CR.A/191320/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1913 of 2006 With CRIMINAL APPEAL No. 2221 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= = 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 ? ========================================= = ARVINDBHAI VISHRAMBHAI GUPTA Versus THE STATE OF GUJARAT ========================================= =Appearance : MR YS LAKHANI, SR. ADVOCATE with MR HARNISH V DARJI for the Appellant MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 08/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/191320/2006 2/7 JUDGMENT 1. The present appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad City convicting the present appellant for the offences punishable under Sections 365, 342, 294(b) and 302 of the Indian Penal Code. Rest of the accused Nos. 2 to 4 are acquitted of the charges levelled against them. 2. The case of the prosecution as alleged in the charge framed against the accused is that between 6.6.2005 at 17.00 hours and 7.6.2005 at 9.30 hours, deceased Chirag Soni and the victim Sunil Soni were kidnapped in abatement to each other from Khadiya Patasa Pole and took them in a rickshaw to Amraiwadi and confined them in house No.107, Janta Nagar Society ni Chali and thereby, they have committed the offences under Sections 302, 365, 342, 294(b) read with Section 114 of the Indian Penal Code. It is also alleged that witness Sunil Soni and the present appellant (Accused No.1) were working on the machine used for the purpose of plating the silver. It is alleged that the appellant (A1) brought certain ornaments for plating purpose from witnesses Bhupatbhai Sharadbhai and Shankarbhai which were pledged by witness Sunil Soni with witness Vinodbhai Shah. it is alleged that since witnesses were demanding back those ornaments, the accused have kidnapped Chirag Soni and Sunil Soni and have caused them the injuries by giving fist and kick blows and thereafter, taking them in the open ground of Sarangpur Cotton Mill No.2 at Gomtipur and all the accused have again given them fist and kick blows and also all the accused have caused them the injuries with the sticks and thereby injured Sunil Soni as well as Chirag Soni. It is further alleged that the father of Chirag CR.A/191320/2006 3/7 JUDGMENT (deceased) Bachubhai Soni was pressurized to give Rs.2,000/- for getting those ornaments back and therefore, Bachubhai Soni pledged his golden ring with witness Narendra Shah and taking with him witness one Sanjay Soni on 7.6.2005 paid Rs.2,000/- to the present appellant (A1). Thereupon, on enquiry about Chirag, the appellant (accused No.1) took Bachubhai and Sanjay to the clinic of Dr. Radheshyam Yadav and handed with over in a serious condition to the complainant. The deceased was brought to L.G. Hospital in an unconscious condition where he died during the treatment. With these allegations, the charge is framed and upon not pleading guilty, the accused were tried and resultantly, the present appellant is convicted as aforesaid whereas rest of the accused are acquitted. 3. This Court has been taken through the deposition of all the witnesses and the documentary evidences. The star witness Sunil Soni does not support the case of the prosecution. Likewise, Dr. Radheshyam Yadav at whose dispensary, it is said that Chirag Soni (deceased) was treated has also not supported the case of the prosecution. Sanjay Soni, who accompanied the complainant Bachubhai Soni for the purpose of making payment of Rs.2,000/- for getting Chirag (deceased) released, has also not supported the case of the prosecution. It is worth noting that though the incident of confinement of deceased at Amraiwadi in house No.107 of Janta Nagar Society ni Chali and the open ground of Sarangpur Cotton Mill No.2, being the public place, no witness has been brought on record to substantiate the story narrated by the prosecution. There is no evidence on record to show as to who caused injuries to deceased Chirag. The case of the CR.A/191320/2006 4/7 JUDGMENT prosecution seems to be that Hitesh (A2) has caused two blows of stick on the back of the deceased and two of the blows of stick on the leg of the deceased. Similarly, as per allegations made by prosecution, Prem Singh alias Pappu is stated to have given two blows of stick on the back of witness Sunil and a blow with the stick on left hand as well as left leg. It is also alleged that the present appellant and one unknown person has caused injuries by kick and fist blows to the deceased and witness Sunil. However, Sunil has not supported this theory of prosecution, but has narrated a totally different story when his statement was recorded by the police which is proved in the examination of the police officer. As per the original version of witness Sunil, there was a quarrel took place between himself and Chirag (deceased) and both of them were beaten by the public of the society where the incident occurred. Even the medical certificate of witness Sunil produced at Exh.31 speaks of the beating took place at the hands of the opposite party. In any case witness Sunil though a star witness of the prosecution did not support the theory of he himself and the deceased having received the injuries at the hands of any of the accused including the present appellant (A1). here are no other witness who support the case of the prosecution about any of the accused causing any injury to the deceased and witness Sunil. There has to be a direct and substantive evidence showing the overt act on the part of the accused which is completely missing in the present case. 4. Surprisingly, certain documentary evidences were sought to be produced by the prosecution particularly the certificate Exh.51 to show that complainant Bachubhai has pledged his CR.A/191320/2006 5/7 JUDGMENT golden ring with Tarachand Shah and a chit allegedly written by present appellant (A1) Exh.52 only in the deposition of complainant Bachubhai and they were not made part of the charge sheet nor his documents was seized by drawing a panchnama. It is also pertinent that the learned Trial Judge without there being any evidence has proceeded to compare the handwriting of appellant No.1 by asking him to write similar chit in the court and has come to the conclusion that it is the handwriting of appellant (accused No.1) and thereupon has proceeded to hold him guilty for all the offences alleged against him. No attempt was made on the part of the Investigating Agency to either seize such documents, make a part of the charge sheet and to send the same for opinion of the handwriting expert. Thus, such an exercise was not warranted as is done by the Trial Court. 5. The appellant (accused No.1) produced certain documentary evidence in his defence and also has got one witness examined as his defence witness to point out that he is a practicing advocate and he was appointed as Court Commissioner in one case by the learned Member of the Board of Nominees and he has tried to put forward the defence of alibi. The said defence of alibi is not believed by the Trial Court. Since this Court holds that there is no evidence of confinement of the deceased and the witness Sunil at Amraiwadi Jantanagar Society's Chali at House No.107 and further that there is no evidence as to who caused the injuries to the deceased out of the four accused and when rest of the three accused are acquitted for the charges levelled against them, the present appellant is required to be acquitted of the charges under Sections 302, 342 and 294B of the Indian Penal Code. CR.A/191320/2006 6/7 JUDGMENT 6. In the facts of the case, however, it is proved beyond doubt that deceased Chirag Soni was removed from his house by or at the instance of appellant as he was the only interested person to get the silver ornaments back from witness Sunil Soni and with a view to pressurize witness Sunil Soni, Chirag Soni (deceased) was sought to be made an instrument. This Court agrees with the findings in this regard given by the trial Court. The theory of "last seen" (not the theory of "last seen together") is sought to be relied upon by the trial court to come to the conclusion that deceased Chirag was removed from his house on 6.6.2005 after about 5.30 pm and it is only the appellant who could be said to have taken Chirag Soni with a view to pressurize him to find out Sunil Soni from whom the silver ornaments were required to be taken out. Thus, having regard to the facts and circumstances of the case this Court confirms the conviction of the appellant under Section 365 of the Indian Penal Code. However, we maintained the conviction under Section 365, the sentence imposed upon him of 3 years is reduced to the period already undergone as he is already in jail for a period over 2 years and instead of directing to serve out remaining period of imprisonment, it would be expedient and in the interest of justice to release him on probation of good conduct. 7. In the result, the appeal is partly allowed. The judgment and order of conviction and sentence passed under Sections 302, 342, 294B of the Indian Penal Code is set aside. Fine, if paid, be refunded to the appellant. However, the conviction and order of sentence passed under Section 365 of the Indian Penal Code is maintained. CR.A/191320/2006 7/7 JUDGMENT 8. It is submitted that the appellant-convict has remained in custody for a period of over two years. Considering the peculiar facts of the case, nature of the offence and the character of the appellant, we are of the opinion that it would be expedient and in the interest of justice to release the appellant on probation of good conduct instead of directing him to serve out the remaining period of imprisonment. Accordingly, we direct release of the appellant on his entering into a bond with one surety of Rs.20,000/-. The appellant is directed to keep peace and be of good behaviour during this period of probation. The appellant be released, if not required in any other case. 9. As the appeal, being Criminal Appeal No.1913 of 2006, is partly allowed, the State appeal, being Criminal Appeal No.2221 of 2006, preferred against the acquittal is dismissed. Bail bonds, if any, stand cancelled." (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar