JITENDRASING JOGENDARSING RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these appeals arise out of a judgment and order rendered by learned Fast Track Judge, Court No. 3, Gandhinagar on 5. 8. 2004 in Sessions Case No. 46 of 2003. The appellants in these appeals came to be convicted for the offences punishable under Sections 395, 398 read with Section 120b of the Indian Penal Code ('ipc', for short) and Section 25 (1) (A) of the Arms Act and were sentenced to undergo R. I for ten years and fine of Rs. 2000/- each, in default, imprisonment for six months for the offences punishable under Sections 395, 398 read with Section 120b of the IPC, and imprisonment for three months and fine of Rs. 1000/- each, in default, imprisonment for three months for the offence punishable under Section 25 (1) (A) of the Arms Act. However, the original accused No. 5 - Jayprakash Raghunath Tivari came to be acquitted.

(2.) THE prosecution case in nutshell is that on 24. 2. 2003, at about 9. 30 p. m. , a semi-luxury mini bus bearing registration No. GJ-1x-9741 picked up passengers from Vadaj and thereafter from Visat Petrol Pump, Chandkheda, Ahmedabad and was on route to Mehsana. It is alleged that from Chandkheda pick-up point, four passengers within the age group of 30 to 35 years boarded the bus for Mehsana. Out of those four passengers, one was standing near the door of the bus inside the bus, and the three were standing inside the bus, away from the door. At about 10 p. m. , when the bus reached near Adalaj, at that time, the passenger who was standing near the door of the bus, aimed a revolver at the first informant Ismailkhan Hasankhan, who was conductor of the bus and told him to stop the bus. The conductor thereupon told driver of the bus to stop it. At that time, the three passengers who were standing inside the bus, also aimed their revolvers and knife at the other passengers, who were travelling in the bus and asked the passengers to give their valuables and cash to them. The four miscreant passengers, thus robbed cash amount worth Rs. 9170/-, wrist watches, mobile phones etc. within a very short span of time and they left the bus and told the driver to drive away the bus immediately. After covering some distance, bus was parked near one STD booth and police was telephoned. Police came on the spot and the first informant Ismailkhan Hasankhan lodged the first information report, which came to be registered in Adalaj police station. Police commenced investigation. During the course of investigation, it was revealed that three more miscreants were chasing the bus in one Ambassador car, and the four miscreants, who got down from the bus after committing the robbery, fled away in said Ambassador car, in which the three miscreants were chasing the bus. It was further revealed that after the car went at some distance, it left the road and went into a ditch, and thereupon all the seven miscreants ran away. During the course of investigation, those seven miscreants were arrested as accused in connection with this incident. Test Identification Parade ('tip', for short) was conducted in presence of first informant and statements of material witnesses were recorded, muddamal weapons - pistol, revolver and knife were recovered, including the cash amount of Rs. 4170/ -. After the Investigating Police Officer collected sufficient material for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the Court of learned JMFC, Gandhinagar. Since the offences were exclusively triable by the Court of sessions, the case came to be committed to the Court of sessions, Gandhinagar, which was registered as Sessions Case No. 46 of 2003.

(3.) WE have heard learned advocate Mr. Thakkar and Mr. Brahmbhatt for the appellants in connection with these appeals. It is submitted that the entire case is based upon the identification of the appellants. Considering the FIR, no specific description of any of the appellants has been mentioned by the first informant. They are described by the clothes worn by them. That the TIP conducted by the Executive Magistrate, came to be arranged in the premises of police station. The police authority did not take any precautions to see that before TIP, the witnesses may not see the accused persons. That the TIP was not arranged immediately after the arrest of the accused. It is further submitted that as per the case of the prosecution, and even as per the evidence adduced by first informant Ismailkhan Hasankhan, the conductor of the bus and Maheshbhai Chaudhari, Manager of the bus, who was allegedly travelling in the bus and the passenger - Ramanbhai Patel allegedly travelling in the bus, four accused persons boarded the bus from pick-up point of Chandkheda. They did not say that three other accused persons were chasing the bus in Ambassador car. Despite this, some of the witnesses identified those, who were in the car and admittedly not in the bus. This creates doubt about the evidence adduced by the prosecution by way of TIP. Even those three eye-witnesses who claimed to have identified the four accused persons, during the course of TIP, but, considering their evidence, it transpires that each of them identified different accused persons. That the evidence regarding recovery and discovery of weapons is not cogent and beyond any reasonable doubt. The panchas did not support the recovery and discovery panchnama. Weapons like pistol and revolver were not sent to FSL for any ballistic opinion. Thus, the prosecution failed to establish the identity of the appellants and their involvement in this case. Therefore, it is submitted that both the appeals may be allowed.