BHAILALBHAI ARJUNBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) APPELLANT of Criminal Appeal No. 154 of 2005, Bhailalbhai Arjunbhai Vasava was original accused No. 1 and appellant of Criminal Appeal No. 177 of 2005, Hajratsha Indusha Divan, was original accused No. 2 in Sessions Case No. 50/03. By the impugned judgment and order dated 31st December 2004, the learned Joint District Judge, Anand convicted the appellants for offences punishable under section 394 and 397 of the Indian Penal Code and sentenced them to R. I. for seven years each. They were also directed to pay fine of Rs. 2,000/- for each of the offences. Substantive sentences were, however, made concurrent. It may be noted that original accused No. 3 Sujit Rajubhai was acquitted.

(2.) AS per charge Ex. 12, it was alleged against the accused that on 21. 4. 96, between 11. 45 to 12. 00 O' clock at night, the accused had taken a lift in an ambassador car being driven by the complainant near Vadodara at Chhani Octroi junction requesting that they be dropped at Vasad. At Vasad they had overpowered the complainant and his hands and legs were tied. He was then left there in the said condition. The accused had decamped with the ambassador car No. GJ-5-3276, Rs. 400 and driving licence of the driver. It was therefore alleged that they had committed offence punishable under sections 394 and 397 read with section 120-B of the Indian Penal Code.

(3.) TASVARHUSSAIN Saiyed, complainant, PW-5 was examined at Ex. 35. He stated that he was engaged as a driver by one Kalpeshbhai. On 21. 4. 96, in Ambassador car No. GJ-5-3276, he had dropped uncle of Kalpeshbhai from Nadiad to Vadodara station. While returning when he reached Chhani Octroi check post, he stopped the car to answer the natures call. At that time, some four people came and asked him for a lift upto Vasad. At Vasad petrol pump when he stopped the car, they requested him to drive further on. When the car reached at a dark spot, the passengers gagged him with a piece of cloth. His hands and legs tied and he was thrown on the road side. They took away the car. He somehow managed to reach near one old gentleman who helped him and took him near Sarsa Road from where he took a lift of a scooterist and reached Chikodra cross-roads. When a police van passed by, he informed them about the incident. He was then taken to Anand Police Station and lodged a complaint. The assailants had taken away Rs. 400/- which he was carrying as also his silver ring. His licence was also taken away, but he had not realized it at that time. He could recognize the assailants. He stated that identification parade was not carried out in presence of the Magistrate. He, however, identified, the accused before the Court and stated that the fourth person is missing. In the cross-examination, he admitted that in the complaint he had stated that none of the persons had any weapon. He, however, stated before the Court that one of them was carrying a knife. These persons were speaking in Hindi. He denied that when the police had called him, he had not been able to identify the accused. In further cross-examination, he stated that in Bharuch Police Station he was asked to identify the persons which he could do. He denied that after seeing the accused in Bharuch police station, he had no occasion to see them again.