Jitendrasing Jogendarsing Rajput vs The State of Gujarat

J.C. Upadhyaya, J.—Both these appeals arise out of a judgment and order rendered by learned Fast Track Judge, Court No. 3, Gandhinagar on 5.8.2004 in Sessions Case No. 46 of 2003. The appellants in these appeals came to be convicted for the offences punishable under Sections 395, 398 read with Section 120B of the Indian Penal Code (''IPC'', for short) and Section 25(1)(A) of the Arms Act and were sentenced to undergo R.I for ten years and fine of Rs. 2000/- each, in default, imprisonment for six months for the offences punishable under Sections 395, 398 read with Section 120B of the IPC, and imprisonment for three months and fine of Rs. 1000/- each, in default, imprisonment for three months for the offence punishable u/s 25(1)(A) of the Arms Act. However, the original accused No. 5-Jayprakash Raghunath Tivari came to be acquitted.

The prosecution case in nutshell is that on 24.2.2003, at about 9.30 p.m., a semi-luxury mini bus bearing registration No. GJ-1X-9741 picked up passengers from Vadaj and thereafter from Visat Petrol Pump, Chandkheda, Ahmedabad and was on route to Mehsana. It is alleged that from Chandkheda pick-up point, four passengers within the age group of 30 to 35 years boarded the bus for Mehsana. Out of those four passengers, one was standing near the door of the bus inside the bus, and the three were standing inside the bus, away from the door. At about 10 p.m., when the bus reached near Adalaj, at that time, the passenger who was standing near the door of the bus, aimed a revolver at the first informant Ismailkhan Hasankhan, who was conductor of the bus and told him to stop the bus. The conductor thereupon told driver of the bus to stop it. At that time, the three passengers who were standing inside the bus, also aimed their revolvers and knife at the other passengers, who were travelling in the bus and asked the passengers to give their valuables and cash to them. The four miscreant passengers, thus robbed cash amount worth Rs. 9170/-, wrist watches, mobile phones etc. within a very short span of time and they left the bus and told the driver to drive away the bus immediately. After covering some distance, bus was parked near one STD booth and police was telephoned. Police came on the spot and the first informant Ismailkhan Hasankhan lodged the first information report, which came to be registered in Adalaj police station. Police commenced investigation. During the course of investigation, it was revealed that three more miscreants were chasing the bus in one Ambassador car, and the four miscreants, who got down from the bus after committing the robbery, fled away in said Ambassador car, in which the three miscreants were chasing the bus. It was further revealed that after the car went at some distance, it left the road and went into a ditch, and thereupon all the seven miscreants ran away. During the course of investigation, those seven miscreants were arrested as accused in connection with this incident. Test Identification Parade (''TIP'', for short) was conducted in presence of first informant and statements of material witnesses were recorded, muddamal weapons-pistol, revolver and knife were recovered, including the cash amount of Rs. 4170/-. After the Investigating Police Officer collected sufficient material for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the Court of learned JMFC, Gandhinagar. Since the offences were exclusively triable by the Court of sessions, the case came to be committed to the Court of sessions, Gandhinagar, which was registered as Sessions Case No. 46 of 2003.

2.1 The learned trial Judge framed charge against all the seven accused persons at Exh.5 in connection with offences punishable u/s 395, 398 read with Section 120B of the IPC and Section 25(1)(A) of the Arms Act, to which they did not plead guilty and claimed to be tried. Therefore, the prosecution adduced its oral and documentary evidence. After the completion of the documentary evidence adduced by the prosecution, the learned trial Judge recorded further statements of all the seven accused persons, including the appellants, u/s 313 of the Code of Criminal Procedure. The accused in their further statements denied generally all the allegations levelled against them by the prosecution and submitted that they were falsely implicated in this case. After appreciating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge recorded conviction of the appellants herein for the offences punishable under Sections 395, 398 read with Section 120B of the IPC and Section 25(1)(A) of the Arms Act and awarded the sentence as hereinabove referred to in this judgment. However, the original accused No. 5 Jayprakash Raghunath Tivari came to be acquitted. The appellants challenged their conviction by preferring these two appeals. However, the acquittal of original accused No. 5 Jayprakash Raghunath Tivari was not challenged by the State by preferring any appeal u/s 378 of the Cr.P.C.

We have heard learned advocate Mr. Thakkar and Mr. Brahmbhatt for the appellants in connection with these appeals. It is submitted that the entire case is based upon the identification of the appellants. Considering the FIR, no specific description of any of the appellants has been mentioned by the first informant. They are described by the clothes worn by them. That the TIP conducted by the Executive Magistrate, came to be arranged in the premises of police station. The police authority did not take any precautions to see that before TIP, the witnesses may not see the accused persons. That the TIP was not arranged immediately after the arrest of the accused. It is further submitted that as per the case of the prosecution, and even as per the evidence adduced by first informant Ismailkhan Hasankhan, the conductor of the bus and Maheshbhai Chaudhari, Manager of the bus, who was allegedly travelling in the bus and the passenger-Ramanbhai Patel allegedly travelling in the bus, four accused persons boarded the bus from pick-up point of Chandkheda. They did not say that three other accused persons were chasing the bus in Ambassador car. Despite this, some of the witnesses identified those, who were in the car and admittedly not in the bus. This creates doubt about the evidence adduced by the prosecution by way of TIP. Even those three eye-witnesses who claimed to have identified the four accused persons, during the course of TIP, but, considering their evidence, it transpires that each of them identified different accused persons. That the evidence regarding recovery and discovery of weapons is not cogent and beyond any reasonable doubt. The panchas did not support the recovery and discovery panchnama. Weapons like pistol and revolver were not sent to FSL for any ballistic opinion. Thus, the prosecution failed to establish the identity of the appellants and their involvement in this case. Therefore, it is submitted that both the appeals may be allowed.

Learned APP Mr. Mengdey for the respondent-State vehemently opposed these appeals and submitted that the prosecution successfully proved the identification of the appellant and their involvement in the incident. There is no reason to discard the evidence adduced by the prosecution in connection with the TIP. The TIP was arranged within two days from the date of arrest of the appellants. In the TIP, the three witnesses identified the appellants. The defence have not seriously challenged the fact that at the time of incident, three eye-witnesses being conductor and manager of the bus and one passenger were travelling in the bus itself, wherein the dacoity took place. That the dacoity, which is a highway robbery took place after sunset and before sunrise. The weapons like revolver, pistol and knife were recovered from the appellants, including the booty of cash amount to the extent of Rs. 4170/-. Therefore, it is submitted that both the appeals may be dismissed.

We have considered the record and proceedings of the trial Court in context with the submissions made on behalf of both the sides.

Considering the evidence of first informant Ismailkhan Hasankhan, Exh.35 and witnesses Mahesh Chaudhari, Exh.33 and Ramanbhai Patel, Exh.38, they say that at the time of robbery, they were travelling in the bus. First informant Ismailkhan Hasankhan was conductor and witnesses Maheshbhai was Manager of the Travel Agency of the bus and witness Ramanbhai Patel was a passenger. The bus was on route from Ahmedabad to Mehsana. Four persons boarded the bus from Chandkheda pick-up point. They deposed that when the bus reached near Adalaj, round about 10 p.m., at that time, those four accused aiming revolver and pistol to the conductor and other passengers, told to surrender them their cash and valuable articles. Those four accused persons looted cash amount and other valuable articles, including a mobile phone of witness Ramanbhai Patel. In the FIR, it is the stated that those four miscreants were of the age group of 30 to 35 years and the clothes worm by them have been described.

6.1 It has come on evidence of the Investigating Police Officer that all the seven accused persons, including the six appellants came to be arrested on 1.3.2003. TIP was conducted by Executive Magistrate on 4.3.2003. The TIP panchnama is produced at Exh.40. In connection with this panchnama, the prosecution examined panch Amrut Patel at Exh.39 and Rajendrasinh Amarsinh Rathod at Exh.43. Executive Magistrate Bharatsinh Bihola is examined at Exh.46. Perusing the evidence of both the panchas, they support the contents of the TIP panchnama, Exh.40. Considering the evidence of Executive Magistrate, Mr. Bharatsinh Bihola, Exh.46, he deposed that the TIP was arranged on 4.3.2003 at the premises of Adalaj police station and the proceedings were commenced at 12.30 p.m. and ended at 2.20 p.m. In this connection, considering the TIP panchnama, Exh.40, it is explained as to why the TIP was conducted in the premises of police station, that if the accused were be taken to the office of Executive Magistrate, then there were all the chances of their absconding. The first informant Ismailkhan Hasankhan and witnesses Maheshbhai and Ramanbhai were called for the purpose of identifying the accused persons. During the course of TIP panchnama, the accused came to be identified as per the panchnama. However, the evidence of first informant Ismailkhan Hasankhan and witnesses Maheshbhai Chaudhari and Ramanbhai Patel examined by the prosecution in this case, before the trial Court, is required to be considered.

6.2 Now, considering the evidence of first informant Ismailkhan Hasankhan, Exh.35, he stated that during the course of TIP, he identified the four persons namely original accused No. 2 Rakeshkumar Dogra, original accused No. 3 Anantkumar Tivari, original accused No. 6 Jitendrasing Rajput and original accused No. 7 Amitsingh Rajput. Eye-witness Maheshbhai Chaudhari, in his evidence-Exh.37, stated that during the course of TIP, he identified the four persons namely original accused No. 1 Satyanarayan Chaubey, original accused No. 2 Rakeshkumar Dogra, original accused No. 5 Jayprakash Tivari and original accused No. 6 Jitendrasing Rajput. So far as evidence of witness Ramanbhai Patel, Exh.38 is concerned, about the TIP, he stated that he had identified the three accused persons. However, in his deposition, Exh.38, no names are mentioned by him, as to who were those accused persons, whom he could identify during the course of TIP. He further stated that he could identify the four accused, but, again he did not refer by name the 4th accused, nor during the course of his evidence, he could identify the 4th accused by his description. Moreover, in his evidence, the learned trial Judge did not make any note to the effect that those three accused persons, whom witness Ramanbhai identified, were seated in the Court, and those accused persons disclosed their names, as has been done during the course of evidence of first informant Ismailkhan Hasankhan, Exh.35 and during the course of evidence of witness Maheshbhai Chaudhari, Exh.33. Thus, considering the evidence of first informant Ismailkhan Hasankhan, Exh.35 and witness Maheshbhai Chaudhari, Exh.33, the common accused persons identified by them would be accused No. 2 Rakeshkumar Dogra and accused No. 6 Jitendrasing Rajput.

6.3 It is further pertinent to note that so far as original accused No. 3 Anantkumar Shriganesh Tivari is concerned, he was identified by first informant Ismailkhan Hasankhan, Exh.35, but could not be identified by witness Maheshbhai Chaudhari, Exh.33. However, considering the evidence of I.O. Mr. Jyotishchandra Patel, PSI Adalaj, he stated that so far original accused No. 3 Anantkumar Tivari is concerned, one pistol and three cartridges were recovered from him, which gets support by panch witness Mahendrakumar Patel, Exh.25 and the panchnama, Exh.26. Similarly, so far as original accused No. 6 Jitendrasing Rajput is concerned, considering the evidence of panch Rameshji Thakor, Exh.27 and the panchnama, Exh.28, it becomes clear that one pistol and two cartridges and some imitation jewellery were recovered. Furthermore, considering the evidence of panch Rajendrasinh Rathod, Exh.43, panch of TIP panchnama stated that witness Ramanbhai Patel identified the accused No. 6 Jitendrasing Rajput. So far as original accused No. 2 Rakeshkumar Dogra is concerned, not only he was commonly identified by first informant Ismailkhan Hasankhan and eye-witness Maheshbhai Chaudhari, but, considering the evidence of I.O. PSI Mr. Patel, Exh.48, one pistol and three cartridges were recovered from him. His evidence gets support by evidence of panch Rameshji Thakor, Exh.27 and panchnama, Exh.28.

6.4 So far as original accused No. 7 Satyanarayan Chaubey is concerned, he could not be identified by the first informant Ismailkhan Hasankhan, Exh.35. Original accused No. 4, Sanjaysingh Rajput could not be identified by either first informant Ismailkhan Hasankhan, Exh.35 or eye-witness Maheshbhai Chaudhari, Exh.33. It has come in evidence that one mobile phone was recovered from him. When such mobile phone was shown to witness Ramanbhai Patel, during the course of his evidnece, Exh.38, he identified the same, stating that this is his mobile phone. In this connection, considering the further statement recorded by the learned trial Judge of the original accused No. 4 Sanjaysingh Rajput, a complex question was put to him that he and other co-accused persons had robbed one mobile phone and other golden ornaments. However, he denied such evidence in his further statement. However, no specific question arising from the evidence was put to the accused No. 4 Sanjaysingh Rajput to the effect that the mobile phone, which was recovered from him was shown to witness Ramanbhai Patel and witness Ramanbhai during the course of his evidence, Exh.38 identified the same as his mobile phone. Thus, the very material incriminating circumstances were not put to this accused No. 4 Sanjaysingh Rajput and yet those incriminating circumstances were used as evidence by the learned trial Judge for the purpose of recording conviction. Apart from this, as stated above, none of the eye-witnesses identified him. Thus, the involvement of accused No. 4 Sanjaysingh Rajput cannot be said to have been proved beyond reasonable doubt. Original accused No. 5 Jayprakash Tivari came to be acquitted by the trial Court and State did not challenge his acquittal by preferring any appeal u/s 378 of the Cr.P.C. So far as original accused No. 7 Amitsingh alias Dipak Nayankumar Rajput is concerned, he could not be identified by witness Maheshbhai Chaudhari, Exh.33. Moreover, no weapon came to be recovered from him, but, only currency notes worth Rs. 4170/- came to be recovered. However, he could not be identified by witness Maheshbhai, and therefore, his involvement in the incident cannot be said to have been proved beyond any reasonable doubt.

In light of the above discussions, the picture that emerges from the evidence adduced by the prosecution is that the involvement of original accused No. 2 Rakeshkumar Dogra, original accused No. 3 Anantkumar Shriganesh Tivari, original accused No. 6 Jitendrasing Rajput is proved beyond any reasonable doubt by the prosecution, but, the prosecution failed to prove the involvement of original accused No. 1 Satyanarayan Chaubey, original accused No. 4 Sanjaysingh Rajput and original accused No. 7 Amitsingh alias Dipak Nayankumar Rajput. As stated above, the original accused No. 5 Jayprakash Tivari came to be acquitted by the trial Court itself. Therefore, the original accused No. 1, 4 and 7 deserve to be acquitted and their convictions recorded by the trial Court deserves to be set-aside.

Now, the original accused Nos. 2, 3 and 6 came to be convicted by the learned trial Judge for the offences punishable u/s 395, 398 of the IPC. Out of seven named accused persons, the prosecution established the involvement of these three accused persons, and therefore, their convictions for the offences punishable u/s 395 read with Section 398 of the IPC cannot be sustained, as the offence of dacoity pre-supposes the involvement of five or more accused persons. In other words, the offence of dacoity cannot be said to have been constituted. However, it has come on record that the three accused persons-original accused Nos. 2, 3 and 6 committed the offence of robbery and firearm like pistols with cartridges were recovered from them and thus, at the time of committing robbery, they used the deadly weapons like pistols. It has further come in evidence of the eye-witness that the deadly weapons like pistols were shown to them and were put under the fear and were threatened to surrender their valuables, cash etc. Thus, the weapons were within the vision of the victims so as to be capable of creating terror in the mind of the victims. Thus, we are of the considered opinion that the prosecution successfully proved the offences punishable under Sections 392 and 397 of the IPC. Thus, these offences are less grievous offences to the offences punishable under Sections 395 and 398 of the IPC charged against them. In other words, the offences under Sections 397, 398 are major offences to the offences under Sections 392 and 397. So far as charge of conspiracy punishable u/s 120B of the IPC is concerned, the prosecution failed to establish the offence of conspiracy. Therefore, the original accused Nos. 2, 3 and 6 deserve to be acquitted, so far as charge of offence punishable u/s 120B of the IPC is concerned. However, their convictions for the offence punishable u/s 25(1)(A) of the Arms Act deserves to be maintained and confirmed. Considering the facts and circumstances of the case and the fact that Section 397 of the IPC prescribes that the imprisonment with which such offender shall be punished, shall not be less than seven years. The R.I for a period of seven years with fine of Rs. 2000/- and in default to undergo S.I for a period of six months would be sufficient and adequate sentence.

For the foregoing reasons, both the appeals stand partly allowed.

So far as Criminal Appeal No. 1602 of 2004 preferred by the convict Jitendrasing Jogendrasing Rajput is concerned, it is partly allowed. His conviction under Sections 395 and 398 of the Indian Penal Code is altered to one under Sections 392 and 397 of the Indian Penal Code and is sentenced to undergo R.I for a period of seven years with fine of Rs. 2000/-, in default to undergo S.I for a period of six months. The conviction u/s 120B of the Indian Penal Code is set-aside, and conviction and sentence u/s 25(1)(A) of the Arms Act is hereby confirmed.

Criminal Appeal No. 1613 of 2004 is also partly allowed. The convictions of accused-appellants Rakeshkumar Shri Omprakash Dogra and Anantkumar Shriganesh Tivari under Sections 395 and 398 of the Indian Penal Code are altered to one under Sections 392 and 397 of the Indian Penal Code and are sentenced to undergo R.I for a period of seven years with fine of Rs. 2000/- each, in default to undergo S.I for a period of six months. The convictions of appellants-Rakeshkumar Shri Omprakash Dogra and Anantkumar Shriganesh Tivari u/s 120B of the Indian Penal Code is set-aside, and convictions and sentences of appellants Rakeshkumar Shri Omprakash Dogra and Anantkumar Shriganesh Tivari u/s 25(1)(A) of the Arms Act is hereby confirmed.

Convictions of appellants-Satyanarayan Shrikrishna Chaubey, Sanjaysingh Mukteshvarsingh Rajput and Amitsingh alias Dipak Nayankumar Rajput under Sections 395, 398 read with Section 120B of the Indian Penal Code and Section 25(1)(A) of the Arms Act is hereby set-aside. They be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded.

All the sentences in respect of accused Rakeshkumar Shri Omprakash Dogra, Anantkumar Shriganesh Tivari and Jitendrasing Jogendrasing Rajput shall run concurrently and the period undergone by them in jail shall be given set-off as against the substantive sentence of imprisonment.