State of Gujarat Versus Vs Ranchhod @ Rameshbhai Jivrajbhai Dhola & Ors.

Ilesh J. Vora, J

1. Here is the appeal by the State against the judgment and order of acquittal.

2. 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).

3. 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.

4. 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.

5. 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.

6. 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

Documentary evidence

7. 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.

8. 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.

9. 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.

10. 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.

11. We have heard learned APP Mr.L.B. Dabhi and Mr.J.R. Shah and Mr.Mafatar Pandey, learned advocates for the respective parties.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.