JITENDRA SHYAMLAL JAIN v. STATE OF GUJARAT

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 04/09/2002 ORAL JUDGEMENT

1.(cid:9)This appeal arises out of a common judgment and order rendered in Sessions Cases No.239 and 242 of 1999 by Fast Tract Court presided over by learned Additional Sessions Judge, Baroda, on the 11th February, 2002. The appellant came to be convicted for offences punishable under Section 397 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/-, in default, to undergo further imprisonment for six months.

2.(cid:9)The facts of the case, in brief, can he stated thus:

2.1(cid:9)The appellant along with thirteen other accused persons was tried by the Fast Tract Court for offences punishable under Sections 395 and 397 of Indian Penal Code, Section 25(C) of the Arms Act and Section 135 of the Bombay Police Act. As per the prosecution case, the incident leading to the apprehension and arrest of the appellant occurred at about 12.00 midnight, at village Khakharia of Savli taluka of Baroda district. As per the prosecution case, the appellant along with other accused persons had committed a decoity in the house of Kiritbhai Prabhudas Patel and in doing so, had causedl injury to Kiritbhai and had robbed Rupees ten to eleven thousand from the safe and three bangles and two golden chains from the person of Shardaben, wife of Kiritbhai. Police was immediately informed and, it appears that an alert signal was sent to all the surrounding Police Stations and patrols. A Police Van of Dahod Rural Police Station was on night patrol duty and P.S.I.-Ambegaonkar was informed about the incident. Therefore, they, after arranging a blockade, were standing near village Nabdal and were checking the vehicles. One jeep car arrived at that place at about 4 o' clock in the morning from Godhra direction. About ten to twelve persons were sitting in the vehicle. When the jeep was stopped by the police, a gun was fired at the police and the jeep escaped towards Indore. The police, therefore, chased the jeep and, simultaneously, sent wireless messages. The jeep, after travelling some distance, stopped near Garbada road and the occupants started running away, jumping from the jeep. One of the occupants was caught by the police on the spot and he happens to be the present appellant, who was arraigned as accused No.6 before the Trial Court. On search of the jeep car, fire arms were found. On basis of the interrogation of the apprehended person (the appellant) and other investigation, thirteen other persons were also arrested. Having collected sufficient evidence during the course of investigation, the police filed charge sheet. The case was committed to the Court of Sessions as it was exclusively triable by a Court of Sessions. The charge was framed at Ex.8 by the Trial Court, to which the accused persons pleaded not guilty and claimed to be tried.

2.2(cid:9)The prosecution led both oral and documentary evidence. Considering evidence on record, the Trial Court came to a conclusion that the prosecution could not establish the charges against accused Nos.1 to 5 and 7 to 14 and, therefore, acquitted them. So far as accused No.6 was concerned, the Trial Court came to a conclusion that there was sufficient evidence to convict him for the offence punishable under Section 397 and, therefore, recorded his conviction and, after hearing him, sentenced him to undergo rigorous imprisonment for a period of seven years, which is the minimum prescribed by law. Aggrieved by the said judgment and order, the present appeal is preferred.

3.(cid:9)After the appeal was admitted, learned counsel for the appellant did not press for bail, at that stage, and this Court (Coram: C.K. Buch, J.) ordered to dispense with the paper book and placed the matter for final hearing on 9.7.2002. The Court also ordered that, if appeal is not heard, the appellant will be at liberty to pray for bail afresh and, if such prayer is made, the same shall be heard and decided on merits. Since the matter could not be heard finally on 9.7.2002, the prayer for bail was revived and, thus, the matter is on board today for hearing the question of bail.

4.(cid:9)By consent of parties, the matter is taken up today for final hearing.

5.(cid:9)Learned Advocate Mr. Jhala submitted that, although the record and proceedings are voluminous, the entire prosecution case hangs on deposition of witness-Pratapsinh Narsinh, at Ex.73. He submitted that rest of the evidence is not accepted even by the Trial Court, including the evidence of test identification parade.

5.1(cid:9)Learned Advocate Mr. Jhala, however, has taken this Court through the record and proceedings and, more closely, through the deposition of Pratapsinh Narsinh (Ex.73). According to Mr. Jhala, there is absolutely no evidence to show that the accused was in the jeep when the jeep was intercepted and firing took place. He submitted that, when the appellant was apprehended, he was at a distance of about 200 metres from the jeep, as admitted by the witness. It is contended that the appellant was apprehended at about 4.00 in the morning and, admittedly, there were no lights. It was also contended that the appellant has not been identified before Court. All these factors collectively would go to show that there is no evidence or, at least, the evidence is so scanty that conviction cannot be sustained. Mr. Jhala, therefore, urged that this appeal may be allowed.

6.(cid:9)The appeal is opposed to by learned Additional Public Prosecutor Mr. Abichandani. Countering the arguments of Mr. Jhala, learned Additional Public Prosecutor submitted that, as per the evidence of this witness, when the jeep car started running, it was chased by the police and when the jeep car stopped and the occupants of the jeep car started running from the jeep, they chased the occupants and, in doing so, they apprehended the appellant. There is no scope of a wrong person being apprehended. Therefore, there is no question of any error in identification of the appellant. Mr. Abichandani submitted that the second argument about there being dark and the appellant being at a distance of 200 metres also would be of no virtue so far as the appellant is concerned. Mr. Abichandani submitted that the appellant belongs to village Petlavad of Madhya Pradesh and his presence at the spot at the relevant time has not been even attempted to be explained by the defence either by making some suggestion to the witness or in form of statement under Section 313 of the Code of Criminal Procedure. The witness, who is a police personnel, has no axe to grind against the appellant and, as such, there is no reason to disbelieve this witness. He submitted that the Trial Court has rightly recorded the conviction and the appeal may, therefore, be dismissed.

7.(cid:9)Having regard to rival side contentions, after a close scrutiny of the record and proceedings, it may be stated that the case of the prosecution against the appellant depends on the deposition of Pratapsinh Narsinh (Ex.73), as submitted by learned counsel Mr. Jhala. After a close scrutiny of that deposition and other material, this Court is of the view that no interference is called for in the judgment and order appealed against.

8.(cid:9)Witness-Pratapsinh states that they were waiting at village Nabdal after arranging a blockade and were checking the vehicles. At about 4.00 A.M., a jeep car came from Godhra side. When they were checking the vehicle, one of the occupants pointed a gun, which was snatched by Constable-Kantibhai Udaysinh and, in doing so, he fell down. At that time, somebody fired a shot from gun and the jeep escaped Indore. They, therefore, chased the jeep and, simultaneously, sent wireless messages to surrounding Police Stations and also a Wardhi to P.S.I. in the Town Police Station. When the jeep car came on the Garbada road, it stopped and the occupants started running therefrom. They were chased and one of them was apprehended, who gave his name as Jitendra Shyamlal Jain of Petlavad (who happens to be present appellant). The jeep was registered in the State of Madhya Pradesh. Two Tamanchas, Rs.196/- in cash, a bracelet containing name of D.N. Patel, one locket containing name of Arvindbhai Patel, bangles, etc. were also found from the jeep car. The witness says that he can identify the person who was apprehended.

8.1(cid:9)During cross-examination, he says that the jeep car was of Commandar brand with open doors. He denies the suggestion that ten to twelve persons cannot be accommodated in such a jeep car. He says that they had chased the jeep car for about one and a half to two kilometres. He says that, when they reached near the jeep, there was no person in the jeep, but they were running from the jeep. A man was apprehended at a distance of about 100 to 200 metres from the jeep. There were no lights and it was dark. He denies the suggestion that the appellant was not caught at that point of time.

9.(cid:9)It is, thus, evident from the deposition of this witness that, after the jeep was intercepted, a gun was pointed at the police men and on that gun being snatched, a shot was fired at the police and the jeep started running. The said jeep was chased by the police and when it stopped, the occupants started running away and when the police chased the occupants, the present appellant came to be apprehended. To put it differently, after the jeep started running from the place where it was intercepted, it was under the eyes of the police constantly till it stopped and the occupants started running and the occupants were under the eyes of the police till the appellant was apprehended. It is not the case of the appellant that he was not caught at the spot. The appellant belongs to Petlavad, Madhya Pradesh and his presence at the place of the incident at the time of apprehension cannot be considered as natural. He is not coming out with any explanation as to how he was present at the place where he was apprehended at about 4 o' clock in the morning. The arguments that there is no evidence to show that he was in the jeep, that he was caught at a distance of 200 metres from the jeep and that there were no lights, therefore, are not sufficient for setting aside the conviction.

10.(cid:9)Learned Advocate Mr. Jhala had also raised a contention that when the deposition of this witness was recorded, the appellant was not present in the Court and, therefore, he has not been identified. It was urged that, therefore, there is no evidence of identification. In this regard, application (Ex.74) tendered by the defence seeking exemption from attendance of accused No.6-present appellant, needs to be considered. In that application, it has been categorically stated that the defence has no objection, if the trial is proceeded with in absence of accused No.6 and the appellant waives/forgoes his dispute as to identity and, thereafter, exemption was granted to accused No.6 by the Court. The contention of Mr. Jhala, therefore, cannot be accepted and appeal cannot be allowed on this ground.

11.(cid:9)For the foregoing reasons, in absence of any other contention, the appeal must fail and the same is, therefore, dismissed. The judgment and order impugned herein rendered by the Fast Track Court, presided over by learned Additional Sessions Judge, Baroda, on the 11th February, 2002, in Sessions Cases No.239 and 242 of 1999 is hereby confirmed. (cid:9) (cid:9)[ A.L. DAVE, J. ] (cid:9) (cid:9)