Gujarat High Court
State Of Gujarat vs Jadav Mahemoodbhai Nasibbhai & ... on 2 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/1227/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1227 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
JADAV MAHEMOODBHAI NASIBBHAI & 1....Opponent(s)/Respondent(s)
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Appearance:
MS CM SHAH, APP for the Appellant(s) No. 1
MR HARSHAD K PATEL, ADVOCATE for the Opponent/Respondent No.1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 02/03/2015
CAV JUDGMENT
1. The State has preferred this appeal under Section 378 of the Page 1 of 12 R/CR.A/1227/1999 CAV JUDGMENT Criminal Procedure Code against the judgment and order dated 28.7.1999 rendered by the learned Additional Sessions Judge, Mehsana, Camp at Patan in Sessions Case No.294 of 1998. The said case was registered against the present respondents-original accused for the offences under Sections 392 and 398 of the Indian Penal Code as well as under Section 25 (1AA) of the Arms Act.
2. It has come on record that the accused no.2 has died during the pendency of this appeal. Therefore, appeal qua accused no.2 stands abated.
3. The case of the prosecution is that the complainant Popat Chandulal Patel is residing at Ijapur Village of Mehsana and serving as a driver of car bearing No.GJ-2 K-4455 with one Shankarbhai Chhaganbhai Patel. Since Shankarbhai is having dealership of Messi Ferguson Tractor Company at Patan, he is doing up-down in this car, which is driven by the complainant. On 19.8.1997, when complainant was returning with his owner from Patan to Mehsana, at that time the present respondents along with the other accused overtook them and stopped their car in front of complainant's car. They forcefully entered the car of the complainant and threatened the complainant and Chhaganbhai by pointing gun and knife towards them. One of the accused started driving the car and they robbed valuable things and money from the complainant and Chhaganbhai. After committing such robbery they got down from the vehicle along with Page 2 of 12 R/CR.A/1227/1999 CAV JUDGMENT the key of the car of the complainant and ran away in their car, which was following them. With such allegations, the complaint was filed against the accused persons.
3.1 Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate on 26.5.1998. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
3.2 In order to bring home the charges against the accused, prosecution has examined several witnesses. The prosecution has also produced documentary evidence on record.
3.3 Thereafter, after filing closing purshis by the prosecution, further statement of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused have denied the case of the prosecution and submitted that a false case is filed against them.
3.4 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents-accused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated dated 28.7.1999 rendered by the learned Additional Sessions Judge, Page 3 of 12 R/CR.A/1227/1999 CAV JUDGMENT Mehsana Camp at Patan in Sessions Case No.294 of 1998, the appellant-State has preferred the present appeal before this Court.
4. Ms.C.M.Shah, learned APP appearing for the State has submitted that the order of acquittal is against law and evidence on record. She submitted that the learned Judge has erred in not appreciating the evidence on record. She submitted that the learned trial Judge ought to have held that once accused persons are identified in the identification parade before the Executive Magistrate, and evidence of Executive Magistrate is corroborative and supporting the prosecution case, the prosecution has established its case against the accused under Sections 392 and 398 of IPC beyond reasonable doubt. She also submitted that learned trial Judge has erred in acquitting the accused on the ground of minor contradictions and discrepancies in the evidence of prosecution witnesses. She further submitted that the learned trial Judge has erred in appreciating the evidence of the complainant and also failed to consider that Dena Bank card of Shankarbhai Chhaganbhai was found from the place of incident. She also submitted that learned trial Judge has failed to appreciate that there was ample direct and indirect evidence to connect the respondent no.1 with the crime. She, therefore, submitted that this appeal may be allowed and the impugned judgment may be reversed.
5. Per contra, Mr.Patel submitted that there is no infirmity in the Page 4 of 12 R/CR.A/1227/1999 CAV JUDGMENT impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondent of the charges levelled against him. He also submitted that the prosecution has failed to prove its case beyond reasonable doubt against accused no.1. He also submitted that even the test identification parade held in the present case cannot be believed as there are different versions regarding the time of conducting such identification parade. Not only that, such identification parade is not held in accordance with the provisions of the Evidence Act, therefore also, test identification parade cannot be made the basis for proving the case of the prosecution. He submitted that when two views are possible, in view of various decisions of Honourable Supreme Court this Court should not upset the judgment of acquittal granted in favour of the respondent unless the order impugned is found to be perverse. He, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed.
6. I have heard learned APP for the appellant and learned advocate Mr.Patel for the respondent. I have gone through the papers produced in the case. Before considering the case on merits, it would be profitable to reproduce Section 392, 398 of IPC as well as Section 25 (1AA) of the Arms Act.
"392. Punishment for robbery.- Whoever commits robbery shall be punished with rigorous imprisonment for a term which Page 5 of 12 R/CR.A/1227/1999 CAV JUDGMENT may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.-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.
25. Punishment for certain offences. [(1) Whoever-
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
........
(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life and shall also be liable to fine. "Page 6 of 12 R/CR.A/1227/1999 CAV JUDGMENT
7. From the evidence on record, it is clear that no weapon was recovered from the accused. It is also clear that ingredients of Sections 398 of IPC and Section 25 (1AA) of the Arms Act are not proved, as no weapon is recovered from the accused and only an allegation is made that at the time of commission of offence the accused were armed with weapons. Since, it cannot be said that the accused were armed with deadly weapons at the time of committing robbery, it can be said that offence under Sections 398 of IPC and Section 25 (1AA) of the Arms Act are proved. Therefore, the impugned judgment is required to be confirmed for the aforesaid offences and it is not required to be interfered with.
8. In a recent decision in the case of Satvir Singh v. State of Delhi thru. CBI reported in AIR 2014 SC 3798, the Honourable Supreme Court has observed as under:
"19. ........
Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such Page 7 of 12 R/CR.A/1227/1999 CAV JUDGMENT matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."
20. The principles of law laid down by the Privy Council in Sheo Swarup have been consistently followed by this Court in a series of subsequent pronouncements of which reference may be illustratively made to the following: Tulsiram Kanu v. State, Balbir Singh v. State of Punjab, M.G. Agarwal v. State of Maharashtra, Khedu Mohton v. State of Bihar, Sambasivan v. State of Kerala, Bhagwan Singh v. State of M.P. and State of Goa v. Sanjay Thakran."
9. It is settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. On the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in the impugned judgment cannot be said to be perverse and this view is based on facts and the law of the land. The prosecution having failed to prove the main Page 8 of 12 R/CR.A/1227/1999 CAV JUDGMENT ingredients for bringing home the charge under Sections 398 of IPC and Section 25 (1AA) of the Arms Act, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent-accused of the said offences and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned judgment as far as offence under Sections 398 of IPC and Section 25 (1AA) of the Arms Act are concerned is just, legal and proper and requires no interference by this Court.
10. This takes this Court to offence under Section 392 of the Indian Penal Code. Before proceeding with the matter and before this Court goes to the factual scenario, as it emerge before the trial Court, it would be relevant to refer to the principles to hear an appeal against acquittal, which are time and again reiterated by the Apex Court. More particularly, in a recent judgment in the case of "S. GOVINDARAJU VS. STATE OF KARNATAKA", (2013) 15 SCC 315, wherein, the Apex Court held that it is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous Page 9 of 12 R/CR.A/1227/1999 CAV JUDGMENT understanding of the law and of the facts of the case. The Apex Court further held that while doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. Further, the Apex Court in "BASAPPA VS. STATE OF KARNATAKA", (2014) 5 SCC 154, held that the reversal of a judgment of acquittal passed by a trial Court is permissible, only if the judgment of the trial Court is perverse and just because a different view is possible, as per the appellate Court, the findings of the trial Court should not be normally reversed.
11. Looking to the evidence on record, it is clear that the complainant, PW-1, has in his evidence fully supported the case of the prosecution and he has also identified the present respondent during test identification parade. The PW-2 i.e. Shankarlal Chhaganlal Patel, the owner of the vehicle, has also supported the case of the prosecution. He has also stated in his evidence that he was threatened by the accused and at the time of commission of offence, revolver was pointed on his head by the accused, however, this revolver is not recovered from the accused. Therefore, cumulative effect of evidence of PW-1 and PW-2 is that the respondent-accused no.1 has committed offence under Section 392 of IPC. I am unable to agree with the submission of Mr.Patel that there is no specific allegation against the accused no.1. It is observed by the trial Court that the complainant has not stated that the accused had committed Page 10 of 12 R/CR.A/1227/1999 CAV JUDGMENT the offence of robbery or that he was involved in commission of offence. However, from the evidence on record, it is clear that the accused was identified during test identification parade and such test identification parade was held in consonance with the provisions of the Evidence Act, therefore, it cannot be disbelieved. Only because the complainant could not identify the muddamal article, that would not permit this Court to agree with the view taken by the trial Court. The amount of robbery was found from the accused, therefore, the allegations against accused no.1 can be said to have been proved. In view of this, the offence alleged against the respondent, accused no.1, has been proved. Therefore, the findings recorded by the court below are perverse and the conclusions arrived at by the court below are contrary to the evidence on record as far as offence under Section 392 of IPC is concerned. Therefore, this is a case in which interference is called for at the appellate stage as far as offence under Section 392 of IPC is concerned, hence, this appeal is required to be allowed.
12. Since accused-respondent no.2 has died, appeal qua him stands abated. As far as accused-respondent no.1 is concerned, this appeal is partly allowed. The impugned Judgment and order dated 28.7.1999 rendered by the learned Additional Sessions Judge, Mehsana, Camp at Patan in Sessions Case No.294 of 1998, acquitting respondent no.1 of the offence under Section 392 of IPC, is hereby reversed. The accused-respondent no.1 is held guilty for commission Page 11 of 12 R/CR.A/1227/1999 CAV JUDGMENT of offence under Section 392 of IPC. However, acquittal of the accused-respondent no.1 for offences under Section 398 of IPC and Section 25 (1AA) of the Arms Act is confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith.
13. The matter is ordered to be listed on 3.3.2015 for hearing learned advocate for the respondent on the quantum of sentence.
Sd/-
(K.J.THAKER, J) *malek Page 12 of 12