Govind @ Dholo Arjanbhai @Ajo Chunara vs State Of Gujarat

Both these appeals arise out of the same judgment and order of conviction and sentence and the set of evidence adduced before the learned Sessions Judge is same, hence, both the appeals were heard together and are disposed of by this common judgment.

The following facts can be culled out from the record of the appeal ­ 2.1 It was the case of the prosecution that on 17.03.2009, at about 21.45 hours, the first informant Dakshaben and her husband Rajeshbhai, who was a priest had been to their clients house situated at Ghatlodia, Ahmedabad and were returning to their residence on Eterno scooter bearing registration no. GJ­1­ EG­­4837. It is the further case of the prosecution that when they reached Lambha Indiranagar road near Kamod village, the appellant­accused of Criminal Appeal No. 1304/12 who was armed with thick stick (dhoka) gave a blow on the head of the deceased Rajeshbhai, the husband of the first informant, because of which they fell down from the scooter. Thereafter, all the accused dragged them to the side of the road and gave them fist blows and also assaulted them with dhoka. It is further the case of the prosecution that thereafter, gold ornaments, i.e., earrings, silver mangalsutra, gold bangles, ATM card, license and one mobile of sony erricson were looted and as the first informant started shouting for help, as two passerby came near scene of occurrence, all the accused ran away. An FIR was lodged with Aslali Police Station being I­CR No. 22/09 by Dakshaben, wife of Rajeshbhai, who was injured eye witness. On investigation being made, the appellants­accused came to be arrested and ultimately, after investigation, the case was committed to the Sessions Court at Ahmedabad (Rural) and the same came to be registered as Sessions Case No. 37 of 2010. The charge came to be framed at exhibit 3 and as the appellant­accused did not plead guilty, the case was tried.

2.2 The prosecution in order to establish the guilt of the accused, examined 23 witnesses and also produced documentary evidence such as serological report, muddamal receipt, panchnama of the scene of occurrence, the weapon used in the offence, panchnama of Test Identification Parade etc. The appellant­ accused did not examine any witness. The learned Sessions Judge, Ahmedabad (Rural) after appreciating the evidence on record, by the impugned judgment and order of conviction, convicted appellant of Criminal Appeal No. 1304 of 2012, i.e., Govind @ Dholo Arjanbhai @ Ajo Chunara for offences under sections 302, 395, 397 and 400 of IPC and sentenced the said appellant for imprisonment of life and fine of Rs.10,000/­ and in default, rigorous imprisonment for three years for the offence under section 302 of the IPC and convicted for 7 years and fine of Rs. 5,000/­ and in default, rigorous imprisonment for 2 years for the offences under section 395 of IPC and further convicted the appellant for RI of 7 years and fine of Rs.5,000/­ and in default, RI for 2 years for the offence under section 397 of IPC and the learned Sessions Judge was pleased to acquit the appellant for the offence under section 400 of IPC.

2.3 Similarly, appellants of Criminal Appeal No. 1306 of 2012 were convicted for the offence under sections 395 and 397 of the IPC and was convicted for 7 years RI and fine of Rs. 5,000/­ each and in default, to undergo RI of 2 years for both the offences, i.e., offences under sections 395 as well as 397 of the IPC. However, the learned Sessions Judge was pleased to acquit the appellant for the offence under section 400 of IPC. The learned Sessions Judge has also been pleased to order that all sentences would run concurrently. Being aggrieved by the aforesaid judgment and order of conviction, the appellants have preferred these appeals.

At the outset, it deserves to be noted that in all, there were three appeals. Appeal being Criminal Appeal No. 1284 of 2012 was filed by Chandu @ Chando @ Raju Hemabhai Chunara and as per the record, the said appellant committed suicide at Rajkot Central Jail and therefore, by order dated 06.05.2016 passed by this Court, Criminal Appeal No. 1284 of 2012 stood abated. It is also noteworthy at this stage that the appellant of Criminal Appeal No. 1304 of 2012 as per the jail record, is absconding and similarly appellant no.4 of Criminal Appeal no. 1306 of 2012 Kalo @ Jayanti Arjanbhai @ Ajo Chunara is absconding. However, all the appeals are represented by learned advocates before this Court and hence, following the judgment of the Full Bench of this Court in Criminal Appeal No. 1564/09 dated 28.07.2015, the appeals were heard even in case of appellants who are absconding. The jail record further indicates that appellant no.1 of Criminal Appeal No. 1306 of 2012, i.e., Arjan @ Ajo Kanjibhai @ Kano Chunara has expired on 31.05.2015 and hence, Criminal Appeal No. 1306 of 2012 stands abated qua appellant no.1 Arjan @ Ajo Kanjibhai @ Kano Chunara.

Heard Mr. Salim Saiyed, learned advocate for appellant in Criminal Appeal No.1304/12 and for appellants No. 4 and 6 in Criminal Appeal No. 1306/12, Mr. Yogendra Thakore, learned advocate for appellants no. 2 to 3 and 5 in Criminal Appeal No. 1306/12 and Mr. Rakesh Patel, learned APP for the respondent State in both the appeals.

Mr. Salim Saiyed, learned counsel appearing for the appellants of Criminal Appeal No. 1304/12 and Criminal Appeal No. 1306/12 contended that in view of the evidence on record, it cannot be safely said that the role attributed to the present appellants is proved without any doubt, coupled with the fact that recovery and discovery from the place of occurrence was not identified by the appellant. It was further contended by Mr. Saiyed that the Test Identification Parade was conducted after one month of the assault and it is not full proof. It was contended that the Executive Magistrate has conducted a defective Test Identification Parade and therefore, the same cannot be believed. It was contended that in the first version, it is stated that four persons were there whereas 8 persons came to be arrested. It was further submitted that even according to the prosecution, the incident has occurred after 10 PM and it being fifth day after purnima, it cannot be believed that the first informant was able to identify the appellants. It was therefore contended that the appellants have been wrongly involved in the offence. It was further contended that no evidence connecting the appellants with the offence is found. It was also contended that no direct or indirect evidence is found about the involvement of the appellants.

Mr. Saiyed further contended that the version of the goldsmith is not trustworthy. It was further contended by Mr. Saiyed that the ornaments mentioned by the complainant is not found in original form and therefore, the same cannot be believed and hence, the conviction is based on wrong premises. Mr. Saiyed also contended that the prosecution has not been able to establish as regards intention of the appellants. On the aforesaid grounds, it was contended by Mr. Saiyed that the appellants have been wrongly convicted and the prosecution has failed to prove the offence as alleged against the appellants and therefore, submitted that the appeal be allowed by quashing and setting aside the judgment and order of conviction and sentence.

Mr. Yogendra Thakore, learned advocate appearing for appellants no.2, 3 and 5 in Criminal Appeal No. 1306 of 2012 has contended that all the three accused were identified in the Court for the first time and same would not be the circumstances for connecting the accused with the crime. It was further contended that so far as the circumstances of recovery of ornaments is concerned, the ornaments are not the real ornaments but gold and silver ingots and the prosecution has not been able to prove the ornaments beyond reasonable doubt and therefore, the prosecution has not been able to prove the guilt of any of appellants and therefore, the impugned judgment and order of conviction and sentence be quashed and set aside.

Per contra, Mr. Rakesh Patel, learned APP by referring to the evidence on record has submitted that the prosecution has proved beyond reasonable doubt the offences alleged against all the accused in both the appeals and the appeals being meritless, deserves to be dismissed. Mr. Patel contended that the evidence of the Dakshaben, injured eye witness, p.w.3 as well as the deposition of Doctor clearly proves beyond doubt the manner in which the appellants jointly overpowered the deceased as well as the injured eye witness. Referring to the deposition of the Doctor as well as PM notes, Mr. Patel contended that the nature of injuries mentioned and the deposition of the Doctor clearly suggest that the offence alleged by the prosecution is supported by the witness. Mr. Patel contended that the first informant, complainant herself is the eyewitness and her version clearly proves beyond doubt the offences alleged against the appellants. Relying upon the judgment of the Apex Court in the case of Abdul Sayeed vs. State of Madhya Pradesh & Ors reported in 2010 (10) SCC 259, Mr. Patel contended that some weightage deserves to be given to the version of the injured eyewitness and the same cannot be discarded. Referring to the deposition of the goldsmith, p.w.9, Mr. Patel contended that the same clearly shows that Arjan and Lakhu came along with two females to sell the same ornaments which were described by the injured eye witness. Mr. Patel, learned APP submitted that goldsmith has no connection whatsoever with the deceased injured eye witness or appellants and therefore, there was no reason for the goldsmith to make a false statement. Mr. Patel further contended that the injured eyewitness has identified three accused in the Test Identification Parade which is supported by the evidence of the Executive Magistrate as well as the panch witness, p.w.13. Mr. Patel, relying upon the judgment of the Apex Court in the case of Malkhansingh & Ors. Vs. State of M.P. reported in (2003) 5 SCC 746, contended that even in absence of test identification parade, the version of eyewitness cannot be discarded. It was also contended that the appellants have not been able to dislodge the version of the eyewitness which is very clear and the appellants have failed to point out any contradiction in the same. It was therefore contended that the version of the injured eyewitness clearly proves the offence alleged against all the accused beyond doubt and the learned Sessions Judge has rightly convicted all the appellants, which does not call for any interference by this Court in its appellate jurisdiction. Mr. Patel, learned APP further contended that all the appellants are habitual in committing offence as alleged. Mr. Patel contended that in a similar offence, the appellants have been convicted by this Court in Criminal Appeal No. 1394 of 2013. Mr. Patel contended that the prosecution has been able to prove the guilt of the appellants beyond reasonable doubt and therefore, the appeals being meritless, deserve to be dismissed.

The prosecution has examined Dr. Maheshkumar Purshottambhai Kapadia, p.w.1 at exhibit 13 who was working as C.M.O. at Civil Hospital, Ahmedabad, who has performed the post mortem of the deceased Rajeshbhai Kanaiyalal Acharya. He has stated in his examination in chief that while he was on duty on 21.03.2009, at the postmortem room of Civil Hospital, Ahmedabad, the Senior Police Sub­Inspector Shri Sarode of Aslali Police Station came with a yadi for post mortem of deceased Rajeshbhai, which came to be registered as P.M. No. 744/09 dated 21.03.2009. He has stated that the post mortem was conducted between 12.30 pm to 1.48 pm. In para 4 of his examination in chief, he vividly described the injuries on the person of the deceased Rajeshbhai. In his further examination in chief, he has categorically stated that the injuries mentioned in column no.17 and 19 of the PM note can be inflicted by a stick and such injuries are sufficient to cause death. In his cross­examination, he has stick to his version in the chief.

The prosecution has also examined Dr. Nitaben Bahadursinh Dodiya, the Doctor working at C.H.C., Saijpur, Ahmedabad as medical officer. She has stated in the cross­examination the injuries received by Dakshaben, the first informant and injured eye witness. She has stated in her examination in chief that the injuries received by Dakshaben can be caused by hard and blunt substance like stick or dhoka and in her cross­examination, she has stated that the injury can also be caused if somebody falls down from the vehicle.

The prosecution has examined the most crucial witness p.w.3 Dakshaben, first informant and injured eye witness at exhibit 21. The said witness has narrated the whole incident from the purpose for which she and her deceased husband had gone to Ghatlodia at their client's place and were returning on the date of the incident on scooter and has also further narrated that when they were on Lambha Indiranagar road, how the appellants attacked them and how they were dragged. She has also narrated how her husband deceased Rajeshbhai was assaulted with the dhoka and has given detailed picture about the incident. She has also narrated in her examination in chief as regards the test identification parade held at the Collector office at Ahmedabad and how she has identified Govind, Atul and Lakhuda and she has also identified the appellant accused in the Court. In her cross­examination, she has reiterated the fact that she has identified three accused in the test identification parade and as it was fifth day after purnima, she could identify them because of the moonlight. She has denied the suggestion of the defence that the injuries upon the person of the deceased as well as injuries sustained by her were because of some accident. She has categorically denied all other suggestions made by the defence. This witness has also reiterated the version in the FIR at exhibit 22.

The prosecution has also examined p.w.4 Anilbhai Ukabhai Solanki at exhibit 24. The said witness has stated that on hearing the voice of a lady asking for help, he along with his friend Kirpal were passing by the Lambha road and has narrated that one male whose hands and legs were tied up was injured and was bleeding and has also stated that he had injuries on the head. He has also narrated that he saw a lady who had also received some injuries and was frightened. He has stated that at the instance of the lady, he made a phone call to the son of the lady and also called ambulance 108. He had stated that the lady informed him that she has been looted by 4­5 persons and her necklace (mangalsutra), anklet, chain and earrings were being looted. He has further stated that when he reached there on his bike, the persons ran away because of the light and that he had seen 4­5 persons. He has further stated that however, because of the darkness, he could not see their faces. He has stated that Rajubhai was thereafter taken in 108 ambulance along with the lady and her son to L.G. Hospital. In his cross­examination, he has stated that on hearing the shout, he went their and had to stay there for half an hour. He has also stated that during that half an hour, except them nobody came to rescue/help the injured. He has stated that the deceased was known to them as they were staying in the same area, however, he has stated that he does not know his son Mayank.

The prosecution has also examined Mayankbhai, son of the deceased at exhibit 25. He had narrated the fact that he received a phone call on his mobile from Anilbhai and on coming to know, he went to the scene of occurrence and found his father injured and profusely bleeding. He has stated that Anilbhai and another person were their. He has also narrated that he found that his father had received injuries on head, eyes and face etc. and found bleeding from nose. He has stated that his father was not in a position to speak anything and he inquired from his mother, who narrated the incident. In his cross­examination also he has stood to the factum as stated in his examination in chief.

The prosecution has further examined Shri Bhikhabhai Solanki at exhibit 26 who was the panch witness of the scene of occurrence and he has supported the case of the prosecution. Over and above the same, the prosecution has also examined Ramkrupal Gupta, p.w. 7 exhibit 35 who was with p.w.4 Anilbhai Ukabhai Solanki on his scooter. The said witness has also stated that on hearing the shouts of a lady for help, he and Anilbhai turned back and reached the scene of occurrence. He has further deposed as regards the injuries found on the person of the deceased and the fact that they were informed by the lady, i.e., the first informant about the fact that her ornaments like anklet, earring, nose ring, silver mangalsutra were taken out and looted. He has also stated that the lady also further informed that money kept in her husband's purse were also taken away by the appellants­accused. He also further stated that Anilbhai made a phone call to the son of the said lady and also called 108 ambulance and he has further stated that thereafter the deceased was taken to L.G. Hospital in the 108 ambulance. In his cross­examination, he has stated that first informant Dakshaben and Mayankbhai stay away from his house. He has denied the fact that they stay in the same division. However, nothing contrary is found from the cross­ examination.

The prosecution has also examined Hareshkumar K. Acharya at exhibit 37 who is the brother of the deceased. He has narrated that he had visited the house of his brother at noon and he was informed that he and his wife had to go to his clients place at Ghatlodia and thereafter, he had further narrated that he received a phone call from his nephew Mayank who had informed about the incident. He has further stated that on coming to know about the same, he want to L.G. Hospital and after giving some treatment as outdoor patient, his sister­in­law, i.e., first informant was discharged whereas his elder brother was admitted to the trauma ward of the said hospital and he expired after 3­4 days. In his cross­examination, he has admitted the fact that he came to know about the incident when he received the phone call from his nephew and he immediately rushed to the scene of occurrence. He has further stated in his cross­examination that after he reached the scene of occurrence, after half an hour, the 108 ambulance reached the same place. He has further stated that when he reached there, except his brother and his sister­in­law and two other persons, nobody was found on the place of occurrence. The prosecution has examined one Uttambhai Panaji Soni, p.w. 9 who is the goldsmith at exhibit 38 and has shop in the name and style of Ambica Jwellers at Narol. He has stated that Arjanbhai, one old lady and their son and two other persons had come to his shop. He has further stated son of Arjanbhai and two ladies informed him that there is some financial problem and therefore they want to sell the gold ornaments. He has further stated that the said persons came to his shop on 18.04.2009 at about 6.00 pm. He has further stated that there was one gold nose ring (chuni), two gold earrings, silver mangalsutra and silver anklets. He has further stated that after valuing the same, he gave Rs. 4,000/­ to them. He stated that he had prepared one ingot from gold and two from the silver. He has stated that those ingots he has given it to Aslali police station. He has further stated that the police came along with thief to his shop and Arjanbhai has shown his shop to the police. The said witness identified Arjanbhai. He has stated that though he does not remember distinctly the weight of the ingots, he has further stated that one ingot was 25 gms and other was 70­75 gms. He has further stated that gold ingot was approximation of 5 grams. He has stated that before giving the ingots, he had weighed them and a certificate was also given. He has also identified the ingots before the Court. He has also identified the person who had accompanied Arjanbhai to his shop viz., Lakhubhai. In his cross­examination, he has denied the fact that he has purchased the ingots from the market. He has categorically stated that after the ornaments were purchased, he prepared ingots within 2­3 days. He has also denied the fact that he cannot prepare ingot. He has also denied the fact that only in the licenced place, ingots can be made. He has categorically stated that two females and two males had come to sell the ornaments. He has also stated that he did not asked for any bill from the persons who had come to sell the ornaments and neither he had given any bill on purchased of the said ornaments. He has stated in his cross­examination that Lakhu Chandu and Arjanbhai had come together with the police to his shop and stayed their for about 15­20 minutes. He has denied all other suggestions made by the defence. He has also narrated the certificate of the ingots given to the Circle Inspector, Aslali which is at exhibit 39.

The prosecution has also examined p.w. 10 Rakesh Natvarbhai Parmar at exhibit 40, who was panch witness of the articles who has not supported the case of the prosecution. However, the same is not noteworthy fact. Similarly, the prosecution has examined p.w.11 Mehulbhai Bhavaanbhai Baghela, who was also the panch witness who had turned hostile. However, nothing noteworthy is found from his evidence. The prosecution has also examined Satishbhai Jayantilal Joshi at exhibit 44 as p.w.12, the panch witness of the inquest. The prosecution has also examined one Mitenbhai Sureshkumar Chokshi at exhibit 46, p.w.13, who was panch witness of the test identification parade. He has narrated the manner in which he was called as panch and has narrated the factum of the three of the appellants­accused having been identified by the first informant Dakshaben. In his cross­examination, he has stick to his version and nothing contrary is found from his cross­examination. The panchnama of test identification parade is at exhibit 47, which indicates that three accused Atul Arjanbhai Chunara, Govind @ Dholo Arjanbhai Chunara and Lakhubhai Chandubhai Chunara were identified by the first informant Dakshabe Rajeshbhai Acharya.

The prosecution has also examined pw.14 Prakashbhai Visabhai Dutt at exhibit 50 who was working as Deputy Mamlatdar in the office of Mamlatdar and ALT, Viramgam and also Deputy Mamlatdar and Executive Magistrate, Dascroi Taluka, who conducted the Test Identification Parade on 24.04.2009. The said witness has also narrated the whole procedure held for TI parade and the fact that the first informant Dakshaben had identified the three accused. He has further narrated the manner in which the Test Identification Parade was conducted at the office of the Collector, Ahmedabad and has also narrated the fact about the panchas present at the time of TI parade. In his cross examination, he has stated that out of six accused, the first informant could identify three and could not identify the other three. He has denied all other suggestions put by the defence and stick to the examination in chief.

The prosecution has also examined Upendrabhai Rameshbhai Patel, p.w. 15 at exhibit 52 who was a panch witness of the scene of occurrence who has turned hostile. Similarly, Kiranbhai Sanabhai Thakore was examined as p.w.16 at exhibit 59, who was panch of the scene of occurrence has also turned hostile. Nothing contrary is found. Amrishbhai Ramabhai Prajapati, p.w.19 at exhibit 65 who was panch witness for the mudammal cloths, turned hostile. The prosecution has examined P.W. 20, Pruthvisinh Bharatsinh Chauhan at exhibit 66, who was working as second PSI, Aslali Police Station. The said witness has stated that he was working as second PSI at Aslali Police Station and was on night duty on 17.03.2009 and that he received a vardhi from PSO Dilipsinh as regards L.G. Hospital. He has stated that he immediately went to L.G. Hospital, wherein the first informant Dakshaben had lodged the FIR, signehd by him, which is at exhibit 22. He has stated that after lodging the FIR, he registered the offence and prepared panchnama of the scene of occurrence in presence of two panchas which is on Kamod Lambha road which was shown by Mayankbhai. He has also further stated that he found one handkerchief, stick, blood stained chappals, piece of sari, broken helmet, shivaji bidi. He has stated that he had taken the sample of soil and sent it to FSK. He has also stated that he found Eterno scooter stained with blood. He has also stated that how the panchnama from exhibit 28 to 33 were prepared. He has denied the suggestion of the defence that he has concocted the FIR. He has also denied the fact that he has prepared the panchnama of scene of occurrence without visiting the same. He has also denied the fact that the panchnama has been prepared at the police station. He has also denied other suggestions of the defence. He also denied the fact that the incident has occurred on the highway. He has however stated that there was no street light on the road. He has also stated that the movement on the road was very less. He has also denied the fact that the muddamal was not found from the scene of occurrence, but was gathered from other place.

The prosecution has also examined p.w.21 Jagdevprasad R. Mishra, who was working as Circle Police Inspector at Aslali Police Station who had arrested the appellants. He has also stated the manner in which the Test Identification Parade was conducted by the Executive Magistrate. He has also stated that he had prepared the panchnama of the scene of occurrence. He has also stated that he had made the panchnama at exhibit 41 and had taken custody of the gold as well as silver ingots. He has denied the fact that the appellants­ accused were not taken together at the scene of occurrence. Even in his cross­examination, the said witness has narrated the manner in which the investigation has been carried out by him. He has stated that he has not taken any further statement of the first informant. He has stated that the scene of occurrence is a public place. He has also stated that he has visited the scene of occurrence. He has further stated that both the victims were dragged from road. He has stated that there was darkness on the road and the movements were less. He has denied the fact that the appellants were not taken to the scene of occurrence as shown by them. He has also denied the fact that the panchas were not brought to the scene of occurrence. He has denied that the signatures were taken on ready made panchnama. He has also denied the suggestion of the defence that the ingots were not recovered. He has also denied the fact that even though the accused are not involved in the offence, they have been wrongly arrested and wrong charge­sheet has been filed. He has also denied other suggestions of the defence.

The prosecution has also examined p.w.22 Rakesh Malharrao Sarode at exhibit 71, who was working as senior police inspector with Aslali Police Station. He has narrated that he received the information as regards the death of Rajeshbhai during treatment at L.G. Hospital and the panchnama having been prepared. He has also stated that the inquest panchnama was prepared and the body of the deceased was sent for postmortem to the Civil Hospital. He has also stated that the articles recovered from the scene of occurrence by the investigating officer Shri Chauhan were sent to FSL. He has also stated as regards the serological report at exhibit 74. In his cross­examination, he has denied the suggestion of the defence that the inquest panchnama was not prepared in presence of the panchas. The prosecution has also examined p.w. 23 Dilipsinh Shivsinh Vaghela, P.S.O. of Aslali Police Station at exhibit 78. In his examination in chief, he has mainly stated about the yadi received from Dr. Nitaben Bahadursinh Dodiya of L.G. Hospital and the factum that he informed P.B. Chauhan, PSI of the incident and the offence being registered by him etc., In his cross­examination, he has stick to the version given by him in the examination in chief.

The learned Sessions Court after appreciating the evidence on record, has convicted the appellant of Criminal Appeal No. 1304 of 2012, i.e, Govind @ Dholo Arjanbhai @ Ajo Chunara for offences under sections 302, 395, 397 and 400 of IPC and sentenced the said appellant for imprisonment of life and fine of Rs.10,000/­ and in default, rigorous imprisonment for three years for the offence under section 302 of the IPC and convicted for 7 years and fine of Rs. 5,000/­ and in default, rigorous imprisonment for 2 years for the offences under section 395 of IPC and further convicted the appellant for RI of 7 years and fine of Rs.5,000/­ and in default, RI for 2 years for the offence under section 397 of IPC and the learned Sessions Judge was pleased to acquit the appellants for the offence under section 400 of IPC.

Similarly, appellants of Criminal Appeal No. 1306 of 2012 were convicted for the offence under sections 395 and 397 of the IPC and were convicted for 7 years RI and fine of Rs. 5,000/­ each and in default, to undergo RI of 2 years for both the offences, i.e., offences under sections 395 as well as 397 of the IPC. However, the learned Sessions Judge was pleased to acquit the appellants for the offence under section 400 of IPC. The learned Sessions Judge has also been pleased to order that all sentences would run concurrently. Being aggrieved by the same, the appellants have preferred these appeals.

Upon considering the evidence on record and having heard the learned advocates for the respective parties and more particularly the deposition of the complainant and injured eyewitness at exhibit 21, there is no doubt that the incident has taken place. The said witness who is an injured eyewitness has clearly given a detailed account of the manner in which the incident has occurred and the manner in which the appellants have assaulted the deceased as well as the complainant and helpless situation in which the complainant was put with because of the assault on the body of her husband and both of them being dragged into the bushes and hence, from the evidence on record, the prosecution has proved beyond doubt the occurrence of the incident. The record indicates that the incident has occurred after 10 PM night on lonely road. Even considering the geographical location, even though it was a lonely road, it was well connected with the city of Ahmedabad and only because it was 5th day after purnima, it cannot be said that there was no moonlight at 10.00 PM which would not enable the injured witness to identify the appellants­accused. The evidence shows beyond doubt that the deceased as well as the original complainant were not only dragged, but were manhandled and as the evidence shows that the husband of the original complainant, deceased Rajeshbhai was assaulted on vital part of the body, i.e., head, with a dhoka proves that the original complainant had eye to eye connect with the appellants and therefore, the identification at the test identification parade as far as three appellants are concerned and others in the Court does not create any doubt. Upon re­appreciation of the version of the injured eyewitness, the original complainant, this Court finds that there is a ring of truth in the same. Even considering the evidence of Dr. Maheshkumar Purshottambhai Kapadia, p.w.1 at exhibit 13 who performed the postmortem upon the body of deceased Rajeshbhai, has clearly indicated the injuries received by the deceased which can be caused with hard and blunt substance like stick or dhoka.

The presence of Prakashbhai Visabhai Dutt at exhibit 50, panch witness, cannot be termed as got­up witness or an adjusted witness. Considering his deposition at exhibit 50, it clearly shows that he was present at the Collector office as he had come for his personal work of renewal of some permit and therefore, his presence as a witness at test identification parade was natural. Considering the deposition of pw.14 Prakashbhai Visabhai Dutt at exhibit 50, who conducted the Test Identification Parade, we find that there is no inconsistency or defect in conducting of the Test Identification Parade. The Executive Magistrate had given detailed account of the manner in which the Test Identification Parade had been carried out and the panch witness supports the said version. The panchnama as well as the version of the Executive Magistrate clearly establishes the fact about the manner in which the Test Identification Parade was held and the three appellants being identified in the said Test Identification Parade and such identification parade is conducted in a legal and proper manner which cannot be discarded and such identification parade deserves acceptance and hence, the involvement of appellants thus stands established beyond doubt. As observed hereinabove, the original informant and the injured eyewitness has identified the other appellants in the Court and her version to that effect about the involvement of the appellants is beyond doubt. Therefore, it cannot be said that the Test Identification Parade was not fully proved and it cannot be said that it was defective in any manner. Even considering the deposition of the goldsmith at exhibit 38, he has also identified the appellant who had come for sale of the ornaments. The goldsmith has clearly stated about the gold as well as silver ornaments which was found from Arjanbhai and other persons who had come to his shop. Conversion of the original ornaments by the goldsmith does not create any doubt about the version of the goldsmith as the conversion in ingots is in the course of his business. There is nothing on record to show that the goldsmith was in any way connected with the first informant, deceased or appellants/accused and therefore, it cannot be said that the version given by the goldsmith is untrustworthy.

From the evidence on record and on its re­ appreciation, it can clearly be asserted that taking advantage of the time of the occurrence and loneliness on the road and finding the couple, i.e., first informant and the deceased on their scooter, with an intention to commit offence, attacked the deceased with a hard and blunt substance like dhoka and assaulted on the vital part of the body knowing fully well that the same may result into death, dragged both the deceased and the original complainant, the injured eyewitness, in the bushes and took away the gold and silver ornaments and other belongings of the injured eyewitness as well as of the deceased including ATM card. Even the testimony of the investigating officer does not support the submissions made by the learned counsel appearing for the appellants more particularly as regards the identity of the mudammal or recovery of the weapon. Merely because recovery/discovery panchnama is not corroborated by the panch witness, the same does not brush aside the other evidence and more particularly the version of the injured eyewitness and the independent witness like goldsmith who has identified the appellants accused in the Court and has also narrated that he was approached with the gold as well as silver ornaments by the two appellants accused on the ground that they needed money for their family.

It also deserves to be noted that the appellants­accused have been convicted for similar offence under sections 395 and 397 of IPC and even the appeals being Criminal Appeal No. 1267/13 with Criminal Appeal No. 1395/13 have been dismissed by this Court.

Upon overall consideration of the evidence on record, the occurrence of incident, presence of the appellants­accused, their involvement and totality of the circumstances with the material and evidence, it clearly establishes that the prosecution has been able to prove the guilt beyond reasonable doubt. The learned Sessions Court has rightly recorded conviction on correct appreciation of material and evidence on record and the same does not call for any interference in the present appeals. Resultantly, both the appeals stand dismissed.