Gujarat High Court
Sahebkha Karimkha Malek vs The State Of Gujarat on 22 March, 2018
Author: S.G. Shah
Bench: S.G. Shah
R/CR.A/2308/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2308 of 2006
With
R/CRIMINAL APPEAL NO. 2310 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SAHEBKHA KARIMKHA MALEK
Versus
THE STATE OF GUJARAT
==========================================================
Appearance:
MR SS SAIYED(3690) for the PETITIONER(s) No. 1,2,3,4
MR.YOGESH LAKHANI with MR.KEDAR G. DAVE for the petitioner
MR.CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 22/03/2018
ORAL JUDGMENT
1. Heard learned senior counsel Mr.Yogesh Lakhani with learned advocate Mr.Kedar G. Dave for the appellant- Page 1 of 23
R/CR.A/2308/2006 JUDGMENT accused and learned APP Mr. Chintan Dave for the respondent-State. Perused the record and proceedings.
2. Both these appeals are arising out of the common judgment of conviction of the appellants in Sessions Case No.32 of 2004 and consolidated Sessions Case No.33 of 2004. Therefore, when appellants in both the appeals are convicted by the common consolidated judgment and order dated 06.12.2006 for the same incident though they have preferred the appeal separately, both the appeals are heard together and disposed of by this common judgment.
3. Criminal Appeal No. 2308 of 2006 is filed by the accused of Sessions Case No.32 of 2004, whereas Criminal Appeal No.2310 of 2006 is filed by the accused of Sessions Case No.33 of 2004.
4. Amongst appellants, in Criminal Appeal no. 2310 of 2006 appellant no.3 - Ramuji Shivaji Solanki has expired and therefore, appeal stands abated for such appellants.
5. Pursuant to order dated 09.02.2007 in Criminal Misc. Application No.14555 of 2006 passed by this Court, all Page 2 of 23 R/CR.A/2308/2006 JUDGMENT the appellants are on bail.
6. By impugned judgment and order dated 06.12.2006, the Additional Sessions Judge of Patan, has convicted all the appellants under Sections 395 and 120 B of the Indian Penal Code, 1860 and directed that all the appellants have to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5000/- and in default of which, there would be further simple imprisonment for a period of six months. In addition to above imprisonment under Section 395 of the Indian Penal Code, 1860 and appellants are also convicted under Section 120 B of the Indian Penal Code, 1860 with a direction to undergo rigorous imprisonment for one years and to pay fine of Rs.1000/- and in default to undergo simple imprisonment for a period of three months.
7. Being aggrieved by the such conviction, appellants have preferred these appeals on several amongst following grounds:-
i. Sessions Court has failed to appreciate the facts and circumstances and available evidence on record.
ii. Complaint has been lodged after a long gap of 45 Page 3 of 23 R/CR.A/2308/2006 JUDGMENT days from the date of incident, since incident occurred on 23.01.2003 whereas, complaint has been lodged on 10.03.2003 iii. Though complainant has approached the doctor only on 27.01.2003 i.e. after four days of incident. Doctor has admitted him for a period of 11 days. Thereby, if there is no requirement of any treatment for four days then there would be a presumption that there is no serious injuries to the complainant-victim and that he could have certainly filed a complaint at the earliest after incident but the complaint was filed after 45 days. iv. Material witness namely, Rasikbhai Ravjibhai Patel is not examined.
v. Complainant himself has turned hostile. vi. Except investigating officer, all other witnesses have also turned hostile.
vii. Procedure of recovery of muddamal was conducted after a lapse of three months without explaining such delay.
viii. There is no evidence at all, to confirm that muddamal is recovered from the premises owned or occupied by the appellants, since, no evidence Page 4 of 23 R/CR.A/2308/2006 JUDGMENT regarding the ownership either collected or proved on record.
ix. There is no evidence at all, to prove any kind of conspiracy.
x. There is no clarity that how and from where appellants are suspected for the commission of alleged offences and how they were arrested. xi. There is material contradiction regarding muddamal, currency notes in as much as it is disclosed in the complaint that currency notes were of denomination of Rs.500/- only whereas, recovery of currency notes were of different denomination including notes of Rs.500/-.
8. In addition to above grounds, it is also submitted that irrespective of evidence on record, the impugned judgment is bad in law because Sessions Court has for confirming the conviction blindly relied upon recovery of currency notes from the appellant-accused though such recovery is not proved at all during the trial. The Trial Court has failed to appreciate the citation referred before it in its true and proper perspective. Page 5 of 23
R/CR.A/2308/2006 JUDGMENT
9. The appellants were chargesheeted for the offences punishable under Sections 395 and 120 B of the Indian Penal Code, 1860 with an allegation that all the appellants have called upon the complainant to pay them if they want gold biscuit at cheaper rate by entering into conspiracy and pursuant to such conspiracy and common intention to deceit the complainant, called him near the Manpur Village on 22.01.2003. When complainant reached there with an amount of Rs.4,00,000/- at the Hotel of the accused no.5 (who is ultimately acquitted from all charges), where accused no.3 has asked the complainant to go towards village Jarusa of Santhalpur Taluka and therefore, complainant went there at the house of accused no.2. Thereafter, accused nos. 1 and 3 have also reach at such village and thereupon, they all had with witness Rahimkhan Sumenji Malek, resident of Sedla Taluka Patdi and Rasikbhai Ravjibhai Patel residing at Rajkot and witness Asharafkhan Amirkhan Malek residing at Jarusa had reached village Pipli of Radhanpur Taluka in hired jeep and from there, they went towards Chansama where accused nos.2, 4 and 5 had come in their jeep with other co-accused and therefore, complainant with witnesses Page 6 of 23 R/CR.A/2308/2006 JUDGMENT and accused as aforesaid took the complainant to the junction of Chansama - Becharaji three roads on 22.01.2003 at about 04:30 a.m. and thereupon, accused nos.2, 4 and 5 came in their car whereas, other accused (appellants of Criminal Appeal No.2310 of 2006) had came in a Marshal jeep shouting to caught someone and thereupon, the accused have snatched away the bag of Rs.4,00,000/- from the complainant and thereby, committed offence under Sections 395 r/w 120 B of the Indian Penal Code, 1860.
10. Such charges were framed after investigating complaint lodged by the complainant who is examined at Exh.18 as P.W. No.1. However, perusal of deposition of the complainant and the complaint at Exh.19 on the contrary discloses altogether a different story, in as much as, it seems to be absolutely unbelievable story when complaint is registered as late as on 09.03.2003 for the alleged incident, if at all took place on 23.01.2003, i.e. after 45 days. If we perused the complaint dated 09.03.2003 at Exh.19, it becomes clear that though complainant had disclosed all the minute details in his complaint after 45 days, there is categorically admission in his complaint that he wants Page 7 of 23 R/CR.A/2308/2006 JUDGMENT gold biscuit at cheaper rate, that makes us clear he was also not a gentlemen but wants to buy gold biscuit by improper or illegal way. It is also clear from the complaint that for getting such undue advantages, he started at 3 a.m. in the early morning with Rahimbhai Malik and Rasikbhai Patel whereas, for the actual incident, it is his statement in the complaint that when appellants in Criminal Appeal No.2308 of 2016 were asking for money, he has objected to handover the money and asked for delivery of gold biscuit first, when appellants told him that gold would be delivered on way towards Modhera but at that time, one Marshal jeep of white color has came from the Modhera side and some police personnel has come out the jeep and on seeing such police jeep, the appellants have snatched the bag of money from the complainant, though he was asking for the delivery of gold before money was handed over, but in between the scuffle, appellants have snatched away the bag having cash of Rs.4,00,000/- and run away from the place in their respective vehicles but at that time also instead of conveying to the police personnel who have reached there, it is admitted by the complainant that he also had quickly left the place with the Page 8 of 23 R/CR.A/2308/2006 JUDGMENT Asharafkhan in his jeep, they waited till morning in that field of Rayda after parking their vehicle nearby. Thereafter, it is alleged that when appellants have failed to return the money, though asked for, by the complainant, appellants have refused to refund money and hence, he lodged such complaint. However, delay of 45 days is quite unreasonable in lodging complaint in such a case and not taking help of the police personnel, who were chargesheeted in the same case and appellants before us in Criminal Appeal No.2310 of 2006 which makes it clear that in fact, complainant wants to take disadvantage of some improper and illegal activity but when he could not succeed, he has lodged the complaint as aforesaid, whereas surprisingly when complainant has been examined before the Court on oath, complainant has refused to identify any of the accused by saying that he could not identify those persons even if there are brought before him. Not only that, there is material contradiction and altogether new story is disclosed in examination-in-chief of the complainant, in as much as now he had come forward with a story that snatching of money bag took place prior to reaching of police jeep and when police jeep has Page 9 of 23 R/CR.A/2308/2006 JUDGMENT reached at the place, (with appellants of Criminal Appeal No.2310 of 2006), the complainant has hide himself in near-by the agricultural field and other accused ran away and therefore, complainant has also chased him for two hours i.e. between 4 to 6 a.m. in the morning but could not succeeded to catch all the accused and therefore, they went to their home and explain about the delay in complaint to the effect that he was having some problem with the pesticide in the house and field and therefore, he could not filed the complaint in time. Therefore, when he has changed his version of story in his examination in chief, he was declared hostile by the prosecution and during the cross examination, prosecution could not prove anything. Complainant has on the contrary categorically denied that he has intentionally not identified any of the accused who were with him or who were identified during the identification parade. He also have denied the suggestion that there is compromise between him and therefore, he is no telling truth. Whereas during the cross examination by the appellants-accused, the complainant admits that he has some enmity with Rahimkhan Malek and when he reached the house of the Rahimbhai with Rasikbhai, he Page 10 of 23 R/CR.A/2308/2006 JUDGMENT was not there at that time, he did not borrowed the money from the Rasikbhai executing any writing whereas he has admitted that he has borrowed the money from the one Prabhudan and conveyed Rasikbhai that he got money. Therefore, complainant himself has not only failed to support the case of the prosecution but there is material contradiction also in the statement of the complainant and therefore, version of the complainant cannot be relied upon to confirm the conviction because for conviction, there must be cogent evidence beyond reasonable doubt and conviction cannot be based upon assumption or presumption or irrelevant and doubtful evidence.
11. Only evidence left thereafter is of investigating officer. He has no option but to support the investigation. Therefore, if his evidence is not corroborated by any independent witnesses then based upon sole evidence of investigating officer alone, there can't be order of conviction of any accused irrespective of seriousness in charges alleged against the accused in the chargesheet. Evidence of H.R.Zala, Investigating Officer is at Exh.65. However, investigating officer has Page 11 of 23 R/CR.A/2308/2006 JUDGMENT no option but to admit that one of the panch namely, Versangji Hajaji Thakor is residing at distance of 15 to 17 kilometer from the place of incidence and therefore, there was no disclosure regarding reason for his presence at the said place. He has also to admit that he has not collected the evidence regarding ownership of the houses from where alleged recovery of currency notes was made, either from the Panchayat record to confirm the ownership of the accused or even by the recording statement of the neighbors of such houses to confirm that such house was either own or occupied by the concerned accused and concerned accused is residing in such house. Therefore, when investigating officer and Sessions Court has relied only upon the panchnama regarding recovery of currency notes and thereafter, when panch witness has turned hostile stating that they do not know anything about the panchnama, then conviction is certainly bad in law. Investigating officer has also admitted that he has not confirmed with the complainant that currency notes seized from the house of the accused are same currency notes which were robbed by the accused from the complainant.
Page 12 of 23
R/CR.A/2308/2006 JUDGMENT
12. Then remains only the evidence in the form identification parade before the Executive Magistrate wherein complainant has identified atleast two of the accused. However, when complainant himself has refused to identify such accused during stating that he cannot identify the accused, the evidence of identification parade being corroborating in nature only, it cannot be sole ground for confirming the conviction. One more thing is clear and obvious to be recollected here that so far as appellants of Criminal Appeal No.2308 of 2006 is concerned, there is no necessity of identification parade because it is admitted position that they were identified by the complainant in his complaint itself but even thereafter, when complainant has not only failed but refuse to identify the accused before the Sessions Court during the trial, identification parade has no evidentary value and there can't be conviction based upon such identification parade alone.
13. In this regard reference to the case of Dana Yadav V/s. State of Bihar reported in 2002 (7) SCC 295 by the learned Senior Counsel Mr.Lakhani for the appellant is certainly relevant and material. In such cited case the Page 13 of 23 R/CR.A/2308/2006 JUDGMENT Hon'ble Supreme Court of India has held that identification of an accused in T.I. Pared is though primary evidence, but not substantive one and such evidence can be used only to corroborate evidence regarding identification of accused by witness before the Court, which is substantive evidence. It is further held that if the victim mentions name of the accused in the FIR or he knows the prosecution witnesses, there is no need of T.I. Parade. In general, there cannot be order of conviction solely based upon such identification pared or panchnama drawn before the Executive Magistrate, because ultimately it is only corroborated piece of evidence and not substantive evidence.
14. List of witnesses and documentary evidence produced before the Sessions Court is well described in the judgment by the Sessions Court and therefore, it is not reproduce herein.
15. However, it is to be recorded that except the Investigating officer, all the witnesses including complainant has turned hostile and none of the witness including complainant has supported the prosecution Page 14 of 23 R/CR.A/2308/2006 JUDGMENT story regarding recovery of currency notes from the house of the appellant and panch witnesses to the T.I. Parade categorically deposed that they don't know anything except confirming that "yes, they have signed panchnama." Some of them have on the contrary confirmed that police has taken the signature on the blank paper, whereas some of them also confirmed that police has never took them to any place, whereas panchanama disclosed that panchas were taken at the house of the accused. Some of the panchas, also confirmed that they have never witnessed recovery of currency notes from the house of the accused and most of them have confirmed that police have took them where nobody was present. Whereas panchas to the T.I. Parade have also categorically deposed that they have signed at place where police and Mamlatdar has asked them to signed otherwise, they did not support the procedure of T.I. Parade and they don't know whether the complainant has identified the accused during the T.I. Parade or not. Even witness who were alleged to be present with the complainant, as per the version of the complainant, namely Rahimkhan Sumenji being P.W.No.14 at Exh.46, Hajikhan Karimkhan as PW No.15 Page 15 of 23 R/CR.A/2308/2006 JUDGMENT at Exh.47, Hasinaben Hajikhan Malek as PW No.16 at Exh.48, Habibkhan Rahemkhan Melek as PW No.17 at Exh.49, Lalji Nathuji as PW no.18 at Exh.51, Manibhai Dhanjibhai as PW No.20 at Exh.55 have also denied the knowledge of prosecution story and allegations in the chargesheet against the accused regarding incident of robbery by them from the complainant and the incident at all. Therefore, when witnesses who were otherwise with the complainant, are also denying occurrence of any such incident, the record confirms that there is no clinching evidence against any of the accused, so as to convict them as per the impugned judgment.
16. If we perused the impugned judgment, though it runs in 33 pages, it transpires from paragraph no.12 onwards that the Sessions Court has categorically recorded that accused have submitted in their further statement under Section 313 of the Criminal Procedure Code,1973 that P.I. has enmity with them because of their complaint for the death of Muslim people in firing after the Godhra incidence and therefore, such false case is registered against them. The Sessions Court has also recorded that all the witnesses have turned hostile Page 16 of 23 R/CR.A/2308/2006 JUDGMENT and complainant has also supported the defence version. However, the Sessions Court has relied upon the recovery of currency notes during the investigation and came to the conclusion that when accused have not prayed for such currency notes pending trial but complainant has prayed for such currency notes and it was handed over to the complainant at the relevant time and when accused have failed to oppose such order, there is a reason to believe that appellants-accused have involved themselves in the crime. Though panch witnesses of recovery panchnama has turned hostile, the Trial Court has recorded that deposition of investigating officer is sufficient enough to prove the recovery and therefore, confirmed the conviction of the appellants accused. However, the Trial Court has failed to realize that when complainant has, in his complaint categorically stated that he has borrowed an amount of Rs.4,00,000/- from his friend Rasikbhai Ravjibhai Patel, Rajkot, there must be some cogent and reliable evidence to prove such fact. However, it is an undisputed fact that Rasikbhai Ravjibhai Patel was neither examined by the prosecution nor his statement was recorded by the investigating officer, so as to confirm that amount of Page 17 of 23 R/CR.A/2308/2006 JUDGMENT Rs.4,00,000/- was readily available with the complainant, which was alleged to be looted by the appellants- accused. Complainant has not only disclosed that he has borrowed the amount from Rasikbhai but he admits that Rasikbhai was accompanied him at the time of incident also. In that case, recording of statement of Rasikbhai is must and in absence of evidence of such person before the Trial Court, the presumption needs to be drawn that there is no such evidence available with the prosecution agency.
17. Unfortunately, the Sessions Court has relied upon Section 27 of the Indian Evidence Act,1872 to consider that the recovery panchnama is properly proved, though Section 27 does not supports any such contentions. The Sessions Court has also committed an error in not discussing the citation referred by the accused- appellants before it, by simply recording that citations are with reference to Section 142 of the Indian Penal Code, 1860 and therefore, they are not relevant.
18. The Sessions Court has also failed to realize that there is no proper evidence to confirm that recovery is Page 18 of 23 R/CR.A/2308/2006 JUDGMENT made from the house of the appellant-accused only, when there is no evidence to that effect that such properties were owned or occupied by the appellants only and appellants were present at the time of panchnama, and when such evidence is not collected at all by the investigating agency whereas, panch witnesses of such recovery panchnama have turned hostile and therefore, it cannot be said that there is proper proof regarding recovery of amount from the appellants and that non claiming of such amount by the appellants confirms the commission of offence by them.
19. Similarly only because Executive Magistrate and Investigating officer support the activities of Identification Parade, when complainant does not identify the accused before the Court and when witness of the identification parade does not support so called activity of Identification Parade, the Sessions Court has committed an error in relying upon the such Identification Parade for convicting the appellants.
20. The suspicious circumstances, pointed out by the Trial Court, do not conclusively prove that the appellants Page 19 of 23 R/CR.A/2308/2006 JUDGMENT were the culprits who committed the offence. It is the duty of the prosecution in order to bring home the guilt of a person to prove, (1) that the muddamal was in the possession of the accused, (2) that some person other than the accused has possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was muddamal, the ingredients have not been satisfied in the present case, as the prosecution has not been able to bring home the guilt of the appellants by establishing it by means of cogent evidence that the robbed property was in the possession of the accused persons or that some person other than the accused had possession of the property before the accused got possession of it and further that the accused had knowledge that the property was robbed property. FIR by itself, is not a piece of evidence. It is only utilised for the purpose of either corroboration or for contradictions. It is settled position of law that in normal course, in the absence of corroboration by independent source, memorandum or seizure memos, could not be relied on. According to all seizure memos the alleged articles were recovered from the houses of the concerning appellants but it has not been proved Page 20 of 23 R/CR.A/2308/2006 JUDGMENT that the houses were in exclusive possession of the concerning appellant at the time of the alleged seizure and no other person was in occupation of such house. If some other persons were also in occupation of such houses then such seizure could not connect with the concerning appellant. On account of this, the testimony of Investigating Officer can not be relied for holding the conviction against the appellants, unless the same is corroborated with all particulars by the independent Panch witnesses. Hence, there is no option except to conclude that the alleged memorandum have not been proved and the trial Court has committed error in relying the same against the appellants.
21. In view of the aforesaid discussion, I have found apparent perversity and error in the impugned judgment as well as in conviction of the appellant. The same requires interference at this stage. In other words, the judgments of the trial Court is not sustainable under the existing law and liable to be set aside.
22. Therefore, though as many as 26 witnesses are examined and several documents are produced before Page 21 of 23 R/CR.A/2308/2006 JUDGMENT the Trial Court, when none of the private witness including complainant had supported the case of the prosecution, there cannot be conviction solely based upon the evidence of investigating officer only, more particularly, when there is clear allegation against him by the appellants that investigating officer was biased because of complaint filed by some of the accused regarding death of Muslim boys in firing. Similarly, only, because Executive Magistrate supports the activity of identification parade so, also doctor confirms the contents of the certificate issued by him, such piece of evidence alone would not confirm that offence if any at all committed, was committed by the appellants and appellants only and not by anybody else.
23. It is basic principle of criminal jurisprudence that evidence regarding existence of fact or occurrence of incident alone would not be enough to convict the person because conviction will otherwise disturb the constitutional right of the accused by imposing the sentence of confinement in the custody, for which, there must be cogent and reliable evidence beyond reasonable doubt that offence as alleged in the chargesheet is Page 22 of 23 R/CR.A/2308/2006 JUDGMENT certainly committed by the accused and that there is no doubt about it.
24. In view of facts and circumstances, there is substance in the submissions by the learned counsel Mr.Lakhani that conviction of appellants is bad in law and needs to be quashed and set aside.
25. Therefore, both the appeals are allowed as prayed for whereby consolidated judgment dated 16.12.2006 in Sessions Case No.32 of 2004 and 33 of 2004 by the Sessions Court, Patan is hereby quashed and set aside which result as into the quashing and setting aside the conviction of appellants and thereby, acquitting them from all the charges levelled against them in such Sessions cases and therefore, they are acquitted from all such charges. Since, appellants are on bail. Their bail bonds shall stand cancelled.
26. Record and proceedings are to be returned back to the Sessions Court.
(S.G. SHAH, J) VARSHA DESAI Page 23 of 23