Katiyabhai Nevabhai Meda vs State Of Gujarat

(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Present appeal arises out of the judgment and order rendered by Sessions Court, Dahod in Sessions Case No.112 of 2005 on March 17, 2006, convicting present appellant for the offences punishable under Section 302 read with Section 34 and Section 394 of Indian Penal Code and sentencing him to undergo imprisonment for life with a fine of Rs.5,000/­, in default to undergo further imprisonment for a period of two years for the first offence, and to undergo R.I. for five years with a fine of Rs.1,000/­, in default to undergo further imprisonment for one month for the offence punishable under Section 394 of Indian Penal Code.

2. Brief facts of the case are that the appellant, in a company of two other unknown absconding persons, allegedly robed one Manulal Jaysinh Labana (first informant) of Rs.9,300/­ cash, besides a wrist watch and motorcycle. It is also alleged that, at that time the appellant in company of two others robed Umaben of a silver mangal sutra, gold earing tops and other belongings and cause fatal injury on her head with a stone, which ultimately resulted into her dead on the next day. This episode was occurred on 29.4.2005 at about 15:30 hours in the outskirts of Village Chhakliya.

2.1 An FIR was lodged by Manulal Jaysinh Labana in respect of this incident with Limdi Police Station of Dahod District. On basis of said FIR, offence was registered and investigated and ultimately chargesheet was filed in the Court of learned JMFC, Jhalod, who in turn committed the case to the Court of Sessions at Dahod, and Sessions Case No.112 of 2005 came to be registered. Charge was framed against the appellant­accused at Exh.3 for the offences punishable under Sections 394, 302 read with Section 34 of IPC and Section 135 of Bombay Police Act. The accused­ appellant pleaded not guilty to the charge and claimed to be tried.

2.2 At the end of trial, the Sessions Court found that the prosecution was successful in proving the charges against the appellant for the offence punishable under Section 302 read with Section 34 of IPC and Section 394 of IPC and convicted him therefor. The trial court acquitted the appellant of the charges for the offence punishable under Section 135 of the Bombay Police Act.

3. Learned advocate Mr.Budhbhatti appearing for the appellant submitted that the prosecution has come out with a theory that both the incidents of first informant Manulal Jaysinh Labana getting robed and the incident of Umaben getting robed and suffering fatal blow happened simultaneously or quick succession at the same place. But, if the evidence is seen, just the contrary, and therefore, the prosecution has failed to bring on record the true facts and true origin of the incident or the incidence. Mr.Budhbhatti submitted further that the prosecution case depends on a T.I.Parade conducted by Magistrate where it was alleged that the appellant was identified by the witnesses. According to Mr.Budhbhatti, the T.I.Parade has not been properly held, and considering the lacuna therein, it cannot be relied upon the same to connect the accused with the crime by accepting the evidence of the so­called eye­witness. Mr.Budhbhatti submitted that there was no material against the appellant and he has been brought and arrested on basis of a transfer warrant from Madhya Pradesh. It is also submitted by Mr.Budhbhatti that there is no recovery or discovery from the appellant and there is no evidence to connect him either of the incident and, therefore, the conviction is ill­founded and may be set aside giving benefit of doubt to the appellant.

4. On the other hand, learned APP Mr.K.L.Pandya has opposed this appeal. According to him, the incident occurred in close vicinity of each other and in quick succession of time, and they cannot be regarded as two separate incidents, because the miscreants were the same, only the victims were different. Learned APP relied upon the evidence of the first informant as an eye­witness to establish the presence of the appellant at the place of incident and his involvement therein. It was contended that Section 34 of IPC would take care of the slackness in physical evidence and, therefore, the conviction is well­ founded and appeal may be dismissed.

5. We have examined Record & Proceedings in context of rival submissions. In our view, the whole prosecution case depends on evidence of first informant Manulal Jaysinh Labana, witness Garvarsinh Khusalsinh Labana, who is the husband of deceased Umaben, evidence in form of T.I.Parade and deposition of the Executive Magistrate. The first informant Manulal Jaysinh Labana is examined by the prosecution as Prosecution Witness No.8 at Exh.21. Garvarsinh Khusalsinh Labana is examined as Prosecution Witness No.13 at Exh.35. The FIR is at Exh.22. The T.I.Parade panchnama is at Exh.14 and the Executive Magistrate is examined as Prosecution Witness No.14 at Exh.37.

6. Having gone through the FIR, we find that the FIR is given by Manulal Jaysinh Labana, and he states that while he was returning to his Village from Dahod, after getting his daughter physically checked and after dropping her to her maternal uncle's place, he was intercepted by three persons who came on a road suddenly from the sim of Chhayan Village. He tried to escape, but as he was hit with a lathi on his hand, he was caught. He was robed of an amount of Rs.9,300/­ from his pocket, his wrist watch and his motorcycle on which the three assailants ran away. He then says that he went to two or three villages, and lastly when he was about to reach Limdi, he noticed one person on motorcycle going towards the place where he was robed. He gave signal to him not to go there, but that motorcyclist ignored his signal and proceeded further. He states that later when he reached Limdi, he learnt that the said motorcyclist was also beaten.

The evidence of Garvarsinh, if seen, would indicate that he was intercepted by three persons by pelting stones, one of the stone hit his wife, who was pillion­rider of his motorcycle and fell to the ground. He says that they were robed of a mangal sutra and earing tops which his wife was wearing. He says that he took her to the Government Hospital at Dahod. She was treated there, and while she was under treatment, she succumbed to the injuries on the next day.

The evidence of Executive Magistrate and the T.I.Parade panchnama would indicate that five persons were caught as dummys for holding the T.I.Parade, and the accused appellant was alleged to place himself between the dummys standing in a row. He was also directed to change his clothes. This exercise was taken thrice and all the three times the witness have claimed to identify the appellant as one of the assailant.

With this evidence led by the prosecution, even if taken at face value, it does not bring to force that both the episodes occurred in quick succession and at a place which were in proximity with each other.

7. The first incident occurred was in connection with Manulal Jaysinh Labana getting robed. In his entire evidence, he never claims to have seen or to have noticed Umaben or Garvarsinh being attacked, Umaben suffered head injury and then being taken to the hospital by her husband Garvarsinh. He is totally silent about it. In fact, according to him, the three assailants robed him, fled away from the place of incident of his own motorcycle, whereas, the episode of Umaben and Garvarsinh is alleged to have occurred subsequently. According to Manulal Jaysinh Labana, after the incident, he went to Gultora crossing and then to Chackliya and then to Limdi of Dahod District, and while he was about to reach Limdi, he noticed a motorcyclist going in the direction where he was robed. He, therefore, tried to stop him but that motorcyclist ignored his signal and proceeded further and later he learnt that the said couple was beaten. This story put forward by him sounds unpalatable, and in any event makes the theory of prosecution about the second incident having occurred at the place of incident doubtful. According to him, after he was robed, the three assailants were escaped on motorcycle which they have robed him. Then he goes to two places, and when he was about to reach at Limdi, he noticed Garvarsinh was going towards the same place, and though signal has been given by him, but Garvarsinh pays no heed to him. It is only after point of time that Garvarsinh after proceeding further may have reached the place where Manulal Jaysinh Labana was robed. Now if the assailant had ran away after assailing Manulal, robing his motorcycle then Garvarsinh would not have come across them. Further Manulal does not say that the episode in respect of Garvarsinh is occurred in his presence nor does Garvarsinh says about the incident relating to Manulal having been noticed by him.

8. The second incident is, therefore, having occurred at a place in proximity of each other and in proximity of time does not inspire confidence, and there ought to have been two separate offences registered, investigated and report made under Section 173 by the police agency which is missing.

9. Whatever has been robed of has not been either recovered or discovered by the agency and there is no material in this regard coming forth to this Court from the prosecution and, therefore, as a circumstance which may lead to the guilt of the accused is missing.

Evidence of Manulal Jaysinh Labana in regard to the incident, if perused, would indicate that all the three assailants, one was wearing a hanuman mask, the other was wearing blue colour shirt and black colour mask. He administrating in the cross­examination in respect of T.I.Parade that the assailant who robed him of Rs.9,300/­ by picking out of his pocket was not present at the time of holding of T.I.Parade would definitely ruled out involvement of the appellant for the reason that the two others have mask and could not have been identified and the person who robed him was not the appellant.

10. In this context, if evidence of Garvarsinh is seen, he says that all the three assailants were mask, two having hanuman mask and third having black mask and they have plenting stones. His identification before the Executive Magistrate of the accused persons would be or cannot be accepted. Of course, he states at one stage that the mask of one of the assailant fell down and that is how he was identified. This small piece of evidence cannot save the prosecution case weakened by a number of defects more so when the two incidents are claimed to have occurred at the same place and time are found to have not occurred in that manner. As such there is no material on record as to where the incident of Umaben occurred and at what point of time.

Evidence of Garvarsinh in this context is also relevant. He says that he took his injured wife to Dahod Government Hospital where she was treated and she succumbed to the injuries on the next day. No contemporaneous material in this context is coming forth. There ought to have been some entry in the medical case papers recorded history as to how Umaben had suffered injury, informing the police about the injuries suffered by Umaben. It is only after her demise that the police seems to have activated himself and then whatever the material that was before it rather than probing further into the question as to where the incident of Umaben had occurred. Besides above defects which goes to the root of the case, there is no recovery or discovery from the accused­appellant, and, in our view, therefore the evidence led by the prosecution is not consistent, not reliable to connect the appellant­accused with the offences which he was convicted, the trial court has erred in recording his conviction for the offences punishable under Section 302 read with Section 34 and Section 394 of Indian Penal Code.

11. For the foregoing reasons, the appeal is allowed. The conviction of the appellant recorded by the learned Additional Sessions Judge, Presiding Officer, Fast Track Court No.1, Dahod in Sessions Case No.112 of 2005 dated 17.3.2006 is hereby set aside. The appellant is acquitted of the charges levelled against him and he will be set at liberty forthwith if he is not required in any other case. Fine, if paid, be refunded to him.

( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/