UMESH SHASHIKANT MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) is filed against the judgment and order of conviction and sentenced passed by the learned Sessions Judge, Navsari in Sessions Case No.217 of 1998 dated 05.04.2000.

(2.) The premise on which the present appellant is submitted is the FIR lodged at Mumbai Central on 29.01.1998, at about 19:00 hrs, stating inter alia that two eye-witnesses who happened to be niece had boarded Valsad Mumbai Fast Passenger in the early hours from Valsad going towards Mumbai and when the train left Pardi railway station and was running between Patan and Udwada Railway station, at about 5:25 hrs, one unknown person aged about 30-35 yrs., well-built, dressed in jeans, T-shirt and jacket entered in the ladies compartment of the train where the complainant was travelling along with her two niece. The said person asked for the tickets be shown. Accordingly, the complainant showed the tickets to him and thereafter the person went to another cabin of the compartment and immediately returned back and asked the complainant to open the bag as he desired to check luggage. It has been further asserted in the complaint that complainant asked to show his identity card and no sooner the complainant demanded, the person took out a dagger from back side and placed it on the neck of the complainant and thereby asked to remove all ornaments failing which threated of dire consequences. On account of this, complainant removed two gold rings and parted with the wrist watch as well and also parted with cash amount of Rs.3500/- from the eye witness and thereafter accused surreptitiously alighted from the train. When the train reached at Udhwada railway station, the complainant and eye-witness raised alarm, however, the accused escaped from the compartment and resultantly the complainant and eye witness had to continue to complete the journey upto Mumbai and after getting down at Mumbai Central railway station lodged the FIR which is at Exh.8 lodged before the Prosecution Witness No.7 Pundlik Malappa Gawle. As the incident has occurred within territorial jurisdiction of Gujarat Railways, the police officer who registered the complaint i.e. Prosecution Witness No.7 has transferred the FIR to District Superintendent of Police, Gujarat Railway Police, Vadodara for further investigation.

(3.) Mr.Chetan Pandya, learned advocate for the appellant - accused has contended that the learned Sessions Judge has committed a serious error in law and facts and on the contrary the reliance which has been placed of the evidence is not so cogent enough to maintain the conviction. It has further been contended that the learned judge has seriously erred in coming to the conclusion that the evidence with regard to identification of the accused is satisfactory, however, a close reading of the first informant and her niece at Mumbai with an album of photographs of few suspects, the police is said to have asked the first informant to identify the accused on the basis of photographs. This identification which has been made is absolutely far from truth. On the contrary, the Investigating Officer has learned that accused had been detained on 07.01.1998 under the provisions of Prevention of Antisocial Activities Act and was sent to Bhuj Jail as detenue and the accused was brought to Valsad by transfer warrant on 21.02.1998 for conducting identification parade before the Executive Magistrate who is examined as Prosecution Witness No.6. At that juncture, the first informant i.e. Prosecution Witness No.1 and the eye-witness i.e. Prosecution Witness No.2 have identified the appellant who allegedly committed a robbery. In fact, the chronology of the events to be examined, there is hardly any justifiable reason to involve the present appellant in crime and showing of photographs undisputedly prior to identification makes the identification worthless according to Mr.Pandya, learned advocate for the appellant.