State of Gujarat vs Hanu Dharsi Vaghri

M.R. Shah, J.—Present appeal is preferred by the State u/s 378 of the Code of Criminal Procedure against the judgment and order of

acquittal dtd. 15/1/2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Rajkot in Sessions Case No. 218 of 1998

acquitting the respondent herein original accused for the offences punishable under Sections 393 395 398 342 352 511 of the Indian Penal Code

and u/s 25(1)(b) and (a) of the Arms Act and u/s 37(D) and 135 of the Bombay Police Act.

That a Criminal Complaint being CR No. I-356 of 1994 was lodged by one Kanjibhai Fakirbhai Vaghela against six accused persons, inclusive

of the respondent herein original accused, with Rajkot Taluka Police Station for the offences alleged to have happened on 21/7/1998. However,

initially charge-sheet came to be filed only against three accused persons namely (i) Jotiyo alias Bhagvan Gafur Koli (ii) Bhura Nagar alias Gaju

alias Ramesh Vaghri and (iii) Dilu Haji Vaghri. The respondent herein and other two accused were declared as absconding/not arrested and

therefore, after investigation, charge-sheet was filed against aforesaid three accused only and thereafter the learned Magistrate committed the case

to the learned Sessions Court which was numbered as Sessions Case No. 169 of 1995 and all the aforesaid accused came to be tried by the

learned Additional Sessions Judge, Rajkot and they came to be acquitted. That thereafter, the respondent herein came to be arrested by the police

on 25/5/1998 and a supplementary charge-sheet came to be filed against the respondent herein before the learned Magistrate and thereafter by

order dtd. 13/10/1998, the learned Magistrate committed the case to the learned Sessions Court which was numbered as Sessions Case No. 218

of 1998. It appears from the record and proceedings that charge came to be framed against the respondent herein by the learned Additional

Sessions Judge, Rajkot vide Ex. 1. Plea of the respondent accused came to be recorded at Ex. 2 and he denied the having committed the offences

and therefore, he was put to trial. It also appears from the record and proceedings which is available with us that the learned Additional Public

Prosecutor submitted an application at Ex. 11 submitting that as the evidences have been recorded against the other accused in Sessions Case No.

169 of 1995, no new evidence against the present respondent is required and therefore, it was requested to take into consideration the evidences

recorded in Sessions Case No. 169 of 1995 while considering the present trial.

The prosecution further examined one Mahendrabhai Keshavlal (panch) at Ex. 50, one Yakubbhai Isakbhai (panch) at Ex. 52 and Ganibhai

Nathubhai (panch) at Ex. 54. The prosecution also examined one Mr. B.C. Thakkar, Prohibition Inspector at Ex. 57 and produced two

documentary evidences i.e. Panchnama of place of offence at Ex. 51 and Panchnama of arrest of the respondent accused at Ex. 53. It also

appears from the record that the respondent accused also submitted a pursis at Ex. 31 submitting that he has no objection if the depositions of the

witnesses recorded in Sessions Case No. 169 of 1995 are exhibited and considered in the present case. It also appears from the records and

proceedings of the case that the learned Additional Sessions Judge ordered to exhibit the evidences/deposition recorded in Sessions Case No.

169 of 1995 as Ex. Nos. 32 to 48 and to consider the same in the present case. However, it appears that not a single deposition/oral evidence

recorded in Sessions Case No. 169 of 1995 is produced on record, though they were directed to be exhibited as Ex. Nos. 32 to 48. Inspite of the

fact that not a single oral evidence recorded in Sessions Case No. 169 of 1995 was brought on record and/or copies of the same were produced

on record of the present case, the learned Additional Sessions Judge surprisingly, considering the record of Sessions Case No. 169 of 1995 and

without the copies of the depositions recorded in Sessions Case No. 169 of 1995 on the record of the present case and considering the

documentary as well as the oral evidence recorded in Sessions Case No. 169 of 1995 (sessions case in respect to other accused), acquitted the

respondent herein. Being aggrieved by and dissatisfied with the judgment and order of acquittal dtd. 15/1/2005 passed by the learned Additional

Sessions Judge, Fast Track Court No. 2, Rajkot in Sessions Case No. 218 of 1998, the State has preferred present appeal u/s 378 of the Code

of Criminal Procedure.

Mr. Dipen Desai, learned Additional Public Prosecutor, while assailing the impugned judgment and order of acquittal, has vehemently submitted

that the procedure adopted by the learned trial court, relying upon the evidences recorded in earlier Sessions Case and without the same being

brought on record of the present case and even without exhibiting the same and/or producing the copies of the same on the record and thereby

acquitting the respondent herein, is unknown to the Code of Criminal Procedure. He has relied upon Section 273 of the Code of Criminal

Procedure and submitted that as provided u/s 273 of the Code of Criminal Procedure, all the evidences taken in the course of the trial or other

proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in presence of his pleader. It is

submitted that, therefore, the judgment and order passed by the learned trial court acquitting the respondent herein, relying upon the evidences

recorded in earlier Sessions Case No. 169 of 1995 and without producing the copies of the said evidence on record of the present case, requires

to be quashed and set aside.

The learned Additional Public Prosecutor has tried to make submissions on merits also. However, as for the reasons stated hereinafter we

propose to remand the matter to the learned trial court for deciding the same afresh, we have not permitted the learned Additional Public

Prosecutor to make further submissions on merits.

Mr. S.J. Shaikh, learned advocate appearing for Mr. M.A. Saiyed, learned advocate appearing on behalf of the respondent has tried to support

the judgment and order passed by the trial court by submitting that as it is found that there is no case against the respondent, the learned trial court

has rightly acquitted the respondent, more particularly when an application was submitted on behalf of the respondent-accused at Ex. 31, by

which, the accused has stated that he has no objection if the evidences recorded in Sessions Case No. 169 of 1995 are exhibited and considered

in the present case and therefore, the trial court has rightly considered the same and there is no illegality committed by the learned trial court and

therefore, it is requested to dismiss the present appeal.

Even the learned advocate appearing on behalf of the respondent has also tried to make submissions on merits. However, as we propose to

remand the matter to the trial court for the reasons stated hereinafter and even we have not permitted the learned Additional Public Prosecutor to

make submissions on merits, we have not permitted the learned advocate appearing on behalf of the respondent accused to make submissions on

merits.

Heard the learned advocates appearing on behalf of the respective parties.

As it emerges from the record that a criminal complaint came to be filed against the six accused persons inclusive of the respondent No. 2 herein

and at the relevant time, the respondent herein and two other accused persons were absconding, and therefore, a charge-sheet was filed only

against three accused persons, who were tried by the learned Additional Sessions Judge, Rajkot by Sessions Case No. 169 of 1995. During the

trial of Sessions Case No. 169 of 1995, which was against three accused persons other than the respondent herein, the prosecution as well as the

defence produced oral as well as documentary evidences and after considering the same, the learned Additional Sessions Judge, Rajkot acquitted

other three accused persons. Subsequently, the respondent herein was arrested and therefore, a supplementary charge-sheet came to be filed

against him and the respondent was prosecuted and by order dtd. 13/10/1998, the case was committed to the learned Sessions Court u/s 209 of

the Code of Criminal Procedure numbered as Sessions Case No. 218 of 1998.

As stated above, the learned Additional Public Prosecutor submitted application at Ex. 11 declaring that the evidences have been recorded

against other co-accused in Sessions Case No. 169 of 1995 and therefore, the prosecution does not propose to lead further evidence against the

respondent herein and it was requested to consider the evidences recorded in Sessions Case No. 169 of 1995 while conducting the present trial. It

also appears from the record that even the respondent accused also submitted application at Ex. 31 submitting that he has no objections if the

depositions of witnesses recorded in Sessions Case No. 169 of 1995 are exhibited and considered in the present case. It also appears from the

record and proceedings that the learned Additional Sessions Judge has, in fact ordered to exhibit the documentary evidence and other evidence

recorded in Sessions Case No. 169 of 1995 as Ex. Nos. 32 to 48. However, considering the record and proceedings, not a single evidence,

either documentary or oral, is brought on record of the present case and even copies of such deposition and evidences are also not produced on

record of the present case and inspite of that, the learned trial court, considering the entire oral as well as documentary evidence recorded in

Sessions Case No. 169 of 1995, acquitted the respondent herein. Such a procedure and the method adopted by the learned Additional Sessions

Judge, Fast Track Court No. 2, Rajkot is unknown to the Code of Criminal Procedure and the same cannot be approved.

Now looking to the provisions of the Code of Criminal Procedure, more particularly Section 273 of the Code of Criminal Procedure, all the

evidences taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is

dispensed with, in presence of his pleader. It is to be noted that earlier trial being Sessions Case No. 169 of 1995 was not against the respondent

herein and the evidences were recorded in respect of the accused persons who were tried in the said Sessions Case. Assuming that the learned

Public Prosecutor is of the opinion that depositions recorded and the evidences produced on record in Sessions Case No. 169 of 1995 can also

be relied upon against the accused in subsequent trial, in that case also at least those evidences/depositions are to be exhibited and brought on

record in the subsequent trial. As such, normally the proper course would be to lead evidence afresh in the subsequent trial as the trial would be

against the concerned accused person. In the present case, as it emerges from the record and proceedings that after pursis was submitted by the

defence at Ex. 31, evidence recorded in Sessions Case No. 169 of 1995 was to be exhibited as Ex. Nos. 32 to 48. However, thereafter, nothing

further is done. Not a single evidence which were ordered to be exhibited as Ex. Nos. 32 to 48 which were the evidences/depositions recorded in

Sessions Case No. 169 of 1995, were brought on record of the present case. Copy of none of the evidences/depositions recorded in Sessions

Case No. 169 of 1995 are on record of the present case and inspite of that considering the evidences/depositions recorded in Sessions Case No.

169 of 1995 without placing them on record, the learned Fast Track Court has acquitted the respondent. As the evidences which were relied upon

by the trial court for acquitting the respondent herein (which were recorded in Sessions Case No. 169 of 1995) are not on record of the present

case, this Court is not in a position to consider the same.

It is also required to be noted that in the judgment itself the learned trial court has observed that the copies of the evidences/depositions

recorded in Sessions Case No. 169 of 1995 which were directed to be given Ex. Nos. 32 to 48 are not on record. Still, the learned Fast Track

Court has relied upon those evidences/depositions which were neither exhibited nor placed on record. Such a procedure and method adopted by

the learned Fast Track Court, relying upon the documents/evidences/depositions which are not part of the record, cannot be approved as the same

is dehors the provisions of the Code of Criminal Procedure. Under the circumstances, while quashing and setting aside the judgment and order of

acquittal, the mater is to be remanded to the learned trial court for deciding the same afresh in accordance with law and on merits, after following

due procedure of recording evidence/deposition etc. and after following the correct procedure.

We have not expressed any opinion on merits, as it may affect either parties at the time of trial on remand.

For the reasons stated hereinabove, the appeal succeeds in part. The judgment and order of acquittal dtd. 15/1/2005 passed by the learned

Additional Sessions Judge, Fast Track Court No. 2, Rajkot in Sessions Case No. 218 of 1998 is hereby quashed and set aside and the matter is

remitted/remanded to the trial court for deciding the same afresh in accordance with law and on merits, after following correct procedure of

recording evidence/deposition afresh in consonance with the provisions of the Code of Criminal Procedure in respect of conducting trial and

considering Section 273 of the Code of Criminal Procedure.

As the offence is alleged to have been committed in the year 1998, the trial court is directed to conclude the trial on remand within a period of

six months from the date of receipt of the writ of this judgment and order.

The appeal is accordingly allowed to the aforesaid extent.