{"id":244948,"date":"2010-12-27T00:00:00","date_gmt":"2010-12-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/armesh-vs-the-on-27-december-2010"},"modified":"2017-12-28T21:24:36","modified_gmt":"2017-12-28T15:54:36","slug":"armesh-vs-the-on-27-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/armesh-vs-the-on-27-december-2010","title":{"rendered":"Armesh vs The on 27 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Armesh vs The on 27 December, 2010<\/div>\n
Author: Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/442\/2003\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 442 of 2003\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 491 of 2003\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nARMESH\n@ ALPESH FATAJI CHAUHAN & 8 - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nKG PANDIT with MR JV JAPEE\nfor\nAppellant(s) : 1 - 9. \nMR HL JANI Ld. APP for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/12\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tThe
\npresent appellants have preferred these appeals under sec. 374(2) of
\nthe Code of Criminal Procedure, against the judgment and order of
\nconviction and sentence  dated 7.4.2003 passed by the learned Fast
\nTrack Judge, Modasa in Sessions Case No. 97\/2002, whereby, the
\nlearned Judge has convicted the appellants   original accused, as
\nunder:\n<\/p>\n
\tAppellant
\n   original Accused no. 1 has been convicted  under sec. 186 of IPC
\nand sentenced to undergo R\/I of three months and to pay a fine of
\nRs.500\/-, in default, to undergo R\/I for one month. The appellant
\noriginal accused no. 1 is also convicted under sec. 395 of IPC and
\nsentenced to undergo R\/I for 5 years, and to pay a fine of Rs.
\n2000\/-, in default, to undergo further R\/I for six months. The
\nappellant   original accused no. 1 is also convicted under sec. 427
\nof IPC and sentenced to undergo R\/I for one year and to pay a fine of
\nRs. 1000\/-, in default, to undergo further R\/I for three months,
\nwhereas, for the offence under sec. 135(3) of the Bombay Police Act,
\nhe has been directed to pay a  fine of Rs. 100\/-, in default, to
\nundergo S\/I for ten days.\n<\/p>\n
\tAppellant
\n  original Accused no. 2 has been convicted under sec. 186 of IPC
\nand sentenced to undergo R\/I for three months and to pay a fine of
\nRs. 500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 3 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 4 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 5 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 6 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 7 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 395 of IPC and sentenced to undergo R\/I for five
\nyears and to pay a fine of Rs. 2000\/-, in default, to undergo R\/I for
\nsix months. He is also convicted under sec. 427 of IPC and sentenced
\nto undergo R\/I for one years and to pay a fine of Rs. 1000\/-, in
\ndefault, to undergo R\/I for three months. He has been also convicted
\nunder sec. 135(3) of the Bombay Police Act and directed to pay a fine
\nof Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 8 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 9 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 395 of IPC and sentenced to undergo R\/I for five
\nyears and to pay a fine of Rs. 2000\/-, in default, to undergo R\/I for
\nsix months. He is also convicted under sec. 427 of IPC and sentenced
\nto undergo R\/I for one years and to pay a fine of Rs. 1000\/-, in
\ndefault, to undergo R\/I for three months. He has been also convicted
\nunder sec. 135(3) of the Bombay Police Act and directed to pay a fine
\nof Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 10 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 11 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days.\n<\/p>\n
\tAppellant-\n<\/p>\n
original Accused no. 12 has been convicted under sec. 186 of IPC and
\nsentenced to undergo R\/I for three months and to pay a fine of Rs.
\n500\/-, in default, to undergo R\/I for one month. He has been also
\nconvicted under sec. 135(3) of the Bombay Police Act and directed to
\npay a fine of Rs. 100\/-, in default, to undergo S\/I for ten days,
\nwhich is impugned in both these appeals.\n<\/p>\n
2.\tThe
\nbrief facts of the prosecution case is as under:\n<\/p>\n
3.\tIt
\nis the case of the complainant that on 6.5.2002, he had gone to
\nvillage Kambhola with Rajendrasinh Chhatrasinh Mahida for
\ninvestigation of a complaint filed against one Parthiji Rajaji
\nChauhan vide CR No. III-46\/2002 and when they had reached villae
\nMedhsana on motorcycle, they came to know that the accused Parthiji
\nhad hidden himself in the field of some Patel. The complainant had
\nparked his motor-cycle and started to cross the river. At that time,
\nthe complainant had seen Parthiji and therefore, shouted at him. The
\naccused Parthiji had having seen the complainant, run away towards
\nthe village. The appellants came from the village and started to
\nthrow stones at the complainant and gave abuses to the complainant.
\nIt is alleged that the appellants had threatened the complainant. It
\nwas further the case of the complainant that three persons out of the
\nmob namely Fataji, Nikesh and Lalaji had gone to the direction of the
\nmotorcycle and caused damage to the motorcycle by throwing stones.
\nThey had also taken away the investigation papers and logbook from
\nthe dicky of the motorcycle.\n<\/p>\n
4.\tTherefore
\na complaint came to be filed by the complainant. The panchnama of the
\nscene of offence place was prepared in the presence of panchas and
\nstatements of witnesses were recorded and on completion of the
\ninvestigation, charge-sheet was filed in the Court of learned
\nJudicial Magistrate, First Class, Modoasa. Thereafter, as the case
\nwas exclusively triable by the Court of Sessions, the learned
\nMagistrate has committed the case to the Court of Sessions, which was
\ngiven number as Sessions Case No.97\/2002.\n<\/p>\n
5.\tThereafter,
\nthe charge was framed at Ex. 2 against the appellants. The appellants
\n  accused have pleaded not guilty and claimed to be tried.\n<\/p>\n
6.\tIn
\norder to bring the home the charge levelled against the appellants-
\naccused, the prosecution has examined the witnesses and also produced
\ndocumentary evidence before the trial Court.\n<\/p>\n
7.\tThereafter,
\nafter examining the witnesses, further statement of the
\nappellants-accused under sec. 313 of CrPC was recorded in which the
\nappellants-accused have denied the case of the prosecution.\n<\/p>\n
8.\tAfter
\nconsidering the oral as well as documentary evidence and after
\nhearing the parties, learned Judge vide impugned judgment and order
\ndated 7.4.2003 held the appellants   accused guilty to the charge
\nlevelled against them under sec. 186, 395 and 427 of IPC and under
\nsec. 135(3) of the Bombay Police Act and convicted and sentenced the
\nappellants- accused, as stated above.\n<\/p>\n
9.\tBeing
\naggrieved by and dissatisfied with the impugned judgment and order of
\nconviction and sentence passed by the learned Fast Track Judge,
\nModasa, the present appellants have preferred both these appeals.\n<\/p>\n
10.\tHeard
\nMr. JV Jappee learned advocate for the appellant and Mr HL Jani
\nlearned APP for the respondent-State in both the appeals.\n<\/p>\n
11.\tMr
\nJappee learned advocate appearing for the appellants in both the
\nappeals has contended against 12 original accused, the charge was
\nframed at Ex. 2 for the offence under sec. 186, 395, 336, 427 and 114
\nof IPC and under sec. 135 of the Bombay Police Act. Mr Jappee has
\nalso contended that the prosecution has not proved its case beyond
\nreasonable doubt and from the cross examination of the witnesses
\nalso, the main ingredients of the offence cited in charge Ex. 2 is
\nnot proved beyond reasonable doubt. Mr Jappee has read the oral
\nevidence of PW-1 and argued that complainant Natvarsinh Jodha, who is
\nPolice Head Constable and at the time of offence, he was on duty and
\nwhen he was present at the scene of offence place, at that time, the
\nsaid alleged offence was committed by the present appellants but from
\nthe oral evidence of this witness, panchnama of scene of offence
\nplace is not proved. He has also contended that as per the facts of
\nthe prosecution case, it is the say of the complainant that the side
\nmirror of the motorcycle was broken by the present appellants-accused
\nbut not a single piece of broken glass is recovered from the place of
\noffence during the panchnama. Mr Jappee has also read the contents of
\npanchnama and argued that in panchnama small pieces of stones are
\nshown but as per the say of the complainant, there must be some huge
\nquantity of stones but it is not cited in the panchnama and the
\nabsence of stones in the panchnama is not explained by the
\nprosecution. Mr Jappee has also contended that from the contents of
\nEx. 23 and Ex. 30 panchnama and discovery panchnama, it appears that
\nduring the panchnama the looted articles (papers) are recovered under
\nthe provisions of sec. 27 of the Evidence Act but that panchnama is
\nnot proved beyond reasonable doubt.  Mr Jappee has also argued that
\nlooking to the contents of Ex. 30, discovery panchnama is concerned,
\nthe same is not proved beyond reasonable doubt. He has also contended
\nthat looking to the time of panchnama of scene of offence place Ex.
\n20 is proved, but the time of panchnama  is doubtful and in the
\noriginal panchanama, there is some over-writing is made by the maker
\nof panchnama. He has also read the oral evidence of I.O. PW-13 Ex. 39
\nand argued that the complaint was written by him but no statement of
\ncomplainant was recorded and even no preliminary verification was
\ndone by him and straightway complaint was registered and written by
\nthe Investigating Agency. Even the panchnama Ex. 27 is concerned, it
\nwas drawn by the I.O. at Police Station.  Mr Jappee has contended
\nthat from the cross-examination of PW-1 who has admitted that some
\ninvestigation for the offence under the Bombay Prohibition Act was
\npending and other accused are not known to him. Mr Jappee has read
\nthe oral evidence of PW-1 and argued that just to avoid some
\nnegligence committed by PW-1, the present appellants have been
\nwrongly booked in the offence and whole story of the prosecution case
\nis concocted and, therefore, the impugned judgment and order of
\nconviction and sentence deserves to be quashed and set aside.\n<\/p>\n
12.\tMr
\nHL Jani learned APP appearing for the respondent-State has read the
\nimpugned judgment and order of conviction and sentence passed by the
\nlearned Judge and also read the oral as well as documentary evidence
\nproduced on record. Mr. Jani has read the oral evidence of panch
\nwitness also. He has argued that the contents of discovery panchnama
\nis proved beyond reasonable doubt. He has also argued that the oral
\nevidence of PW-1 who is a Police Head Constable and no animosity \tis
\nestablished by the defence and only due to the police is evidence
\ncannot be discarded. Looking to the scene of offence place, there may
\nnot be other independent witnesses and, therefore, only the evidence
\nof PW-1 is required to be considered and the impugned judgment and
\norder of conviction and sentence is required to be confirmed.\n<\/p>\n
13.\tI
\nhave gone through the oral as well as documentary evidence produced
\non the record. I have read the oral evidence of prosecution
\nwitness-complainant and also perused the charge framed against the
\nappellant. I have also perused ingredients of sec. 27 of the Evidence
\nAct as well as the probabilities of the defence. During the perusal
\nof the panchnama of scene of offence, it appears that time of the
\npanchnama is changed and further from the cross-examination of PW-1
\nis concerned, his evidence is not reliable in toto and the probable
\ndefence is concerned, it is the case of the appellants that just to
\navoid negligence of the Police Head Constable   complainant, he has
\nbooked all the appellants-accused in the said offence, but there is
\nno direct evidence is produced on record. It is true that from the
\nperusal of the papers, it appears that no direct evidence is produced
\nin support of the oral and documentary evidence of PW-1. Even from
\nthe panchnama of scene of offence place is concerned, the contents
\nshows that the story of the prosecution is not proved beyond
\nreasonable doubt and there was no recovery of stones. Even in the
\npanchnama, it is not stated by the prosecution that as per the say of
\nthe complainant, there were some stones which were present at the
\nplace of offence. I have perused the whole oral evidence and it
\nappears that no medical evidence is produced in support of the
\nprosecution case because as per the say of the complainant, he has
\nreceived any injury, which is not possible. In that view of the
\nmatter, both the appeals require to be allowed and the impugned
\njudgment and order of conviction and sentence deserves to be quashed
\nand set aside.\n<\/p>\n
15.\tIn
\nthe result, both the appeals are allowed. The impugned judgment and
\norder of conviction and sentence dated 7.4.2003 passed by the learned
\nFast Track Judge, Modasa in Sessions Case No. 97\/2002 is hereby
\nquashed and set aside. The appellants-accused are hereby acquitted of
\nall the charges levelled against the. Fine if paid, be refunded to
\nthe appellants. Bail bond stands cancelled. R & P to be sent back
\nto the trial court forthwith.\n<\/p>\n
(Z.K.SAIYED,
\nJ.)<\/p>\n
mandora\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Armesh vs The on 27 December, 2010 Author: Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-244948","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nArmesh vs The on 27 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/armesh-vs-the-on-27-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Armesh vs The on 27 December, 2010 - 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