Raju @ Shaym Sundar @ Shyam Om Prakash Chauhan vs State of Gujarat

Ravi R. Tripathi, J.—Criminal Appeal No.1365 of 1999 is filed by theconvict u/s 374(2) of the Code of CriminalProcedure, 1973 (hereinafter referred to as "Code") andCriminal Appeal No.95 of 2000 is filed by the State undersection 377 of the Code for enhancement of sentence.Both these appeals are filed against the judgement and order of sentence passed by the Court of learned SessionsJudge, Panchmahals at Godhra in Sessions Case No.66 of1999 on 6.10.1999, by which the learned Judge was pleasedto convict the appellant of Criminal Appeal No.1365 of1999 u/s 328 of Indian Penal Code (hereinafterreferred to as "IP Code") and to punish him rigorousimprisonment for five years and fine of Rs.500/-, indefault to further undergo simple imprisonment for sixmonths and was pleased to convict for offence undersection 379 of IP Code also, and to punish rigorousimprisonment for two years and fine of Rs.250/-, indefault simple imprisonment for three months. Thelearned Judge was pleased to order that both thesubstantive sentences to run concurrently and that theaccused be given benefit of set off.

On 13.10.1998, the complainant of this case wasto travel from Ratlam to Bombay. At Ratlam RailwayStation he obtained reservation in 2904 Up Golden TempleExpress in Coach No.S-4 on Berth No.55. The accused alsoboarded this very train having reservation on Berth No.61in the same compartment. According to the prosecution,after the train started from Ratlam Station and before itreached Dahod and Godhra, the accused developed intimacywith the complainant. The accused inquired about thedestination of the complainant while telling about hisown destination and profession, etc. The complainant hada water bottle which was borrowed by the accused for awhile and after about five minutes, it was returned tothe complainant. As per the case of the prosecutionafter drinking water from the said bottle, thecomplainant became unconscious. It is the case of theprosecution that, the accused had administered "Larpose 2mg." tablets in that water bottle. Thereafter theaccused took away the bag of the complainant along withhis clothes, wrist watch, cash totalling to Rs.700/-.The complainant filed the complaint. The Police afterinvestigation chargesheeted the accused for the offenceunder section 328 and 379 of the IP Code.

The learned Judge framed charge against theaccused for the offence punishable u/s 328 and 379 of IP Code at Exhibit 2. The charge was explained tothe accused. He pleaded not guilty to the same andhence, was tried. The prosecution examined, in all, 19witnesses and produced documentary evidence. Out ofthese 19 witnesses, the important witnesses are, (i) PW6, exhibit 17, Srinivas Mormukat Bansal, a Panch witness,to a Panchnama, Exh. 16 of Muddamal clothes, tablets,etc.; (ii) PW 17, exhibit 18, Bhairavnath Madhavbhai, whois also a Panch witness to a Panchnama, exh.14, of bag ofthe complainant, clothes and tablets; (iii) PW 9, Exh.21,Guddukhan Noorkhan, a Coolie, at Ratlam Railway Station;(iv) PW 13, Exh.30, Chhaganlal Bhikhubhai Rohit,Executive Magistrate, who conducted Test IdentificationParade; (v) PW 14, exh.36, Ajitsinh Devisinh Solanki,Hand Writing Expert; (vi) PW-18, Exh.58, BharatkumarKalubhai Baria, a Panch Witness to the Panchnama of TestIdentification Parade; (vii) PW- 15, Exh.44, AnwarkhanSikandarkhan, another Coolie at Ratlam Railway Station;(viii) the complainant himself is examined as PW-17,Exh.54; and, (ix) Investigating Officer, BharatsinhBaburao Patil is examined as PW 16, Exh.45.

Besides, the prosecution has also produceddocumentary evidence, such as, Railway reservation chart,various Panchnamas, opinion of the hand writing expert,Yadi for sending Muddamal, exh.47, telephone wardi,exh.53, etc.

In his further statement, the accused had deniedthe case of the prosecution but did not lead any evidencein support of his defence to prove that the case of theprosecution was false.

On appreciation of the evidence adduced by theprosecution, the learned Sessions Judge held that theprosecution has proved beyond reasonable doubt that theaccused was guilty of the offence under sections 328 and 379 of IP Code. The learned Judge after holding that theappellant had committed offence punishable under sections 328 and 379 of IP Code, sentenced the accused asmentioned earlier by his judgement and order dated6.10.1999. This gives rise to the present two appealsviz. (i) Criminal Appeal No.1365 of 1999 by the accused;and, (ii) Criminal Appeal No.95 of 2000 by the State.

Criminal Appeal No.1365 of 1999 was admitted and ordered to be heard with Criminal Appeal No.95 of 2000 byorder dated 5.4.2000. The accused had filed CriminalMisc. Application No.6607 of 2000 in Criminal AppealNo.1365 of 1999 wherein this Court by order dated27.11.2000 had directed the office to list the CriminalAppeal as a short sentence matter before the appropriateBench. The learned advocate Ms.Banna Dutta appearing for the accused and the learned Additional Public ProsecutorMr.H.H. Patel appeared for the State in both theappeals. The learned Advocate, Ms. Banna Dutta,submitted that the accused had filed Criminal Misc.Application No.6693 of 2001 in Criminal Appeal No.1365 of1999 wherein this Court by order dated 9.11.2001 hadreleased the accused on bail.

We have considered the submissions advanced byboth the learned counsel for the accused as well as Stateand reappreciated the whole evidence on record.

The complainant, Samir Zahiruddin has examined asPW 17 at exh.54. He deposed in Hindi, but the same wasrecorded in the presence of the learned Additional PublicProsecutor, Mr.Patel and the learned advocate Mr.Mehtafor the accused, in Gujarati after translation. Thecomplainant had deposed that on 13.10.1998 he wastravelling from Ratlam to Bombay by Frontier Mail. Hewas in compartment No.S-4. His berth number was 55. Hehad reservation which was obtained through a Coolie,named Anwarkhan Sikandarkhan.When he had hisreservation, the accused had also had his reservation.From Ratlam, he started his journey in the train at 7.00PM. The accused came to the berth of the complainant andinquired as to where the complainant was going. Thecomplainant replied that he was going to Bombay. Theaccused told that he too was going to Bombay. Theaccused told him that his name is Raju and he is aresident of Delhi, working as a Salesman.Thecomplainant had a bag, a blanket and a pair of clothes.Besides that, he was having his driving licence, a wristwatch, a wallet containing cash about Rs. 300 toRs.350/-. The complainant had also deposed that when thetrain reached between Dahod and Godhra, the accused tookthe water bottle from the complainant. He returned thesame after about five minutes. The complainant afterdrinking water from the bottle went to sleep.Thereafter, he did not have any idea as to what hadhappened. As he did not reach Bombay, search was madefor him. When he regained consciousness, he did not knowwhere he was. The complainant was informed by his fatherthat he reached Bombay on 15th. His father is residingat Bombay. They received information from Ratlam, `thatthe accused is arrested and they should come to Ratlam''.Therefore, he went to Ratlam with his father. After hereached Ratlam, what happened he did not know. For 4 to5 days his position was not good. He was taken to thePolice Station by his father. He narrated the incidentto his father and the Police. He filed his complaint.Complaint bearing Mark 6/1 was shown to the complainant.He deposed that it is the complaint given by him toRatlam Police. It is in his own handwriting. It is atExh.55. He had narrated that he is robbed of hisbelongings by the accused. His belongings are shown andhe is able to identify them. He was shown bag, MuddamalArticle No.1. He stated that it is his bag. It was inhis luggage. He deposed that the accused, who wastravelling with him, he can identify, who was present inthe Court. After the complainant filed his complaint, hewas called by Godhra Police and he was taken to GodhraCourt where Test Identification Parade was held. It washeld in his presence. At that time 10 persons were madeto stand in a line and from amongst those 10 persons thecomplainant had identified Raju, the accused. He wasstanding between the second and the third man. The sameexercise was repeated for the second time. In thatsecond exercise also the complainant had identified theaccused.

The prosecution has examined Guddukhan as PW 9,exh.21, who is working as a Coolie at Ratlam RailwayStation. He has deposed that he knew Raju for last aboutone and half year. Raju was coming from Delhi and wastelling that he is a Salesman of a factory. On the dayof the incident, i.e. 13.10.1998, Raju had met thedeponent at Ratlam Railway Station and had told that hewanted to go to Bombay, therefore, reservation may beobtained for him. Raju was helped in getting reservationby brother of the deponent, Anwar. His reservation wasin Train No.2904, Up Golden Temple. He had hisreservation in S-4 on Berth No. 61. After the trainarrived, the deponent helped the accused in boarding thetrain. The deponent has also stated that besides Raju,another person, named Samir, was also helped in boardingthe train on Berth No.55 in Coach No.S-4. The next day,the brother of that person had come to the deponent andconveyed that his brother has not reached Bombay. Thesecond day, Raju had returned to Ratlam. When, I came toRailway Station, at that time, Raju was having a bag withhim and he said that it was empty and he found Rs.300/-from Samir. Bag was given to Anwar. In the evening,Anwar told the deponent that the boy to whom the bagbelongs is administered some drugs. Therefore, thedeponent handed over the accused to the Police In thecross examination also there is no materialcontradictions.

The prosecution has examined AnwarkhanSikandarkhan, PW 15, exh.44, who has also narrated thesame story. He is also working as a Coolie at RatlamRailway Station. While deposing he has stated that theincident had taken place about 9-10 months back. He wasdeposing on 16.8.1999, the incident is of 13.10.1998. Hedeposed that, accused, Raju, is a resident of Delhi andwas often coming to Ratlam. From Ratlam he was going toBombay. Normally at the interval of 8 to 10 days he wasvisiting Ratlam and the deponent used to help him toboard the train. Therefore, deponent knew the accused.About 9 to 10 months before the deponent had gotreservation for him in Frontier Mail. The number of thattrain is 2904. That reservation, he had from Ratlam toBombay; Bombay to Ratlam; and Ratlam to Delhi. Thereservation form was filled in by him. On that day, hehad obtained reservation for one person named Chishti.There was one relative of Chishti, whom I knew, had metthe deponent and inquired as to whether the deponent hadhelped Chishti to board the train. The deponent repliedthat he had properly helped Chishti to board the train.When the deponent was getting reservation for Chishti,Raju had told the deponent to not have reservation forChishti, he will allow him to sleep on his berth. Bothhad gone in the same compartment of the train. Thedeponent identified the accused in the Court saying that,Raju who used to meet him on Ratlam Railway Station issitting in the Court. The deponent has then deposed thaton the next day, Raju had come in Frontier Mail and toldthe deponent that I have finished the work of that man,to which the deponent inquired as to what work has hefinished. The accused told that he has brought the bagof that man. Raju gave the bag of that person to thedeponent. The deponent told that this bag belongs tothat man. Raju told that the clothes he has thrown outfrom the running train and he has received approximatelyRs. 200 to Rs.400 with wallet, which is kept by him.Raju told the deponent that he mixed something in thewater and gave him to drink, then, that man becomeunconscious. I do not know as to where that man is.Then, the deponent took Raju to Police Station and handedover to Police. On cross examination, no materialcontradiction is found. The deponent has stood to thisdeposition.

The prosecution has then examined PW 13, theExecutive Magistrate, Chhaganlal Bhikhubhai Rohit. Hehas deposed about the Test Identification Parade whichwas held on 6.11.1998. He has deposed in detail themanner in which the test identification parade wasconducted and the fact that the complainant hadidentified the accused Raju. To make it sure that thecomplainant has not committed any mistake in identifyingthe accused, the same exercise was repeated and even inrepeated exercise, the complainant identified theaccused. Thus, so far as the identification part isconcerned, there is no manner of doubt that thecomplainant was able to identify the accused.

The prosecution has also examined one AjitsinhDevisinh Solanki, PW 14, exh.36, who is Hand WritingExpert, who has identified the hand writing of theaccused, by which it is established that the reservationform was filled in by the accused for getting thereservation on the day of the incident, i.e. 13.10.1998.The opinion of the Hand Writing Expert is produced atexh.37, which reads as under:

"The person who wrote the blue encircled standardwritings and signatures marked ''B1 to B6 and C''also wrote the red encircled disputed writingsand signature marked ''A''."

Thus, it is clear that the accused had obtainedreservation for which reservation form was filled in bythe accused in his own hand writing.

Learned advocate, Ms.Banna Dutta, appearing for the appellant- original accused in Criminal Appeal No.1365 of 1999, submitted that the prosecution is not ableto establish the case against the accused inasmuch as theowner of the medical store from whom it is alleged thatthe accused had purchased the tablets `Larpose 2 mg.'' hasnot supported the case of the prosecution and has turnedhostile being PW 3, exh.12. But then the Panch, NarayanRatanlal, PW 10, exh.22 has deposed that, `the person whowas arrested by the Police had stated that he hadpurchased the tablets from the medical store. The Panchwitness had accompanied that person and the Policeman tothat medical store. The medical store to which theperson had taken the Panch Witness and the Policeman wasnamed "Sheth Medical Store" and its owner was Sanjay.The Panch Witness has deposed that this medical store wasshown by the person who was arrested by the Police. ThePolice had recorded the proceedings and in the saidproceedings, the Panch Witness had put his signature. Hehas identified his signature in the said Panchnama whichis produced at exh.23. This is sufficient to establishthat the accused had purchased `Larpose 2 mg.'' tabletsfrom the medical store. Further, these tablets arerecovered from the accused and that is stated by PW 7,exh.18, Bhairavnath Madhavbhai. He has stated that on21.10.1998 he was called by the Police to be a Panch andalong with him, there is another Panch named Kamlakar.He has deposed that from the accused a suit case, a baghaving clothes and tablets were recovered. He hasidentified the muddamal article 1, the bag; muddamalarticle 6, the suit case. Besides that accused washaving tablets which were shown to the Panch and wereseized by the Police. Therefore, it is clear from thisevidence that the accused had purchased the tablets inquestion, which were recovered from him under thePanchnama at exh.14.

From the evidence of Gudukhan Noorkhan, PW 9,exh.21, and the evidence of Anwarkhan Sikandarkhan, PW15, exh.44, it is clear that the accused had securedreservation in the train known as ''Golden Temple Mail''bearing No.2904 Up and travelled in Coach No.S-4 on BerthNo.61 and the complainant had also travelled in thatcompartment on Berth No.55. From the evidence of thecomplainant, it is clear that the accused hadadministered him some drug in water, whereby, he becameunconscious and was robbed of his belongings.

In totality, the evidence is more than sufficientto implicate the accused in the offence alleged againsthim. His obtaining tablets from medical store, hisobtaining reservation with the help of Coolie, AnwarkhanSikandarkhan, his travelling in the same compartmentalong with the complainant, his returning on the next dayto Ratlam Railway Station and conveying to said PW 15about the work being finished of that man and showing himthe bag of the complainant. A suitcase, bag and tabletswere recovered from the accused. Learned advocateappearing for the appellant-accused is not able to assailout any evidence or material on the basis of which it canbe held that the learned Judge has committed any error inconvicting the appellant-accused of the offence allegedagainst him.

Learned Additional Public Prosecutor Mr.H.H.Patel is also not able to point out anything for whichthe appeal filed by the State being Criminal Appeal No.95of 2000 for enhancement of the sentence is required to beentertained and allowed. The learned Judge whileexercising his discretion has awarded the sentence ofrigorous imprisonment for five years and a fine ofRs.500/-, in default simple imprisonment for six monthsfor the offence under sec. 328 of IP Code. It is truethat the maximum punishment provided under sec. 328 of IPCode is 10 years, but then, we do not find any reason forwhich the discretion exercised by the learned SessionsJudge is required to be interfered with.

In the result both the Criminal Appeals fail.The conviction of the appellant-accused recorded undersections 328 and 379 of the Indian Penal Code as well aspunishment imposed for commission of the said offence ishereby maintained.

The bail bond on which the appellant accused isreleased under the orders of this Court in Criminal Misc.Application No.6693 of 2001 dated 9.11.2001 is herebyordered to be cancelled. The Police is directed toarrest the appellant, original accused to undergo theremaining part of the sentence.