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Gujarat High Court · body

2016 DIGILAW 1488 (GUJ)

State of Gujarat v. Kalu

2016-07-26

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. Karia, J. 1. This acquittal appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973, is filed by the present appellant-State of Gujarat against the judgment and order dated 20.08.2004, passed by the learned Additional Sessions Judge and Special Judge, Fast Track Court No. 9, Jamnagar, whereby the present respondents-accused were acquitted for the offences punishable under Sections 394, 397, 398 and under Section 506(2) read with Section 114 of the Indian Penal Code (for short 'the IPC') in Sessions Case No. 67 of 2001 (with Sessions Case No. 68/01, 69/01 and 149/01). 2. The brief facts of the case is as follows: 2.1 It is the case of prosecution that on 09.05.1995 at about 1:00 hrs in the night, the accused of the present case in collusion with other co-accused entered the hut of the complainant and beat the complainant as well as his wife and looted jewellery amounting to sum of Rs. 15,025/- along with cash and other utensils, battery and also gave life threat to the complainant and his wife. Thus, the accused were charged for the offences punishable under Sections 394, 452, 506(2) read with Section 114 of the IPC. Learned APP vide Exh. 21 in this regard made an application to insert sec. 397 and 398, which was then later on inserted in the charge sheet. 3. A complaint in respect of the aforesaid incident was lodged, necessary investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against all the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated and charge came to be framed. The accused pleaded 'not guilty' and claimed to be tried. 4. To prove the case against the accused, the following witnesses were examined: Sr. No. Name of witnesses Exhibit No. 1 Atulkumar Maheshchandra 36 2 Parakramsinh Rajendrasinh 37 3 Suresh Moolshankar 39 4 Arjanbhai visabhai 41 5 Hereeben 42 6 Bhikhubhai Maldevbhai 43 7 Kanjibhai Tarshibhai 45 8 Batuksinh Ratubha 46 9 Mahipatsinh Ratubha 50 10 Navalsinh Jashubha 56 11 Bhavin Kanubhai 58 12 Rambhai Kuberbhai 61 13 Subhash Bhogabhai Vadher 63 5. The prosecution has also produced and relied upon the following documentary evidences: Sr. The prosecution has also produced and relied upon the following documentary evidences: Sr. No. Particulars of the document Exhibit No. 1 Seizure of golden ornaments sold by the accused kalubhai 38 2 Recovery panchnama of utensil 40 3 Panchnama of the place of offence 44 4 Original copy of he Station Diary No. 8 47 5 Original complaint 48 6 Dog take panchnama 49 7 Panchnama of house of Keshu Rama 52 8 Panchnama of Mo.Sa from the accused Amad alias Kalo Hasan 53 9 Panchnama of the bodily position of the accused Taiyab alias Dhandhal 54 10 Rojkam of the identification parade carried out by the Executive Magistrate, Bhanvad 57 11 Drop pursis submitted by the learned Appellant 64 6. At the end of trial, the Court below recorded further statements of the accused persons under Section 313 of the Cr.P.C and thereafter, passed the impugned judgment and order thereby acquitting the accused persons. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred by the appellant-State of Gujarat. 7. Heard Mr. Rutvij Oza, learned Additional Public Prosecutor, for the prosecution/State. It was submitted by Mr. Oza, learned APP for the State, that the order of acquittal passed by the learned Additional Sessions Judge and Special Judge Fast Track Court No. 9, Jamnagar in Sessions Case No.67/2001 (with Sessions Case No.68/01, 69/01 and 149/201) dated 20.08.2004, is contrary to law, evidence on record and perverse. It is submitted that the eye witness Heereben Arjanbhai Exh. 42, has clearly stated in her deposition that at about 12:00 hours in the midnight, when she was sleeping outside of her hut while her husband was sleeping inside the hut, that she heard shout of her husband. Due to this she was awakened and found that the accused were inflicting the blows of weapons. This witness has narrated the whole incident saying that the complainant was subjected to injuries and loss of amount of Rs.15,025/-. That the complainant Arjan Visa, Exh. 41, has also given this evidence supporting his complaint and narrating the whole incident, how the jewellery was looted. He has also identified the accused before the Court. That the complainant and his wife are the husband and wife respectively, who received injuries and were looted by the present respondent/accused. That the complainant Arjan Visa, Exh. 41, has also given this evidence supporting his complaint and narrating the whole incident, how the jewellery was looted. He has also identified the accused before the Court. That the complainant and his wife are the husband and wife respectively, who received injuries and were looted by the present respondent/accused. That evidence of the Investigating Officer was quite proper and legal and however the acquittal of the accused/respondent is illegal and erroneous. Hence, it was requested by Mr. Rutvij Oza, learned Additional Public Prosecutor, for the prosecution State to quash and set aside the judgment and order passed by the learned Additional Sessions Judge and Special Judge, Fast Track Court No. 9, Jamnagar, dated 20.08.2004 passed in Sessions Case No. 67 of 2001 (with Sessions Case No. 68/01, 69/01 and 149/01). 8. Learned advocate Mr. P.M. Lakhani, or Mr. R.I. Sharma, learned advocate for the respondents-accused were remain absent and no argument was submitted when called out. 9. Before discussing the case of the prosecution, the charge against the accused is levelled under Section 397, 398, 114 and 506(2) of the Indian Penal Code. Hence, first of all the prosecution has to prove the ingredients to attract the charges under Section 397, which are as under: "(I) That the accused committed robbery or dacoity (within the meaning of Section 392 and 395) respectively, (II) That while committing such offence, the accused (a) used any deadly weapon, or (b) caused grievous hurt to a person, or (c) attempted to cause death or grievous hurt to any person." If we look to the charge under Section 398, this Section does not create a substantive evidence, but only regulates the measure of punishment when certain facts are found to be accepted in the commission of substantive offence of robbery or dacoity. 10. Now, let us examine the prosecution case as per the complaint Exh. 49. On 09.05.1995, all the accused tress-passed in the hut of the complainant's vadi with deadly weapons with an intention to commit robbery at night covering their face. The complainant and his wife were beaten by the accused and the accused committed robbery of gold ornaments, cash amount of Rs. 5,000/- silver ring and other silver ornaments having weight of 500 grams, blanket etc. The complainant and his wife were beaten by the accused and the accused committed robbery of gold ornaments, cash amount of Rs. 5,000/- silver ring and other silver ornaments having weight of 500 grams, blanket etc. The prosecution has examined the complainant himself and he has identified the accused No. 4, before the Court during his testimony. His wife namely Hereeben was examined vide Exh. 42 and she has identified all the four accused before the Court. She has further stated that the accused No. 1, assaulted on his husband and caused injuries. The weapons possessed by the remaining three accused were also identified by this witness, further, stating that all the three accused assaulted on her husband. As per her testimony, the accused No. 3, namely Aamad alias Kalo Hasam demanded key of the lock from this witness. Out of the four accused, two accused caught the hair of this witness and the remaining two accused put a knife on her neck. It transpires from the record that, the alleged incident had taken place in the month of May, 1995 and the accused were arrested in the year of 1998-99, after a pity long period. During the investigation, a search was made at the residence of Keshu Rama in presence of panchas, but nothing was found objectionable. On 9.5.1995, no identification parade of the person having doubt of committing the offence was carried out in presence of the complainant namely Arjan Visa or the eye witness Hereeben Arjanbhai. The alleged offence was committed at about 13:00 a.m and there was no facility of electricity. No description was given to the police by the complainant or his wife of the four persons or identified the strangers. It is true that one identification parade was carried out in presence of the Executive Magistrate by a Panchnama Exh. 57. But none of the panchas have supported this Panchnama. Surprisingly, the Executive Magistrate in whose presence the Panchnama was prepared is not examined as a witness by the prosecution. During that wife of the complainant Hereeben has identified all the four accused in 2004, after passing of 10 years approximately before the Court during her examination as a witness. However, the alleged offence was committed on 09.05.1995. Surprisingly, the Executive Magistrate in whose presence the Panchnama was prepared is not examined as a witness by the prosecution. During that wife of the complainant Hereeben has identified all the four accused in 2004, after passing of 10 years approximately before the Court during her examination as a witness. However, the alleged offence was committed on 09.05.1995. It is difficult to identify a person in such a circumstances that the incident had taken place at about 13:00 a.m as the accused faces were covered and, however, after passing of 10 years nobody can identify a person. Whatever statement is given by the PW Hereeben before the Court is not supported by the police officer who has recorded her statement. No muddamal was recovered from the accused during the investigation as well as the weapons possessed by the accused at the time of committing the offence. PW Hereeben has also admitted in her cross examination that there was complete darkness at the time of the offence and it was not possible to see the face of the stranger persons at a distance of 5 feet too. She has also admitted that all the four persons face were covered by 'bookani', and therefore, it was not possible to see their face. One of the accused was known to this witness as per the statement of the complainant Arjan Visa. He came to know the names of the accused as they were talking inter-se. As observed by this Court, that no identification parade was carried out, it is difficult to accept the prosecution case that the present respondents entered in the hut and 'Kuba' of the complainant by committing the offence of tress- pass, and so far robbery is concerned, indisputably there was no electricity/light available at the place of offence. There was complete darkness, and therefore, it was not able to identify or to see the face of the stranger persons by the PW Hereeben. No weapons or alleged articles as said by the prosecution witnesses committed during robbery by the accused were seized from them during the investigation. In this respect, no evidence was produced by the prosecution before the trial Court, no weapons were seized by the investigating agency during the investigation. There is not a single iota to connect the accused with the crime. In this respect, no evidence was produced by the prosecution before the trial Court, no weapons were seized by the investigating agency during the investigation. There is not a single iota to connect the accused with the crime. As per the say of the complainant and his wife four strangers assaulted with the iron pipe and geda and caused injury to the complainant. But not a single evidence is produced by the prosecution to show the injury caused to the complainant. No medical certificate or injury certificate showing injury to the complainant is produced nor any doctor is examined supporting the contents of the prosecution. Therefore, the case of the prosecution cannot be believed and no substance is found from the judgment and order as well as the record of the trial Court. No other evidence was produced by the prosecution giving the threat of kill/murder the complainant or Hereeben. Both of the witnesses have not stated in their deposition before trial Court on this issue against the accused. The prosecution has clearly failed to prove the guilt against the accused. No illegality is committed by the learned trial judge in acquitting the accused in absence of any satisfactory or cogent evidence produced by the prosecution. Hence, this Court is of the view that the learned trial judge has rightly acquitted the accused from the offences as the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and hence no interference is required by this Court in the impugned judgment and order of the trial Court. Hence, the appeal deserves to be dismissed and is dismissed, accordingly.