STATE OF GUJARAT Vs. HANU DHARSHI VAGHRI

JUDGEMENT

(1.) This criminal appeal is preferred by the State of Gujarat against the respondent under Section 378(1)(3) of the Code of Criminal Procedure,1973, against the order of acquittal passed by the learned Additional Sessions Judge, Second Fast Track Court No.2, Rajkot, in Sessions Case No. 219/98 dated 15.01.2005.

(2.) Brief facts of the prosecution case are that the complainant Alabhai Arjanbhai lodged a complaint before Rajkot Taluka Police Station inter alia stating that on the night of 27/7/1994 and 28/7/1994, when he and his son Ranchhodbhai were sleeping outside their house in their vadi field and his wife and daughter inlaw were sleeping inside the house, at about 1:30 hours complainant's son Ranchhodbhai raised shouts and complainant got awaken and he saw that there were about 8 persons near his house in his vadifield. He had seen them in the electricity light, which is outside his house. He had seen those 8 persons with sticks, pipes and one of them was having battery in his hand. He flashed light of battery on complainant and another person gave pipe blow on head of the complainant and another blow on his left hand. The complainant and his son raised shouts and also ran towards west direction. One of them also gave stick blow on the leg and on the side on knee joints. Then the accused also went towards the vadifield of Laghrabhai Kanabhai. The complainant was taken to hospital by villagers of his village viz., Bharvad Lakhabhai and Chhaganbhai Devabhai and Dhirubhai Morarji in a matador. Nothing was missing from the house of the complainant Alabhai. His wife and daughterinlaw also received injuries on account of beating by the accused persons, who had come to the vadifield of complainant. The complainant lodged complaint and the offence was registered. The said persons had also gone to the vadifield of Laghrabhai Kanabhai and the accused persons were 8 to 10 in number and they threw stones on the house of complainant and complainant and his son were sleeping in front of their house in open field and his wife and daughterinlaw and two small children of his son were sleeping in a shade made in front of their house. On account of stone throwing, they were awakened and they were also beaten. The complainant and his sons ran away and some of the accused persons entered into the house of witness Lagharabhai Kanabhai and ransacked their house and damaged goods in their house. They have taken golden nose ring of 4 tola and silver Hirakedi of 10 tola, silver kadala of 600 gram and cash amount of Rs.1100/ was also taken away from the house of complainant. The prosecution also alleged that the said 8 to 10 accused persons had also gone to the vadifield of witness Mavajibhai Damabhai. Said witness Mavajibhai Damabhai while sleeping in the courtyard of his house, in his vadi, at about 2:00 a.m at night, he got awakened and the dogs were barking. He came outside his vadifield on road and had seen six persons. Out of them, two were having sticks, two were having knives and two were having Dhariyas. They asked him whether the thieves had come and he denied. Those six persons were speaking mixed HindiGujarati language and thereafter they had gone to the vadi field of complainant and the witnesses had also followed them. One of them pointed out knife at him and touched it to his body and asked him to give whatever he had with him. When he stated of having nothing, he was beaten with sticks. Out of them, three went into his house, ransacked his house and one of them told him that not to raise any shouts, otherwise, he would be beaten. He further stated that 1,000/ rupees in cash and one umbrella and one battery were taken away from his house. His wife Vijuben was raped by three accused persons at the fear of knife and threat was given to kill her husband. The prosecution also alleged that the accused committed rape on Dhaniben wife of Kira Hamir in house of Vadifield of Vihabhai Bharvad at whose vadifield, she and her husband were staying to work as labourers. Thereafter a case was registered for the offence punishable under Sections 395,397,398,376,447 of Indian Penal Code and under Section 37(1), 135 of the Bombay Police Act. On completion of the investigation the police authority submitted the charge sheet before the learned J.M.F.C and he committed the Case to the Sessions Court, Rajkot, under the provisions of Section 209 of the Code of Criminal Procedure,1973.

(3.) Heard learned APP Ms. Moxa Thaker, for the State and Mr. Bhavesh Hajare, learned advocate for Ms. S J Shaikh, learned advocate for the respondentaccused. It is submitted by Ms. Moxa Thakker, learned APP for the State that the procedure adopted by the learned trial Court of relying upon the evidence recorded in earlier Sessions Case No. 170 of 1995 and without the same being brought on record of the present case, and even without exhibiting the same and/or producing the copies of the same on record and thereby acquitting the respondentaccused is not known to the Code of Criminal Procedure. She has relied upon Section 273 Cr.P.C and argued that all oral evidences were required to be taken during the course of the trial in presence of the accused. She also relied upon Section 33 of the Indian Evidence Act. She further relied on Section 299 Cr.P.C to contend that if it is proved that an accused person have absconded, and that there is no immediate prospect of arresting him, the Court is competent to try such person for the offence committed by him and in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their deposition. She has further argued that the judgment and order passed by the learned trial Judge acquitting the respondent herein, relying upon the evidences recorded in earlier Sessions Case No. 170 of 1995 and without producing copies of the said evidence on record of the present case, requires to be quashed and set aside. She has also requested to remand the matter to the learned trial Court to decide the matter afresh on merits. She has also relied upon two judgments of the Hon'ble Apex Court reported in (2014) 12 SCC 400 in the case of Vijay Ranglal Chorasiay vs. State of Gujarat and allied matters and also in the case of Nirmal Singh vs. State of Haryana reported in (2000) 4 SCC 41.