POKHRAJ GOTARAM SHRIRAM JAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants-orig.convicts have preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 14th May 2004 passed by the learned Additional Sessions Judge and Joint District Judge, Fast Track Court No.6, Bharuch, in Sessions Case No.67 of 2003. The appellant no.1-Pokhraj Jat was the orig.accused no.1 and appellant no.2-Sajjansinh Vijaysinh Bagari was the orig. accused no.4 before the trial Court. The orig.accused nos.1 to 5 (including the present appellants) were held guilty for the charge of offence punishable under Sections 342, 365 and 392 of the Indian Penal Code. However, the orig.accused no.6-Mukesh Dhiraj Shah was held guilty for the charge offence punishable under Section 411 of the Indian Penal Code. Of course, no exact information is available to the learned counsel appearing for the appellant but as per Ms.Farhana Mansuri, none of the appellants other than present appellants have challenged the judgment and order of conviction and sentence; and only these two appellants have challenged the judgment and order of conviction and sentence by way of present appeal.

(2.) According to Shri Mansuri, the finding of the learned trial Judge is erroneous because the evidence as to the identity of both the appellants led by prosecution is full of infirmities and the witnesses examined to prove identification parade of the accused ought not to have been believed. The material witnesses i.e. about 14 witnesses, examined were treated hostile by the prosecution and, therefore, the prosecution has remained unsuccessful in bringing the crucial circumstantial evidence about their involvement in the crime in question. The police of District Bharuch had not arrested the accused persons but Ahmedabad Police had arrested them under some suspicion and thereafter, Bharuch Police appears to have implicated them in such a serious offence which was a crime undetected for Bharuch Police. It is the say of the prosecution that including the muddamal truck propety worth Rs.14,35,330/- were looted, that too on the highway and during night hours. So the offence was very grave and sensitive in nature and Bharuch Police was anxious to detect the crime at the earliest. It is submitted that both the appellants have been victimised by Ahmedabad as well as Bharuch Police.

(3.) According to Ms.D.S.Pandit, learned Additional Public Prosecutor, the prosecution has remained successful in bringing home the charge and there is no material evidence whereby any error can be said to have been committed by the learned trial Judge while appreciating the evidence led during the course of trial. It is a fact that about four accused persons out of six have not challenged the legality and validity of the conviction and sentence, of course, such inaction on the part of the other four accused persons would not go against the present appellants and the Court shall have to appreciate the case of the prosecution qua the orig. accused nos.1 to 4 but there is ample evidence of involvement of both these appellants in the crime, otherwise there was no reason for the Executive Magistrate to prepare a false panchnama of Test Identification Parade. In such or similar cases, the Police normally should try to arrange for Test Identification Parade and in the present case, it was arranged and both the appellants were identified by the witnesses who were called for the identification. None of the witnesses who were successful in identifying both the appellants had any animosity or previous grudge against them. The recovery of substantial part of muddamal at the instance of the accused persons involved in the offence is a relevant circumstance and keeping that fact in mind, the evidence of the Executive Magistrate, who arranged for Test Identification Parade, is required to be appreciated. If the panchas who were called by Executive Magistrate do not support the case of the prosecution, it was open for the learned trial Judge to rely upon the evidence of the Executive Magistrate who has stated that the witnesses who were called for Test Identification Parade had pointed out both these appellants as persons accused of the crime. Plain reading of the panchnama creates an impression that no procedural error was committed in arranging the Test Identification Parade. The suggestions made to a witness examined, including the Executive Magistrate does not create a picture that the arrested persons were shown to the witnesses who have identified them prior to arrangement of Test Identification Parade. According to the case of the prosecution, about three accused persons were even absconding at the time when the trial was going on. The learned trial Judge has observed that non-recovery of a country made pistol i.e. Tamancha, cannot be said to be an infirmity in the investigation because it was replied by the Investigating Officer that it is possible to recover muddamal weapon used in committing the offence from the absconding accused persons.