IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1783 of 2008 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE PARESH UPADHYAY ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of 4 law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
==================================================== MUKESH MULJI S/O BHIMABHAI SINGAL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ==================================================== Appearance :
MR JM BUDDHBHATTI for Appellant(s) : 1, MR KL PANDYA APP for Opponent(s) : 1, ==================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 12/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY)
1. This appeal is directed against the common judgment and order passed by learned Sessions Judge, Veraval in Sessions Case Nos.27 of 2005, with Sessions Case 50 of 2006 dated 27.3.2008, whereby, the present appellant, original accused No:3, and accused No:1, who is not before this Court, in this appeal, are convicted for offences punishable under Sections 394, 342 and 452 of Indian Penal Code (IPC) and are sentenced to 10 years R.I., with fine of Rs.10,000/- and 2 years S.I., in default of payment of fine.
2. The case of the prosecution, in brief, is to the effect that on 18.3.2005 Dr.Dipak Mansukhbhai Shah, gave a complaint to Veraval City Police Station (District: Junagadh) to the effect that, he is medical practitioner and is having clinic at Veraval and he also treats patient at home. As per the complaint, on that day, at about 9.45 p.m., one person who had come to him to take medicines for diarrhea on the previous day also, came and complained that there is no improvement in his illness, inspite of the medicines, which he had taken from the complainant, on the previous day. There was one more person with him. Two more persons were standing on the gate of house. On this, complainant examined the patient and thereafter, went inside the house for medicines. Two persons followed the doctor inside the house. Of these two, one person had toy like revolver, by which, he started giving blows to the doctor on his forehead and near eyes. By that time, third person had also entered the room, who started beating the wife of the complainant and one person had shut the mouth of the complainant. These persons, while beating the complainant and his wife, were inquiring where the money is – where the ornaments are. They were giving indiscriminate blows following which, the wife of the complainant gave the bag containing cash of Rs.30,000/-. Thereafter, these persons continuing beating and took the complainant and his wife upstairs. Thereafter, the complainant and his wife both were tied with clothes and were locked inside the room on upper floor and they were searching for valuables. This incident had continued for about 1 hour. Thereafter on hearing shouts of 'chor-chor' from outside, these persons ran away and complainant and his wife were freed by neighbours. Thereafter neighbour took the complainant and his wife to Amardeep Hospital for treatment. The complaint also gave description of at-least two persons. The complaint also said that the complainant and his wife had sustained injuries. On this complaint, offence was registered by the police at Veraval City Police Station being C.R-I No. 37 of 2005. The case was investigated and thereafter, charge-sheet was filed in the competent Court. The case being triable by the Court of Sessions, the same was committed to the Sessions Court, wherein, the charge was framed against 8 accused vide Exh.1. The present appellant was original accused No.3.
3. The prosecution had led 21 witnesses and had produced 30 documentary evidences in support of the case, the details of which are recorded in para-5 of the judgment. After recording the evidence, further statement of the accused under Section 313 of Criminal Procedure Code was recorded by the learned Sessions Judge and on over all evaluation of the material on record, learned Sessions Judge came to the conclusion that original accused Nos. 1 and 3 are guilty of the offence punishable under Section 394, 342, 452 of IPC. However, learned Sessions Judge was of the view that the evidences was not sufficient to hold the accused guilty for offence under Section 395 of IPC. The learned Sessions Judge in his judgment held that accused Nos. 2, 4, 5, 7 and the sole accused in Sessions Case No.50 of 2006, named Punjabhai Bhutiya, were not guilty of any of the charged offences and therefore, acquitted them. Learned Sessions Judge imposed sentence on original A-1 and A-3, of 10 years R.I., with fine of Rs.10,000/- and 2 years S.I., in default of payment of fine. It is against this judgment and order, the original accused No.3 has preferred the present appeal.
4. We have heard Shri Buddhbhatti learned advocate for the appellant and Ms.Chetna M. Shah, learned APP, for the State. Both the learned advocates have taken us through the entire evidence on record.
5. Learned advocate for the appellant, Shri Buddhbhatti, at the outset had submitted that he is not disputing the presence of the appellant at the scene of offence, however, in his submission, he was genuine patient and he had nothing to do with the offence and in his submission, there is no material to connect the appellant with the offence. Before we deal with the contentions of learned counsel for the appellant, in our view, following important evidence need to be discussed, first.
6. The complainant, Dr. Dipak Kumar M. Shah, is examined as PW-9 at Exh.45. In his deposition, he has described in detail the incident, which took place, as stated in the complaint. Through his deposition, it has come on record that the person who had came on both the days, pretending to be patient i.e. on the date of incident as well as on the previous day, had identified himself as Mukesh. Before Executive Magistrate also, this accused is identified by complainant. Said Mukesh is identified by him in the Court also. From his deposition, other material aspects have also come on record, however, since the present appeal is by original A-3 only, other details which are not relevant qua A-3 are not discussed here. In his cross examination also, barring few minor discrepancies, we do not find any contradiction on any material aspects, atleast qua the present appellant.
7. Rashmiben, wife of complainant, injured eye-witness, is examined as PW-14 at Exh.57. In her testimony she has said that accused No.3 (the present appellant) is the person who had come on the date of incident as well as on the previous day projecting himself to be a patient at her home. She has said that there were three persons in commission of offence. She has described in detail the incident, which took place, as stated in the complaint. She also stated that when the incident started, somebody switched off lights. She also said that one persons was having knife and other person was having a weapon, which looked like a pistol. She identified two persons before the court and they were A-1 and A-3. She is also extensively cross examined on behalf of the accused and in her case also, barring few minor discrepancies, we do not find any contradiction on any material aspects, atleast qua the present appellant.
8. The Executive Magistrate is examined as PW-13, Exh.53. This witness, Dineshkumar Udaykant Shah, in his deposition, has explained in detail the procedure adopted while carrying out the identification parade of the accused including the present appellant and through his deposition, it is substantiated that present appellant was duly identified by the complainant and his wife.
9. Shri Rameshkumar Muljibhai Kotak, PW-17, is examined at Exh.134. In his testimony, he has deposed that he is next door neighbour of the complainant. They share common compound wall. On the date of incident, at about 10.30 at night, when he came to his home, his family members were standing in the compound and they told him that, in the complainant's house, lights were off and on the first floor some persons were roaming with batteries in hand, which was visible from glass windows and before some time, shouts were also heard. On this, this witness went near compound wall and he saw that lights were off and on the first floor, two persons were roaming with batteries in hand, which was visible from glass windows. On this he found that there was something wrong. He deposed that then they shouted with the name of Dr. Dipak, and also shouted 'Chor Chor' on which, the persons in the home started running here and there and one person jumped from the window on RCC weather shed. That person was having some weapon in his hand, therefore, people did not go near him. At that time, there were two more persons in the house, they also came out and these three persons, fled away towards railway station, people ran after them but they successfully escaped. In his deposition, he further stated that thereafter, other persons went inside the house of the complainant and main switch was switched-on and that is how light came. They went upstairs and they heard shouts of Rashmiben (Wife of the complainant) and they opened the bed room, which was bolted from outside and saw that Dipakbhai, complainant and his wife Rashmiben both were tied, separately with clothes like Sari and Dupatta. Dipakbhai, complainant was bleeding on his forehead, both had injuries near eyes. They brought complainant and his wife down stairs, in the meantime, Bhartbhai came with the car and took the complainant and his wife to Amardeep Hospital. At that time, the complainant informed this witness that 4 persons had come and beaten the complainant and his wife and had taken Rs.30,000/-. He further stated that he had seen 3 persons and he is not aware about 4th person. In his cross examination, barring few trifle discrepancies, on all material aspects, he supported the case of the prosecution.
10. Dr. Vijaykumar Amrutkumar Chotai, PW-18 is examined at Exh.138. This witness is also a medical practitioner and he had treated the complainant and his wife on 18.3.2005. From his deposition, the details with regard to the injuries of the complainant and his wife have come on record. As per his deposition, the complainant had sustained following injuries:
(1) He had ecchymosis of both upper and lower eyelids of both the eyes.
(2) He had CLW over R.Upper Eyelid approx 6 CMx0.5CMx0.5CM
(3) He had CLW over scalp in midline approx. 8CMS. behind the hairlines approx size was 4 CMx0.5CMx0.5CM.
(4) He has CLW L.Middle Phalynx. approx 3 CM 0.5CM 0.5 CM
(5) He had Multiple abrasions which were superficial over face, neck, hand, chest.
The wife of the complainant had sustained following injuries :
(1) Haematoma L.Parietal Region Approx 5 CMx5CM.
(2) Haematoma L.Elbow Region Approx 5 CMx5CM
(3) Abrasions over L. Side of Face.
(4) Ecchymossis both upper and lower eyelids.
(5) Tear of conjuctiva Lower Eyelid L.Eye
(6) Multiple Superficial Abrasions Over neck and arm and forearm.
Since the case was a medico-legal case, this witness had informed the police at the relevant time.
11. Considering above evidence on record, learned Sessions Judge came to the conclusion that the presence and guilt of A-1 and A-3 is established through legally acceptable evidence and both these accused are connected with the commission of offence and on that basis, he came to the conclusion that the charge against these two persons is proved.
12. Learned advocate for the appellant, as noted above, at the outset, had submitted that he is not disputing the presence of the appellant, on the scene of offence, however, he was a patient and he had nothing to do with the offence in question. This argument of learned advocate for the appellant can not be accepted for the simple reason that had this been the case, the appellant would also have shouted for help and would not have fled away when the neighbours gathered. Further, specific role of beating is attributed to him by the complainant and his wife and he is duly identified before Executive Magistrate and is identified in the trial Court as well. Weighing this material vis-a-vis the say of the appellant, it can not be accepted that though the appellant was present there, but he was as a patient and not for committing offence in question. No material has come on record for implication of appellant by complainant. Therefore, this contention of learned advocate for the appellant is rejected.
13. Learned advocate for the appellant has further contended that though other accused were in police custody, all were not put to identification parade, along with the present appellant. Even this contention is also devoid of any merit since the present appellant is duly identified by the complainant and his wife both, and therefore, whether other accused were put to identification along with present appellant or not would not make any difference so far identification of the present appellant is concerned. Unless, the appellant shows that identification of him was poor or improper, no case can be said to have been made out in his favour. Under the circumstances, even this contention of the learned advocate for the appellant is rejected.
14. Learned advocate, in the alternative, submitted that there is no active role attributed to the appellant. In this regard, it needs to be recorded that when more than one persons' presence is established, in commission of offence who had caught hold the victims or who had given blows or who had snatched money is not of much consequences. From the deposition of complainant and his wife, it transpires that it is the present appellant who had gone pretending to be patient on both the days and under these circumstances, it is he, who is responsible for the entire episode, because other accomplish could enter the house of the complainant only after the present appellant, who could enter the house as patient. Therefore, under no circumstances, the guilt attributable to the present appellant can be termed to be less so as to take some lenient view in the matter. Under theses circumstances, even this contention of learned advocate for the appellant needs to be rejected and is accordingly rejected.
15. Learned counsel for the appellant next contended that he be given benefit of doubt in the matter. In this regard, it is required to be noted that there is no doubt about the involvement of the appellant in commission of offence in question. So far the presence of the appellant is concerned, it is even conceded by the learned advocate for the appellant. Now, only question remains is, that though appellant was present on the scene of offence, whether his participation in offence can be termed as doubtful. We find that on the basis of clear identification by both the inured eye-witnesses with their testimony for overt act by the appellant-accused, it cannot be said that a reasonable doubt would arise about participation of the appellant in commission of offence. Under these circumstances, in our view, no benefit of doubt could have been given to the present appellant and the same is rightly not given by the learned Sessions Judge.
16. Under the circumstances, we find that, learned Sessions Judge has not committed any error in recording conviction of the present appellant and awarding sentence as aforesaid. Hence, no interference is called for.
17. The present appeal being merit-less and hence, is dismissed.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish)