Gujarat High Court
Anandsinh Tilakdharisinh Rajput vs State Of Gujarat on 3 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 202 of 2003
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2024
In
R/CRIMINAL APPEAL NO. 202 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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ANANDSINH TILAKDHARISINH RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT SERVED for the Appellant(s) No. 1
DR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
NON BAILABLE WARRANT UNSERVED for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/07/2025
ORAL JUDGMENT
1. The appellant is accused No.1 of Sessions Case No.06 of 2000 wherein both the accused came to be convicted by learned Additional Sessions Judge, Navsari on 21.12.2002.
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2. The First Information Report (FIR) and the charge-sheet were against three accused, since accused Mukesh Brijram was found absconding, the trial was conducted against the present appellant-Anandhari Tilakdari and another accused-Maleshsinh as acccused No.1 and 2. Both the accused were convicted under Section 393 read with Section 34 of the Indian Penal Code (IPC) for 5 years rigorous imprisonment and Rs.1,000/- fine and in default of payment of fine, three months simple imprisonment.
3. The trial was under Sections 392, 397 and 34 of the IPC and Section 25(1B) of the Arms Act, 1959. The conviction order sentencing both the accused is under Section 393 with Section 34, while there is no punishment for the offence under the Arms Act. Section 393 and Section 34 of the IPC are extracted hereinunder :-
"Section 393. Attempt to commit robbery. Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
Section 34. Acts done by several persons in furtherance of common intention.-
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."Page 2 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025
NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined
4. The facts of the case in a nutshell are as under :-
The first informant-PW1-Harishchandra Jinalal Patel on 19.08.1999 as per his routine left his house at 7.00 in the morning from Village Mankad to Hond on his Hero Honda motorcycle for the purpose of depositing milk at the Milk Co-operative Society. While he was on his way, at that point of time, he saw three persons sitting on the bridge of Jarikotar. While returning back at 7.30, the first informant parked his motorcycle to collect fodder at the edge of the road beside the farm of one-Mr. Desai.
At that point of time, those three persons came walking near him. The first informant was locking his motor cycle, and was about to put the keys of the motorcycle in his pocket, suddenly one out of three took out a countrymade pistol (tamancha) and pointed it to the first informant and another person touched him with a knife and asked the first informant to hand over all his belongings. It is stated that when these people were searching his pockets, his father came there on his cycle and therefore, the complainant gathered strength and before, they could cause him any injury he stepped behind and shouted that there are 'thieves and looteras'. The complainant stated that as he shouted, all the three started his motorcycle and tried to run away but since it Page 3 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined was raining, the driver of the motorcycle could not control it and since the motorcycle skidded, all the three fell down. At that time, as per the complainant, Yogesh Bhagu Bhanabhai Babarbhai and his father Jinabhai as well as Shailesh were passing since they were also on their way to deposit milk in the Co-operative Society, with their support, they caught the escaping persons who had come for loot and after nabbing them, they took them to the farm belonging to Mukesh Ramanbhai, Dipak Ramanbhai and Rohit Ramanbhai which was at a distance of 200 meters. After taking them in the house, many people gathered there to see those persons who were caught. As per the complainant-Dipakbhai phoned the police and during that period, they enquired about the name and address of the apprehended persons. As per the complaint, one who had pointed the country made pistol was Mukesh, another who had placed the knife was Anandsinh Tilakdharisinh Rajput and the third Maheshsinh Umeshsinh Malar, all the three were residents of Silvassa.
5. Learned advocate for the appellant Dr. Hardik Raval stated that the star witness who is the first informant- PW1 cannot be termed as a true and reliable witness and the entire case put by the first informant is in the form Page 4 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined of contradiction amounting to omission. The witness in his cross examination admitted that his FIR was not recorded on the printed form and had admitted that there is no mention of the fact in the FIR that one person had a pistol in his hand and another had a knife in his hand. And there is no mention that the two persons demanded money from the first informant. Dr. Hardik Raval submitted that the first informant had not seen the accused person prior to the incident. The complainant was required to take the accused to the police and hand over them to police, instead of that, the complainant took the accused persons to the house of Dipakbhai, the witness admitted that no one was injured nor he had sustained any loss or damage. Dr. Hardik Raval submitted that the evidence of PW1 is not reliable and renders the prosecution case highly doubtful.
6. Referring to the evidence of PW2-the first informant, Bhanabhai Babarbhai, learned advocate Dr. Hardik Raval submitted that he is the person who had been on the Scooter passing by the road and on hearing the shouts of 'chor chor', he stopped his scooter and found three persons, out of that, one had a knife, another had a tamancha and third had nothing in his hand. PW2 states that one of the person was caught by the first informant.
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7. About PW3-the father of the informant-Jinabhai Khedabhai, learned advocate Dr. Hardik Raval submitted that his evidence is full of contradictions. He is not in a position to identify the accused nor he refers to any weapon in the hands of any of the accused, rather states that he had not seen any instrument with the accused. Learned advocate Dr. Hardik Raval thus, stated that the evidence of the father would prove that the son-first informant-PW1 had concocted the case of the accused having weapons in their hands and that the matter had taken a turn at Dipakbhai's house.
8. Learned advocate Dr. Hardik Raval further submitted that the first informant had taken the accused to the house of PW4-Dipak Ramanlal Desai, whose evidence further clarifies the fact that the complainant-PW1 had never informed that the three persons caught were trying to rob Page 6 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined the motor cycle and he had also admitted in the cross examination of not informing the police of handing over the tamancha after taking it from the accused.
9. Learned advocate Dr. Hardik Raval submitted that the panch or panchnama does not say of recovery of the weapons from the accused as contemplated under Section 27 of the Evidence Act. Further, learned advocate Dr. Hardik Raval states that the knife which has been described in the panchanama at Exhibit 19 is an old used kitchen knife with a plastic handle, while panchnana does not record that the said knife was produced by the present appellant, rather it is the complainant who alleges that the knife was with the present appellant. Thus, it is submitted that the knife has not come from the possession of the accused nor such fact is corroborated by the father of the complainant, who is the eye witness to the incident, but to fill up the gap such weapon is shown through PW2 who had no occasion to see the incident. PW2 though had seen the accused with the alleged attributed weapons but only could identify the present appellant as holding the knife while could not clarify in his examination-in-chief of the tamancha and does not emphatically state of such tamancha being there on the date of incident. Learned advocate Dr. Hardik Page 7 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined Raval thus, stated that the witness is a introduced person and is not a natural witness who further has also affirmed that there were no marks on the knife to identify the knife and such knife could be purchased from the market. Learned advocate Dr. Hardik Raval submits that the knife does not fall under the Arms Act and the evidence during the trial does not prove that such knife was recovered from the possession of the present appellant. Learned advocate Dr. Hardik Raval thus, submitted that it is a wrong conviction.
10. Countering the arguments, learned Additional Public Prosecutor Mr. Rohankumar Rawal while taking the Court through the evidence of the witnesses, submits that the charge at Exhibit 8 refers to the deadly weapon in the hands of the accused. The charge also refers to the knife, which has been proved by PW2 and further, the circumstances with the evidence of PW4-Dipakbhai clearly proves that the accused were taken from the place of incident to Dipakbhai's house which is corroborated and thus, there would not be a question of test identification parade or false implication. The complainant himself has identified the accused. The weapons had been recovered through the panchanama, the report of the Investigating Officer on which sanction was received for prosecution Page 8 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined under the Arms Act and on receiving the permission, the chargesheet had been filed. The FSL report corroborates the fact of the tamancha and live cartridges which proves the ingredients under Section 392 of the IPC which become punishable with Section 394 read with Section
34. The FSL Officer has been examined as PW7 and the PW9 is the Additional District Commissioner who had given the permission for prosecution. Learned Additional Public Prosecutor Mr. Ronakkumar Raval thus, supporting the judgment and the conclusion reached by the trial Court Judge submitted that the conviction and sentence is proper and the Appeal deserves to be dismissed.
11. Having heard the learned advocates of both the sides, it is required to be noticed that the charge framed below Exhibit 8 was against the present appellant- Anandsinh Tilakdhari Rajput and No.2-Umesinh Maheshsinh (Ketarmukiya Malar). The main accused who was alleged to be holding the tamancha Mukesh Brijram was found absconding, and thus the case was kept pending against him, as ordered in the judgment.
12. As per the charge on 19.08.1989 at about 7.30 in the morning, on the outskirts of Village Hond, opposite the farm of Desai on the public road, both the accused Page 9 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined as well as the absconding accused in furtherance of their common intention, without pass permit, wielded with deadly weapons tamancha, cartridges and knife, by pointing and holding it against the complainant-Harish Patel, had tried to snatch the key of Hero Honda Motorycycle GJ-15-M-7385 valued at Rs.30,000/- and thereby, causing the loot, had committed the offences punishable under Sections 392, 393, 34 of the IPC and under Section 25(1)(b) of the Arms Act.
13. Section 392 of the IPC is for the punishment for robbery while Section 397 defines and punishes robbery or dacoity with an attempt to cause death or grievous hurt. The conviction is under Section 393 of the IPC which defines attempt to committ robbery. The learned trial Court Judge has not found actual robbery or any attempt to cause death or grievous hurt by way of robbery or dacoity. Robbery is defined under Section 390 of the IPC which is read as under :-
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When theft is robbery.- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
14. Section 393 punishes the attempt to commit robbery with rigorous imprisonment for a term which may extend upto 7 years and shall also be liable to fine. Here the appellant and co-accused have been sentenced to 5 years rigorous imprisonment and Rs.1,000/- fine and in default, simple imprisonment of three months. The sentence is read with Section 34 of the IPC.
15. In the case of Parasa Raja Manikyala Rao and Another v. State of A.P. reported in (2003) 12 SCC 306, Page 11 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined in Paragraphs 11 and 12 it has been held as under :-
"Section 34 really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co- conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result.
The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) Page 12 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply."
16. Common intention cannot be confused with same or similar intention. To constitute common intention it is necessary that intention of each one of them be known to the rest of them and shared by them. It is difficult to prove the intention of an individual and therefore, it is all the more difficult to show the common intention of group of persons. However difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered as observed in the case of Parasa Raja Manikyala Rao (supra) with the reference of cases as under :-
"In Maqsoodan v. State of Uttar Pradesh reported in AIR 1983 SCC 126, it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhabha Nanda Sarma v. State of Assam reported in AIR 1977 SC 2252, it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to Page 13 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him."
17. All the three accused were found to be residents of Silvassa, as noted they were staying in Thakore Harimohan Chawl. The complainant observes at 7.00 in morning on 19.08.1999 while going to the Milk Co- operative Society, three of them were sitting on the pool of Jarikotar. The complainant states that he found them sitting there probably for some work and he therefore, went ahead. The evidence thus, suggests that three of the accused may have seen the complainant going towards the Milk Cooperative Society. There was no attempt by any of the three at that time to cause any robbery. The complainant states that he came back after 15-20 minutes for cutting grass in Desai's farm. As per his deposition, he had parked the motorcycle on the road near Desai's farm and at that time, the three had come there and had asked for money and had also asked to give whatever he had. So here the demand was of money. The complainant states that out of the three, one had tamancha, clarifying that it was country made pistol and further stating that the tamancha was pointed towards him and stated that the other person had raised Page 14 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined a knife. Both of them had demanded money. The third was without any weapon.
18. It is to be noted that the complainant was a Junior Clerk at the time of the complaint in Gujarat Electricity Board. It has not come on record that he himself was cutting the grass from Desai's farm. He had come there in the morning after depositing milk in the Co-operative Society. It becomes questionable as to why the accused would be near bridge of a pool in the morning at about 7 o'clock where in a village, the people would be going towards their farm or as the complainant going to the Milk Co-operative Society for depositing milk. They would not be carrying any money or valuables. The common intention as could be inferred was demand of money. It would be strange to consider that all the accused had the common intention to loot the complainant only. It is not the case of road robbery. The plan of the accused was only to rob the complainant could hardly be believed. There would not have been any preconcert or prearranged plan to rob the complainant. There would have been many vehicles passing through that road. It would not have been known to the accused, of complainant or for that matter any other person carrying any money or any valuable Page 15 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined thing with them. The deposition does not clarify of searching the person of the complainant for the money, but in the complaint, Exhibit 14, the PW1 stated that after asking for money, they searched his pockets, but at that time, from the opposite side, his father was coming on a cycle and therefore, seeing his father, he gathered strength. Placing reliance on the evidence of the complainant in the complaint regarding the act of searching his pockets, it could be seen that the common intention of the accused was to rob the complainant with his money. The circumstances and the facts of the case denotes that the complainant was not carrying any cash with him nor could the accused have assumed of any money carried in the pocket in the morning while it was the daily routine to deposit milk in the Society. The complainant does not state that he had received any money from Milk Co-operative Society. The presence of the father also becomes a doubtful aspect, but the complainant clarifies that his father had come there to cut grass and another person-Banabhai-PW2 who was going for purchase of milk was there and 2-3 ongoers were also there and therefore, he shouted at the three accused. He further stated that prior to his father reaching that place, all the three had taken his motorcycle and were trying to run away on the Page 16 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined motorcycle. He further clarifies that there was normal rain and the vehicle skidded and they fell down. Since all had gathered there, one was caught by them at the place and others were caught by the ongoers. He alongwith the three persons had gone to Village Hond, which was at a distance of 200 meters and took them to the house of Mukeshbhai and Rohitbhai. He informed about the incident and thereafter, Dipakbhai called the police. The deposition of the complainant shows that he had taken all the three accused, he is not stating that others had joined him at Mukeshbhai and Rohitbhai's house.
19. PW3-Jinabhai Dedabhai is the father of the complainant who does not remember the date of incident and states that at 7.00 in the morning his son-Harish had gone on his motorcycle to deposit milk. According to the father, he too after Harish had started for Village Hond to cut fodder from the farm of Mukeshbhai. According to him after returning from the Milk Society, complainant-son had parked his Honda near the adjoining farm. The father saw three persons were snatching Honda from son-Harishbhai. This witness categorically states that he had not seen any instrument in the hands of the accused. He refers to the vehicle getting slipped and he Page 17 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined was running after them and states that public had nabbed them at the spot, thereafter, all the three were taken to the house of Rohitbhai at Village Hond. From there, phone was made to the police and within 15 minutes police had come to the house of Dipakbhai, when he was present. The police took the accused to Chikli Police Station. He denies the suggestion that in his police statement, he had not informed the police that he saw three persons snatching near Harishbhai. He affirmed that the name of the apprehended accused were not enquired at the house of Dipakbhai. Thus, the glaring fact which comes on record by the evidence of the father is that he had not seen any weapon with the accused. Till the time, they reached the house of Dipakbhai, the name of the accused were not disclosed. The father of the complainant affirms that at the house of Dipakbhai, the names of the accused were not enquired. He also affirms in the cross examination that he was not called before the learned Executive Magistrate. The evidence clarifies that no test identifcation parade was conducted and at the house of Dipakbhai, the names of the accused were not disclosed. The police carried the arrested persons from the house of Dipakbhai.
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20. PW2-Banabhai Babarbhai is a person who was also travelling on that path for the purchase of milk. When he was near the farm of Desai, he heard shouts of there being thief, therefore, he had stopped his scooter. He states that they were unknown persons and one was holding a knife and other was holding a pistol. There was another man Hasubhai from Vakal who had caught one person while another had already left the place, and the third was trying to escape. He says that he caught the third person who was trying to escape from the place, who had knife in his hands and that person was tall. PW2 further states that many persons had gathered there, they took them to Desai's farm, in the house of Dilipbhai Desai. He had identified the person who had knife in his hand before the police at the house of Dipakbhai. He assumed the escaping man as thief. He identified the knife which he said was in the hands of the present appellant. He does not remember as to what the police had enquired from the complainant- Harish, he had not gone to Chikli Police Station and does not know who else had gone with the complainant, and had no knowledge when the complainant had gone to Chikli Police Station. In the cross examination, he states that when the accused were trying to escape the place, he had reached there. So the evidence of the Page 19 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined witness clarifies he had not seen the actual incident. The only evidence that could become relatable is that he says that he has caught the present appellant when he was trying to escape the place and according to PW2, the appellant was having a knife in his hand. He identifies the knife, but says that such kind of knife are available in the market. He denies of any specific mark on the knife. He has also affirmed that the police had not called him before the Executive Magistrate.
21. What becomes important to note is that the police had not recovered the knife from the present appellant by way of panchnama. It is the complainant who had given the tamanacha to Dipakbhai. But who gave the knife to the police is unclear.
22. In the case of Wahid v. State of NCT of Delhi reported in 2025 (3) SCC 341, the appeal was preferred against the conviction under Sections 392, 397 and 411 of IPC and Section 25 of Arms Act, it was held by the Hon'ble Supreme Court in paragraph 14 as under :-
14. In cases where the FIR is lodged against unknown persons, and the persons made accused are not known to the witnesses, material collected during investigation plays an important role to determine whether there is a credible case against the accused. In such type of cases, the courts have to meticulously examine the evidence regarding (a) how the investigating agency derived clue Page 20 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined about the involvement of the accused in the crime; (b) the manner in which the accused was arrested; and (c) the manner in which the accused was identified. Apart from above, discovery/ recovery of any looted article on the disclosure made by, or at the instance of, the accused, or from his possession, assumes importance to lend credence to the prosecution case."
23. Dipakbhai Ramanlal Desai was examined as PW4 who says that he is a resident of Village Hond. His brothers are Rohitbhai and Mukesbhai. Rohitbhai is an agriculturist. His land is at the border of Vankal of Village Hond, adjoining to the road. It is a chikoo (sapota) farm. He knows the complainant since he collects the fodder from his brother's farm. The witness does not recollect the exact date of incident. He says that 8.00 in the morning, the complainant, his father and others had brought three persons. The complainant Harishbhai had informed him that three were caught and they were trying to take away his motorcycle and that he has brought them to him. Harishbhai gave him the tamancha which he received from the accused. This witness does not clarify that Harishbhai had given him the knife nor it is coming from the evidence of PW2 that he had handed over the accused-the present appellant alongwith the knife to Dipakbhai.
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24. PW4 further states that after police had come to the house, had made a general enquiry and took the accused to Chikli Police Station. He himself had not gone to Chikli Police Station. He says that he had come to know about the name of the apprehended persons, they were Mukesh, Anand and the third name he does not recollect. The fact here which requires mention is that as per PW2- Bhanabhai, one of the persons had already escaped the place. Who apprehended him or caught him does not get clarified in the evidence of Bhanabhai as according to him Hasubhai from Vankal had caught one person and the second person had run away and the third person who was trying to run was caught with the knife. The witness-PW4 identified both the accused as well as the tamancha in the Court, while prosecution had not shown the knife. The evidence does not become clear that PW2-Bhanabhai Babarbhai had handed over the knife to Dipakbhai nor is such a statement of PW2. The prosecution case is that the present appellant was holding the knife and he had put that knife on the person of complainant touching his body. The witness-Dipakbhai in the cross examination stated that before the police in his statement has not informed that the complainant- Harishbhai had informed him that the three persons who were caught were trying to take away his motorcycle Page 22 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined from him. He has not informed to the police that Harishbhai had recovered the tamancha from the accused. He had also not stated before the police in his statement that the tamancha given by Harishbhai was activiated by pulling the trigger and that he had handed over the tamancha to the police when the police had come there. He affirmed that he has no personal information as to what had occurred with the complainant Harishbhai and voluntarily said that Harishbhai had informed him. He had no occasion to visit Chikli Police Station. So here the allegation of complainant of accused trying to take away his motorcycle becomes doubtful. Had Dipakbhai known these all facts from Harishbhai, he would certainly have informed the police.
25. PW5 is the panch Hemantbhai Arvindbhai Desai. On 19.08.1999 he was called at the Chikli Police Station to remain as a panch, i.e. on the date of incident. Alongwith him was Rasikbhai Dalpatbhai Joshi. The arrested persons were there at the police station. He says that one of them was Mukeshbhai, while he does not recollect the names of others, but identifies that, they were from Bihar. He saws the weapons that were seized which he states to be a tamachana and a knife. He identifies the accused in the Court. He further states that Page 23 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined he was called at Vankali Bilimoria Road, which was the place of Dipakbhai's farm and according to him, that was place where the attempt was made to take away the Honda of the complainant. He also had been the panch for the place of incident, alongwith Rasikbhai. He has produced the panchnama of place of incident-Exhibit 21. This panch-PW5 does not state that the accused had produced the tamancha. It is not stated by him that the present appellant had produced the knife before him during the course of panchnama. The weapons were lying at the Police Station. He affirmed in the cross examination that knife would be available from the market, identifies the tamancha as O.K. 96 engraved on it. During the course of deposition, he was asked to read the writing on the tamancha and he stated that it was not 96, but could be read as 99. And for the identification of knife, he says that it was of plastic handle and such knife are used for cutting vegetables. He also said that there was no identification of the accused before the Executive Magistrate and further, stated that on Panchnama-Exhibit 19 there was no sign or thumb impression of the accused.
26. Section 27 of the Evidence Act is on the principle that if the confession of the accused is supported by Page 24 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined discovery of a fact, the confession may be presumed to be true and not to have been extracted. If certain facts are deposed by the accused before the panchas and on the consequences of the information so received, some discovery is made from the accused person in police custody and if such information whether it becomes confession or not since it relates distinctly to the facts thereby discovered may be proved. The object of section 27 is to admit evidence, which is relevant to the matter under investigation namely, the guilt of the accused and not to admit evidence, which is not relevant to that matter. The discovery of a material object is of no relevance to the question, whether the accused is guilty of the offence charged against him unless it is connected with the offence. Therefore, the connection between the offence and the thing discovered may be established by evidence. Section 27 requires that (a) there must be information; (b) it does not matter whether the information amounts to confession or not; (c) that person must be in the custody of a police officer; (d) in consequence of the information a fact must be deposed to as discovered and (e) in such a case so much of the information as relates distinctly to the fact thereby discovered may be proved.
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27. Here, in this present case, the panchnama Exh.19 would have no relevancy, as it does not fall under Section 27 of the Evidence Act. It does not cover ingredients necessary to prove the fact as required under this section. The Investigating Officer is not obliged to obtain the signature of the accused in any statement attributed to accused while preparing the seizure memo for the recovery of any article covered by section 27 of the Evidence Act, and if any signature has been obtained by him, there is nothing wrong or illegal about it and it could not be said that the signature of the accused in seizure memo would vitiate the evidence regarding recovery.
28. Here, in the present matter, the weapons are not coming from the custody of the accused. The complainant had handed over the Tamancha to Dipakbhai and Dipakbhai had given the Tamancha to the Police. It was deposed by Dipakbhai that complainant Harishbhai had given the Tamancha, which he had procured from the accused. So, at the house of Dipakbhai, the presence of Tamancha is shown, police had also come there, but no panchnama was drawn at the house of Dipakbhai. The panchnama, which is shown as Exhibit 19, was drawn on Page 26 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined the same day i.e. on 19.08.1989 between 9.50 to 11.45 hours. The panchnama, which had been drawn was of O.K.96 and the cartridge having mark as B.M.M99, while panch had read the number on the Tamancha as 99 and not 96.
29. The report of the F.S.L. was put in evidence at Exhibit 28. The F.S.L. Officer - Surenderkumar Pursotambhai Pratiwala was examined as P.W.7, who has referred to receiving of five sealed parcels. As per the F.S.L. Report, parcel-A is one country made handgun having barrel of length about 16.2 cms. Parcel A/1 is .303 inch of O.K. rifle cartridges having copper jacketted bullet. Parcel-B contain four cartridge marked as Exh.B1, B2, B3 and B4 referred as .303 inch of O.K. rifle cartridge each having copper jacketted bullet. Parcel- C contain 8mm K.F. rifle cartridge case having indentation mark on its percussion cap. The result of the examination was noted for Exh.A as country made handgun capable of chambering and firing .303 inch rifle cartridge. Residues of fired ammunition nitrite and lead could be detected from the barrel washing (washing was taken prior to the laboratory test firing) of Exh.A thereby, showing that Exh.A has been used for firing prior to its receipt in the laboratory. Exh.A1, Exh.B1, B2, Page 27 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined B3 and Exh.B4 were five .303 inch O.K. rifle cartridge successfully test fired from Exh.A in the laboratory. The Report shows parcel Exh.C one fired cartridge case of 8 mm K.F. rifle cartridge could not be chamber and fire from Exh.A. Hence Exh.C was not fired from Exh.A. So where was this cartridge fired and from which rifle does not get clarified. It is not the case of the complainant of any fire shot at the place.
30. Since the case was registered under the Arms Act, the permission of the District Magistrate Navsari, to prosecute all three accused was received on 14.12.1999. The order was produced during the trial at Exh.37 by R.D.C. of the District Collector by his evidence as P.W.8, Kiritkumar Dudhat refers to I-C.R. No.157/99 and deposed that the person from whom the country made Tamancha was received along with five live cartridge, was not having any pass-permit. He identifed the signature of District Magistrate R.R. Chauhan from the original letter and produced original letter at Exh.38.
31. P.W.6 - Sukhdevsing Shambhudan Bareth was senior Police Sub-inspector in the year 1999 at Chikli police station. His deposition is that on 19.08.1999, he had reduced the complaint in writing as given by Page 28 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined Harishchandra Jinabhai Patel. After writing the complaint, he made it read to the complainant and thereafter, he took his signature. The witness identified Exhibit 14.
32. Exhibit 14 is the hand written complaint before PW6-Sukhdev Bareth. PW6 identified his signature on Exhibit 14, and according to the complaint, he states that at Chikli Police Station I-Cr.No.157/99 was registered under Sections 392 and 393 of Arms Act and section 25(1B)(a) of the Arms Act. PW6 does not state the place at which Exhibit 14 was recorded. According to him, it was written by him as dictated by complainant. The complainant in his evidence stated that he had given his complaint at Chikli Police Station between 10.00 to 10.30 hours. If that had been so, then there was no necessity of PW6 to write Exhibit 14 on a blank paper. Exhibit 14 is preceded by a document of the said police in a blank paper, wherein on a blank paper, the time of incident is noted as 7.30 and the offence declared at 9.35 on 19.08.1995. The said document is not exhibited. On the top of the document, the C.R. No.I-157/99 as well as sections of IPC and Arms Act are noted. The margin of Exhibit 14 has an endorsement of the C.R. No. and sections of the said Act. PW6 further clarifies that after Page 29 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined registering the offence, he took charge of the investigation and thereafter, he had seized the weapons produced by the complainant procured from the accused at the police station.
33. Here too, the police, who had taken the charge of the investigation, has not followed the provision of Section 27 of the Evidence Act. The weapon, which was produced, was by the complainant himself. The father of the complainant does not state of seeing any weapons in the hands of the accused, rather the father as PW3 clarifies that he had not seen any instrument with the accused. The weapon does not get related to the accused, as attributed by the complainant.
34. According to PW6-Investigating Officer, in the early morning, a resident of Makad Village had phoned PSO and therefore, he had gone to the place in police jeep, he brought the accused in the jeep at the Police Station, after taking the charge of the investigation, he had recorded the statement of the witnesses and had drawn the panchnama of the place of offence on that very same day from 13.30 hours to 14.30 hours. It appears that the witness PW6 does not refer to the complaint under Section 154 of the Cr.P.C. Exhibit 14 is not the FIR in a Page 30 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined printed form as mandated under Section 154 of the Cr.P.C. The complainant's evidence is that he gave the complaint between 10.00-10.30 hours while the panchnama-Exhibit 19 is between 9.50-11.45 hours. If the evidence of the complainant is to be believed then the panchnama-Exhibit 19 was prior to the registration of the complaint. The document preceding Exhibit 14 is not put in evidence. It would have been necessary for the Investigating Officer to demonstrate as to why the C.R. No. was written on the plain paper which bears his signature prior to the registeration of FIR at the Police Station. The Investigating Officer-PW6 refers to time of declaration of complaint in his deposition while has referred to Exhibit 14 which does not reflect any time of recording of the complaint. He has referred in his deposition of sending the tamancha and 5 cartridges and knife for the FSL report and the Despatch Note at Exhibit 25 do refer to old knife as Mark B at Serial No.5. The Biological Department Report-Exhibit 29 does not find any blood stains on the knife. The description of the knife is of 11.0 cm metal plate with the 9.5 cm long orange colour plastic handle. The plate had stains of rust.
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35. In the cross examination, the Investigating Officer affirms that the complainant has not stated in his complaint that Maheshsinh Umedsingh had shown him the tamancha on that day and also affirms that Jenabhai had not stated in the police statement that he had seen three persons snatching near Harishbhai. The Investigating Officer does not remember the statement of Dipakbhai on 19.08.1999. In the cross examination, he affirms that the weapons were produced by the complainant and also affirms that the weapons were not seized from the accused. He affirms that they are provided with prescribed form for complaint under Section 154 of Cr.P.C. and affirms that the complaint- Exhibit 14 is on plain paper and denies the suggestion that the complaint has not been recorded under Section 154 of the Cr.P.C. He also affirms that there is no endorsement on Exhibit 14 that the complaint was read over to the complainant and for that purpose, signature was taken on it. He has also affirmed that there was no test identification parade before the Executive Magistrate and on personal search of the accused, nothing was found from them. He also affirmed that the accused were not arrested from the place of incident. The Investigating Officer was also brought to notice of the endorsement in the margin of Exhibit 14. The witness Page 32 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined clarifies that the endorsement was made on Exhibit 14, after recording the complaint under Section 154 of the Cr.P.C.
36. The complaint recorded under Section 154 of Cr.P.C. is not produced in evidence. The statement of the Investigating Officer proves that the accused were not arrested from the place of offence. Exhibit 14 is on plain piece of paper which is not in the writing of the complainant. The weapons were given by the complainant and the evidence clarifies alongwith the panchnama that the same were not produced by the accused. The FSL Report of the knife shows that it is rusted and it is a vegetable cutting knife which is easily available in the market or in the kitchen. The prosecution has failed to prove the case beyond reasonable doubt. The case itself is doubtful. The recovery of weapons is not proved.
37. The learned trial Court Judge has failed to appreciate the fact that the tamancha and knife has not come from the possession of the accused. There is no statement of the accused in the panchnama of producing the knife. The witnesses all throughout have stated that the tamancha was given by the complainant to Page 33 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined Dipakbhai-PW4. PW2 has failed to explain about the knife which he states to be in the hands of the present appellant. He does not clarify that he had handed over the knife to Dipakbhai. He only states that the knife was in the hands of the person who was caught on that day. The evidence of PW2 does not clarify that he had handed over knife to the police or to Dipakbhai. The case of prosecution becomes totally doubtful by the evidence of PW3-the father of the complainant-Jenabhai. He had not seen any weapons with the accused. He had stated that all the accused were snatching Honda from Harishbhai and while he himself has clarified that such facts of all the three snatching it from Harishbhai had not been stated before the Police, which the Investigating Officer affirms.
38. The fact of demanding the money or whatever valubable complainant had and having the intention of robbing him of the valuables is not proved by the complainant and the say of the complainant that the accused were trying to snatch away the Hero Honda does not find corroboration from his own father, who was the first person to reach the spot. The police had not found the weapons from the possession of the accused nor is there any panchnama under Section 27 of the Evidence Page 34 of 36 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:22:16 IST 2025 NEUTRAL CITATION R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025 undefined Act. The registration of the complaint in the police station under the prescribed form is not proved, the time of registration of FIR-Exhibit 14 is not proved by any documentary evidence. The learned trial Court Judge has failed to consider all these aspects. The trial Court had come to the conclusion that the offence under Sections 392 and 397 of IPC were not proved, as charge under Exhibit 8. While convicted the accused under Section 393, considering it as an attempt to committ robbery. The father of the complainant has not stated before the police that the accused were trying to snatch away the Hero Honda from his son, there is no other corroborative evidence of any independent witness to support the evidence of the complainant. Since the father had not seen any weapon in the hands of the accused, the element of theft to consider as robbery also does not get proved by any weapon being used to frighten the complainant of instant death or instant hurt or of instant wrongful restraint. The weapon as was attributed to the present appellant is a kitchen knife which was rusted, and no blood stains were found on it. The prosecution failed to even prove the attempt to commit robbery. It is not the case of the prosecution that putting the complainant under fear, he was induced to deliver the Hero Honda, to prove the case as extortion.
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39. Considering the overall facts and circumstances of the case, and the appreciation of evidence, this Court is of the opinion that the trial Court has committed error in convicting the appellant under Section 393 with Section 34 of the IPC. Therefore, the Appeal deserves to be allowed.
40. In the result, the Appeal is allowed. The judgment and order of conviction dated 31.12.2002 of the learned Additional Sessions Judge, Navsari in Sessions Case No.6 of 2000 is quashed and set aside qua the appellant. The appellant is acquitted of all the charges levelled against him.
41. Bail and bail bond, if any, stands discharged. The amount of fine paid, if any, be refunded to the appellant herein. Record and proceedings, be sent to the concerned Trial Court forthwith.
42. The connected Criminal Misc. Application stands disposed of accordingly.
Sd/-
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