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CR.A/1475/2007 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1475 of 2007
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 ?
=========================================================
AJAYKUMAR
MENVALSING THAKOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MS
BHARTI H RANA for
Appellant(s) : 1,
MR HL JANI Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/10/2010
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 3.11.2007 passed by the learned Addl.
Sessions Judge, Fast Track Court No. 10, Vadodara in Sessions Case
No. 3/2006, whereby, the learned Judge has convicted the appellant
under sec. 392 of IPC and sentenced to undergo R/I for 5 years and to
pay a fine of Rs. 250/-,in default, to undergo further S/I for 8
days. The appellant is also convicted under sec. 397 of IPC and
sentenced to undergo R/I for a period of 7 years and to pay a fine of
Rs 250/-, in default, to undergo further S/I for eight days, which is
impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
3. That
on 19.11.2004, when the complainant and other passengers travelling
in Arnakulam Okha train, one Ajaykumar @ Ajaysing came with knife
and threatened him and looted golden jewellary and cash money, total
worth Rs. 13,500/-. Thereafter, he has given the jewellary and cash
to accused no. 2 for sale.
4. Therefore
a complaint came to be filed by the complainant at Vadodara Railway
Police Station. The police started investigation and during the
investigation, the accused no. 1 – present appellant and accused no.
2 were arrested and on completion of the investigation, charge-sheet
was filed in the Court of learned Judicial Magistrate Firs Class,
Traffic Court, Vadodara. 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. 3/2006.
5. Thereafter,
the charge was framed at Ex. 3 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 3.11.2007 held the appellant accused guilty to the charge
levelled against him under sec. 392 and 397 of IPC 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 Addl. Sessions Judge,
Fast Track Court no. 10, Vadodara, the present appellant has
preferred this appeal.
10. Heard
Ms Bharati Rana learned advocate for the appellant and Mr HLJani
learned APP for the respondent-State.
11. Ms.
Rana learned advocate for the appellant has argued that the learned
Judge has not considered the defence of the appellant and therefore,
the impugned judgment and order of conviction and sentence is bad in
eye of law. Ms Rana further contended that the learned Judge has
committed grave error while conficting and sentencing the appellant.
Ms rana has also read the oral evidence of the witnesses and argued
that the judgment and order of conviction and sentence is very harsh
in nature. She has also read the panchnama and argued that the
recovery is not proved beyond reasonable doubt and the case of the
defence is also required to be considered in favour of the appellant.
She has also contended from the oral evidence of I.O. that it is
proved before the learned Judge that the I.O. was bias and only just
to get some credit, the present appellant is booked in the offence.
12. Mr
HL Jani learned APP for the State has read the charge as well as
impugned judgment and order of conviction and sentence and argued
that the present appellant is a habitual offender and in past also,
he was convicted for three other offences and was sentenced to
undergo imprisonment for 10 years. Mr Jani has also read the recovery
panchnama and argued that the prosecution has proved its case beyond
reasonable doubt. Mr Jani has also read the oral evidence of
Executive Magistrate and panch of Identification Parade and argued
that even in the presence of the independent panch witness, the
identification of the appellant is already proved before the
Executive Magistrate. He has also argued that now a days, none is
safe in the society due to such type of offence and everyday the
offenders are committing such type of offences and, therefore, 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
witness-complainant and also perused the charge framed against the
appellant. First of all, so far as TI parade is concerned, I have
perused the oral evidence of the Executive Magistrate as well as
panch witness, the identification of the present appellant is proved
beyond reasonable doubt by the prosecution and even the recovery is
also proved beyond reasonable doubt. Considering the oral as well as
documentary evidence on record, it appears that the learned Judge has
not committed any error while convicting and sentencing the present
appellant. In that view of the matter, I am of the opinion that there
is no substance in the present appeal and the same requires to be
dismissed.
14. In
the result, this appeal is dismissed. The impugned judgment and order
dated 3.11.2007 passed by the learned Addl. Sessions Judge, Fast
Track Court No. 10, Vadodara in Sessions Case No. 3 of 2006 is hereby
confirmed. R & P to be sent back to the trial Court.
(Z.K.
SAIYED, J)
mandora/
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