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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/
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