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2003 Supreme(Guj) 346
Gujarat High Court
Judgename :N.G.Nandi, RAVI R.TRIPATHI
SINDHI DAFER HAYAT DAUD - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 731 of 1999
Decided On : 06/26/2003
Headnote:
Bombay Police Act - Section 135 - Criminal Procedure Code, 1973 - Section-374 (2) - Indian Penal Code - Sections 395 and 114 - Appeal filed is directed against judgment and order passed by Additional Sessions Judge in Sessions Case by which appellants-accused are convicted and punished accused-appellants with rigorous imprisonment for years and a fine in default to undergo simple imprisonment - Prosecution is that on at accused had come with about unknown persons at railway crossing road situated in of Village - They all detained Railway Gateman on duty by tying him with a rope and closed Railway Crossing case of prosecution is that as railway crossing was closed vehicles like truck tanker matador etc plying to and were stopped - At that time accused along with persons accompanying them robbed off golden and silver ornaments and cash amount totaling from the driver cleaner and passengers of vehicles by showing knife and scaring them of hurting grievously or killing them and caused grievous hurt with help of hammer and eloped from scene – Held, Apex Court in the matter of Delhi Administration, reported in AIR TIP was not held and a witness identified accused in Court - Apex Court was pleased to observe in - AS for test identification parade it is true that no test identification parade was held - Appellants were known to police officials who had deposed against appellants and only persons who did not know them before were persons who gave evidence of association to which the High Court did not attach much importance - It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know accused before occurrence but failure to hold a parade would not make inadmissible evidence of identification in Court - Weight to be attached to identification would be a matter for the Courts of fact and it is not for this Court to reassess evidence unless exceptional grounds were established necessitating such a course - Submitted that in this case veracity of prosecution witnesses is required to be appreciated in light of fact that witnesses have given a very natural version of entire incident - Not only that witnesses have remained truthful despite the presence of the police officials which can be noticed from fact that none of eight prosecution witnesses have come forward to make a bold and bald assertion of identifying all three accused at first sight in Court – Order Accordingly (Para 18)
( 1 ) THIS appeal filed under Section-374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgement and order dated 5th June, 1999 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case Nos. 267 of 1998 and 268 of 1998, by which the appellants-accused are convicted under Sections 395 and 114 of the Indian Penal Code and punished the accused-appellants with rigorous imprisonment for 10 years and a fine of Rs. 10,000=00 (Rupees Ten Thousand Only), in default to undergo simple imprisonment for two years and six months.
( 2 ) THE case of the prosecution is that on 20th September, 1994, at about 1. 15 a. m. the accused had come with about 10 unknown persons at the railway crossing on Palavasana to Vijapur road situated in the sim of Village-Shobhasan, District:mehsana. They all detained the Railway Gateman on duty by tying him with a rope and closed Palavasana Railway Crossing. The case of the prosecution is that as Palavasana railway crossing was closed, vehicles like truck, tanker, matador, etc. plying from Palavasana to Vijapur and Vijapur to Palavasana were stopped. At that time, the accused along with the persons accompanying them, robbed off the golden and silver ornaments and cash amount totalling to Rs. 43,954=00 from the driver, cleaner and passengers of the vehicles, by showing knife and scaring them of hurting grievously or killing them and caused grievous hurt with the help of hammer and eloped from the scene. The case of the prosecution is that the accused, thus, have committed offence punishable under Sections 395, 397, 332 and 342 of the Indian Penal Code and Section 135 of the Bombay Police Act.
( 3 ) ONE Varsangji Takhuji Thakore, complainant, filed a complaint, which was registered as FIR under Section 154 of the Code of Criminal Procedure at Mehsana Taluka Police Station, and was recorded by one J. B. Rana, Police Sub Inspector of Mehsana Taluka Police Station. The same was investigated by Shri J. G. Parmar, PSI, Local Crime Branch (LCB), Mehsana. The investigation was with Shri J. B. Rana, PSI, Mehsana Taluka Police Station, who was assisted by the PSO, Mehsana Taluka Police Station. As there was no likelihood of tracing the accused in near future, a report under Section-173 of the Code of Criminal Procedure was filed through Shri F. R. Jhala, PSI, Mehsana Taluka Police Station before the Court. Thereafter, the Local Crime Branch, Mehsana was informed about accused nos. 1, 2 and 3 by Anti Dacoity Squad, Surat, and the accused were brought under the transfer warrant.
( 4 ) THE investigating agency, after having obtained the custody of accused nos. 1, 2 and 3 by transfer warrant on 30th June, 1998, arranged for Test Identification Parade (hereinafter referred to as "tip" for short) on 7th July, 1998. As some of the witnesses, who were called for identifying the accused, could/did not remain present, the second TIP was held on 15th July, 1998.
( 5 ) THE PSI, J. G. Parmar, (LCB), Mehsana, then investigated the offence and after the investigation was over, filed chargesheet against accused no. 1-Sindhi Dafer Hayat Daud, accused no. 2-Sindhi Dafer Mithu Umar and accused no. 3-Sindhi Dafer Jumma Umar. FROM the record, it transpires that in the FIR, allegations were made against one Dafer Sindhi Daud Mira Bhoja also, with other persons. It appears that as Dafer Sindhi Daud @ Mira Bhoja was not traceable, he could not be arrayed as an accused in the chargesheet, which, in the first instance, came to be filed against accused no. 1, Sindhi Dafer Hayat Daud, accused no. 2-Sindhi Dafer Mithu Umar and accused no. 3-Sindhi Dafer Jumma Umar. Thereafter, a separate chargesheet was filed when Dafer Sindhi Daud @ Mira Bhoja was arrested and that is how, two separate chargesheets came to be filed against the persons allegedly involved in the incident of 20th September, 1994 at 1. 30 a. m. at Palavasana railway crossing. All the accused persons were committed to the Court of
