Ayub @ Bibodo Hamir Ali Khokhar vs State of Gujarat

M.D. Shah, J.—This appeal is directed against the judgment and order dated 4.3.2008 passed by the learned Addl. Sessions Judge, khambhalia in Sessions Case No. 4 of 2005, whereby the present appellant-Ayub @ Bibodo Hamir Ali Khokhar was convicted for offences under Sections 323 342 506(2) read with Section 114 of IPC and under Sections 394 and 397 of IPC and sentenced to suffer 2 months'' imprisonment and fine of Rs. 200/-, in default 15 days'' simple imprisonment. For the offence u/s 323 read with Section 114 of IPC, 2 months imprisonment and a fine of Rs. 200/-, in default 15 days'' simple imprisonment was awarded. For the offence u/s 342 read with Section 114 of IPC, the accused was sentenced to suffer 2 months imprisonment and a fine of Rs. 200/-, in default, simple imprisonment of 15 days was awarded. For offence under Sections 394 and 397 of IPC, the accused was sentenced to suffer 7 years Rigorous Imprisonment and a fine of Rs. 2000/-, in default, 1 year''s simple imprisonment. For offence u/s 506(2) of IPC, 2 years'' simple imprisonment and a fine of Rs. 500/-, in default, further six months'' simple imprisonment was awarded. All the above sentences were ordered to run concurrently. It was also ordered by the trial court that if any fine is paid by the accused, an amount of Rs. 2500/- shall be paid to the complainant as compensation u/s 357 of the Code of Criminal Procedure, 1973. Benefit of set-off period for which the accused remained in jail is also given by the trial court u/s 428 of the Criminal Procedure Code.

Briefly stated, the case of the prosecution is that the present appellant along with the other two co-accused, at 2 a.m. on 15th January, 2005, robbed the priest of temple called Chakreshwar Mahadev, situated in the sim of village Methan, Taluka Jamjodhpur, District, Jamnagar of cash of Rs. 15,000/-, a sword and a wrist watch by threatening that he would be electrocuted by tying an electric wire on his toes. They also caused him bodily injuries. After committing the robbery, they locked up the priest in a room. They were thus charged with offence punishable under Sections 323 342 506(2) 394 and 397 read with Section 114 of the Indian Penal Code.

On the basis of the complaint filed by Madhusudandas Gurushri, offence was registered at Sethwala police station, Jamjodhpur as Cr. No. 3/05 for offences under Sections 394 323 506(2) read with Section 114 of IPC. Later on the Investigating Officer made report for offences u/s 342 and 397 of IPC. In connection with these offences, two accused namely, Salim @ Bhuro s/o Ishaq Lalbhai Dalsandhi and Babu, S.o Isha Kesharbhai Juneja were arrested and charge sheet was filed against them.

The present appellant was not arrested by the police as he was absconding and therefore, the police has filed charge sheet against the other two co-accused. Thereupon, by the order of the Criminal Court, committal order u/s 209 of Cr.P.C. Was passed as the trial court has no jurisdiction to try the case for offence u/s 397 etc. of IPC. On the basis of the same, Sessions Case was numbered as 70 of 2005. In this case, both the accused are convicted by the trial court. The present appellant was arrested and taken into judicial custody on 21.11.2006 and additional charge sheet was submitted by the police. As original documents were produced in Sessions Case No. 70.05, xerox copy of the said documents were produced by the learned APP before the trial court in Sessions Case No. 4 of 2005 against the present accused and with the consent of the defence Advocate, production of the said documents was allowed. At the end of the trial, present appellant -accused was also convicted as mentioned above. Against the said judgment and order, the present appeal was preferred by the appellant.

Heard the Mr H. Ahmed learned advocate appointed through Legal Aid Committee for the appellant and Mr U.R. Bhatt, learned APP for the State of Gujarat.

It is submitted by Mr Ahmed, learned advocate for the appellant that, against the judgment and order delivered by the Sessions Court in Sessions Case No. 70/05, appeals were preferred by the the other two convicted accused persons before this Court which were numbered as Criminal Appeals No. 1069 and 1921 of 2006 and both these appeals were allowed by this Court (Coram: Hon''ble Mr Justice Akil Kureshi), by its judgment dated 12.5.2008 and set aside the judgment and order of conviction and sentence imposed by the trial court and both the accused were acquitted of the charges levelled against them. Copy of the said judgment is also produced and is placed on record before this Court.

This Court has gone through the said judgment and order passed by this Court. While going through the judgment and order, it is found that the court has discussed the evidence at length against the accused persons in para 12 of its judgment wherein it is specifically held against the trial court that there are large number of contradictions and inconsistencies in the prosecution version. The court held in Para 12 of the said judgment as under:

Under the circumstances, I find that there are large number of contradictions and inconsistencies in the prosecution version. To recapitulate, test identification parade has no efficacy since the accused were shown to the complainant only a day before identification was carried out. Identification of the accused before the court has to be viewed cautiously since the incident took place late at night and the complainant was aged about 70 years and the complainant did not know the accused previously. In addition thereto, there was an unexplained and substantial delay in lodging the complainant. At the first instance, the complainant did not disclose about the sword and wrist watch being stolen. Such revelations were made through a further statement recorded on 23rd March, 2005, a day after the custody of the accused were taken over by the IO. The discovery of the muddamal articles was not supported by any independent panch witness.

It is an admitted fact that the present accused is the co-accused of the other two accused who were acquitted by this Court as mentioned above. The evidence on which the trial court has convicted the other two co-accused, who were acquitted by this Court in appeal as mentioned above, is the same and the present appellant-accused is also convicted by the trial court on the same set of evidence. Hence, the findings arrived at by this Court in Criminal Appeals No. 1069 and 1921 of 2006 are applicable to the present appellant-accused in the present case.

Taking into consideration the aforesaid judgment especially the findings of this Court in para 12 of the judgment, the present appellant-accused is also entitled to get benefits of the said findings. In the opinion of this Court, the present appellant is to be given benefit of doubt.

In the result, the appeal is allowed. The conviction and sentence of the appellant recorded by the learned Addl. Sessions Judge in Sessions Case No. 4/07 dated 4.3.2008 are set aside. The appellant shall be released forthwith, if not required in any other criminal case. Fine, if paid, shall be refunded.