J.C.UPADHYAYA, J. - (1.) TOTAL 6 accused persons came to be tried by the Ld. Addl. Sessions Judge, F.T.C., Banaskantha at Palanpur in Sessions Case Nos. 3/2008 and 64/2008 for the offences punishable under sections 170, 171, 327, 347, 384, 386, 387, 395, 419, 452, 120-B read with section 34 of the Indian Penal Code [IPC] and at the end of trial, out of 6 accused persons, 5 accused persons, who are appellants in Criminal Appeal No. 542/2009 and Criminal Appeal No. 898/2009, came to be convicted by the trial Court by the impugned judgment and order dated 6/3/2009 for the offences punishable under sections 395, 170, 452 and 171 of the IPC. 6
(2.) TH accused, namely Sureshbhai Virabhai Patel came to be acquitted by THe trial Court. Acquittal came to be challenged by THe State Government by preferring acquittal appeal being Criminal Appeal No. 1048/2009. Original accused no. 1 ? Yash Ajit Pradhan, Original accused no. 2 ? Premchand Mevalal Jayswal and Original accused no. 3 Roni Kiran challenged their conviction by preferring Criminal Appeal No. 898/2009, whereas the Original accused no. 4 Habib Ahmed Aliahmed Saiyed and Original accused no. 5 Rajendrashankar challenged their conviction by preferring Criminal Appeal No. 542/2009. For the sake of convenience, those appellants shall be hereinafter referred to as per their original status as accused before the trial Court. The accused nos. 1 to 5 came to be convicted for the offence punishable under section 395 of the IPC and each of them was sentenced to undergo rigorous imprisonment [RI] for 10 years and to pay fine of Rs.5,000/- each and in default of payment of fine, simple imprisonment [SI] for 2 years for the said offence. Accused nos. 1, 2 and 3 came to be convicted for the offence punishable under section 170 of the IPC and each of them was sentenced to undergo RI for 2 years and to pay fine of Rs.10,000/- each and in default of payment of fine, SI for 6 months for the said offence. Accused nos. 1 to 4 came to be convicted for the offence punishable under section 452 of the IPC and each of them was sentenced to undergo RI for 5 years and to pay fine of Rs.5,000/- each and in default of payment of fine, SI for 1 year for the said offence. Accused no. 1 also came to be convicted for the offence punishable under section 171 of the IPC and was sentenced to undergo SI for 3 months and to pay fine of Rs.200/- and in default of payment of fine, SI for 15 days for the said offence. All the sentences of imprisonment were ordered to run concurrently and all the convicted accused persons were given benefit of set off. So far as muddamal cash amount and muddamal golden ornaments were concerned, the trial Court directed Ld. Chief Judicial Magistrate to hold inquiry regarding disposal of said valuable muddamal under section 452[3] of the Criminal Procedure Code [Cr. P.C.]
(3.) THE prosecution case, in nut-shell, is that the first informant Mahendrabhai Kalidas [PW 1] and his brother Ashokbhai [PW 2] were residing in a house situated in the area called Idgah Road at Palanpur. In the said premises, in the cellar they had stored golden and silver ornaments of their customers as both the brothers were doing money lending business as well as they were running jewelery shop. It is the prosecution case that PW 2 Ashokbhai and other partners including accused no. 6 Sureshbhai Virabhai Patel were doing a partnership business in the name and style of 'Shiv Enterprises'. Accused no. 6 Suresbhai was managing partner and was dealing with the accounts of the firm. PW 2 Ashokbhai suspected that accused no. 6 was playing mischief with the account books and was misappropriating assets of the firm. THErefore, accused no. 6 Sureshbhai was expelled and removed from the firm. It is the prosecution case that accused no. 6 Sureshbhai had relations with one girl Prexa, who was residing in Bombay and she was knowing the remaining 5 accused persons [the appellants]. To teach lesson to the first informant PW 1 Mahendrabhai and his brother PW 2 Ashokbhai, accused no. 6 Sureshbhai, with the help of Prexa, hatched a conspiracy and the appellants agreed to go to Palanpur from Bombay to teach lesson to Mahendrabhai and Ashokbhai. 4.1. It is the prosecution case that on 2/10/2007 at about 3.30 p.m., the appellants 5 accused persons initially went to the shop of PW 1 Mahendrabhai and PW 2 Ashokbhai and inquired about them. In the shop, PW 3 Yohesh Agraval as well as one Suresh Trivedi, who were serving in the shop, were present. Accused no. 1 was in uniform of Police Officer having name plate as well as a revolver and posed himself as Joint Commissioner of Police Mr. Naresh A Chauhan of Bombay. Accused no. 2 Premchand and accused no. 3 Roni Kiran were in simple dress, accused no. 2 Premchand posed himself as DCP Chauhan and accused no. 3 Roni posed himself as PI Rathod of Bombay Police. THEse 3 accused along with accused no. 4 Habib Ahmed Saiyed as well as PW 3 Yogesh Agraval and Suresh Trivedi in a Qualis Car bearing Registration No. MH-03-S-6809 came to the house of PW 1 Mahendrabhai and PW 2 Ashokbhai and said car was driven by accused no. 5 Rajendra. On the number plate of the car, it was mentioned as /'on duty Bombay Police'/and there was red beacon light on the top of the car. Accused nos. 1, 2 and 3 along with PW 3 Yogesh and Suresh Trivedi, who were handcuffed, entered into the house and they told PW 1 Mahendrabhai and PW 2 Ashokbhai that they have come from Bombay and they are Police Officers in Bombay Police and they have an information through a thief, accused no. 4 Habib Ahmed, that said Habib had sold stolen gold weighing 5.00 Kgs to Mahendrabhai and Ashokbhai and those Mahendrabhai and Ashokbhai are receivers of stolen property and at that time accused no. 4 Habib Ahmed allegedly identified Mahendrabhai and Ashokbhai as the persons to whom he had sold the stolen golden ornaments weighing 5.00 Kgs. When PW 1 Mahendrabhai and PW 2 Ashokbhai protested to the demand made by the accused, it is the prosecution case that accused no. 1 Yash Pradhan took out revolver from his holster and pointed the revolver to Mahendrabhai and Ashokbhai and they were put under tremendous threat and accused no. 1 Yash Pradhan told them that if they do not accede to their demand and provide to them the stolen ornaments weighing 5.00 Kgs., they both would be killed. It is the prosecution case that both, the PW 1 Mahendrabhai and PW 2 Ashokbhai as well as PW 3 Yogeshbhai and Sureshbhai Trivedi were beaten by the accused persons. It is also the prosecution case that cash amount of Rs.2,80,000/- as well as golden ornaments were put in a bag. When the accused persons were about to leave the house of the complainant PW 1 Mahendrabhai along with the cash amount and golden ornaments, upon information received by Palanpur City Police Station at about 6.30 p.m., on 2/10/2007, Police Constable PW 4 Somabhai Hirabhai and Police Constable PW 18 Jivrajbhai Joshi came to the house of the complainant PW 1 Mahendrabhai. At that time, they found accused nos. 4 and 5 in the police car having beacon light on its roof and they found accused nos. 1, 2 and 3 inside the house. When they attempted to check the identity of the accused persons as police personnel, witnesses Somabhai and Jivrajbhai suspected their identity and PSI Patel and PSI Desai were immediately called from the Palanpur City Police Station. Both, the Police Officers came to the house of the complainant PW 1 Mahendrabhai. All the 5 accused persons were brought to Palanpur City Police Station along with the bag containing the cash as well as the golden ornaments. PW 1 Mahendrabhai lodged FIR, which came to be registered and the investigation was commenced. During the course of investigation, statements of material witnesses were recorded and necessary panchnamas were drawn in presence of panchas regarding the scene of offence, recovery and description of golden ornaments, etc. After the investigation was concluded, charge-sheet came to be filed in the Court of Ld. Chief Judicial Magistrate, Palanpur. Since the offences are exclusively triable by the Court of Sessions, the Ld. Chief Judicial Magistrate committed the case to the Court of Sessions, Banaskantha at Palanpur and the cases were registered as Sessions Case Nos. 3/2008 and 64/2008.;