CR.A/2313/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2313 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= SHRI RAMKUMAR RAMSEVAK GUPTA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HR PRAJAPATI for Appellant. Mr.K.P.Raval, APP for Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 14/08/2008 ORAL JUDGMENT 1. Instant appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment rendered by the learned Addl. Sessions CR.A/2313/2006 2/10 JUDGMENT Judge, Court no.7, Ahmedabad, in Sessions Case no.375/2004 whereby the learned Addl. Sessions Judge has convicted the appellant (i) for the offence under Section 379 of the Indian Penal Code and sentenced to suffer imprisonment for three years and fine of Rs.10,000/-, in default, R.I. for three months and (ii) for the offence under Section 328 of the Indian Penal Code and sentenced to suffer imprisonment for five years and fine of Rs.5,000/-, in default, S.I. for six months. The sentences were ordered to run concurrently and the benefit of set off was also given. 2. The short facts giving rise to the present appeal are stated hereinbelow: 2.1 The complainant Premprakash Jayshriprasad Kori, was residing at the farmhouse of one Hiteshbhai Patel and he was doing the work of gardening there for which he was paid Rs.1500/-towards salary. The incident of loot took place on 4-11-2003 when the complainant came from,Sanand Railway Station to Ahmedabad and alighted at platform no.2, with three bags of luggage at about 4.30 p.m. for boarding a train for his native place U.P. At that time, a man CR.A/2313/2006 3/10 JUDGMENT present at thestation came to the complainant and inquired of him as to where he was going to which the complainant replied that he wanted to go to Faizabad. That man then told the complainant that he was also going with his family to Faizabad. Then, that man (the accused) lifted the bag of the complainant and both of them came out from the Musafirkhana Then the accused told the complainant that he will go and buy the ticket and so the complainant gave Rs.240/-for purchasing the ticket of Sabarmati Express from Ahmedabad to Faizabad. After purchasing the ticket, the complainant and the accused came to platform no.2 to board Sabarmati Express at about 7.30 p.m. It is the case of the complainant that there the accused put a handkerchief over the neck of the complainant and got him to smell the same whereupon the complainant became unconscious. After about one and a half hour when the complainant woke up he found that Sabarmati Express train had left and that Rs.5,500/- from his suitcase, Rs.4000/- from his pant pocket and the train ticket were missing.The complainant then realized that the accused had looted him. The complainant then stayed at Ghuma and rang up to his CR.A/2313/2006 4/10 JUDGMENT relative one Mr. Surjit and the said Mr. Surjit on the the next day i.e. 5-11-2003 from whom the complainant borrowed some amount and travelled to Dharampur U.P. on that very day by Sabarmati Express. On 29-1-2004, he returned from U.P. and lodged a complaint at Kalupur Railway Station against an unknown person(the accused) on that very day for the offence punishable under Sections 328 and 394 of the Indian Penal Code which came to be registered as Criminal Case no.51 of 2004. Investigation was carried out. The present appellant was arrested by the police under Section 122 of the Bombay Police Act and during his interrogation it was found that the present appellant had looted the complainant.The handkerchief which was alleged to be put on the neck of the complainant by the accused was recovered and the statements of some witnesses were recorded.On completion of the investigation chargesheet was filed for the offence punishable under Sections 328 and 394 of the Indian Penal Code. On the basis of the chargesheet Sessions Case no.375/2004 was registered against the appellant. As the learned trial Judge had no jurisdiction to try the case, the case was CR.A/2313/2006 5/10 JUDGMENT commited to the Court of Sessions by an order under Section 209 of the Criminal Procedure Code. The learned Sessions Judge framed charge Exh.3 against the present appellant-accused for the above referred to offences. The accused pleaded not guilty to the charge and claimed to be tried. 3. To prove its case against the present appellant- accused the prosecution has examined in all nine witnesses, namely, PW1 Prem Prakash Jayshriprasad Kori(complainant) at Exh.8, PW 2 Sabirhussain Ibrahimbhai Maniyar (Panchwitness) at Exh.10, PW 3 Mohd. Yunus Abbasbhai Mansuri (Executive Magistrate) at Exh.11, PW 4 Murti Hiralal Telugu (Panchwitness)at Exh.14, PW 5 Deepakbhai Shankarbhai (Panchwitness)at Exh.15, PW 6 Kulsinh Gandaji Bariya (Head Constable)at Exh.18, PW 7 Pritamlal Kashiram Gupta(Panchwitness) at Exh.23, PW 8 Farookbhai Badarali Saiyed (Panchwitness) at Exh.24, PW 9 Kaushik Dinkarrai Pandya (I.O.) at Exh.27 and closing Purshis at Exh.36. 4. The prosecution has also produced mainly the following documentary evidence – complaint Exh.28, Panchnama of handkerchief produced by the accused CR.A/2313/2006 6/10 JUDGMENT dated 29-1-2004 at Exh.30, Copy of Yadi and Panchnama of T.I.Parade at Exhs. 12 and 13 respectively, FSL receipt alongwith its opinion with covering letter dated 16-4-2004 at Exh.34, letter of FSL from Addl. Director, Narcotics Department dated 3-2-2004. 5. At the conclusion of the trial, further statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure,1973 in which the accused took the plea that he was innocent and has been falsely involved. 6. On appreciation of the oral as well as documentary evidence on record and after hearing the learned A.P.P. as well as the Advocate for the defence, the learned Sessions Judge held that it was proved by the prosecution that the present appellant- accused has committed the offence punishable under Sections 328 and 379 of the Indian Penal Code, and therefore, passed the judgment and order of conviction and sentence as stated in para-1 of this judgment. 7. This Court has heard Mr.H.R.Prajapati for the appellant and learned A.P.P. Mr. K.P. Raval for the State. CR.A/2313/2006 7/10 JUDGMENT 8. Learned Counsel Mr. Prajapati took this Court through the oral as well as documentary evidence on record. It is an admitted fact that the complainant had lodged the complaint after 11 weeks from the date of the incident. No satisfactory explanation has been tendered by the complainant for the delay in filing the complaint. As per the evidence of the complainant , he was staying on the day of incident at village Ghuma and on the next day after receiving money from Surjit, he came to Kalupur Railway Station and went to his native on 5-11-2003. In spite of this, the complainant had not chosen to lodge the complaint during the said period of stay at Ghuma. As per the evidence of the Investigating Officer PW 9 Exh.27 Mr. Kaushik Dinkarrai Pandya the present appellant was arrested under Section 122 of the Bombay Police Act and during the interrogation of the present appellant-accused, he came to know that the present appellant-accused had committed the loot of the complainant on 4-11-2003. Except the statement of the present appellant-accused before the Investigating Officer, no other evidence is produced by the prosecution which connects the present appellant- CR.A/2313/2006 8/10 JUDGMENT accused with the commission of the loot in question. It is also pertinent to note that Exh.36 is the Purshis filed by the learned A.P.P. before the Addl.City Sessions Judge on 5th May, 2006 in which also it is specifically mentioned that papers of the case which was registered under Section 122(c) of the Bombay Police Act are not traceable and not available , and hence, the said case papers were not produced before the learned Sessions Court. So far as the currency notes are concerned, the complainant has not given any description of these currency notes and so it is difficult to believe that the currency notes which were recovered from one Kishanlal Gupta were the same. Exh.25 is the Panchnama of the recovery of the said amount of Rs.2500/-. It is crystal clear from the Panchnama that one Santosh Kishanlal Gupta produced the said amount by saying that the accused Ramkumar Ramsevak Gupta had given the amount to him. Except this evidence and that of the Investigating Officer, there is no evidence on record which connects the accused with the crime. As far as the evidence of T.I. Parade is concerned, it is of no use as there is no other substantial evidence which CR.A/2313/2006 9/10 JUDGMENT connects the appellant-accused with the crime. Only on the basis of the evidence of the Investigating Officer, the present appellant was convicted by the trial Court. As discussed above, no plausible explanation has been given by the complainant for the long delay in filing of the complaint which, in my opinion, is fatal to the case of the prosecution. In the case of Shankarlal vs. State of Rajasthan reported in (2004)10 SCC 632, the Honourable Apex Court has held that if long delay is not explained in filing the complaint, it creates doubt as to the genuineness of the prosecution case. In this case also as discussed above, though there was all the the time in the world for the complainant to lodge complaint at Ahmedabad Railway Station or at the Police Station at the earliest while he was in Ghuma or Ahmedabad two days after the incident, he had failed to do so and had filed the complaint after a long period of 2 months and 21 days of the incident which is fatal to the case of the prosecution and cannot be made the basis for conviction. 9. In light of the aforesaid discussion, I am of the view that the trial Court has materially erred in CR.A/2313/2006 10/10 JUDGMENT convicting the appellant-accused placing reliance merely on the evidence of the Investigating Officer. In that view of the matter, I am unable to sustain the impugned judgment and order of conviction dated 5-7-2006 passed against the appellant-accused. 10. In the result, the appeal succeeds and is allowed. The judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad in Sessions Case no.375/2004 is set aside. The appellant is acquitted of the charge framed against him. The appellant-accused is ordered to be set at liberty forthwith, if not required in any other case. (M.D.Shah,J.) lee.