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Judgment
Z.K. Saiyed, J.—The appellant has preferred this Appeal u/s 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 31st August 2005 passed by the learned Presiding Officer, Fast Track Court, Anand, in Sessions Case No. 260 of 2004, whereby the learned Judge has convicted the appellant-accused u/s 392 of the Indian Penal Code whereas the learned Judge has acquitted the appellant for the offence under Sections 506(2) and 114 of the Indian Penal Code.
It is the case of the prosecution that on 20th February 2004 at about 20:30 hours when the original complainant in this case viz. Bhagvandas Narayanbhai Rabari, residing at Kelanpur, Dabhoi Road, Vadodara, passing through Samarba Cross Roads in his Maruti Zen Car, present appellant-original accused with other co-accused stop the Car of the original complainant by raising hands and asked the complainant for lift. The appellant and other co-accused also assured that they will pay the rent whatever the original complainant think fit. It is also the case of the prosecution that when the car was passing through Kachchha road behind Cargo Motors, Vadodara, they asked the original complainant to stop the car on the ground of nature call. At that point of time, the appellant and other co-accused lift the original complainant from neck portion by giving feast blows throw the original complainant Bhagvandas on the back seat of the Car. Thereafter all the accused persons including the present appellant by giving threat to kill the original complainant looted Rs. 800/- from his pocket. Thereafter all the accused persons including the present appellant tide the eyes of original complainant and drop him at Nabipur Janod Road looted his Zen Car worth Rs. 3,60,000/- and ran away.
Therefore, a complaint to the said effect was filed by the original complainant on 21st February 2004. Thereafter panchnama of clothes of original complainant and place of offence. Thereafter as the accused persons were found, panchnama of car was as well as the place shown by the accused were drawn. Test Identification Parade was also held before the Executive Magistrate.
Thereafter the police completed the investigation by recording statements of witnesses and and on completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case to the Court of Sessions, which was given number as Sessions Case No. 260 of 2004.
Thereafter, charge was framed against the appellant. The appellant-original accused has pleaded not guilty and claimed to be tried.
In order to bring the home the charge levelled against the appellant-accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.
Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of the Code of Criminal Procedure, 1973 was recorded in which the appellant-accused has denied the case of the prosecution.
After hearing both the sides at length, the learned Presiding Officer, Fast Track Court, Anand, has passed the judgment and order of conviction dated 31st August 2005 in Sessions Case No. 260 of 2004, whereby the learned Judge was pleased to convict the appellant u/s 392 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of five years and fine of Rs. 1,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of one month. The learned Judge has acquitted the appellant for the offence punishable under Sections 506(2) and 114 of the Indian Penal Code.
Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 31st August 2005 passed by the learned Presiding Officer, Fast Track Court, Anand, in Sessions Case No. 260 of 2004, the appellant above-named preferred the present appeal.
Heard Ms. Sejal Mandavia, learned Counsel for the appellant and Mr. H.H. Parikh, learned Additional Public Prosecutor for the respondent-State.
Ms. Mandavia has contended that the judgment and order of conviction passed by the learned Judge is erroneous, illegal and unwarranted on the facts and circumstances of the case. She has contended that nothing was recovered from the present appellant. She has also contended that not a single witness has deposed in the entire proceedings against the appellant and what type of role the appellant has played is not transpired from any of the depositions of the witnesses on the side of prosecution. She has contended that prosecution has examined complainant as a prosecution witness No. 3. He is a star witness of the prosecution case and eye-witness in the instant case. Ms. Mandavia has read the oral evidence of the complainant at Exhibit 22 and argued that the complainant himself in the deposition before the Court has deposed that the incident had taken place in the evening hours and therefore, he could not recognise the three accused. Thus, there is total contradiction between the complainant and his deposition. She has also contended that ingredients of Section 377 of the Indian Penal Code have not been established. She has also contended that the so-called incident has been taken place on 20th February 2004 and after four months, the complainant was called by the police for identification. She has also contended that identification was not held in proper manner. Even all the panchas have been turned hostile. Panchas have not supported the case of the complainant. Ms. Mandavia has read Exhibit 45-news published in Sandesh daily newspaper dated 03rd July 2004 and contended that in news item, photograph of two persons were published posing them as accused. Therefore, question of identification is baseless. She has read the oral evidence of prosecution witness No. 11-Mamlatdar and also read the cross-examination of the said witness. She has contended that in the cross-examination, the said witness-Mamlatdar has admitted that when the photographs of the persons posing them as accused was published in newspaper, question of identification can be resulted in negative. Thus, when the identification resulted fatal and when identification was not held as per the guidelines issued by the Supreme Court of India, the learned Judge has committed grave error in convicting the present appellant. Ms. Mandavia has also contended that when all the witnesses have been declared hostile and when the complainant himself has deposed that the incident had taken place in the evening hours and therefore, he could not recognise the accused persons, and especially when no independent witnesses have been examined, the learned trial Court has wrongly convicted the appellant in the so-called incident. She has also contended that the learned Judge has grossly erred in not believing the case of the defence. She, therefore, contended that looking to the facts of the case, circumstantial evidence, conduct of the complainant and other witnesses and the documentary evidence produced on record of the case, the judgment and order of conviction passed by the learned Judge is illegal, unjust and bad in law and hence, the same deserves to be quashed and set aside in the interest of justice.
Mr. H.H. Parikh, learned Additional Public Prosecutor, has read the oral evidence of prosecution witness No. 14 at Exhibit 44 of A.S.I. And argued that present appellant was taken into custody through transfer warrant and originally he was arrested u/s 41D of the Code of Criminal Procedure. Muddamal car was recovered from the appellant-accused and therefore, presumption can be drawn against the appellant-accused. He has also contended that the prosecution has proved its case against the appellant-accused beyond reasonable doubt. He has also contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper order. He, therefore, contended that the judgment and order of conviction passed by the learned Judge is required to be confirmed.
I have gone through papers produced before me and the judgment and order of conviction passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions advanced by learned Counsel for the parties.
In the instant case, the appellant-accused was arrested by the police after more than four months and as per the evidence of the complainant himself, because of the darkness at the time of incident, he was not able to identify the appellant-accused. Even from the oral evidence of the complainant it is also established that prior to the Test Identification Parade held by the Mamlatdar, the original complainant was with the police and at the police station all the accused including the present appellant were shown by the police to the complainant and he was advised by the police that these three persons are accused and the complainant has to identify them as offenders in the present case. Thus, looking to the evidence of the original complainant himself, T.I. Parade cannot be said to be just and fair. It is also transpired from the papers that muddamal car was not recovered from the present appellant. I have also perused oral evidence of the Mamlatdar, by whom T.I. Parade was carried out. As pr the oral evidence of Mamlatdar, he has not followed the guidelines issued by the Supreme Court on this behalf. Even I have also perused contention of Identification Panchnama. All the panchas of Identification Panchnama were turned hostile. I have also gone through the newspaper published in Sandesh daily newspaper dated 03rd July 2004. When photographs of the accused including present appellant were published in the newspaper posing them as accused, question of Identification cannot be considered. Thus, when oral evidence of the star witness in the instance case, viz. Complainant himself, is not in corroboration with the case of the prosecution and also when identification was not proved beyond reasonable doubt, benefit of doubt is required to be given to the appellant-accused.
From the perusal of the papers and oral as well as documentary evidence, I am not in agreement with the reasons assigned by the learned trial Court and I am of the opinion that the learned Judge has committed error in convicting the appellant. Looking to the overall facts and circumstances of the case, I am of the opinion that benefit of doubt is required to be given to the appellant-accused. Hence, the judgment and order of conviction passed by the learned Judge is required to be quashed and set aside.
In view of above observations, present appeal is allowed. The Judgment and Order of conviction and sentence dated 31st August 2005 passed by the learned Presiding Officer, Fast Track Court, Anand in Sessions Case No. 260 of 2004, is hereby quashed and set aside. The appellant is directed to be set at liberty forthwith, if not required to be detained in any other case. Bail bond, if any, shall stand discharged. Record and Proceedings, if any, be sent back to the trial Court forthwith.