Gujarat High Court
Anandsinh Tilakdharisinh Rajput vs State Of Gujarat on 3 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/202/2003 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 202 of 2003
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2024
In
R/CRIMINAL APPEAL NO. 202 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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ANANDSINH TILAKDHARISINH RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
BAILABLE WARRANT SERVED for the Appellant(s) No. 1
DR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
NON BAILABLE WARRANT UNSERVED for the Appellant(s) No. 1
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/07/2025
ORAL JUDGMENT
1. The appellant is accused No.1 of Sessions Case No.06 of
2000 wherein both the accused came to be convicted by
learned Additional Sessions Judge, Navsari on 21.12.2002.
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2. The First Information Report (FIR) and the charge-sheet
were against three accused, since accused Mukesh Brijram
was found absconding, the trial was conducted against
the present appellant-Anandhari Tilakdari and another
accused-Maleshsinh as acccused No.1 and 2. Both the
accused were convicted under Section 393 read with
Section 34 of the Indian Penal Code (IPC) for 5 years
rigorous imprisonment and Rs.1,000/- fine and in default
of payment of fine, three months simple imprisonment.
3. The trial was under Sections 392, 397 and 34 of the IPC
and Section 25(1B) of the Arms Act, 1959. The
conviction order sentencing both the accused is under
Section 393 with Section 34, while there is no
punishment for the offence under the Arms Act. Section
393 and Section 34 of the IPC are extracted
hereinunder :-
“Section 393. Attempt to commit robbery.
Whoever attempts to commit robbery shall be punished
with rigorous imprisonment for a term which may extend
to seven years, and shall also be liable to fine.
Section 34. Acts done by several persons in furtherance of
common intention.-
When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone.”
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4. The facts of the case in a nutshell are as under :-
The first informant-PW1-Harishchandra Jinalal Patel on
19.08.1999 as per his routine left his house at 7.00 in
the morning from Village Mankad to Hond on his Hero
Honda motorcycle for the purpose of depositing milk at
the Milk Co-operative Society. While he was on his way,
at that point of time, he saw three persons sitting on the
bridge of Jarikotar. While returning back at 7.30, the
first informant parked his motorcycle to collect fodder at
the edge of the road beside the farm of one-Mr. Desai.
At that point of time, those three persons came walking
near him. The first informant was locking his motor
cycle, and was about to put the keys of the motorcycle
in his pocket, suddenly one out of three took out a
countrymade pistol (tamancha) and pointed it to the first
informant and another person touched him with a knife
and asked the first informant to hand over all his
belongings. It is stated that when these people were
searching his pockets, his father came there on his cycle
and therefore, the complainant gathered strength and
before, they could cause him any injury he stepped
behind and shouted that there are ‘thieves and looteras’.
The complainant stated that as he shouted, all the three
started his motorcycle and tried to run away but since it
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was raining, the driver of the motorcycle could not
control it and since the motorcycle skidded, all the three
fell down. At that time, as per the complainant, Yogesh
Bhagu Bhanabhai Babarbhai and his father Jinabhai as
well as Shailesh were passing since they were also on
their way to deposit milk in the Co-operative Society,
with their support, they caught the escaping persons who
had come for loot and after nabbing them, they took
them to the farm belonging to Mukesh Ramanbhai, Dipak
Ramanbhai and Rohit Ramanbhai which was at a distance
of 200 meters. After taking them in the house, many
people gathered there to see those persons who were
caught. As per the complainant-Dipakbhai phoned the
police and during that period, they enquired about the
name and address of the apprehended persons. As per
the complaint, one who had pointed the country made
pistol was Mukesh, another who had placed the knife
was Anandsinh Tilakdharisinh Rajput and the third
Maheshsinh Umeshsinh Malar, all the three were
residents of Silvassa.
5. Learned advocate for the appellant Dr. Hardik Raval
stated that the star witness who is the first informant-
PW1 cannot be termed as a true and reliable witness and
the entire case put by the first informant is in the form
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of contradiction amounting to omission. The witness in
his cross examination admitted that his FIR was not
recorded on the printed form and had admitted that there
is no mention of the fact in the FIR that one person had
a pistol in his hand and another had a knife in his hand.
And there is no mention that the two persons demanded
money from the first informant. Dr. Hardik Raval
submitted that the first informant had not seen the
accused person prior to the incident. The complainant
was required to take the accused to the police and hand
over them to police, instead of that, the complainant
took the accused persons to the house of Dipakbhai, the
witness admitted that no one was injured nor he had
sustained any loss or damage. Dr. Hardik Raval
submitted that the evidence of PW1 is not reliable and
renders the prosecution case highly doubtful.
6. Referring to the evidence of PW2-the first informant,
Bhanabhai Babarbhai, learned advocate Dr. Hardik Raval
submitted that he is the person who had been on the
Scooter passing by the road and on hearing the shouts of
‘chor chor’, he stopped his scooter and found three
persons, out of that, one had a knife, another had a
tamancha and third had nothing in his hand. PW2 states
that one of the person was caught by the first informant.
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He stated that he was enquired by the police only once
when the police had come to the village, thereafter,
police had not made any enquiry from him and states
that for the very first time, he narrated the incident in
the Court. Learned advocate Dr. Hardik Raval thus
submitted that the overall evidence shows that he was
not present at the place of incident.
7. About PW3-the father of the informant-Jinabhai
Khedabhai, learned advocate Dr. Hardik Raval submitted
that his evidence is full of contradictions. He is not in a
position to identify the accused nor he refers to any
weapon in the hands of any of the accused, rather states
that he had not seen any instrument with the accused.
Learned advocate Dr. Hardik Raval thus, stated that the
evidence of the father would prove that the son-first
informant-PW1 had concocted the case of the accused
having weapons in their hands and that the matter had
taken a turn at Dipakbhai’s house.
8. Learned advocate Dr. Hardik Raval further submitted that
the first informant had taken the accused to the house of
PW4-Dipak Ramanlal Desai, whose evidence further
clarifies the fact that the complainant-PW1 had never
informed that the three persons caught were trying to rob
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the motor cycle and he had also admitted in the cross
examination of not informing the police of handing over
the tamancha after taking it from the accused.
9. Learned advocate Dr. Hardik Raval submitted that the
panch or panchnama does not say of recovery of the
weapons from the accused as contemplated under Section
27 of the Evidence Act. Further, learned advocate Dr.
Hardik Raval states that the knife which has been
described in the panchanama at Exhibit 19 is an old used
kitchen knife with a plastic handle, while panchnana does
not record that the said knife was produced by the
present appellant, rather it is the complainant who
alleges that the knife was with the present appellant.
Thus, it is submitted that the knife has not come from
the possession of the accused nor such fact is
corroborated by the father of the complainant, who is the
eye witness to the incident, but to fill up the gap such
weapon is shown through PW2 who had no occasion to
see the incident. PW2 though had seen the accused with
the alleged attributed weapons but only could identify
the present appellant as holding the knife while could not
clarify in his examination-in-chief of the tamancha and
does not emphatically state of such tamancha being there
on the date of incident. Learned advocate Dr. Hardik
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Raval thus, stated that the witness is a introduced person
and is not a natural witness who further has also
affirmed that there were no marks on the knife to
identify the knife and such knife could be purchased from
the market. Learned advocate Dr. Hardik Raval submits
that the knife does not fall under the Arms Act and the
evidence during the trial does not prove that such knife
was recovered from the possession of the present
appellant. Learned advocate Dr. Hardik Raval thus,
submitted that it is a wrong conviction.
10. Countering the arguments, learned Additional Public
Prosecutor Mr. Rohankumar Rawal while taking the Court
through the evidence of the witnesses, submits that the
charge at Exhibit 8 refers to the deadly weapon in the
hands of the accused. The charge also refers to the
knife, which has been proved by PW2 and further, the
circumstances with the evidence of PW4-Dipakbhai clearly
proves that the accused were taken from the place of
incident to Dipakbhai’s house which is corroborated and
thus, there would not be a question of test identification
parade or false implication. The complainant himself has
identified the accused. The weapons had been recovered
through the panchanama, the report of the Investigating
Officer on which sanction was received for prosecution
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under the Arms Act and on receiving the permission, the
chargesheet had been filed. The FSL report corroborates
the fact of the tamancha and live cartridges which proves
the ingredients under Section 392 of the IPC which
become punishable with Section 394 read with Section
34. The FSL Officer has been examined as PW7 and the
PW9 is the Additional District Commissioner who had
given the permission for prosecution. Learned Additional
Public Prosecutor Mr. Ronakkumar Raval thus, supporting
the judgment and the conclusion reached by the trial
Court Judge submitted that the conviction and sentence is
proper and the Appeal deserves to be dismissed.
11. Having heard the learned advocates of both the
sides, it is required to be noticed that the charge framed
below Exhibit 8 was against the present appellant-
Anandsinh Tilakdhari Rajput and No.2-Umesinh
Maheshsinh (Ketarmukiya Malar). The main accused who
was alleged to be holding the tamancha Mukesh Brijram
was found absconding, and thus the case was kept
pending against him, as ordered in the judgment.
12. As per the charge on 19.08.1989 at about 7.30 in
the morning, on the outskirts of Village Hond, opposite
the farm of Desai on the public road, both the accused
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as well as the absconding accused in furtherance of their
common intention, without pass permit, wielded with
deadly weapons tamancha, cartridges and knife, by
pointing and holding it against the complainant-Harish
Patel, had tried to snatch the key of Hero Honda
Motorycycle GJ-15-M-7385 valued at Rs.30,000/- and
thereby, causing the loot, had committed the offences
punishable under Sections 392, 393, 34 of the IPC and
under Section 25(1)(b) of the Arms Act.
13. Section 392 of the IPC is for the punishment for
robbery while Section 397 defines and punishes robbery
or dacoity with an attempt to cause death or grievous
hurt. The conviction is under Section 393 of the IPC
which defines attempt to committ robbery. The learned
trial Court Judge has not found actual robbery or any
attempt to cause death or grievous hurt by way of
robbery or dacoity. Robbery is defined under Section
390 of the IPC which is read as under :-
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“390. Robbery.– In all robbery there is either theft or
extortion.
When theft is robbery.- Theft is “robbery” if, in order to
the committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property
obtained by the theft, the offender, for that end,
voluntarily causes or attempts to cause to any person death
or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is “robbery” if the
offender, at the time of committing the extortion, is in the
presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of
instant hurt, or of instant wrongful restraint to that person
or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver
up the thing extorted.
Explanation.- The offender is said to be present if he is
sufficiently near to put the other person in fear of instant
death, of instant hurt, or of instant wrongful restraint.”
14. Section 393 punishes the attempt to commit robbery
with rigorous imprisonment for a term which may extend
upto 7 years and shall also be liable to fine. Here the
appellant and co-accused have been sentenced to 5 years
rigorous imprisonment and Rs.1,000/- fine and in default,
simple imprisonment of three months. The sentence is
read with Section 34 of the IPC.
15. In the case of Parasa Raja Manikyala Rao and
Another v. State of A.P. reported in (2003) 12 SCC 306,
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in Paragraphs 11 and 12 it has been held as under :-
“Section 34 really means that if two or more persons
intentionally do a common thing jointly, it is just the
same as if each of them had done it individually. It is
a well recognized canon of criminal jurisprudence that
the Courts cannot distinguish between co- conspirators,
nor can they inquire, even if it were possible as to the
part taken by each in the crime. Where parties go with
a common purpose to execute a common object each
and every person becomes responsible for the act of
each and every other in execution and furtherance of
their common purpose; as the purpose is common, so
must be the responsibility. All are guilty of the
principal offence, not of abetment only. In combination
of this kind a mortal stroke, though given by one of
the party, is deemed in the eye of law to have been
given by every individual present and abetting. But a
party not cognizant of the intention of his companion
to commit murder is not liable, though he has joined
his companion to do an unlawful act. Leading feature
of this Section is the element of participation in action.
The essence of liability under this Section is the
existence of a common intention animating the
offenders and the participation in a criminal act in
furtherance of the common intention. The essence is
simultaneous consensus of the minds of persons
participating in the criminal action to bring about a
particular result.
The participation need not in all cases be by physical
presence. In offences involving physical violence,
normally presence at the scene of offence may be
necessary, but such is not the case in respect of other
offences when the offence consists of diverse acts which
may be done at different times and places. The physical
presence at the scene of offence of the offender sought
to be rendered liable under this Section is not one of
the conditions of its applicability in every case. Before
a man can be held liable for acts done by another,
under the provisions of this Section, it must be
established that (i) there was common intention in the
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the person sought to be so held liable had participated
in some manner in the act constituting the offence.
Unless common intention and participation are both
present, this Section cannot apply.”
16. Common intention cannot be confused with same or
similar intention. To constitute common intention it is
necessary that intention of each one of them be known to
the rest of them and shared by them. It is difficult to
prove the intention of an individual and therefore, it is
all the more difficult to show the common intention of
group of persons. However difficult may be the task, the
prosecution must lead evidence of facts, circumstances
and conduct of the accused from which their common
intention can be safely gathered as observed in the case
of Parasa Raja Manikyala Rao (supra) with the reference
of cases as under :-
“In Maqsoodan v. State of Uttar Pradesh reported in AIR
1983 SCC 126, it was observed that prosecution must lead
evidence from which the common intention of the accused
can be safely gathered. In most cases it has to be inferred
from the act, conduct or other relevant circumstances of
the case in hand. The totality of the circumstances must be
taken into consideration in arriving at a conclusion
whether the accused had a common intention to commit
offence for which they can be convicted. The facts and
circumstances of cases vary and each case has to be
decided keeping in view the facts involved. Whether an act
is in furtherance of the common intention is an incident of
fact and not of law. In Bhabha Nanda Sarma v. State of
Assam reported in AIR 1977 SC 2252, it was observed that
prosecution must prove facts to justify an inference that all
participants of the acts had shared a common intention toPage 13 of 36
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commit the criminal act which was finally committed by
one or more of the participants. Mere presence of a person
at the time of commission of an offence by his
confederates is not, in itself sufficient to bring his case
within the purview of Section 34, unless community of
designs is proved against him.”
17. All the three accused were found to be residents of
Silvassa, as noted they were staying in Thakore
Harimohan Chawl. The complainant observes at 7.00 in
morning on 19.08.1999 while going to the Milk Co-
operative Society, three of them were sitting on the pool
of Jarikotar. The complainant states that he found them
sitting there probably for some work and he therefore,
went ahead. The evidence thus, suggests that three of
the accused may have seen the complainant going
towards the Milk Cooperative Society. There was no
attempt by any of the three at that time to cause any
robbery. The complainant states that he came back after
15-20 minutes for cutting grass in Desai’s farm. As per
his deposition, he had parked the motorcycle on the road
near Desai’s farm and at that time, the three had come
there and had asked for money and had also asked to
give whatever he had. So here the demand was of
money. The complainant states that out of the three,
one had tamancha, clarifying that it was country made
pistol and further stating that the tamancha was pointed
towards him and stated that the other person had raised
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a knife. Both of them had demanded money. The third
was without any weapon.
18. It is to be noted that the complainant was a Junior
Clerk at the time of the complaint in Gujarat Electricity
Board. It has not come on record that he himself was
cutting the grass from Desai’s farm. He had come there
in the morning after depositing milk in the Co-operative
Society. It becomes questionable as to why the accused
would be near bridge of a pool in the morning at about
7 o’clock where in a village, the people would be going
towards their farm or as the complainant going to the
Milk Co-operative Society for depositing milk. They
would not be carrying any money or valuables. The
common intention as could be inferred was demand of
money. It would be strange to consider that all the
accused had the common intention to loot the
complainant only. It is not the case of road robbery.
The plan of the accused was only to rob the complainant
could hardly be believed. There would not have been
any preconcert or prearranged plan to rob the
complainant. There would have been many vehicles
passing through that road. It would not have been
known to the accused, of complainant or for that matter
any other person carrying any money or any valuable
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thing with them. The deposition does not clarify of
searching the person of the complainant for the money,
but in the complaint, Exhibit 14, the PW1 stated that
after asking for money, they searched his pockets, but at
that time, from the opposite side, his father was coming
on a cycle and therefore, seeing his father, he gathered
strength. Placing reliance on the evidence of the
complainant in the complaint regarding the act of
searching his pockets, it could be seen that the common
intention of the accused was to rob the complainant with
his money. The circumstances and the facts of the case
denotes that the complainant was not carrying any cash
with him nor could the accused have assumed of any
money carried in the pocket in the morning while it was
the daily routine to deposit milk in the Society. The
complainant does not state that he had received any
money from Milk Co-operative Society. The presence of
the father also becomes a doubtful aspect, but the
complainant clarifies that his father had come there to
cut grass and another person-Banabhai-PW2 who was
going for purchase of milk was there and 2-3 ongoers
were also there and therefore, he shouted at the three
accused. He further stated that prior to his father
reaching that place, all the three had taken his
motorcycle and were trying to run away on the
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motorcycle. He further clarifies that there was normal
rain and the vehicle skidded and they fell down. Since
all had gathered there, one was caught by them at the
place and others were caught by the ongoers. He
alongwith the three persons had gone to Village Hond,
which was at a distance of 200 meters and took them to
the house of Mukeshbhai and Rohitbhai. He informed
about the incident and thereafter, Dipakbhai called the
police. The deposition of the complainant shows that he
had taken all the three accused, he is not stating that
others had joined him at Mukeshbhai and Rohitbhai’s
house.
19. PW3-Jinabhai Dedabhai is the father of the
complainant who does not remember the date of incident
and states that at 7.00 in the morning his son-Harish had
gone on his motorcycle to deposit milk. According to the
father, he too after Harish had started for Village Hond
to cut fodder from the farm of Mukeshbhai. According
to him after returning from the Milk Society,
complainant-son had parked his Honda near the adjoining
farm. The father saw three persons were snatching Honda
from son-Harishbhai. This witness categorically states
that he had not seen any instrument in the hands of the
accused. He refers to the vehicle getting slipped and he
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was running after them and states that public had nabbed
them at the spot, thereafter, all the three were taken to
the house of Rohitbhai at Village Hond. From there,
phone was made to the police and within 15 minutes
police had come to the house of Dipakbhai, when he was
present. The police took the accused to Chikli Police
Station. He denies the suggestion that in his police
statement, he had not informed the police that he saw
three persons snatching near Harishbhai. He affirmed
that the name of the apprehended accused were not
enquired at the house of Dipakbhai. Thus, the glaring
fact which comes on record by the evidence of the father
is that he had not seen any weapon with the accused.
Till the time, they reached the house of Dipakbhai, the
name of the accused were not disclosed. The father of
the complainant affirms that at the house of Dipakbhai,
the names of the accused were not enquired. He also
affirms in the cross examination that he was not called
before the learned Executive Magistrate. The evidence
clarifies that no test identifcation parade was conducted
and at the house of Dipakbhai, the names of the accused
were not disclosed. The police carried the arrested
persons from the house of Dipakbhai.
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20. PW2-Banabhai Babarbhai is a person who was also
travelling on that path for the purchase of milk. When
he was near the farm of Desai, he heard shouts of there
being thief, therefore, he had stopped his scooter. He
states that they were unknown persons and one was
holding a knife and other was holding a pistol. There
was another man Hasubhai from Vakal who had caught
one person while another had already left the place, and
the third was trying to escape. He says that he caught
the third person who was trying to escape from the
place, who had knife in his hands and that person was
tall. PW2 further states that many persons had gathered
there, they took them to Desai’s farm, in the house of
Dilipbhai Desai. He had identified the person who had
knife in his hand before the police at the house of
Dipakbhai. He assumed the escaping man as thief. He
identified the knife which he said was in the hands of
the present appellant. He does not remember as to
what the police had enquired from the complainant-
Harish, he had not gone to Chikli Police Station and does
not know who else had gone with the complainant, and
had no knowledge when the complainant had gone to
Chikli Police Station. In the cross examination, he
states that when the accused were trying to escape the
place, he had reached there. So the evidence of the
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witness clarifies he had not seen the actual incident. The
only evidence that could become relatable is that he says
that he has caught the present appellant when he was
trying to escape the place and according to PW2, the
appellant was having a knife in his hand. He identifies
the knife, but says that such kind of knife are available
in the market. He denies of any specific mark on the
knife. He has also affirmed that the police had not
called him before the Executive Magistrate.
21. What becomes important to note is that the police
had not recovered the knife from the present appellant by
way of panchnama. It is the complainant who had given
the tamanacha to Dipakbhai. But who gave the knife to
the police is unclear.
22. In the case of Wahid v. State of NCT of Delhi
reported in 2025 (3) SCC 341, the appeal was preferred
against the conviction under Sections 392, 397 and 411
of IPC and Section 25 of Arms Act, it was held by the
Hon’ble Supreme Court in paragraph 14 as under :-
14. In cases where the FIR is lodged against unknown
persons, and the persons made accused are not known
to the witnesses, material collected during investigation
plays an important role to determine whether there is a
credible case against the accused. In such type of cases,
the courts have to meticulously examine the evidence
regarding (a) how the investigating agency derived cluePage 20 of 36
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about the involvement of the accused in the crime; (b)
the manner in which the accused was arrested; and (c)
the manner in which the accused was identified. Apart
from above, discovery/ recovery of any looted article
on the disclosure made by, or at the instance of, the
accused, or from his possession, assumes importance to
lend credence to the prosecution case.”
23. Dipakbhai Ramanlal Desai was examined as PW4
who says that he is a resident of Village Hond. His
brothers are Rohitbhai and Mukesbhai. Rohitbhai is an
agriculturist. His land is at the border of Vankal of
Village Hond, adjoining to the road. It is a chikoo
(sapota) farm. He knows the complainant since he
collects the fodder from his brother’s farm. The witness
does not recollect the exact date of incident. He says that
8.00 in the morning, the complainant, his father and
others had brought three persons. The complainant
Harishbhai had informed him that three were caught and
they were trying to take away his motorcycle and that he
has brought them to him. Harishbhai gave him the
tamancha which he received from the accused. This
witness does not clarify that Harishbhai had given him
the knife nor it is coming from the evidence of PW2 that
he had handed over the accused-the present appellant
alongwith the knife to Dipakbhai.
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24. PW4 further states that after police had come to the
house, had made a general enquiry and took the accused
to Chikli Police Station. He himself had not gone to
Chikli Police Station. He says that he had come to know
about the name of the apprehended persons, they were
Mukesh, Anand and the third name he does not recollect.
The fact here which requires mention is that as per PW2-
Bhanabhai, one of the persons had already escaped the
place. Who apprehended him or caught him does not
get clarified in the evidence of Bhanabhai as according to
him Hasubhai from Vankal had caught one person and
the second person had run away and the third person
who was trying to run was caught with the knife. The
witness-PW4 identified both the accused as well as the
tamancha in the Court, while prosecution had not shown
the knife. The evidence does not become clear that
PW2-Bhanabhai Babarbhai had handed over the knife to
Dipakbhai nor is such a statement of PW2. The
prosecution case is that the present appellant was holding
the knife and he had put that knife on the person of
complainant touching his body. The witness-Dipakbhai
in the cross examination stated that before the police in
his statement has not informed that the complainant-
Harishbhai had informed him that the three persons who
were caught were trying to take away his motorcycle
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from him. He has not informed to the police that
Harishbhai had recovered the tamancha from the accused.
He had also not stated before the police in his statement
that the tamancha given by Harishbhai was activiated by
pulling the trigger and that he had handed over the
tamancha to the police when the police had come there.
He affirmed that he has no personal information as to
what had occurred with the complainant Harishbhai and
voluntarily said that Harishbhai had informed him. He
had no occasion to visit Chikli Police Station. So here
the allegation of complainant of accused trying to take
away his motorcycle becomes doubtful. Had Dipakbhai
known these all facts from Harishbhai, he would certainly
have informed the police.
25. PW5 is the panch Hemantbhai Arvindbhai Desai.
On 19.08.1999 he was called at the Chikli Police Station
to remain as a panch, i.e. on the date of incident.
Alongwith him was Rasikbhai Dalpatbhai Joshi. The
arrested persons were there at the police station. He says
that one of them was Mukeshbhai, while he does not
recollect the names of others, but identifies that, they
were from Bihar. He saws the weapons that were seized
which he states to be a tamachana and a knife. He
identifies the accused in the Court. He further states that
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he was called at Vankali Bilimoria Road, which was the
place of Dipakbhai’s farm and according to him, that was
place where the attempt was made to take away the
Honda of the complainant. He also had been the panch
for the place of incident, alongwith Rasikbhai. He has
produced the panchnama of place of incident-Exhibit 21.
This panch-PW5 does not state that the accused had
produced the tamancha. It is not stated by him that the
present appellant had produced the knife before him
during the course of panchnama. The weapons were
lying at the Police Station. He affirmed in the cross
examination that knife would be available from the
market, identifies the tamancha as O.K. 96 engraved on
it. During the course of deposition, he was asked to
read the writing on the tamancha and he stated that it
was not 96, but could be read as 99. And for the
identification of knife, he says that it was of plastic
handle and such knife are used for cutting vegetables.
He also said that there was no identification of the
accused before the Executive Magistrate and further,
stated that on Panchnama-Exhibit 19 there was no sign
or thumb impression of the accused.
26. Section 27 of the Evidence Act is on the principle
that if the confession of the accused is supported by
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discovery of a fact, the confession may be presumed to
be true and not to have been extracted. If certain facts
are deposed by the accused before the panchas and on
the consequences of the information so received, some
discovery is made from the accused person in police
custody and if such information whether it becomes
confession or not since it relates distinctly to the facts
thereby discovered may be proved. The object of section
27 is to admit evidence, which is relevant to the matter
under investigation namely, the guilt of the accused and
not to admit evidence, which is not relevant to that
matter. The discovery of a material object is of no
relevance to the question, whether the accused is guilty
of the offence charged against him unless it is connected
with the offence. Therefore, the connection between the
offence and the thing discovered may be established by
evidence. Section 27 requires that (a) there must be
information; (b) it does not matter whether the
information amounts to confession or not; (c) that person
must be in the custody of a police officer; (d) in
consequence of the information a fact must be deposed to
as discovered and (e) in such a case so much of the
information as relates distinctly to the fact thereby
discovered may be proved.
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27. Here, in this present case, the panchnama Exh.19
would have no relevancy, as it does not fall under
Section 27 of the Evidence Act. It does not cover
ingredients necessary to prove the fact as required under
this section. The Investigating Officer is not obliged to
obtain the signature of the accused in any statement
attributed to accused while preparing the seizure memo
for the recovery of any article covered by section 27 of
the Evidence Act, and if any signature has been obtained
by him, there is nothing wrong or illegal about it and it
could not be said that the signature of the accused in
seizure memo would vitiate the evidence regarding
recovery.
28. Here, in the present matter, the weapons are not
coming from the custody of the accused. The complainant
had handed over the Tamancha to Dipakbhai and
Dipakbhai had given the Tamancha to the Police. It was
deposed by Dipakbhai that complainant Harishbhai had
given the Tamancha, which he had procured from the
accused. So, at the house of Dipakbhai, the presence of
Tamancha is shown, police had also come there, but no
panchnama was drawn at the house of Dipakbhai. The
panchnama, which is shown as Exhibit 19, was drawn on
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the same day i.e. on 19.08.1989 between 9.50 to 11.45
hours. The panchnama, which had been drawn was of
O.K.96 and the cartridge having mark as B.M.M99, while
panch had read the number on the Tamancha as 99 and
not 96.
29. The report of the F.S.L. was put in evidence at
Exhibit 28. The F.S.L. Officer – Surenderkumar
Pursotambhai Pratiwala was examined as P.W.7, who has
referred to receiving of five sealed parcels. As per the
F.S.L. Report, parcel-A is one country made handgun
having barrel of length about 16.2 cms. Parcel A/1
is .303 inch of O.K. rifle cartridges having copper
jacketted bullet. Parcel-B contain four cartridge marked
as Exh.B1, B2, B3 and B4 referred as .303 inch of O.K.
rifle cartridge each having copper jacketted bullet. Parcel-
C contain 8mm K.F. rifle cartridge case having
indentation mark on its percussion cap. The result of the
examination was noted for Exh.A as country made
handgun capable of chambering and firing .303 inch rifle
cartridge. Residues of fired ammunition nitrite and lead
could be detected from the barrel washing (washing was
taken prior to the laboratory test firing) of Exh.A
thereby, showing that Exh.A has been used for firing
prior to its receipt in the laboratory. Exh.A1, Exh.B1, B2,
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B3 and Exh.B4 were five .303 inch O.K. rifle cartridge
successfully test fired from Exh.A in the laboratory. The
Report shows parcel Exh.C one fired cartridge case of 8
mm K.F. rifle cartridge could not be chamber and fire
from Exh.A. Hence Exh.C was not fired from Exh.A. So
where was this cartridge fired and from which rifle does
not get clarified. It is not the case of the complainant
of any fire shot at the place.
30. Since the case was registered under the Arms Act,
the permission of the District Magistrate Navsari, to
prosecute all three accused was received on 14.12.1999.
The order was produced during the trial at Exh.37 by
R.D.C. of the District Collector by his evidence as P.W.8,
Kiritkumar Dudhat refers to I-C.R. No.157/99 and
deposed that the person from whom the country made
Tamancha was received along with five live cartridge,
was not having any pass-permit. He identifed the
signature of District Magistrate R.R. Chauhan from the
original letter and produced original letter at Exh.38.
31. P.W.6 – Sukhdevsing Shambhudan Bareth was senior
Police Sub-inspector in the year 1999 at Chikli police
station. His deposition is that on 19.08.1999, he had
reduced the complaint in writing as given by
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Harishchandra Jinabhai Patel. After writing the
complaint, he made it read to the complainant and
thereafter, he took his signature. The witness identified
Exhibit 14.
32. Exhibit 14 is the hand written complaint before
PW6-Sukhdev Bareth. PW6 identified his signature on
Exhibit 14, and according to the complaint, he states that
at Chikli Police Station I-Cr.No.157/99 was registered
under Sections 392 and 393 of Arms Act and section
25(1B)(a) of the Arms Act. PW6 does not state the place
at which Exhibit 14 was recorded. According to him, it
was written by him as dictated by complainant. The
complainant in his evidence stated that he had given his
complaint at Chikli Police Station between 10.00 to 10.30
hours. If that had been so, then there was no necessity
of PW6 to write Exhibit 14 on a blank paper. Exhibit 14
is preceded by a document of the said police in a blank
paper, wherein on a blank paper, the time of incident is
noted as 7.30 and the offence declared at 9.35 on
19.08.1995. The said document is not exhibited. On the
top of the document, the C.R. No.I-157/99 as well as
sections of IPC and Arms Act are noted. The margin of
Exhibit 14 has an endorsement of the C.R. No. and
sections of the said Act. PW6 further clarifies that after
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registering the offence, he took charge of the
investigation and thereafter, he had seized the weapons
produced by the complainant procured from the accused
at the police station.
33. Here too, the police, who had taken the charge of
the investigation, has not followed the provision of
Section 27 of the Evidence Act. The weapon, which was
produced, was by the complainant himself. The father of
the complainant does not state of seeing any weapons in
the hands of the accused, rather the father as PW3
clarifies that he had not seen any instrument with the
accused. The weapon does not get related to the accused,
as attributed by the complainant.
34. According to PW6-Investigating Officer, in the early
morning, a resident of Makad Village had phoned PSO
and therefore, he had gone to the place in police jeep,
he brought the accused in the jeep at the Police Station,
after taking the charge of the investigation, he had
recorded the statement of the witnesses and had drawn
the panchnama of the place of offence on that very same
day from 13.30 hours to 14.30 hours. It appears that the
witness PW6 does not refer to the complaint under
Section 154 of the Cr.P.C. Exhibit 14 is not the FIR in a
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printed form as mandated under Section 154 of the
Cr.P.C. The complainant’s evidence is that he gave the
complaint between 10.00-10.30 hours while the
panchnama-Exhibit 19 is between 9.50-11.45 hours. If
the evidence of the complainant is to be believed then
the panchnama-Exhibit 19 was prior to the registration of
the complaint. The document preceding Exhibit 14 is not
put in evidence. It would have been necessary for the
Investigating Officer to demonstrate as to why the C.R.
No. was written on the plain paper which bears his
signature prior to the registeration of FIR at the Police
Station. The Investigating Officer-PW6 refers to time of
declaration of complaint in his deposition while has
referred to Exhibit 14 which does not reflect any time of
recording of the complaint. He has referred in his
deposition of sending the tamancha and 5 cartridges and
knife for the FSL report and the Despatch Note at Exhibit
25 do refer to old knife as Mark B at Serial No.5. The
Biological Department Report-Exhibit 29 does not find
any blood stains on the knife. The description of the
knife is of 11.0 cm metal plate with the 9.5 cm long
orange colour plastic handle. The plate had stains of
rust.
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35. In the cross examination, the Investigating Officer
affirms that the complainant has not stated in his
complaint that Maheshsinh Umedsingh had shown him
the tamancha on that day and also affirms that Jenabhai
had not stated in the police statement that he had seen
three persons snatching near Harishbhai. The
Investigating Officer does not remember the statement of
Dipakbhai on 19.08.1999. In the cross examination, he
affirms that the weapons were produced by the
complainant and also affirms that the weapons were not
seized from the accused. He affirms that they are
provided with prescribed form for complaint under
Section 154 of Cr.P.C. and affirms that the complaint-
Exhibit 14 is on plain paper and denies the suggestion
that the complaint has not been recorded under Section
154 of the Cr.P.C. He also affirms that there is no
endorsement on Exhibit 14 that the complaint was read
over to the complainant and for that purpose, signature
was taken on it. He has also affirmed that there was no
test identification parade before the Executive Magistrate
and on personal search of the accused, nothing was
found from them. He also affirmed that the accused
were not arrested from the place of incident. The
Investigating Officer was also brought to notice of the
endorsement in the margin of Exhibit 14. The witness
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clarifies that the endorsement was made on Exhibit 14,
after recording the complaint under Section 154 of the
Cr.P.C.
36. The complaint recorded under Section 154 of
Cr.P.C. is not produced in evidence. The statement of
the Investigating Officer proves that the accused were not
arrested from the place of offence. Exhibit 14 is on plain
piece of paper which is not in the writing of the
complainant. The weapons were given by the
complainant and the evidence clarifies alongwith the
panchnama that the same were not produced by the
accused. The FSL Report of the knife shows that it is
rusted and it is a vegetable cutting knife which is easily
available in the market or in the kitchen. The prosecution
has failed to prove the case beyond reasonable doubt.
The case itself is doubtful. The recovery of weapons is
not proved.
37. The learned trial Court Judge has failed to
appreciate the fact that the tamancha and knife has not
come from the possession of the accused. There is no
statement of the accused in the panchnama of producing
the knife. The witnesses all throughout have stated that
the tamancha was given by the complainant to
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Dipakbhai-PW4. PW2 has failed to explain about the
knife which he states to be in the hands of the present
appellant. He does not clarify that he had handed over
the knife to Dipakbhai. He only states that the knife was
in the hands of the person who was caught on that day.
The evidence of PW2 does not clarify that he had handed
over knife to the police or to Dipakbhai. The case of
prosecution becomes totally doubtful by the evidence of
PW3-the father of the complainant-Jenabhai. He had not
seen any weapons with the accused. He had stated that
all the accused were snatching Honda from Harishbhai
and while he himself has clarified that such facts of all
the three snatching it from Harishbhai had not been
stated before the Police, which the Investigating Officer
affirms.
38. The fact of demanding the money or whatever
valubable complainant had and having the intention of
robbing him of the valuables is not proved by the
complainant and the say of the complainant that the
accused were trying to snatch away the Hero Honda does
not find corroboration from his own father, who was the
first person to reach the spot. The police had not found
the weapons from the possession of the accused nor is
there any panchnama under Section 27 of the Evidence
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Act. The registration of the complaint in the police
station under the prescribed form is not proved, the time
of registration of FIR-Exhibit 14 is not proved by any
documentary evidence. The learned trial Court Judge has
failed to consider all these aspects. The trial Court had
come to the conclusion that the offence under Sections
392 and 397 of IPC were not proved, as charge under
Exhibit 8. While convicted the accused under Section
393, considering it as an attempt to committ robbery.
The father of the complainant has not stated before the
police that the accused were trying to snatch away the
Hero Honda from his son, there is no other corroborative
evidence of any independent witness to support the
evidence of the complainant. Since the father had not
seen any weapon in the hands of the accused, the
element of theft to consider as robbery also does not get
proved by any weapon being used to frighten the
complainant of instant death or instant hurt or of instant
wrongful restraint. The weapon as was attributed to the
present appellant is a kitchen knife which was rusted,
and no blood stains were found on it. The prosecution
failed to even prove the attempt to commit robbery. It
is not the case of the prosecution that putting the
complainant under fear, he was induced to deliver the
Hero Honda, to prove the case as extortion.
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39. Considering the overall facts and circumstances of
the case, and the appreciation of evidence, this Court is
of the opinion that the trial Court has committed error in
convicting the appellant under Section 393 with Section
34 of the IPC. Therefore, the Appeal deserves to be
allowed.
40. In the result, the Appeal is allowed. The judgment
and order of conviction dated 31.12.2002 of the learned
Additional Sessions Judge, Navsari in Sessions Case No.6
of 2000 is quashed and set aside qua the appellant. The
appellant is acquitted of all the charges levelled against
him.
41. Bail and bail bond, if any, stands discharged. The
amount of fine paid, if any, be refunded to the appellant
herein. Record and proceedings, be sent to the
concerned Trial Court forthwith.
42. The connected Criminal Misc. Application stands
disposed of accordingly.
Sd/-
(GITA GOPI,J)
CAROLINE / PANKAJ / DB # 1
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