CR.A/445/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 445 of 2000 With CRIMINAL APPEAL No. 980 of 2000 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= OMPRAKASH ALIAS PANDIT KHANDERU PRASAD GAUD - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 445 of 2000 Ms. Banna Datta for Ms. KRISHNA U MISHRA for Appellant(s) : 1 - 2. Ms. Mita Panchal, APP, for the respondent Criminal Appeal No. 980 of 2000 Ms. Sadhana Sagar, for the appellant Ms. Mita Panchal, APP, for the respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/445/2000 2/4 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 12/11/2008 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These appeals are filed against the judgement and order dated 29.2.2000 passed by learned trial Judge, Ahmedabad, in Sessions Case No. 336 of 1998. 2. First Information Report was lodged by the first informant Vidhyaben Jagdishprasad alleging inter alia that her son was dragged out of house during early hours of night by ten persons and assaulted. Out of those ten persons, names of only eight persons were given in the First Information Report. 3. We are hearing the appeals of three accused persons. Out of them, one Omprakash @ Pandit Khanderu is absconding. Therefore, we are not deciding his appeal and his appeal is kept pending. 4. Two appeals pertaining to accused appellants Mohan Ramnath Patel and Harishchandra @ Hario Binda Prasad are decided by this common judgement. 5. Learned counsel for the appellant-accused Mohan Ramnath Patel submitted that though name of Mohan Ramnath Patel was there in the FIR, there is no reason for segregating his case from five persons who have been acquitted at the CR.A/445/2000 3/4 JUDGMENT trial. 6. Per contra: learned APP submitted that those five persons were not the persons against whom eye witnesses alleged participation. The participation is specifically alleged against accused Mohan Ramnath Patel. That being the position, name of the accused is given in the FIR and since learned trial Judge has also assigned reasons, the case of accused Mohan Ramnath Patel is separable from those persons who have been acquitted. Therefore, there being overwhelming evidence on record, we are of the considered opinion that the findings of the learned trial Judge are not required to be disturbed. 7. So far as Harishchandra @ Hario Binda Prasad is concerned, learned counsel submitted that in the array of the accused, in the FIR name of Hario Binda Prasad was not given. His name was subsequently incorporated in the prosecution case. That being the position, inclusion of his name in the case is at a later stage. Learned trial Judge has acquitted five other persons. There appears to be an attempt on the part of the proseuction to over implicate the accused. In that view of the matter, it would be safe to consider that the persons not named in the FIR are not brought to book and are given benefit of doubt. In that back ground, this Court is of the considered opinion that name of Harishchandra @ Hario Binda Prasad having not been included in the FIR and only subsequently included in the array of accused, it would be safe to exclude him from those who have been convicted. In the circumstances, his appeal i.e. appeal No. 980 of 2000 deserves to be accepted. Conviction and sentence of Harishchandra @ Hario Binda Prasad as recorded by learned trial Judge by his CR.A/445/2000 4/4 JUDGMENT judgement and order dated 29.2.2000 in Sessions Case No. 336 of 1998 is quashed and set aside. 8. In the aforesaid circumstances, appeal filed by Omprakash alias Pandit Khanderu is kept pending. Appeal filed by appellant-accused Mohan Ramnath Patel is dismissed because his participation in the offence has been alleged and proved by the evidence of eye witnesses and the trial Court has rightly held him guilty. He should serve out the sentence as awarded by the trial Court. Appeal filed by appellant- accused Harishchandra @ Hario Binda Prasad is allowed. His conviction and sentence is set aside. He should be released forthwith if he is not required in any other case. 9. In the result, two appeals which are taken up to be decided by this common judgement are decided as indicated above. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)