Gujarat High Court
Armesh vs State on 2 August, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/442/2003 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 442 of 2003
With
CRIMINAL
APPEAL No. 491 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ARMESH
@ ALPESH FATAJI CHAUHAN & 8 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KG PANDIT with MR JV JAPEE
for
Appellant(s) : 1 - 9.
MR HL JANI Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/12/2010
ORAL
JUDGMENT
1. The present appellants have preferred these appeals under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 7.4.2003 passed by the learned Fast Track Judge, Modasa in Sessions Case No. 97/2002, whereby, the learned Judge has convicted the appellants original accused, as under:
Appellant original Accused no. 1 has been convicted under sec. 186 of IPC and sentenced to undergo R/I of three months and to pay a fine of Rs.500/-, in default, to undergo R/I for one month. The appellant original accused no. 1 is also convicted under sec. 395 of IPC and sentenced to undergo R/I for 5 years, and to pay a fine of Rs. 2000/-, in default, to undergo further R/I for six months. The appellant original accused no. 1 is also convicted under sec. 427 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs. 1000/-, in default, to undergo further R/I for three months, whereas, for the offence under sec. 135(3) of the Bombay Police Act, he has been directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant original Accused no. 2 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 3 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 4 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 5 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 6 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 7 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 395 of IPC and sentenced to undergo R/I for five years and to pay a fine of Rs. 2000/-, in default, to undergo R/I for six months. He is also convicted under sec. 427 of IPC and sentenced to undergo R/I for one years and to pay a fine of Rs. 1000/-, in default, to undergo R/I for three months. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 8 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 9 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 395 of IPC and sentenced to undergo R/I for five years and to pay a fine of Rs. 2000/-, in default, to undergo R/I for six months. He is also convicted under sec. 427 of IPC and sentenced to undergo R/I for one years and to pay a fine of Rs. 1000/-, in default, to undergo R/I for three months. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 10 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 11 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 12 has been convicted under sec. 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs. 500/-, in default, to undergo R/I for one month. He has been also convicted under sec. 135(3) of the Bombay Police Act and directed to pay a fine of Rs. 100/-, in default, to undergo S/I for ten days, which is impugned in both these appeals.
2. The brief facts of the prosecution case is as under:
3. It is the case of the complainant that on 6.5.2002, he had gone to village Kambhola with Rajendrasinh Chhatrasinh Mahida for investigation of a complaint filed against one Parthiji Rajaji Chauhan vide CR No. III-46/2002 and when they had reached villae Medhsana on motorcycle, they came to know that the accused Parthiji had hidden himself in the field of some Patel. The complainant had parked his motor-cycle and started to cross the river. At that time, the complainant had seen Parthiji and therefore, shouted at him. The accused Parthiji had having seen the complainant, run away towards the village. The appellants came from the village and started to throw stones at the complainant and gave abuses to the complainant. It is alleged that the appellants had threatened the complainant. It was further the case of the complainant that three persons out of the mob namely Fataji, Nikesh and Lalaji had gone to the direction of the motorcycle and caused damage to the motorcycle by throwing stones. They had also taken away the investigation papers and logbook from the dicky of the motorcycle.
4. Therefore a complaint came to be filed by the complainant. The panchnama of the scene of offence place was prepared in the presence of panchas and statements of witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Modoasa. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No.97/2002.
5. Thereafter, the charge was framed at Ex. 2 against the appellants. The appellants accused have pleaded not guilty and claimed to be tried.
6. In order to bring the home the charge levelled against the appellants- accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.
7. Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution.
8. After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 7.4.2003 held the appellants accused guilty to the charge levelled against them under sec. 186, 395 and 427 of IPC and under sec. 135(3) of the Bombay Police Act and convicted and sentenced the appellants- accused, as stated above.
9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Fast Track Judge, Modasa, the present appellants have preferred both these appeals.
10. Heard Mr. JV Jappee learned advocate for the appellant and Mr HL Jani learned APP for the respondent-State in both the appeals.
11. Mr Jappee learned advocate appearing for the appellants in both the appeals has contended against 12 original accused, the charge was framed at Ex. 2 for the offence under sec. 186, 395, 336, 427 and 114 of IPC and under sec. 135 of the Bombay Police Act. Mr Jappee has also contended that the prosecution has not proved its case beyond reasonable doubt and from the cross examination of the witnesses also, the main ingredients of the offence cited in charge Ex. 2 is not proved beyond reasonable doubt. Mr Jappee has read the oral evidence of PW-1 and argued that complainant Natvarsinh Jodha, who is Police Head Constable and at the time of offence, he was on duty and when he was present at the scene of offence place, at that time, the said alleged offence was committed by the present appellants but from the oral evidence of this witness, panchnama of scene of offence place is not proved. He has also contended that as per the facts of the prosecution case, it is the say of the complainant that the side mirror of the motorcycle was broken by the present appellants-accused but not a single piece of broken glass is recovered from the place of offence during the panchnama. Mr Jappee has also read the contents of panchnama and argued that in panchnama small pieces of stones are shown but as per the say of the complainant, there must be some huge quantity of stones but it is not cited in the panchnama and the absence of stones in the panchnama is not explained by the prosecution. Mr Jappee has also contended that from the contents of Ex. 23 and Ex. 30 panchnama and discovery panchnama, it appears that during the panchnama the looted articles (papers) are recovered under the provisions of sec. 27 of the Evidence Act but that panchnama is not proved beyond reasonable doubt. Mr Jappee has also argued that looking to the contents of Ex. 30, discovery panchnama is concerned, the same is not proved beyond reasonable doubt. He has also contended that looking to the time of panchnama of scene of offence place Ex. 20 is proved, but the time of panchnama is doubtful and in the original panchanama, there is some over-writing is made by the maker of panchnama. He has also read the oral evidence of I.O. PW-13 Ex. 39 and argued that the complaint was written by him but no statement of complainant was recorded and even no preliminary verification was done by him and straightway complaint was registered and written by the Investigating Agency. Even the panchnama Ex. 27 is concerned, it was drawn by the I.O. at Police Station. Mr Jappee has contended that from the cross-examination of PW-1 who has admitted that some investigation for the offence under the Bombay Prohibition Act was pending and other accused are not known to him. Mr Jappee has read the oral evidence of PW-1 and argued that just to avoid some negligence committed by PW-1, the present appellants have been wrongly booked in the offence and whole story of the prosecution case is concocted and, therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
12. Mr HL Jani learned APP appearing for the respondent-State has read the impugned judgment and order of conviction and sentence passed by the learned Judge and also read the oral as well as documentary evidence produced on record. Mr. Jani has read the oral evidence of panch witness also. He has argued that the contents of discovery panchnama is proved beyond reasonable doubt. He has also argued that the oral evidence of PW-1 who is a Police Head Constable and no animosity is established by the defence and only due to the police is evidence cannot be discarded. Looking to the scene of offence place, there may not be other independent witnesses and, therefore, only the evidence of PW-1 is required to be considered and the impugned judgment and order of conviction and sentence is required to be confirmed.
13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. I have also perused ingredients of sec. 27 of the Evidence Act as well as the probabilities of the defence. During the perusal of the panchnama of scene of offence, it appears that time of the panchnama is changed and further from the cross-examination of PW-1 is concerned, his evidence is not reliable in toto and the probable defence is concerned, it is the case of the appellants that just to avoid negligence of the Police Head Constable complainant, he has booked all the appellants-accused in the said offence, but there is no direct evidence is produced on record. It is true that from the perusal of the papers, it appears that no direct evidence is produced in support of the oral and documentary evidence of PW-1. Even from the panchnama of scene of offence place is concerned, the contents shows that the story of the prosecution is not proved beyond reasonable doubt and there was no recovery of stones. Even in the panchnama, it is not stated by the prosecution that as per the say of the complainant, there were some stones which were present at the place of offence. I have perused the whole oral evidence and it appears that no medical evidence is produced in support of the prosecution case because as per the say of the complainant, he has received any injury, which is not possible. In that view of the matter, both the appeals require to be allowed and the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
15. In the result, both the appeals are allowed. The impugned judgment and order of conviction and sentence dated 7.4.2003 passed by the learned Fast Track Judge, Modasa in Sessions Case No. 97/2002 is hereby quashed and set aside. The appellants-accused are hereby acquitted of all the charges levelled against the. Fine if paid, be refunded to the appellants. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith.
(Z.K.SAIYED, J.) mandora/ Top