STATE OF GUJARAT Vs. BALSING RADHAJI SOLANKI

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.07.2004 passed by the learned Presiding Officer, 5th Fast Track Court, Nadiad (hereinafter referred to as "trial Court") in Sessions Case No.85/1999, by which the learned trial Court has acquitted the respondent herein - original accused for the offence under Section 395 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), the State has preferred the present Criminal Appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC").

(2.) The prosecution case in nutshell is that one Gopalbhai S. Dabhi - original complainant lodged the FIR before the Kathlal Police Station against the accused initially for the offence under Section 394 of the IPC alleging inter alia that on 13.10.1993 at about midnight hours, while he along with the prosecution witness Laxmiben and Jagdishkumar Punjabhai Dabhi were passing through the sim of village Khariya, 5 persons came there and started using filthy languages and the accused was having knife. It was further alleged that the original accused and other four committed the robbery of the ornaments of the wife of the complainant - Laxmiben. That the aforesaid FIR was investigated by 4 Investigating Officers at different times viz. Shri Dhulabhai Somabhai (PW6) and Shri Arvindbhai Raojibhai Patel (PW7). The first IO Shri Dhulabhai (PW6) prepared the panchnama of the place of incident. Subsequently, a report was submitted to delete the offence under Section 394 of the IPC and to add the offence under Section 395 of the IPC. Therefore, the FIR for the offence under Section 395 was investigated by PSI, Kathlal Police Station, Shri Arvind Raoji Patel (PW7). He recovered the weapons used by the accused - iron rod. He prepared the panchnama of the recovery of the weapon - iron rod. He recorded the statement of concerned witnesses. He arrested the accused Balsing Solanki. It appears that the aforesaid FIR was further investigated by one Jagdish Pathak, PSI, Kathlal Police Station, who on conclusion of the investigation filed the chargesheet against the accused in the Court of learned Judicial Magistrate First Class, Kathlal for the offence under Section 395 of the IPC.

(3.) Shri K.L. Pandya, learned Additional Public Prosecutor has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in acquitting the original accused for the offence under Section 395 of the IPC.