CR.A/2084/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2084 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. 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 ? ========================================= STATE OF GUJARAT Versus NATHABHAI MANENDBHAI ODEDARA & ANR ========================================= Appearance : MR AJ DESAI APP for Appellant MR BALWANT SOLANKI FOR ASHISH M DAGLI for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/01/2008 CR.A/2084/2005 2/9 JUDGMENT ORAL JUDGMENT: (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Additional Sessions Judge, 7th Fast Track Court, Porbandar, on 13th of February, 2004, in Sessions Case No.11 of 1997, whereby Trial Court acquitted both the respondents for the charges levelled against them under Sections 411, 413, 414 and 114 of the Indian Penal Code. 2 Learned APP Mr. A.J. Desai for the appellant – State was heard. Leave to Appeal granted. Appeal is Admitted. Learned Advocate Mr. Balwant Solanki for learned Advocate Mr. Ashish M Dagli, waives on behalf of the respondents. 3 Learned APP Mr. A.J. Desai as well as learned Advocate Mr. Balwant Solanki for the respondents requested this Court to take up this matter for final hearing as the Record and Proceedings summoned from the Trail Court is available with the Court. It is further requested by learned counsels that they would provide extra copies of the evidence recorded during the trial and copies of the necessary documents produced in the trial court. Under the facts and circumstances of the CR.A/2084/2005 3/9 JUDGMENT case, the request is granted and this Appeal is taken up for final hearing at this stage. 4 According to prosecution case, on 15th of September, 1992 Batuksinh Fatehsinh Jadeja, PW-6, Exhibit-17, serving as Police Sub- Inspector, LCB Police Station, Porbandar, was on patrolling in the city about 16.00 hours and he noticed that two persons passed near Ram Guest House riding one Hero Honda Motorcycle. Registration number plate was not displayed on the motorcycle and, therefore, Batuksinh Fatehsinh Jadeja, halted them and inquired. Those persons were Madhu Bachu of Junagadh and Pola Vikram of Bapodarawada. According to Batuksinh Fatehsinh Jadeja, Madhu Bachu was an habitual offender to steal motorcycles and, therefore, the said hero honda motorcycle was seized by him under Section 102 of Criminal Procedure Code and both the said persons were arrested under Section 41(1) of the Criminal Procedure Code. It was revealed from the inquiry of said persons that they had in all stolen seven motorcycles, and out of which, six had been stolen from Rajkot city and District of Junagadh. The concerned Investigating Officers in respect of these six motorcycles were called and muddamal was handed over them. While remaining motorcycle, which is the subject matter of this prosecution, remained without any inquiry. No owner was found in respect of the present motorcycle nor CR.A/2084/2005 4/9 JUDGMENT any complaint was filed against anyone and, hence, a complaint came to be filed against those two persons under Section 124 of the Bombay Police Act. According to the prosecution case, the present motorcycle was purchased by accused No.1 Nathabhai Manendbhai Odedara, knowing fully well that the said motorcycle was a stolen property and without registration. Thereafter, accused No.1 sold this motorcycle to accused No.2 knowing fully well that the motorcycle was a stolen property and, hence, the complaint came to be registered against both the accused before LCB Police Station, Porbandar, wherein, complaint is recorded of accused No.1 Nathabhai Manendbhai Odedara. After investigation, a charge sheet came to be submitted for the above said offence in the court of Judicial Magistrate, First Class, which was registered as Criminal Case No. 6371 of 1993. The case was thereafter committed to the Court of Sessions and was registered as Sessions Case No. 11 of 1997 and was made over to the Trial Court. The Trial Court framed charges against both the accused at Exhibit-1 on 5th of April, 2003, to which, both the accused pleaded not guilty and, hence, the prosecution examined several witnesses and produced on record voluminous documentary evidence. Thereafter, the learned Trial Judge recorded the further statements of the accused under Section 313 of the Code of Criminal Procedure wherein the case of each of the accused was of total denial. After hearing the prosecution as well as defence, the CR.A/2084/2005 5/9 JUDGMENT learned Trial Judge came to the conclusion to acquit the accused respondents herein and, hence, this Appeal by the State. 5 We have carefully and thoroughly gone through the Record and Proceedings of the Trial Court. We have re-appreciated the evidence in its proper perspective. We have considered the vital features of the case and reasonable probabilities arising out of the circumstances of the case. We have taken into consideration the appreciation of the evidence undertaken by the Trial Court and the reasons assigned for the acquittal. 6 Going through the evidence of the prosecution carefully, it appears that PW-1 Ismail Alibhai Hathaliya, examined at Exhibit-9, is the witness serving as Junior Clerk in DSP Office, Porbandar. It is sought to be proved through his evidence is that none of the accused, being constables, obtained any permission to purchase motorcycle. PW-2 Bhanubhai Laghabhai Vaviaya, examined at Exhibit-10, happened to be PSI. According to him, while he was serving as LCB Inspector at Junagadh, he had received information that one Udesinh Manubhai possessed motorcycle without papers and, therefore, he had recorded the statement of said Udesinh Manubhai. The witness thereafter seized one Hero Honda Motorcycle bearing No. GU W 7991 and according to CR.A/2084/2005 6/9 JUDGMENT the witness, Udesinh Manubhai had purchased this motorcycle from one Kirit Maganlal. While this witness recorded the statement of Kirit Maganlal, it was revealed that the said motorcycle of silver colour Hero Honda was obtained by Kirit Maganlal from accused No.2 by giving Rs. 7,000/- to Kirit Maganlal. It appears that the attempt of prosecution is to prove that the accused No.2 was a habitual offender, dealing in stolen property. Though in his examination-in-cross, he admitted that the stolen property was not seized from the custody of any of the accused and that in respect of the motorcycle, which was seized from Udesinh Manubha of Una, no complaint was ever registered about stealing of said motorcycle. The witness deposed neither here nor there to prove specific allegations against any of the accused. Thereafter, an important witness Malde Vikram, examined at Exhibit-11 did not support the prosecution case. He was examined to prove that Madhu Bachu had sold one motorcycle to accused No.1 Nathabhai Manendrabhai Odedara knowing fully well that the said motorcycle was of as stolen property. The witness has not supported the prosecution case and stated that he did not know Madhu Bachu nor he had seen any motorcycle. 7 PI Nankubhai Nazbhai Manjariya, examined at Exhibit -12 as PW-3, was the First Investigating Officer, LCB Police Station, Porbandar. On 16th of December, 1992, the offence was registered CR.A/2084/2005 7/9 JUDGMENT against both the accused for the above said charges and he was entrusted with the investigation. He recorded the statements and arrested the accused, draw panchnamas which he produced on record at Exhibit 13 and Exhibit–14 is the arrest of the accused. 8 PW-5 Trambakrao Supuduji Savant, examined at Exhibit 16 was serving as Reserve PSI at the relevant time at Porbandar Police Headquarter. According to him, both the accused were serving under him as Police Constable and none of them had applied to him for permission to purchase motorcycle. 9 PW-6 Batuksinh Fatehsinh Jadeja, examined at Exhibit-17, stated about the seizure of the motorcycle from Madhu Bachu and Pola Vikram Mer. PW-7 Ravjibhai Devjibhai Balat, examined at Exhibit – 19 is the second Investigating Officer and he submitted a charge sheet against the accused. 10 This is all the evidence of the prosecution. 11 To prove the case, the prosecution was required to prove distinctly that the motorcycle which was seized from the possession of Madhu Bachu and Pola Vikram was purchased by accused No.1 and CR.A/2084/2005 8/9 JUDGMENT from him by accused No.2 dishonestly and knowing or having reason to believe that the motorcycle was stolen property. Prosecution was also required to prove that both the accused were in habit of receiving or dealing in the property which they knew or had reason to believe to be stolen property. When we scanned the evidence very carefully of each of the witnesses, there is no iota of evidence that the motorcycle which is subject matter of prosecution case, though was having no papers, but it could not be proved that the said motorcycle was stolen property. It could not be proved that the said motorcycle was seized from the custody of Madhu Bachu and Pola Vikram nor could it be proved that accused No.1 Nathabhai Manendbhai Odedara knowing fully well that the motorcycle was a stolen property, purchased the said motorcycle from Madhu Bachu. It was also not proved that, same way, the motorcycle was thereafter purchased by accused No.2 from accused No.1. The evidence recorded during the trial is neither here nor there nor depicting the facts of the case precisely and carefully. Nothing could be made out from the evidence recorded during the trial that accused Nos. 1 and 2 both were habitual offender dealing in stolen property and that knowingly fully well they purchased the motorcycle in question from Madhu Bachu without any papers and though believing the same to be the stolen property. CR.A/2084/2005 9/9 JUDGMENT 12 The learned Trial Judge rightly acquitted the accused assigning reasons that none of the links could be proved by the prosecution that the motorcycle was of stolen property; that said motorcycle was purchased by accused No.1 and 2 knowing fully well that the said motorcycle was of stolen property nor it could be proved that accused No.1 and 2 were habitual offenders in dealing with stolen property. In acquittal appeals, unless it is found that the conclusions arrived at by the Trial Court are perverse, manifestly erroneous, palpably wrong or demonstrably unsustainable, even if the second view from the same evidence is possible, no interference is permitted. When we re- appreciated the evidence and scanned the reasonings assigned by the Trial Judge, we found that by no stretch of reasoning, it could be said that the reasons assigned by the Trial Court for the acquittal are perverse or unsustainable. We also come to the conclusion that the prosecution failed to prove the case against both the accused. Therefore, there is no substance in the Appeal and, hence, the following Order : “Appeal stands dismissed”. (J. R. VORA, J.) (M. R. SHAH, J.) pnnair