Gujarat High Court
Gautam Ghevarchand Jain vs State Of ... on 31 August, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/144/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 144 of 2009
With
CRIMINAL APPEAL NO. 176 of 2009
With
CRIMINAL APPEAL NO. 177 of 2009
With
CRIMINAL APPEAL NO. 434 of 2009
With
CRIMINAL MISC.APPLICATION NO. 2609 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
====================================
1 Whether Reporters of Local Papers may be allowed to YES see 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 NO law as to the interpretation of the constitution of India, 1950 or any order made thereunder?
==================================== GAUTAM GHEVARCHAND JAIN....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ==================================== Appearance:
In Cr.A. Nos. 144, 176 and 177 of 2009:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1 MR. MANOJ T DANAK, ADVOCATE for the Appellant(s) No. 1 MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1 Page 1 of 32 HC-NIC Page 1 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT In Cr.A. No. 434 of 2009:
MR. ASHISH M. DAGLI, ADVOCATE for the Appellant(s) No. 1 MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1 MR YATIN SONI, ADVOCATE for the Opponent(s)/Respondent(s) No. 2 - 3 In Cr.MA No. 2609 of 2012:
MR. MANOJ T DANAK, ADVOCATE for the Appellant(s) No. 1 MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s) No. 1 ==================================== CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 31/08/2016 COMMON CAV JUDGMENT
1. Since all these appeals as well as Criminal Misc. Application relate to the same accused, they were heard together and are being decided by this common judgment and order.
2. Present appeals and the Criminal Misc. Application have been filed by the original accused as well as the original complainant, details of which are as under:
Cr. SC Filed by J&O dtd. & Offence Sentence Remarks A/ No. passed by CrMA 144/ 281/ Ori. 08/12/2008 328 IPC SI for 7 yrs and fine of 2009 2007 Accused Rs.500/ in default SI passed by for 7 days.
Ld. 5th ADJ,
Surat. 379 IPC SI for 1 yr and fine of
Page 2 of 32
HC-NIC Page 2 of 32 Created On Fri Sep 02 03:29:05 IST 2016
R/CR.A/144/2009 CAV JUDGMENT
Cr. SC Filed by J&O dtd. & Offence Sentence Remarks
A/ No. passed by
CrMA
Rs.500/ in default SI
for 7 days.
176/ 113/ Ori. 26/12/2008 328 RI for 10 yrs and fine of
2009 2007 Accused r/w. 34 Rs.2,000/ in default RI
passed by IPC for 1 year.
Ld. ADJ,
Bharuch. 379 IPC RI for 3 yrs and fine of
Rs.500/ in default RI
for 6 months.
177/ 112/ Ori. 26/12/2008 328 IPC RI for 10 yrs and fine of
2009 2007 Accused Rs.2,000/ in default RI
passed by for 1 year.
Ld. ADJ, 379 IPC
Bharuch. RI for 3 yrs and fine of
Rs.500/ in default RI
for 6 months.
434/ 112/ Ori. 26/12/2008 328, For deletion
2009 2007 complai 379 IPC of condition
nant passed by No. 3 of the
Ld. ADJ, J&O.
Bharuch.
2609/ Ori. For
2012 Accused concurrency
of sentence.
3. Filtering the unnecessary details, the facts of the prosecution cases are as under:
3.1 Criminal Appeal No. 144 of 2009 (Sessions Case No. 281 of 2007): On 08/12/2006 at about 15:45 hours at Surat Railway Station, on Platform No. 4 in Bhusaval Passenger train, when complainant - Sanad Prasad Omprakash Sharma was on board, the accused allegedly started talking with him and thereby, earning his trust, made the complainant eat some dopes by mixing in tea and when the complainant had become Page 3 of 32 HC-NIC Page 3 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT unconscious, he stole a bag containing the goods worth Rs.16,200/ and thereby, committed the offences punishable under Section 328 and 379 of the IPC for which, a complaint came to be lodged.
3.2 Criminal Appeal No. 176 of 2009 (Sessions Case No. 113 of 2007): Between 01/07/2006, 21:40 hours and 02/08/2006, 00:30 hours in Lokshakti Express train, in general coach when complainant - Pravinbhai Shyamji Katpara was on board, the accused allegedly started talking with him and thereby, earning his trust, made the complainant eat some dopes in biscuits and when the complainant had become unconscious, he stole the goods worth Rs.1,11,000/ belonged to the complainant and then fled away from there and thereby, committed the offences punishable under Section 328, 379 and 34 of the IPC for which, a complaint came to be lodged.
3.3 Criminal Appeal No. 177 of 2009 (Sessions Case No. 112 of 2007): On 26/03/2006, when complainant - Darshnaben Kishorbhai Lakhawala was travelling in Coach No. S7, Seat No. 9 in Saurashtra Janata Express and on board, at about 00:30 hours at Bharuch Railway Station, the accused allegedly Page 4 of 32 HC-NIC Page 4 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT sprinkled spray containing dopes due to which, the complainant had become unconscious and thereafter, stole a goods bag worth Rs.94,200/ belonged to the complainant and then fled away from there and thereby, committed the offences punishable under Section 328 and 379 of the IPC for which, a complaint came to be lodged.
3.4 Criminal Appeal No. 434 of 2009 (Sessions Case No. 112 of 2007) has been filed by the original complainant seeking deletion of condition No. 3 in the impugned judgment and order, whereby, the trial Court has ordered to return the gold 'Rani' to the goldsmiths, which were seized from the goldsmiths during investigation on completion of the appeal period. 3.5 Criminal Misc. Application No. 2609 of 2012 has been filed by the applicant - accused seeking concurrency of sentences imposed in all the aforesaid sessions cases.
4. Pursuant to the complaints, investigation was carried out. After investigation, chargesheets were filed and as the cases were triable by the Court of Sessions, they were committed to the Sessions Courts concerned. The trial Courts framed charge Page 5 of 32 HC-NIC Page 5 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence in each case. In order to bring home the charge against the accused, the prosecution examined several witnesses and also produced several documentary evidence in each case. At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code') were recorded in each case, in which, he pleaded not guilty and false implication. Thus, after recording abovereferred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid, by impugned judgments and orders, being aggrieved and dissatisfied with which, the accused has preferred Criminal Appeal Nos. 144 of 2009, 176 of 2009 and 177 of 2009 against conviction in the respective sessions cases and Criminal Misc. Application No. 2609 of 2012 for concurrency of sentence awarded in each case, whereas, original complainant - Darshanaben Kishorbhai Lakhawala has filed Criminal Appeal No. 434 of 2009 against the judgment and order in Sessions Case No. 112 of 2007 dated 26/12/2008 for deletion of condition No. 3 in the operative portion on page No. 17 of the judgment.
Page 6 of 32 HC-NIC Page 6 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT
5. For the sake of convenience, the parties are hereinafter referred to as per their original status.
6. Heard Mr. Manoj T. Danak, the learned advocate for the accused and Ms. Reeta Chandarana, the learned Additional Public Prosecutor for the State.
6.1 Mr. Danak, the learned advocate for the accused, submitted that the trial Courts have committed grave error in convicting the accused. It was contended by Mr. Danak that the judgments and orders of the Sessions Courts are against the provisions of law; the Sessions Court concerned have not properly considered the evidence led before them and looking to the provision of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offences alleged against the accused. He also took this Court through the oral as well as the entire documentary evidence in each case and submitted that taking into account the serious contradictions in the versions of the prosecution witnesses and the fact that there is nothing on record to establish that the accused was involved in the crime, the trial Courts have committed serious error in convicting the accused Page 7 of 32 HC-NIC Page 7 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT and requested that he may be given benefit of doubt or may be acquitted in view of lack of evidence and/or material contradictions in the same.
6.2 So far as Criminal Appeal No. 176 of 2009 (Sessions Case No. 113 of 2007) is concerned, the learned advocate for the accused submitted that the incident had occurred on 01/08/2006 in Lok Shakti Express train and the Bharuch Railway Police had started investigation, however, since they could not trace the accused, they filed the 'A' summary report before the concerned Court below, which was accepted. However, it transpires that while the appellant - accused was in custody in connection with another case before the Valsad Railway Police, he allegedly confessed the present offence and relying on the said confession only, he was implicated in the present case and the learned trial Judge also convicted him. He submitted that as per the settled legal position, the confession made before the police is not admissible in the evidence against the accused. In support of his submission, he relied upon decisions of the Hon'ble Apex Court in the cases of Aghnoo Nagesia Vs. State of Bihar, reported in AIR 1966 SC 119 and Kashmirasinh Vs. State of M. P., reported in AIR Page 8 of 32 HC-NIC Page 8 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT 1952 SC 159. He further submitted that in the case on hand the recovery panchnama and the arrest panchnama have not been proved by the prosecution beyond reasonable doubt and the learned trial Judge, only relying upon the TI Parade in context with the confession, convicted the appellant - accused and thereby, has materially erred. He further submitted that the incident is of 01/08/2006, while the complaint had been filed on 07/08/2006 without explaining any cogent reasons for the said delay. Besides, though the accused was in custody on 10/08/2007, the Test Identification Parade (TI Parade) was conducted on 11/08/2007 and nothing has come on record as to why the same was conducted belatedly. He submitted that such TI Parade is unfair and the evidence of the prosecution is unreliable. He relied upon a decision of the Hon'ble Apex Court in the case of State of Andhra Pradesh Vs. Dr. M. V. Ramana Reddy, reported in AIR 1991 SC 1938 and submitted that, in the said decision, the Hon'ble Apex Court has held that when there is unexplained delay in holding the identification parade, the evidence of the prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case, the accused is entitled to have the benefit of doubt. He further submitted that the explanation for delay in holding the TI Parade offered by Page 9 of 32 HC-NIC Page 9 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT the prosecution in the case on hand, is not trustworthy and hence, the appellant - accused be given the benefit of doubt and the learned trial Judge ought to have acquitted the appellant - accused. The learned advocate for the appellant - accused further submitted that in absence of any corroborative evidence, recovery is not proved. Even the prosecution witnesses have not supported the case of the prosecution and therefore, on the basis of untrustworthy TI Parade solely, in absence of any other direct evidence, conviction cannot be sustained. Moreover, he submitted that no medical evidence has been forthcoming on record and without having any opinion of medical expert and straightway relying upon the version of the complainant, the offence committed by the appellant - accused would not fall so far as offence punishable under Section 328 of the IPC is concerned. Making above submissions, the learned advocate for the appellant - accused submitted that present appeal deserves to be allowed and the appellant - accused is required to be set at liberty.
6.3 Now, so far as Criminal Appeal No. 177 of 2009 (Sessions Case No. 112 of 2007) is concerned, Mr. Danak, the learned advocate for the appellant - accused has made the identical submissions Page 10 of 32 HC-NIC Page 10 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT and hence, the Court deems it proper not to detail them. 6.4 So far as Criminal Appeal No. 144 of 2009 (Sessions Case No. 281 of 2007) is concerned, besides aforesaid identical submissions, Mr. Danak, the learned advocate for the accused, submitted that numerous infirmities are there in the evidence led by the prosecution and as such, the learned trial Judge has not considered the important aspect that all the panchwitnesses have not supported the case of the prosecution. Moreover, the panch of TI Parade has also not supported the panchnama of TI Parade and in spite of that, the trial Court has not properly appreciated that said evidence. He further submitted that so far as the complainant is concerned, he does not disclose the description of accused person and he has identified the appellant
- accused in casual and flimsy manner. In the TI Parade panchnama at exh. 12 and as per the deposition of PW8 - Kirtanbhai Chaturbhai Patel, the Executive Magistrate at exh. 22, it is clear that seven dummy members were called and on that aspect, a quite contradictory version has been forthcoming on record in the deposition of complainant - Sanad Prasad Omkar Prasad Sharma at exh. 26. As per the deposition of the complainant, during the course of TI Parade, 15 persons were Page 11 of 32 HC-NIC Page 11 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT there and thus, this is a glaring contradiction which has not been properly appreciated by the trial Court. Accordingly, in view of the aforesaid view of the matter, present appeal also deserves to be allowed.
6.5 In support of his submissions, the learned advocate for the appellant - accused relied upon the following decisions:
6.5.1 In Suleman and another Vs. State of Delhi through Secretary, reported in AIR 1999 SC 1707, more particularly, para 4;
6.5.2 In Chaturi Yadav and others Vs. State of Bihar, reported in AIR 1979 SC 1412, more particularly, para 4;
6.5.3 In State of UP Vs. Punni and others, reported in AIR 2008 SC 932, more particularly, para 9;
6.5.4 In Nasir Vs. State of UP, reported in AIR 2010 SC 1926, more particularly, para 3;
6.5.5 In Bhagwan Singh Vs. The State of Rajashthan, reported in 1976 CriLJ 713, more particularly, para 5, 6, 7 and 8;Page 12 of 32
HC-NIC Page 12 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT 6.5.6 In Kuldeep Singh Vs. State of Punjab, reported in 2011 CriLJ 488 rendered by the Punjab and Haryana High Court, more particularly, para 13, 14 and 15;
6.5.7 In Santosh Kumar and etc. Vs. State of Chhattisgarh, reported in 2006 CriLJ 1185 rendered by the Chhattisgarh High Court, more particularly, para 9 and 10.
6.6 So far as Criminal Misc. Application No. 2609 of 2012 is concerned, which is filed by the applicant - convict praying for concurrency of sentences awarded in each aforesaid sessions cases, Mr. Danak, the learned advocate for the applicant, submitted that the present applicant is the original accused in Sessions Case Nos. 112 of 2007, 113 of 2007 and 281 of 2007, which have been concluded in conviction of the applicant and different sentences of imprisonment have been awarded to the applicant - accused, as narrated herein above. He further submitted that, it is a fact that the applicant has been convicted in different sessions cases and different sentences of imprisonment have been awarded, however, he relied upon a Page 13 of 32 HC-NIC Page 13 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT decision of the Rajashthan High Court in the case of Kamal Kishore @ Chotiya Vs. State, reported in Laws (Raj) - 20091168, wherein, the Court had concluded in favour of the accused by ordered to run the different sentences awarded to him, concurrently and accordingly, in the case on hand, the facts being almost identical, he requested to allow the present application, more particularly, when, in his submission, the present applicant is the only breadwinner in the family and his parents are of old age and if the sentences are implemented as awarded, subject to the order passed in the aforesaid appeals, the whole family has to suffer the indirect punishment and under the circumstances, he requested the Court to show some leniency and club all the sentences of imprisonment in all the aforesaid sessions cases.
6.7 So far as Criminal Appeal No. 434 of 2009, filed by the original complainant is concerned, Mr. Dagli, the learned advocate for the appellant - original complainant, has mainly submitted that under Section 452 of the Code, when no hearing was given by the learned trial Judge before passing the order as to returning the gold ingots (sona ni rani), recovered from the respondent Nos. 2 and 3 during investigation and when on the basis of the Page 14 of 32 HC-NIC Page 14 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT complaint filed by the present appellant the investigating machinery had geared up and thereafter, the accused herein had been booked who is, as such, a habitual offender and during the course of investigation, it has come on record that the accused herein had sold the said ornaments belonging to the complainant to the respondents goldsmith and on his instructions, during the investigation they reached Ahmedabad and also reached to the shops of respondents goldsmiths situated at Manek Chowk and thereafter, called the panchas and panchnama was prepared. The present respondents - goldsmiths had melted the ornaments and made the ingots and the same had been handed over to the IO after following due procedure. Moreover, after the trial, the prosecution had succeeded and conviction was imposed upon the accused. Moreover, if the depositions of the goldsmiths namely Dipakbhai Rajendrabhai Choksi, exh. 16 and Vinubhai Chimanlal Soni, exh. 18, are perused, they have, as such, not supported the case of the prosecution and also not supported their statements, which were recorded during the course of investigation. Likewise, the panchs of the panchnama by which the muddamal ingots were recovered, have also not supported the case of the prosecution but the fact remains that at no point of time, the respondents herein had claimed the said ingots nor had they Page 15 of 32 HC-NIC Page 15 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT made any application before the trial Court seeking prayer to return the same after completion of the trial and under the said circumstances, as such, no clarity is forthcoming on record and accordingly, the said muddamal gold is required to be returned to the present appellant - original complainant. In support of his submission, he also relied upon a decision of this Court in the case of Ganchi Ibrahim Billy Vs. Ganchi Abdulla Mussa and Others, reported in 1992 (2) GLH 339.
7. As against this, Ms. Chandarana, learned Additional Public Prosecutor, for the State while supporting the impugned judgments and orders, contended that the offences have already been proved by the prosecution against the accused beyond reasonable doubt and barring one or two witnesses, all the prosecution witnesses have supported the cases of the prosecution and when, the trial Court has dealt with each and every aspect of the matters minutely and cogent and plausible reasons are accorded, this Court may not interfere in the appeals. She submitted that the present accused is a habitual offender and commits this kind of offences and several complaints by several passengers travelling in the trains have been lodged in different cities and eventually, during the investigation, the crimes in Page 16 of 32 HC-NIC Page 16 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT question have been detected by the investigating agencies and under the circumstances, no leniency should be shown to the accused.
7.1 So far as Criminal Misc. Application Mo. 2609 of 2012, filed by the accused praying for concurrency of sentence is concerned, the learned Additional Public Prosecutor further submitted that the accused may be a sole breadwinner of the family, but simultaneously, it is also a fact that the sentences awarded to him are in different crimes for which separate complaints have been lodged and in sessions cases, which cannot be clubbed, more particularly, when the accused is a habitual offender and the interest of public at large is at stake.
7.2 Moreover, so far as Criminal Appeal No. 434 of 2009, filed by the original complainant seeking deletion of condition No. 3 of the impugned judgment and order is concerned, the learned Additional Public Prosecutor submitted that from the evidence on record it appears that the accused had sold the muddamal gold to the respondent Nos. 2 and 3, the goldsmiths, of the present appeal (Criminal Appeal No. 434 of 2009) from whom the said gold was recovered during the course of investigation. Page 17 of 32 HC-NIC Page 17 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT Moreover, when the said goldsmiths as well as the panchas of recovery panchnama have not supported the case of the prosecution, under the circumstances, suitable order may be passed.
7.3 Per contra, Mr. Yatin Soni, the learned advocate for the respondent Nos. 2 and 3 in Criminal Appeal No. 434 of 2009 submitted that when the ingots were recovered from the respondents herein, the Court has rightly handed over the same to the present respondents, more particularly, because, as such, after the complaint, after a period of one and a half year, the alleged recovery of ingots had been made. Nothing has been proved by the appellant - original complainant that his ornaments were stolen and the same had been sold by the accused to the present respondent Nos. 2 and 3 herein. Moreover, the recovery panchnama has not been proved and there is no material evidence on record to prove that the accused had sold the gold to the present respondent Nos. 2 and 3 and eventually, he requested to dismiss the present appeal, confirming the order of the trial Court ordering return of the ingots to the respondent Nos. 2 and 3 herein. In support of his submissions, Mr. Soni, has relied upon following decisions: Page 18 of 32
HC-NIC Page 18 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT 7.3.1 In Patel Keshavlal Venidas Vs. Kacharaji Nanaji Thakore and Others, reported in 1982 GLH 679, more particularly, the Head Note;
7.3.2 In Dharmendrasing Dolubha Zala Vs. State Bank of Saurashtra, reported in 1997 (2) GLR 919, more particularly, para 8;
7.3.3 In Mer Vaja Meraman Vs. State of Gujarat, reported in 1988 (2) GLR 1057, more particularly, the Head Notes and Catch Notes.
8. I have examined the matter carefully and gone through the evidence on record in each case. I have reappreciated and re evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court and also gone through the impugned judgments and orders.
8.1 So far as Criminal Appeal No. 176 of 2009 (Sessions Case No. 113 of 2007) is concerned, on going through the evidence of PW 1 - Pravinbhai Shyamji Katpara at exh. 10, the complainant, he has fully supported the case of the prosecution as well as Page 19 of 32 HC-NIC Page 19 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT supported the averments made by him in the complaint at exh.
11. Referring his crossexamination, nothing contrary to the case of the prosecution has come out. Likewise, PW2 - Dineshbhai Prabhudas Soni, exh. 13 from whom, muddamal gold of 35.6 mg. quantity was recovered, has been declared hostile and though not supported the case of the prosecution, but the fact remains that with a view to save his skin, he had not supported the case of the prosecution. Moreover, PW4 - Mukeshbhai Mansukhlal Jotaniya, exh. 18, who is the Executive Magistrate, who had conducted the TI Parade and prepared the panchnama at exh. 19 and PW5 - Kishorbhai Vasantbhai, exh. 21, who is the panch of TI Parade panchnama, have fully supported the case of the prosecution. Thus, considering the overall evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order in detail, I find that the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it and thereafter has come to such a conclusion, which requires no interference.
8.2 So far as Criminal Appeal No. 177 of 2009 (Sessions Case No. 112 of 2007) is concerned, I have gone through the evidence of Page 20 of 32 HC-NIC Page 20 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT PW1 - Darshnaben Kishorbhai, exh. 13, the complainant and the complaint given by her at exh. 14, the deposition of PW 2 Dipakbhai Rajendrabhai Choksi, exh. 16 from whom, muddamal gold of 17 mg. quantity was recovered, PW3 - Vinubhai Chimanlal Soni, exh. 18 from whom, muddamal gold of 22 to 24 mg. quantity was recovered, PW4 - Parsottambhai Haribhai Chotaliya, exh. 13, the Executive Magistrate who had conducted the TI Parade and PW5 - Mohamad Anish Kadar Patel, exh. 23, the panch witness of TI Parade panchnama and PW6 - Rajendrasinh Bhagvansinh Mahida, exh. 26, another panch witness of TI Parade panchnama and other prosecution witnesses and found support to the prosecution in full and considering the overall evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order in detail, no illegality and/or perversity has been found in the same and the Court is of the opinion that the conclusion arrived at by the learned trial Judge warrants no interference. 8.3 So far as Criminal Appeal No. 144 of 2009 (Sessions Case No. 281 of 2007) is concerned, it is a fact that the complainant has deposed in his deposition that 10 to 12 persons were there during the TI Parade but perusal of the deposition of the Page 21 of 32 HC-NIC Page 21 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT Executive Magistrate at exh. 22 reveals that over and above seven persons, the peon as well as two panchs and further officials were also present and in all 13 persons were there as per the deposition of the Executive Magistrate. So, I am of the view that the said contradiction is very minor one and is not capable of shaking the case of the prosecution in view of the depositions of the Executive Magistrate, exh. 22 and of the complainant at exh. 26, who have fully supported the case of the prosecution. It is also a fact that after the complainant reached the destination, the complainant being found in unconscious position by the police and hence, shifted to the hospital for treatment and certificate to that effect had also been issued, and placed on record. Mr. Danak, the learned advocate for the appellant had once submitted that, except medical certificate, nothing has been forthcoming on record, however, in my view, when the certificate is issued by a doctor, it is enough to prove that the concerned patient/person had been admitted on the very day and treatment was given to him and if further medical evidence is not on record from where the said medicine - AT12NG had been purchased by the accused which had made the complainant unconscious, is not proved because the medical store was permanently closed, that makes no difference so far as case on hand is concerned and Page 22 of 32 HC-NIC Page 22 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT accordingly, the said submission is without any merit. 8.4 Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matters or that the approach of the Courts below is vitiated by some manifest illegality or that the decisions are perverse or that the Courts below have ignored the material evidence on record. In that view of the matters, I am of the considered opinion that the Courts below were completely justified in passing impugned judgments and orders and I am in complete agreement with the reasonings given and the findings arrived at by the trial Courts concerned and therefore, not inclined to disturb the same. I have also gone through minutely the decisions relied by the learned advocate for the accused, referred to herein above. There cannot be any dispute as to the ratio laid down in the same, however, in the facts and circumstances of the case and the evidence on record, the same are of no help to the accused inasmuch as, from the aforesaid discussion it is clear that the accused is a habitual offender and involved in many such crimes and any undue leniency may directly affect the public at large, besides that fact that the prosecution has proved the cases against the accused beyond reasonable doubt. Accordingly, the appeals filed by the Page 23 of 32 HC-NIC Page 23 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT accused against conviction deserve to be dismissed. 8.5 So far as Criminal Appeal No. 434 of 2009 filed by the complainant for deletion of condition No. 3 in the impugned judgment and order is concerned, I have considered the above referred rival submissions made by the learned advocates for the parties as well as gone through the decisions relied by the learned advocates for the appellant - original complainant as well as the learned advocate for the respondents. It is pertinent to note that while passing the order of conviction, the trial Court has passed the order to the effect to return the seized gold ingots to the respondent Nos. 2 and 3 herein but no specific reason has been assigned for passing such an order. Moreover, it appears that direct nexus related to the ingots, as such, appears not to have been proved, more particularly, because, the respondent No. 2 and 3, the goldsmiths have not supported their statements and if at all, as per the say of the respondent Nos. 2 and 3, due to threat given to them by the police they had made ingots by melting the ornaments of their wives, is not believable, for the reason that a businessman, that too a goldsmith, cannot be expected to remain silent if at all any threat, alleged to have been administered by the police during investigation. Moreover, they Page 24 of 32 HC-NIC Page 24 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT could have very well approached the higher police official like the Police Commissioner and made the representation regarding the same but the same has not been done by them for the reason best known to them, which creates doubts in their case, projected as above. Under the circumstances, I do not find force in the submissions made by the learned advocate for the respondent Nos. 2 and 3 that direct link between the article seized and stolen article must be established for the reasons referred herein above. Because the respondent Nos. 2 and 3 were not charged under Section 411 of the IPC and if at all no proceedings were initiated against them for dishonestly receiving stolen property, would not benefit the respondents in the issue related to muddamal in question, referred to above is concerned. In my view, the IO had no reason to falsely record the statements of respondent Nos. 2 and 3 and as discussed above, if at all any threat had been given by the police, the respondent Nos. 2 and 3, who are the goldsmiths and doing business in Manek Chowk, could have very well approached the higher police officials which they had not done. Moreover, on going through the decision relied upon by the learned advocate for the appellant - original complainant in the case of Ganchi Ibrahim Billy (supra), it is squarely applicable to the case on hand as in the similar set of facts, this Court has Page 25 of 32 HC-NIC Page 25 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT concluded in favour of the original complainant. Under the circumstances, I am of the view that when the present appellant
- original complainant had given the complaint, setting into motion the investigating agency and thereby, accused had been arrested, who appear to be the habitual offender and when the respondent Nos. 2 and 3 themselves have not supported their versions, the interest of justice would be served if the present appeal is allowed and an order to return the said muddamal ingots to the appellant herein - original complainant is passed and to that extent, the impugned judgment and order is required to be modified.
8.6 Now, so far as Criminal Misc. Application No. 2609 of 2012 filed by the accused praying for concurrency of the sentences awarded to him in aforesaid offences, is concerned, the learned advocate for the accused has submitted that the accused is the sole breadwinner of the family and his parents are aged and are unable to maintain themselves and prayed for some leniency by way of clubbing the sentences, which is opposed by the learned Additional Public Prosecutor by contending that the accused being the habitual offender and many cases have been levelled against him and when separate offences have been registered at Page 26 of 32 HC-NIC Page 26 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT different places and accordingly, after trial, he was convicted in each case, and under the circumstances, the Court should reject the application. In this regard, the decision relied upon by the learned advocate for the appellant - accused in the case of Kamal Kishor @ Chotiya (supra) may be referred to, in which it is observed as under:
"( 1. )The present criminal misc. petition under 482 Cr.P.C. is directed against the order dated 02.04.2009 passed by the District&Sessions Judge, Jaipur City, Jaipur in Criminal Misc. Application No. 828/2009 filed by the petitioner under Section 427 Cr.P.C., by which the Court below has dismissed the aforesaid application.
( 2. ) Brief facts of the case are that the petitioner vide judgment dated 19.04.2000 passed by the Special Judge, NDPS Cases, Jaipur in Sessions Case No. 20/1999, was convicted under Section 8/22 of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/ and the said judgment of the trial Court was subsequently upheld in the appeal filed by the petitioner on 25.11.2004. Further, the SLP filed by the petitioner from the jail was also dismissed by the Honourable Supreme Court. Similarly, vide judgment dated 14.05.2003 passed by the Additional Civil Judge (Jr. Division) & Judicial Magistrate, First Class No.17, Jaipur City, Jaipur in Criminal Case No. Page 27 of 32 HC-NIC Page 27 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT 479/2001, the petitioner was convicted under Section 3/25 of the Arms Act and sentenced to undergo simple imprisonment for one year with a fine of Rs. 1,000/. Against the said judgment, appeal was also filed by the petitioner but the same came to be dismissed vide judgment dated 29.10.2004. It is further submitted that in yet another criminal case i.e. Criminal Case No. 611/2001, the petitioner was convicted under Section 4/25 of the Arms Act by the Additional Civil Judge (Jr. Division)&Judicial Magistrate, First Class No.17, Jaipur City, Jaipur vide judgment dated 21.05.2003 and sentenced to undergo simple imprisonment for one year with a fine of Rs. 500/. Against the said judgment the petitioner had preferred an appeal but the same was dismissed by the Appellate Court vide judgment dated 05.10.2004. It is contended that the petitioner filed an application under Section 427 Cr.P.C. before the District&Sessions Judge, Jaipur City, Jaipur praying therein that the sentence awarded to the petitioner in the aforesaid criminal cases, be ordered to be run concurrently, but the said application has been rejected by the Court below vide order impugned dated 02.04.2009. Therefore, this misc petition has been preferred by the petitioner on the ground that as per the provisions of Section 427 Cr.P.C., when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court Page 28 of 32 HC-NIC Page 28 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT directs that the subsequent sentence shall run concurrently with such previous sentence. These provisions have not been properly considered and examined by the Court below while rejecting the application of the petitioner.
( 3. ) It is submitted that in the case of Mukhtiar Singh Vs. State, reported in 1995 Cri.L.J. 2057, the High Court of Jammu & Kashmir held that where a convict, out of ignorance or because of default of his counsel or for any other reasons may omit to ask for running of the sentences concurrently in the subsequent trial, the High Court possess the inherent powers to pass appropriate directions to run the sentences concurrently and while doing so, it would not be altering any judgment or sentence in the process. Learned counsel for the petitioner also placed reliance on the judgment of this Court passed in the case of Karamveer Vs. State of Rajasthan, reported 2006(3) WLC(Raj.) 386, wherein this Court while dealing with the provisions of Section 427 Cr.P.C., held that Conviction for two different offences committed in same transaction Sentences under section 395 Penal Code and under sections 3, 25, 27 of Arms Act directed to run concurrently. He further placed reliance on the judgment rendered by this Court in the case of Taslim Ahmed Vs. State of Rajasthan, reported in 2006(2) R.C.C. 1058, wherein the coordinate Bench of this Court has held as under: (1) Provisions of subsection(1) of Section 427 CrPC are merely directory and not mandatory Retributive theory of punishment no longer holds good, reformative Page 29 of 32 HC-NIC Page 29 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT theory is at fore front The purpose is no longer to take revenge on the person but to reform the offender and to bring him back to main stream of society Long periods of incarceration do not achieve any purpose except to add to frustration and pessimism to the life of the accused Right of accused is as important as the right of the free citizen, therefore, punishment has to be humane and purposeful rather than being draconian and absolute Keeping the accused incarcerated for 16 years for petty offence of theft would not do justice to him. (2) Relying on the cases referred, the sentences awarded in six cases are directed to run concurrently and not consecutively In case, the petitioner has completed the sentence of punishment, he should be set at liberty forthwith."
8.7 In view of the above decision and considering the overall facts and circumstances of the case on hand together with the facts that the applicant is the sole breadwinner of the family and his parents are aged besides the long period of incarceration may not achieve any purpose except to add frustration and pessimism to the life of the accused, I am of the view that present application being Criminal Misc. Application No. 2609 of 2012 deserves to be allowed in the interest of justice and the sentence imposed upon the present applicant in all the aforesaid sessions cases be ordered to run concurrently.
Page 30 of 32 HC-NIC Page 30 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT
9. In view of the aforesaid discussion, all the captioned appeals, filed by the appellant - accused against conviction, fail and are dismissed accordingly and the impugned judgments and orders therein, are hereby confirmed so far as conviction and sentence imposed upon the appellant accused is concerned. Criminal Misc. Application No. 2609 of 2012, filed by the applicant - accused, praying for to run all the sentences concurrently, is hereby allowed and the sentences imposed upon the applicant accused by the trial Courts concerned in the aforesaid respective Sessions Cases, are hereby ordered to run concurrently. The Criminal Appeal No. 434 of 2009, filed by the original complainant seeking deletion of condition No. 3 of the impugned judgment and order, is also allowed and the impugned judgment and order dated 26/12/2008, passed by the learned Additional District Judge, Bharuch in Sessions Case No. 112 of 2007 is hereby modified to the aforesaid extent and the condition No. 3 of the impugned operative order is modified to the extent that the muddamal gold ingots, which were recovered during the course of investigation, shall be returned to the appellant herein
- original complainant - Darshnaben Kishorbhai Lakhawala, on due verification and following due procedure. Registry to return Page 31 of 32 HC-NIC Page 31 of 32 Created On Fri Sep 02 03:29:05 IST 2016 R/CR.A/144/2009 CAV JUDGMENT the R&P to the trial Courts concerned, forthwith.
[ G. B. Shah, J. ] hiren Page 32 of 32 HC-NIC Page 32 of 32 Created On Fri Sep 02 03:29:05 IST 2016