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CR.A/442/2003 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 442 of 2003
With
CRIMINAL
APPEAL No. 491 of 2003
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 ?
=========================================================
ARMESH
@ ALPESH FATAJI CHAUHAN & 8 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KG PANDIT with MR JV JAPEE
for
Appellant(s) : 1 - 9.
MR HL JANI Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 27/12/2010
ORAL
JUDGMENT
1. The
present appellants have preferred these appeals under sec. 374(2) of
the Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 7.4.2003 passed by the learned Fast
Track Judge, Modasa in Sessions Case No. 97/2002, whereby, the
learned Judge has convicted the appellants original accused, as
under:
Appellant
original Accused no. 1 has been convicted under sec. 186 of IPC
and sentenced to undergo R/I of three months and to pay a fine of
Rs.500/-, in default, to undergo R/I for one month. The appellant
original accused no. 1 is also convicted under sec. 395 of IPC and
sentenced to undergo R/I for 5 years, and to pay a fine of Rs.
2000/-, in default, to undergo further R/I for six months. The
appellant original accused no. 1 is also convicted under sec. 427
of IPC and sentenced to undergo R/I for one year and to pay a fine of
Rs. 1000/-, in default, to undergo further R/I for three months,
whereas, for the offence under sec. 135(3) of the Bombay Police Act,
he has been directed to pay a fine of Rs. 100/-, in default, to
undergo S/I for ten days.
Appellant
original Accused no. 2 has been convicted under sec. 186 of IPC
and sentenced to undergo R/I for three months and to pay a fine of
Rs. 500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 3 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 4 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 5 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 6 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 7 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 395 of IPC and sentenced to undergo R/I for five
years and to pay a fine of Rs. 2000/-, in default, to undergo R/I for
six months. He is also convicted under sec. 427 of IPC and sentenced
to undergo R/I for one years and to pay a fine of Rs. 1000/-, in
default, to undergo R/I for three months. He has been also convicted
under sec. 135(3) of the Bombay Police Act and directed to pay a fine
of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 8 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 9 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 395 of IPC and sentenced to undergo R/I for five
years and to pay a fine of Rs. 2000/-, in default, to undergo R/I for
six months. He is also convicted under sec. 427 of IPC and sentenced
to undergo R/I for one years and to pay a fine of Rs. 1000/-, in
default, to undergo R/I for three months. He has been also convicted
under sec. 135(3) of the Bombay Police Act and directed to pay a fine
of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 10 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 11 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days.
Appellant-
original Accused no. 12 has been convicted under sec. 186 of IPC and
sentenced to undergo R/I for three months and to pay a fine of Rs.
500/-, in default, to undergo R/I for one month. He has been also
convicted under sec. 135(3) of the Bombay Police Act and directed to
pay a fine of Rs. 100/-, in default, to undergo S/I for ten days,
which is impugned in both these appeals.
2. The
brief facts of the prosecution case is as under:
3. It
is the case of the complainant that on 6.5.2002, he had gone to
village Kambhola with Rajendrasinh Chhatrasinh Mahida for
investigation of a complaint filed against one Parthiji Rajaji
Chauhan vide CR No. III-46/2002 and when they had reached villae
Medhsana on motorcycle, they came to know that the accused Parthiji
had hidden himself in the field of some Patel. The complainant had
parked his motor-cycle and started to cross the river. At that time,
the complainant had seen Parthiji and therefore, shouted at him. The
accused Parthiji had having seen the complainant, run away towards
the village. The appellants came from the village and started to
throw stones at the complainant and gave abuses to the complainant.
It is alleged that the appellants had threatened the complainant. It
was further the case of the complainant that three persons out of the
mob namely Fataji, Nikesh and Lalaji had gone to the direction of the
motorcycle and caused damage to the motorcycle by throwing stones.
They had also taken away the investigation papers and logbook from
the dicky of the motorcycle.
4. Therefore
a complaint came to be filed by the complainant. The panchnama of the
scene of offence place was prepared in the presence of panchas and
statements of witnesses were recorded and on completion of the
investigation, charge-sheet was filed in the Court of learned
Judicial Magistrate, First Class, Modoasa. 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.97/2002.
5. Thereafter,
the charge was framed at Ex. 2 against the appellants. The appellants
accused have pleaded not guilty and claimed to be tried.
6. In
order to bring the home the charge levelled against the appellants-
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
appellants-accused under sec. 313 of CrPC was recorded in which the
appellants-accused have 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 7.4.2003 held the appellants accused guilty to the charge
levelled against them under sec. 186, 395 and 427 of IPC and under
sec. 135(3) of the Bombay Police Act and convicted and sentenced the
appellants- accused, as stated above.
9. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Fast Track Judge,
Modasa, the present appellants have preferred both these appeals.
10. Heard
Mr. JV Jappee learned advocate for the appellant and Mr HL Jani
learned APP for the respondent-State in both the appeals.
11. Mr
Jappee learned advocate appearing for the appellants in both the
appeals has contended against 12 original accused, the charge was
framed at Ex. 2 for the offence under sec. 186, 395, 336, 427 and 114
of IPC and under sec. 135 of the Bombay Police Act. Mr Jappee has
also contended that the prosecution has not proved its case beyond
reasonable doubt and from the cross examination of the witnesses
also, the main ingredients of the offence cited in charge Ex. 2 is
not proved beyond reasonable doubt. Mr Jappee has read the oral
evidence of PW-1 and argued that complainant Natvarsinh Jodha, who is
Police Head Constable and at the time of offence, he was on duty and
when he was present at the scene of offence place, at that time, the
said alleged offence was committed by the present appellants but from
the oral evidence of this witness, panchnama of scene of offence
place is not proved. He has also contended that as per the facts of
the prosecution case, it is the say of the complainant that the side
mirror of the motorcycle was broken by the present appellants-accused
but not a single piece of broken glass is recovered from the place of
offence during the panchnama. Mr Jappee has also read the contents of
panchnama and argued that in panchnama small pieces of stones are
shown but as per the say of the complainant, there must be some huge
quantity of stones but it is not cited in the panchnama and the
absence of stones in the panchnama is not explained by the
prosecution. Mr Jappee has also contended that from the contents of
Ex. 23 and Ex. 30 panchnama and discovery panchnama, it appears that
during the panchnama the looted articles (papers) are recovered under
the provisions of sec. 27 of the Evidence Act but that panchnama is
not proved beyond reasonable doubt. Mr Jappee has also argued that
looking to the contents of Ex. 30, discovery panchnama is concerned,
the same is not proved beyond reasonable doubt. He has also contended
that looking to the time of panchnama of scene of offence place Ex.
20 is proved, but the time of panchnama is doubtful and in the
original panchanama, there is some over-writing is made by the maker
of panchnama. He has also read the oral evidence of I.O. PW-13 Ex. 39
and argued that the complaint was written by him but no statement of
complainant was recorded and even no preliminary verification was
done by him and straightway complaint was registered and written by
the Investigating Agency. Even the panchnama Ex. 27 is concerned, it
was drawn by the I.O. at Police Station. Mr Jappee has contended
that from the cross-examination of PW-1 who has admitted that some
investigation for the offence under the Bombay Prohibition Act was
pending and other accused are not known to him. Mr Jappee has read
the oral evidence of PW-1 and argued that just to avoid some
negligence committed by PW-1, the present appellants have been
wrongly booked in the offence and whole story of the prosecution case
is concocted and, therefore, the impugned judgment and order of
conviction and sentence deserves to be quashed and set aside.
12. Mr
HL Jani learned APP appearing for the respondent-State has read the
impugned judgment and order of conviction and sentence passed by the
learned Judge and also read the oral as well as documentary evidence
produced on record. Mr. Jani has read the oral evidence of panch
witness also. He has argued that the contents of discovery panchnama
is proved beyond reasonable doubt. He has also argued that the oral
evidence of PW-1 who is a Police Head Constable and no animosity is
established by the defence and only due to the police is evidence
cannot be discarded. Looking to the scene of offence place, there may
not be other independent witnesses and, therefore, only the evidence
of PW-1 is required to be considered and the impugned judgment and
order of conviction and sentence is required 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. I have also perused ingredients of sec. 27 of the Evidence
Act as well as the probabilities of the defence. During the perusal
of the panchnama of scene of offence, it appears that time of the
panchnama is changed and further from the cross-examination of PW-1
is concerned, his evidence is not reliable in toto and the probable
defence is concerned, it is the case of the appellants that just to
avoid negligence of the Police Head Constable complainant, he has
booked all the appellants-accused in the said offence, but there is
no direct evidence is produced on record. It is true that from the
perusal of the papers, it appears that no direct evidence is produced
in support of the oral and documentary evidence of PW-1. Even from
the panchnama of scene of offence place is concerned, the contents
shows that the story of the prosecution is not proved beyond
reasonable doubt and there was no recovery of stones. Even in the
panchnama, it is not stated by the prosecution that as per the say of
the complainant, there were some stones which were present at the
place of offence. I have perused the whole oral evidence and it
appears that no medical evidence is produced in support of the
prosecution case because as per the say of the complainant, he has
received any injury, which is not possible. In that view of the
matter, both the appeals require to be allowed and the impugned
judgment and order of conviction and sentence deserves to be quashed
and set aside.
15. In
the result, both the appeals are allowed. The impugned judgment and
order of conviction and sentence dated 7.4.2003 passed by the learned
Fast Track Judge, Modasa in Sessions Case No. 97/2002 is hereby
quashed and set aside. The appellants-accused are hereby acquitted of
all the charges levelled against the. Fine if paid, be refunded to
the appellants. Bail bond stands cancelled. R & P to be sent back
to the trial court forthwith.
(Z.K.SAIYED,
J.)
mandora/
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