Gujarat High Court
Manish vs State on 29 November, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
CR.A/1858/2008 6/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1858 of 2008 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 ? ========================================================= MANISH VIRENDRASINH YADAV - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1,MR JM BUDDHBHATTI for Appellant(s) : 1, MR HL JANI Ld. APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 29/11/2010 ORAL JUDGMENT
1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 17.6.2008 passed by the learned Presiding Officer, FTC No. 4, Gondal, camp at Jetpur in Sessions Case No. 81/2007, whereby, the learned Judge has convicted the appellant under sec. 397 of IPC and sentenced to undergo R/I for 7 years and to pay a fine of Rs. 5000/-, in default, to undergo further S/I for one year. The appellant is also convicted under sec. 25(1)(B)(A) of Arms Act and sentenced to undergo R/I of 1 year and to pay a fine of Rs. 2000/-, in default, to undergo further S/I for three months. The appellant is also convicted under sec. 27(1) of the Arms Act and sentenced to undergo R/I for a period of three years and to pay a fine of Rs 3000/-, in default, to undergo further S/I for six months, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
3. It is the case of the complainant that he was serving in the firm of Ishwardas Bechardas, at Veraval and the main office of the said firm is situated at Rajkot and, therefore, since last two years, he was doing the delivery work of parcel from Veraval to Rajkot. That, on 17.1.2007, at about 6.45 pm, he went to Bus Stand at Veraval by rickshaw for going to Rajkot for delivery of parcels of the firm. From the ST Bus Station, Veraval, he went to Rajkot in Una-Rajkot ST bus along with three parcels and he also received one parcel from Keshod, what was there in the said parcel that he was not knowing. When the said bus reached between Jetalsar and Jetpur, at about 9.45 pm in the night, he was sleeping and at that time, one person came there and gave blow on his hand and therefore, he woke-up and saw that one person had taken the parcels and one person was stopping the bus by standing behind the driver, whereas, third one was standing near the conductor, to whom, the person standing near me had thrown the parcels towards that person and he took away the said parcels and when bus stopped, then all the three persons got down from the bus and ran away. Along with the parcels of complainant, the said persons have also taken away the parcels of firm Mahendra Somabhai, firm Somabhai Kanchanlal of Veraval and one mobile of Nokia make from the person of firm Arvind Kanti, worth Rs. 1500 bearing mobile No. 9979197203. The complainant was not knowing how much money was there in the parcels.
4. Therefore a complaint came to be filed by the complainant before the Jetpur Taluka Police Station. The panchnama of the scene of offence place was prepared in the presence of panch witness and statements of other witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned JMFC, Jetpur. 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. 81/2007.
5. Thereafter, the charge was framed at Ex. 4 against the appellant. The appellant accused has pleaded not guilty and claimed to be tried.
6. In order to bring the home the charge levelled against the appellant- 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 appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has 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 17.6.2008 held the appellant accused guilty to the charge levelled against him under sec.25(1)(B)(A) and 27(1) of the Arms Act and convicted and sentenced the appellant accused, as stated above.
9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Presiding Officer,FTC No. 4, Gondal camp at Jetpur, the present appellant has preferred this appeal.
10. Heard Mr. MJ Buddhbhatti learned advocate for the appellant and Mr HL Jani learned APP for the respondent-State.
11. Mr Bhuddhbhatti learned advocate for the appellant has read the oral evidence of PW-1 to PW-13 and argued that material witnesses of the prosecution have turned hostile. So, the panchnama which is an important piece of evidence in this case has not been proved beyond reasonable doubt. Mr. Buddhbhatti learned advocate has also read the oral evidence of PW-14 Nitinbhai Mafatlal Patel Ex. 39 and argued that he was not an eye witness and therefore, simply his evidence can be considered as hear-say evidence. He has also read the oral evidence of PW-15 Hitendrasinh Baluji Rajput Ex. 44 and argued that, no doubt, from the oral evidence of this witness, it appears that this witness has deposed before the trial Court that he is the witness of TI Parade and the accused was identified by him, but he has read the cross examination of this witness and argued that some accused were shown by the Investigating Agency to the witness and therefore, the evidence of this witness cannot be said to be trustworthy, reliable and acceptable. Mr. Buddhbhatti has also read the oral evidence of PW-16 Hirendragiri Babugiri Goswami Ex. 45 and argued that in cross-examination, this witness has fully admitted that the accused was shown by the Investigating Agency to him and, therefore, the evidence of this witness is also not trustworthy, reliable and acceptable. Mr Buddhbhatti also read the oral evidence of PW-17 Pithabhai Ranmalbhai Jadav Ex. 46 and argued that this witness is also not an eye witness, so his evidence cannot be considered and identification parade was not carried out by the prosecution through this witness also. Mr Buddbhatti has also read the oral evidence of PW-18 Bhupendrasinh Pravinsinh Bhati Ex. 47, PW-20 Babubhai Chothabhai Gohel Ex. 50 and argued that through the evidence of these witnesses, the prosecution has not proved its case. Mr Buddhbhatti has also read the cross-examination of these witnesses and contended that the prosecution has not established the identification of the present appellant beyond reasonable doubt. Mr Buddhbhatti has also argued that from the oral evidence of the star witness PW-21 M.A. Jagani, Executive Magistrate Ex. 51, the prosecution has failed to prove dummies who have been called by the Executive Magistrate. He has also argued that it is mandatory for the prosecution to establish the out-look of the dummies should be similar as per the out-look of the present appellant. So, Mr Buddhbhatti has contended that when the prosecution has failed to prove the case through the oral evidence of the witnesses who turned hostile before the trial Court then only the oral evidence of Executive Magistrate is required to be considered and when the mandatory provision is not followed by the Executive Magistrate, then the prosecution is required to prove its case beyond reasonable doubt. In that view of the matter, Mr Buddhbhatti learned advocate has prayed to quash and set aside the impugned judgment and order of conviction and sentence.
12. As against this, learned APP Mr HL Jani has vehemently argued that the present appellant is involved in a serious offence and identification is also established but suppose the out-look of the dummy is not as per the norms as laid down by the Apex Court, then, looking to the seriousness of the offence, the impugned judgment and order of conviction and sentence requires 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 witnesses and also perused the charge framed against the appellant and also considered the submissions of both the parties. It is true that 13 panch witnesses have been examined by the prosecution in this case but none has supported the contents of the panchnama and they have been declared hostile. It is also true that the prosecution has only relied upon the oral evidence of the Executive Magistrate and panchas of panchnama of TI Parade. I have perused the contents of the panchnama and also compared it with the oral evidence of Executive Magistrate. In examination-in-chief and cross-examination, the Executive Magistrate has never explained that through whom dummies and panchas were called by him. Even from the oral evidence of the panchas witnesses also, it appears that when the accused is shown by the police to the panch witness, then, it cannot be said that the prosecution has proved panchnama beyond reasonable doubt. I have found from the oral as well as documentary evidence that the prosecution has failed to prove the identity of the present appellant and the learned Judge has committed grave error in convicting and sentencing the present appellant. In view of above, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.
14. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 17.6.2008 passed in Sessions Case No. 81/2007 is quashed and set aside. The appellant is hereby acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court.
(Z.K. SAIYED, J) mandora/