Gujarat High Court
Shaikh Mohammed Naushad vs State Of Gujarat on 4 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 366 of 2005
With
R/CRIMINAL APPEAL NO. 367 of 2005
With
R/CRIMINAL APPEAL NO. 2583 of 2005
With
R/CRIMINAL APPEAL NO. 2584 of 2005
With
R/CRIMINAL APPEAL NO. 2585 of 2005
With
R/CRIMINAL APPEAL NO. 383 of 2005
With
R/CRIMINAL APPEAL NO. 378 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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SHAIKH MOHAMMED NAUSHAD & ORS.
Versus
STATE OF GUJARAT
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Appearance in Criminal Appeal No.366 of 2005:
ADVOCATE NOTICE UNSERVED for the Appellant(s) No. 1,2,3
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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NEUTRAL CITATION
R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025
undefined
Appearance in Criminal Appeal No.367 of 2005:
ADVOCATE NOTICE NOT RECD BACK for the Appellant(s) No. 1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.2583 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 3
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 4
ADVOCATE NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s)
No.1-2,6
MS BENAZIR M. HAKIM for the Opponent(s)/Respondent(s) No.5
Appearance in Criminal Appeal No.2584 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.2585 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.383 of 2005:
ADVOCATE NOTICE UNSERVED for the Appellant(s) No.1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.378 of 2005:
MR YOGESH S.LAKHANI for the Appellant(s) No.1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/08/2025
COMMON ORAL JUDGMENT
1. Criminal Appeal Nos.2583 of 2005, 2584 of 2005 and 2585 of 2005 are by the State for enhancement of the sentence. While, Criminal Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005 and 378 of 2005 filed by accused are challenging Page 2 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined the conviction under Sections 399 and 120B of the Indian Penal Code, 1860 (for short 'IPC'), where six accused came to be convicted under Section 399 IPC for two years rigorous imprisonment and Rs.500 as fine with default stipulation of further fifteen days simple imprisonment. 1.1 For the offence under Section 120B IPC, two years rigorous imprisonment and Rs.500/- fine and in default of payment of fine, fifteen days simple imprisonment. The sentence to run concurrently and set off was granted for the imprisonment in connection with I-Cr. No.379/96 at Mahesana Police Station.
1.2 Criminal Appeal No.366 of 2005 had been filed by the accused Nos.2, 5 and 6 of Sessions Case No.203 of 2004, whereas Criminal Appeal No.367 of 2005 was by sole accused of Sessions Case No.215 of 1997 and Criminal Appeal No.378 of 2005 was filed by accused No.1 of Sessions Case Page 3 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined No.203 of 2004 and Criminal Appeal No.383 of 2005 was by sole accused of Sessions Case No.03 of 2005.
2. The conviction was under Sections 399 and 120B of IPC, for making preparation to commit dacoity.
2.1 Section 399 of IPC reads as under:
"399. Making preparation to commit dacoity.-- Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
2.2 The dacoity is defined under Section 391 of IPC, which is reproduced hereinbelow:
"391. Dacoity.-- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"."Page 4 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025
NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined
3. Learned advocate Mr. Rahul Dholakiya for the appellants in Criminal Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005 and 378 of 2005, submitted that the whole case is only on assumptions, where the undetected offences were accumulated and messages were forwarded to other Police Stations to consider the arrested accused at Unjha Police Station, which was as I- Cr.No.264/96, whereby accused Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan were arrested and the Mahesana City Local Crime Branch informed the police stations to contact L.C.B. Patan and Unjha Police Station for that purpose.
3.1 Learned advocate Mr. Dholakiya submitted that it was in consequence of this telephone call, the present case has been created, where an unsuccessful attempt of the accused had been shown, and further to bring the case under Dacoity over and above, Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan, rest of the accused Page 5 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined were also joined so as to make a case of more than five persons.
3.2 Learned advocate Mr. Dholakiya submitted that the case has been created by way of statement of accused before the police, which is not admissible in law and an attempt has been made to draw the panchnama and to form it as demonstration of the plan assumed to have been prepared by the accused alleging them as dacoits. 3.3 Learned advocate Mr. Dholakiya further stated that no independent witness has been examined; even the owner of the Maruti Van has not been examined to prove the fact that actually he had given the Maruti Van to the accused. All the police personnel are interconnected with a single intention of showing the case to have been proved. Mr. Dholakiya submitted that the statement of the accused, as recorded was in the Police Station, hence, it would be hit by the Page 6 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined provision of Section 25 of the Indian Evidence Act, 1872 (for short, 'Evidence Act') and cannot be made admissible.
4. Countering the arguments, learned APP Mr. Rohan Raval stated that the law under Section 10 of the Evidence Act read with Section 120B of IPC permits and make admissible the statement of an accused made before the police, and stated that the panchnama is the place of offence, which is admitted from the side of the accused by the advocate on record, thus, would become an admissible evidence to consider that it was a plan, which demonstrate their preparation to commit dacoity.
5. Both the advocates Mr. Dholakia and APP Mr. Raval have referred to the deposition of almost all the witnesses to drive their points. Learned advocate Mr. Dholakiya submitted that there is total failure on part of the prosecution to prove Page 7 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined the case, while learned APP Mr. Rohan Raval submitted that there is a case for enhancement of the sentence, which extends to ten years under Section 399 of the IPC.
6. The record of the matter suggests that the complainant-Mahobatsinh Kubersinh sought transfer warrant from Unjha Court to Mahesana. The further interrogation of accused-Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan was in presence of Police Inspector-R.J. Vaghela and P.S.I.-Nathani. Thereafter, the Maruti Van used in the offence was recovered, and charge-sheet was filed before the Chief Judicial Magistrate on 08.05.1997 in Criminal Case No.1841 of 1997, registered as Sessions Case No.203 of 2004.
6.1 Thereafter, absconded accused-Sabbir Allarakhha Shaikh was arrested on 23.06.1997. The charge-sheet was filed against him in the same Court on 01.09.1997, which was instituted as Page 8 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Criminal Case No.3362 of 1997 and thereafter was registered as Sessions Case No.215 of 1997. 6.2 As per the record, Saiyed Faiyazehmad Riyazehmad was arrested on 08.11.2004 and was charge-sheeted on 06.12.2004 in Criminal Case No.4775 of 2004 in Sessions Case No.03 of 2005.
7. The prosecution case in nutshell is that the complainant-Mahobatsinh Kubersinh, Unarmed Constable of L.C.B. at Mahesana filed complaint against the accused bearing I-C.R. No.379 of 1996 for the offences punishable under Sections 399 and 120B of Indian Penal Code and also under Section 25(1)(c) of Arms Act and under Section 135 of the B.P. Act. The complainant has stated in his complaint that he was investigating the incident happened on 09.10.1996. The offence was of looting the Angadiya Firm near Unjha Bus stand. The accused of the said loot were arrested on 24.10.1996.
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NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined 7.1 The complainant received message from Unjha Police Station that if he requires any of the accused connected with the offence of loot occurred at Unjha Bus stand, he could bring the accused. Therefore, he went to Unjha Police Station and inquired about the same. At that time, he came to know that accused formed unlawful assembly, common intention of which was to commit loot of firm belonged to a businessman Jayanti Ambalal Choksi of Mahesana. 7.2 The accused initially were to commit loot of the firm of the said person on 07.10.1996. Therefore, on that day, they hired one Maruti Van bearing registration No.GJ-6K-1750 from Nilkanth Travels situated in Shahjanand Shopping Center at Shahibaug, Ahmedabad. The accused - Shaileshgiri Ishwargiri Goswami (accused of Sessions Case No.203/04) was driver of the said Maruti Van. The accused left Ahmedabad at about 13.00 hrs. in the noon and reached at Mahesana Railway Station at Page 10 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined about 15.30 hrs. Thereafter, they went to Mahesana Nagar Society situated at Radhanpur Road and thereafter, had gone at Palavasna Highway and on reaching at the said highway, as they were to commit loot, they forged the number of Maruti van and removed the first number i.e. 1 from 1750 of Maruti Van, so as the same can be read as GJ-6K- 750. 7.3 Thereafter, the accused Sabbir Allarakkha (accused of Sessions Case No.215/97), Sidiq Nurmahammad, Mahammad Naushad, Abdul Kadar and Ibrahim (accused of Sessions Case No.203/04) stood waiting at Radhanpur Cross Road. Whereas, the accused Kamlesh Patel (accused of Sessions Case No.203 of 04) along with accused Faiyaz and driver of Maruti van, were waiting for the person of Angadiya Firm at Taluka Panchayat Office upto 6.00 hrs. and 6.15 hrs. At that time, accused Sabbir was having Tamanca and accused Sidiq was having Knife. There were other weapons like Gupti Page 11 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined etc. in Maruti Van. Thereafter, at about 6.30 hrs. they saw one person coming from Jay Shree Market with a bag, who hired rickshaw and went towards Gopinath. Therefore, all three accused boarded in the van and as early as possible they reached at Gopinath. However, the rickshaw intercepted the said Maruti Van and stopped near Radhanpur Cross Road from where the person, who boarded in rickshaw with a bag had gone in the Mahesana Nagar Society so the efforts failed. Thereafter, all accused again tried to commit loot on the next day i.e. on 08.10.1996. However, on that day also they could not find that person of Angadiya Firm. Therefore, on the day of the incident, i.e. on 09.10.1996 all the accused committed loot at Unjha Bus stand. On these facts the complaint was filed.
7.4 Upon filing of the complaint, the P.S.O. registered the said complaint and started further investigation. The accused of the said offences Page 12 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined by way of transfer warrant, were transferred from Unjha Police and were further interrogated. After recovering the van used in the offence, the panchnama of place of offence was drawn and after recording the statements of the relevant witnesses, charge-sheet was filed against the accused.
8. Section 10 of the Evidence Act becomes relevant to record with regard to conspiracy of the accused. Section 10 of the Evidence Act, reads as under:
"10. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.Page 13 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025
NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined 8.1 Section 10 of the Evidence Act is not capable of being widely construed so as to include a statement made by one conspirator in absence of other with reference to past acts done in the actual course of carrying out of the conspiracy, after it has been completed. The distinction is drawn between communication between conspirators, while the conspiracy was going on with reference to carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past. The principle underlying the reception of evidence under Section 10 of the Evidence Act of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. The rule in Section 10 confines the principle of agency in criminal matters to the acts of the co-
conspirator within the period during which it can be said that the acts were 'in reference to their Page 14 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined common intention' that is to say, things said, done or written while the conspiracy was on foot and in carrying out the conspiracy. It would seem to follow that where the charge specified the period of conspiracy, evidence of acts of co-
conspirators outside the period is not receivable in evidence. For this proposition of law, reliance is placed on the judgment of Sardul Singh Caveeshar V. State of Bombay [AIR 1957 SC 747].
8.2 In the case of State of Gujarat v. Mohammed Atik [AIR 1998 SC 1686], in Paragraph No.14, the Hon'ble Supreme Court has been noted as under:
"14. .....Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made "in reference to their common intention." In other words, a post-arrest statement made to a police officer, whether it Page 15 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence act."
8.3 The referred judgment of Mohammed Atik (supra) clears out that a statement made to the Police Officer, post arrest whether it is in confessional form or otherwise would not fall within the ambit of Section 10 of the Evidence Act. Thus, any reliance of the complainant police on the statement of accused would not be tenable since statement before the police would not be acceptable in law.
9. The prayer has been made under Section 377 of Cr.P.C. by filing appeals for enhancing the sentence. Section 377 of Cr.P.C. is reproduced hereinunder for appraisal of the evidence on record vis-a-vis the defence raised by the accused during the trial in context with the facts of the case, while appreciating the law with regard to the conviction of the accused, Page 16 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined when prayer is made simultaneously for acquittal.
"377. Appeal by the State Government against sentence-
(1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present [an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may also direct] [Substituted by Act 45 of 1978, Section 29, for "the Central Government may direct", w.e.f. 18.12.1978.] the Public Prosecutor to present [ an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(3) When an appeal has been filed against the Page 17 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
(4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.]"
9.1 The Hon'ble Supreme Court has referred to the case of Soman vs. State of Kerala, [(2013) 11 SCC 382] and Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] and has made observations in Paragraphs 10, 11, 12, 13 and 14 as under :-
"10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in Page 18 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.
11. This Court in the case of Soman Vs. State of Kerala [(2013) 11 SCC 382] observed thus :
"27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence. 27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint 27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it. 27.5. Unintended consequences/harm may Page 19 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."
12. The same is the verdict of this Court in Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] wherein it is observed thus:
"84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant Page 20 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined circumstances."
13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.
14. In the matter at hand, it is proved that the victim has sustained a grievous injury on a vital portion of the body, i.e. the head, which was fractured. The doctor has opined that the injury was life threatening. Hence, in our considered opinion, the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement."
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NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined 9.2 In Bed Raj v. State of Uttar Pradesh reported in 1955 (2) SCR 583, the Hon'ble Supreme Court has concluded that the question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of the accused person except for very strong reasons, which must be disclosed on the face of judgment. It was further held that in a matter of enhancement, there should not be interference when the sentence passed imposes substantial punishment.
10. It was the contention of learned advocate Mr. Rahul Dholakiya and Ms. Benazir M.Hakim that the case has been framed falsely against the accused by inviting the complaint. In context of this argument, the deposition of PW6-Sahebkhan Sikanderkhan was referred to, who had received wireless message, who deposed that on 07.11.2004, Page 22 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined he received a wireless message under the order of Police Inspector, Mahesana City to inform that absconding accused-Saiyed Faiyazehmad Riyazehmad resident of Ahmedabad, Dariapur, Multani street was arrested in C.R. No.264 of 1996 at Unjha Police Station, and since he was to be arrested in the case of Mehsana City registered as I-C.R. No.379 of 1996 under Section 120B, 399 and section 135 of the B.P. Act, under the message were instructed to take the transfer warrant from Unjha Court and to produce the accused in the Court at Mehsana for the offence of I-C.R. No.379 of 1996. P.W.6 stated that the arrest was made accordingly and charge-sheet was filed. The copy of transfer order was produced at Exh.27. The evidence of the witness was not challenged during the cross-examination.
10.1 According to PW5 - Karamsinh Kursibhai Desai, on 24.10.1996, at local branch Mahesana District, he was a P.S.I. On that day, Unjha Page 23 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Police Station had arrested accused Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan. It was informed to them that if both these persons were necessary in any of the offence then, they were asked to contact L.C.B. Patan and Unjha Police Station. As per the deposition, Head Constable - Mahobatsinh Kubersinh Chauhan of L.C.B. was sent for inquiry about both the accused. Head Constable - Mahobatsinh Kubersinh Chauhan went to Unjha and Patan and interrogated both the accused and recorded the statement of accused in presence of Police Inspector - R.J. Vaghela and P.S.I. Nathani of L.C.B. Patan. With the statements of both the accused, on 02.11.1996 filed a complaint against the referred accused and other accused and on that basis I-C.R. No.379 of 1996 was registered at City Police Station, Mahesana.
10.2 The complainant was entrusted by PW5 to interrogate the arrested persons at Unjha Police Page 24 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Station and accordingly, Mahobatsinh recorded the statement of accused Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan in presence of two police officers, as referred hereinabove. 10.3 The statement made was before the police in the Police Station, which fact was disclosed by the police witness himself. Any statement of the accused before the police, if it is in form of confession would not be admissible, as provided under Section 25 of the Evidence Act. Though, the statement would be considered as under Section 10 of the Evidence Act of one co-accused referring to his own acts as well as another co-accused, such statements, had it been after the common intention cease to exists would have no importance to connect the other co-accused whom he had named in the statement before the police. Further, any statement by the accused in the police custody, confessing of his crime would also not be admissible in evidence. Page 25 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025
NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined 10.4 In the present matter, the registration of complaint itself is based on the statement made by the accused. It is not the case of the prosecution that the independent investigation was made on the basis of the statement of the accused, rather the evidence of PW5 clarifies that Mahobatsinh Kubersinh was sent for interrogation, who on the basis of the statement of the accused Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan, filed a complaint, which is at Exh.11.
10.5 PW5 has referred to the complaint Exh.11, who stated that he had reduced the complainant in writing as was stated by complainant-Mahobatsinh Kubersinh and thereafter the complaint was sent for registration at Mahesana City Police. He produced the report at Exh.16. The further investigation was handed over to him by depute report of the P.S.O. Thereafter, since the accused were before the Patan L.C.B. police in Page 26 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined connection with Unjha Police Station complaint, transfer warrant was prayed for (i) Kamlesh Ambalal (ii) Shailesh Ishwargiri and (iii) Pathan Ibrahimkhan Umarkhan, and were brought at Mahesana, arrested on 03.11.1996. PW5 P.S.I. Desai stated that accused - Kamlesh Ambalal in presence of two panchas had shown the place of offence and accordingly, Exh.17, the panchnama was drawn in his presence.
10.6 Further, according to the deposition of P.S.I. Desai, thereafter all the accused were produced before the Court praying for remand and accused (i) Abdulkadar Mohammdhusen Shaikh (ii) Mohammadnausad Abdulrahim Janmohammad and (iii) Shaikh Mohammad Shaid Nurmohammad were arrested. Accused Abdulkadar and Mohammadnausad were arrested on 8th November and Shaikh Mohammad Shaid Nurmohammad was arrested on 23rd November. The witness stated that the statements of Police Inspector-R.J. Vaghela and B.S. Nathani and other Page 27 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined witnesses were recorded.
10.7 Witness - Rupeshkumar Prafulchandra produced his Maruti Van bearing No.GJ-6K-1750 at Mahesana L.C.B. and in presence of two panchas, the same was seized and panchnama at Exh.21 was drawn. 10.8 In view of this witness, on interrogating Shailesh Ishwargiri and Ibrahimkhan Umarkhan Pathan, who were arrested by Unjha Police under C.R. No.264 of 1996 at Mahesana City Police Station, I-C.R. No.379/96 was instituted. Three of the accused initially were arrested on transfer warrant and thereafter subsequently three accused came to be arrested. The trial was against six of them in Sessions Case No.203 of 2004, while in Sessions Case No.215 of 1997, trial was against Shaikh Sabbirhusen @ Allarakkha and the Sessions Case No.03/05 was against Saiyed Faiyazehmad Riyazehmad. All the three sessions trial were consolidated. During the trial, Shaikh Page 28 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Abdulkadar @ Sajid Mohammdhusen, accused of Sessions Case No.203/04 died and therefore, his case was abated. Ultimately, the trial was conducted against seven accused. The panchanam Exh.17, which was drawn on the basis of the statement of accused - Kamleshkumar Ambalal was not proved by the panchas.
11. Much reliance has been placed by learned APP Mr. Rohan Raval on the panchnama Exh.17, to submit that the accused himself has made certain admissions, and on the basis of those statements, the place of offence was showed by the accused, and submitted that though the panchas have not supported the panchnama, but on the basis of statement of the I.O. reliance is required to be placed on the panchnama Exh.17, since all the places where they had visited had been brought on record.
12. The unfortunate aspect and the glaring defect of the investigation is that the statement Page 29 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined of Kamlesh Patel was allegedly before the panchas, as recorded under Exh.17. Panchas have not proved Exh.17. The evidence of Mahobatsinh Kubersinh Chauhan as PW1 does not bring into record any statement that he had interrogated of accused Patel Kamleshkumar Ambalal Patel. The P.S.I. Karamsinh Kursibhai Desai (PW5) stated that the statements of the accused were recorded by Mahobatsinh Kubersinh in presence of Patan L.C.B. Police Inspector-R.J. Vaghela and P.S.I. B.S. Nathani. The defect, which has been referred is that though, the statements of both these police personnel were recorded by PW5, both of them had not been examined during the trial. The corroboration could not be brought on record that actually Mahobatsinh had interrogated the accused.
13. The first three accused found were (i) Kamleshkumar Ambalal Patel (ii) Shailesh Ishwargiri Goswami (iii) Pathan Ibrahimkhan Page 30 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Umarkhan. Exh.17 panchnama originally only refers to three accused, however, it is noted of admission of accused - Kamleshkumar Ambalal Patel, who stated to have referred himself and remaining two, as well as Abdulkadar @ Sajid Mohammdhusen Shakih and Mahammad Naushad @ Laddu Abdulrahim Janmohammad Shaikh and Sabbir @ Allarakkha Shaikh and Faiyazehmad Riyazehmad and Sidiq Nurmahammad Shaikh.
13.1 As per the prosecution case, they all had gathered and by Maruti Van No.GJ-6K-1750, had planned to loot a person from Mahesana Angadiya Firm and they had followed Rickshaw No.4949. Accused-Patel Kamleshkumar Ambalal showed the place by moving from A.C.B. Office in a government vehicle, which was dated 03.11.1996 between 15.30 to 16.00 hours. The accused-Kamlesh Ambalal Patel stated that they had made an attempt to loot on 07.10.1996, and all the accused had their lunch at Bombay Hotel and Guest Page 31 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined House, and from there they took the Maruti Van, which was parked at the railway parking and all three accused had travelled in the government vehicle, except Kamlesh, Faiyaze, Shailesh, others were asked to alight, and three of them in the Maruti Van had gone at Radhanpur Road, where they had parked the Maruti Van, since the Angadiya person was to go from Radhanpur Road to Mahesana Nagar Society. As initially they had a recce of the place of Juna Angadiya Jayantilal Ambalal Chokshi Shop and then according to the plan, they had followed the Rickshaw No.4949, but the plan could not succeed, as the Rickshaw No.4949 had not come at the place, where they were waiting and therefore, from Radhanpur Cross Road they had come to Mahesana where on Kalol Ahmedabad Highway they had parked the Maruti Van. 13.2 The attempt was said to be made, but the said panchnama had not been proved by the panchas. According to the panch PW2 - Maheshbhai Page 32 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Shivshanker Pandya, no such panchnama was drawn and he stated that on 09.12.1996, police had asked him to sign the panchnama and he had put his signature on Exh.21. He denied the suggestion that Patel Rupeshbhai Prafulchandra had produced the Maruti Van No.GJ-6K-1750. The relevant aspect in connection to the Maruti Van is that the owner Rupeshbhai Prafulchandra had not been examined to prove the fact that the said van was given to the accused. This is the major missing link of the investigation. The preparation for dacoity could have been proved by deposition of owner of the vehicle himself. Even panch Shaileshkumar Dayabhai Prajapati (PW3) denies of panchnama Exh.21 drawn in his presence. He also stated that on 09.12.1996 police had taken his signature. Thus, panchnama Exh.21 would have no value and would not be considered as valid document for its appraisal as an evidence.
13.3 The panchas of Exh.17 Mahendrakumar Page 33 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Narayanbhai Rathor and Udaji Babaji Thakor had not been examined. Learned APP Mr. Raval submitted that the same has to be read in evidence, as it was admitted during the course of trial by the learned advocate of the accused. However, the fact remains that the panchnama was stated to have been drawn on the instruction of accused - Kamlesh Ambalal Patel. The said places are all public places. There is nothing recovered or discovered by way of panchnama Exh.17. All places were known to the police, if at all the police itself has to be believed, but the panchnama Exh.17 does not bring anything on record, which could be considered as anything discovered or recovered on the statement of the accused.
13.4 Mahobatsinh Kubersinh Chauhan as PW1 stated that on 24.10.1996, he received a wireless message from Unjha Police Station that accused - Goswami Shaileshgiri Ishwargiri and four others Page 34 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined were arrested by Unjha Police Station in I-C.R. No.264/96 for the offence under Sections 395 and 397 IPC and if at all those were needed in any of the offences, the message had come, for necessary inquiry. PW1 stated that at that time, he was instructed by Police Inspector, L.C.B. Branch and accordingly he had gone to Unjha and Patan for inquiry. At that time, those accused as well as another accused of Ahmedabad, accused Sabbir and Faiyazehmad and others, were found together, who had planned one month earlier for loot of Mahesana Angadiya Firm, who had hired a car bearing registration No.1750 from Ahmedabad and had forged the number so as the same can be read as 750 and brought it at Mahesana City between 6.00 to 6.30 at Jayshree market and had followed a person from Jayantilal Ambalal Angadiya Pedi, but the loot was not successful, as the person from Angadiya firm in his regular Rickshaw No.4949 had turned himself at Mahesana Nagar Page 35 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined Society at his destination.
13.5 Next day on 08.10.1996, again the accused had prepared for the loot, but the person from Angadiya Pedi had not come out with any money or other things, so they could not put their plan into practice. The witness states that such kind of statement was recorded by him, and the fact about statement recorded, Unjha and Patan L.C.B. officers were also informed by him. Hence, arrested accused and those accused, whose names were disclosed in the statement against them, he, therefore filed a complaint on behalf of the State on 02.11.1996. The complaint was produced by him at Exh.19.
13.6 In the cross-examination, Mahobatsinh was asked question that when he had given the complaint, his head quarter was L.C.B. and he was an A.S.I., while the accused were in the custody of Unjha Police, and on the message of Unjha Page 36 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined police, he had gone to Unjha. He stated that when he had gone at Unjha, there was no complaint pending at Mehsana L.C.B. against the accused. He had gone to Unjha to record the statement of the accused and there he had interrogated them. Such statement was taken in the police station. He stated that on the basis of the statement, he came to know that the accused were involved in the offence and therefore, he had taken them in his custody and had brought at Mahesana. After coming to Mahesana he had given the complaint. He also clarifies that prior to giving the complaint at Mahesana, he had not inquired from any person from the Angadiya Pedi regarding the loot. A suggestion was put that none of the accused had given any statement and he himself had written down the statement, which he denied. However, no such statement is brought on record.
14. The overall examination of evidence of the witnesses, would clarify that there was no Page 37 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined serious investigation in the matter. Out of six witnesses apart from two panch witness, four police personnel had given the deposition. No statement of any person from alleged Angadiya Pedi was recorded. Patel Rupeshkumar Prafulchandra of Nilkanth Travel was not examined. The allegation is that there was tampering of number plate of the Maruti Van, where in fact, the registration of the Maruti Van was 1750 and the only number, which they could refer of painting black was number one of the total alpha numerical name plate. The statement of the rickshaw driver bearing No.4949 also could have been recorded in order to find out whether they were actually followed by the Maruti Van No.GJ-6K-750. It appears and as submitted by learned advocates for the accused that the case has been registered against the accused to show the work of L.C.B. Page 38 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined
15. As noted in the case of Mohammed Atik (supra), following the principle of law of agencies, statement of one conspirator would bind others only during the subsistence of the common intention as between the conspirators. Once the common intention ceased to exist, any statement made by a former conspirator cannot be considered as one made "in reference to their common intention."
15.1 Here, the statement was recorded when the accused were in police custody. Section-10, therefore, cannot be invoked to consider it as a pre-conspiracy for the offence under Section 120B IPC.
15.2 The police initially arrested three persons thereafter to bring the case under dacoity, for forming the group of person of more than five, it appears that subsequently all the accused were arrested to make it as a grievous offence. The Page 39 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined prosecution has failed to prove the case of preparation of commission of dacoity. The relevant statements of the owner of the vehicle could not be taken on record, though, that person had produced his Maruti Van for investigation. 15.3 In order to establish an offence under Section 399 IPC some act amounting to preparation must be proved, and what must be further proved is that the act for which preparation was made, was for dacoity. The test is the intention of the accused. Here, as per the evidence, the accused had also gathered for lunch at Bombay Hotel and Guest House. No statement of owner of the hotel was also recorded to even corroborate the fact of any action of the accused for preparation of commission of dacoity. Nothing is shown of accused possessing any arms. Though, of course, evidence has been noted that Sabbir was having Tamancha, Sidiq was with knife and Gupti was in the Maruti Van, but no such weapons have been Page 40 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined proved during the course of trial. The assembly of the alleged accused for the purpose of dacoity could not be proved. The accused were arrested by way of transfer warrant, where they were involved in the other case, more specifically, the case registered at Unjha, which also as per the evidence, could not be proved during the trial. It is not that the police had received any information from any of the public persons of any attempt by the accused for such preparation being made by the accused for the commission of dacoity.
15.4 In the cross-examination of PW4 - Shivnathsinh Anandsinh Parmar, who was the I.O. of the matter, he had affirmed that no statement of any other person from public or from the city was recorded, nor there was any complaint against these persons from the city or the public. In his investigation, except recording the statement of the police he has not recorded statement of any Page 41 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined independent person. Though, he got the information that on 08.10.1996, when he was Police Inspector at Mahesana Police Station, there was a conspiracy by five to six people to loot Ambalal Angadiya Firm, which was located in Jayshree market. Those persons had not come under their arrest. He stated that on 09.10.1996, the loot was committed and the investigation was by L.C.B. Patan, and during that period the information regarding the attempt of Mahesana loot had come forward, and since the information was received by L.C.B. Mahesana, the Head Constable Mahobatsinh Kubersinh had investigated the same and finally lodged the complaint. He stated that he was on 02.11.1996, was P.I. of L.C.B. and since other accused were yet to be arrested, he received the transfer warrant, as instructed by K.K. Desai P.S.I. and Mahobatsinh and therefore, report was received for the warrant from Judicial Magistrate, Mahesana. Rest Page 42 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined of two accused, he stated, were arrested by L.C.B. department and through him the charge- sheet was filed.
15.5 The whole of the evidence, if read in totality, there are no independent persons from the public, who made complaint about any attempt by the accused for preparation of loot. Neither the owner of Maruti Van nor the owner of the rickshaw have been examined. The places alleged to have been visited by the accused, the owner of those places were also not examined. No evidence has been brought on record by the police to show that preparation for the commission of offence of dacoity was being made. The prosecution rather has failed in their case before the trial Court. The learned Judge has relied on the evidence of the police, to observe that there was planning/conspiracy, where they had hired the Maruti Van No.GJ-6K-1750 and the Maruti Van was used and there was an attempt of forgery in the Page 43 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined number plate by blackening figure one. However, this observation of the learned Judge cannot be accepted, in absence of statement of owner of the vehicle Patel Rupeshkumar Prafulchandra. There is nothing brought on record by way of statement/evidence of any independent person having seen the Maruti Van or the evidence of driver of Rickshaw No.4949 to have stated that he had seen Maruti Van following him with number plate of 750.
15.6 The learned Judge observed that attempt on 07.10.1996 and 08.10.1996 were unsuccessful. This observation was also recorded for following the conviction. But no evidence came on record of any attempt made on 07.10.1996 and 08.10.1996. The failure of proving the case recorded at Unjha Police Station was also noted. The learned Judge was of an opinion that there was no enmity between the complainant police and the accused to file a false case. There was a pre-plan in a very Page 44 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined systematic way, which was proved by the evidence and that there was mens rea of the accused since no defence has been recorded.
15.7 The learned Judge failed to appreciate the basic principles of law that in criminal trial it is prosecution, who has to prove the case. Unless and until the case is proved against the accused, they are to be considered as innocent. The accused are not legally bound to produce any evidence and whatever defence came on record is by way of cross-examination, and the statement under Section 313 of Cr.P.C., where they had denied of the evidence and circumstances against them.
16. Thus, on analysis of evidence and on observations made hereinabove, this Court is of an opinion that the prosecution has miserably failed to prove the case. No grounds have been raised or any circumstances proved by the Page 45 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined prosecution to consider the case under Section 399 IPC for enhancing the sentence. The accused have proved their case for acquittal. There are no sufficient and corroborating evidence to consider the guilt of the accused. No evidence has been produced on record to show any preparation of commission of offence. It appears that the cases have been created against the accused to probably prove them as notorious dacoits, but nothing has come on record to even assume of any preparation for the commission of offence.
17. In view of the above discussions and observations, Criminal Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005 and 378 of 2005 are allowed and Criminal Appeal Nos.2583 of 2005, 2584 of 2005 and 2585 of 2005 filed by the State are dismissed. The conviction and sentence of the accused passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Mahesana vide Page 46 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025 NEUTRAL CITATION R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025 undefined judgment and order dated 19.02.2005 passed in Sessions Case Nos.203 of 2004, 03 of 2005 and 215 of 1997 are hereby set aside. Bail bonds, if any, stand discharged. Registry is directed to send the Record and Proceedings back to the concerned Trial Court forthwith.
(GITA GOPI,J) Pankaj/1 & 2 (suppl.) Page 47 of 47 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Wed Aug 06 2025 Downloaded on : Wed Aug 06 23:47:29 IST 2025