhoi-P.W.-7, (8)Budhaji Atmaram Thakor-P.W.-8, (9)Baldevbhai Chanaji Thakore-P.W.-9, (10) Rashmin Jaswantlal Parekh-P.W.-10, (11)Satish Maheshkumar-P.W.-11, (12)Revabhai Vitthaldas Prajapati-P.W.12, (13)Fulsinh Amarsinh Gohil-P.W.-13 and (14) Dr. Manoj Maneklal Shah-P.W.-14.
4.1 The prosecution has also placed reliance on several documentary evidences i.e., complaint(Exhibit-62), panchnama of place of offence (Exhibit-64), medical certificate of injured Ninaben, F.S.L. reports (Exhibit-92 and Exhibit-94) etc..
5.0 Mother of the complainant-Ninaben Kamleshbhai Shukal-P.W.1 was examined at Exhibit-59. She deposed that on the date of alleged offence, she was present in her house along with her two daughters. At about 2:45 p.m. the doorbell of her house rang. Hence, she went to open the door. She has deposed that when she peeped out of small window by the door, she found a person standing outside her door who looked to her as if he is known, and hence, she opened the door. As soon as she opened the door, three unknown persons pushed her on the ground and rushed into her house and locked the door from inside. Then, these persons started beating her, using abusive language and told her to give money. At that time, her younger daughter Vaishnavi came there and sat beside her. One of the accused persons pointed out knife towards the throat of Vaishnavi and asked her to show as to where her mother keeps money. She has deposed that she was shouting and the unknown persons were also speaking loudly in order to scare her. On listening those noises, her elder daughter-Gopa came out of her room. On seeing her elder daughter, one of the accused persons ran after her to catch her. But, she gave signal to Gopa not to come, and hence, Gopa ran into her room and closed the door from inside. Thereafter, suddenly doorbell of her house started ringing constantly and when it came to halt, two persons opened the door and ran out of her house whereas the third person dragged her upto front door and then fired bullet at her. She further deposed that she can identify the person who had fired the bullet at her and then she identified original accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani as the person who had fired bullet at her. She also identified the weapon used by accused No.4 as well as the clothes worn by her on the date of alleged offence. She also identified original accused No.2-Punamchand Devilal Suthar as the person who had pointed out a knife towards the neck of her younger daughter Vaishnavi. She further deposed that she had also identified the accused persons at the time of identification parade before the Executive Magistrate-P.W.-5.
5.1 P.W.-1, in her cross-examination, has stated that it is not true that the accused persons never came to her house. She further denied that since her husband has good relations with one Harin Pathak, a well-known politician, at his instance, she has wrongly roped in the appellants in the offence in question. She further denied that before the carrying out of identification parade of the accused, she along with her husband and daughter had gone to police station and since police had instructed them to identify the two persons as accused persons, she had identified them as the accused. She denied that after receiving the bullet injury, she had become unconscious. On the contrary, she has stated that she was very much conscious till she was taken to the hospital. This witness stated that it is not true that accused No.2 had not pointed out a knife towards the neck of her daughter and only because the police had instructed her to identify the accused persons, she had identified them at the time of identification parade.
6.0 Manishbhai Mrugenbhai Patel-P.W.-2 was examined at Exhibit-60. He deposed that the incident in question took place at about 2:45 p.m. on 16.06.1998. On that day he was at his home along with his parents. In the afternoon, he heard two explosions and some noises, and hence, he came out of his house. At that time, he had seen three persons running away. When he went upstairs, he found that P.W.-1 was lying on the ground keeping her hand on her stomach and her daughter Gopa was shouting. When he asked P.W.-1 as to what had happened, he was told that some persons had shot her with bullet and had runaway. He, then, told his father to call police. Thereafter, with the help of other neighbours, he took P.W.-1 to hospital.
6.1 P.W.-2, in his cross-examination, stated that his flat is situated on the fourth floor. He has further stated that if noise is coming from a flat from the opposite side, then, the noise could not be heard, but, if the noise is coming from a flat situated on the upper floor then the noise coming from such flat could be heard in the flat situated below such a flat. He has further stated that it is not true that in his statement he had not mentioned that he had heard two explosions.
7.0 The complainant-Gopa @ Sambhvi Kamleshbhai Shukal-P.W.3 was examined at Exhibit-61. She deposed that on the date of alleged offence, her father had gone to office as per his routine schedule. She came home at about 12:15 p.m.. After taking lunch along with her mother and young sister, she went to her study room and her mother was completing routine chores. At about 2:45 p.m., while she was still sitting in her study room, she heard the sound of doorbell. Then, she heard the screams of her mother and voices of unknown males, and hence, she opened the door of her room and went towards main room. At that time, she saw that two persons had made her mother lie on the ground and one of them had pointed out a knife towards the throat of her younger sister. On seeing her, one of the persons ran after her to catch her. She, therefore, ran back towards her room and closed the door from inside. Pursuant thereto, she made telephone call to her neighbour and asked for help. She also called her father. Thereafter, suddenly the doorbell of her house started ringing. When the doorbell came to halt, she came out of her room and saw that two persons had already gone whereas the third person fired one bullet at her mother and he also ran away. Thereafter, she started screaming and whereupon her neighbours gathered there. Thereafter, her mother was taken to hospital. She deposed that she can identify the accused persons since she had seen them when she came to main room on hearing the noises. Accordingly, she identified accused No.4-Sanjay @ Bablu @ Denny Udhoshyam Keshvani as well as Muddamal Article No.10 i.e. the 'Tamancha' which was used by the accused No.4. She also identified accused No.2-Punamchand Devilal Suthar and the knife Muddamal Article No.12 which accused No.2 had pointed out towards the neck of her younger sister. She further deposed that she had also identified the aforesaid accused persons before the Executive Magistrate, at the time of identification parade.
7.1 P.W.-3, in her cross-examination, stated that, at the time, of identification parade of the accused persons, she along with her parents had not gone to the police station and they had directly gone to the Court of the Executive Magistrate. She has further stated that there were about ten persons were there and out of those ten persons she had identified both the accused persons. This witness clearly stated that it is not true that the accused persons were wrongly roped in the offence in question.
8.0 Pareshbhai Chandrakantbhai Parikh-P.W.-4 was examined at Exhibit-63. He deposed that he has been residing in Vishwaketu Flats along with his family for about six years. He further deposed that he was panch-witness No.1 to the Panchnama(Exhibit-64). He has deposed that police had taken blood samples from the place of offence and had also recovered one broken ring and one empty shell of the cartridge. He deposed that the aforesaid things were packed in a box and his signature as well as the signature of panch-witness No.2 were taken on that pack. He also identified the Muddamal Article No.1-piece of cotton on which sample of the blood of the injured-P.W.-1 was taken as well as Muddamal Article No.2-broken ring and Muddamal Article No.3 empty shell of cartridge as well as the panchnama(Exhibit-64) and his signature thereon, before the Court.
8.1 P.W.-4, in cross-examination, stated that it is not true that no panchnama was drawn in his presence and that he was wrongly deposing at the instance of police. This witness clearly stated that panchnama(Exhibit-64) was prepared as per the information given by him and panch-witness No.2. This witness also denied to have read the panchnama before giving his deposition.
9.0 Savdhanji Vajaji Darbar-P.W.-5 was examined at Exhibit-69. He deposed that, at the relevant point of time, he was serving as Executive Magistrate at Ahmedabad. On 20.08.1998, one Nanabhai Hamirbhai, Jamadar, Satellite Police Station came to Court along with the accused persons for holding their identification parade. He specifically deposed that the accused persons and the complainant along with her parents were called separately. He further deposed that when the accused persons were produced before him, they were not handcuffed. He had asked them as to whether, except, the police any other persons were there with them or not and they said that except police nobody was there in the vehicle. He deposed that he had instructed peon to call several persons from outside for the said identification parade. Thereafter, on arrival of the complainant along with her parents, they were made to sit in a separate room. The accused persons, who were sitting in another room, were told to take place of their choice among the other persons standing in a queue who were called by P.W.-5 from outside. When the accused were asked as to whether they want to change their clothes, they denied. Then, the complainant-Gopaben was called first and she identified both the accused. In pursuance of that the accused were again asked to change their position. Then, the mother of the complainant-Ninaben was called and she also identified both the accused persons, successfully. A panchnama was drawn to the aforesaid effect and the signatures of the panchas were also taken thereon. This witness has specifically stated that when the identification parade of the accused persons was carried out, neither police nor any person from outside was present.
9.1 P.W.-5 in his cross-examination stated that it is not true that he had not asked the accused person as to whether they wanted to change their clothes or not, before carrying out identification parade. He further stated that it is not true that panchnama was prepared as per the instructions of the police and the signatures of the panchas were taken on that subsequently.
10.0 Piyush Manubhai Patel-P.W.-6 was examined at Exhibit-72. He deposed that on 24.08.1998 he was called by police. He along with police personnels and the accused had gone towards Memnagar and from there one revolver was recovered. Then, the same was taken to the police station and there it was sealed and the signatures of panchas were obtained thereon. This witness identified the muddamal article No.10 as the weapon recovered from Memnagar on 24.08.1998. He also identified his signature on the panchnama.
10.1 P.W.-6 in his cross-examination stated that it is not true that his signatures were taken on ready made panchnama and that they had neither gone to any place nor the accused had produced anything. This witness further stated that it is not true that he had wrongly deposed since police had told him to do so.
11.0 Kamleshkumar Jawaharbhai Bhoi-P.W.-7 was examined at Exhibit-74. He deposed that on 23.08.1998 he was called by police to remain as panch witness. When he went to police station one Mohmedbhai Hasambhai and one Sanjaybhai and several police personnels were present. From police station, they went towards Memnagar and there Mohmed showed one pistol which was kept in a plastic bag under the piles of pieces of wood. The same was sealed and the signatures of the panchas were taken thereon. This witness identified the Muddamal Article No.10 as the weapon which was recovered on 23.08.1998 as well as his signature on the Panchnama (Exhibit-73)which was drawn on the same day.
11.1 P.W.-7 in his cross-examination has stated that it is not true that since he resides near police station, he is often called by the police and he often used to sign the panchnamas. This witness specifically stated that it is not true that he had not gone anywhere, but, since he is friend of Piyushbhai, he had signed the panchnama. This witness also denied that it is not true that since he had read the panchnama, he has deposed as per the details given in the panchanama.
12.0 Budhaji Atmaram Thakor-P.W.-8 was examined at Exhibit-8. He deposed that on 27.06.1998, he was called by police. At police station, he was shown blood stained clothes of a lady. He further deposed that if those clothes are shown to him, he can identify the same and accordingly he identified Muddamal Article Nos.4, 5 and 6 as the clothes which were shown to him on 27.06.1998. He deposed that, then, those clothes were sealed and he signed thereon. This witness further deposed that a panchnama was also drawn to the aforesaid effect and he had signed it. He also identified his signature on the said Panchnama(Exhibit-77).
12.1 P.W.-8, in his cross-examination, denied that he had signed ready made panchnama.
13.0 Baldevbhai Chhanaji Thakore-P.W.-9 was examined at Exhibit-79. He deposed that on 17.08.1998, he was called to the police station and there a scooter and a motor cycle were recovered by the police in his presence and other persons. A panchnama was also drawn to the aforesaid effect. This witness deposed that he had signed the said recovery Panchnama(Exhibit-80) as panch No.2. He has further deposed that on 23.08.1998, he was again called by the police and on that day he along with police, accused and other persons went to Memnagar water tank. This witness identified the said accused before the Court namely Mohmmed Abaid. On reaching there, the aforesaid accused went near the compound wall and dug out a small pit and took out one 'Rampuri' knife and six cartridges. In pursuance of that the aforesaid articles were sealed and a Panchnama(Exhibit-81) was drawn in the presence of the panchas. This witness identified the aforesaid 'Rampuri' knife and six cartridges before the court as Muddamal Article Nos.13 and 14, respectively.
13.1 P.W.-9, in his cross-examination, stated that it is not true that the vehicle was directly driven towards Memnagar, but, they went there as per the way shown by the accused. He further stated that it is not true that they had not gone to Memnagar and that he was called in the police station and there his signature was taken on the panchnama which was already prepared and that the accused was not present at that time. He denied that since the accused was shown to him outside the court, he identified him in the court. He specifically stated that the panchnama was drawn on the spot. This witness further stated that it is not true that he was wrongly deposing at the instance of the complainant.
14.0 Rashmin Jaswantlal Parekh-P.W.-10 was examined at Exhibit-83. He deposed that on 23.08.1998, he was called by the police. From police station he along with police personnels and one accused namely Shashikant went towards Memnagar water tank and there the aforesaid accused produced one revolver. A panchnama was drawn to the aforesaid effect on the spot. This witness identified the aforesaid weapon as Muddamal Article No.11. He also identified his signatures on Panchnama (Exhibit-84).
14.1 P.W.-10 in his cross-examination stated that it is not true that he was deposing on the basis of the panchnama which was read-over to him by the complainant. He further stated that it is also not true that he had not gone anywhere as a panch witness and that he is giving wrong deposition. This witness clearly stated that the panchnama was prepared by the police on the spot and he signed it after reading the same.
15.0 Satish Maheshkumar-P.W.-11 was examined at Exhibit-11. He deposed that he was called to police station on 23.08.1998 and when he reached there one Mr. Gohil, two panch witnesses and other police officials and one accused were present. They went to Chanakyapuri, Sector-5 and there accused person produced one knife which was buried near the babool tree. Police recovered and sealed the said weapon and a panchnama was drawn to that effect. This witness identified the aforesaid accused persons as Devilal and the aforesaid weapon as Muddamal Article No.13. He also identified his signature on Panchnama(Exhibit-86).
15.1 P.W.-11, in his cross examination, stated that it is not true that he had not gone to the place and had signed the ready-made panchnama. He also stated that it is not true that he was deposing wrongly since the complainant had told him to do so.
16.0 Revabhai Vitthaldas Prajapati-P.W.12 was examined at Ehxhibit-89. He deposed that on 16.06.1998, he was on duty and at that time he received written 'Vardhi' that one incident of firing has taken place on the 5th floor of Vishwaketu Flats, and hence, he went to the place of offence. On reaching there, he gathered information about the incident from one Gopaben i.e. complainant and registered the complaint(Exhibit-62) given by her. He then collected blood sample, one empty shell of the cartridge and one broken ring from the spot and drew panchnama to the aforesaid effect and obtained the signatures of the panchas thereon. He also identified his signature on the said panchnama.
16.1 P.W.-12, in his cross-examination, stated that the injured Ninaben-herself had told him about the iron weapon with wooden handle. This witness specifically stated that it is not true that he-himself had written the statements.
17.0 Fulsinh Amarsinh Gohil-P.W.-13 was examined at Exhibit-90. He deposed that he took over the investigation of the offence in question from one Mr. M.J. Vaghela on 16.07.1998. He deposed that on receiving secret information, he arrested Sashikant, Punamchand and Mohmmedhasim and recorded their statements. He deposed that the aforesaid accused accepted to have committed the offence in question. On the basis of information given by these accused, a team was sent to Allahabad to arrest other accused persons. He deposed that it is not true that, though, he was knowing that the accused were innocent, he arrested them.
17.1 In his cross-examination, P.W.-13 stated that it is not true that though there were insufficient evidence against the accused persons, he had filed charge-sheet against them.
18.0 Dr. Manoj Maneklal Shah-P.W.-14 was examined at Exhibit-96. He deposed that on 16.06.1998, he was on duty and at that time he had examined one Ninaben Shukal and performed operation on her. She had received injury on her stomach. Her intestine had come out and there were multiple holes in her small intestine. The patient was in critical condition and she was under great shock. He further deposed that the injury received by the patient could be caused by bullet. He specifically deposed that the injury received by the patient could have proved fatal, had the immediate treatment been not given to her.
18.1 P.W.-14, in his cross-examination, stated that if an injury is caused by bullet, then, bullet can be seen in X-ray. This witness, after referring the X-ray of the injured Ninaben, further stated that the bullet was visible in the X-ray.
19.0 In the light of the above evidence, now, it has to be examined as to whether the trial Court has committed error in convicting the appellants or not.
20.0 As per the complaint filed by the complainant-P.W.-3, on the date of alleged offence, at about 2:45 p.m. three unknown persons forcefully entered into her house and tried to commit robbery by showing deadly weapons like 'knife' and 'tamancha' to her mother and younger sister and while committing the said offence, one of the accused persons caused grave injury to her mother with bullet. The story put forward by P.W.-3 is supported by the evidence of her mother Ninaben-P.W.-1 who had received bullet injury. She, in her deposition, deposed that on the date of alleged offence while she was completing her routine chores, her doorbell rang and as soon as she opened the door, three unknown persons entered into her house by pushing her on the ground and closed the door from inside. Then, these persons started beating her and asked her to show them where the money were kept, in abusive language. On hearing that her daughter P.W.-3 came out of her room and saw that two accused had made her mother lie on the ground and one of the accused persons had pointed out a knife towards her younger sister. On seeing P.W.-3, the third accused ran after her to catch her, but, she ran back into her room and closed the door from inside. After a few moments thereon, doorbell of house of P.W.-1 started ringing and when it came to halt, out of the three accused persons, two accused persons opened the door and ran away whereas the accused No.3 dragged P.W.-1 up to front door and fired one bullet at her. The story put forward by injured Ninaben-P.W.-1 and her daughter-P.W.-3 is also supported by P.W.-2 who resides on the fourth floor of the Vishwaketu flats where the offence took place. P.W.-2 deposed that on 16.06.1998, in the afternoon, while he was at home, he heard two explosions and when he came out, he saw three persons running away. Here, it is also required to be noted that both P.W.-1 and P.W.-3 identified the original accused Nos. 2 and 4, at the time of identification parade before the Executive Magistrate-P.W.-5 as well as before the trial Court during the trial. Hence, the story put forward by the complainant-P.W.-3 requires to be accepted. At this stage, it was argued by the learned Advocates for the appellants that since identification panchnama is not proved, the accused persosn should be acquitted. So far as the said argument advanced by learned Advocates for the appellants is concerned, P.W.-1 and P.W.-3 have clearly deposed that on 21.08.1998 at about 16:00 p.m., they had gone to the Court of Executive Magistrate for the purpose of identification parade and during the identification parade P.W.-1 and P.W.-3 identified both accused Nos. 2 and 4 as the persons who had forcefully entered into their house on the date of alleged offence and had tried to commit robbery. P.W.-1 and P.W.-3 not only identified accused No.2 as the person who had pointed out a knife towards the throat of Vaishnavi and accused No.4 as the person who had fired bullet from his 'tamnacha' on the date of alleged offence, but, they also identified the aforesaid 'knife' and 'tamancha' as Muddamal Article Nos.12 and 10, respectively. Apart from that P.W.-5, in his deposition, also deposed that both P.W.-1 and P.W.-3 successfully identified original accused Nos.2 and 4 before him. He has stated that at the time of identification parade, he had told original accused Nos.2 and 4 to take place of their choice among the other persons who were called by the peon at his instruction for the purpose of identification. P.W.-5 had also asked the accused Nos.2 and 4 as to whether they wanted to change their clothes or not, after ensuring that the accused Nos.2 and 4 were not brought to the Court in handcuffed condition and that the accused persons and the Complainant along with her parents were called to the Court, separately and at different times. P.W.-5, then after completing all the procedures necessary to carry out Identification Parade, first called P.W.-1 and P.W.-1 identified both the accused persons who were standing between 4th and 5th persons and another accused between 7th and 8th persons, respectively. Thereafter, P.W.-1 was called, she also identified both the accused who were standing amongst the other persons. P.W.-5 is an independent witness, and hence, there is no reason to discard his evidence. Even otherwise, it is not the case of the defence nor they have led any evidence to show that the complainant or police had some personal grudge against the accused persons and on account of that the accused persons were wrongly roped in the offence in question, and hence, the contention raised by the learned Advocates for the appellants that the prosecution has failed to prove the identification Panchnama and since the accused were Hindi speaking persons, they were wrongly roped in the offence in question, is rejected.
20.1 It was also argued by learned Advocate for the appellant that since there was no mark of hole found on the clothes worn by P.W.-1, the story put forward by the prosecution that P.W.-1 received injury by bullet which was fired from 'Tamancha' of accused No.4 requires to be discarded. So far as the aspect of firing of bullet by accused No.4 from the 'Tamancha' possessed by him is concerned, the evidence of P.W.-1 and P.W.-3 are very clear. P.W.-1 and P.W.-3 not only identified the accused No.4 as the person who had fired bullet from the tamancha at the time of offence, before the Executive Magistrate as well as before the trial Court but they also identified the aforesaid weapon as Muddamal Article No.10 from which the bullet was fired. Besides, that P.W.- 2 also deposed that he had heard two explosions on the day of alleged offence. The recovery of empty shell of cartridge by P.W.-12 from the place of offence in the presence of panch witnesses No.1-Paresh Chandrakant Parikh-P.W.2 and Anandbhai Shankarlal Agrawal-Panch No.2 also suggest that the bullet was fired. The evidence of P.W.-14-Dr. Manoj M. Shah who had operated P.W.-1 on the date of alleged offence also opined that the injury received by P.W.-1 was caused by the bullet. In support of his say P.W.-14, after referring to the X-ray of the injured P.W.-1, further deposed that the bullet was visible in the X-ray of P.W.-1. Hence, it stands proved that P.W.-1 received injury from bullet. So far as the aspect of absence of mark of hole on the clothes worn by P.W.-1 is concerned, it has come on record that if the clothes worn by the victim at the time of receiving bullet injury are loose, there are all possibility that there will not be any hole mark on the clothes worn by the injured, since the clothes would enter into the body of the injured along with the bullet, if the clothes are loose. In the case on hand, P.W.-1, in her evidence has stated that on the date of alleged offence, she had worn 'Kurta' and 'Pajama' which were comparatively looser than other clothes, and hence, when the bullet was fired at her, the cloth also went into her body along with the bullet and on account of that there was no mark of hole found on the clothes of P.W.-1. Therefore, the aforesaid argument advanced by the learned advocates for the appellants is rejected.
21.0 From the above, it clearly transpires that so far as the involvement of the original accused Nos.1, 3 and 6 in the offence in question is concerned, the prosecution has failed to produce any direct or circumstantial evidence so as to bring home the charges for the offence punishable under Section 393 and 398 of the I.P.C. and Section 135(1) of the Bombay Police Act, against them. Mere discovery of certain weapons at the instance of accused Nos.1, 3 and 6 is not sufficient to connect them with the offence in question, especially, when P.W.1 and P.W.-3, who are eye-witnesses of the offence in question, have stated before the Court that the third person who was present at their home at the time of commission of offence, is not present in the Court. The said fact itself clearly suggest that accused Nos. 1, 3 and 6 are not guilty of charges leveled against them and that by no stretch of imagination, anyone of the accused Nos. 1, 3 and 6 can be said to have connected with the alleged offence as the third person who was present at the house of the complainant-P.W.-3 at the time of commission of offence. I am, therefore, of the opinion that the learned learned trial Judge has committed error in convicting accused Nos.1, 3 and 6 for the offences punishable under Section 393 and 398 of the I.P.C and Section 135(1) of the Bombay Police Act.
22.0 In the result, the Criminal Appeal No.964 of 2002 is partly allowed. The conviction of original accused No.4- Sanjay @ Bablu @ Denny Udhoshyam Keshvani stands confirmed whereas original accused No.-1-Shashikant @ Shashi Ramshankar Agnihotri, original accused No.3-Mohmmedhasim Azharhussain Saiyed and original accused No.6- Mohmmedabid @ Shammu Atharhussain Saiyed are acquitted of the charges for the offence punishable under sections 393 and 398 of the I.P.C. and Section 135(1) of the B.P. Act. Rest of the judgment and order of the trial Court stands confirmed.
22.1 So far as Criminal Appeal No.2160 of 2004 is concerned, the same stands dismissed.
(M.D. Shah,J.) Umesh/ Top