SHANUBHAI HEMABHAI VEDAVA VAGHRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . * * * *

(2.) . The present appeal arises from the judgment and order dated 21/03/1997 rendered by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 319 of 1995. By the impugned judgment and order the appellant who has been described as the accused herein came to be convicted of the offence punishable under Sec. 397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 5,000.00 in default to undergo rigorous imprisonment for a period of six months and also for the offence punishable under sec. 506(2) of the Indian Penal Code to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 500.00 in default to undergo rigorous imprisonment for a period of one month and for the offence punishable under Sec. 25( 1 )(c) of the Arms Act to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500.00 in default to undergo rigorous imprisonment for a period of one month. He has been acquitted of the offence punishable under Sec. 504 of the Indian Penal Code. He has been directed to undergo substantive sentences as also default sentences one after other. Accused Khemabhai Lakhabhai Vedava Vaghari was acquitted of the offence as aforesaid on account of insufficiency of the evidence against him. Since some of the accused persons were absconding the muddamal was directed to be kept in the safe custody.

(3.) . It so happened that at about 12-00 O'clock at night of 7/08/1991 complainant Hasmukhbhai Shivabhai Patel was in the company of his wife and children, all of whom were sleeping and when the servant was sleeping in the verandah of the house, someone had thrown battery light. The servant, therefore, woke up and asked who there was. The persons had run towards the field. Then there was sound of barking of dogs at about 1 -00 O'clock at night when one person approached the house of the complainant. The complainant and the servant had come out of the house. At that time 10 to 15 persons armed with sticks and knives were found having come there. They suddenly assaulted the complainant and the servant. The servant was given three to four stick blows and the complainant was caught hold of and brought inside the house and made to sit with his wife and children. While pointing the knife at his chest and while pointing "tamancho" at his wife they were asked to show and give whatever there was in the house. Thereafter, they started opening the bags and baggages and they found cash amount from one attache. They also found ornaments consisting of complainant's wife' necklace, gold earrings, two gold rings, one "mangalsutra", two gold bangles, one silver waist chain (kandora). four pairs of other ornaments, one ear-chain, Rs. 12,000.00 cash, one watch, four pants and six bush-shirts. All these items valued around Rs. 39.000.00. The persons had taken away the said items while threatening the complainant that if they had spoken anything they would be killed. While leaving the place they also locked the house from outside. They had then gone to the house of his neighbour Shankerbhai. but on account of shouts and other persons reaching the place they had run away. The complainant and the members of his family were brought out from the house. The persons were aged about 30 to 35 years and they were appearing to be of "Vaghari" community. Accordingly, on the complaint of said Hasmukhbhai Shivabhai Patel given on 8/08/1991 investigation was started. Statements of witnesses were recorded. Panchnama of scene of offence was made.