KIRPALSING GURUBACHHANSING SIKLIGAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant who was original accused in the Sessions Case No. 114 of 2004 came to be convicted for the offences punishable under Section 395 and Section 397 of the Indian Penal Code ('ipc', for short) and was sentenced to undergo rigorous imprisonment ('ri', for short) for 10 years and fine of Rs. 500/-, in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 395 of the IPC and was sentenced to undergo RI for 7 years and fine of Rs. 500/-, and in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 397 of the IPC by judgment and order dated 31. 8. 2004 rendered by learned Presiding Officer, 3rd Fast Track Court, Panchmahals at Godhra.

(2.) THE prosecution case in nutshell is as under:-One Gopalsinh Jagatsinh Barad (PW-8) was serving as Circle Police Inspector (CPI), Lunawada, District Panchmahals from July 1988 to 13. 3. 2001 and he was transferred from Lunawada to Ahmedabad and on the date of incident i. e. on dated 21. 3. 2001, he was on joining leave and was at Lunawada. As per the prosecution case, Gopalsinh Barad was residing with his wife Hansaben Gopalsinh (PW-5) at Lunawada in Anand Park Society. As Gopalsinh was on joining leave, he returned home from Ahmedabad at about 10. 45 p. m. on 20. 3. 2001. After taking meals with his wife Hansaben, both retired to bed. Meanwhile, at about 10 p. m. two Gram Rakshak Dal (GRD) members named Parvatsinh Kesrisinh (PW-10) and Takhatsinh Ramsinh (PW-9), who were posted as watchmen, came on their duty on night round in Anand Park Society. It is the prosecution case that at about 4. 45 a. m. on 21. 3. 2001, some 8 to 10 unknown persons broke open the main door of the house and entered into the house. They were armed with sticks, swords, tamanchas etc. Due to this, both Gopalsinh and his wife Hansaben woke up. Persons, in all about 8 to 10 in number, entered into their bedroom and they were using abusive language and threatening words too. Gopalsinh was assaulted by one of those persons by pipe on head and 2 to 3 other persons also assaulted on him and he was not allowed to stand up. The key of the locker was demanded from his wife Hansaben. However, she did not give the same, and therefore, the locker was broken up. One of the persons snatched the mangalsutra, weighing about 3 tolas from Hansaben. Hansaben was also assaluted by sticks and pipes and by the blunt part of tamancha, on her forehead. During the course of this robbery, telephone wire was also cut off with the help of sword. As per the prosecution case, Rs. 32000/- in cash were looted and the golden ornaments like mangalsutra and chain, as well as certain silver vessels worth Rs. 33000/- were also looted. That, thus in all, together with cash amount, the property worth Rs. 65000/- was looted. Thereafter, while leaving the house those robbers, who were 8 to 10 in number, dragged inside the house those two GRD watchmen and while leaving the house, the main door was locked from outside and those robbers who had entered into the house, made their escape good. Thereafter, Hansaben raised alarming shouts, called the neighbors, who came and opened the door. Both the injured Gopalsinh and Hansaben were taken to hospital for treatment. In connection with this offence, Hansaben lodged the First Information Report ('fir', for short), which was registered by the police. The Investigating Police Officer conducted police investigation and recorded statements of witnesses. In presence of panchas, panchnama of the scene of offence was drawn, medical certificates of injured witnesses were obtained. One tempo bearing No. GJ-16u-6210 was recovered. After the completion of investigation, chargesheet was filed in the Court of learned Judicial Magistrate First Class, Lunawada. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions Judge, Panchmahals at Godhra, which was numbered as Sessions Case No. 114 of 2004. 3 The learned Additional Sessions Judge framed charge against the appellant-accused in connection with offence punishable under Section 395 and 397 of the IPC. Since the accused did not plead guilty and claimed to be tried, the prosecution adduced its oral and documentary evidence. After the conclusion of the evidence, the learned Judge recorded the further statements of the accused under Section 313 of the Code and the accused generally denied all the allegations leveled against him. The learned Additional Sessions Judge, after considering the evidence on record and after considering the arguments advanced on behalf of both the parties, delivered the impugned judgment on dated 31. 8. 2004 and came to the conclusion that the prosecution successfully proved the offences charged against the accused, beyond any reasonable doubt and accused came to be convicted for the commission of offences punishable under Section 395 and Section 397 of the IPC and awarded sentence to the accused, as stated above. On behalf of the appellant - accused, learned advocate Mr. Tirmizi submitted that the learned trial Judge committed serious illegality and irregularity in convicting the appellant accused in connection with these offences. That the entire case rests upon the question of identification of this accused and considering the depositions of first informant Hansaben and the witnesses Gopalsinh, Parvatsinh and Takhatsinh, it becomes quite clear that none of the witnesses had opportunity to see the face of the accused at the time of alleged incidence, so that subsequently they can identify the accused, either during the course of Test Identification Parade ('tip', for short) or in the Court during their depositions. That it has come in evidence that the accused had masked his face and there was no possibility by any of the witnesses to see the face of the accused, so that subsequently he can be identified. That there is no cogent and convincing evidence as to whether there was availability of any electric light in the house of the first informant so that the miscreants can be subsequently identified. That no description of any accused is given in the FIR. That the present appellant accused came to be arrested in connection with this offence on the basis of some statement given by one Mayasingh. However, neither the statement of said Mayasingh was recorded nor he was examined as a witness in this case. The accused came to be arrested on dated 29. 1. 2004 i. e. after about 3 years from the date of incident, as the incident had occurred on dated 21. 3. 2001. Even the witnesses have admitted in their depositions that during the course of incident, they had not marked any specific feature of the robbers. Despite this, as per the prosecution case, when the TIP was arranged in the office of Executive Magistrate, Mr. Chaturbhai Bariya (PW-11) on dated 4. 2. 2004, the first informant Hansaben and her husband witness Gopalsinh could identify the accused. That considering the deposition of Executive Magistrate Mr. Bariya (PW-11), he categorically admitted that when the accused was brought to his office by police, he did not ascertain as to whether prior to the TIP, the accused who was brought by police was seen by the witnesses or not. This witness further admitted that the accused was required to be brought to his chamber through open corridor of his office. Therefore, it is submitted that no proper precaution were taken by the Executive Magistrate Mr. Bariya to see that before the TIP, the accused is not exposed to the witnesses. That even there is a shaky evidence as to how the witnesses not only identified the accused, but, how those witnesses at the time of TIP remained present. That considering the deposition of one of the panch witnesses of the TIP panchnama, named Ayubkhan Gafoorkhan. He categorically admitted that he was stamp vendor in the office of the Executive Magistrate itself. Under such circumstances, selected panchas were engaged to draw the panchnama of TIP. That except the evidence regarding the identification of the accused, which is not free from doubt, there is no evidence whatsoever against the accused to connect him with the crime or even to connect him with other co-accused persons. Therefore, it is submitted that the appeal preferred by the appellant accused be allowed and the impugned judgment rendered by the learned trial Judge be set-aside and the appellant accused be acquitted.

(3.) ON behalf of the State of Gujarat, learned APP Mr. Mengdey supporting the impugned judgment and order rendered by the learned trial Judge submitted that the appellant accused is rightly convicted for the offence charged against him. That considering the depositions of first informant Hansaben and her husband Gopalsinh and witnesses Parvatsinh and Takhatsinh, the prosecution successfully proved that at the time of commission of offence of robbery, they had seen this accused and soon after the arrest of this accused, first informant Hansaben and witness Gopalsinh were called by Executive Magistrate Mr. Bariya to remain present in his office on dated 4. 2. 2004, and a regular TIP was arranged and this accused Kirpalsingh came to be identified by these witnesses. That therefore, by clear and cogent evidence adduced by the prosecution, the involvement of the accused in these offences is proved beyond reasonable doubt. That even the witnesses, during the course of their depositions, clearly identified the accused in open Court. There is no reason to doubt their testimonies. Therefore, the appeal preferred by the appellant accused deserves to be dismissed.