ALPESHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE Criminal Appeals have been directed against the judgment and order dated 07/07/2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 89 of 2006 whereby, the learned Sessions Judge was pleased to convict the accused Nos. 6 and 7 for the offence punishable under Sections 302, 201 and 34 of the Indian Penal Code, 1860 ('the IPC' for brevity) and awarded life imprisonment and fine of Rs. 1,000/ - each and in default, further simple imprisonment for 03 years for the offence punishable under Sections 302 and 34 of the IPC and 07 (seven) years' rigorous imprisonment and fine of Rs. 1,000/ - each and in default, further simple imprisonment for one year for the offence punishable under Sections 201 and 34 of the IPC and acquitted the accused Nos. 1 to 4 for the offence punishable under Sections 302, 395, 396, 397, 143, 147, 148, 149 and 34 of the IPC; the accused No. 5 was acquitted of the offence punishable under Section 412 of the IPC and accused Nos. 6 and 7 were acquitted of the offence punishable under Sections 395, 397, 143, 147, 148, 149 and 34 of the IPC. Accordingly, Criminal Appeal Nos. 2282 of 2008 and 2731 of 2008 have been filed by the appellants - original accused Nos. 6 and 7 respectively, against conviction whereas, Criminal Appeal Nos. 2893 of 2008 and 2894 of 2008 have been filed by the State respectively against acquittal and for enhancement of sentence awarded against the original accused Nos. 6 and 7.

(2.) BRIEF facts of the prosecution case are that on 24/04/2006 in the midnight at Udyognagar in Jamnagar deceased - Ramesh Bahadur Gurkha was serving as watchman in a factory known as Yogi Cast (Foundry), at that time, the accused Nos. 1 to 4, in abetment of accused Nos. 6 and 7, with a view to commit robbery, entered into the premises and on being challenged by the deceased, they assaulted the deceased with Gupti and caused multiple injuries and looted 600 kg. Brass and though, it was allegedly known to accused No. 5 that the muddamal article was obtained by way theft, he purchased the same and thereby, the accused persons committed the offence charged against them and for the said alleged offence, complaint came to be lodged against them.

(3.) PER contra, Ms. Shah, learned Additional Public Prosecutor appearing for the State, took us to the evidence on record and contended that in view of the Panchnama and more particularly, the evidence of P.W. Nos. 7, 8, 9, 13 and 17, it is clear that the conduct of accused No. 7 - Mahesh immediately on the dead -body being found in the premises and P.W. No. 16, who found the dead -body in the factory premises in the morning and shouted at that time, the accused No. 7 was present and vomited and ran away from the factory speaks a volume. Apart from that, she further contended that the articles which were seized being muddamal article Nos. A to I clearly show that all the accused ought to have been convicted. She took us to the judgment and order of the trial Court where the trial Court, after discussing the evidence of each of the witnesses and the documentary evidence, has completely described the evidence and circumstances, which are against the accused Nos. 6 and 7 and accordingly, convicted them, whereas, wrongly acquitted the other accused by giving benefit of doubt though there was ample evidence available on record against them also.