Gujarat High Court
State Of Gujarat vs Jevar Bhimji Gudia Case Abated As Dead ... on 15 September, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, R.P.Dholaria
R/CR.A/2029/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2029 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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 or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
JEVAR BHIMJI GUDIA CASE ABATED AS DEAD DURING TRIAL PENDENC
& 6....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR KP RAVAL, APP for the Appellant(s)
MR BC DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 2 - 7
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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HC-NIC Page 1 of 41 Created On Sat Sep 16 00:55:16 IST 2017
R/CR.A/2029/2006 CAV JUDGMENT
Date : 15/09/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. The present Criminal Appeal is preferred by the appellant - State of Gujarat against the judgment and order dated 15.4.2006 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Nadiad in Sessions Case No.100 of 2002 whereby the original accused were acquitted for the offence under section 120(B), 395, 397 of Indian Penal Code and section 25(1)(a)(b) of the Arms Act.
2. The short facts giving rise to the present appeal are that on 22.11.2000 at about 7.00 pm in the evening a group of 12 to 15 persons came to petrol pump of the complainant armed with stones and they assaulted the persons who were working on the petrol pump. It is alleged that all the accused persons had entered into the cash cabin of the petrol pump and looted approximately Rs.2 lakhs therefrom. There were currency notes in denomination of Rs.100/-, Rs.50/-, Rs.20/- and Rs.10/-. It is alleged that out of the accused persons, one had fired in the air from country made pistol. It is alleged that the accused persons have also beaten the persons working at the petrol pump. Thereafter, all the accused persons have fled away from the place of Page 2 of 41 HC-NIC Page 2 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT incident. Ultimately, the complaint came to be registered with the Nadiad Rural Police Station for the offence under sections 120(B), 395 and 397 of Indian Penal Code and section 25(1)(a)(b) of the Arms Act.
3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences.
3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Code of Criminal Procedure 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
4. Being aggrieved by the same, the appellant - State of Gujarat has preferred the aforesaid Criminal Appeal before this Court.
5. By way of preferring the present appeal, the appellant has mainly contended that learned Page 3 of 41 HC-NIC Page 3 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed, as such.
6. Mr.K.P.Raval, learned APP has taken this Court through the entire Record and Proceedings and read over the evidence of the material witnesses and has argued that crime in question came to be promptly reported to the concerned police and the concerned police in association with the local crime branch police as well as anti-dacoity squad decided the modality of detecting the crime soonafter the incident and even the Superintendent of Police, Kheda was also superwising the investigation. He submitted that on the same day, interrogation of material witnesses was carried out and thereafter the area as was possible on the aspect of dacoity was found to be cordoned and during the course of investigation within 12 hours, the accused came to be caught red handed along with the robbed currency notes from the three different buses of Gujarat State Road Transport Corporation. He submitted that thereafter detailed panchnama in the nature of search and seizure was carried out wherein not only the robbed currency notes were Page 4 of 41 HC-NIC Page 4 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT recovered but even the country made pistol as well as cartridges were also recovered from the accused. He submitted that test identification parade was also carried out within five days from the date of occurrence of the incident in question and the accused were put to trial and during the course of trial also, eye witnesses as well as police officials who conducted the investigation have identified the accused before the learned trial Court also.
6.1 Mr.Raval further submitted that learned trial Court has taken very hyper technical view though identification by holding test identification parade as well as before the learned trial Court, the accused were identified, but the learned trial Judge did not believe the same and wrongfully extended the benefit of doubt which is not in consonance with the evidence on record. He submitted that learned trial Court while appreciating the evidence taken into consideration the small variance and discrepancy in the evidence as regards as to whether the amount robbed was of Rs.2 lakhs or it was Rs.1,64,000/- and as such believing the discrepancy in their evidence, learned trial Court did not believe the evidence of eye witnesses as well as injured witnesses which is not in consonance with the evidence available on record as well as settled principles of appreciation of evidence.
Page 5 of 41HC-NIC Page 5 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT 6.2 Mr.Raval further submitted that since the complaint was lodged against unidentified persons and thereafter during the course of investigation, incriminating materials linking the present accused were brought on record, but the learned trial Judge has not appreciated the said evidence in its proper perspective and rendered the decision based upon the surmises and conjectures which have no place in the criminal jurisprudence. Lastly, Mr.Raval has urged this Court to reverse the findings recorded and conclusion arrived and to record the conviction as such.
7. On the other-hand, Mr.B.C.Dave, learned advocate for the respondents - accused has supported the judgment delivered by learned trial Court and has urged not to disturb the same. He argued that learned trial Court while delivering the judgment of acquittal elaborately dealt with the evidence on record and recorded the findings in its proper perspective. He submitted that there appears contradictions and discrepancies in the evidence of the eye witnesses as well as injured witnesses and their evidence is not getting corroboration and as such, their evidence is required to be discarded. He submitted that at the time of apprehending the accused from three different buses, the prosecution has not issued the seizure memo to the respective accused and Page 6 of 41 HC-NIC Page 6 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT not served to them and therefore, muddamal articles produced before the learned trial Court could not be believed to be relatable to the accused and could not be termed to be seized from the accused as such in absence of issuance of seizure memo.
7.1 Mr.Dave further submitted that identification of each of the accused is also not established by the prosecution as upon arresting the accused, they were brought to the scene of occurrence and thereafter test identification parade came to be held before the Executive Magistrate and thereafter identification of the accused before the learned trial Court becomes tainted and no reliance could be placed upon such evidence.
7.2 Lastly, Mr.Dave submitted that since this is an acquittal appeal, benefit of acquittal is already extended by learned trial Court who had viewed the demeanour of the witnesses and not relied upon their evidence and therefore, while considering this acquittal appeal, this Court should not disturb the findings recorded by learned trial Court as there appears no manifest error or perverse findings over the issues raised by learned trial Court and hence, according to his submission, the appeal filed by the State deserves to be dismissed, as such.
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8. This Court has heard Mr.K.P.Raval, learned APP the appellant - State of Gujarat and Mr.B.C.Dave, learned advocate for the respondents
- accused.
9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book.
10. PW 1 - Mukeshbhai Ambalal Patel -
complainant has deposed that he was having petrol pump in the name and style of "Swaminarayan Service Station" at Dabhan Cross Road, Ahmedabad
- Vadodara National Highway. He has further deposed that on 22.11.2000 at about 7:00 a.m. while he was at counter of petrol pump, at that time, Pareshbhai, Yogendrabhai Jayesbhai Patel were also present at the petrol pump and one Natubhai was selling diesel, at that time, a mob of nearly 12 to 15 persons suddenly arrived there and started pelting stones and due to which his one customer injured and thereafter, they entered into cabin of petrol pump and took out currency notes from the counter which were in the denomination of Rs.50/-, Rs.20/-, and Rs.100/-. He has further deposed that thereafter, customers started running away, at that time, PW-10- Pareshbhai Ishwarbhai Patel caught hold one of the dacoits but one of the dacoits fired from his Page 8 of 41 HC-NIC Page 8 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT Tamancha (country made pistol), due to which said Pareshbhai Ishwarbhai released the said dacoit and all dacoits ran away from the backside of the petrol pump and they committed dacoity of nearly Rs.2,00,000/- and they were aged about 20 to 25 years. He has further deposed that one of the accused wore shirt and others have wore half pant. He has further deposed that during the course of stone pelting, one Shankarbhai received head injury and soon after the incident, he lodged complaint before the Nadiad Police Station regarding the robbery. The police recorded the complaint and drew panchnama of scene of incident. He has further deposed that on 25.11.2000, he along with other witnesses i.e. Pareshbhai Ishwarbhai, Natubhai Rathod and Shankarbhai identified all the accused before the Executive Magistrate, in the test identification parade.
10.1. In the cross-examination, the witness has admitted that he is having sharp memory and at the time of incident, he and Jayesbhai were about 150 feet away from the cabin of petrol pump. He has further admitted that he saw the dacoits pelting stones over the cabin of petrol pump and entered into the cabin and after looting the money, they were ran away from there. He has further admitted that he saw the incident for Page 9 of 41 HC-NIC Page 9 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT about three minutes. He has further admitted that he confirmed about the age of each of the accused and he identified all of them before the Executive Magistrate as well as before the Court and he fully supported his version before the Court. He has further admitted that police official of the Nadiad Police Station as well as officer of Anti Dacoity squad of Kheda were arrived there at about 8:10 p.m. and at the time of interrogation, all eye witnesses present there and complaint was lodged. Though extensive cross- examination is carried out on behalf of the learned advocate for the accused, nothing worth has emerged out from the same. On the contrary even during the course of the cross-examination, incident in question and participation of the accused in crime in question got established and their identity also got established.
11. PW 2 - Ambalal Dwarkadas Parmar and PW 3
- Saileshkumar Ambalal Patel - panchas in the panchnama of scene of occurrence have deposed that the panchnama was drawn in their presence on 22.11.2000. On the material aspect, they supported the case of the prosecution and the panchnama at Exh:21 came to be proved in their evidence. In the cross-examination, they have admitted that while panchnama was going on, many people of village gathered at the place of Page 10 of 41 HC-NIC Page 10 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT incident and they were also present there. They have further admitted that after the incident, police called them at about 8:10 p.m for interrogation. They have further admitted that during the course of drawing panchnama, complainant - Mukesh was present there and scattered pieces of damaged articles as well as currency notes were found from there and foot marks of dacoits were also found on the back side of the petrol pump.
12. PW 4 - Jayendrakumar Ichchabhai Patel and PW 6 - Rajeshbhai Mohanbhai Patel who were called as panchas on 23.11.2000 between 7:30 and 11:00 a.m. for the purpose of drawing panchnama of search and seizure of accused but they did not support the case of the prosecution.
13. PW 5 - Dipakkumar Natubhai Patel was called as panch on 23.11.2000 for collection of muddamal as well as incriminating materials from the place of incident in presence of scientific officer of FSL and he testified that search procedure was carried out in his presence. Nothing worth has come out from his cross- examination. On the contrary, it is being established that the foot print marks of dacoits were found on the backside of the petrol pump.
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14. PW 7 - Natubahi Jorubhai Rathod has deposed that he was serving as cashier at the petrol pump and on 22.11.2000 when he resumed his duty at 4:00 p.m., at that time, Bhupendra who was on duty from morning entrusted cash of Rs.84,136/- to him and he was also collecting the money which were coming from the sale of petrol and diesel and all currency notes were in denomination of Rs.500/-, 100/- Rs.50/- and Rs.20/- and thereafter he made bundles, pasted slip of Swaminarayan Service Station Petrol Pump over it and also deposited the total amount of Rs.1,64,000/- with the owner of the petrol pump. He has further deposed that at about 7:00 p.m., he heard some noise and saw some dacoits were pelting stones towards the cabin of petrol pump and at that time Shankarbhai was selling diesel. He has further deposed that thereafter, the dacoits entered into the cabin and dragged him from the chair and robbed the money which was lying in the drawer of the counter. He has further deposed that at that time, one Pareshbhai caught hold one of the dacoits but another dacoit fired from his tamancha (country made pistol) for the purpose of releasing his companion and as a result, the dacoit got freed and thereafter all of them ran away from behind the petrol pump. He has further deposed that in that incident, he received injuries on his stomach. He has further Page 12 of 41 HC-NIC Page 12 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT deposed that the five to seven dacoits wore pant and shirt and due to firing, roof of petrol pump got damaged. He has further deposed that dacoits were speaking in Hindi language. He has further deposed that he identified the accused before the Court and also in test identification parade which was held by the Executive Magistrate.
14.1 In the cross-examination, the witness has admitted that he gave detailed evidence about the cash in writing to the complainant - Mukeshbhai. He has further deposed when PSI - Raval came at petrol pump for the purpose of inspecting the place, he himself and Jayeshbhai were interrogated by the Mr.Raval. He has further admitted that Pareshbhai Ishwarbhai Patel who was the owner of Tulshi Hotel situated nearby the petrol pump, caught hold one of the accused. He has further admitted that police apprehended all of the accused in following morning and seized robbed articles and aforesaid currency notes from the possession of the accused. He has further admitted that during the identification parade, he identified six persons as dacoits.
15. PW 8 - Pareshbhai Yogendrabhai Patel - eye witness has deposed that on 22.11.200, he was present at the Swaminarayan Petrol Pump, at that time Mukeshbhai - cashier and Jayeshbhai were Page 13 of 41 HC-NIC Page 13 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT also present there and suddenly, some persons came at petrol pump with pelting stones and they were in group of 12 to 15 persons and robbed cash amount of Rs.1,64,000/- from the counter of the petrol pump and put it in the bag and when they started running from the petrol pump, at that time, Pareshbhai Ishwarbhai Patel arrived there and caught hold one of the dacoits. He has further deposed that thereafter, other dacoits trying to release the apprehended dacoit, at that time, one of the dacoits fired from his tamancha (country made pistol), due to which Pareshbhai released the apprehended dacoit and thereafter, they ran away from the back side of the petrol pump. He has further deposed that all the dacoits were falling in the age group of 20 to 25 years and all were talking in Hindi and Gujarati language. He has further deposed that during the course of stones pelting, he along with Pareshbhai Ishwarbhai Patel, Shankarbhai, Bharatbhai, Natubhai - cashier and Prakashbhai got injured. In the cross-examination, he has admitted that the dacoits are approximately 12 to 15 persons in number and none arrived upon motorcycle. He has further deposed that when Pareshbhai Ishwarbhai Patel caught hold the dacoit, other two dacoits were assaulting him.
16. PW 9 - Bhupendrabhai Chhotabhai Patel Page 14 of 41 HC-NIC Page 14 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT has deposed that at the time of incident, he was working as a cashier in Swaminarayan Service Station Petrol Pump. He has further deposed that on that day, he entrusted Rs.84,136/- to one Natubhai who resumed duty just before the incident. He has further deposed that as he went from the petrol pump just before the incident of robbery, he did not know about the incident.
17. PW 10 - Pareshbhai Ishwarbhai Patel - eye witness has deposed that he is running a hotel in the name and style of "Tulsi Hotel"
nearby Swaminarayan Service Station Petrol Pump. He has further deposed that on the day of incident, about 10 unknown persons arrived at the petrol pump with stones pelting. He has further deposed that thereafter, he went to the petrol pump and noticed that 2 to 3 persons got injured in stone pelting and thereafter, he caught hold one of the accused, at that time, two other persons robbed cash amount form the cashier and he also received injuries over his ribs, thereafter one of the accused fired from his tamancha (country made pistol), due to which he released apprehended dacoit and thereafter all the dacoits ran away from the backside of the petrol pump. He has further deposed that he identified all of the accused in the test identification parade which was held by the Page 15 of 41 HC-NIC Page 15 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT Executive Magistrate at his office. In the cross- examination, he has admitted that he stated before the police that two persons entered into the cabin of petrol pump, one of them was beating cashier - Natubhai and another was collecting the cash amount from the drawer of the counter, at that time, he was 15 feet away from the cabin and one of them wore lining shirt and another wore half pant.
18. PW 11 - Prakashbhai Marwadi - injured witness has deposed that at the time of incident, he was working as water server at the Swaminarayan Service Station Petrol Pump and incident occurred at about 7:00 p.m. He has further deposed that when he went for serving water to cashier - Natubhai, at that time, some persons started pelting stones, due to which, he received injuries over his forehead and fell down and became unconscious and could not see further.
19. PW 12 - Shankarbhai Rayjibhai -
eyewitness has deposed that he was serving as a worker in petrol pump and on 22.11.2000 at about 7:00 p.m. when he was nearby cashier - Natubhai at that time, suddenly some dacoits arrived and started pelting stones, due to which, he received injuries over his head and and due to which he fell down and he became unconscious and taken to Page 16 of 41 HC-NIC Page 16 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT the hospital.
20. PW 13 - Tarun Ramanbhai has deposed that he was serving as a petrol filler in Swaminarayan Service Station Petrol Pump on the day of incident at about 7:00 p.m. at that time, 12 to 15 persons arrived there and they were pelting stones and Shankarbhai Rayjibhai, Prakashbhai Marwadi Bharatsinh and Natubhai - cashier received injuries. He has further deposed that out of them, two dacoits entered into the cabin of the petrol pump and robbed bundles of currency notes. He has further deposed that thereafter, Pareshbhai Ishwarbhai Patel caught hold one of the dacoits but at that time another dacoit fired from his tamancha (country made pistol), due to which, he released the apprehended dacoit and thereafter all the dacoits ran away from the backside of the petrol.
21. PW 14 - Farukbhai Abdulkarim Vora was running omelet lorry nearby the Swaminarayan Service Station Petrol Pump. He was examined in order to establish that accused Badia Khumansinh visited his omelet lorry two days prior from the date of incident. He has admitted that two days prior from the date of incident accused - Badia Khumansing came to his omelet lorry and he identified him before the Court.
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22. PW 18 - Vignesh Kantibhai Patel has been examined by the prosecution to establish that on 28.11.2000 disclosure panchnama came to be drawn in his presence. He has testified before the trial Court that pursuant to the disclosure statement made by accused - Jevar Bhimji Gudia a cover of used cartridge came to be discovered and a detailed panchnama was drawn which was proved in his evidence.
23. PW 19 - Chandravadan Ramanlal Shah has been examined as panch for drawing the panchnama of seized articles which were recovered from the possession of the accused. He has deposed that in his presence Natubhai - cashier identified recovered bundles of currency notes having stamp of Swaminarayan Service Station Petrol Pump from the accused which were in the denomination of Rs.100/-, Rs.50/-, Rs.20/- and Rs.10/-. He has further deposed as the bundles were belonging to the petrol pump, the same were smelling like kerosene. Nothing worth has come out from his cross-examination.
24. PW 22 - Pinjariben Mansinh has deposed that she was living in hut situated near Swaminarayan Service Station Petrol Pump and accused - Badia Khumansinh was also residing Page 18 of 41 HC-NIC Page 18 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT nearby her hut with his mother. She identified accused - Badia Khumansinh before the trial Court.
25. PW 23 - Jayeshbhai Ramanbhai Patel has deposed that he was working as the employee in Swaminarayan Service Station Petrol Pump and on the day of incident i.e. 22.11.2000, he was on duty along with Natubhai, Mukeshbhai and Pareshbhai. He has further deposed that at the time of incident he was at petrol counter and Natubhai was at diesel counter. He has further deposed that at about 7:00 p.m., suddenly 12 to 15 persons arrived there and started pelting stones due to which he frightened and went into the cabin of Natubhai at that time, two dacoits entered into the cabin of Natubhai and robbed Rs.1,64,000/-. He has further deposed that Pareshbhai who was owner of hotel situated near the petrol pump caught hold one of the dacoits to which other dacoits started beating Pareshbhai and one of the dacoits fired from his tamancha (country made pistol), thereafter, Pareshbhai released apprehended dacoit and all ran away from the back side of the petrol pump. He has further deposed that during the course of stone pelting, he along with Shankarbhai, Natubhai and one driver received injuries. He identified three accused who were present in the Court and also Page 19 of 41 HC-NIC Page 19 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT deposed that he could identify who were absent in the Court. In his cross-examination, he has admitted that police interrogated in detailed as to what happened within one and half hours. He has further admitted that Pareshbhai caught hold one of the dacoits to which other dacoits started beating Pareshbhai and one of the dacoits fired from his tamancha (country made pistol) thereafter, Pareshbhai released apprehended dacoit and all ran away from the back side of the petrol pump. He has further admitted that when the dacoits were beating Natubhai in the cabin, he was 50 feet away from that place.
26. PW 24 - Pravinbhai Ambalal Prajapati has deposed that at that time, he was working as a driver in ST Corporation at Dakor Depot. He has further deposed that at about 9:00 a.m. his bus was intercepted by the police nearby Sevalia Cross Road and police mounted in the bus and checked three persons and apprehended them. He has further deposed that he saw the bundles of currency notes having stamp of Swaminarayan Service Station Petrol Pump were recovered from their possession and thereafter bundles of notes were seized and detailed panchnama was carried out. In the cross-examination, it is being established that the said currency notes were recovered from the bags of the accused.
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27. PW 25 - Kumeshbhai Sanabhai has deposed that at that time, he was working as conductor in ST Bus Corporation at Dakor Depot and at about 9:45 at Sevalia Cross Road, his bus was checked by the police and during such checking, the bundles of currency notes having stamp of Swaminarayan Service Station Petrol Pump were recovered from the possession of the accused persons and the same were seized.
28. PW 26 - Udesinh Maganbhai Parmar has deposed that at time of incident, he was serving in ST Bus Corporation at Dakor Depot. He has further deposed that on 23.11.2000 at about 9:00 a.m., his bus was intercepted by the police nearby Sevalia Cross Road and police mounted in the bus and checked three persons and apprehended them. He has further deposed that during the checking, police recovered bundles of of currency notes from their possession and seized the currency notes.
29. PW 27 - Bharatbhai Punjabhai Patel has deposed that he was working as conductor in ST Bus Corporation at Anand Depot. He has further deposed that on 23.11.2000 at about 10:30 a.m., while his bus was proceeding from Anand to Ujjain, at that time, his bus was intercepted by Page 21 of 41 HC-NIC Page 21 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT the police at Sevalia Cross Road and checked by the police and during such checking, two persons were apprehended by the police and in the search, country made pistol and the bundles of currency notes having stamp of Swaminarayan Service Station Petrol Pump, were recovered from their possession. He has further deposed that thereafter the aforesaid two persons were apprehended and recovered articles were seized by the police.
30. PW 28 - Maganbhai Ranchorbhai Waghela has deposed that at that time, he was working as driver in ST Corporation at Anand Depot. He has further deposed that on 23.11.2000 at about 11:00 a.m., his bus was intercepted by the police nearby Sevalia Cross Road and police mounted in the bus and during the course of checking, two persons were found with bundles of currency notes. He has further deposed that both were apprehended by the police and recovered articles were seized.
31. PW 29 - Rajubhai Gajasang Damor had deposed that at that time, he was working as A.S.I. in Nadiad Police Station. He has further deposed that on 22.11.2000, he received information that 12 to 15 persons committed dacoity over the petrol pump at Dabhan and on Page 22 of 41 HC-NIC Page 22 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT receiving such information, he visited the said petrol pump along with one P.S.I. - Savani and Constable - Jabir Hussain and some other police officials and he made extensive search in that night. He has further deposed that in the following morning, S.T. Buses were intercepted at Sevalia Cross Road and in search, Ratansinh Ram Meda, Rameshbhai @ Narsinh Limji Sandhada and Prakashbhai Naru Bhalriya were apprehended along with robbed articles. He has further deposed that thereafter on the same day from the second bus, one accused namely Tolsinh Udaysinh was apprehended along with bundle of currency notes. He has further deposed that thereafter on the same day from the third bus, accused - Ratna Naru Bhabhor and Jevar Bhimji Gudia were also apprehended along with fire arms, cartridges and currency notes. He identified all five accused before the Court. In his cross-examination, it is being established that suspects were unnaturally moving from the bus and therefore, they were located as the dacoits from the bus, while inspecting the buses.
32. PW 30 - Himmatsinh Narsinh has deposed that he was serving at Thasra Police Station and on 22.11.2000, he received information that some dacoits robbed Swaminarayan Service Station Petrol Pump by pelting stones and by using fire Page 23 of 41 HC-NIC Page 23 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT arms. He has further deposed that thereafter, he along with other police officials arrived there and cordoned the whole area and started searching the dacoits and during the checking, in the following morning, from a bus which was proceeding from Anand to Jhalod, three persons, namely Ratansinh Ram Meda, Rameshbhai @Narsinh Limji Sandhada and Prakashbhai Naru Bhalriya were apprehended along with said currency notes. He has further deposed that thereafter on the same day from the second bus, one accused namely Tolsinh Udaysinh was apprehended along with bundles of currency notes and in third bus from Anand to Ujjain Road, two persons, namely Jevar Bhimji Gudia and Ratna Naru Bhabhor were also apprehended along with bundles of currency notes, fire arms and two cartridges. He identified all the accused and recovered articles and bundles of currency notes before the trial Court. Nothing worth has come out in his cross-examination.
33. PW 31 - Jayantilal Muljibhai Pandya has deposed that at that time, he was working as A.S.I. in Thasara Police Station. He has further deposed that on 22.11.2000, he received information that 12 to 15 persons committed dacoity over the petrol pump at Dabhan and after receiving such information, he visited the said petrol pump along with some other police Page 24 of 41 HC-NIC Page 24 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT officials and they cordoned the whole area and started checking and during the course of checking of vehicles, in the following morning at about 7:00 a.m., three persons, namely Ratansinh Ram Meda, Rameshbhai @ Narsinh Limji Sandhada and Prakashbhai Naru Bhalriya were apprehended along with bundles of currency notes bearing stamp of Swaminarayan Service Station Petrol Pump. He has further deposed that thereafter on the same day from the second bus, one accused namely Tolsinh Udaysinh was apprehended along with bundles of currency notes and in third bus from Anand to Ujjain Road, two persons, namely Jevar Bhimji Gudia and Ratna Naru Bhabhor were also apprehended along with bundles of currency notes, fire arms and two cartridges. Thereafter, detailed panchanmas were carried out and robbed articles were seized. In his cross-examination, he has admitted that during the search, bundles of currency notes, one tamancha (country made pistol and two cartridges were recovered from the possession of the accused.
34. PW 32 - Kahiyalal Savani has deposed that at that time, he was serving as police sub- inspector in the Anti dacoity Squad at Kheda and on 22.11.2000, he received information from the police control office that 12 to 15 persons committed dacoity over the petrol pump at Dabhan Page 25 of 41 HC-NIC Page 25 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT and after receiving such information, he along with other police officials carried out detailed inspection and started interrogation. He has further deposed that during such interrogation, they took modus-operendi of the dacoits and they got clue that dacoits may be belonging to the Adivasi community of Panchmahals District and thereafter, they cordoned the whole area where the roads were leading to Panchmahals. He has further deposed that they started checking at all the entry points and also checked all the passing vehicles and during the course of checking of vehicles, in the following morning at about 9:15 a.m., three persons, namely Ratansinh Ram Meda, Rameshbhai @ Narsinh Limji Sandhada and Prakashbhai Naru Bhalriya were apprehended along with two bundles of currency notes of Rs.11,200/- and 10,500/- having stamp of Swaminarayan Service Station Petrol Pump were recovered from their possession and thereafter on the same day from the second bus from Ananad to Jhalod route, one accused namely Tolsinh Udaysinh was apprehended along with bundle of currency notes and in third bus from Anand to Ujjain Road, two persons, namely Jevar Bhimji Gudia and Ratna Naru Bhabhor were also apprehended along with two bundles of currency notes of Rs.12,650/- and 14,650/-, one tamancha (country made pistol) and two cartridges were found in their possession and thereafter Page 26 of 41 HC-NIC Page 26 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT detailed panchnamas were carried out and all recovered articles were seized and he identified all the accused before the Court. He has further deposed that rest of the investigation was carried by the Police Inspector, LCB Kheda. In the cross-examination, he has admitted that after receiving information of dacoity, he reached the place of incident and interrogated all the persons who were present there at the time of incident. It is established that during the course of checking about 20 to 22 vehicles were intercepted and checked. He has further admitted that they apprehended all the accused persons and recovered robbed articles within 12 hours from the incident.
35. PW 33 - Jaswantkumar Natwarlal Bhatt has deposed that at that time, he was Executive Magistrate and on 25.11.2000, he carried out test identification parade of the six accused persons. He has further deposed that he called about 24 persons and found that out of 24 persons, 6 were identified by the complainant and other eye witnesses, thereafter, detailed panchnama was drawn. However, nothing worth has come out in his cross-examination.
36. PW 34 - Vinodbhai Ramjibhai Tolia has deposed that at that time, he was serving as a Page 27 of 41 HC-NIC Page 27 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT Police Inspector in LCB, Kheda and on 22.11.2000, he received information from the police control office that some persons committed dacoity over the petrol pump at Dabhan and after receiving such information, he along with some other police officials reached the place of incident. He has further deposed that as soon as he reached there Mr.Raval, Senior Police Inspector of Nadiad Police Station, Superintendent of Police, other police officials of the Anti dacoity squad and LCB police officers also arrived there and they were stayed there till late night. He has further deposed that as per the direction issued by the Superintendent of Police, in early morning, he took over the investigation and cordoned the whole area and made check point at every cross road of the aforesaid area. He has further deposed that they started checking at all the entry point and also checked all the passing vehicles and during the course of checking of vehicles, in the following morning at about 7:00 a.m., three persons, namely Ratansinh Ram Meda, Rameshbhai @ Narsinh Limji and Prakashbhai Naru Bhalriya were apprehended along with bundles of currency notes having stamp of Swaminarayan Service Station Petrol Pump were recovered from their possession and thereafter on the same day from the second bus from Ananad to Jhalod Road, one accused namely Tolsinh Udesinh Page 28 of 41 HC-NIC Page 28 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT was apprehended along with bundle of currency notes and in 3rd bus from Anand to Ujjain Road, two persons, namely Jevar Bhimji Gudia and Ratna Naru Bhabhor were also apprehended along with two bundles of currency notes and one tamancha (country made pistol) and two cartridges were found in their possession and thereafter detailed panchnama was carried out and all recovered articles were seized. He has further deposed that in test identification parade held by the Executive Magistrate, accused were identified by him. He has further deposed that on 4.12.2000. Accused - Badia Khumansinh was also arrested. He has further deposed that on 4.12.2002. Upon his arrest, his personal search and seizure was undertaken and bundles of currency notes were seized which came to be identified through the complainant and thereafter he was identified in the test identification parade by the witnesses before the Executive Magistrate and detailed panchnama was drawn. In the cross-examination, he has admitted that on 23.11.2000, he received instruction from the Superintendent of Police to took over the investigation. He has also admitted that from the spot interrogation, he got a clue that the dacoits were speaking Hindi and Gujarati languages. He has further admitted that on the day of incident in night itself three police teams had started investigating the crime. He has Page 29 of 41 HC-NIC Page 29 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT further admitted that when accused - Badia Khumansing was apprehended at that time, bundles of currency notes were also recovered from his possession.
37. PW 35 - Majidkhan Faridkhan Pathan - panch has deposed that on 25.11.2000, the test identification parade was held in his presence by the Executive Magistrate. In the cross- examination, he had admitted that panchnama was carried out in his presence and he fully supported the case of the prosecution.
38. PW 36 - Vinodrai Jayesthram has deposed that he was serving as Senior Police Sub- Inspector in Nadiad Rural Police Station and on 22.11.2000, he received information that some persons committed dacoity over the petrol pump at Dabhan and after receiving such information, he along with some other police officials reached the place of incident and recorded complaint and thereafter, the complaint was sent for registration. He had further deposed that he reported the crime to his superior officers. He has further deposed that he recorded statements of the eye witnesses. In the cross-examination, he has admitted that he received information on 22.11.2000 at about 7:00 p.m. and thereafter he reached the place of incident and as soon as he Page 30 of 41 HC-NIC Page 30 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT reached there, Superintendent of Police, other police officials of the Anti dacoity squad and LCB police officers were also arrived there. He has further admitted that they started checking at all the entry points and also checked all the passing vehicles and during the course of checking of vehicles, accused persons were arrested along with bundles of currency notes and other articles.
39. The above-mentioned is the summary of the evidence wherein the complainant and several eye witnesses were examined before the learned trial Court and they have deposed in accordance with their previous statements before the police. It is also pertinent to note that as per the clue and detailed information given to the investigating agency, the accused were promptly apprehended along with the robbed articles and arms and their due identification was also promptly ensured by putting them to the test identification parade and thereafter during the course of trial also, identity of each one of the accused came to be established. In view of the above, the fact as regards to identification has been strengthen even in the cross examination undertaken on behalf of the accused. Under the circumstances, we are of the considered opinion that such factual scenario emerging out from the Page 31 of 41 HC-NIC Page 31 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT evidence on record remains to be unappreciated on the part of the learned trial Court while appreciating the evidence on record. So far as the direct evidence linking the accused with the crime in question is concerned, the same was available on record, though learned trial Judge, while appreciating the evidence, adopted very hyper technical approach and in such sort of cases wherein the complaint came to be lodged against unknown persons. The procedure adopted by the investigating agency involving various branches of police officials detected the crime in question within 12 hours of the occurrence of the incident and robbed articles being currency notes which were also identifiable and kept in bundles bearing the seal of Swaminarayan Petrol Pump were came to be recovered from the respective accused, such seizure was detailed in the panchnama leaves no manner of doubt as regards to recovery came to be made from the accused. Search and seizure is not only testified by the police officials as panchas have not supported the case of the prosecution during the trial, but for about six drivers and conductors of respective buses, as noted above, had also deposed before the learned trial Court that the muddamal currency notes were recovered from the accused, as such. In the case of robbery and dacoity against unknown persons, once such Page 32 of 41 HC-NIC Page 32 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT dacoits came to be apprehended red handed along with currency notes which were identifiable in nature and identity of dacoits was established by undertaking test identification parade as well as before the learned trial Court, in that event, we are of the considered opinion that identity and involvement of the accused leaves no manner of doubt and all these aspects have been ignored by learned trial Court while appreciating the evidence on record as such. Even otherwise, the evidence of the complainant and eye witnesses which they have stated before the police while recording their statement is also duly corroborated while recording their evidence before the learned trial Court on material particulars as regards to description of the accused, muddamal articles, fire arms etc.
40. On overall appreciation of the evidence on record, it clearly emerges out that soonafter the incident, within five minutes, crime in question came to be reported to the local police and in turn, the local police arrived at the place of incident within fifteen minutes at the place of occurrence and thereafter taking into consideration such heinous crime in nature, the same was also reported to the Superintendent of Police and the Superintendent of Police in association with the Nadiad Rural Police, Local Crime Branch as well as Anti-Dacoity Squad have Page 33 of 41 HC-NIC Page 33 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT detected the crime in question since the crime was reported against unknown persons. The evidence on record clearly indicates that on the day of incident i.e. 22.11.2000 the police officials of Nadiad Rural Police Station, Local Crime Branch, Anti-Dacoity Squad as well as the Superintendent of Police made inspection within two hours from the occurrence and learnt modus operandi of crime of dacoity from the complainant as well as other eye witnesses to the incident and thereafter seeking description of the dacoity, they form opinion that culprits may be from Adivasi community of Godhra region and they decided to cordon the area leading towards Godhra and while inspecting, they cordoned the check post of Sevalia in the morning ranging from 9.00 to 11.30. While checking various vehicles passing through Sevalia cross roads, out of three ST buses, as noted above, all the accused except Badia Khumansing were caught red handed along with robbed currency notes bearing seal impression of SSG petrol pump as well as country made pistol and cartridges and detailed panchnama came to be drawn and such robbed currency notes were also seized detailing recovery from each of the accused. Thereafter, the accused were remanded and during the period of remand, test identification parade was held on 25.11.2000 wherein all the accused were identified by several eye witnesses including the complainant as well as police officials who caught the Page 34 of 41 HC-NIC Page 34 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT accused red handed not only in the test identification parade but also before the learned trial Court during the course of trial.
41. So far as the crime reported by the complainant PW 1 is concerned, the same raises no manner of doubt as regards to any false reporting as soonafter the incident, as noted above, not only the local police officials have visited the place of incident, but other agencies like Local Crime Branch and Anti-Dacoity Squad along with the Superintendent of Police who have also detected the crime in question since it was against unidentified persons. After seeking necessary information, the accused were apprehended and at the time of apprehending the accused, robbed currency notes were recovered from them and the said amount came to be identified as the amount robbed by the accused on 22.11.2000 and that during the course of trial, the same also came to be established.
42. So far as the crucial question raised by the defence as regards to identity of the accused in the crime in question is concerned, we have given our thoughtful consideration to the evidence on record. The evidence on record clearly indicates that the accused were apprehended within 12 hours from the occurrence of incident and soonafter that, they were put to test identification parade wherein the Page 35 of 41 HC-NIC Page 35 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT complainant as well as other witnesses i.e. Paresh Ishwarbhai Patel, Natubhai Jorubhai Rathod and Shankerbhai Ramjibhai Chauhan have identified the accused in the test identification parade before the Executive Magistrate as well as during the course of trial. Over and above the aforesaid witnesses, other injured witnesses as well as police officials who had red handed apprehended the accused have also identified the accused before the learned trial Court, as noted above, in their respective evidence. The evidence on record clearly indicates that the investigating agency has worked in association with different group of police officials under the supervision of the Superintendent of Police and within 12 hours, the accused except Badia Khumansing were apprehended red handed along with the robbed currency notes bearing the seal of SSG petrol pump and therefore, there remains no manner of doubt as regards to planting such huge amount roping the accused falsely in the crime in question.
43. In our overall appreciation of the evidence on record, we noticed that upon the strength of information given by the complainant as well as witnesses as regards to description of the accused, modality of committing dacoity and other aspects in the nature of wearing clothes by the accused and the language in which the accused were talking, the investigating agency, as noted Page 36 of 41 HC-NIC Page 36 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT above, suspected Adivasi belonging to the area of Godhra for the commission of such offence and during the course of inspection, the accused came to be caught red handed and thereafter not only their identity is established in the test identification parade, but before the learned trial court also, their identity is established so far as accused Nos.1 to 6 is concerned and accused Badia Khumansing was belatedly apprehended and his identity also came to be established by holding test identification parade as well as in the cross examination of the police officer who apprehended him. In this view of the matter, so far as identity of each of the accused is concerned, we are fully satisfied with the evidence on record to the effect that the identity of each of the accused is being established so far as the crime in question is concerned.
44. It is also pertinent to note that the accused came to be apprehended on 23.11.2000 from three different ST buses along with the robbed currency notes bearing the seal of the petrol pump. The police officer requisitioned the panchas and carried out the detailed panchnama mentioning the currency notes which came to be recovered from each of the accused including denomination of Rs.50/-, Rs.20/- Rs.10/- etc and bundle bearing the seal over it and such panchnama was promptly reported to the Page 37 of 41 HC-NIC Page 37 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT investigating agency and therefore, even if no separate seizure memo was issued to the accused at the time of investigation ipso facto would not cause any prejudice to the case of the defence as the same contents were already a part of the panchnama. As discussed above, it can be seen that taking into consideration the heinous crime against unidentified persons in the nature of dacoity, various police agencies had worked together under the supervision of the Superintendent of Police and hence the conclusion of the entire investigation has become more credible and trustworthy.
45. It is also to be noted that in an appeal against acquittal filed under section 378 of the Code of Criminal Procedure 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may reappreciate and review the entire evidence to see that undue benefit is not given to the accused. By now, it is also well Page 38 of 41 HC-NIC Page 38 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court.
46. In view of the aforesaid discussion, the case against the accused is proved by the prosecution beyond reasonable doubt. On the aspect of punishment, it is pertinent to note that incident is of the year 2000 and we are considering this appeal in the year 2017, almost 17 years have passed. The accused remained under trial prisoners for about 4 - 5 years and taking into considering time lag and the fact that the accused were acquitted by learned trial Judge and when we are converting acquittal into conviction for the reasons stated above, we are of the view that if the minimum punishment as provided in the statute for the offence under section 397 of IPC Page 39 of 41 HC-NIC Page 39 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT i.e. 7 years is imposed upon the accused, it would meet with the ends of justice. Since we are inflicting minimum punishment upon the accused and we have heard learned advocate for the accused, we do not deem it necessary to hear the accused in person for inflicting punishment upon them as we are inflicting minimum sentence as provided under the statute.
47. In view of the above discussion, the following final order is passed.
Criminal Appeal No.2029 of 2996 filed by appellant - State of Gujarat is allowed. The impugned judgment and order dated 15.4.2006 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Nadiad in Sessions Case No.100 of 2002 is hereby quashed and set aside. The respondents accused are convicted and ordered to undergo rigorous imprisonment for seven years for the offence under sections 120(B), 395 and 397 of IPC and section 25(1)(a)(b) of the Arms Act and to pay fine of Rs.5000/- by each of the accused, in default, to undergo further rigorous imprisonment for six months with permissible remission in accordance with law. The accused are ordered to surrender to custody within a period of ten weeks from today for undergoing the sentence failing which the investigating agency shall be at liberty to take necessary action in accordance with law. The impugned judgment and Page 40 of 41 HC-NIC Page 40 of 41 Created On Sat Sep 16 00:55:16 IST 2017 R/CR.A/2029/2006 CAV JUDGMENT order stands modified accordingly. Bail bond, if any, stands cancelled. It is needless to say that the sentence, if any, undergone by the respondents accused be remitted.
R & P be sent back to the trial Court, forthwith.
(ANANT S.DAVE, J.) (R.P.DHOLARIA,J.) pathan Page 41 of 41 HC-NIC Page 41 of 41 Created On Sat Sep 16 00:55:16 IST 2017