THE STATE OF GUJARAT v. RAMESHBHAI BABARBHAI TADPADA VAGHARI & 5

CORAM : HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH CR.A/1945/2004 JUDGMENT Date : 12/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA)

1. The above referred Criminal Appeal is preferred by the appellant – State of Gujarat under Section 378 of the Code of Criminal Procedure against the judgment and order pronounced by learned Additional Sessions Judge, 2nd Fast Track Court, Nadiad on 15.05.2004 in Sessions Case No.296/1997.

2. According to the brief facts of the case Anti Dacoity Squad, P.S.I. Mr.H.B.Chavda and P.S.I. Mr.J.B.Gohil of Umreth Police Station were on patrolling near Bhalej Cross Road at about

4.40 p.m., they found suspicious movement of a person and, therefore, the said person was accosted by the police and on inquiring, he gave his name to be Rameshbhai Babarbhai Tadpada Vaghari resident of Sardarpura, who is original accused No.1 – respondent No.1 herein. A search on the person of accused No.1 was carried out and one leather wallet was found from the pocket of the pant of Rameshbhai Babarbhai. From the said wallet, two coins were found of silver and two small chits were found. About these two coins and chits, Rameshbhai Babarbhai failed to give proper explanation to the police and, therefore, he was arrested under the provisions of Section 41(1)(d) of the Code of Criminal Procedure and muddamal was seized. A Station CR.A/1945/2004 JUDGMENT Diary No.13 of 1995 was made in the Police Station and P.S.I., Mr.H. B. Chavda proceeded to inquire in the matter. On 26.04.1995, further 39 coins of silver were found from the house of Rameshbhai Babarbhai, which were seized. During this inquiry, on 01.05.1995, complainant – Prakashbhai Chimanlal Thakor gave his complaint before Senior P.S.I., Umreth Police Station against Rameshbhai Babarbhai stating that before one month of 01.05.1995, complainant and one Munnabhai had been to Sardarpura on an information that in that area silver coins were available for purchase. Munnabhai had acquaintance with Rameshbhai Babarbhai and, therefore, both of them visited Rameshbhai Babarbhai at his village and Rameshbhai Babarbhai took them to his field. Rameshbhai Babarbhai on inquiring stated that he and his brother had about 20,000 silver coins each costing about Rs.70/- to Rs.80/- at market rate. Rameshbhai Babarbhai stated that since he wanted to purchase land, he intended to sell those silver coins for less amount. After negotiations, complainant and accused Rameshbhai Babarbhai and accused – Thakorbhai Babarbhai came to a decision that complainant – Prakashbhai might purchase silver coins at the cost of RS.40/- each. Accused – Rameshbhai Babarbhai demanded Rs.10,000/- for deposit and stated that on depositing the said payment, the deal would be made final for silver coins in quantity as might be desired by the complainant. Prakashbhai, complainant CR.A/1945/2004 JUDGMENT stated that he would return after 2-3 days with amount and he wanted 500 coins. Even Rameshbhai Babarbhai had shown them a bag full of silver coins and handed over two coins to the complainant for verification. There were 5-7 persons in the field, at that time, when this negotiation took place. According to the complainant, thereafter two coins handed over to them by the accused, were got tested and verified and were found of silver and, thereafter, Prakashbhai had delivered Rs.10,000/- to accused Rameshbhai Babarbhai and accused had assured that on the amount of 500 coins being given to him, he would deliver silver coins. On 01.05.2005, again complainant came to Sardarpura to visit Rameshbhai Babarbhai and came to know that Rameshbhai Babarbhai was in police custody and coins were seized by the police and, therefore, the offence was registered vide C.R.No.89/1995 against the present six respondents for the charges punishable under Sections 420, 120-B, 251 and 114 of the Indian Penal Code. P.S.I. Mr.H.B.Chavda investigated the offence and filed the charge-sheet against the accused. The case was, thereafter, committed to the Court of Sessions and was made over to the learned Additional Sessions Judge, 2nd Fast Track Court, Nadiad. Vide Ex.5 on 13.10.2003, the trial Court framed charges for the above offences against the respondents to which they pleaded not guilty. The prosecution examined as many as eight witnesses and CR.A/1945/2004 JUDGMENT produced on record necessary documents. The learned trial Judge recorded the statements of the accused, thereafter and heard both the parties and came to the conclusion to acquit the accused for the above said offences and hence, this appeal.

3. Learned APP Mr.Dipen A. Desai, for the appellant – State of Gujarat was heard in great detail in respect of this appeal at this juncture also. We have summoned Record & Proceedings from the trial Court and we have gone through the same thoroughly. We have, at this juncture also, examined vital features of the case and reasonable probability arising out of the circumstances of the evidence recorded during the trial. We have scanned reasons assigning by the trial Court. We have also re-appreciated the evidence as recorded during the trial.

4. Going through the evidence, it appears that P.W.1 – Juliyas @ Munnabhai Etheyalbhai Christian has been examined at Ex.13. He has turned hostile to the fact that he had accompanied complainant – Prakashbhai upto Sardarpura at the field of the accused. His evidence is not useful to the prosecution. While P.W.2 – complainant Prakashbhai Chimanlal Thakor examined at Ex.19, stated that he and Munnabhai visited Sardarpura where a deal was finalized that Rameshbhai Babarbhai would sell them 500 silver coins costing each Rs.40/- and that he would give Rs.10,000/- as CR.A/1945/2004 JUDGMENT deposit. He had obtained two coins, which were found to be of silver and after some days he had also delivered Rs.10,000/- by way of deposit to Rameshbhai Babarbhai. When at third time, he visited Sardarpura, he found that Rameshbhai Babarbhai was apprehended by the police. He has been cross-examined by the defence. P.W.3 – Ilyasmiya Ahmedmiya Malek examined at Ex.21 is panch of panchnama Ex.22 whereby near Bhalej Cross-Road Accused – Rameshbhai was apprehended. He supported the prosecution case. P.W.4 – Paulbhai Kalidas Christian examined at Ex.25 is panch of panchnama Ex.26 whereby the police drew a panchnama of scene of offence i.e. field of accused – Rameshbhai. He has supported the prosecution case. P.W.5 - Rajendra Natvarlal Thakar examined at Ex.28 is panch of panchnama Ex.29 by which remaining coins 39 in number were seized by the police from the house of accused – Rameshbhai from one wheat bag. He has supported the prosecution case. P.W.6 – Dilavarbhai Nurmohammad Shaikh examined at Ex.31 is panch of panchnama at Ex.32 by which two coins delivered to the complainant – Prakashbhai by the accused were seized by the police. The witness has supported the prosecution case. P.W.7 – Jitendrasinh Bachubha Gohil examined at Ex.34 was the then P.S.O. of Umreth Police Station and on 01.05.1995, he recorded the complaint of Prakashbhai. He entrusted the investigation to CR.A/1945/2004 JUDGMENT Police Sub Inspector Mr.H.B.Chavda. Before that, during the watch, he apprehended the accused and arrested him under Section 41(1)(d) of the Code of Criminal Procedure, because two silver coins were found from his pocket for which he failed to give explanation. P.W.8 – Hathisinh Becharsinh Chavda examined at Ex.36 and being Anti Dacoity Squad Inspector, he investigated the present case and filed a charge-sheet.

5. In brief, this is all the evidence of the prosecution. While appreciating the evidence, it clearly appears that it is not an allegation of the prosecution that those coins which were seized from the accused, were fake currency. The allegation against the accused under Section 251 of the Indian Penal Code prima facie, not established because complainant admitted in clear terms in his deposition that coins which were delivered to him by the accused, were silver coins. So far as the allegation against the accused as to cheating is concerned, it is clear that, there is no evidence available that any of the accused induced the complainant or any person for purchase of those silver coins. It is found that the complainant – Prakashbhai, on his own, had been to Sardarpura and had purchased two coins which turned out to be of silver and non else. It is not the case of the prosecution that after deposit of Rs.10,000/-, accused refused to part with the coins as per the earlier deal nor it could be made out from CR.A/1945/2004 JUDGMENT the evidence on the record, any attempt was made on the part of the accused to cheat the complainant in any manner even by offering the coins which were not of silver. Merely because, the accused was having silver coins, he could not be saddled with criminal liability. P.W.7 – P.S.I. Mr. Gohil admitted in his cross-examination that accused – Rameshbhai had provided his full address and at that time, there was no any complaint about theft of such coins. He also admitted that the coins which were seized from the accused were of silver and non-else. No case of the prosecution could be proved that what was found from the possession of the accused, was stolen property and hence, even if the evidence of prosecution is taken as it is we fail to understand that how the accused can be saddled with the liability of altering coins or cheating the complainant or any person. Learned trial Judge took into consideration all these aspects of the matter and came to the conclusion to acquit the accused. We do not see any reason to interfere with the above said conclusion as the learned trial judge had reached to probable and plausible conclusions from the evidence recorded during the trial. In acquittal appeals unless it is found that conclusion arrived at about the trial Court is perverse and cannot be sustainable in any circumstances, interference in the order of acquittal is not permitted. For the above noted reasons, we do not find that the conclusion arrived at by the trial Court was perverse CR.A/1945/2004 JUDGMENT or in any other manner requires interference and, therefore, we find this appeal without any merit and hence, the following order. ORDER Leave to appeal is refused. Appeal stands dismissed. [J. R. VORA,J.] [M. R. SHAH,J.]