CR.A/61/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 61 of 2005 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 ? ========================================================= MINUBHAI ALIAS MANU KANABHAI - Appellant(s) Versus THE STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR JN JADEJA for Appellant(s) : 1, Mr U R Bhatt, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 22/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 26.3.2004 passed by the learned Addl.Sessions Judge, Court No.1, Ahmedabad CR.A/61/2005 2/10 JUDGMENT City, in Sessions Case No.46 of 2003 whereby the learned Addl.Sessions Judge convicted the appellant- original accused for the offences punishable under sections 328 and 394 of IPC and sentenced to suffer R.I. for five years and fine of Rs.1000/-, in default, R.I for two months for offence punishable under section 328 of IPC. The appellant was sentenced to suffer R.I for 5 years and fine of Rs.1000/-, in default, R.I for two months. The above sentences were ordered to run concurrently. Brief facts of the prosecution case is as under: 2. The complainant, Prembharti Guruharibharti was travelling in a local train from Ahmedabad to Botad on 5.10.2002. As luggages, he was having a trunk (iron box) and a tape recorder-cum-radio, cassettes and some other goods were inside the box. It is alleged that, in the train, some intoxicating substance was mixed with tea and the said tea was offered to the complainant by a co-passenger (present appellant-accused). After having the tea, the CR.A/61/2005 3/10 JUDGMENT complainant became unconscious and thereafter, the luggages were taken away by the accused. When the train reached at Botad, he regained consciousness and he found that his luggages were missing. When got down from the train, he came to know from newspaper 'Gujarat Samachar' that by adopting the above method of offering tea with intoxicants, passengers were looted and the accused was arrested in that connection. So he lodged a complaint on 15.10.2002 before the Investigating Officer, Ahmedabad railway station and on the basis of the said complaint, offence was registered as AR.I 201/2002. During the investigation, Identification Parade was held through Executive Magistrate and panchnama to that effect was also prepared which is at Exh. 16. The complainant identified the accused during the T.I. Parade. During the investigation, statement of the relevant witnesses were recorded as well as panchnama were prepared and at the end of the investigation, charge sheet was filed for the offences punishable under section 328 and 394 of IPC. As the trial court has no jurisdiction to try the case for offence under section 394 of IPC, vide order dated 22.1.2003, the CR.A/61/2005 4/10 JUDGMENT case was committed to the Sessions Court under section 209 of the Criminal Procedure Code. Charge was framed for offences under section 328 and 394 of IPC which is at Exh.1. As the accused denied the charges, trial was commenced. To prove its case, the prosecution has examined the following witnesses: i. PW 1 Pradeepbhai Kadam, Medical store owner Exh.7 ii. PW2 Prembharti Sadhu,complainant Exh.9 iii.PW 3 Karsanbhai Koli Patel,panch Exh.11 iv. PW 4 Vithaldas K Acharya, Witness Exh.13 v. PW 5 Jaswantbhai Patel,Ex.Magistrate Exh.14 vi. PW 6 Khodabhai Vala, Rly.employee Exh.18 vii.PW 7 Dipakbhai Vyas, PSI Exh.20 The prosecution has also produced the following documents: i. Complaint of Prembharti Sadhu Exh.10 ii. Panchnama of Muddamal Exh.12 iii. panchnama of T.I. Parade Exh.16 Thereupon statement of accused under section 313 of the Criminal Procedure Code was recorded in which he submitted that false case was filed against him. He denied to examine himself and also denied to examine any witness in his defence. CR.A/61/2005 5/10 JUDGMENT 3. After hearing the learned advocate for the parties, the Sessions Court has convicted the accused as mentioned in para 1 of the judgment. 4. Heard Mr J.N. Jadeja, learned advocate for the appellant and Mr U.R. Bhatt, learned APP for the respondent-State. Mr Jadeja, learned advocate for the appellant has taken this court to the entire evidence on record. He submitted that no muddamal was recovered from the accused. He also submitted that there was considerable delay in filing the complaint which is fatal to the case of the prosecution. It is also argued by him that no evidence has come on record which suggests that the accused administered intoxicants in tea and because of taking tea, the complainant became unconscious. He also argued that the unattended muddamal-luggage was received by the railway employee, PW 6, from the train and as it was not claimed by anybody, it was handed over to Dandhuka railway police. After preparing panchnama, CR.A/61/2005 6/10 JUDGMENT the said muddamal was recovered by the police which clearly suggests that no case is made out against the accused. Hence the prosecution has failed to prove its case beyond reasonable doubt. 5. Mr U R Bhatt, learned APP supports the judgment and order passed by the trial court. He submitted that the Appellate Court should not interfere with the findings arrived by the trial court as after appreciating the evidence on its part, the court has come to the conclusion, and therefore, the present appeal deserves to be dismissed. 6. This court has gone through the entire evidence on record. It is an admitted fact that no muddamal was recovered from the accused to connect the accused with the crime. It is also an admitted fact that on 5.10.2002, the incident took place and the complainant had not lodged any complaint till 15.10.2002. The evidence of PW 6, Khodabhai Lavjibhai Vala is very important in this case. As per the evidence of this witness, he was serving in Dhandhuka railways since 8 years. He is residing in CR.A/61/2005 7/10 JUDGMENT Rannpur railway colony. As per his evidence, on 5.10.2002, he had gone to Gandhigram railway station for donating blood in a blood donation camp. After donating the blood, he travelled in the train in which the complainant was also travelling. As per the evidence of this witness, he was sitting in the coach which is just immediately next to the engine. This witness stated that he noticed one trunk (iron box) lying in the train. He enquired about the said box with other passengers who were travelling in the said coach. Nobody claimed the said luggage and so he handed it over to the Station Master at Dandhuka railway station. Even if we believe the evidence of PW 2, Prembharti Sadhu, then also nothing has come out from the evidence which connect the present accused with the crime. He simply said that after taking tea, he was having headache and became unconscious and he fell down and thereupon the present accused person has taken away his luggages. As per the evidence of this witness, when he reached Dandhuka police station, he regained consciousness and he found that his luggage was looted by some person. This witness specifically stated that he CR.A/61/2005 8/10 JUDGMENT received the muddamal from the police. 7. As discussed above, the evidence of PW 6 clearly shows that the said muddamal was handed over by PW 6 as it was lying unclaimed, to Dandhuka police station. Even if assuming that the accused person offered tea to the complainant with intoxicating substance, his intention would be to take away the muddamal from the complainant. But on the day of 5.10.2002, the said muddamal was handed over by PW 6 to the Dhandhuka police station. So it is crystal clear that the accused had not stolen the said muddamal of the complainant and subsequently it was handed over by PW 6 as it was lying in the coach unattended and unclaimed. 8. As per the evidence of PW 1, Pradipbhai Kadam, owner of the medical store, he was interrogated by Ahmedabad police regarding selling of certain drugs. According to his evidence, the police had asked as to whether those medicines were sold by him to the present accused or not. He told the police that he had sold the medicine CR.A/61/2005 9/10 JUDGMENT (lorapoison). In cross examination this witness specifically stated that he had not issued any bill to the said person. Even if assuming that the accused purchased the medicine from the shop of PW 1, it cannot be said that it was mixed with tea and the said tea was offered by the accused to the complainant and the complainant became unconscious. No doubt, in this case, the complaint was lodged after 10 days and so no medical examination has been carried out by the complainant and by the Doctor and it is not proved that the accused had administered intoxicating substance in tea to the complainant. From the original record, it is found that the accused was arrested by the police in connection with some other offence and thereafter he was arrested in the present crime. In view of the fact that no muddamal was recovered from the accused and as the complaint was lodged after 10 days, then doubt is created about the story put forward by the prosecution and so benefit of doubt should be given to the accused. The learned trial Judge has not appreciated the evidence in its true perspectives and only on relying on the evidence of the I.O., which is CR.A/61/2005 10/10 JUDGMENT also of not much help to the case of the prosecution, convicted the accused and by that committed grave error. 9. In the result, the appeal is allowed. The accused is acquitted of the charges levelled against him for the offences punishable under sections 328 and 394 of IPC. Bail bonds stand cancelled. Fine, if any, paid by the accused shall be refunded. As far as the muddamal is concerned, the order passed by the Sessions Court is not altered. [M.D. SHAH, J.] msp