SURMAL MAKNABHAI MAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of present Appeal, the appellant challenges the judgment and order dated 8.3.2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod, in Sessions Case No.29 of 2009, whereby the learned Sessions Judge has convicted the appellant accused for the offences punishable under Sections 394 and 397 of the Indian Penal Code and ordered to undergo sentence for a period of ten years rigorous imprisonment and to pay fine amount of Rs.1,000/ -, in default of payment of fine, further to undergo simple imprisonment for one month, for the offence punishable under Section 394 of the Indian Penal Code and for the offence punishable under Section 397 of the Indian Penal Code, the accused was ordered to undergo seven years rigorous imprisonment. All the sentences shall run concurrently and the accused has been given set off the period of undergone.

(2.) SHORT facts of the prosecution case, on 16.11.2006 at about 12:00 a.m., the complainant and his wife and son were sleeping in their bed rooms. At that time, when his mother left bed room during that period at about 2:45 a.m., his mother shouted loudly for help and survival and at that time, the complainant along with his wife came there and they saw the some three to four unknown persons and they beaten complainant and his family members. As per the case of the prosecution, out of unknown persons, one person kept Tamancha on the head of son of the complainant and asked to give all the ornaments and cash. As per the case of the prosecution, the accused took away Rs.4000/ -, one Nokia Mobile, one gold ornament. The accused persons overall looted and committed robbery of Rs.35,600/ -. Therefore, the complainant filed complaint against the accused persons including present appellant for the offences punishable under Sections 394 and 397 of the Indian Penal Code. Thereafter, the investigating officer has filed the charge -sheet against the accused and the offence was exclusively triable by the Sessions Court, the case was committed under Sections 209 of the Code of Criminal Procedure before the Court of Sessions and same is numbered as Sessions Case No.29 of 2009. Thereafter, the learned Sessions Judge framed the charge against the accused. The plea of the accused was recorded wherein he has denied the charge levelled against him. Therefore, the trial has been conducted against the accused.

(3.) TO prove the case against the accused, the prosecution examined following witnesses : Sr. No. Name of the witnesses Exhibit P.W.1 Rameshchandra Kailashji Goswami 6 P.W.2 Pinalkumar Shashikant 8 P.W.3 Shanabhai Parthibhai Parmar 9 P.W.4 Ashokbhai Kanjibhai 11 P.W.5 Rameshbhai Bijiyabhai 12 P.W.6 Bhurjibhai Somjibhai 14 P.W.7 Pravinbhai Girishbhai Rathod 15 P.W.8 Kananben Pinalkumar Pandya 21 P.W.9 Bhairavdas Jagnnath Pal 22 P.W.10 Nitinkumar Bhairavdas Pal 23 P.W.11 Raufbhai Mohmmadbhai Fakira 25 P.W.12 Ujhefabhai Yusufbhai 25 P.W.13 Shantilal Kadkiyabhai 26 P.W.14 Nathalal Vallabhbhai Kathiriya 27