R.M. Chhaya, J.@mdashPresent appeals arise out of judgment and order passed by learned Sessions Judge, Surat, in Sessions Case No. 204 of 2003 whereby the appellants were convicted for offences punishable under Secs. 302, 397 read with Sec. 34 of the Indian Penal Code (hereinafter referred to as "I.P.C.") and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, and in default, to undergo further rigorous imprisonment for three months for both the offences.
2. Both these appeals arise out of a common judgment. Criminal Appeal No. 907 of 2005 is filed by original accused No. 1, whereas Criminal Appeal No. 910 of 2005 is filed by original accused No. 2.
3. The case of prosecution can be stated briefly as under :
4. On 8-6-2003, original accused No. 3, one Ranjitsingh alias Jitsing Sansing Jat, ordinarily residing at Nasik and the present appellants gathered, with an intention to commit offence of murder as well as robbery, on instructions from appellant accused No. 1 that a truck trailer HR-37 A-8365 was to proceed towards Himachal Pradesh loaded with goods from Essar Company, Hajira, and driver of the said truck was to receive an advance of Rs. 50,000/-. Appellant accused No. 1 was armed with revolver and country-made pistol and he lured appellant accused No. 2 and promised him that he shall pay Rs. 10,000/- from the said amount to him. It is also the case of the prosecution that appellant accused No. 1 derived knowledge as to where the truck was to be stopped from one Rajesh. It is the case of the prosecution that on 8-6-2003 at about 21-30 hours deceased Ranjitsingh S. Gil and first informant Darshansing Puransing Jat proceeded from Essar Company, Hajira, to Una in the said truck wherein goods valued at Rs. 5,85,739/-, being iron coils, were loaded and took an advance of Rs. 35,000/-. It is the case of the prosecution that when deceased Ranjitsingh reached the parking area of Essar Company, the appellants original accused Nos. 1 and 2 sought lift from driver of the truck, i.e. Ranjitsingh, informing that both of them desired to go to O.N.G.C. Cross-roads. It is the case of the prosecution that when the truck proceeded from Essar Nandniketan, from where accused Nos. 1 and 2 boarded the truck, accused No. 1 showed the revolver in his possession and demanded money received by the deceased and first informant, Darshansing, as advance and threatened to kill them. It is the case of the prosecution that as the driver, deceased-Ranjitsingh refused to accede to such a demand, accused No. 1 fired a shot from the revolver, which pierced through the left armpit of the deceased, because of which said Ranjitsingh died. It is the case of the prosecution that accused No. 2 also threatened P.W. 5-Darshansing by showing a country-made pistol in his possession and committed robbery of Rs. 35,000/- received as advance and both of them ran away on a motor bike. It is the case of the prosecution that original accused No. 3 provided weapons to both the accused. It is the case of the prosecution that the first informant Darshansing, on occurrence of the crime immediately hid himself in one of the trucks which was parked nearby, and thereafter, went to Essar Company and informed about the incident to the personnel of the contractor whose goods were loaded in the truck.
5. A First Information Report, being C.R. No. I-33 of 2003, came to be registered on 9-6-2003 at Ichchhapur Police Station for offences punishable under Secs. 302, 397 read with Sec. 34 of I.P.C. While the investigation was being carried out by Ichchhapur Police Station for the present offence, accused Nos. 1 and 2 came to be arrested for an offence under Secs. 25(1)(A), (B), 27 and 29 of the Arms Act near Pardi Village on National Highway No. 8 and said offence, having been committed within the jurisdiction of Kamrej Police Station, offence came to be registered as C.R. No. II-84 of 2003 with Kamrej Police Station and accused Nos. 1 and 2 came to be arrested by Kamrej Police for said offence. It transpires from record that Investigating Officer of Ichchhapur Police Station, who was investigating the present offence, received information from Surat rural traffic police as regards arrest of accused Nos. 1 and 2. The Investigating Officer of Ichchhapur Police Station went to Kamrej Police Station to investigate and on 11-6-2003, the amount looted in the present crime, came to be discovered. After further investigation, both the accused persons came to be arrested in connection with the present offence on 20-6-2003. It also transpires from the record that the country-made pistol and the revolver, which were used for committing the present offence were already seized by Kamrej Police Station in connection with the offence registered under the Arms Act and the said muddamal of Kamrej Police Station was taken by Investigating Officer of present offence by a panchnama on 25-6-2003. After conducting T.I. Parade and after recording statements of witnesses and after gathering other evidence including serological report, the investigating agency submitted charge-sheet before the Court of learned J.M.F.C, Surat and the learned J.M.F.C, in turn, committed the case to Sessions Court, Surat, as the offences under Sees. 302, 397 read with Sec. 34 of I.P.C. were exclusively triable by a Sessions Court where the same came to be registered as Sessions Case No. 204 of 2003.
6. Charges were framed at Exh. 10 by the learned Sessions Judge. The same was read over to the accused and the accused pleaded not guilty to the charge and claimed to be tried. The learned Sessions Judge, after recording of evidence, came to a conclusion that the prosecution has been able to prove the charges leveled against the appellants-accused and by the impugned judgment was pleased to convict the appellants for offences under Secs. 302, 397 read with Sec. 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, and in default, to undergo rigorous imprisonment for three months for both the offences. The trial Court, however, has been pleased to acquit original accused No. 3, by giving benefit of doubt.
7. Being aggrieved by said judgment and order of conviction and sentence passed by the learned Sessions Judge in Sessions Case No. 204 of 2003, accused Nos. 1 and 2 have filed these appeals before this Court.
8. Heard learned Advocate, Mr. Harnish V. Darji for the appellants and learned A.P.P., Mr. Divyesh Sejpal for the State in both these appeals.
9. Learned Advocate Mr. Darji for the appellants has submitted that whole case of the prosecution is based on oral testimony of solitary eyewitness, P.W. 5, Darshansing (Exh. 23). He has further submitted that oral testimony of this solitary eye-witness is completely doubtful. Except this, the prosecution has not been able to lead any further evidence corroborating the version of said eye-witness. Mr. Darji has, therefore, submitted that learned Sessions Judge has wrongly believed the case of the prosecution. Mr. Darji has further submitted that except recovery of cash from hotel, which does not support the case of prosecution of having committed loot of the amount, there is no other evidence which has been adduced by the prosecution. Mr. Darji has further submitted that by relying upon the recovery of pistol and revolver in some other offence under the Arms Act being C.R. No. 11-84 of 2003 of Kamrej Police Station, which is a subsequent case, the prosecution has attempted to link the appellant-accused with the present offence. He submitted the competent Court has acquitted the appellants vide judgment and order dated 7-4-2005 in the said case under the Arms Act. He has further submitted that even the panch witnesses do not support discovery. Mr. Darji has further submitted that no proof of arms having been used in the offence has come on record, and therefore, the ballistic report of Forensic Science Laboratory is of no consequence and the same is insignificant. Mr. Darji has further submitted that the prosecution has not been able to establish the fact that independent of the case, which was registered under the Arms Act, there is any cogent and unimpeachable evidence to link the appellants with the present offence. He has submitted that, as aforesaid, oral testimony of P.W. 5, Darshansing, the first informant and eye-witness is contrary to the medical evidence on record and there is no proof of the fact as to whether the weapon is used by either of the accused. Mr. Darji has further submitted that even the exercise of T.I. Parade undertaken by the prosecution is of no consequence. Mr. Darji pointed out that it has clearly come on record through the oral testimony of P.W. 17, Investigating Officer, that before T.I. Parade was held, the Investigating Officer had shown driving license of the appellant-accused No. 1. Mr. Darji, has therefore, submitted that the appeal deserves to be allowed and the order of sentence and conviction deserves to be set aside.
10. Mr. D.C. Sejpal, learned A.P.P. has opposed both the appeals. He has submitted that the prosecution has been able to prove the guilt of both the appellants and learned Sessions Judge has rightly passed the order of conviction and sentence. Mr. Sejpal has taken us through oral testimony of P.W. 5, Darshansing, the eye-witness, P.W. 11, Executive Magistrate, who conducted T.I. Parade, P.W. 3, Bhupatbhai Devaji Prajapati, the owner of the hotel from where the amount looted to the tune of Rs. 33,400/- was recovered on the next morning of the date of occurrence of the incident and has also relied upon oral testimony of P.W. 17, Ramanbhai Laxmanbhai Parmar, Investigating Officer.
11. Mr. Sejpal has further relied upon ballistic report and has submitted that Forensic Science Laboratory has examined the weapons, i.e. revolver as well as country-made pistol. Mr. Sejpal further submitted that the report of the F.S.L. is positive and the bullet which has been found from the body of the deceased was of the revolver used by appellant No. 1. Mr. Sejpal further submitted that the prosecution has been able to establish the motive, intention and preparation of both the appellants to commit loot of the amount of advance, which was given to the deceased-driver and P.W. 5, Darshansing, the eye-witness. Mr. Sejpal further submitted that both the appeals are devoid of any merits and the learned Sessions Judge, after appreciating the evidence on record, has rightly passed the judgment and order of conviction and sentence and same deserve to be confirmed by this Court and both the appeals deserve to be dismissed.
12. We have examined the record and proceedings in the context of rival submissions. We find that the whole case of prosecution is based on oral testimony of P.W. 5, Darshansing, the first informant, who is an eye-witness. We have also gone through the evidence of Bhupatbhai Devaji Prajapati (Exh. 19), the hotel owner, where the appellant-accused had deposited the amount of Rs. 33,400/- stating that they would collect the amount back next day morning, as well as evidence of P.W. 11, Dahyabhai Valjibhai Parmar (Exh. 14), Executive Magistrate and P.W. 17, Ramanbhai Laxmanbhai (Exh. 52), the Investigating Officer. Upon reading the evidence of P.W. 5, Darshansing Puransing, we find that, on 7-6-2003, he along with deceased came to Surat at Hajira Road from Vadodara in truck bearing No. HR-37 A-8365 and on reaching Essar Company at Hajira they parked the vehicle in the parking plot. We also find that on 8-6-2003 at 12-30 hours they had gone to the Essar Company to load the goods and they came out of Essar Company at about 5-30 p.m. on that day having loaded 36 tonnes of iron to be taken to Una in Himachal Pradesh. We also find that the deceased was driving said vehicle and as the vehicle was overloaded with iron coil, its rear wheel got punctured, and therefore, in order to change the same, vehicle was parked on left hand side. We also find that the deceased went to get advance from the contractor and the witness was standing near the trailer. We also find that deceased Ranjitsingh brought advance amounting to Rs. 34,400/-. We also find that at 9-30 p.m. both P.W. 5 and deceased Ranjitsingh proceeded at which time two persons requested deceased Ranjitsingh to give lift upto O.N.G.C. Cross-roads, and even though Ranjitsingh refused, they forcefully entered the vehicle and when the vehicle reached Essar Nandniketan, which is situated at about one and a half kilometer one of the persons, who had entered the vehicle, took out revolver and put it on the left side armpit of the deceased and demanded money and threatened to give money or else he would fire the shot. We also find that this witness has stated that other person, who was armed with revolver placed the revolver on the forehead of the witness. We also find that this witness stated that upon deceased Ranjitsingh refusing to give money said person fired a shot from his revolver. We find that this witness has stated that thereafter both the assailants had taken out key from the pocket of deceased Ranjitsingh and then took Rs. 34,400/- lying in the box then'' the person who had fired shot at deceased Ranjitsingh got down and the person who had pointed his revolver to the witness got down after 15 to 20 minutes. We find that this witness has also stated that deceased Ranjitsingh was injured and was bleeding, and thereafter, he went in a truck passing by to Essar Company and informed the transporter. He has also stated that one of the assailants was having beard and was about 5 to 5.5 feet tall. We find that in his cross-examination he has stated that there was darkness on the road, however, the light for pooja in the truck was on. He has also admitted in his cross-examination that because of the incident he got frightened and that he did not know two assailants. We also find in his cross-examination that he has denied some suggestions of the defense.
13. Upon reading the evidence of P.W. 3, Bhupatbhai Devaji Prajapati, (Exh. 19), we find that he is the owner of the hotel named Navdurga situated at Gham Road, Kosamba. We also find that this witness has stated that two persons had come to his hotel at about 10 p.m., who were drunk and that they had given Rs. 33,400/- to him and they slept outside the hotel. We also find that when this witness came back to his hotel next day, he found that police personnel arrested one of the persons and that he was the same person who had deposited the money and slept outside his hotel. We also find that when police inquired as to whether he knows the appellants, this witness has stated that he does not know the appellants. In his cross-examination, we find that he has denied the suggestion of the defense that he identified the appellant accused No. 1 at the instance of the police and he has further stated that he could identify accused No. 1 because of beard. As regards Rs. 33,400/- deposited with the hotel owner, the prosecution has not been able to lead any further corroborative evidence to fix the identity of the present appellants.
14. Upon reading evidence of P.W. 11, Dahyabhai Valjibhai Parmar, Exh. 40, Additional Executive Magistrate, who conducted T.I. Parade, we find that he has narrated that on yadi received from Ichchhapur Police Station on 22-6-2003 he conducted T.I. Parade at the office of Mamlatdar on 28-6-2003. We find that he has stated the manner in which T.I. Parade was conducted. In his cross-examination, we find that he has denied certain suggestions of the defense. However, he has stated that first the panchas had arrived at his office thereafter the complainant and then the appellant-accused came.
15. Upon reading evidence of P.W. 17, Exh. 52, Ramanbhai Laxmanbhai Parmar, who was the Investigating Officer of the offence, we find that he has stated, on the basis of message received from Surat Rural Traffic Police, that two accused, namely, Ratansing and Amarnath have been arrested in connection with C.R. No. II-84 of 2003 of Kamrej Police Station, he went to Kamrej Police Station to investigate. We also find that on interrogating Amarnath, at Kamrej Police Station, Amarnath had disclosed about muddamal and that he arrested both the accused on 20-6-2003 by way of transfer warrant. We also find that muddamal of Kamrej Police Station was taken as muddamal in the present case. In his cross-examination, we find that he has admitted the fact that he had shown a copy of the license of accused before T.I. Parade.
16. We have also perused panchnama of T.I. Parade (Exh. 42) and also gone through the ballistic report in the form of serological report at Exh. 57.
17. The sum total of the above leads to the fact that entire case of prosecution hinges on oral testimony of P.W. 5, first informant and eyewitness. From the evidence of this witness, we find that though he has supported the case of the prosecution, he has categorically stated that he does not identify the appellant-accused. From the evidence of this witness, therefore, the prosecution has not been able to establish the identity of the accused and only because the appellant-accused were arrested in subsequent offence under the Arms Act by Kamrej Police Station, said incident cannot be linked with the case on hand. The investigating agency has attempted to prove the charges against the appellants on the basis of the investigation carried out in the earlier offence under the Arms Act registered with Kamrej Police Station, whereas it has come on record that both the appellants have been acquitted in the said offence under the Arms Act. Therefore, the base on which the prosecution has heavily relied upon is in fact not available to the prosecution. Therefore, the prosecution has not been able to prove the very identity and presence of the appellants at the place of occurrence, and has therefore, not been able to link present appellants with the offence for which they are tried. As stated above, the eye-witness, P.W. 5, Darshansing also has clearly admitted in his cross-examination that he could identify appellant accused No. 1 only on the basis of beard. However, he has not identified both the accused at the dock, and therefore, oral testimony of P.W. 5, Darshansing does not take the case of the prosecution any further except the fact of occurrence of crime. However, we find that the prosecution has not been able to successfully link the appellant accused with the said offence. We also find that the panch witnesses have not supported the recovery of cash as well as arms. We also find that there is no proof of arms having been used by the accused for commission of offence, and therefore, ballistic report is of no significance. Mere recovery of arms only proves the authorship of the concealment and without there being any further corroboration as to use thereof by the accused, the accused cannot be said to have used the same for committing the offence in question.
18. The exercise undertaken by the prosecution to hold T.I. Parade is also misdirected. The Investigating Officer has, in fact, admitted in his evidence that he had shown the photograph of accused No. 1 from his driving license before the holding of T.I. Parade, and therefore, it is not safe to base conviction on the basis of such T.I. Parade. We also find that identification of the accused appellants in T.I. Parade also does not take case of the prosecution further as it has clearly come in evidence that complainant was present at the office of Mamlatdar when both the accused were brought and that Investigating Officer had shown photograph of appellant No. 1 before T.I. Parade was conducted. We, therefore, find that the Sessions Court has wrongly appreciated the evidence on record and has erred in coming to the conclusion that the prosecution has been able to prove the charges against the appellants. In our view, both the appeals deserve to be allowed by giving benefit of doubt to the appellants.
19. In the result, both the appeals are allowed. The judgment and order of conviction and sentence of the appellants rendered by the trial Court, in Sessions Case No. 204 of 2003 are hereby set aside. The appellants-accused are acquitted of the offences with which they were charged. They are ordered to be released forthwith, if not required in any other case. Fine, if paid, be refunded to them.
