STATE OF GUJARAT Vs. HANU DHARSI VAGHRI

JUDGEMENT

(1.) PRESENT appeal is preferred by the State under sec. 378 of the Code of Criminal Procedure against the judgement and order of acquittal dtd. 15/1/2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Rajkot in Sessions Case No. 218 of 1998 acquitting the respondent herein original accused for the offences punishable under sections 393, 395, 398, 342, 352, 511 of the Indian Penal Code and under sec. 25 (1) (b) and (a) of the Arms Act and under sec. 37 (D) and 135 of the Bombay Police Act.

(2.) THAT a Criminal Complaint being CR No. I-356 of 1994 was lodged by one Kanjibhai Fakirbhai Vaghela against six accused persons, inclusive of the respondent herein original accused, with Rajkot Taluka Police Station for the offences alleged to have happened on 21/7/1998. However, initially charge-sheet came to be filed only against three accused persons namely (i) Jotiyo alias Bhagvan Gafur Koli (ii) Bhura Nagar alias Gaju alias Ramesh Vaghri and (iii) Dilu Haji Vaghri. The respondent herein and other two accused were declared as absconding / not arrested and therefore, after investigation, charge-sheet was filed against aforesaid three accused only and thereafter the learned Magistrate committed the case to the learned Sessions Court which was numbered as Sessions Case No. 169 of 1995 and all the aforesaid accused came to be tried by the learned Additional Sessions Judge, Rajkot and they came to be acquitted. That thereafter, the respondent herein came to be arrested by the police on 25/5/1998 and a supplementary charge-sheet came to be filed against the respondent herein before the learned Magistrate and thereafter by order dtd. 13/10/1998, the learned Magistrate committed the case to the learned Sessions Court which was numbered as Sessions Case No. 218 of 1998. It appears from the record and proceedings that charge came to be framed against the respondent herein by the learned Additional Sessions Judge, Rajkot vide Ex. 1. Plea of the respondent accused came to be recorded at Ex. 2 and he denied the having committed the offences and therefore, he was put to trial. It also appears from the record and proceedings which is available with us that the learned Additional Public Prosecutor submitted an application at Ex. 11 submitting that as the evidences have been recorded against the other accused in Sessions Case No. 169 of 1995, no new evidence against the present respondent is required and therefore, it was requested to take into consideration the evidences recorded in Sessions Case No. 169 of 1995 while considering the present trial.

(3.) THE prosecution further examined one Mahendrabhai Keshavlal (panch) at Ex. 50, one Yakubbhai Isakbhai (panch) at Ex. 52 and Ganibhai Nathubhai (panch) at Ex. 54. The prosecution also examined one Mr. B. C. Thakkar, Prohibition Inspector at Ex. 57 and produced two documentary evidences i. e. Panchnama of place of offence at Ex. 51 and Panchnama of arrest of the respondent accused at Ex. 53. It also appears from the record that the respondent accused also submitted a pursis at Ex. 31 submitting that he has no objection if the depositions of the witnesses recorded in Sessions Case No. 169 of 1995 are exhibited and considered in the present case. It also appears from the records and proceedings of the case that the learned Additional Sessions Judge ordered to exhibit the evidences / deposition recorded in Sessions Case No. 169 of 1995 as Ex. Nos. 32 to 48 and to consider the same in the present case. However, it appears that not a single deposition / oral evidence recorded in Sessions Case No. 169 of 1995 is produced on recored, though they were directed to be exhibited as Ex. Nos. 32 to 48. Inspite of the fact that not a single oral evidence recorded in Sessions Case No. 169 of 1995 was brought on record and/or copies of the same were produced on record of the present case, the learned Additional Sessions Judge surprisingly, considering the record of Sessions Case No. 169 of 1995 and without the copies of the depositions recorded in Sessions Case No. 169 of 1995 on the record of the present case and considering the documentary as well as the oral evidence recorded in Sessions Case No. 169 of 1995 (sessions case in respect to other accused), acquitted the respondent herein. Being aggrieved by and dissatisfied with the judgement and order of acquittal dtd. 15/1/2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Rajkot in Sessions Case No. 218 of 1998, the State has preferred present appeal under sec. 378 of the Code of Criminal Procedure.