MUTVA DADU ABDREMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present apellants, six in number, who have been described as the accused persons, came to be charged with the offence punishable under Sec. 395 of the Indian Penal Code (IPC for short) in Sessions Case No. 43 of 1987. After the trial and hearing, the learned Sessions Judge by his impugned judgment dated 19th July, 1988 convicted the accused persons and sentenced them to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 500/- i/d to undergo further sentence for a period of three months for the aforesaid offence charged against them. They have preferred this appeal bringing under challenge their conviction and sentence.

(2.) Before the allegations made by the complainant, as per the prosecution case, arc set out, following brief facts emerging from the prosecution evidence might first be visualized: There is a village, Jhara by name situated in Nakhatrana Taluka, District Kutch. The persons of the complainant party appear to be the inhabitants of the said village. There is a village, Kulay by name also situated in Nakhatrana Taluka, District Kutch and the accused persons appear to be the inhabitants of the said village. There is some forest area where the alleged incident occurred. It is around 2 to 3 k.m. from village Jhara and around 3 k.m. from village Kulay. There is one more village namely Vedhar which is at a distance of around 4 k.m. from the aforesaid forest area where the alleged incident occurred. One Raising was the inhabitant of the said village at the relevant point of time. Finally, Nakhatrana Police Station where the complaint is stated to have been given is at a distance of about 20 to 25 k.m. There were 80 camels at the scene of offence. The camels might be 'he' or 'she' camel. In dictionary that might not make difference but in the present case they were 'she' camels and that would make difference with regard to their added utility of giving milk product. It appears that the persons of the complainant party were deprived of the camels for a few days and that is how it appears that they have suffered loss. The camels were found in the sim of village Gichada and the complainant Magansinh was present when the police in the company of accused Dadu and pancha witness Abhesing went there. Thus, it appears that the camels could be traced out in a public place and it does not appear in the prosecution evidence that any of the accused persons had any idea of having unlawful gain in any manner from the aforesaid camels. Finally, the persons 'of the complainant party and the accused persons were known to each other on account of the fact that the accused persons were going to the persons of the complainant party for fetching milk of camels.

(3.) In the back ground of the aforesaid facts, now the prosecution story might be noted. Complainant Magansinh Bhimji PW. 2 Exh. 14 aged about 60 years inhabitant of village Jhara, Bhuj, complained before the police on 14th October, 1986 at about 3.30 p.m. that he in the company of his younger brother Laduji Bhimji and Satidan Chensing had gone for the purpose of grazing of their camels. There were 80 camels in all, 76 belonging to the complainant and 4 belonging to Satising. They had taken rest in the afternoon and also had water being taken from the village pond in the sim of village Motichur. After sunset they proceeded towards a place in the nearby forest area situated at a distance of around 2 k.m. to the east of village Kulay. At that place, they left the camels for grazing and sat for taking their evening meals. By that time, Jetmalji Jivanji of village Guneri arrived at that place and told the complainant that two of his camels were missing. He further asked the complainant if they were in the complainant's camels grazing at that place and the complainant replied that they were not there. Thereafter, Jetmalji had also accompanied the persons of the complainant party for taking evening meals. It was around 10-00 O'clock at night when 14 to 15 persons suddenly reached the place where the persons of the complainant party were taking their meals. It was dark night. They asked the persons of the complainant why they had stationed at the place. Asking so, younger persons had tied the persons of the complainant party with the ropes. However, Jetmalji was not so tied. They also gave fist beating and kick beating to the persons of the complainant party. They were armed with the sticks. Out of them six accused persons could be recognized. The complainant could not recognize the other persons. Thereafter, they had taken 80 camels with them. Sometimes thereafter Jetmalji had released the persons of the complainant party who had first gone to Vedhar from where Jetmalji parted. The complainant informed one Sodha Raising Jalimsing of village Vedhar about what happened. The complainant has alleged that the accused persons and other persons had taken away one old blanket valued Rs. 50/- and one towel of complaint's brother Laduji, valued Rs. 25/-, along with 80 camels valued Rs. 60,000/-.