STATE OF GUJARAT Vs. GALABHAI MELABHAI SOLANKI

JUDGEMENT

(1.) HEARD Mr. A. J. Desai, learned APP representing the appellant-State. The appeal is admitted. This is an appeal preferred under Sec. 378[1][3] of the Code of Criminal Procedure, 1973 ["code" for short] against the judgment and order of acquittal dated 25th February, 2009, passed by the learned 3rd Additional District Judge and Additional Sessions Judge, Surat in Sessions Case No. 299 of 2007, by which the learned Judge acquitted the respondent for the offence punishable under Secs. 395 and 342 of Indian Penal Code ["ipc" for short].

(2.) AS per the prosecution case, incident in question took place on 10. 6. 2001. Accused armed with weapons etc. had gone to the residence of the complainant and started shouting. Subsequently, when the complainant opened the door, the accused caught hold of the complainant and threatened her and looted her of silver and gold ornaments etc. When the accused left the place of offence, they had also taken TVS Scooty. Thus, accused committed an offence under Secs. 395 and 342 of IPC. The offence came to be registered in Mandvi Police Station bearing I-75/01 for the offence punishable under Secs. 395 and 342 of IPC. Investigation was carried out on the strength of the complaint and on completion of the investigation, accused were charge-sheeted before the learned Judicial Magistrate First Class, Surat and as the case was exclusively triable by the Sessions Court, it was committed to Sessions Court under Sec. 209 of the Code which came to be registered as Sessions Case No. 299 of 2007. Learned Judge examined the prosecution witnesses and considered documentary evidence adduced by the prosecution and held that the prosecution has miserably failed to prove inextricable involvement of the respondent-accused in the commission of offence and there are many contradictions in oral depositions adduced by the prosecution. The learned Judge, therefore, gave benefit of doubt to the respondent and acquitted him for the offence punishable under Secs. 395 and 342 of IPC.

(3.) THE State being aggrieved by the aforesaid order has preferred the present appeal mainly on the ground that the learned Judge has not appreciated the oral depositions and documentary evidence in its true perspective while acquitting the respondent. It is contended by the learned APP that the PW 1 Rashmiben Chogdabhai Gamit examined vide exh. 8 has clearly deposed in her testimony that incident took place on 10. 6. 2001 and when shouts were raised, she opened the door of her house and accused and four other persons looted her of silver and gold ornaments. She identified the accused before the Court. Thus, the witness has fully supported the prosecution story indicating involvement of the respondent in the commission of offence. However, this evidence was not considered by the learned Judge while acquitting the respondent. Learned APP submitted that the trial court has erroneously come to a conclusion that the prosecution has failed to establish the case beyond reasonable doubt and as there was no link connecting the respondent with the crime, the respondent deserves to be acquitted. Thus, it is submitted by learned APP that the order passed by the learned Judge requires to be quashed and set aside and the respondent be convicted for the offence under Secs. 395 and 342 of IPC.