Gujarat High Court
Shaikh Mohammed Naushad vs State Of Gujarat on 4 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 366 of 2005
With
R/CRIMINAL APPEAL NO. 367 of 2005
With
R/CRIMINAL APPEAL NO. 2583 of 2005
With
R/CRIMINAL APPEAL NO. 2584 of 2005
With
R/CRIMINAL APPEAL NO. 2585 of 2005
With
R/CRIMINAL APPEAL NO. 383 of 2005
With
R/CRIMINAL APPEAL NO. 378 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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SHAIKH MOHAMMED NAUSHAD & ORS.
Versus
STATE OF GUJARAT
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Appearance in Criminal Appeal No.366 of 2005:
ADVOCATE NOTICE UNSERVED for the Appellant(s) No. 1,2,3
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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Appearance in Criminal Appeal No.367 of 2005:
ADVOCATE NOTICE NOT RECD BACK for the Appellant(s) No. 1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.2583 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 3
UNSERVED EXPIRED (N) for the Opponent(s)/Respondent(s) No. 4
ADVOCATE NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s)
No.1-2,6
MS BENAZIR M. HAKIM for the Opponent(s)/Respondent(s) No.5
Appearance in Criminal Appeal No.2584 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.2585 of 2005:
MR RONAK RAVAL APP for the Appellant(s) No.1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.383 of 2005:
ADVOCATE NOTICE UNSERVED for the Appellant(s) No.1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.378 of 2005:
MR YOGESH S.LAKHANI for the Appellant(s) No.1
MR RONAK RAVAL APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/08/2025
COMMON ORAL JUDGMENT
1. Criminal Appeal Nos.2583 of 2005, 2584 of
2005 and 2585 of 2005 are by the State for
enhancement of the sentence. While, Criminal
Appeal Nos.366 of 2005, 367 of 2005, 383 of 2005
and 378 of 2005 filed by accused are challenging
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the conviction under Sections 399 and 120B of the
Indian Penal Code, 1860 (for short ‘IPC‘), where
six accused came to be convicted under Section
399 IPC for two years rigorous imprisonment and
Rs.500 as fine with default stipulation of
further fifteen days simple imprisonment.
1.1 For the offence under Section 120B IPC, two
years rigorous imprisonment and Rs.500/- fine and
in default of payment of fine, fifteen days
simple imprisonment. The sentence to run
concurrently and set off was granted for the
imprisonment in connection with I-Cr. No.379/96
at Mahesana Police Station.
1.2 Criminal Appeal No.366 of 2005 had been
filed by the accused Nos.2, 5 and 6 of Sessions
Case No.203 of 2004, whereas Criminal Appeal
No.367 of 2005 was by sole accused of Sessions
Case No.215 of 1997 and Criminal Appeal No.378 of
2005 was filed by accused No.1 of Sessions Case
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No.203 of 2004 and Criminal Appeal No.383 of 2005
was by sole accused of Sessions Case No.03 of
2005.
2. The conviction was under Sections 399 and
120B of IPC, for making preparation to commit
dacoity.
2.1 Section 399 of IPC reads as under:
“399. Making preparation to commit dacoity.–
Whoever makes, any preparation for committing
dacoity, shall be punished with rigorous
imprisonment for a term which may extend to ten
years, and shall also be liable to fine.
2.2 The dacoity is defined under Section 391 of
IPC, which is reproduced hereinbelow:
“391. Dacoity.– When five or more persons
conjointly commit or attempt to commit a
robbery, or where the whole number of persons
conjointly committing or attempting to commit a
robbery, and persons present and aiding such
commission or attempt, amount to five or more,
every person so committing, attempting or
aiding, is said to commit “dacoity”.”
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3. Learned advocate Mr. Rahul Dholakiya for the
appellants in Criminal Appeal Nos.366 of 2005,
367 of 2005, 383 of 2005 and 378 of 2005,
submitted that the whole case is only on
assumptions, where the undetected offences were
accumulated and messages were forwarded to other
Police Stations to consider the arrested accused
at Unjha Police Station, which was as I-
Cr.No.264/96, whereby accused Shailesh Ishwargiri
and Ibrahimkhan Umarkhan Pathan were arrested and
the Mahesana City Local Crime Branch informed the
police stations to contact L.C.B. Patan and Unjha
Police Station for that purpose.
3.1 Learned advocate Mr. Dholakiya submitted
that it was in consequence of this telephone
call, the present case has been created, where an
unsuccessful attempt of the accused had been
shown, and further to bring the case under
Dacoity over and above, Shailesh Ishwargiri and
Ibrahimkhan Umarkhan Pathan, rest of the accused
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were also joined so as to make a case of more
than five persons.
3.2 Learned advocate Mr. Dholakiya submitted
that the case has been created by way of
statement of accused before the police, which is
not admissible in law and an attempt has been
made to draw the panchnama and to form it as
demonstration of the plan assumed to have been
prepared by the accused alleging them as dacoits.
3.3 Learned advocate Mr. Dholakiya further
stated that no independent witness has been
examined; even the owner of the Maruti Van has
not been examined to prove the fact that actually
he had given the Maruti Van to the accused. All
the police personnel are interconnected with a
single intention of showing the case to have been
proved. Mr. Dholakiya submitted that the
statement of the accused, as recorded was in the
Police Station, hence, it would be hit by the
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provision of Section 25 of the Indian Evidence
Act, 1872 (for short, ‘Evidence Act‘) and cannot
be made admissible.
4. Countering the arguments, learned APP Mr.
Rohan Raval stated that the law under Section 10
of the Evidence Act read with Section 120B of IPC
permits and make admissible the statement of an
accused made before the police, and stated that
the panchnama is the place of offence, which is
admitted from the side of the accused by the
advocate on record, thus, would become an
admissible evidence to consider that it was a
plan, which demonstrate their preparation to
commit dacoity.
5. Both the advocates Mr. Dholakia and APP Mr.
Raval have referred to the deposition of almost
all the witnesses to drive their points. Learned
advocate Mr. Dholakiya submitted that there is
total failure on part of the prosecution to prove
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the case, while learned APP Mr. Rohan Raval
submitted that there is a case for enhancement of
the sentence, which extends to ten years under
Section 399 of the IPC.
6. The record of the matter suggests that the
complainant-Mahobatsinh Kubersinh sought transfer
warrant from Unjha Court to Mahesana. The further
interrogation of accused-Shailesh Ishwargiri and
Ibrahimkhan Umarkhan Pathan was in presence of
Police Inspector-R.J. Vaghela and P.S.I.-Nathani.
Thereafter, the Maruti Van used in the offence
was recovered, and charge-sheet was filed before
the Chief Judicial Magistrate on 08.05.1997 in
Criminal Case No.1841 of 1997, registered as
Sessions Case No.203 of 2004.
6.1 Thereafter, absconded accused-Sabbir
Allarakhha Shaikh was arrested on 23.06.1997. The
charge-sheet was filed against him in the same
Court on 01.09.1997, which was instituted as
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Criminal Case No.3362 of 1997 and thereafter was
registered as Sessions Case No.215 of 1997.
6.2 As per the record, Saiyed Faiyazehmad
Riyazehmad was arrested on 08.11.2004 and was
charge-sheeted on 06.12.2004 in Criminal Case
No.4775 of 2004 in Sessions Case No.03 of 2005.
7. The prosecution case in nutshell is that the
complainant-Mahobatsinh Kubersinh, Unarmed
Constable of L.C.B. at Mahesana filed complaint
against the accused bearing I-C.R. No.379 of 1996
for the offences punishable under Sections 399
and 120B of Indian Penal Code and also under
Section 25(1)(c) of Arms Act and under Section
135 of the B.P. Act. The complainant has stated
in his complaint that he was investigating the
incident happened on 09.10.1996. The offence was
of looting the Angadiya Firm near Unjha Bus
stand. The accused of the said loot were arrested
on 24.10.1996.
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7.1 The complainant received message from Unjha
Police Station that if he requires any of the
accused connected with the offence of loot
occurred at Unjha Bus stand, he could bring the
accused. Therefore, he went to Unjha Police
Station and inquired about the same. At that
time, he came to know that accused formed
unlawful assembly, common intention of which was
to commit loot of firm belonged to a businessman
Jayanti Ambalal Choksi of Mahesana.
7.2 The accused initially were to commit loot of
the firm of the said person on 07.10.1996.
Therefore, on that day, they hired one Maruti Van
bearing registration No.GJ-6K-1750 from Nilkanth
Travels situated in Shahjanand Shopping Center at
Shahibaug, Ahmedabad. The accused – Shaileshgiri
Ishwargiri Goswami (accused of Sessions Case
No.203/04) was driver of the said Maruti Van. The
accused left Ahmedabad at about 13.00 hrs. in the
noon and reached at Mahesana Railway Station at
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about 15.30 hrs. Thereafter, they went to
Mahesana Nagar Society situated at Radhanpur Road
and thereafter, had gone at Palavasna Highway and
on reaching at the said highway, as they were to
commit loot, they forged the number of Maruti van
and removed the first number i.e. 1 from 1750 of
Maruti Van, so as the same can be read as GJ-6K-
750.
7.3 Thereafter, the accused Sabbir Allarakkha
(accused of Sessions Case No.215/97), Sidiq
Nurmahammad, Mahammad Naushad, Abdul Kadar and
Ibrahim (accused of Sessions Case No.203/04)
stood waiting at Radhanpur Cross Road. Whereas,
the accused Kamlesh Patel (accused of Sessions
Case No.203 of 04) along with accused Faiyaz and
driver of Maruti van, were waiting for the person
of Angadiya Firm at Taluka Panchayat Office upto
6.00 hrs. and 6.15 hrs. At that time, accused
Sabbir was having Tamanca and accused Sidiq was
having Knife. There were other weapons like Gupti
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etc. in Maruti Van. Thereafter, at about 6.30
hrs. they saw one person coming from Jay Shree
Market with a bag, who hired rickshaw and went
towards Gopinath. Therefore, all three accused
boarded in the van and as early as possible they
reached at Gopinath. However, the rickshaw
intercepted the said Maruti Van and stopped near
Radhanpur Cross Road from where the person, who
boarded in rickshaw with a bag had gone in the
Mahesana Nagar Society so the efforts failed.
Thereafter, all accused again tried to commit
loot on the next day i.e. on 08.10.1996. However,
on that day also they could not find that person
of Angadiya Firm. Therefore, on the day of the
incident, i.e. on 09.10.1996 all the accused
committed loot at Unjha Bus stand. On these facts
the complaint was filed.
7.4 Upon filing of the complaint, the P.S.O.
registered the said complaint and started further
investigation. The accused of the said offences
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by way of transfer warrant, were transferred from
Unjha Police and were further interrogated. After
recovering the van used in the offence, the
panchnama of place of offence was drawn and after
recording the statements of the relevant
witnesses, charge-sheet was filed against the
accused.
8. Section 10 of the Evidence Act becomes
relevant to record with regard to conspiracy of
the accused. Section 10 of the Evidence Act,
reads as under:
“10. Things said or done by conspirator in
reference to common design.–Where there is
reasonable ground to believe that two or more
persons have conspired together to commit an
offence or an actionable wrong, anything said,
done or written by any one of such persons in
reference to their common intention, after the
time when such intention was first entertained
by any one of them, is a relevant fact as
against each of the persons believed to be so
conspiring, as well for the purpose of proving
the existence of the conspiracy as for the
purpose of showing that any such person was a
party to it.
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8.1 Section 10 of the Evidence Act is not
capable of being widely construed so as to
include a statement made by one conspirator in
absence of other with reference to past acts done
in the actual course of carrying out of the
conspiracy, after it has been completed. The
distinction is drawn between communication
between conspirators, while the conspiracy was
going on with reference to carrying out of
conspiracy and statements made, after arrest or
after the conspiracy has ended, by way of
description of events then past. The principle
underlying the reception of evidence under
Section 10 of the Evidence Act of the statements,
acts and writings of one co-conspirator as
against the other is on the theory of agency. The
rule in Section 10 confines the principle of
agency in criminal matters to the acts of the co-
conspirator within the period during which it can
be said that the acts were ‘in reference to their
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common intention’ that is to say, things said,
done or written while the conspiracy was on foot
and in carrying out the conspiracy. It would seem
to follow that where the charge specified the
period of conspiracy, evidence of acts of co-
conspirators outside the period is not receivable
in evidence. For this proposition of law,
reliance is placed on the judgment of Sardul
Singh Caveeshar V. State of Bombay [AIR 1957 SC
747].
8.2 In the case of State of Gujarat v. Mohammed
Atik [AIR 1998 SC 1686], in Paragraph No.14, the
Hon’ble Supreme Court has been noted as under:
“14. …..Section 10 of the Evidence Act is
founded on the principle of law of agency by
rendering the statement or act of one
conspirator binding on the other if it was said
during subsistence of the common intention as
between the conspirators. If so, once the common
intention ceased to exist any statement made by
a former conspirator thereafter cannot be
regarded as one made “in reference to their
common intention.” In other words, a post-arrest
statement made to a police officer, whether itPage 15 of 47
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is a confession or otherwise, touching his
involvement in the conspiracy, would not fall
within the ambit of Section 10 of the Evidence
act.”
8.3 The referred judgment of Mohammed Atik
(supra) clears out that a statement made to the
Police Officer, post arrest whether it is in
confessional form or otherwise would not fall
within the ambit of Section 10 of the Evidence
Act. Thus, any reliance of the complainant police
on the statement of accused would not be tenable
since statement before the police would not be
acceptable in law.
9. The prayer has been made under Section 377 of
Cr.P.C. by filing appeals for enhancing the
sentence. Section 377 of Cr.P.C. is reproduced
hereinunder for appraisal of the evidence on
record vis-a-vis the defence raised by the
accused during the trial in context with the
facts of the case, while appreciating the law
with regard to the conviction of the accused,
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when prayer is made simultaneously for acquittal.
“377. Appeal by the State Government against
sentence-
(1) Save as otherwise provided in sub-section
(2), the State Government may, in any case of
conviction on a trial held by any Court other
than a High Court, direct the Public Prosecutor
to present [an appeal against the sentence on
the ground of its inadequacy-
(a) to the Court of Session, if the sentence is
passed by the Magistrate; and
(b) to the High Court, if the sentence is
passed by any other Court.
(2) If such conviction is in a case in which
the offence has been investigated by the Delhi
Special Police Establishment, constituted under
the Delhi Special Police Establishment Act, 1946
(25 of 1946), or by any other agency empowered
to make investigation into an offence under any
Central Act other than this Code, [the Central
Government may also direct] [Substituted by Act
45 of 1978, Section 29, for “the Central
Government may direct”, w.e.f. 18.12.1978.] the
Public Prosecutor to present [ an appeal against
the sentence on the ground of its inadequacy-
(a) to the Court of Session, if the sentence is
passed by the Magistrate; and
(b) to the High Court, if the sentence is
passed by any other Court.
(3) When an appeal has been filed against the
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sentence on the ground of its inadequacy, the
Court of Session or, as the case may be, the
High Court shall not enhance the sentence except
after giving to the accused a reasonable
opportunity of showing cause against such
enhancement and while showing cause, the accused
may plead for his acquittal or for the reduction
of the sentence.
(4) When an appeal has been filed against a
sentence passed under section 376, section 376A,
section 376AB, section 376B, section 376C,
section 376D, section 376DA, section 376DB or
section 376E of the Indian Penal Code, the
appeal shall be disposed of within a period of
six months from the date of filing of such
appeal.]”
9.1 The Hon’ble Supreme Court has referred to
the case of Soman vs. State of Kerala, [(2013) 11
SCC 382] and Alister Anthony Pareira v. State of
Maharashtra [(2012) 2 SCC 648] and has made
observations in Paragraphs 10, 11, 12, 13 and 14
as under :-
“10. Currently, India does not have structured
sentencing guidelines that have been issued
either by the legislature or the judiciary.
However, the Courts have framed certain
guidelines in the matter of imposition of
sentence. A Judge has wide discretion inPage 18 of 47
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awarding the sentence within the statutory
limits. Since in many offences only the maximum
punishment is prescribed and for some offences
the minimum punishment is prescribed, each Judge
exercises his discretion accordingly. There
cannot, therefore, be any uniformity. However,
this Court has repeatedly held that the Courts
will have to take into account certain
principles while exercising their discretion in
sentencing, such as proportionality, deterrence
and rehabilitation. In a proportionality
analysis, it is necessary to assess the
seriousness of an offence in order to determine
the commensurate punishment for the offender.
The seriousness of an offence depends, apart
from other things, also upon its harmfulness.
11. This Court in the case of Soman Vs. State of
Kerala [(2013) 11 SCC 382] observed thus :
“27.1. Courts ought to base sentencing
decisions on various different rationales –
most prominent amongst which would be
proportionality and deterrence.
27.2. The question of consequences of
criminal action can be relevant from both a
proportionality and deterrence standpoint
27.3. Insofar as proportionality is
concerned, the sentence must be
commensurate with the seriousness or
gravity of the offence.
27.4. One of the factors relevant for
judging seriousness of the offence is the
consequences resulting from it.
27.5. Unintended consequences/harm mayPage 19 of 47
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still be properly attributed to the
offender if they were reasonably
foreseeable. In case of illicit and
underground manufacture of liquor, the
chances of toxicity are so high that not
only its manufacturer but the distributor
and the retail vendor would know its likely
risks to the consumer. Hence, even though
any harm to the consumer might not be
directly intended, some aggravated
culpability must attach if the consumer
suffers some grievous hurt or dies as
result of consuming the spurious liquor.”
12. The same is the verdict of this Court in
Alister Anthony Pareira Vs. State of Maharashtra
[(2012) 2 SCC 648] wherein it is observed thus:
“84. Sentencing is an important task in the
matters of crime. One of the prime
objectives of the criminal law is imposition
of appropriate, adequate, just and
proportionate sentence commensurate with the
nature and gravity of crime and the manner
in which the crime is done. There is no
straitjacket formula for sentencing an
accused on proof of crime. The courts have
evolved certain principles: the twin
objective of the sentencing policy is
deterrence and correction. What sentence
would meet the ends of justice depends on
the facts and circumstances of each case and
the court must keep in mind the gravity of
the crime, motive for the crime, nature of
the offence and all other attendantPage 20 of 47
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circumstances.”
13. From the aforementioned observations, it is
clear that the principle governing the
imposition of punishment will depend upon the
facts and circumstances of each case. However,
the sentence should be appropriate, adequate,
just, proportionate and commensurate with the
nature and gravity of the crime and the manner
in which the crime is committed. The gravity of
the crime, motive for the crime, nature of the
crime and all other attending circumstances have
to be borne in mind while imposing the sentence.
The Court cannot afford to be casual while
imposing the sentence, inasmuch as both the
crime and the criminal are equally important in
the sentencing process. The Courts must see that
the public does not lose confidence in the
judicial system. Imposing inadequate sentences
will do more harm to the justice system and may
lead to a state where the victim loses
confidence in the judicial system and resorts to
private vengeance.
14. In the matter at hand, it is proved that the
victim has sustained a grievous injury on a
vital portion of the body, i.e. the head, which
was fractured. The doctor has opined that the
injury was life threatening. Hence, in our
considered opinion, the High Court was too
lenient in imposing the sentence of six days
only which was the period already undergone by
the accused in confinement.”
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9.2 In Bed Raj v. State of Uttar Pradesh
reported in 1955 (2) SCR 583, the Hon’ble Supreme
Court has concluded that the question of sentence
is a matter of discretion and it is well settled
that when discretion has been properly exercised
along accepted judicial lines, an appellate court
should not interfere to the detriment of the
accused person except for very strong reasons,
which must be disclosed on the face of judgment.
It was further held that in a matter of
enhancement, there should not be interference
when the sentence passed imposes substantial
punishment.
10. It was the contention of learned advocate
Mr. Rahul Dholakiya and Ms. Benazir M.Hakim that
the case has been framed falsely against the
accused by inviting the complaint. In context of
this argument, the deposition of PW6-Sahebkhan
Sikanderkhan was referred to, who had received
wireless message, who deposed that on 07.11.2004,
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he received a wireless message under the order of
Police Inspector, Mahesana City to inform that
absconding accused-Saiyed Faiyazehmad Riyazehmad
resident of Ahmedabad, Dariapur, Multani street
was arrested in C.R. No.264 of 1996 at Unjha
Police Station, and since he was to be arrested
in the case of Mehsana City registered as I-C.R.
No.379 of 1996 under Section 120B, 399 and
section 135 of the B.P. Act, under the message
were instructed to take the transfer warrant from
Unjha Court and to produce the accused in the
Court at Mehsana for the offence of I-C.R. No.379
of 1996. P.W.6 stated that the arrest was made
accordingly and charge-sheet was filed. The copy
of transfer order was produced at Exh.27. The
evidence of the witness was not challenged during
the cross-examination.
10.1 According to PW5 – Karamsinh Kursibhai
Desai, on 24.10.1996, at local branch Mahesana
District, he was a P.S.I. On that day, Unjha
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Police Station had arrested accused Shailesh
Ishwargiri and Ibrahimkhan Umarkhan Pathan. It
was informed to them that if both these persons
were necessary in any of the offence then, they
were asked to contact L.C.B. Patan and Unjha
Police Station. As per the deposition, Head
Constable – Mahobatsinh Kubersinh Chauhan of
L.C.B. was sent for inquiry about both the
accused. Head Constable – Mahobatsinh Kubersinh
Chauhan went to Unjha and Patan and interrogated
both the accused and recorded the statement of
accused in presence of Police Inspector – R.J.
Vaghela and P.S.I. Nathani of L.C.B. Patan. With
the statements of both the accused, on 02.11.1996
filed a complaint against the referred accused
and other accused and on that basis I-C.R. No.379
of 1996 was registered at City Police Station,
Mahesana.
10.2 The complainant was entrusted by PW5 to
interrogate the arrested persons at Unjha Police
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Station and accordingly, Mahobatsinh recorded the
statement of accused Shailesh Ishwargiri and
Ibrahimkhan Umarkhan Pathan in presence of two
police officers, as referred hereinabove.
10.3 The statement made was before the police in
the Police Station, which fact was disclosed by
the police witness himself. Any statement of the
accused before the police, if it is in form of
confession would not be admissible, as provided
under Section 25 of the Evidence Act. Though, the
statement would be considered as under Section 10
of the Evidence Act of one co-accused referring
to his own acts as well as another co-accused,
such statements, had it been after the common
intention cease to exists would have no
importance to connect the other co-accused whom
he had named in the statement before the police.
Further, any statement by the accused in the
police custody, confessing of his crime would
also not be admissible in evidence.
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10.4 In the present matter, the registration of
complaint itself is based on the statement made
by the accused. It is not the case of the
prosecution that the independent investigation
was made on the basis of the statement of the
accused, rather the evidence of PW5 clarifies
that Mahobatsinh Kubersinh was sent for
interrogation, who on the basis of the statement
of the accused Shailesh Ishwargiri and
Ibrahimkhan Umarkhan Pathan, filed a complaint,
which is at Exh.11.
10.5 PW5 has referred to the complaint Exh.11,
who stated that he had reduced the complainant in
writing as was stated by complainant-Mahobatsinh
Kubersinh and thereafter the complaint was sent
for registration at Mahesana City Police. He
produced the report at Exh.16. The further
investigation was handed over to him by depute
report of the P.S.O. Thereafter, since the
accused were before the Patan L.C.B. police in
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connection with Unjha Police Station complaint,
transfer warrant was prayed for (i) Kamlesh
Ambalal (ii) Shailesh Ishwargiri and (iii) Pathan
Ibrahimkhan Umarkhan, and were brought at
Mahesana, arrested on 03.11.1996. PW5 P.S.I.
Desai stated that accused – Kamlesh Ambalal in
presence of two panchas had shown the place of
offence and accordingly, Exh.17, the panchnama
was drawn in his presence.
10.6 Further, according to the deposition of
P.S.I. Desai, thereafter all the accused were
produced before the Court praying for remand and
accused (i) Abdulkadar Mohammdhusen Shaikh (ii)
Mohammadnausad Abdulrahim Janmohammad and (iii)
Shaikh Mohammad Shaid Nurmohammad were arrested.
Accused Abdulkadar and Mohammadnausad were
arrested on 8th November and Shaikh Mohammad Shaid
Nurmohammad was arrested on 23rd November. The
witness stated that the statements of Police
Inspector-R.J. Vaghela and B.S. Nathani and other
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witnesses were recorded.
10.7 Witness – Rupeshkumar Prafulchandra produced
his Maruti Van bearing No.GJ-6K-1750 at Mahesana
L.C.B. and in presence of two panchas, the same
was seized and panchnama at Exh.21 was drawn.
10.8 In view of this witness, on interrogating
Shailesh Ishwargiri and Ibrahimkhan Umarkhan
Pathan, who were arrested by Unjha Police under
C.R. No.264 of 1996 at Mahesana City Police
Station, I-C.R. No.379/96 was instituted. Three
of the accused initially were arrested on
transfer warrant and thereafter subsequently
three accused came to be arrested. The trial was
against six of them in Sessions Case No.203 of
2004, while in Sessions Case No.215 of 1997,
trial was against Shaikh Sabbirhusen @ Allarakkha
and the Sessions Case No.03/05 was against Saiyed
Faiyazehmad Riyazehmad. All the three sessions
trial were consolidated. During the trial, Shaikh
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Abdulkadar @ Sajid Mohammdhusen, accused of
Sessions Case No.203/04 died and therefore, his
case was abated. Ultimately, the trial was
conducted against seven accused. The panchanam
Exh.17, which was drawn on the basis of the
statement of accused – Kamleshkumar Ambalal was
not proved by the panchas.
11. Much reliance has been placed by learned APP
Mr. Rohan Raval on the panchnama Exh.17, to
submit that the accused himself has made certain
admissions, and on the basis of those statements,
the place of offence was showed by the accused,
and submitted that though the panchas have not
supported the panchnama, but on the basis of
statement of the I.O. reliance is required to be
placed on the panchnama Exh.17, since all the
places where they had visited had been brought on
record.
12. The unfortunate aspect and the glaring
defect of the investigation is that the statement
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of Kamlesh Patel was allegedly before the
panchas, as recorded under Exh.17. Panchas have
not proved Exh.17. The evidence of Mahobatsinh
Kubersinh Chauhan as PW1 does not bring into
record any statement that he had interrogated of
accused Patel Kamleshkumar Ambalal Patel. The
P.S.I. Karamsinh Kursibhai Desai (PW5) stated
that the statements of the accused were recorded
by Mahobatsinh Kubersinh in presence of Patan
L.C.B. Police Inspector-R.J. Vaghela and P.S.I.
B.S. Nathani. The defect, which has been referred
is that though, the statements of both these
police personnel were recorded by PW5, both of
them had not been examined during the trial. The
corroboration could not be brought on record that
actually Mahobatsinh had interrogated the
accused.
13. The first three accused found were (i)
Kamleshkumar Ambalal Patel (ii) Shailesh
Ishwargiri Goswami (iii) Pathan Ibrahimkhan
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Umarkhan. Exh.17 panchnama originally only refers
to three accused, however, it is noted of
admission of accused – Kamleshkumar Ambalal
Patel, who stated to have referred himself and
remaining two, as well as Abdulkadar @ Sajid
Mohammdhusen Shakih and Mahammad Naushad @ Laddu
Abdulrahim Janmohammad Shaikh and Sabbir @
Allarakkha Shaikh and Faiyazehmad Riyazehmad and
Sidiq Nurmahammad Shaikh.
13.1 As per the prosecution case, they all had
gathered and by Maruti Van No.GJ-6K-1750, had
planned to loot a person from Mahesana Angadiya
Firm and they had followed Rickshaw No.4949.
Accused-Patel Kamleshkumar Ambalal showed the
place by moving from A.C.B. Office in a
government vehicle, which was dated 03.11.1996
between 15.30 to 16.00 hours. The accused-Kamlesh
Ambalal Patel stated that they had made an
attempt to loot on 07.10.1996, and all the
accused had their lunch at Bombay Hotel and Guest
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House, and from there they took the Maruti Van,
which was parked at the railway parking and all
three accused had travelled in the government
vehicle, except Kamlesh, Faiyaze, Shailesh,
others were asked to alight, and three of them in
the Maruti Van had gone at Radhanpur Road, where
they had parked the Maruti Van, since the
Angadiya person was to go from Radhanpur Road to
Mahesana Nagar Society. As initially they had a
recce of the place of Juna Angadiya Jayantilal
Ambalal Chokshi Shop and then according to the
plan, they had followed the Rickshaw No.4949,
but the plan could not succeed, as the Rickshaw
No.4949 had not come at the place, where they
were waiting and therefore, from Radhanpur Cross
Road they had come to Mahesana where on Kalol
Ahmedabad Highway they had parked the Maruti Van.
13.2 The attempt was said to be made, but the
said panchnama had not been proved by the
panchas. According to the panch PW2 – Maheshbhai
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Shivshanker Pandya, no such panchnama was drawn
and he stated that on 09.12.1996, police had
asked him to sign the panchnama and he had put
his signature on Exh.21. He denied the suggestion
that Patel Rupeshbhai Prafulchandra had produced
the Maruti Van No.GJ-6K-1750. The relevant aspect
in connection to the Maruti Van is that the owner
Rupeshbhai Prafulchandra had not been examined to
prove the fact that the said van was given to the
accused. This is the major missing link of the
investigation. The preparation for dacoity could
have been proved by deposition of owner of
the vehicle himself. Even panch Shaileshkumar
Dayabhai Prajapati (PW3) denies of panchnama
Exh.21 drawn in his presence. He also stated that
on 09.12.1996 police had taken his signature.
Thus, panchnama Exh.21 would have no value and
would not be considered as valid document for its
appraisal as an evidence.
13.3 The panchas of Exh.17 Mahendrakumar
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Narayanbhai Rathor and Udaji Babaji Thakor had
not been examined. Learned APP Mr. Raval
submitted that the same has to be read in
evidence, as it was admitted during the course of
trial by the learned advocate of the accused.
However, the fact remains that the panchnama was
stated to have been drawn on the instruction of
accused – Kamlesh Ambalal Patel. The said places
are all public places. There is nothing recovered
or discovered by way of panchnama Exh.17. All
places were known to the police, if at all the
police itself has to be believed, but the
panchnama Exh.17 does not bring anything on
record, which could be considered as anything
discovered or recovered on the statement of the
accused.
13.4 Mahobatsinh Kubersinh Chauhan as PW1 stated
that on 24.10.1996, he received a wireless
message from Unjha Police Station that accused –
Goswami Shaileshgiri Ishwargiri and four others
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were arrested by Unjha Police Station in I-C.R.
No.264/96 for the offence under Sections 395 and
397 IPC and if at all those were needed in any of
the offences, the message had come, for necessary
inquiry. PW1 stated that at that time, he was
instructed by Police Inspector, L.C.B. Branch and
accordingly he had gone to Unjha and Patan for
inquiry. At that time, those accused as well as
another accused of Ahmedabad, accused Sabbir and
Faiyazehmad and others, were found together, who
had planned one month earlier for loot of
Mahesana Angadiya Firm, who had hired a car
bearing registration No.1750 from Ahmedabad and
had forged the number so as the same can be read
as 750 and brought it at Mahesana City between
6.00 to 6.30 at Jayshree market and had followed
a person from Jayantilal Ambalal Angadiya Pedi,
but the loot was not successful, as the person
from Angadiya firm in his regular Rickshaw
No.4949 had turned himself at Mahesana Nagar
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Society at his destination.
13.5 Next day on 08.10.1996, again the accused
had prepared for the loot, but the person from
Angadiya Pedi had not come out with any money or
other things, so they could not put their plan
into practice. The witness states that such kind
of statement was recorded by him, and the fact
about statement recorded, Unjha and Patan L.C.B.
officers were also informed by him. Hence,
arrested accused and those accused, whose names
were disclosed in the statement against them, he,
therefore filed a complaint on behalf of the
State on 02.11.1996. The complaint was produced
by him at Exh.19.
13.6 In the cross-examination, Mahobatsinh was
asked question that when he had given the
complaint, his head quarter was L.C.B. and he was
an A.S.I., while the accused were in the custody
of Unjha Police, and on the message of Unjha
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police, he had gone to Unjha. He stated that when
he had gone at Unjha, there was no complaint
pending at Mehsana L.C.B. against the accused. He
had gone to Unjha to record the statement of the
accused and there he had interrogated them. Such
statement was taken in the police station. He
stated that on the basis of the statement, he
came to know that the accused were involved in
the offence and therefore, he had taken them in
his custody and had brought at Mahesana. After
coming to Mahesana he had given the complaint. He
also clarifies that prior to giving the complaint
at Mahesana, he had not inquired from any person
from the Angadiya Pedi regarding the loot. A
suggestion was put that none of the accused had
given any statement and he himself had written
down the statement, which he denied. However, no
such statement is brought on record.
14. The overall examination of evidence of the
witnesses, would clarify that there was no
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serious investigation in the matter. Out of six
witnesses apart from two panch witness, four
police personnel had given the deposition. No
statement of any person from alleged Angadiya
Pedi was recorded. Patel Rupeshkumar
Prafulchandra of Nilkanth Travel was not
examined. The allegation is that there was
tampering of number plate of the Maruti Van,
where in fact, the registration of the Maruti Van
was 1750 and the only number, which they could
refer of painting black was number one of the
total alpha numerical name plate. The statement
of the rickshaw driver bearing No.4949 also could
have been recorded in order to find out whether
they were actually followed by the Maruti Van
No.GJ-6K-750. It appears and as submitted by
learned advocates for the accused that the case
has been registered against the accused to show
the work of L.C.B.
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15. As noted in the case of Mohammed Atik
(supra), following the principle of law of
agencies, statement of one conspirator would bind
others only during the subsistence of the common
intention as between the conspirators. Once the
common intention ceased to exist, any statement
made by a former conspirator cannot be considered
as one made “in reference to their common
intention.”
15.1 Here, the statement was recorded when the
accused were in police custody. Section-10,
therefore, cannot be invoked to consider it as a
pre-conspiracy for the offence under Section 120B
IPC.
15.2 The police initially arrested three persons
thereafter to bring the case under dacoity, for
forming the group of person of more than five, it
appears that subsequently all the accused were
arrested to make it as a grievous offence. The
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prosecution has failed to prove the case of
preparation of commission of dacoity. The
relevant statements of the owner of the vehicle
could not be taken on record, though, that person
had produced his Maruti Van for investigation.
15.3 In order to establish an offence under
Section 399 IPC some act amounting to preparation
must be proved, and what must be further proved
is that the act for which preparation was made,
was for dacoity. The test is the intention of the
accused. Here, as per the evidence, the accused
had also gathered for lunch at Bombay Hotel and
Guest House. No statement of owner of the hotel
was also recorded to even corroborate the fact of
any action of the accused for preparation of
commission of dacoity. Nothing is shown of
accused possessing any arms. Though, of course,
evidence has been noted that Sabbir was having
Tamancha, Sidiq was with knife and Gupti was in
the Maruti Van, but no such weapons have been
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proved during the course of trial. The assembly
of the alleged accused for the purpose of dacoity
could not be proved. The accused were arrested by
way of transfer warrant, where they were involved
in the other case, more specifically, the case
registered at Unjha, which also as per the
evidence, could not be proved during the trial.
It is not that the police had received any
information from any of the public persons of any
attempt by the accused for such preparation being
made by the accused for the commission of
dacoity.
15.4 In the cross-examination of PW4 –
Shivnathsinh Anandsinh Parmar, who was the I.O.
of the matter, he had affirmed that no statement
of any other person from public or from the city
was recorded, nor there was any complaint against
these persons from the city or the public. In his
investigation, except recording the statement of
the police he has not recorded statement of any
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independent person. Though, he got the
information that on 08.10.1996, when he was
Police Inspector at Mahesana Police Station,
there was a conspiracy by five to six people to
loot Ambalal Angadiya Firm, which was located in
Jayshree market. Those persons had not come under
their arrest. He stated that on 09.10.1996, the
loot was committed and the investigation was by
L.C.B. Patan, and during that period the
information regarding the attempt of Mahesana
loot had come forward, and since the information
was received by L.C.B. Mahesana, the Head
Constable Mahobatsinh Kubersinh had investigated
the same and finally lodged the complaint. He
stated that he was on 02.11.1996, was P.I. of
L.C.B. and since other accused were yet to be
arrested, he received the transfer warrant, as
instructed by K.K. Desai P.S.I. and Mahobatsinh
and therefore, report was received for the
warrant from Judicial Magistrate, Mahesana. Rest
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of two accused, he stated, were arrested by
L.C.B. department and through him the charge-
sheet was filed.
15.5 The whole of the evidence, if read in
totality, there are no independent persons from
the public, who made complaint about any attempt
by the accused for preparation of loot. Neither
the owner of Maruti Van nor the owner of the
rickshaw have been examined. The places alleged
to have been visited by the accused, the owner of
those places were also not examined. No evidence
has been brought on record by the police to show
that preparation for the commission of offence of
dacoity was being made. The prosecution rather
has failed in their case before the trial Court.
The learned Judge has relied on the evidence of
the police, to observe that there was
planning/conspiracy, where they had hired the
Maruti Van No.GJ-6K-1750 and the Maruti Van was
used and there was an attempt of forgery in the
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number plate by blackening figure one. However,
this observation of the learned Judge cannot be
accepted, in absence of statement of owner of the
vehicle Patel Rupeshkumar Prafulchandra. There is
nothing brought on record by way of
statement/evidence of any independent person
having seen the Maruti Van or the evidence of
driver of Rickshaw No.4949 to have stated that he
had seen Maruti Van following him with number
plate of 750.
15.6 The learned Judge observed that attempt on
07.10.1996 and 08.10.1996 were unsuccessful. This
observation was also recorded for following the
conviction. But no evidence came on record of any
attempt made on 07.10.1996 and 08.10.1996. The
failure of proving the case recorded at Unjha
Police Station was also noted. The learned Judge
was of an opinion that there was no enmity
between the complainant police and the accused to
file a false case. There was a pre-plan in a very
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systematic way, which was proved by the evidence
and that there was mens rea of the accused since
no defence has been recorded.
15.7 The learned Judge failed to appreciate the
basic principles of law that in criminal trial it
is prosecution, who has to prove the case. Unless
and until the case is proved against the accused,
they are to be considered as innocent. The
accused are not legally bound to produce any
evidence and whatever defence came on record is
by way of cross-examination, and the statement
under Section 313 of Cr.P.C., where they had
denied of the evidence and circumstances against
them.
16. Thus, on analysis of evidence and on
observations made hereinabove, this Court is of
an opinion that the prosecution has miserably
failed to prove the case. No grounds have been
raised or any circumstances proved by the
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prosecution to consider the case under Section
399 IPC for enhancing the sentence. The accused
have proved their case for acquittal. There are
no sufficient and corroborating evidence to
consider the guilt of the accused. No evidence
has been produced on record to show any
preparation of commission of offence. It appears
that the cases have been created against the
accused to probably prove them as notorious
dacoits, but nothing has come on record to even
assume of any preparation for the commission of
offence.
17. In view of the above discussions and
observations, Criminal Appeal Nos.366 of 2005,
367 of 2005, 383 of 2005 and 378 of 2005 are
allowed and Criminal Appeal Nos.2583 of 2005,
2584 of 2005 and 2585 of 2005 filed by the State
are dismissed. The conviction and sentence of the
accused passed by the learned Additional Sessions
Judge, 3rd Fast Track Court, Mahesana vide
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NEUTRAL CITATION
R/CR.A/366/2005 JUDGMENT DATED: 04/08/2025
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judgment and order dated 19.02.2005 passed in
Sessions Case Nos.203 of 2004, 03 of 2005 and 215
of 1997 are hereby set aside. Bail bonds, if any,
stand discharged. Registry is directed to send
the Record and Proceedings back to the concerned
Trial Court forthwith.
(GITA GOPI,J)
Pankaj/1 & 2 (suppl.)
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