CR.A/1323/1986 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1323 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant Versus SARDARSINH JAWANSINH PARMAR - Respondent ========================================================= Appearance : MR SP HASURKAR ADDL PP for Appellant : 1, MS SADHANA SAGAR for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 07/07/2008 ORAL JUDGMENT CR.A/1323/1986 2/6 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal is filed by the State of Gujarat against the acquittal recorded by learned Additional Sessions Judge, Himmatnagar at Sabarkantha in Sessions Case No. 34 of 1986. 2. The accused Sardarsinh Jawansinh Parmar was chargesheeted for the offences punishable under Sections 323, 332, 302, 392 of Indian Penal Code. After trial, learned trial Judge was of the opinion that the prosecution has not been able to prove the guilt home the charges and acquitted the accused respondent by his judgment and order dated 5.7.1986. 3. The prosecution case was that, on 14,3,1985, Kalusinh Mulsinh – complainant was driving the State Transport Road Corporation Bus No. GRT- 7166 and was plying the said Bus on the route towards Modasa, where this bus was halted at Mardia Bus stand. It is alleged that the accused, at that time, gave blow on right leg of the driver and threw him out of the bus and driven away the bus. The incident is alleged to have taken place at about 10-30 hour. From 10-30 hrs. to 13-40 hrs. accused kept on driving the bus and went towards village Charanwala. Thereafter, the complainant went to the police station. Thereafter, the complainant, along with police personnel, chased the bus. It is alleged CR.A/1323/1986 3/6 JUDGMENT that when the accused was driving the bus and there was a chase, accused did not pursue and kept on pursuing in his own way. It is also alleged that during the process of chasing, gun- shot was fired on the tyres of the bus and the tyres were burst. Despite the tyres got burst, the accused continued to drive the said bus on rims and at one point of time, when he was encircled by police personnels, he deliberately drove the bus over one police personnel and crushed him under the wheels. Thereafter, using force, he was caught on the spot and complaint was registered and accused was arrested. 4. In support of prosecution, witnesses were examined and after considering the ocular testimony and the record, the learned trial Judge was of the opinion that no offence under Section 302 of the IPC was established and there was no intention of the accused to kill any personnel. At the best, his intention was to take away the bus, yet, he did not even believe story of the prosecution regarding taking away bus by the accused. Identification of the accused from the spot, when he was arrested, was not found to be established by the witnesses and therefore, the learned trial Judge passed an order of acquittal on all the charges leveled against the accused. 5. Following witnesses were examined by the CR.A/1323/1986 4/6 JUDGMENT prosecution:- (i) Kanubhai Maganbhai (ii)Jivaji Sukaji (iii)Bachubhai Surjibhai, (iv)Bhurabhai Kavsibhai (v) Shri Tokham Bahadursinh (vi) Ummedsinh Dalapsinh Vaghela. 6. According to the trial court, none of these witnesses was in a position to depose that the accused was caught red handed. The trial Judge was also of the opinion that the accused was caught on the spot, this fact having not been proved, he recorded acquittal of the accused. 7. We have perused the records and proceedings and after thoughtful consideration, we are of the view that Section 302 has rightly not been proved and finding to that effect of the trial Judge is right. 8. From the record, it transpires that accused had driven out the bus driver forcefully and injured the persons but his intention was not to kill anyone and it was only in a melee, which was created by the prosecution witnesses to catch hold of the accused and to escape from that, he has rushed the bus towards the police personnel and therefore, he had no intention to kill the person but to escape from the place. CR.A/1323/1986 5/6 JUDGMENT 9. However, if we take note of the testimony of PW- 10- Bachubhai Surjibhai, he said that the DSP has caught the accused person red-handed, whereas, from the testimony of PW-27 – Dy.S.P. Tokhram Bahadursinh Yadav vide Exh. 20 and PW-20 – Babubhai Maganbhai Darji, they established that accused Sardarsinh taking away the bus and thereafter chasing the said bus, they caught hold of the driver. Perusing the entire evidence, it transpires that the accused had taken away the bus of the S.T. Corporation and therefore, offence under Section 392 of the IPC is conclusively proved and it can be said that findings of the trial Judge with regard to offence punishable under Section 392 was wrongly not held against the accused and consequently, offence punishable under Section 332 of the IPC i.e voluntarily causing hurt to deter public servant from his duty, is also made out. Accordingly, it is held that the prosecution has succeeded in proving the offences punishable under Sections 332 and 392 of the IPC and to that extent, the learned trial Judge has erred in acquitting the accused and therefore, we set aside the said findings so far as offences punishable under Sections 332 and 392 of the IPC and offences punishable under Sections 323 and 302 of the IPC are not established and therefore, the acquittal qua that sections is not disturbed. CR.A/1323/1986 6/6 JUDGMENT 10.Accordingly, the accused is convicted for the offences punishable under Sections 332 and 392 of the IPC. From the record, it transpires that the incident in question has happened on 14.5.1985 and the accused was not released on bail till he was acquitted by the learned trial Judge on 5.7.1986. Thus, the accused is in jail for 1 year and 140 days as an under trial prisoner. We are in the year 2008 and at this stage, by efflux of time and when the accused has settled in his life, we thought it fit that as the accused had undergone punishment from 14.5.1985 to 5.7.1986 i.e. 1 year and 140 days as an under trial prisoner, he is ordered to sentence already undergone. Consequently, acquittal against accused is partly allowed and the accused is hereby convicted under Sections 323 and 392 of the IPC and is ordered for sentence already undergone. 11.Accordingly, the Criminal Appeal is partly allowed. Office is directed to send the record and proceedings to the trial Court forthwith. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) pallav