CR.A/1398/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1398 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= ASHOKKUMAR RAMNARAYAN PANDE - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR SR DIVETIA for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/04/2008 ORAL JUDGMENT 1. The appellant is the original accused. He was convicted for offences punishable under Sections 328 and 394 of the Indian Penal Code by the CR.A/1398/2004 2/6 JUDGMENT learned Additional Sessions Judge, Nadiad, by judgement and order dated 31.7.2004 passed in Sessions Case No. 207/2003. He was sentenced to rigorous imprisonment for five years for each of the offence and also directed to pay fine of Rs. 5000/- each. In default of payment of fine, he was directed to suffer default sentence of simple imprisonment for one year 2. As per charge-exh.3, it was alleged against the appellant that on 29.1.2003, when the complainant had boarded Saurashtra Mail going from Surat to Jamnagar at 12:30 at night, the appellant had befriended him. At 4:15 in the morning at Nadiad Railway Station, the appellant had offered tea and biscuits to the complainant. Upon consumption of the same, the complainant had lost consciousness. Appellant had thereupon robbed him of Rs. 6400/- which the complainant was carrying and thereby committed offences punishable under Sections 328 and 394 of the Indian Penal Code. 3. Dr. Dhananjaising Shyamdevsing Kumar-PW1(exh.5) had treated the complainant on 30.1.2003 at G.G. Medical Hospital, Jamnagar. The complainant had given the history of losing consciousness after consuming tea. He had collected gastric samples from the complainant and sent it for FSL report. 4. Umarbhai Noormohamad-PW2 was examined at exh.8. CR.A/1398/2004 3/6 JUDGMENT He stated that he had boarded Saurashtra Mail at about 1 O' Clock in the night of 29.1.2003 from Surat to go to Jamnagar. He was carrying Rs. 6400/- with him. The accused was in the same compartment. At Nadiad railway station, the appellant had offered tea and biscuits to the complainant. Upon consumption of the same, the complainant felt asleep and reached Okha railway station. When the train returned from Okha to Jamnagar, the Railway employee got him down from the train. In the meantime, his family members had approached the police since he had not returned Jamnagar on time. He was taken to G.G. Hospital and treated there. Rs.6400/- which he was carrying was missing. On 17.6.2003, he was called for Test Identification parade during which he had identified the appellant. 5. Mansukh Govindhbhai-PW3(exh.12) was the Executive Magistrate who had carried out the Test Identification Parade. 6. Raghuvirsinh Ramjubha Jade-PW5(exh.18) was the Head Constable discharging his duties at G.G. Hospital, Jamnagar. He had received Vardhi about the person being brought in sedated condition to the hospital. He had gone to the hospital and noted down the complaint. 7. Kaushik Dinkarrai Pandya-PW6(exh.19) was the Investigating Officer who had carried out the CR.A/1398/2004 4/6 JUDGMENT investigation. 8. From the above evidence on record, it can be clearly seen that the learned Judge committed no error in convicting the appellant for offences punishable under Sections 328 and 394 of the Indian Penal Code. The complainant-PW2 had given clear reliable evidence before the Court about his boarding the train from Surat to Jamnagar, about the appellant befriending him in the train and at Nadiad railway station giving him tea and biscuit, upon consumption of which he lost consciousness. He had given description of the accused in the complaint. He had also give description of the facial features of the accused before the Court. He had also identified the accused in the Test Identification Parade. 9. There is no contradiction extracted by the defence in the cross examination of this witness. No previous enmity between the two is even suggested. Version of the complainant is corroborated by other attendant circumstances. The complainant did not get down at Jamnagar since he was in sedated condition. The train went right upto Okha and when it returned back to Jamnagar, he was made to get down by the railway employee. In the meantime, his relatives had approached the police since he had not reached the home in time. CR.A/1398/2004 5/6 JUDGMENT 10.All these factors further support the prosecution version. Dr. Dhananjaising Shyamdevsing Kumar-PW1(exh.5) also noted history of the complainant having lost consciousness after consumption of tea. He had treated the complainant in the Government hospital on 30.1.2003 when he was brought there. 11.Considering all these aspects of the matter, I find that there was sufficient evidence of reliable nature led by the prosecution to prove the charge against the appellant. No infirmity in the conviction and sentence is thus committed by the learned Judge. Conviction and sentence of the appellant is therefore, required to be confirmed. 12.Learned advocate Shri Divetia however, submitted that the appellant is an extremely poor person and is not under a position to pay fine imposed. In default of payment of fine, he would have to serve out further sentence of two years. 13.Under the circumstances, appeal is disposed of in following terms : 1) Conviction and substantive sentence of the accused for offences under Sections 328 and 394 of the Indian Penal Code are maintained. CR.A/1398/2004 6/6 JUDGMENT 2) Fine of Rs. 5,000/- each for the said two offences is reduced to Rs. 500/- each. In default of payment of fine, the appellant shall serve out simple imprisonment of three months each. 14. With these directions, the appeal is disposed of. (Akil Kureshi,J.) (raghu)