ALIMAMAD OSMAN BHATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this Appeal, the appellant-original accused No. 1, has challenged the judgment and order of conviction and sentence dated 27. 4. 2007 passed by the learned Addl. Sessions and Fast Track Court No. 3, Gandhidham in Sessions Case No. 50 of 2006 whereby the appellant was convicted and sentenced to undergo 5 years R. I. , and pay a fine of Rs. 1000/- in default, undergo further R. I. for a period of six months for the offence under section 394 of Indian Penal Code and 7 years' R. I for the offence punishable under section 397 of the Indian Penal Code, 4 months' R. I and to pay fine of Rs. 100/- and in default, one month imprisonment for the offence punishable under section 135 of the Bombay Police Act. The sentences were ordered to run concurrently. The facts necessary for disposal of the present appeal, in brief, are as under:

(2.) THE appellant is the original accused No. 1 of crime registered as CR. I No. 147 of 2006 with Gandhidham police station for the offence punishable under sections 394, 397 and 114 of IPC and section 135 of the Bombay Police Act. The appellant was tried before the learned Addl. Sessions and Fast Track Court No. 3, Gandhidham in Sessions Case No. 50 of 2006 whereby the learned Sessions Judge has imposed punishment of 5 years' R. I. and Rs. 1000/- penalty and in default 6 months imprisonment for the offence punishable under section 397 of the IPC, 4 months R. I. and Rs. 100/- penalty and in default, 1 month imprisonment for the offence under section 135 of the Bombay Police Act on the appellant and has convicted the appellant and accused No. 2 has been acquitted from the offence by the Sessions Court.

(3.) THE complainant-Sanjaykumar Ramashankar Upadhyay of Gandhidham has complained against the appellant-accused persons of the aforesaid offence. It is complained that on 19. 3. 2006 at about 8. 30 p. m. , when the complainant was on his way back from his job near Sai Baba water cooler, in Hotel Tinku he was playing caroms upto 9. 30 p. m. Thereafter he and his friend Rajendra Sharma with Atul Khera went to railway colony wherein at Ganpati chowk, they were sitting and chatting. Then around 10. 30 pm, they heard barking of dogs from the side of a two storied building. The complainant could see a person coming with a bag in one hand and in his other hand something like a weapon was there and that person was running. The complainant asked who was it and he ran upto that person thinking that the person was a thief. Thereafter the said person ran towards the rear portion of the two stored building and he left the bag on the road and was also shouting "chor-chor". The complainant and his friends also ran after that person. However, as thee was no light, they could not catch that person. The complainant and others checked the bag. There were two bags and one bag contained currency notes. One Sureshbhai came there and told that one Shankarbhai staying near Advocate Sharma's house was coming with money after closing his shop and in front of his house someone stabbed him and took away the bag containing currency notes and that the said Shankarbhai was admitted to Dr. Vohra's hospital. They informed the police and the police counted the money which was Rs. 3,27,695/ -. The police questioned the complainant and his friends and the complainant has filed the complaint which is registered as CR. I No. 147/2006.