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Judgment
Ilesh J. Vora, J
Here is the appeal by the State against the judgment and order of acquittal.
Being aggrieved and dissatisfied by the common judgment and order dated 16.05.2009 passed by the learned Additional Sessions Judge, Surat in Sessions Case nos. 154 of 2004 and 245 of 2005, acquitting the respondents – original accused nos. 1 to 6, 8, 10 to 13 and 14 from the offences under Sections 394/397 and 120-B read with Section 34 of the Indian Penal Code, 1860 (old) (‘IPC’, for short) and Section 25(1B) of Arms Act, 1959 and Section 135 of Bombay Police Act, 1951 (‘B.P. Act’, in short), the State has preferred instant appeal under Section 378 of the Code of Criminal Procedure, 1973 (old) (‘Cr.P.C.’ in short).
Facts and circumstances giving rise to file this appeal are that, respondents accused were tried for the offence of robbery with attempt to cause death or grievous hurt. The original accused nos.7 and 9 hit witness Bharatbhai PW:1 on his head with iron rod and witness Pravanbhai PW:3 with country-made pistol caused grievous hurt and took away the bag filled with the diamonds, whereby they tried to cause death of the witnesses and committed an offence of robbery with an attempt to cause death or grievous hurt. In these background facts, it is the case of the prosecution that on 07.10.2003, the act of robbery was executed at the place near Varachha Umiya Temple. The complainant PW:1 was in business of Rough Diamonds at Surat and was used to purchase it from one Jagdishbhai. The accused no.1, in connivance with the co-accused, have had hatched criminal conspiracy with a common object to rob the huge quantity of diamonds from the employee of the complainant PW:1. They made racky before the execution of the plan. They hired the persons from Uttar Pradesh viz. accused nos.7 and 9. They imported the arms from the Uttar Pradesh. On the day of execution of the offence, accused no.7 armed with country-made pistol along with other were kept vigil and waited at the place of the offence and accused no.9 armed with iron rod was also accompanied to the accused no.7. On the day of incident as per the plan, when PW:2 Bharatbhai Sambhubhai and PW:3 Pranav Deepakbhai, while they were passing the road, on their bike, accused nos.7 and 9 hit the PW:2 Bharatbhai with an iron rod and accused no.7 Amarsingh sought Pravanbhai PW:3 with country-made pistol and took away the diamonds filled bag. In the circumstances, the complainant PW:1 lodged an FIR for the alleged offence of robbery with an attempt to cause death or grievous hurt. The Surat Police, during the course of investigation, learnt that the accused no.1 in connivance with the accused nos.4, 5 and 6, made a plan to loot the rough diamonds of the complainant and in order to execute the act of robbery, they contacted accused nos.7, 8, 9 and others, who belong to State Uttar Pradesh and after knowing the rout of transportation of diamonds to be carried by the employee PW:1, executed a plan of robbery on 07.10.2003, in the manner, as narrated above. The police arrested the 14 persons, who were either actively participated in the offence or aided the co-accused in the commission of the offence. The police had recovered the case as well as the rough diamonds from the accused. During the test identification parade, accused nos.7 and 9 were identified by Pws:2 and 3.
At the end of investigation, the chargesheet came to be filed against accused nos.1 to 13 which had culminated into Sessions Case No.154 of 2004 and thereafter, supplementary chargesheet was being filed against accused no.14 which was registered as Sessions Case No.245 of 2005.
On the basis of material on record, the charge was framed against the respondents to which the respondents pleaded not guilty and therefore, they came to be tried by the trial Court, accordingly.
In order to prove the case against the respondent, prosecution has examined 116 witnesses and exhibited 52 documents in support of its case as per the following table:
Oral evidence
PW 1 – Exh. 61
Bharatbhai Jadavjibhai Khaini, complainant
PW 2 – Exh. 113
Bharatbhai Shambhubhai Rubapara
PW 3 – Exh. 114
Pranavbhai Dipakbhai Timaniya
PW 4 – Exh. 128
Kishorbhai Vallabhbhai Ghelani, panch witness
PW 5 – Exh. 134
Tarunbhai Babubhai, panch witness
PW 6 – Exh. 142
Sunil Pravinchandra Jinwala, panch witness
PW 7 – Exh. 155
Lalitbhai Gemani, panch witness
PW 8 – Exh. 157
Sandip Eknath Patil, panch witness
PW 9 – Exh. 170
Firoz Aiyub Shaikh, panch witness
PW 10 – Exh. 171
Jivrajbhai Ranchhodbhai, panch witness
PW 11 – Exh. 175
Rahimkhan Shabbirkhan Pathan, panch witness
PW 12 – Exh. 177
Kaluram Dulaji Prajapati, panch witness
PW 13 – Exh. 178
Babubhai Savjibhai, panch witness
PW 14 – Exh. 185
Abdul Raul Abdul Samad Shaikh, panch witness
PW 15 – Exh. 187
Dhirubhai Arjanbhai, panch witness
PW 16 – Exh. 194
Vikesh Krushnachand Dholakiya, panch witness
PW 17 – Exh. 196
Pareshbhai Jagdishbhai Patel, panch witness
PW 18 – Exh. 201
Jagreshbhai Babubhai Shah, panch witness
PW 19 – Exh. 209
Bhupatbhai Bhikhabhai Barad, panch witness
PW 20 – Exh. 207
Rahimkhan Shabbirkhan Pathan, panch witness
PW 21 – Exh. 218
Dilipbhai Ranchhodbhai, panch witness
PW 22 – Exh. 221
Manjibhai Vasrambhai, panch witness
PW 23 – Exh. 225
Rajeshbhai Amitbhai Patoriya, panch witness
PW 24 – Exh. 241
Dhirajlal Haribhai, panch witness
PW 25 – Exh. 256
Manjibhai Valjibhai Mangukiya, panch witness
PW 26 – Exh. 263
Akshaybhai Chandulal Patel, panch witness
PW 27 – Exh. 269
Mahammed Ikbal Gulammustafa, panch witness
PW 28 – Exh. 280
Mahammed Riyaz Ismail Shaikh, panch witness
PW 29 – Exh. 283
Dhirubhai Balubhai Vaghasiya, panch witness
PW 30 – Exh. 288
Saiyed Ibrahim Kazi, panch witness
PW 31 – Exh. 293
Virendra Mahendrabhai Modi, panch witness
PW 32 – Exh. 299
Mohammed Riyaz Ismail Shaikh, panch witness
PW 33 – Exh. 304
Rameshbhai Vitthalbhai, panch witness
PW 34 – Exh. 318
Rajendra Bhavrav Patil, panch witness
PW 35 – Exh. 325
Popatbhai Manjibhai Savani, panch witness
PW 36 – Exh. 338
Vijaybhai Natvarlal Bansilal
PW 37 – Exh. 345
Rameshbhai Shamjibhai Vaghasiya, panch witness
PW 38 – Exh. 364
Arjunbhai Bhamar Kathva, panch witness
PW 39 – Exh. 377
Nanalal Bhairaji
PW 40 – Exh. 382
Bhikhubhai Babubhai Talaviya
PW 41 – Exh. 405
Kishorbhai Vallabhbhai Sangani
PW 42 – Exh. 411
Himmatbhai Ukabhai
PW 43 – Exh. 424
Pravinbhai Ramjibhai Sutaria
PW 44 – Exh. 431
Dr. Manoj Narang
PW 45 – Exh. 443
Dr. Odhavjibhai Dhanjibhai
PW 46 – Exh. 452
Nanubhai Jivrajbhai
PW 47 – Exh. 457
Vijay Narsingh Chudasama, panch witness
PW 48 – Exh. 458
Rakeshkumar Sumatilal Desai
PW 49 – Exh. 461
Rajesh Raghavji Shah
PW 50 – Exh. 462
Dilipbhai Amulak Shah
PW 51 – Exh. 470
Hariomji Bhagvandas
PW 52 – Exh. 471
Sharif Bashirbhai
PW 53 – Exh. 472
Balkishan Shriganeshdutt Garg
PW 54 – Exh. 477
Gautambhai Udesinghbhai Barot
PW 55 – Exh. 481
Dhansukhbhai Khodabhai Ghelani
PW 56 – Exh. 482
Pradipbhai Lallubhai Chauhan
PW 57 – Exh. 491
Sanjaybhai Nanjibhai Bhalala
PW 58 – Exh. 492
Ashwinbhai Babubhai Dobariya
PW 59 – Exh. 494
Nileshbhai Chandrakantbhai Patel
PW 60 – Exh. 498
Dipakbhai Ishwarbhai Patel
PW 61 – Exh. 499
Bharatbhai Dhirajsingh Solanki
PW 62 – Exh. 503
Dineshbhai Ravjibhai Virani
PW 63 – Exh. 505
Labhubhai Bavsingbhai
PW 64 – Exh. 509
Gaurang Mahendrabhai Patel
PW 65 – Exh. 511
Nilesh Kapilchand Varani
PW 66 – Exh. 516
Durlabhji Laljibhai
PW 67 – Exh. 518
Pravinbhai Lakshmanbhai, panch witness
PW 68 – Exh. 524
Ashwin Govindbhai Kukadiya
PW 69 – Exh. 536
Jagdishbhai Dhirubhai Khunt
PW 70 – Exh. 544
Pappu Naranji Rawat
PW 71 – Exh. 549
Devilal Vardhaji Rawat
PW 72 – Exh. 553
Raghavbhai Parshottambhai Maniya
PW 73 – Exh. 557
Rasikbhai Batukbhai Thummar
PW 74 – Exh. 563
Arvind Mohanbhai
PW 75 – Exh. 564
Kanchanben Ranchhod Patel
PW 76 – Exh. 571
Hemrajbhai Naran Patel
PW 77 – Exh. 572
Bavchand Valjibhai Galani
PW 78 – Exh. 575
Sureshbhai Babaldas Patel
PW 79 – Exh. 582
Pankajbhai Jawaharlal Jariwala
PW 80 – Exh. 590
Kalubhai Lakshmanbhai Sisodiya
PW 81 – Exh. 596
Jatinbhai Dhansukhbhai Ghelani
PW 82 – Exh. 602
Abdul Rasid Abdul Latif Shaikh
PW 83 – Exh. 603
Arvind Jivabhai Patel
PW 84 – Exh. 610
Ghanshyam Kalubhai Khunt
PW 85 – Exh. 616
Umeshbhai Shrimuni Rammishra
PW 86 – Exh. 631
Naranbhai Jadavbhai Patel
PW 87 – Exh. 651
Sandipbhai Eknath Patil, panch witness
PW 88 – Exh. 652
Ravindra Ramdas Patil, panch witness
PW 89 – Exh. 663
Bhupatbhai Fikrabhai, panch witness
PW 90 – Exh. 665
Ravjibhai Govindbhai, panch witness
PW 91 – Exh. 683
Rameshbhai Arjundas Israni, Executive Magistrate
PW 92 – Exh. 709
Manish Kanaiyalal, panch witness
PW 93 – Exh. 711
Pravinbhai Kalyanbhai
PW 94 – Exh. 712
Mahendrasingh Mansingh Jadeja, panch witness
PW 95 – Exh. 713
Dharmendrasingh Sardarsingh, panch witness
PW 96 – Exh. 715
Dilipbhai Bhaktiram Bavaji
PW 97 – Exh. 717
Kalabhai Masabhai Dangar
PW 98 – Exh. 722
Himmatsingh Kesarisingh Chavda
PW 99 – Exh. 736
Dineshbhai Ravjibhai
PW 100 – Exh. 741
Lavjibhai Parshottambhai Vasani
PW 101 – Exh. 755
Meena Rajnikant Dave
PW 102 – Exh. 762
Vishnubhai Sharma
PW 103 – Exh. 763
Ajitbhai Laljibhai Gameti
PW 104 – Exh. 766
Pritamsing Indersing, Assistant Sub- Inspector
PW 105 – Exh. 780
Bharatbhai Kapilrav Mistry
PW 106 – Exh. 784
Dineshbhai Dipchandbhai Damor, Police Sub-Inspector
PW 107 – Exh. 787
Govindbhai Virsingbhai Chaudhary, Police Inspector
PW 108 – Exh. 794
Dalsukhbhai Ukkadbhai, Head Constable
PW 109 – Exh. 805
Mahendrasinh Amarsinh Chaudhary, Police Sub-Inspector
PW 110 – Exh. 807
Kanubhai Kishorbhai Patel, Police Inspector
PW 111 – Exh. 822
Janakbhai Rawatbhai Vala, Police Inspector
PW 112 – Exh. 814
Lakshmanbhai Nanjibhai Patel
PW 113 – Exh. 823
Ajabsingh Muksingh Rathod, Police Inspector
PW 114 – Exh. 851
Ajaykumar Vidhyadhar Gakkhar, Police Inspector
PW 115 – Exh. 892
Manharbhai Lakshmanbhai Patel, Addl. Head Constable
PW 116 – Exh. 898
Ketalabhai Khatrabhai Dama, Police
Constable
Documentary evidence
Exh. 62
Complaint
Exh. 129
Panchanama of place of offence
Exh. 130
Panchanama of recovery of clothes of injured person
Exh. 135
Panchanama of recovery of bullet from the body of injured person
Exh. 143
Panchanama of seizure of Page 130 from Register of Hotel Dimple
Exh. 147
Panchanama of seizure of Hero Honda from accused Sanjay
Exh. 156
Panchanama of taking signatures of accused Kishanlal, Rajeshwaridevi, Tejsingh
Exh. 172
Panchanama of production of cash by witness Raghavbhai
Exh. 176
Panchanama of production of cash by witness Ravjibhai
Exh. 179
Panchanama of seizure of cash from witness Arvindbhai
Exh. 186
Panchanama of seizure of cash from witness Rajeshbhai
Exh. 188
Panchanama of production of cash by Kanchanben
Exh. 195
Panchanama of production of cash by Hemrajbhai
Exh. 197
Panchanama of production of cash by father of accused Jagdish
Exh. 202
Panchanama of seizure of cash from witness Rakeshbhai
Exh. 208
Panchanama of production of Hero Honda by accused Manoj
Exh. 211
Panchanama of seizure of cash from witness Dhansukhbhai
Exh. 219
Panchanama of seizure of cash from witness Pravin
Exh. 220
Panchanama of seizure of cash from witness Ramesh
Exh. 222
Panchanama of seizure of articles from witness Kalabhai
Exh. 227
Panchanama of examination of cash recovered from accused Rajeshwaridevi
Exh. 229
Panchanama of seizure of Hero Honda and articles from witness Nathubhai
Exh. 249
Arrest Panchanama of accused Bharatbhai and others
Exh. 260
Panchanama of production of cash by witness Vijaybhai
Exh. 266
Panchanama of seizure of diamonds produced by witness Kishorbhai
Exh. 270
Panchanama of seizure of vehicle and diamonds
Exh. 284
Panchanama of seizure of cash from witness Gautambhai
Exh. 289
Panchanama of seizure of cash from witness Naranbhai
Exh. 300
Panchanama of weight of articles recovered from accused Narsinh
Exh. 317
Panchanama of seizure of articles recovered from home of accused Narsinh
Exh.346, 347, 350, 353 to 355
Certificates of diamonds from witness Rameshbhai
Exh. 435
Certificate of medical treatment of witness Pranav
Exh. 445
Certificate of medical treatment of witness Bharatbhai
Exh. 519
Panchanama of test identification parade of accused
Exh. 664
Panchanama of articles seized from Dilipkumar
Exh. 666
Panchanama of seizure of cash from Dineshbhai
Exh. 710
Panchanama of recovery of cash from witness Mahendrabhai
Exh. 756
Report of SerologyDepartment
Exh. 765
Report of Biology Department
Exh. 769
Photocopies of papers of vehicle seized under Section 41 and 102 Cr.P.C.at Agra
Exh. 770
Page no. 200-201
Exh. 781
Ballistics Report
Exh. 788
Computer letter produced by complainant
Exh. 806
Panchanama of recovery of cash from witness Lakshmanbhai
Exh. 824
Copy of letter of sending articles to FSL
Exh. 825
Receipt by FSL regarding receiving articles
The respondents upon being questioned under Section 313 of the Cr.P.C. with regard to incriminating circumstances made against them in the evidence rendered by the prosecution and they denied it and not lead any evidence in defence.
The Trial Court convicted and sentenced the accused nos.7 and 9 and directed them to undergo 7 years rigorous imprisonment with fine, whereas the respondents accused (original accused nos.1 to 6 and 8 to 10 and 13 and 14) have been acquitted from the all charges.
In view of the aforesaid facts and circumstances, the State is before this Court by way of the present appeal under Section 378 of Cr.P.C.
Oral as well as documentary evidence:
10.1 In order to prove the charges, the prosecution examined 116 witnesses. Out of 116 witnesses, the material witnesses examined are PW:1 complainant, injured witness Pws:2 and 3 viz. Bharatbhai Sambhubhai and Pranavbhai Deepakbhai. The witnesses have identified accused nos.7 and 9 in the Court and deposed against them about the act of robbery, grievous hurt and attempt to murder. The evidence of test identification parade further strengthened the case of the prosecution to establish the complicity of accused nos.7 and 9. In order to prove the injuries sustained by the aforesaid two witnesses, the prosecution examined treating doctor PWs:44 and 45 and produced and proved the injury certificates Exhs.435 and 445. The learned Trial Court after appreciation of evidence, came to a conclusion that on 07.10.2003, on the road of Umiyadham Temple, Varachha, when the PWs:2 and 3 carrying a bag of diamonds, came at the place on their bike, accused no.7 fired upon PW:3 with the weapon which he had, due to which, he suffered grievous injuries on his shoulder and accused no.9 hit the PW:2 Bharatbhai on his head with iron road and the motive for causing injuries was to loot the diamonds worth Rs.1 crore and accordingly, they took away the diamond bag. So far as accused respondents are concerned, the learned Trial Court has recorded that the prosecution has not been able to prove the case against the accused beyond reasonable doubt, as the evidence adduced by the prosecution are not sufficient to hold that the respondents accused have hatched the conspiracy with a common object to execute the offence of robbery and causing grievous hurt.
We have heard learned APP Mr.L.B. Dabhi and Mr.J.R. Shah and Mr.Mafatar Pandey, learned advocates for the respective parties.
Mr.L.B.Dabhi, learned APP assailing the judgment and order of acquittal, has submitted that the findings of acquittal are contrary to law and evidence on record and the same are palpably erroneous and based on the irrelevant material which has resulted into miscarriage of justice and therefore, the judgment and order is not sustainable in law.
On the other hand, learned counsels appearing of the accused have supported the findings recorded by the Trial Court and contended that there is no sufficient evidence adduced by the prosecution to establish the charge of criminal conspiracy allegedly hatched by the respondents accused and their involvement in the alleged robbery. Thus, therefore, it would urge that the view taken by the Trial Court is a possible view and the prosecution miserably failed to point out the compelling reason warranting inference in the order and judgment of the acquittal.
Before venturing into the merits of the case, we would like to refer the scope of Section 378 of the Cr.P.C. while deciding an appeal against the judgment and order of acquittal. The Supreme Court in its various pronouncements has persistently emphasized that there are limitations while interfering with an order against acquittal. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the Appellate Court can interfere with the order of acquittal. The Appellate Court should bear in mind the presumption of innocence of the accused and further that the acquittal by the Lower Court bolsters the presumption of his innocence. Interference in routing manner, where the other view is possible should be avoided, unless there are good reasons for interference.
Applying the said principles and after going through the oral as well as documentary evidence and the reasons recorded by the Trial Court in its judgment, we are of the considered opinion that the learned Trial Court has properly evaluated evidence of the injured eyewitnesses and testimony of other witnesses while recording the acquittal of the respondents accused. The original accused nos.7 and 9, who had actively participated, were held guilty by the Trial Court. The charge against the respondents accused was to the effect that they had hatched conspiracy to commit an offence of robbery and in order to execute the said conspiracy, they had consulted the co-accused. In order to prove the charge of conspiracy, they should be an agreement for doing illegal act and therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such agreement can be proved either by direct evidence or circumstantial evidence. In the facts of present case, the prosecution has not adduced sufficient evidence to prove the element of conspiracy so far as the respondents accused are concerned. In such circumstances, we do not find any compelling reason warranting interference in the judgment of the acquittal as the findings of acquittal based on the evidence on record and the view of the Trial Court is possible view which do not warrant any interference.
Resultantly, in absence of any compelling reasons to interference with the judgment of acquittal, this acquittal appeal preferred by the State stands dismissed. The bail bonds if any stands cancelled. Surety, if any, given stands discharged. R & P to be sent tot he Trial Court concerned.