UMARFARUK MOHMEDSAFI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal against the order of conviction and sentence passed by the learned City Magistrate 2 Court Ahmedabad convicting the appellant-accused for the commission of an offence punishable under secs. 379 114 of the Indian Penal (Code. The learned Magistrate has sentenced the appellant-accused to suffer R. I for six months and to pay a fine of Rs. 100/in default to suffer R. I. for 15 days. The charge which was leveled against the present accused appears at page of the record and proceedings. It was alleged that appellants Nos. 1 & 2 (original accused Nos. 1 & 2) along with six other persons on or about the 4th day of October 1972 at Sabarmati committed theft of coal which is the property of Railway Administration valued at Rs. 200/and abetted each other and that thereby they had committed an offence punishable under sec. 379 of the Indian Penal Code. At the very out-set I may state that the learned Magistrate has acquitted the original accused Nos. 3 to 8. The defence of the appellants was that they are not guilty for the charge leveled against them. They stated that at the relevant time they wore present when the offence in question took place but they had not given any signal to facilitate the commission of the alleged offence.

(2.) In order to prove the prosecution case the prosecution had examined one Hanumant Lal Sohanlal Varma P. W. 1 exh-4. This witness was working as a Sub-Inspector in the Railway Protection Force at the relevant time. This witness bad deposed that on 4th October 1972 at about 4.00 p.m. he was working at Sabarmati. He had also deposed that on receipt of a telephone message from A cabin that some ladies and children were removing railway coal and upon theft was being committed he reached to the spot along with Baldevsinh Rakshak Keshavprasadsingh Rakshak Mathurbhai and others. He saw that 15 ladies were committing of coal from the open wagon near A cabin. He also deposed that appellants Nos. 1 & 2 (accused Nos. 1 & 2) were present and appellant No. 2 gave signal run away. He also deposed that they did not approach anybody as the offenders had run away. He also deposed that near about 2 tons of coal were left at the spot by the offenders who had run away. This very witness informed the police about the commission of the offence in question. when this witness was cross examined. no question was asked to the witness in regard to the signal given by the appellant to the offenders as deposed to by the witness in examination in chief. This witness did produce the relevant F.I.R. Exh. 5 which also corroborates the overdoses of the witness before the learned City Magistrate. The Prosecution had also examined Bhankarji Shikhaji P.W. 2 Exh. 6 who had produced and proved the contents of the Panchnama Exh. 7 which shows the coal in Fact Was lying at the scene of offence. The prosecution bad also examined one Baldevprasadsingh Udayrajsinh P. W. 3 Exh. 8 who had accompanied P. W. 1 at the relevant time. This witness in substance had also deposed that the appellant-accused had given the necessary signal the to other accused persons to run away. The prosecution had examined Shivprasad Devnarayan P. W. 4 Exh. 9 who also deposed that accused persons were present at the relevant time. The prosecution also examined one Jaswantlal Purshottamdas Patel P.W. Exh. 10 to show that coal received was fact in by the Railway Administration on the day in question. In this behalf the witness had produced and proved the contents of Exh. 11 showing in fact coal was received by the Railway Administration on the day that in question. The prosecution has also examined one Ashandas Hemandas Chandani P. W. 6 Exh. 12 to show that on the day in question the were on duty. The prosecution had also examined Janrudin Mustafa P.W. 7 Exh. 13 who deposed that he had arrested the appellants accused on the same day. The prosecution also examined Lal Mohmad Amarulla P. W. 8 Exh. 14 who was in charge of police investigation. The learned Magistrate had acquitted the original accused Nos. 3 to 8 and had convicted the appellants-accused Nos. 1 and 2 as stated by me in the earlier part of my judgment. It is under these circumstances that the present appeal is filed in this court.

(3.) Mr. A. D. Shah Learned Advocate appearing on behalf of the appellants-accused has mainly contended that as the original accused Nos. 3 to 8 are acquitted by the learned City Magistrate the appellant -accused Nos. 1 and 2 cannot be convicted for the commission of the offence punishable under sec. 379 read with sec. 114 of the Indian Penal Code. In substance Mr. Shahs submission was that this is not a case where the appellants-accused had instigated accused Nos. 3 to 8 for the commission of the alleged crime. Mr. Shah also 6aid that this is not a case where there was any allegation from the prosecution that the appellants-accused had conspired with original accused Nos. 3 to 8 for the commission of the alleged crime. Mr. Shah also submitted that this is a case where the appellants-accused had merely aided or facilitated the commission of the crime as alleged by the prosecution. The prosecution has alleged that the principal offenders were the original accused Nos. 3 to 8 and the evidence only discloses that when the theft was being committed the appellants-accused were on duty as Sainik's who gave a signal to original accused Nos. 3 to 8 to run away. This is the only role which is alleged by the prosecution against the appellants-accused Nos. 1 & 2. On these facts Mr. Shah submitted that the appellants-accused Nos. 1 & 2 cannot be convicted for the commission of the offence punishable under sec. 379 read with sec. 114 of the Indian Penal Code. Mr. Shah invited my attention to sec. 107 of the Indian Penal Code which provides as follows :-