babubhai bokhiria acquittal judgment
DESCRIPTION
Babubhai Bokhiria acquittal judgmentTRANSCRIPT
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Received on : Registered on : Decided on : Duration :
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IN THE COURT OF ADDITIONAL SESSIONS JUDGE, PORBANDAR.
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Criminal Appeal No. 22/2013 Criminal Appeal No. 25/2013 Criminal Appeal No. 26/2013
Exh. 71.
Criminal Appeal No. 22/2013
APPELLANT : Babubhai Bhimabhai Bokhiriya, Aged: 60 years, Residing at 5, Vadi Plot, Porbandar.
Criminal Appeal No. 25/2013
APPELLANT : Bharatbhai Maldebhai Odedara,, Aged: 60 years, Residing at 4, Vadi Plot, Porbandar.
Criminal Appeal No. 26/2013
APPELLANTS : (1) Bhimabhai Dullabhai Odedara, Aged: 55 years, Residing at village Adityana, Boricha Road, Dist. Porbandar.
2/28 (2) Laxmanbhai Bhimabhai Odedara, Aged: 29 years, Residing at village Adityana, Boricha Road, Dist. Porbandar.
V/s.
RESPONDENT : State of Gujarat,
Appearance:Ld. Advocate Mr. A. J. Desai, for the appellants of Cri. Appeal No. 22/2013 and Cri. Appeal No. 25/2103.
Ld. Advocates Mr. V. G. Popat & Mr. K. R. Odedara & Ms. S. D. Odedara, for the appellants of Cri. Appeal No. 26/2013.
Ld. P. P. Mr. S. B. Jethwa, for the respondent.
Subject : Conviction Appeal U/S. 374 of the Code of Criminal Procedure, 1973.
COMMON JUDGMENT
Impugned judgment and order.
1. The appellants - accused have challenged the common judgment of
conviction and order of sentence recorded by learned Chief Judicial
Magistrate, Porbandar in Cri. Case No. 11258/2006 and Cri. Case No.
117/2008, dated 15.06.2013. Learned Chief Judicial Magistrate has held
the appellants-accused guilty for the offence punishable under Secs. 379,
447 and Sec. 114 of the Indian Penal Code, 1860. The appellants are
original accused. Respondent is the State of Gujarat. These are the
conviction appeals under Sec. 374 of Criminal Procedure Code, 1973.
Facts and allegations against the appellants.
2. The allegations against the appellants-original accused are such that
3/28the Saurashtra Chemicals Ltd. Co. is holder of lime stone mining lease.
Revenue Survey No. 22/2 (paiki) admeasuring 60-Acre, situated in the
sim of village Boricha most particularly Jinjarka area is the lime stone
mine belongs to the company. Further, it was the prosecution case that in
the same locality and same survey number, the company is also holder of
lime stone lease, having 250-Acre mining area. The company used to pay
'dead rent'. In other words, the company had never started lime stone
excavation or any other mining activities in the above said lease holdings.
The complainant at the time of incidence was working as Assistant
Manager, Mines & Lime Stone, Saurashtra Chemicals Ltd., Porbandar.
2.1 Further, it was the prosecution case that on the day of incidence;
i.e. 05.10.2006, Geologist, Mines & Minerals Department along with his
team conducted site inspection. During this checking the inspecting team
and officers of the company have found that massive excavation and
mining activities were going on at the place of offence; i.e. mining lease
belongs to Saurashtra Chemicals Ltd. Some of the labourers have
informed the inspecting team that they are working for appellants-accused
as appellants have instructed them for excavation of lime stone and to
conduct mining activities on behest of the appellants-accused, they are
excavating lime stone since last five years.
2.2 Further, it was the case of prosecution that the appellants-accused
have excavated more than 17 Lac Metric Ton of lime stone, worth Rs.
54.18 Crore. Further, appellants-accused have obtained explosive
materials on the name of their own mining lease. Appellants-accused
have transported illegally excavated lime stone with the help different 11
transporters, some of the transport company are owned by accused or
their relatives. Appellants-accused have obtained huge amount of money
4/28from various chemicals companies from the such stolen lime stone,
through various Banks. Thus, appellants-accused with the help of each
other have committed these offences of trespass and theft of lime stone.
Procedure followed by learned Trial Judge.
3. The police has registered an offence against the appellants-accused
vide Bagvadar Police Station I C.R. No. 83/2006 punishable under Sec.
379, Sec. 447, Sec. 114 of the Indian Penal Code, 1860. After the
conclusion of police investigation, the police has submitted charge-sheet
against the appellants-accused, before learned Chief Judicial Magistrate,
Porbandar. Learned C. J. M. has provided free of cost all the copies of
police papers to the accused and recorded plea of the accused for the
offence punishable under Sec. 379, Sec. 447, Sec. 114 of the Indian Penal
Code, 1860. Learned C. J. M. has followed procedure of warrant triable
case as prescribed by the Criminal Procedure Code, 1973. Appellants
have not pleaded guilty, they have preferred to defend themselves. The
prosecution side has produced and adduced documentary and oral
evidences on record. Learned C. J. M. has recorded further statement of
accused under Sec. 313 of Cr. P. C. It is pertinent to note that defense side
have not preferred to produced any defense evidences on record.
Sentence inflicted on the appellants.
4. After hearing arguments advanced by the either sides, learned C. J.
M. came to the conclusion that offence against the accused is duly
proved. Learned C. J. M. has recorded conviction of all the accused and
inflicted rigorous imprisonment for three years and fine of Rs. 5,000/- for
the offence under Sec. 379 of the Indian Penal Code, 1860. In default of
payment of fine, has also inflicted imprisonment for more six months.
Further, all the appellants-accused have also been held guilty for the
5/28offence punishable under Sec. 447 of the Indian Penal Code, 1860 by the
learned Trial Judge and has inflicted simple imprisonment for six months
with fine of Rs. 500/-. In default of payment of fine, has ordered to
undergo one additional month of imprisonment. Learned C. J. M. has also
ordered the concurrent running of sentence. Feeling aggrieved and
dissatisfied with impugned judgment and order, appellants - accused have
preferred these conviction appeals.
Documentary and oral evidences considered by learned Trial Judge:
5. The entire impugned judgment is based on following evidences.
Oral evidences
Sr. No.
Exhibit Description of witnesses Documents produced
1 22 Witness– Karshanbhai Sidibhai.The labourer who has informed the complainant about illegal mining by the accused, signed rojkam prepared by inspecting team. Hostile.
--
2 27 Complainant – Umeshbhai Ishwarlal Bhavsar - Assistant Manager, Saurashtra Chemicals Ltd. who has deposed regarding lease, payment of dead rent and excavation of lime stone.
Exh. 28 -Complaint,Exh. 29 - A xerox copy of mining lease deed,Exh. 30 - A xerox copy of mining lease transfer order from Government,Exh. 31 - A xerox copy of mining lease deed.Exh. 32 - A xerox copy of judgment in the
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Civil Appeal.Exh. 33 & Exh. 34 - copies of letters from the company regarding payment of dead rent.Exh. 35 - A xerox copy of judgment in the Civil Suit.Exh. 36 & Exh. 37 - Xerox copies of sketch maps regarding lease in question.
3 197 Witness – Pravinbhai Veljibhai,Surveyor, Mines & Minerals Dept., member of inspecting team.
Exh. 198, Exh. 199, Exh. 200, Exh. 201, Exh. 202, Exh. 203, Exh. 204 - certified copies of sketch maps of adjoining mines (other than the place of offence).
4 211 Witness – Madanchandra Kedardutt.Assistant Manager, Saurashtra Chemicals Ltd. who has deposed regarding excavation in lease area.
--
5 212 Witness – Ruturaj Girdharlal.Supervisor, Mines & Minerals Dept. who has deposed regarding excavation in place of offence, signed rojkam.
Exh. 213 - A letter from Collector.Exh. 14 - Panchnama / Rojkam.
6 288 Witness – Ashwinbhai Haribhai Faldu - Blasting material agent.
Exh. 289 - Exh. 294 - A xerox copy of
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partnership deed Exh. 290 - Exh. 294 Xerox copies of explosive / shot fire permit / license renewal papers.
7 372 Witness – Rasiklal Kalyanjibhai, Accountant, Vikas Corporation who has received purchase orders from TATA Chemicals Ltd.
Exh. 373 - Purchase order.Exh. 358 - A chit having original signature of witness. Exh. 374, Exh. 375 - Copies of statements of witness.Exh. 376 - Attested copy of partnership deed - Triveni Transport.Exh. 377, Exh. 378, Exh. 379, Exh. 380, Exh. 381 - Attested copies of agreements.
8 386 Witness - Yogeshchandra Chhitubhai Patel, Geologist, Mines & Minerals Dept.
Exh. 387 - Exh. 405 - Show-cause notices to different lease holders.
9 547 Witness - Dharmendra Kanubhai Patel - Geologist, Mines & Minerals Dept. who has deposed regarding quantity of lime stone unlawfully excavated by different lease holders.
Exh. 548 - Information tables.Exh. 549 & Exh. 551 - Exh. 553 A letter to Police Station
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including its annextures.
10 673 I. O. - Hardevsinh Bhagvatsinh Vaghela - P. S. I., Bagvadar Police Station.
11 676 I. O. - Naranbhai Bhayabhai Chavda - P. S. I., Bagvadar Police Station.
Hearing of appeal.
6. Read the appeal memo, perused impugned judgment and all the
evidences on record. Heard, learned advocates Shri A. J. Desai, Mr. V. G.
Popat, for the appellants as well as learned P. P. Shri S. B. Jethwa for the
respondent. Perused written arguments submitted by learned advocates
for the appellants. It is pertinent to note that all the controversies created
by some third parties have been resolved by Hon'ble Gujarat High Court
vide Common CAV Judgment dated 08.09.2014 in Criminal Revision
Application No. 613/2013, 614/2013, 616/2013. Thus, there is no any
stay order from the Hon'ble the Supreme Court of India or Hon'ble High
Court of Gujarat.
Submission made by learned advocates for the appellants.
7. Submission made by learned advocate Shri A. J. Desai and learned
advocate Shri V. G. Popat for the appellants is such that - (i) Learned
Trial Judge has not considered oral and documentary evidences in its true
perspective. The impugned judgment is based on the facts deposed by
witnesses in the examination-in-chief only. Learned Trial Judge has
ignored the truth revealed from cross-examination of various witnesses.
(ii) The impugned judgment is based on unproved ordinary xerox copies
of various documents. (iii) Learned Trial Judge has only reproduced some
part of oral evidence and has not appreciated any evidence on record.
Further, the impugned judgment is against the basic principles of
9/28appreciation of facts and law. (iv) Not a single ingredient of any offence
has been proved by the prosecution. It was a case of no evidence.
Although, learned Trial Judge has convicted all the appellants. No reason
has been assigned by learned Trial Judge for arriving at such conclusion.
The impugned judgment is not a judgment in its true meaning. There is
violation of Sec. 354 of Criminal Procedure Code, 1973. Learned
advocates for the appellants have placed reliance on various case-laws
(which are discussed at appropriate place).
Submission made by learned P. P.
8. According to submission made by learned P. P. Shri S. B. Jethwa
that impugned judgment is strictly according to law and based on
evidences on record. Learned C. J. M. has rightly came to the conclusion
that offence against the appellants are duly proved. There is sufficient
evidence on record against the appellants. These can be grouped in
different categories; i.e. oral and documentary evidences regarding (i)
The place of occurrence belongs to the Saurashtra Chemicals Ltd. (ii) The
lease holder company has never excavated any lime stone from the mine
in question. The company used to pay dead rent till occurrence of offence.
(iii) There is excavation of lime stone from the place of offence, worth
rupees 54.18 Crore. Thus, the basic ingredient of theft has been duly
proved by such evidences. Learned Trial Judge has considered the same
in its true perspective. (iv) Oral evidence of Government officers like
Geologist and Mining Department staff and official record of
Government regarding mining lease, its area, excavation in such area are
the evidences on record which have been duly considered by learned Trial
Judge. (v) Evidences regarding transportation of stolen lime stone from
place of offence to the Tata Chemicals Ltd. and Nirma Chemicals Ltd.
etc. (vi) Evidences regarding unlawful gain obtained by appellants is also
on record. Thus, learned Trial Judge has considered all the incriminating
10/28evidences in the true perspective. Learned P. P. has placed reliance on a
case-laws (which is discussed at appropriate place).
Points for determination.
9. For the just decision of this appeal, following points for
determination have arisen for my decision.
(1) Whether the common judgment of conviction and order of
sentence recorded by learned Chief Judicial Magistrate,
Porbandar in Cri. Case No. 11258/2006 & Cri. Case No.
117/2008, dated 15.06.2013 is sustainable in the eye of law?
Is it in consonance with settled principles regarding
appreciation of facts and appreciation of evidences?
(2) What order?
Findings
10. My findings to the above mentioned points are as under.
(1) In the negative.
(2) As per final order.
REASONS
Points No. 1 and 2.
11. It is pertinent to note that one of the appellant is the Cabinet
Minister, State of Gujarat. Another appellant is Ex-Member of
Parliament. With context to this fact, it is pertinent to remember the
Upnishad's mandate which says that " law is the king of kings, far more
powerful than the king. Nothing can be mightier than law by whose
strength weak may prevail or the strong." Further, nobody is above the
law. Besides this the concept of justice is supreme. Prejudices and
personal belief has no relevancy while deciding the innocence or guilt of
appellants. The sole aim of law is approximation of justice.
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Relevant basic principles of appreciation of evidence.
12 Before entering into merits and dealing with the facts and
evidences on record, learned advocates for the appellants have recollected
some basic principles of Criminal Jurisprudent by was of placing reliance
on various case-laws that - trial of a poor accused and rich or highly
placed person and dignitaries should be conducted with one standard. In
Criminal Trial the burden of proof always lies on prosecution. Onus of
proving all ingredients of an offence is always on prosecution. It does not
shift to accused. Prosecution should prove its case beyond all shadow of
doubt. Whole evidence is to be considered. Prosecution shall stand on its
own legs. It cannot take advantage of the weakness of defence. It is duty
of a public prosecutor to examine material and relevant witnesses. It is
also duty of prosecution to prove place of offence. Further, it is also
important to note that evidence is to be weighted and not counted.
Another golden thread which runs through the web of the administration
of justice in criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the gulf of the accused and
the other to his innocence, the view which is favorable to the accused
should be accepted. Thus, keeping in mind all these basic principles the
question arises here that essential ingredients of offence is duly proved by
the prosecution?
Essential ingredients of an offence under Sec. 379 of the Indian Penal
Code, 1860.
13. An offence under this Section requires that (i) dishonest intention
to take property, (ii) the property must be movable, (iii) it should be
taken out of the possession of another person, (iv) it should be taken
without the consent of that person and (v) there must be some moving of
12/28the property in order to accomplish the taking of it. Thus, prosecution is
duty bound to prove these all the essential ingredients by relevant and
legally admissible evidences.
13.1 In other words, to bring home an offence under Sec. 379, I. P. C.
the prosecution is to prove (a) there was a movable property; i.e. lime
stone. (b) the said movable property was in the possession of person other
than the accused. In other words, leased property - lime stone was in
possession of Saurashtra Chemicals Ltd. (c) The accused took out it or
moved it out of the possession of the Saurashtra Chemicals Ltd. (d) The
accused did it dishonestly. (e) That the accused took the movable property
or moved it without the consent of the Saurashtra Chemicals Ltd. Along
with these basic facts the prosecution is bound to prove essential elements
of Sec. 447 and 114 of Indian Penal Code. If the prosecution has duly
proved all these essential elements of offence by relevant and legally
admissible evidences then all the appellants-accused can certainly be held
guilty. Here, the question arises that whether prosecution has successfully
done so and learned Trial Judge has appreciated such evidences on record
in consonance with settled principles in this regards?
Movable property in possession of Saurashtra Chemicals Ltd.
14. According to prosecution case narrated in Exh. 28 - complaint that
Revenue Survey No. 22/2 (its some part) situated in village Jinjarka,
District Porbandar is a lime stone mine. Out of which 250 Acres and 60
Acres of land is belongs to the Saurashtra Chemicals Ltd. as the company
is lessee of these properties.
14.1 Learned Trial Judge in the impugned judgment at para-7 has came
to conclusion that the complainant has duly proved the entire facts of
13/28prosecution case. With context to this fact, looking to oral evidence of the
complainant - Umeshbhai Ishwarlal Bhavsar (P.W.-9, Exh. 27), it
becomes clear that the place of offence is some part of Survey No. 22/2 of
Jinjarka village. It was a lime stone mine. Although, he has admitted in
the cross-examination (page-3, First para) that S. No. 22/2 is a very wide
area. There are so many lease holders including the said company. Thus,
it becomes clear that mining lease is the place of offence. In view of
definition of theft provided in Sec. 378 of the Indian Penal Code, 1860
most particularly its example - 1, it can certainly be said that as soon as a
piece of lime stone detached from the mine, it becomes movable property.
It can be subject to theft. Further, the complainant has deposed that
excavation work was in progress on the place of offence. According to
Exh. 29 - complaint, the complainant is responsible for supervision of
mines belongs to the company. He has deposed that the company has
never executed any excavation work. Thus, somebody has excavated the
lime stone from the place of offence.
14.2 Whether the place of offence; i.e. mines situated in the part of S.
No. 22/2 of Jinjarka village belongs to the company? In this context the
complainant has admitted in his cross-examination that he has never
visited the mines in question since last eleven years. Even he does not
know its location. The complainant has produced Exh. 29 to Exh. 37 -
documents pertaining to lease holding rights of the company; i.e. place of
offence. All these documents are ordinary xerox copies. Learned Trial
Judge has considered the said xerox copies as proof of lease holding
rights.
14.3 Learned advocates for the appellants has rightly placed reliance
on H. Siddiqui (Dead) By L.rs. V/s. Ramalingam 2011 (1) GLH 586
14/28(S.C.). Hon'ble Supreme Court while dealing with the question of
admission of a document and its proof in evidence, has once again
clarified the principle that mere admission of a document in evidence
does not amount to its proof. Further, it is held at para-10 that -
The provisions of Sec. 65 of the Act, 1872 provide for
permitting the parties to adduce secondary evidence.
However such a course is subject to a large number of
limitations, In a case, where original documents are not
produced at any time, nor, any factual-foundation has been
led for giving secondary evidence, it is not permissible for
the Court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a
document is inadmissible, until the non-production of the
original is accounted for, so as to bring it within one or
other of the cases provided for in the Section. The secondary
evidence must be authenticated by foundational evidence
that the alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not amount
to its proof. Therefore, the documentary evidence is required
to be proved in accordance with law. The Court has an
obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement
thereon.
Thus, ordinary xerox copies of documents or other secondary evidence
relating to the contents of a document is inadmissible. Further, it can
certainly be said that marking any document as an exhibit is not the proof
of document. Although, it is impliedly admitted fact that 250 Acre and 60
Acre land of S. No. 22/2 are not belongs to any of the appellant-accused.
In other words, the said movable property-lime stone obtained from
15/28alleged place of offence was in the possession of the Saurashtra
Chemicals Ltd. It was not in possession of accused.
14.4 Looking to the documentary evidence on record, it becomes clear
that the prosecution has produced several hundred documents in the form
of ordinary xerox copies or inadmissible documentary evidence some
documents produced by witnesses from the Geologist Office is an
exception. Thus, such xerox copies have no any evidentiary value.
Oral evidence of official witnesses from Mines & Minerals Department.
15. According to prosecution case, accused have excavated lime stone
from the place of offence and the accused have taken-out the lime stone
out of the possession of Saurashtra Chemicals Ltd. With context to this
fact, it is pertinent to have a look at oral evidence of Geologist and other
official witnesses from Mines & Minerals Department, Government of
Gujarat.
15.1 Jitubhai Hathibhai Patel, Geologist (P.W.-35, Exh. 187) has
deposed to the effect that mining lease situated in S. No. 22/2 of Jinjarka
area; i.e. place of offence is belongs to Saurashtra Chemicals Ltd, on the
place of offence excavation work was in progress. The labourers working
there, have informed him that labourers are excavating lime stone on
behalf of all the four appellants-accused. Further, labourers have
informed him that appellants used to send such lime stone to Tata
Chemicals Ltd. etc. This witness has admitted in his cross-examination (at
page-7, first paragraph) that the facts regarding excavation on behalf of
the accused has been informed by one labourer, Karshanbhai Sidibhai.
Thus, the fact regarding possession of mining lease and taking-out the
lime stone from the place of offence is duly proved. It is also equally true
16/28that the facts deposed by this witness which is regarding involvement of
all the accused is nothing but hearsay evidence. The Geologist himself
has no any personal knowledge regarding this particular fact. In view of
Sec. 60 of the Evidence Act, 1872, hearsay evidence is not admissible in
evidence. Such incriminating facts is required to be proved by direct
evidences.
15.2 This witness has produced Exh. 189 - a copy of rojkam which is
pertaining to a mining lease belongs to one of the accused which is
situated in the adjoining area. Impliedly, such document is helping the
defense side. Implied meaning of such fact is that the accused might have
excavated lime stone from his own lease holding property.
15.3 Likewise, above mentioned witness, other members of raiding
party; i.e. officers of Mines & Minerals Department have deposed in the
similar manner. Witness Abdulbhai Karimbhai (P.W.-36, Exh. 190)
Assistant Geologist, Porbandar has produced details (Exh. 193) of
different mining lease situated around the place of offence, such detail is
impliedly helping the defense side. There is no any incriminating fact
mentioned in this document. Witness Parvinbhai Veljibhai, Surveyor,
Mines & Minerals Department, Porbandar has also narrated the same fact
as deposed by the Geologist (P.W.-35, Exh. 187). Further, he deposed
that he has undertaken survey of adjoining mining lease. He has admitted
in his cross-examination (at page-6) that he has not prepared any map
regarding place of offence. Not only that he has admitted in his cross-
examination (page-7, third paragraph) that he has never visited or has not
undertaken any survey or measurement work in the place of offence. This
witness has produced some sketch maps (Exh. 198 and Exh. 199) which
are not pertaining to the place of offence. These are regarding adjoining
17/28mining lease.
15.4 Witness Madanchandra Kedardutt, Assistant Manager, Saurashtra
Chemicals Ltd. (P.W.-38, Exh. 211) has also deposed that on the place of
offence, excavation work was in progress. He has admitted the facts in his
cross-examination that he is not certain about the exact location of mining
lease belongs to his company.
15.5 Witness Ankitbhai Gnaneshwar Rao, Royalty Inspector, Mines &
Minerals Department has also deposed that he was member of Inspection
Team and he has narrated the facts regarding excavation from the place of
offence; i.e. S. No. 22/2, 60-Acre land and S. No. 22/2, 250-Acre land.
15.6 The other member of raiding party; i.e. witness from Geologist
office, Ruturaj Girdharlal, Senior Clerk (P.W.-39, Exh. 212) has also
narrated the same facts as deposed by other above mentioned witnesses.
Thus, some and substance of all above mentioned witnesses is that the
place of offence belongs to the Saurashtra Chemicals Ltd., excavation
work was in progress in this mine.
15.7 With context to this fact, looking to oral evidence of witness
Yogeshchandra Chhitubhai Patel, Geologist (P.W.-58, Exh. 386) has
clearly deposed that the lease in question was belongs to Saurashtra
Chemicals Ltd. The company used to pay dead rent. In other words, the
company has never executed any excavation work there. With context to
this fact, looking to details of dead rent (Exh. 387), it becomes clear that
since 1994 to 2008 company has paid dead rent. Thus, prosecution has
duly proved that Saurashtra Chemicals Ltd. has never excavated any
minerals from its mine.
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15.8 Witness Dharmendra Kanubhai Patel, Clerk, Geologist office,
Porbandar (P.W.-66, Exh. 547) has deposed that he has furnished
information regarding excavation of lime stone from the various mining
lease area other than the place of offence. Such information in the form of
table which is produced on record (Exh. 548). It is not pertaining to place
of offence. Impliedly, it is helping to defense side. The some and
substance of this document is that there was massive excavation work
around the place of offence.
15.9 Thus, the prosecution has duly proved that some persons have
taken the lime stone out of the possession of Saurashtra Chemicals Ltd.
without consent of lessee; i.e. company. Here the questions arise that
whether appellants-accused are connected with such unlawful act?
Whether prosecution has duly proved that appellants are involved in this
offence?
Direct evidence - Oral evidence of labourers working on behest of
appellants.
16. According to prosecution case, during the raid and inspection, the
labourers working on place of offence-lime stone mine, have informed
the members of raiding party that they are working on behest of all the
appellants.
16.1 Witness Karshanbai Sidibhai, (Mukkadam) labourers' team leader
(P.W-6, Exh. 22) has deposed that he has never worked for any of the
accused. The Geologist made him to sign a written statement. He has no
knowledge about its contents. Thus, he has turned hostile and has not
supported prosecution case.
19/2816.2 Former or previous statement of witness : With context to the
statement of witness Karshanbhai Sidibhai (P.W.-6, Exh. 22) before the
Government officer, it is pertinent to have a look at oral evidence of
Geologist-Jitubhai Hathibhai Patel (P.W. 35, Exh. 187) along with
Karshanbhai Sidibhai's previous statement (Exh. 188). In view of Sec.
157 of the Indian Evidence Act, 1872, it can certainly be said that former
statement of witness may be proved to corroborate later testimony as to
same fact. Thus, Exh. 188 - statement before Geologist made by witness
Karshanbhai Sidibhai is not substantial piece of evidence. It can be used
to corroborate his oral evidence regarding involvement of accused
produced before the Court. When he has not supported the prosecution
case in his testimony, then question of corroboration does not arise here.
Thus, the previous statement - Exh. 188 has no any evidentiary value or
significance. Thus, there is no direct evidence on record against the
appellants. Learned Trial Judge has over looked such legal position.
16.3 Likewise oral evidence of above witness one more witness,
Hirabhai Bavabhai, labourer (P.W. - 19, Exh. 83) has deposed in the same
manner in favour of accused. He has also turned hostile and not supported
the prosecution case. No incriminating fact has been revealed from his
entire oral evidence.
16.4 With context to this fact, looking to oral evidence of witness
Karabhai Sidibhai - labourer (P.W.-8, Exh. 26), it clearly transpires that
he has not supported prosecution case. On the contrary he has deposed
that he has never worked for the accused. Further, in his cross-
examination he has clarified that he has never seen any of the accused
entering into the place of offence. Thus, he has not supported the
prosecution case. Learned Trial Judge has not considered this fact also.
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16.5 Prosecution witness Babubhai Ramabhai, team leader of labourers
(P.W.-7, Exh. 25) has also deposed in similar manner as deposed by
above mentioned witness Karabhai. He has also turned hostile.
16.6 Thus, there is no direct evidence against the appellants-accused
from which guilt of accused can be presumed. Nothing incriminating has
been revealed from cross-examination by the Assistant Public Prosecutor
of such hostile witnesses.
Circumstantial evidences.
17. Oral evidence regarding excavation, blasting by Explosive
Agents : According to prosecution case, all the accused have excavated
lime stone from the place of offence with the help of blasting agent and
explosive material supplier. With context to this fact, looking to oral
evidence of witness Vikrambhai Jivabhai - watchman (P.W.-10, Exh. 41)
employed by accused, it clearly transpires that he has not supported
prosecution case and he has turned hostile. He has deposed that he has not
seen any person excavating the mine in question.
17.1 Likewise witness Dosabhai Bavabhai, lebourer team leader and
employee of accused (P.W.-11, Exh. 42) and witness Nagabhai
Karshanbhai also a labourer team leader employed by the accused, have
turned hostile. They deposed to the effect that they have never seen
anybody to excavate, to blast the lime stone.
17.2 Likewise above mentioned prosecution witness, Ramabhai
Khimabhai - an employee of accused and blasting supervisor (P.W.-17,
Exh. 80), witness Gigabhai Lilabhai - an employee of accused, loader
21/28machine operator (P.W.-18, Exh. 82), witness Bhimabhai Rambhai - an
employee of accused, labourers team leader (P.W.20, Exh. 84), witness
Sukhabhai Bhimabhai - drilling machine operator (P.W.-22, Exh. 87),
have not supported the prosecution case. They have deposed in favour of
appellants. They have turned hostile. No incriminating fact has been
revealed from their oral evidences.
17.3 Explosive Agents: Witness Ashwinbhai Haribhai Faldu - owner
of Balaji Explosive Agency (P.W.-40, Exh. 288), witness Vrujlal
Laljibhai - an employee of Balaji Explosive Agency (P.W.-60, Exh. 415)
as well as witness Kalpitbhai Bipinbhai Vora - owner of Shivshakti
Explosive Agency (P.W. 68, Exh. 605), have deposed to the effect that
they are explosive license holder. They have supplied explosive material
to Mangal Minerals - a partnership firm. Collectively looking to their
entire evidence, it can be said that they have impliedly supported the
defense side. The some and substance of their evidence is that they have
not supplied any explosive material for the purpose of blasting the rock in
the place of offence. (P.W.-40, Exh. 288 - cross-examination at page-4
and P.W.-605, Exh. 68, page-2). Thus, no incriminating fact is revealed
from the testimony of these witnesses.
Taking out, transportation and supply of lime stone.
18. According to prosecution case after mining the lime stone from
the place of offence, accused have transported the stolen minerals to the
various commercial establishments. With context to this fact, collectively
looking to the evidence on record, it becomes clear that the prosecution
has examined various employees which were working under the accused,
in different partnership firms. All these witnesses are henchmen of
accused. It goes without say that they have supported defense side only.
22/28
18.1 Witness Punjabhai Karshanbhai - mines office supervisor (P.W.
14, Exh. 52) has deposed that he has never worked with accused. He has
not loaded and dispatched any truck load material to any destination.
Thus, he has not supported prosecution case.
18.2 Witness Arjanbhai Devshibhai - the truck owner (P.W. 15, Exh.
55), witness Gigabhai Masribhai - the truck owner (P.W. - 16, Exh. 61)
have deposed that they have never transported any lime stone from the
place of offence. They have turned hostile. No incriminating fact is
revealed from their deposition.
18.3 Likewise witness Pravinbhai Harjibhai - Supervisor, employee
working under the accused (P.W.-21, Exh. 85), witness Rambhai
Valabhai - Supervisor night duty, employee working under the accused
(P.W. - 23, Exh. 88) and witness Naranbhai Balubhai - Supervisor,
employee working under the accused (P.W. - 24, Exh. 89) have deposed
that they have not prepared any royalty pass or vouchers. They have
turned hostile. They have not supported prosecution case.
Evidence of panch witness.
19. Panch witnesses Bharatkumar Kantilal (P.W. - 1, Exh. 13),
Anilbhai Naranbhai (P.W. - 2, Exh. 15), Babubhai Ramjibhai (P.W. - 3,
Exh. 17), Dineshbhai Tulsibhai (P.W. - 4, Exh. 18), Laxmanbhai
Sajanbhai (P. W. - 5, Exh. 20), Laxmanbhai Mulabhai (P. W. - 42, Exh.
329), Khimabhai Somabhai (P. W. - 43, Exh. 332), Dineshbhai Dhirajbhai
(P. W. - 44, Exh. 333), Hemendrabhai Narshidas (P. W. - 45, Exh. 335),
Ishwarbhai Ratilal (P. W. - 46, Exh. 340), Tulsidas Motiram (P. W. - 47,
Exh. 343), Laldas Jivandas (P. W. - 48, Exh. 344), Hardasbhai Nathabhai
23/28(P. W. - 49, Exh. 347), Lakhubhai Rambhai (P. W. - 50, Exh. 353),
Nareshbhai Babulal (P. W. - 51, Exh. 359), Rameshbhai Samantbhai (P.
W. - 52, Exh. 360). Respectively they are author of place of offence
panchnama (Exh. 14), arrest panchnama (Exh. 17, Exh. 334, Exh. 341,
and Exh. 383), muddamal lime stone recover panchnama (Exh. 21), place
of offence and factum of blasting panchnama (Exh. 330), obtaining
specimen signature panchnama (Exh. 345, Exh. 346, Exh. 348 and Exh.
349, Exh. 354, Exh. 355), obtaining specimen signature and natural
handwriting of accused panchnama. All these panchas have turned
hostile. They have not proved contents of panchnama. Nothing
incriminating have been revealed from their cross-examination by learned
A. P. P. Thus, all these evidences do not help the prosecution.
Evidence regarding different mining lease, partnership firm,
commercial establishment owned by accused.
20. According to prosecution case, the accused have sold the stolen
lime stone through various commercial establishments including mining
lease belongs to accused, transport companies and various partnership
firms. The prosecution has examined different 10 witnesses. Prakashbhai
Bhikhubhai (P. W. 25, Exh. 92), Umiyaben Bhikhubhai, (P. W. - 26, Exh.
98), Balubhai Ramabhai (P. W. - 27, Exh. 105), Sidibhai Vejabhai (P. W.
- 28, Exh. 117), Babubhai alias Shantibhai Damodardas (P. W. - 29, Exh.
123), Goganbhai Jivabhai (P. W. - 30, Exh. 144), Ramniklal Karshandas
(P. W. - 31, Exh. 148), Champaben Bhikhubhai (P. W. - 32, Exh. 155),
Jyotiben Babubhai (P. W. - 33, Exh. 161), Paras Bharatbhai (P. W. - 34,
Exh. 163), Devabhai Nathabhai (P. W. - 53, Exh. 367), Arjanbhai
Gigabhai (P. W. - 54, Exh. 368), Maheshbhai Veljibhai (P. W. - 57, Exh.
384), Samantbhai Devabhai - advocate and notary (P. W. - 59, Exh. 406).
All these witnesses are respectively owner of different lime stone mining
24/28lease other than the place of offence, partners of a firm in which accused
are connected in different capacity, family members of accused. All these
are prosecution witnesses. Collectively looking to their oral evidences,
they have deposed to the effect that along with accused they are running
different mining lease, commercial establishment etc. Thus, impliedly
they have proved that whatever lime stone alleged to be stolen has not
been excavated from place of offence. In fact truly speaking they are
defense witnesses examined by the prosecution.
Witnesses regarding wrongful gain to the accused.
21. According to prosecution case accused have earned huge amount
of money, more than Rs. 54 Crore from sale of stolen lime stone .
Prosecution has examined witness Balkrishna Trikambhai - accountant
working with accused who has not supported the prosecution case (P. W.
- 13, Exh. 51), Rasiklal Kalyanji Thanki - accountant working with
accused (P. W. - 55, Exh. 372), Maheshgiri Govindgiri - an employee of
Tata Chemicals Ltd. who has received lime stone supplied by the accused
(P. W. - 61, Exh. 416), Ashish Kantilal Desai - witness regarding
purchase order (P. W. - 63, Exh. 506), Ashwinbhai Rakholjibhai Patel -
an employee of Nirma Chemicals Ltd. regarding purchase order (P. W. -
64, Exh. 525), Bharatbhai Bhikhubhai - an employee of accused (P. W. -
65, Exh. 530). All these witnesses have deposed to the effect that the
accused have supplied them sized lime stone to the Tata Chemicals Ltd.,
Nirma Chemicals Ltd. etc. Although there is not a single piece of
evidence on record which suggests that the lime stone supplied by the
accused was the stolen property. Thus, impliedly all these witnesses have
supported the defense side. Nothing incriminating has been revealed
against the accused from such oral and documentary evidences of this
particular category of witnesses.
25/28
Bank accounts and bank officers.
22. The prosecution has examined witness A. D. Ramchandra - Sr.
Manager Corporation Bank (P. W. - 67, Exh. 589) and witness
Narshibhai Paljibhai Solanki - Income Tax officer (P. W. - 69, Exh. 622).
Collectively looking to their evidences and documentary proof produced
by them, it can certainly be said that accused have entered into huge
money transaction. It is also equally true that there is nothing on record
which suggests that such amount of money has been obtained by the
accused from the stolen lime stone as alleged.
Authorities cited by learned advocate for the appellants-accused.
23. Learned advocates for the appellants have cited following case-
laws.
(1) Rama & Ors V/s. State of Rajasthan (2002) 4 SCC 571.
(2) Abdul Sattar V/s. State of Goa (1992) Suppl (3) SCC 74.
In appeal against conviction through examination and re-appreciation of
entire evidence is required.
(3-a) Roopsena Khatun V/s. State of West Bengal (2011) 13 SCC 303.
(3-b) Gyan Singh & Ors. V/s. State of U. P. 1995 Suppl. (4) SCC 658.
(3-c) Kuldip Singh & Ors. V/s. State of Delhi (2004) 12 SCC 528.
Recovery should be supported by independent punch. Recovery and
seizure cannot be sole basis of conviction. Incriminating such
circumstances be put to accused under Sec. 313 of Cr. P. C.
(4) Ranjit Rathod V/s. State of Gujarat 1995 (2) GLR 1845.
Evidence is to be seen as a whole.
26/28(5) State of Gujarat V/s. Bhemji Patla 1999 (2) GLR 1767.
Abstraction of electricity and presumption under Section 39 of Indian
Electricity Act.
(6) Surjit Sarkar V/s. State of West Bengal (2013) 2 SCC 146.
Every information is not an FIR.
(7) Madhusudan Singh V/s. Narayan Mahote AIR 1995 SC 1437.
FIR is not substantial piece of evidence. It has corroborative value.
(8) Chandikumar Das V/s. Abhindar Roy AIR 1965 SC 585.
Theft cases - factum of property in possession of other is required to be
proved.
(9) Chandmal V/s. State of Rajasthan AIR 1976 SC 917.
Regarding basic principles of appreciation of evidence.
(10) Avtar Singh V/s. State of Punjab (2002) 7 SCC 419.
Meaning of word possession.
(11) Ganesh Lal V/s. Stae of Rajasthan (2002) 1 SCC 731.
Principles regarding appreciation of circumstantial evidence and Sec. 313
of Cr. P. C.
The principles laid down in all these authorities are binding to this court.
All these principles have been duly considered during above mentioned
discussion.
24. Thus, the impugned judgment which is based on the examination-
in-chief of some of the witnesses only, is not just and proper. Learned
advocate for the appellants has rightly placed reliance on Mukhtiar
Singh & Anr. etc. V/s. State of Punjab 1995 (1) Crimes 293. Hon'ble
Supreme Court has held that if the requirements as provided in Sec. 354
(1) (b) of Criminal Procedure Code, 1973, is not fulfilled, such judgment
27/28is not a judgment in the eye of law. Therefore, it is very difficult to
upheld the impugned judgment. The impugned judgment of conviction
and order of sentence is not strictly according to law and settled principles
of appreciation of oral as well as documentary evidences. On re-
appreciation of the entire evidence on record, in view of reasons state
above the guilt of appellants-accused is not duly proved by the evidences
on the record. Thus, point No. 1 is decided in negative accordingly.
Disposal of muddamal.
25. Learned Trial Judge has held that - muddamal most particularly
described in Muddamal Receipt No. 84/06, 96/06, 101/06, 297/06 is
required to be reproduced in the court custody and the same be
confiscated - such order is also required to be set aside. It is just and
proper to order that interim custody of such above said muddamal which
are most particularly described in the above mentioned Muddamal
Receipts have been entrusted to respective applicants by learned the then
Chief Judicial Magistrate and Additional Chief Judicial Magistrate,
Porbandar vide orders dated 18.10.06, 08.11.06 & 12.12.06 such interim
orders are hereby confirmed. All the muddamal documents be kept with
record (relevant file - C or D). Learned C. J. M. shall decide the question
of final custody of remaining muddamal according to Sec. 452 (3) of Cr.
P. C. regarding remaining muddamal and Muddamal - lime stone as
narrated in Muddamal Receipt No. I - 97/06. Hence, following order is
passed.
ORDER
1. These appeals are hereby allowed.
2. The impugned common judgment of conviction and order of
sentence recorded by learned Chief Judicial Magistrate, Porbandar in Cri.
Case No. 11258/2006 and Cri. Case No. 117/2008, dated 15.06.2013 is
28/28hereby set aside.
3. Appellants - accused are hereby acquitted from the charge of
offence under Sec. 379, 447 and Sec. 114 of the Indian Penal Code, 1860.
Amount of fine if any paid by the appellants - accused, be refunded to the
appellants - accused.
4. The orders dated 18.10.06, 08.11.06 & 12.12.06 regarding Interim
custody of muddamal articles passed by learned Trial Judge which are
most particularly described in Muddamal Receipts No. 84/06, 96/06,
101/06, 297/06 are hereby confirmed.
5. The appellants shall furnished bond of Rs. 10,000/- with surety of
like amount for the purpose of compliance of mandate given in Sec.
437 A of the Criminal Procedure Code. Previous bail bond is hereby
stands canceled.
6. Copies of this judgment be kept with Cri. Appeal No. 25/2013 and
Cri. Appeal No. 26/2013.
7. R. & P. along with copy of this judgment be sent back to learned
Chief Judicial Magistrate Court, Porbandar.
Signed and pronounced in the open Court today on 17th
November-2014 at Porbandar.
(Mahavirsinh V. Zala) (GJ00305)
Additional District & Sessions Judge, Porbandar.