BABULAL SARDARMAL SEVAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 26. 6. 2009 passed by the 4th Addl. Sessions Judge, Surat in Sessions Case No. 166 of 2007, by which the learned Sessions Judge convicted the present appellant for offences punishable under sections 328, 379 read with section 34 of IPC and h sentenced to suffer R. I. for one year for section 379 and R. I. for three years for section 328 and fine of Rs. 2,000/- in default, one month's simple imprisonment. The said judgment and order of conviction is challenged by way of this appeal.

(2.) THERE were two Sessions Cases being No. 166 of 2007 and 280 of 2007. Both the Sessions Cases arise from one and the same incident and therefore, they were decided together by the Sessions Court. The learned Sessions Judge convicted accused Babulal Sardarmal Sevak, the present appellant in Sessions Case No. 166/07 for the offences punishable under sections 328 and 379 read with section 34 of IPC and sentenced him to suffer imprisonment as stated in para 1. The Sessions Court also passed order both the sentences to run concurrently. So far as Sessions Case No. 280/07 is concerned, the accused-Gautam Dhevarchand Jain was acquitted for the offences punishable under sections 379 and 328 read with section 34 of IPC. The State has not filed any appeal against the acquittal of this accused.

(3.) IN brief, it is the case of the prosecution that complainant-Keshav Murarilal Soni, resident of Jaipur, Rajasthan was travelling by train No. 9008 Jaipur-Bandra Aravali Express. The complainant was travelling from Jaipur to Bandra. It is alleged that the accused persons were also travelling with the complainant in the same compartment. When the train reached at Surat station in the early morning at about 3 a. m. , it is alleged that one person amongst the two accused i. e. the present appellant, came with soft drink 'fruity" and offered one to the complainant. After drinking the fruity, the present complainant became unconscious and he fell asleep. In the morning, the train reached the last station i. e. Bandra. At 8 am, one of the sweepers of the train came to the complainant and asked him to get up and he woke him up. The complainant woke up and found that he was looted and cash of Rs. 1500/- as well as silver finger rings and Nokia mobile phone were missing. The complainant immediately lodged complaint before the Bandra police station. Thereafter he was admitted in hospital. The police called sister and mother of the complainant who were residing in Pune as per the information given by the complainant. After the treatment he was discharged from the hospital. As the offence took place in the jurisdiction of Surat police station, Bandra police station has sent the complaint along with relevant police papers to Surat police station and thereafter offence was registered which is produced at Exh. 7. The present appellant-accused was arrested in connection with CR. No. 209 of 2007 registered at Umra police station and during the investigation of this case, the present offence was detected and the present appellant was arrested in connection with this case which was registered as CR. I. No. 96 of 2006. During remand, investigation was carried out, Test Identification Parade was also held and necessary panchnama was drawn and at the end of the investigation, charge sheet for the above referred offence was issued by the learned Judicial Magistrate First Class, Surat. Subsequently, the other accused was also arrested and supplementary charge sheet was filed before the Judicial Magistrate, Railway court, Surat which was numbered as c. c. No. 8347 of 2007. Both these cases were committed to the Sessions Court by the learned JMFC, Surat as the said court has no jurisdiction to try the case under section 209 of the Criminal Procedure Code. Both the Sessions Cases were numbered as Sessions Cases No. 166 of 2007 and 280 of 2007. The learned Sessions Judge framed charge Exh. 34 for offences as referred to above. The accused denied charges and claimed to be tried.