Gujarat High Court
Anil vs State on 29 November, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/1833/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1833 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
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ANIL
SHRIRAMDIN YADAV - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
MJ BUDDHBHATTI for
Appellant(s) : 1,
MR HL JANI Ld. APP for Opponent(s) :
1,
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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. 7/1989, whereby, the learned Judge has convicted the appellant 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 said firm. From the bus-stand at 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 parcelthat he was not knowing. When the said bus reached between Jetalsar and Jetpur, at about 9.45 pm in the night, he was sleeping, 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 complainant 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 Budhhbhatti learned advocate for the appellant has argued that the charge framed against the present appellant is not proved beyond reasonable doubt and the learned Judge has committed grave error while convicting and sentencing the appellant and, therefore, the impugned judgment and order requires to be quashed and set aside. Mr Buddhbhatti learned advocate has read the discovery panchnama of muddamal weapon and argued that the same is not proved beyond reasonable doubt. He has also read the oral evidence and argued that in absence of corroborative piece of evidence of panch witness, the panchnama was not proved beyond reasonable doubt. He has also read the oral evidence of I.O. and argued that he has failed to prove that the said muddamal fire arm recovered was in a workable condition. Mr Buddhbhatti has argued that in view of the evidence produced before the learned Judge, the appellant has proved his defence, and therefore, he prayed to acquit the present appellant-accused.
12. As against this, learned APP Mr HL Jani has argued that if the panch witness of the discovery panchnama which is recorded under sec. 27 of the Evidence Act turn hostile, however, absence of evidence of panch witness is not fatal to the prosecution case. Mr Jani has further argued that from the evidence of leader of raiding party, the prosecution has proved the contents of the discovery panchnama. He has also contended that no proper explanation was also given by the appellant-accused and, therefore, 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 as well as impugned judgment and order. I have perused the recovery memo. From the contents of discovery panchnama, it appears that the Investigating Agency has proved the same beyond reasonable doubt and no satisfactory explanation was given by the appellant. I have found the evidence of Investigating Officer as trustworthy, reliable and acceptable. So, absence of any oral evidence of panch witness, it cannot be said to be fatal to the prosecution case in view of the decision of the Supreme Court in the case of Anter Singh vs. State of Rajsthan, reported in 2005 SCC (Cri.) 597. I have perused the provisions of sec. 27 of the Evidence Act and so far as the applicability of sec. 27 of the Act is concerned, the prosecution has proved the ingredients and requirements of the said section. Even the word facts discovered which is contained in section 27 of the Evidence Act is also proved beyond reasonable doubt. In the case of Anter Singh (supra), the Supreme Court has observed that non-official witnesses not supporting the recovery, cannot be rejected merely on that ground. In this case, in the oral evidence of Investigating Officer, I have found that the discovery is already proved through his oral evidence. The Division Bench of this Court in the case of Vinugiri Motigiri vs. State of Gujarat, reported in 2002(1)GLH 176, has observed that discovery of weapon pancha witnesses turning hostile, yet the recovery of object pursuant to the information supplied by an accused in custody is different from searching endeavour envisaged in Chapter VII of CrPC. When a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the version to be correct if it is not otherwise shown to be unreliable. So, oral evidence of the recovery officer is required to be considered. I have also perused the whole evidence of the prosecution case and I have not found any substance to say that the prosecution has not proved its case beyond reasonable doubt.
15. I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
16. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence passed by the learned Presiding Officer, FTC No. 4, Gondal camp at Jetpur in Sessions Case No. 81/2007 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith.
17. The appellant ori. Accused Anil Shri Ramdin Yadav is directed to surrender before the Jail Authority within a period of three weeks from the date of this order, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant-ori. Accused.
(Z.K.SAIYED, J.) mandora/ Top