Vinod Parshottambhai Parmar vs State of Gujarat

J.C. Upadhyaya, J.—Both these appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Bharuch on 7.2.2001 in Sessions Case No. 170 of 2001 recording the conviction of both the appellants in both these appeals for the offences punishable under Sections 302 and 397 of the IPC. The appellant - Vinod Parshottambhai Parmar, who was original accused No. 1 in the aforesaid sessions case, preferred Criminal Appeal No. 224 of 2003 and appellant - Raju @ Kabadi Sarman Dhobi, who was original accused No. 2 in the aforesaid Sessions Case, preferred Criminal Appeal No. 239 of 2003. Both the appellants - accused were sentenced to undergo R.I for life and fine of Rs. 500/- each and in default of payment of fine, R.I for three months for the offence punishable u/s 302 of the IPC and R.I for five years and fine of Rs. 100/- each and in default of payment of fine, S.I for one month for the offence punishable u/s 397 of the IPC.

The prosecution case in nutshell is that the incident occurred at about 13.30 hours, on 10th September 2001, in the house of the deceased Bhanuben Bhagwandas, situated in the area called Brijnagar Society, Ankleshwar. It is alleged that both the appellants with intention to commit robbery, entered the house of the deceased and robbed one golden chain of the deceased and while committing the offence, serious head injury was caused to the deceased with iron-rod. The deceased was shifted to hospital, but ultimately she succumbed to the injuries. Maheshbhai Babulal, son of the deceased lodged FIR in Ankleshwar police station regarding the incident. The police investigation was commenced. During the course of investigation, statements of material witnesses were recorded. Weapons as well as the booty i.e. golden chain came to the seized. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned JMFC, Ankleshwar. Since the offence was exclusively triable by the Court of Sessions, the learned JMFC, Ankleshwar committed the case to the Court of Sessions, Bharuch, which came to be registered as Sessions Case No. 170 of 2001.

The learned trial Judge framed charge against both the accused at Exh.3 for the offences punishable under Sections 302 and 397 of the IPC, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the prosecution concluded its evidence, learned trial Judge recorded further statements of both the accused u/s 313 of the Cr.P.C. The appellants 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 considering the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt against both the accused and recorded conviction for the offences punishable under Sections 302 and 397 of the IPC and awarded the sentence as hereinabove referred to in this judgment.

Learned advocate Ms.Sadhana Sagar for the appellant - Vinod Parshottambhai in Criminal Appeal No. 224 of 2003 and Ld. advocate Ms. Sagar appointed as amicus curie for the appellant - Raju @ Kabadi Sarman Dhobi in Criminal Appeal No. 239 of 2003 submitted that in the FIR itself, no names of the accused were referred. The evidence adduced by the prosecution is shaky, untrustworthy and unreliable. The evidence is full of discrepancies and infirmities. There is no eye-witness to the incident. Even, the test identification parade (TIP) arranged in this case is not reliable, as the witness was shown the accused persons prior to the TIP. The alleged discovery of weapons and golden chain is not proved beyond reasonable doubt. There is no TIP arranged for the identification of the golden ornament i.e. chain. Therefore, it is submitted that both the appellants - accused persons may be acquitted by allowing these appeals.

Per contra, learned APP Mr. Shah for the State vehemently opposed this appeal and submitted that though there is no eye-witness to the incident, considering the evidence of the witnesses examined by the prosecution, it clearly transpires that immediately after the offence came to be committed by the accused, Ritaben Maheshbhai, daughter-in-law of deceased Bhanuben Bhagwandas reached to the place of the incident and she saw both the accused persons running away from the place of the incident.

It is further submitted that the prosecution successfully proved the evidence regarding discovery of weapons and discovery of golden chain at the instance of accused No. 2 Raju. The witnesses, including Ritaben identified both the accused during the course of TIP. The accused No. 1 Vinod was serving in the shop of son of the deceased and, therefore, he was known to the witnesses before hand. Ultimately, it is submitted that both the appeals may be dismissed.

We have examined the record and proceedings in context with the submissions made by the rival sides.

Re-examining the entire oral and documentary evidence adduced by the prosecution in this case, we are of the considered opinion that the entire case depends upon the testimony of PW-2 Ritaben Maheshbhai, examined at Exh.40. According to her evidence, deceased Bhanuben was her mother-in-law. Her mother-in-law and father-in-law were residing in the first floor of the house and she herself and her husband were residing in the ground floor. About the incident she stated that she heard some noise coming from the first floor and, therefore, she went to the first floor and saw her mother-in-law in pool of blood and in a seriously injured condition. The door of the room, opening in terrace, was open and she saw two persons running away from the room and escaping, by climbing the parapet wall of the terrace. She immediately telephoned her husband (son of the deceased and the first informant) and informed him about the incident. Her husband, father-in-law and neighbours immediately came to her house. The deceased in injured condition was shifted to hospital, but subsequently she succumbed to the injuries on the next day. She stated that on the third day of the incident, after the cremation ceremony of her mother-in-law was over, she informed her husband Maheshbhai that after the incident was over, she had seen the accused No. 1 Vinod, who was serving in their shop and along with Vinod there was one another man. She stated that a golden chain of her mother-in-law was missing. She identified both the accused in her evidence. However, she admitted that she had earlier identified both the accused in presence of police. In her cross-examination, again she stated that it is true that on 21.9.2001, she was called by police to the police station, where she was shown both these accused persons for the purpose of identification and she had identified them. She further admitted that in her first police statement, she had not stated to the police that, after the incident, she had seen the accused No. 1 Vinod.

So far as the identification aspect is concerned, considering the evidence of Ritaben, in her examination-in-chief, she only stated that she had seen two persons leaving the room, soon after the incident. However, she stated that after about three days from the incident, she told her husband that she had seen the accused No. 1 Vinod. However, she categorically admitted that the said fact has not been stated by her in her first police statement. Moreover, considering the evidence on record, it transpires that the TIP was arranged on dated 27.9.2001, as per TIP panchnama, Exh.28. However, Ritaben admitted that prior to TIP on dated 21.9.2001, both the accused were shown to her by police. When such is the situation, the evidence of Ritaben regarding the identification of both the accused seems to be shaky and untrustworthy. It is pertinent to note that even according to her version, she had seen two persons running away from the room. She did not say that she had seen the face of any of those two persons. Even the fact that one of them was accused No. 1 Vinod, has not been stated by her to the police. Her statement was immediately recorded after the incident.

Prosecution relies upon the evidence of PW-5 Jayshriben Ashokbhai, Exh.22 and PW-6 Daxaben Mahendrakumar, Exh.23. We have perused the depositions of both these witnesses. According to their evidence, hearing the noise of commotion, they went to the house of the deceased and saw the deceased in injured condition in a pool of blood. However, they stated that they had seen two persons running away. It is pertinent to note that during their evidence, they identified both the accused persons, who were seated in the Court.

So far as the identification made by both these witnesses of both these accused persons, during the course of their evidence is concerned, considering the evidence of Executive Magistrate Smt. Kolyani PW-8, Exh.27 and the TIP panchnama, Exh.28, it clearly transpires that both these witnesses Jayshriben and Daxaben were not called by the authority to remain present during the TIP to identify the accused persons. Moreover, considering the cross-examination of both these witnesses, they admit that they have no personal knowledge about the incident and that in their immediate version before police, when their statements came to be recorded, they have not stated that they had seen two persons running away from the house of the deceased. Again as stated above, so far as these two witnesses are concerned, they do not describe the persons whom they had seen nor they say that they had seen the face of those persons.

The evidence of PW-1 Maheshbhai Babulal is recorded at Exh.7 and the FIR is at Exh.8. Considering the evidence of first informant Maheshbhai and the FIR, Exh.8, it is true that he has not witnessed the incident. However, it is pertinent to note that considering the FIR, Exh.8, so far as the present appellants - accused persons are concerned, their names are not reflecting in the FIR. On the contrary, it transpires that one Ashokkumar Babulal Ghadiyali had come to the house for the purpose of some light-fitting and in the FIR a doubt is shown that said Ashokkumar and others might have committed the robbery and the murder. Considering the entire evidence on record, together with the evidence of Investigating Police Officer, Exh.13, nothing emerges that any investigation was made in the line of doubt, reflected in the FIR, Exh.8 against Ashokkumar.

The prosecution relies upon the evidence of the TIP. However, as stated above, the two witnesses, namely, Jayshriben and Daxaben were not called during the TIP to identify any accused persons. PW-2 Ritaben Maheshbhai was called to identify the accused persons in the TIP. It was held on 27.9.2001, but as admitted by her in her evidence prior to the TIP, on 21.9.2001, police had shown both these accused persons to her. In the TIP, PW-1 first informant Maheshbhai was called to witness the TIP and to identify the accused, but, as admitted, Maheshbhai is not the eye-witness to the incident, and, therefore, any identification of accused made by him is of no importance. Considering the TIP panchnama, Exh.28, it further transpires that two more persons, namely, Babubhai Chunilal and Sundarbhai Chunilal were called to identify the accused persons. None of these witnesses came to be examined by the prosecution in this case. Under such circumstances, the evidence in form of TIP, does not help the prosecution to prove this case.

The prosecution examined Natvarbhai Nathubhai PW-4, Exh.16, who says that the accused No. 2 Raju @ Kabadi Sarman Dhobi discovered the weapons and the chain. However, his evidence regarding the issue of discovery is very cryptic. In the evidence, he does not state any details regarding any information supplied by the accused No. 2 prior to the discovery. Even on this count, if the evidence of PI Mr. Patel, Exh.30 is considered, his evidence is also cryptic about the panchnamas, Exhs.19 and 20 regarding the discovery. So far as golden chain is concerned, during the course of investigation, no effective step seems to have been taken for identification of the muddamal. As a matter of fact, when the evidence regarding the discovery of weapons and golden chain is shaky and not in conformity with the provisions contained u/s 27 of the Evidence Act, it is not safe to base the conviction solely upon the evidence of discovery. In the result, in light of the above discussions, we are of the considered opinion that the prosecution has failed to prove its case beyond any reasonable doubt against the appellants - accused persons. Both these appeals, therefore, deserve to be allowed.

For the foregoing reasons, both these appeals are allowed. The conviction recorded by the learned Additional Sessions Judge, Bharuch on dated 7.2.2003 in Sessions Case No. 170 of 2001, convicting and sentencing both the appellants for the offences punishable under Sections 302 and 397 of the IPC, are set-aside. Both the appellants - accused persons are ordered to be acquitted. They are ordered to be released forthwith from the jail, if no longer required in connection with any other matter. Fine, if paid, be refunded to them.