CR.A/1669/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1669 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 ? ========================================================= PRAKASH @ POKAL RATNARAM VISHNOI - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR DM AHUJA for Appellant(s) : 1,MR DK NAKRANI for Appellant(s) : 1, MR LR PUJARI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 25/08/2008 ORAL JUDGMENT 1. The appellant convict-prisoner has preferred the present appeal against the judgment and order of conviction and sentence dated 30.6.2006 passed by the learned Addl.Sessions Judge, Presiding Officer, 5th Fast CR.A/1669/2006 2/13 JUDGMENT Track Court, Surat, in Sessions Case No. 164 of 2002 whereby the learned Judge has convicted the present appellant-accused for offences punishable under Sections 395, 102(B) and 114 of IPC and sentenced him to undergo rigorous imprisonment of five years and to pay a fine of Rs.2,000/-, in default, to further undergo simple imprisonment of fifteen days. 2. The prosecution case, in nutshell, is that : The complainant Harishbhai Mohanbhai Patel (PW-1) was residing at the Vadi of Nandu Doshi of Katargam, Dist.Surat. He along with his elder brother Rameshbhai and younger Batukbhai were running the business of brokerage as well as running diamond polishing factory and 20-25 persons were working. There were 7 diamond cutting machines working in the factory. The factory starts working from 7.30 a.m. to 8.30-8.45 in the night. According to the prosecution case, the incident took place on 7.1.2001, at about 9.15 p.m., when the complainant and his elder brother were engaged in keeping the finished and unfinished diamond packets in the cup-board after the assessment and locking the shutter of the factory, some 5-6 persons who were working in the factory, came there and caught hold of the complainant and his brother and accused Bheram Marwadi gave a hammer blow on the CR.A/1669/2006 3/13 JUDGMENT head of the elder brother of the complainant and blood was oozing and the complainant was also given a blow on his nose with the hammer and blood was oozing from the nose. Accused Prakash (appellant herein) was having a knife and by pointing the said knife towards the complainant, they were led to walk into the office. The accused told the complainant in Hindi as well as in Gujarati to hand over the diamonds, lest, they will be killed. Two unknown persons were there with them, having long knife. The complainant and his brother were led upto the cup-board and asked them to open it and told the unknown persons to take out the Pistol. The complainant told them that they will give everything to them. Thereafter, after opening the cup-board, the accused took out the diamond packets and put it in their bag. They also took out the bundle of Rs.50,000/- and put in their bag and after disconnecting the telephone wire, the faces of the complainant and his brother were wrapped with cloth and tied with rope and all of them went away. Thereafter, the complainant and his brother shouted for help. Some persons came there and the complainant gave the telephone number of his younger brother Batukbhai, who in turn, on getting the information, came with police. PW-1 Harishbhhai CR.A/1669/2006 4/13 JUDGMENT lodged the complaint before the Katargam Police Station and the offence was registered as Katargam Police Station I-CR No.8 of 2001 against the accused persons for the offence punishable under Section 395 of IPC. 2.1 During investigation, the panchnama of scene of offence was drawn in presence of panchas. FSL Experts were called on the spot and they collected the blood stained clothes and weapons, and collected the blood by the piece of cotton from the soil, the rope used to tie the complainants as well as the bed sheet and two towels, which were treated as muddamal. Yadi was sent to Medical Officer for collecting the blood and the Medical Officer collected the blood and the sample was sent to FSL. The other muddamal articles were also sent to FSL for analysis. The necessary panchnama was also drawn during the investigation. The statements of the witnesses were also recorded during investigation. At the end of investigation, the charge sheet was filed against the appellant- accused along with other absconding accused persons for the above referred offence. 2.2 The learned JMFC committed the said case to the Sessions Court under Section 209 of the Cr.PC as he CR.A/1669/2006 5/13 JUDGMENT has no jurisdiction to try the offence under Section 395 of IPC. 2.3 The learned Sessions Judge framed the charge for the above referred offences against the present accused which is at Exh.10. The accused pleaded not guilty of committing the crime and claimed to be tried. 3. To prove its case, the prosecution has examined the following witnesses: (1)PW-1 Haribhai Mohanbhai Patel – Exh. 14. (2)PW-2 Rameshbhai Mohanbhai – Exh.17 (3)PW-3 Babubhai Jivrajbhai – Exh.18 (4)PW-4 Laxmanbhai Virabhai – Exh.21 (5)PW-5 Bhikhabhai Karsanbhai – Exh.23 (6)PW-6 Kanjibhai Pasabhai – Exh.25 (7)PW-7 Ravtabhai Chamnaji – Exh.24 (8)PW-8 Dalsukhbhai Motibhai Parghi – Exh.26 (9)PW-9 Abdulrashid Mahmad Yusuf Ansari – Exh.27. (10)Jivanbhai Vastaram Desai – Exh.36. 4. The prosecution has also relied upon the following documentary evidence: (1) Original complaint – Exh.16 CR.A/1669/2006 6/13 JUDGMENT (2) Panchnama of Scene of offence – Exh.19 (3) Panchnama of muddamal collected from the scene of offence – Exh.20 (4) Panchnama of seized diamonds – Exh.22 (5) Visit made by the FSL officers of the scene of offence – Exh.28. (6) Forwarding register – Exh.29 (7) Letter with respect to FSL Report – Exh.30 (8) FSL Report – Exh.31 (9) Statement of FSL Serology investigation- Exh.32 (10) MLC case papers of Rameshbhai Mohan– Exh.33 (11) Statement of Registration of offence by Police Station -Exh.34. 5. Thereupon, the learned APP submitted a closing purshis. The Sessions Court recorded statement under Section 313 of Cr.PC of the accused and submitted that the accused has stated that a false case is filed against him and he is innocent. He has denied to have committed the crime, refused to examine any witness in his defence. 6. After hearing the arguments of the learned APP as well as the accused, the learned Sessions Judge has convicted the present appellant as referred to in CR.A/1669/2006 7/13 JUDGMENT the first paragraph of this judgment and against which, this appeal has been preferred. 7. Heard learned advocate Mr.M.B.Ahuja appearing on behalf of the appellant and learned APP Mr.L.R.Pujari on behalf of the opponent State. 8. Learned advocate Mr.Ahuja has submitted that the story put forward by the prosecution is not believable as the ingredients for constituting the offence punishable under Section 395 of IPC are not proved by the prosecution by cogent evidence and without considering the same, the learned trial Judge has convicted the present accused for the offence punishable under Section 395 of IPC. It is also submitted by Mr.Ahuja that it has come in the evidence that the shirt with blood stain which was worn by injured Rameshbhai at the time of incident was not recovered by the police though there were blood stains on the shirt. This casts doubt in the prosecution story and the learned Judge has committed an error in convicting the accused. It is also submitted by Mr.Ahuja that any muddamal was recovered from the present appellant accused and from the very beginning itself, it is his defence that he is innocent and has been falsely involved in the CR.A/1669/2006 8/13 JUDGMENT offence. It is further submitted by Mr.Ahuja that the complainant and his brothers were facing financial crisis and with an ulterior motive to get money through the Insurance Company, they have filed the false complaint against the accused. It is also submitted by him that though the younger brother Batukbhai was an important witness, he was not examined by the trial Court and hence, an adverse inference can be drawn against the prosecution and hence the accused should be required to be given the benefit of doubt. 9. Learned APP Mr.L.R.Pujari has submitted that the evidence of complainant Harishbhai as well as the injured victim inspires confidence and is corroborated with the FSL report as well as the evidence of independent witness Nos.6 and 7. It is also submitted by him that immediately the complaint was lodged after the incident took place and as there is no enmity between the accused persons and the complainant, there is no reason to falsely rope the present accused in committing the crime. The Panchnama of scene of offence also supports the case of the prosecution as presence of hammer, pipe, and rope were recovered by the police as muddamal. It CR.A/1669/2006 9/13 JUDGMENT is further submitted by learned APP Mr.Pujari that in cross examination of Harishbhai, specifically he has stated on oath before the Court that they have no insurance of the factory, so there does not arise any question as to get money from the Insurance Company and the false complaint is filed by the complainant. Lastly, it is submitted by Mr.Pujari, learned APP that the learned Sessions Judge has, after appreciating the evidence in great detail, convicted the accused by giving cogent reasons and the appeal deserves to be dismissed. 10. Learned advocate Mr.Ahuja for the appellant accused, took this Court through the oral as well as documentary evidence. As per PW-1 Harishbhai, the present appellant-accused along with other absconding accused were working in the factory and this fact is challenged by the hurt defence. PW-1 Harishbhai has stated before the Court on oath that five to six persons came running while he was locking the shutter of the factory and one person gave a blow of iron pipe on the head of Rameshbhai, brother of the complainant and thereupon, he (complainant) and his brother injured Rameshbhai were taken inside the factory and both of them were tied with rope. This CR.A/1669/2006 10/13 JUDGMENT witness also gave the names of accused persons who have looted the muddamal, in his complaint as well as in his evidence before the Court. Nothing has come out from his cross examination which creates doubt about his statement before the Court. Oral suggestions were put to him in the cross examination and that too because of his debt as to know whether the incident was got-up or to get money from the Insurance Company. The evidence of this witness is also corroborated by the evidence of PW-2, injured witness, i.e. brother of the complainant, Rameshbhai. He has also categorically stated on oath before the Court the manner in which the incident took place and gave evidence and gave the name of the appellant accused and has also identified the present appellant accused before the Court. There is no discrepancy in the evidence of PW-1 complainant and in his evidence as well. The evidence of this witness is trustworthy and inspires confidence. Nothing has come out from the cross examination which creates doubt about his testimony. 11. As per the evidence of the FSL report, blood stains were found on the iron stick and floor of the factory of the injured witness Rameshbhai which also CR.A/1669/2006 11/13 JUDGMENT corroborates and strongly supports the evidence of the complainant PW-1 Harishbhai. It is the case of the prosecution that more than five persons had come and attacked the complainant's brother and looted the complainant and his brother. The learned Sessions Judge has rightly held that as five persons were involved in the crime, all accused are liable for offence punishable under Section 395 read with Sec. 114 and therefore, there is no substance in the argument advanced by Mr.Ahuja that the other accused persons were absconding and till today, they were not arrested and there is no existence of the accused persons and only with an ulterior motive, the present accused person has been falsely implicated in the offence punishable under Sections 395 of IPC. 12. This Court has also gone through the judgment delivered by the trial Court and found that the trial Court has appreciated the evidence in its true perspective and discussed the same at length and then after rightly convicted the accused. There is no reason to interfere with the findings arrived at by the trial Court and the appeal is required to be dismissed. 13. It is submitted by learned advocate Mr.Ahuja for CR.A/1669/2006 12/13 JUDGMENT the appellant-accused that during the trial, the appellant-accused was on bail and no untoward incident has taken place and that this is the first offence alleged to have committed by him. He also submitted that the appellant-accused has to shoulder a heavy liability of maintaining his wife and children and so, he has requested to reduce the sentence as awarded by the trial Court. 14. It is an admitted fact that during the trial, the appellant accused was on bail and no untoward incident has taken place at at the time of incident, he was only 22 years old. It is also true that he has to maintain his family. He is in jail since more than 2 years and his jail conduct is also good. In view of the above, in the opinion of this Court, the sentence as awarded by the trial Court is required to be reduced. 15. In the result, the appeal is partly allowed. The judgment and order of conviction and sentence dated 30.6.2006 passed by the learned Addl.Sessions Judge, Presiding Officer, 5th Fast Track Court, Surat in Sessions Case No. 164 of 2002 is hereby confirmed and so far as the order of sentence is concerned, it is modified to the extent that the period of sentence CR.A/1669/2006 13/13 JUDGMENT of five years as awarded by the learned Judge is modified and reduced to four years. Rest of the order shall remain as it is. The appellant-accused shall be entitled to get the benefit as per the provisions of Section 428 of the Cr.PC. (M.D.Shah, J.) Sreeram.