Cav Judgment
1. Heard learned advocate Mr. Devang J. Joshi for the appellants and Ms. Reeta P. Chandarana, learned Additional Public Prosecutor for the respondent-State.
2. The appellants have challenged their conviction by impugned judgment and order dated 9.5.2014 in Sessions Case No.168 of 2013 by the 6th Additional Sessions Judge, Vadodara, whereby, appellants are convicted for the offence punishable under Section 392 of the IPC and they have to undergo sentence of seven years rigorous imprisonment with fine of Rs.1,000/- and in default of payment of fine, they have to undergo further one month simple imprisonment. However, they are acquitted for the offences alleged under Sections 394, 395, 397 of the IPC as well as under Section 25(1)(A)(B) of the Arms Act. Whereas, accused nos.1, 3 to 8 and 10 to 11 had been acquitted by extending benefit of doubt. Thus, accused no.2 Vestabhai Harisinghbhai Vasenia (Bhil) and accused no.9 Barmalbhai Shehrubhai Kalach (Bhil) are convicted by the impugned judgment and, therefore, only they have preferred this appeal.
3. The case of the prosecution as per charge framed against all the accused on 14.10.2013 at Exh.4 is to the effect that on 7.4.2013 at about 2.00 a.m., all the accused have broken down the door of the office of Shivam Cotton Industries in the sim of Juni Jithardi, Karjan Ghavat Road, Taluka Karjan, District Vadodara and by putting a gun on the forehead of the complainant Dolatsinh Gambhirsinh Jadav with threat to handover the key of the cupboard else he may be killed and thereupon, he has to handover the key and, thereby, accused have after opening the cupboard, looted the amount of Rs.15,50,000/- and mobile phone of Rs.2,000/- and, thereby, committed an offence of loot under Sections 392, 394, 395, 397 of the IPC read with Section 25(1)(A)(B) of the Arms Act. The accused have denied the charges and faced the trial when prosecution has examined 11 witnesses and produced 7 documentary evidence on record which resulted into conviction of the two accused amongst 11 as recorded hereinabove.
4. Before we scrutinize the evidence on record for its appreciation to ascertain that whether conviction is proper or not, if we recollect the submission by the appellant, it becomes clear that the sum and substance of arguments of the appellants are to the effect that when entire case is based upon circumstantial evidence only, there must be corroborating evidence to confirm that both the accused have committed the offences as alleged in the charge for which they are convicted.
5. The overall perusal and scrutiny of evidence makes it clear that as far as appellant no.2 is concerned, he was identified in identification parade by the complainant so also before the Court during trial. Therefore, when complainant identifies appellant no.2 as one of the culprit who looted him during the investigation as well as during the trial considering the other evidence which could not be rebutted by such appellants irrespective of some contradiction here and there, there is no substance in the appeal at-least by the appellant no.2, therefore, it certainly deserves to be dismissed. Such determination would get confirmation while discussing the evidence to scrutinize the conviction of appellant no.1.
6. Thereby, so far as appellant no.1 is concerned, it is vehemently argued by learned advocate for the appellants that since he was not identified by the complainant during the trial, though he was identified during identification parade, benefit of doubt needs to be extended to him as there is no corroborating evidence except only one confirmation that he identified the witness during the identification parade only. In support of such submission, learned advocate for the appellants is relying upon the decision of this High Court in Criminal Appeal No.140 of 2004 decided on 7.5.2008 between Anilkumar Chhaganlal Mehtra v. State of Gujarat, wherein, dealing with the similar issue, the learned Single Judge of this High Court has, acquitted the appellant - accused by observing that there is no possibility to link the accused with the commission of an offence only because of the identification of the accused before the Court after two and half years, after the date of incident and when his identification during Test Identification Parade (TIP) does not inspire confidence, reasons for which were recorded by the Court which is to the effect that even TIP was conducted after two and half years of the incident and that in-fact there was no light at the time of incident and when there is no evidence of recovery or discovery of either Mudamal or weapon at the incidents of the appellant before such Court. Though appellants in that case had been identified in the identification parade, when there is no positive evidence to that effect and when even medical evidence is not confirming the case of prosecution. We have to scrutinize the evidence in light of the above submissions.
7. It is also undisputed fact on record that most of the accused were found in a suspective condition with suspective movement in a Toofan vehicle no.MP-09BA-5492, wherein, they are having weapons and tools use for house breaking. The alternative defence regarding self theft by the complainant is being negativated by FSL report at Exh.35, wherein, the FSL team has after examining the place of incident and cupboard from where cash amount has been looted, confirmed that it has not been tampered with but open by the original key and, therefore, it is not a case of misappropriation or theft by some known person but the overall evidence certainly confirms the incident of loot and identification parade confirms the involvement of present appellants.
8. PW-1 at Exh.18 is Malang Fakirbhai Rathod, a panch witness of the place of incident who proves the panchnama at Exh.19 which shows that there is evidence of house broking at the place of incident but it does not connect the accused with the offence.
9. Whereas, PW-2 at Exh.20 is Hanifbhai Allarakha Shaikh does not support the proceeding of TIP. On the contrary, it shows that the TIP of two different cases are conducted at the same time and, therefore, there is different story in his evidence than the actual incident of the present case. So far as TIP for present case is concerned, in Paragraph 5 of his deposition, the witness specifically denies the suggestion that complainant Dolatsinh Gambhirsinh Jadav has identified present appellants and one Anilbhai, though he admits that he has signed the Panchnama but stating that he was only call upon in Mamlatdar Office to sign some documents but no TIP was conducted in his presence.
10. The another panch witness of the TIP namely; Pratikkumar Sureshchandra Shah at Exh.22 being PW-3 is also not supporting the story of Test Identification Parade.
11. PW-4 at Exh.23 namely; Ayoyadhyaprasad Ganeshprasad Yadav is serving as watchman in Shivam Cotton Industries where incident of loot had taken place as alleged. He has noticed the incident during petrolling and, therefore, he has narrated his version of story that he has seen. But during cross examination, he admits that police has simply recorded his name without inquiring anything from him.
12. Similar is the story of PW-5 at Exh.24 being Bhadamsinh Ayoyadhyaprasad Yadav who is also son and watchman and he has nothing to add more than his father being PW-4.
13. Similar is the story of PW-6 at Exh.25 being Pappuprasad Parshuram Yadav who is also serving as a watchman and he has nothing to add more than previous two witnesses.
14. PW-7 at Exh.30 is a complainant Dolatsinh Gambhirsinh Jadav who was serving as a cashier and was sleeping in the office where incident of loot was taken place. Since there was a loot of Rs.15,50,000/-, a complainant has narrated his entire story in detail that how and why such amount of lying in the office for making payment for the goods and what happened after midnight.
It is his say that door of the office was broken down by heavy stone and, thereafter, he was beaten and two people were beaten him, out of which one has asked for keys and, therefore, since he was frighten, he handed over the keys because one man has kept gun on his forehead and, thereafter, 4 people were standing near him, whereas, two people have opened the cupboard and taken away the case amount of Rs.15,50,000/- and while leaving the place, they have threatened him that if he does not remain silent then they may kill him. Therefore, he was frighten and could not do anything for ten minutes and, thereafter, he came out from the office and conveyed the incident to one Dashrathbhai Joshi who was sleeping in adjacent room and thereupon said Dashratbhai Joshi called their employer who conveyed them to call the Police and, therefore, they have conveyed Karjan police station on phone. It is his say that at that time, PSI has replied that their car is non-functional and, therefore, he will reach within half an hour. Therefore, Police has come at about 2.30 a.m., when he lodged the complaint which is proved at Exh.31. During investigation, Police has prepared Panchnama. It is further stated by the complainant that after month or so, he was called by the Karjan Mamlatdar to attend the Identification Parade and hence he had been to there where he identified three accused out of 22-23 persons. They are accused no.1 Shankerbhai Surpasing Kalesh (Bhil), accused no.7 Kamalsing Bhuvansing Vasuniya and accused no.9 Barmalbhai Shehruhai Kalach (Bhil) being present appellant no.2. Since the complainant could not identify accused nos.1 and 7 before the Court, ultimately, the Court has acquitted them and there is no appeal against such acquittal and hence, now we are concerned with accused nos.2 and 9 who were identified during evidence before the Court by the complainant.
In cross examination, the witness being complainant and victim has identified accused no.2 Vestabhai Harisinghbhai Vasenia when specific question was put to him that whether he can identify a person who has placed Tamancha on her head. At that time, witness confirms that he can identify the accused if see them from nearby and, therefore, he was allowed to go near the accused amongst which witness identifies accused no.2 and on inquiring about him, accused no.2 is disclosed as Vestabhai Harisinghbhai Vasenia. Thereafter, witness has in categorical terms deposed on oath that this accused has placed Tamancha on his head. Therefore, though during examination in chief, the witness has failed to identify accused no.2 and out of 3 accused identified by him, only accused no.9 Barmalbhai Shehrubhai Kalach was a common accused as identified by the witness both, during the identification parade and during his deposition before the Court; because of such cross examination, now identification of accused no.2 Vestabhai Harisinghbhai Vasenia, who is otherwise identified by witness during identification parade, has been identified in clear terms and, therefore, though learned advocate for the appellants have submitted that so far as conviction of accused no.2 is concerned, it is not justified because of absence of proper identification, has no substance.
15. In addition to such cross examination regarding identification witness - complainant was cross examined on all other issues like, his activity so far as looted cash amount is concerned and geography of the place of incident to establish that no amount was present at the place of loot or that complainant was not telling the truth. However, accused could not rebut his evidence so far as amount and geography of the place of incident is concerned.
16. So far as cross examination with reference to identification of the accused is concerned, it also runs in pages, wherein, though its admission by the complainant, it is neither in the form of contradiction nor in form of rebuttal of evidence by him when he admits that identification mark of the person who has placed Tamancha on his head was not disclosed in his compliant so also the description of all the accused was not disclosed. However, such admission would not rebut his entire evidence when he identified at-least two accused both, before the identification parade and before the Court. However, he denies all other suggestions so as to identification parade was not carried out properly and legally or that there is lacuna in the process of identification parade. He has narrated the entire story in answer to each questions by the defence lawyer but it does not create any doubt in his deposition or it does not rebut his total evidence in any manner whatsoever so as to conclude that his evidence cannot be relied upon.
17. PW-8 at Exh.32 is Rayajibhai Melabhai Vasava who has registered the offence and carried out some activities during investigation and identification parade. He narrated all the story in nut-shell and proves relevant documents at Exhs.33 to 41 regarding identification parade and communication for the purpose as well as later to add Sections 400 and 402 in the chargesheet. He was also cross examined at length. However, he was able to support the prosecution case as experienced police officer and he denies the suggestion that he allowed the victim to identify the witnesses well before the identification parade. A suggestion was made to him that when accused were under police custody, the witnesses were called upon or visited the police station and, thereby, they were able to identify the accused who were kept in lock-up and who were visible to the visitors' of the police station including witnesses of this case. However, he denies all such suggestion and explained each and every minute details in cross examination, which otherwise, supports the investigation and activity of identification parade, panchnama of which is already proved on record. Documents produced by the witness also confirms the manner and nature of investigation whereby link of all the accused was gathered by the police or by him before filing the chargesheet.
18. PW-9 at Exh.42 is second PSI of Karjan police station who take over the investigation from the previous Investigating Officer since he was transferred and after completion the remaining investigation, he has filed a chargesheet. He proves the sketch of the place of incident at Exhs.43 and 44. During cross examination, he admits that he added the charges under the Arms Act considering the evidence on record. There is nothing in his cross examination which rebut the prosecution evidence in any manner whatsoever or proves the innocence of the accused.
19. PW-10 at Exh.45 is Mamlatdar and Executive Magistrate who has carried out identification parade, therefore, he has narrated all the facts of such identification parade in detail. He is also cross examined at length, wherein, he denies all the suggestions by the defence lawyer regarding so called irregularity or illegality in such parade viz. handcuffing of accused and several other clerical details. In short, there is nothing in his cross examination which rebut the prosecution evidence in any manner whatsoever or proves the innocence of the accused.
20. I have also perused the impugned judgment, wherein, the trial Court has scrutinized the evidence in detail before concluding that conviction cannot be confirmed so far as only two accused are concerned.
21. So far as question of identification is concerned, if we peruse the entire evidence, it becomes clear that there is categorical disclosure by the witnesses that out of total persons involved in the commission of crime of looting the ginning factory, at least three of them had not wear `Bukani' on their face and, therefore, their face were visible and in-turn, during evidence witnesses could identify only three persons. Therefore, only because identification marks of such accused was not disclosed during investigation, it cannot be said that the evidence of the complainant and other witnesses is to be discarded. The trial Court has also discussed the relevant submissions by the defence lawyer before confirming their guilt. Such discussion in detail so far as identification parade is concerned, wherein, trial Court has taken care of each and every issues and confirm that even if identification parade is carried out jointly for tow cases, it would not harm the evidence in this case, on the contrary, result of such identification parade is more strong, inasmuch as, even amongst the more group of people offer for identification, the witnesses were able to identify the persons who has committed the offence as alleged by them. The trial Court has also discussed all citations referred by the accused. Thereby, when there is neither irregularity, illegality or arbitrariness in the impugned judgment, there is no reason to interfere in such reasoned judgment only because appeal is filed and only because there are some minor contradictions here and there or only because complainant has identified one of the accused during cross examination only though he identified another accused on both occasions i.e. identification parade as well as depositions before the Court. Therefore, so far as appellant no.2 Barmalbhai Shehrubhai Kalach being original accused no.9 is concerned, when witnesses have identified him both, before the Magistrate during identification parade and during evidence before the Court, there is no substance in his appeal. Whereas, so far accused no.2 Vestabhai Harisinghbhai Vasenia is concerned, as aforesaid, when he was also identified during the cross examination by the complainant and when he was also identified during identification parade, only because non- identification of such accused during examination in chief alone would not result into any benefit of doubt so as to acquit him.
22. Learned advocate for the respondent is relying upon the decision in the case between Anilkumar Chhaganlal Mehtra v. State of Gujarat in Criminal Appeal No.140 of 2004 decided on 7.5.2008, wherein, Single Judge of this High Court has, identification of accused before the Court after two and half years cannot form sole basis for conviction and, thereby, acquit the accused from the offences punishable under Sections 397, 398 of I.P.C. and Section 25 of the Arms Act. Whereas, in the present case, it is undisputed fact that amongst 11 accused, who were chargesheeted before the trial Court, the witnesses have identified three accused before the identification parade and among them the same two accused were again identified before the Court and, therefore, when identification parade was performed immediately on arrest of the accused, it cannot be said that only because of such decision, present accused shall get benefit of doubt in their favour so as to acquit them. It is clear and certain that so far as accused no.2 is concerned, he has placed Tamancha on the head of the victim and he was identified as such during cross examination of the victim and, therefore, now accused cannot say that his identification is not proper. The manner of identification is discussed hereinabove wherein in-fact witness has put a hand on the concerned accused no.2 identifying him as a person who has placed Tamancha on his head couple with his corroborating identification during identification parade, leaves no room or doubt about his involvement in the incident and, thereby, there is no reason to doubt his presence and thereby to extend any benefit of doubt by acquitting him.
23. In view of above facts and circumstances, when both the accused were identified before the identification parade as well as before the Court and when accused could not rebut the prosecution evidence even by preponderance of probability, they cannot be acquitted and, therefore, there is no substance in the appeal and hence the same deserves to be dismissed and accordingly appeal is dismissed.
24. Record and Proceedings be sent back to the concerned trial Court.