DHIRU @ DHARAMSHI BARAIYA DEVIPUJAK v. THE STATE OF GUJARAT

10. Ratibhai Raghavbhai, PW-9, Ex.23, was the first person who had helped the complainant after he got injured. In his deposition, he stated that at about 1 O' clock on 12.3.2002, when he was going on Pipariya- Samadhiyala road towards his farm, he found Mukeshbhai lying near the field of Ramjibhai. Mukeshbhai had informed him that he was hit with an axe by an unknown person and he was robbed of his cash, gold rings and wrist watch. The witness thereafter called Naranbhai and with his help, Mukeshbhai was taken to the house of Rambhai.

11. Goberbhai, PW-10, Ex.24 had taken Mukeshbhai to doctor at Una in a tractor.

12. Dhirubhai Lakhmanbhai, PW-11, Ex.25 stated that he new the accused. The accused had given a Rado wrist watch for wearing. He identified the wrist watch as muddamal article No.1. He could not state as to from where the accused had got the watch. He agreed that the Police had seized the watch from him. CR.A/231/2005 JUDGMENT

13. PW-12, Amubhai Gordhanbhai, Ex.26, was the jeweler to whom the accused had sold the gold rings. He stated that the accused had come to his shop to sell two gold rings of total of 6 grams. He had paid Rs.1000/- for the rings. He had melted the rings for making other ornaments. Thereafter, the police had come with the accused and inquired about the gold rings.

14. Ramjibhai, PW-14, Ex.31 was the person in whose tractor Mukeshbhai was shifted in the afternoon of 12th March 2002.

15. Mangalbhai Shardulbhai, PW-15, Ex.32 was the panch witness to the panchnama of discovery of the weapon used in the offence. He, however, turned hostile. The contents of the panchnama were sought to be proved through the deposition of IO.

16. Dr.Ramash Nimavat, PW-16, was examined at Ex.34. He had treated the complainant on 13th March 2002 at Mehta's Trust Hospital in which he was a surgeon in the Orthopedic Department. He stated that the patient was brought to him at 10 O' clock on 13th March 2002 after having been taken to emergency treatment from a private doctor. Since earlier police report was not made, he had informed the police on telephone. He put a plaster. He had found an injury between the elbow and shoulder on left hand which prevented movement of the hand. The patient had given history that on the previous day in the CR.A/231/2005 JUDGMENT afternoon when he was on a motor-cycle, an unknown person had hit him with an axe.

17. Bhagwanbhai Rambhai, PW-19, Ex.45 was the IO, who described the manner in which the investigation was carried out.

18. In the nutshell, the prosecution relied on the above evidence to prove the charge.

19. Having perused the evidence and having heard the learned APP for the State, I find that there was overwhelming evidence against the accused in the present case. Complainant, Mukeshbhai has clearly stated in his deposition the manner in which the incident had taken place. Accused was arrested in connection with another offence and was offered for identification, some three months after the incident. The complainant identified the accused during TIP. He also identified before the Court.

20. The incident happened in the broad day light and after giving an axe blow to the complainant when he fell down, the accused also demanded cash and valuables from him. After collecting cash, wrist watch and gold rings, he disappeared. Thus the complainant had ample opportunity to see the accused in broad day light for a fairly long time. His identifying the accused about 3 months after the incident, therefore is not surprising. CR.A/231/2005 JUDGMENT

21. Deposition of the complainant Mukeshbhai is corroborated by other evidence on record. PW-9, Ratibhai, who had helped the complainant immediately after the incident also supported the prosecution. Goberbhai, PW-10, had taken the complainant to the doctor. All these witnesses support the version given by the complainant. Ramjibhai Lakhmanbhai, PW-14, Ex.31, had shifted the complainant in his tractor to the hospital at Una. Apart from the said eye-witness account, prosecution also had seized the wrist watch from Dhirubhai Lakhmanbhai to whom the accused had given the watch for wearing. The accused had led the police and the panch to the house of Dhirubhai from where the watch was recovered. In fact, Dhirubhai Lakhmanbhai, PW-11, Ex.25 also stated that the watch was given to him by the accused.

22. The prosecution also examined the gold-smith, Amubhai, PW-12, to whom the accused had sold the gold rings. He also stated before the Court that he had paid a sum of Rs.1,000/- to the accused to purchase the gold rings. Additionally, the axe used in the commission of offence was also discovered at the instance of the accused. Further Dr.Ramesh Nimavat, PW-16, Ex.34 who had treated the complainant on 13th March 2002 also described the injuries suffered by the complainant which corroborated the deposition of the complainant that he was hit by the accused.

23. In view of he above unimpeachable and extensive evidence on record, there is no doubt left in my mind CR.A/231/2005 JUDGMENT that the accused was involved in the commission of offence. While committing robbery he had used a deadly weapon. His conviction under section 397 of the IPC was, therefore, justified. The learned Judge imposed sentence of 7 years which is the minimum prescribed under the said section.

24. In the result, I see no merit in the appeal and the same is therefore dismissed. (vjn) (Akil Kureshi, J.)