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IN THE COURT OF ADDITIONAL SESSIONS JUDGE,
PORBANDAR.
========================================
Criminal Appeal No. 22/2013
Criminal Appeal No. 25/2013
Criminal Appeal No. 26/2013
Exh. 71.
Criminal Appeal No. 22/2013
APPELLANT
APPELLANT
APPELLANTS
(1)
2/28
(2)
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.
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the 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
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
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
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from 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.
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.
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offence 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.
Sr. Exhibit
No.
Description of witnesses
Documents
produced
22
--
27
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
211
212
288
--
Exh. 213 - A
letter from
Collector.
Exh. 14 Panchnama /
Rojkam.
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partnership deed
Exh. 290 - Exh.
294
Xerox
copies
of
explosive / shot
fire permit /
license renewal
papers.
7
372
386
547
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including its
annextures.
10
673
I. O. - Hardevsinh Bhagvatsinh
Vaghela - P. S. I., Bagvadar Police
Station.
11
676
Hearing of appeal.
6.
Read the appeal memo, perused impugned judgment and all the
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
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appreciation 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
Learned
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(2)
What order?
Findings
10.
In the negative.
(2)
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Before entering into merits and dealing with the facts and
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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.
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
to conclusion that the complainant has duly proved the entire facts of
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prosecution 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
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
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15/28
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.
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
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
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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 crossexamination (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
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mining lease.
15.4
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
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
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15.8
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.
(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.
19/28
16.2
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
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by Explosive
21/28
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
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
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
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(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,
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lease 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.
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
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.
laws.
(1)
(2)
Abdul Sattar V/s. State of Goa (1992) Suppl (3) SCC 74.
26/28
(5)
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
27/28
2.
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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.
Sec.
Copies of this judgment be kept with Cri. Appeal No. 25/2013 and