Mahendrasingh Mevalal Thakur vs State of Gujarat

J.C. Upadhyaya, J.—The Appellant along with three other co-accused came to be tried by the Ld. Sessions Judge, Valsad at Navsari for the offences punishable under Sections 365, 394, 328 read with Section 114 of the Indian Penal Code [IPC] in Sessions Case No. 58/1998. By impugned judgment and order dated 24/4/2001, at the end of the trial, the original accused No. 2 - Girdhari Rajnarayan Tiwari and original accused No. 4 - Abhay alias Muna Rajbali Dube came to be acquitted of all the charges levelled against them; whereas the present Appellant, who was accused No. 1 in aforesaid Sessions Case and co-accused No. 3 - Dineshsing alias Babalusing Shivbali Thakur though came to be acquitted of the charge of the offence punishable u/s 365 of the IPC, they were convicted for the offences punishable under Sections 394 and 328 of the IPC. The Appellant was sentenced to undergo rigorous imprisonment [RI] for 3 years and fine of Rs. 5,000/- and in default of payment of fine, simple imprisonment [SI] for 6 months for the offence punishable u/s 394 of the IPC and RI for 3 years and fine of Rs. 5,000/- and in default of payment of fine, SI for 6 months for the offence punishable u/s 328 of the IPC. Both the substantive sentences of imprisonment were ordered to run concurrently. Co-accused No. 3 - Dineshsing was also sentenced to undergo identical sentence, but it is reported that he has not challenged his conviction and sentence by preferring any appeal. However, feeling aggrieved by and dissatisfied with the conviction and sentence recorded by the trial Court, the Appellant, who was original accused No. 1, preferred this appeal u/s 374 of the Code of Criminal Procedure [''Cr. P.C.'' for short].

The prosecution case, in nutshell, is that the incident occurred at about 16.00 hours on 27/6/1997 in City of Valsad. It is alleged that at the time and place of the incident, first informant Maheshbhai Parbhubhai Halpati, who was rickshaw driver, had parked his rickshaw and two accused, namely Appellant and original accused No. 3 Dineshsing came near the rickshaw and posed themselves as passengers and hired the rickshaw bearing registration No. GJ-15 v. 6521. It is the prosecution case that the Appellant and the co-accused gave pineapple juice to the first informant rickshaw driver Maheshbhai and he actually consumed the juice and it is alleged that he became unconscious because of some sedative drugs administered in the juice. When he regained consciousness, he found that his rickshaw was robbed by the Appellant and co-accused No. 3. He reported the incident to Vapi Town Police Station and his FIR was registered. Pursuant to his FIR, investigation was commenced and during the course of investigation, statements of material witnesses were recorded. Required panchnamas were drawn in presence of panchas. Muddamal rickshaw came to be seized. After the police concluded the investigation, charge sheet came to be filed in the Court of Ld. Judicial Magistrate First Class, Valsad. Since the offence is exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions, Valsad at Navsari, which was registered as Sessions Case No. 58 of 1998.

Ld. Sessions Judge framed charge against the Appellant as well as 3 co-accused persons at exh. 6 regarding the offences alleged against them, to which including the Appellant, all the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution examined 11 witnesses and relied upon 9 documents detailed in paras. 13 and 14 of the impugned judgment. After the prosecution concluded its oral evidence, Ld. Sessions Judge recorded further statement of the Appellant u/s 313 of the Code of Criminal Procedure The Appellant in his further statement denied generally all the incriminating circumstances put to him by the trial Court and stated that he was innocent and he was falsely implicated in this case.

After evaluating, examining and appreciating the oral and documentary evidence on record and considering the submissions advanced on behalf of both the sides, the Ld. Sessions Judge came to the conclusion that the prosecution proved beyond any reasonable doubt the involvement of the Appellant in this offence and recorded his conviction for the offences punishable under Sections 394 and 328 of the IPC and awarded the sentence as hereinabove referred to in this judgment.

Mr. S.R. Patel, learned advocate for the Appellant submitted that the prosecution has miserably failed to prove its case beyond any reasonable doubt against the Appellant. It is stated that as emerged from the evidence on record, though the co-accused came to be put to Test Identification Parade [''TI Parade '' for short], the Appellant was not put in the TI Parade and, therefore, his involvement in the incident and his identification at belated stage by the complainant during the course of his evidence is doubtful. It is further submitted that so far as the conviction of the Appellant for the offence punishable u/s 328 of the IPC is concerned, admittedly there is no Chemical Analyzer report [''CA Report'' for short], which would reveal that some sedative or intoxicated drug administered in the juice which came to be consumed by the complainant. It is, therefore, submitted that in absence of any FSL evidence, the Sessions Court could not have recorded conviction for the offence punishable u/s 328 of the IPC.

Mr. Patel, learned advocate for the Appellant submitted that to constitute offence of robbery made punishable u/s 394 of the IPC, -causing hurt- is an essential element. In the instant case, when the offence punishable u/s 328 of the IPC regarding administering sedative drug in the juice consumed by the complainant, is not established, then the element of hurt is missing in the instant case and, therefore, the conviction recorded by the Sessions Court of the offence punishable u/s 394 of the IPC does not stand.

6.1. Mr. Patel, learned advocate for the Appellant contended that the prosecution relies upon the evidence in the form of alleged recovery of rickshaw at the instance of the Appellant, but in this connection if the so called recovery panchnama is considered, it is not in terms of Section 27 of the Evidence Act, in the sense that nothing was discovered at the instance of the Appellant. It is further submitted that to connect the Appellant with the alleged incident, the prosecution relies upon the evidence of PW 10 Mohmed Salim Shaikh, who is owner of garage, but if the evidence of this witness is considered, it becomes clear that the rickshaw, which came to be seized from his garage, did not bear any registration number. That, therefore, very identification of rickshaw itself is in doubt.

6.2. Mr. Patel, learned advocate for the Appellant, therefore, prayed that the appeal deserves to be allowed and the conviction and sentence awarded by the trial Court deserves to be set aside.

Per contra, Ms. CM Shah, Ld. APP representing Respondent - State vehemently opposed this appeal and submitted that though no TI Parade was arranged so far as the Appellant is concerned, he was duly identified by the complainant in the open Court at the time of his evidence. That the prosecution evidence clearly reveals that after the robbery of the rickshaw belonging to the complainant by making him unconscious, the Appellant took the rickshaw to the garage of PW 10 Mohmed Salim Shaikh for repairing and the evidence of PW 10 Mohmed Salim Shaikh is cogent and convincing to connect the Appellant with the offence of robbery of rickshaw. It is further submitted that considering the panchnama exh. 24 and the evidence of one of the panchas of said panchnama, PW 4 Shantilal Patel together with the evidence of Investigating Officer PW 9 Yashvant Rajaram, it is clearly established that at the instance of the Appellant, the rickshaw came to be discovered from the garage of PW 10 Mohmed Salim Shaikh. It is, therefore, submitted that the prosecution has duly proved its case qua the Appellant for the commission of offence punishable under Sections 394 and 328 of the IPC and, therefore, appeal may be dismissed.

I have examined the record and proceedings in the context of the submissions made by rival side.

Re-appreciating, re-examining and re-evaluating the oral and documentary evidence on record, it is true that so far as the Appellant is concerned, he was not put to any TI Parade and, therefore, during the course of investigation, it is true that the Appellant could not be identified by the complainant. However, in this connection, if the evidence of PW 1 - complainant Maheshbhai examined at exh. 14 is considered, he categorically stated that at the time and place of incident, he had parked his rickshaw bearing Regn. No. GJ-15 v. 6521 and at that time, the Appellant along with co-accused No. 3 Dineshsing came near his rickshaw and posed themselves as passengers by stating that they wanted to hire the rickshaw to go to Valsad from Vapi. After they boarded the rickshaw, the Appellant and the co-accused No. 3 Dineshsing gave him a glass of juice. After sometime he felt drowsiness and became unconscious. On the next day, when he regained consciousness, he found himself lying near Dungari railway station and he could not find his rickshaw. He, therefore, went to the police station and lodged the FIR, which is at exh. 15. He identified the Appellant during the course of his evidence before the Sessions Court. It appears that on behalf of the accused, he was searchingly cross-examined, but nothing emerges which would help the Appellant or which would make the prosecution case against him doubtful one.

So far as the Appellant is concerned, the evidence of PW 10 Mohmed Salim plays important role. PW 10 Mohmed Salim in his evidence states that he runs a garage near Udhna Darwaja and he was knowing the Appellant. According to his evidence, the Appellant had come to his garage driving auto rickshaw for reparation of chassis of the rickshaw. He admitted that there was no registration number plate on the rickshaw. The Appellant left the rickshaw in his garage for reparation, and according to him, thereafter after 10 to 12 days, along with the police, Appellant came to his garage and the rickshaw was seized. Along with this piece of evidence, if the evidence of panch witness PW 4 - Shantilal Patel at exh. 23 as well as panchnama exh. 24 and the testimony of I O PW 9 Yashvant Rajaram is concerned, it becomes clear that while the Appellant was in police custody, he informed the police about the place where muddamal rickshaw was lying. Pursuant to the receipt of such information about the Muddamal rickshaw, police along with the Appellant and the two panchas went to the garage of PW 10 Mohmed Salim. Panch PW 4 Shantilal Patel in his evidence categorically stated that rickshaw was shown by the Appellant and the rickshaw was seized. The said facts are further highlighted if the evidence of IO PW 9 Yashvant Rajaram is considered.

Thus, considering the evidence of PW 10 Mohmed Salim Shaikh along with the evidence of panch PW 4 Shantilal Patel and evidence of IO PW 9 Yashvant Rajaram together with panchnama exh. 24, it becomes clear that the prosecution successfully linked up the Appellant with the muddamal auto rickshaw, which came to be robbed in the robbery. The prosecution examined the owner of the rickshaw, namely PW 8 Sumanbhai Kikabhai Patel and according to his evidence, he owned rickshaw bearing No. GJ-15 v. 6521 and the complainant was his driver. According to his evidence, the complainant used to return back the rickshaw on every day during evening hours, but on the day of the incident, the complainant did not come back along with his rickshaw. Thus, in light of the evidence of owner of the rickshaw, the identification of the rickshaw is duly established. He identified the rickshaw. Under such circumstances, mere absence of the number plate on the rickshaw, which came to be seized, does not help the Appellant in the aforesaid facts and circumstances of the case.

12 It is submitted on behalf of the Appellant that in absence of any CA Report or FSL report, the conviction of the Appellant for the offence punishable u/s 328 of the IPC is bad in law. Perusing the impugned judgment rendered by the trial Court, it transpires that the same argument was advanced on behalf of the accused before the Sessions Court and same came to be elaborately dealt with by the Sessions Court in para. 42 of the impugned judgment by assigning cogent and convincing reasons that when the complainant himself categorically deposed that after consuming the pineapple juice supplied to him by the Appellant, he became unconscious and regained consciousness on the next day, proved the required ingredients of offence punishable u/s 328 of the IPC. Under such circumstances, the Sessions Court has rightly observed that it was too late to collect the substance of vomiting to facilitate to send it to FSL.

In light of the entire above discussion and independently re-appreciating and re-examining the evidence on record, it clearly transpires that the Ld. Sessions Judge rightly recorded conviction of the Appellant for the offence punishable under Sections 394 and 328 of the IPC. Moreover, I do not find the sentence awarded to the Appellant for the aforesaid offences either harsh or lenient. Resultantly, the appeal deserves to be dismissed.

At the time of the admission of the appeal, the sentence awarded by the Sessions Court came to be suspended u/s 389 of the Cr.P.C and he was released on bail. Under such circumstances, the Appellant shall surrender for undergoing the remaining part of the sentence. As requested by Mr. SR Patel, learned advocate for the Appellant, reasonable time is granted to the Appellant for surrender.

For the foregoing reasons, the appeal stands dismissed. The Appellant - Mahendrasingh Mevalal Thakur is directed to surrender before the Sessions Court, Navsari on or before 20/01/2011, failing which the Ld. Sessions Judge shall be at liberty to secure the presence of the Appellant by adopting coercive measures as provided in the Code of Criminal Procedure, to confine the Appellant to jail for the purpose of undergoing the remaining sentence as awarded by virtue of the impugned judgment and order dated 24/4/2001 rendered in Sessions Case No. 58/1998.