JIVANBHAI JAFFARBHAI NAYAK Vs. AMARKHAN SUBROTHIKHAN PATHAN

JUDGEMENT

(1.) This is a Revision Application filed under section 397 of the Criminal Procedure Code, 1973 (for short, 'the Code') for setting aside the judgment and acquittal order dated 4.4.2000 recorded by the learned Sessions Judge, Valsad, Navsari in Sessions Case No.118/99 under which the learned Trial Judge acquitted the present respondents from the charges levelled against them for offence punishable under section 397 read with Section 120-B of the Indian Penal Code. The case of the prosecution before the trial court was that on 10.2.1999, the present respondents committed assault and caused injuries and committed robbery in respect of cash on hand of the bus-conductor Bharatbhai Maganbhai Patel and committed the aforesaid offence as part of the criminal conspiracy between them.

(2.) The learned trial Judge, who heard the matter, had framed charge and after appreciation of evidence, he recorded the order of acquittal which is under challenge in this Revision Application by the original complainant.

(3.) On going through the evidence it is very clear that the prosecution has examined in all five witnesses. Out of them Jivanbhai, PW 1 at Exh.14 is not a witness to the incident and, therefore, he was not in a position before the trial court to say anything about the present respondents. He has produced FIR at Exh.15. However, the informant was not in a position to say anything about the present respondents and, therefore, his evidence does not connect the present respondents or any of them with the crime in question. Bharatbhai Patel, PW 2, has been examined by the prosecution at Exh.16. He was injured eye witness but he did not spot the respondents and even before the Court when the trial was going on, this witness was unable to locate any of the respondents. Therefore, his evidence does not support the prosecution on the point of involvement of the present respondents in the aforesaid offence. Then, there is further evidence of Nasirudin at Exh.18, who is panch witness. It appears that discovery panchnama was drawn in his presence showing that one of the respondents discovered muddamal bag and other articles. The question is as to whether the discovery panchnama can be considered as substantive evidence to convict the accused persons.