ALI MOHAMAD SIDDIQUE BALOCH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 106 of 1987 on 24th January, 1992, the present appellant-original accused No.2 has preferred the present appeal under the provisions of Section 374 of the Code of Criminal Procedure. The present appellant has been convicted for the offence punishable under Section 307 of the Indian Penal Code and sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of making payment of fine to undergo two months imprisonment. Whereas, the original accused No.1 has been acquitted from the charges levelled against him.

(2.) The judgment and order of conviction and sentence has been challenged by raising various grounds mentioned in paragraph 3 of the memo of appeal. Ms.Paurami Sheth, learned Counsel for the appellant has taken ! this Court through the main grounds of challenge so also through the oral as well as documentary evidence led by the prosecution during the course of trial. According to learned Counsel for the appellant, the finding recorded by the learned trial Judge is erroneous because the same is based on incorrect appreciation of evidence. It also suffers from certain legal infirmities as well as errors and therefore the order of conviction should be held unsustainable and the appellant-original accused No.2 should be acquitted from the charges levelled against him. She has further submitted that two persons were prosecuted and charged by the Investigating Agency with practically similar allegations. However, the learned trial Judge has decided to acquit the original accused No. 1 tor no good reasons and the present appellant has been linked with the crime mainly on conjectures and surmises. To bring home the charge the prosecution ought to have proved its case by leading cogent and convincing evidence. Certain important witnesses have not been examined and one finding though is against the prosecution in reference of gun used in the commission of offence, the appellant has been held guilty of the charge of using the very gun in commission of offence and he has been asked to serve the rigorous, imprisonment as slated aforesaid.

(3.) Ms.Pandit, learned Addl. Public Prosecutor, for the respondent-State has, submitted that impugned judgment and order is based on sound reasons and two witnesses who have deposed before the: Court, have been rightly believed by the learned trial Judge. There was no reason for the trial Judge to discard the evidence of injured witness-Shantilal Ambalal, as such there was no serious dispute as to the nature; of injury that was found on the body of injured person also as to the place of offence. There is ample evidence on record to show that the accused persons were: known to this injured witness and incident had occurred in broad day-light i.e... between 5:15 and 5:30 p.m. in the month off September. The Prosecution Witness No.4, Ravjibhai Haribhai Patel, who has been examined at Exh. 13 of course has been branded as interested witness but the learned trial Judge has taken ample caution by scanning the evidence before accepting his version as reliable piece of evidence. Prosecution Witness No.4-Ravji was havitng his agriculture land near the bus-stop of village Masargam of Tal. Padra and he was returning from his agricultural field and going towards his home and he was at a distance of about 4 feet from the injured person, therefore the learned trial Judge cannot be said to have committed any error in accepting his version. The gun seized during the course of investigation was sent for analysis and the same was found used. The Police had collected some articles from the spot including the earth and the result of analysis carried out by the F.S.I.,., reveals that the incident had occurred in the 'sim' of village Masargam. According to learned A.P.P., when the injured started to his village, both the accused persons had assaulted him and the present appellant has been held responsible for causing gun shol injury by using double barrel gun. There is also evidence on record to show that both the accused persons were inimical to injured and a litigation was pending before the Court of learned Judicial Magistrate First Class, Padra between the original accused No.1 and injured-Shantilal. as well as, the present appellant and injured-Shantilal. Learned A.P.P. has further submitted that merely because the trial Court has acquitted 5 the original accused No.1 and State has not preferred any acquittal appeal, the present. appellant cannot get the advantage of that error, even if the original accused No. 1 is convicted by the learned trial Judge. This is a case where formal examination of ballistic expert was not required. The report of the F.S.L. and ballistic was received through the Investigating Officer and the learned trial Judge has rightly considered these documents. Though the Panch Witnesses have not supported the case of prosecution and discovery Panehnama of gun has not been believed or considered by the learned trial Judge, it would not effect the ultimate finding of guilt recorded by the learned trial Judge. She has further submitted that the conviction recorded by the learned Judge is on sound reasons and therefore the appeal deserves to be rejected. 3. To appreciate the rival side contentions, it would be beneficiary to state the basic facts that were placed by prosecution initially when both the accused persons were charge-sheeted because while framing the charge, the present appellant- accused was not charged for the offence punishable under Section 25 (1C) of the Arms Act. It is neither the case of s prosecution nor any documentary evidence is led to prove that the accused was holding any fire arm unauthorizedly allegedly used in the commission of offence. The appellant-accused was possessing or owning a fire arm under a valid licence because it is referred in the evidence that the present appellant was serving as Guard "Sim Rakha" for the whole village-Masargam. It is the practice of practically all happy and wealthy village to employ a guard who would protect the agricultural fields and properties of the farmers of the village. It is in evidence that the present appellant was serving as "Sim Rakha" in village Masargam and was also provided him a residential premises in the outskirts of the said village in the year 1983-84. It is the say of prosecution that son of the appellant had fled away with one village girl, daughter of one Ishwar Ganesh Rohit and therefore the Village Panchayat has resolved to terminate the services of the appellant. So, if the appellant was actually holding fire arm related to his nature of employment then it was very easy for prosecution to prove tha gun seized during the course of investigation, is the gun owned or possessed by the appellant-original accused No.2. Two eye-witnesses were examined including the injured, have not clearly stated that the muddamal gun shown to them during the examination in the Court, is a very gun that they had seen in the hands of accused No.2 appellant herein at relevant point of time. In this background, the Court is inclined to state the basic facts that were placed initially before the Police by the complainant.