RAMESHKUMAR NATHMALJI DARJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The accused-convict has filed this appeal through jail and learned advocate Mr. N.N. Prajapati has been appointed to appear for the appellant. After adjourning the matter on three occasions earlier at the request of learned advocate Mr. Prajapati, yesterday I have heard Mr. Prajapati as well as Ms. D.N. Pandit, learned Additional Public Prosecutor at length in the late hours. As the arguments were concluded yesterday, the matter is listed today for dictation of judgment. However, when the matter is called out today for dictation of judgment, Mr. Prajapati sought further time as he would like to find out some more authorities and make further submissions. This request cannot be accepted in view of the earlier adjournments granted to Mr. Prajapati and the fact that the hearing concluded yesterday when Mr. Prajapati made lengthy submissions.

(2.) By filing the present appeal, the appellant, original accused, Rameshkumar Nathmalji Darji, has assailed the legality and validity of the order of conviction and sentence recorded against him by learned Additional City Sessions Judge and Fast Track Court No.3, Ahmedabad City in Sessions Case No. 311 of 2004. The learned trial Judge has held the accused guilty of the charge of offences punishable under section 328 and 394 of the Indian Penal Code and sentenced him to undergo 5 years' rigorous imprisonment for offence punishable under section 328, IPC and fine of Rs.2000/-, in default of payment of fine 6 months' simple imprisonment, as also to undergo 6 years to rigorous imprisonment for offence punishable under section 394, IPC and fine of Rs.2500/-, in default of payment of fine, simple imprisonment for 6 months. Both the sentences were ordered to run concurrently.

(3.) Mr. Prajapati, learned advocate for the appellant has taken me through the oral as well as documentary evidence led during the course of the trial as also the judgment under challenge. Mr. Prajapati has mainly argued that there is delay in filing the FIR and there is scope of confusion as to the identity of the accused. According to Mr. Prajapati, the complainant lodged his complaint on 19.06.02 at Abu Road alleging that somebody has stolen his luggage and other valuables including the cash that he was carrying in the pocket of his pants during the night hours, anytime after 11.55 PM and after boarding the train going from Ahmedabad to Ajmer. He has narrated the incident in the complaint. However, as the offence was committed in the territorial jurisdiction of the city of Ahmedabad, the Abu Road Police Station transferred the FIR to Ahmedabad. The Ahmedabad Police was not able to reach to the accused as no name or other description was clearly available to the police, but it is the say of the prosecution that on 03.04.04, the accused was intercepted and arrested under section 122 (C) of the Bombay Police Act and thereafter the police investigated and found that it is the very person who is involved in the offence committed qua the complaint of the complainant originally registered at Abu Road. The prosecution has explained that why the complainant was called to participate in the T.I. Parade arranged by the police. It is alleged that the complainant was informed to come down to Ahmedabad and in the identification parade arranged by the Executive Magistrate, the complainant identified the present appellant-accused as the person who had offered him a cup of tea and thereafter a biscuit after developing some acquaintance posing him to be a person hailing from Rajasthan. It is the case of the prosecution that the complainant had become unconscious and before that he felt some abnormal physical condition, and therefore, he had occupied the upper berth of compartment but he was taken out of the railway compartment by the police and was admitted in hospital. It is the say of the complainant that after occupying the upper berth, he was not at all aware about the events occurred thereafter and he found himself in the coat of the hospital when he regained consciousness and Doctor had informed him about the details and the situation in which he was brought into the hospital. In the hospital, the complainant realized that he lost his luggage and an amount of Rs.5000/- which was kept in the pocket of his pant. He has also expressed a suspicion that the man with whom he was talking in the compartment, who offered him a cup of tea and biscuit has taken away his luggage and cash from his pocket.