2007 Supreme(Guj) 546

2008 (3) GCD 1895 (Guj)
Hon’ble Mr. Justice C.K. Buch
Salim Shamsuddin Shaikh & Ors.
Versus
State of Gujarat & Anr.
Criminal Appeal No. 635 of 20041—Decided on 11/09/2007

Important Point :
Whether prosecution has been able to prove the alleged offence against accused- appellant ?

Headnote:Arms Act—Sections 9, 10, 25(1)(a) read with Section 35 and Section 25(1-AA) read with Section 35—[Indian] Penal Code, 1908—Section 279—Motor Vehicles Act—Section 185—Conviction—Storing, possessing, selling and transporting ammunition—Sustainability—Finding of—The prosecution case is that accused for doing crime activities in Ahmedabad stored, possessed and sold ammunition and transported it—They had Maruti car where in six cartridges of 455 Revolver with a knowledge of selling and transporting the same were recovered—It is also the case of prosecution that accused in one Bungalow No. 19 of Satyam Co-operative Housing Society Ltd. of Shahpur area which was in their possession intentionally possessed prohibited ammunition like one AK 47 rifle and cartridges for selling and transporting the same and thus committed the allege offences—The prosecution has mainly relied on the documentary evidence as well as oral evidence of six Police Officers—The other witnesses who have been examined to prove the ownership of the bungalow or the car etc. have not supported the case of prosecution—In the same way the Panchas in whose presence the muddamal articles were seized have also not supported the case of prosecution but the Police witnesses who had drawn the Panchnama or who had collected the documentary evidence have proved the crucial documents like Panchnama drawn regarding seizure of six live cartridges and seizure of other arms and ammunitions from Bungalow No. 19 of Satyam Society—The trial Court found the essential ingredients of the offences are well established by prosecution—Court also reappreciation the evidence brought on record by prosecution and found itself in agreement with the basic reasons given by trial Judge for linking the three accused with the crime—Court came to the conclusion that it is not possible for the Court to say that the conviction and sentence recorded by trial Court is either bad illegal or unsustainable in the eye of law.

       Held :

       In the present case, the prosecution mainly relies on the documentary evidence as well as oral evidence of six Police Officers. The other witnesses who have been examined to prove the ownership of the bungalow or the car, etc., have not supported the case of prosecution. In the same way, the Panchas in whose presence the muddamal articles were seized have also not supported the case of prosecution, but the Police Witnesses who had drawn the Panchnama or who had collected the documentary evidence, have proved the contents of the crucial documents viz., the Panchnama drawn in the compound of Dariapur Police Station regarding seizure of six live cartridges and seizure of other arms and ammunitions from Bungalow No. 19 of Satyam Society. [Para 10]

       The prosecution has placed certain circumstance to link the accused with the crime to establish the element of conspiracy or some understanding amongst the some of the accused persons for commission of the alleged crime. The learned Judge has enumerated the facts relied on by prosecution in paragraph 17 of the impugned judgment as under:

       (i) That accused No. 1 was arrested on 04.02.1993 in a drunken condition driving the Maruti Car and from that very car, six live cartridges were recovered at the instances of the accused No. 1.

       (ii) On the clue given by the accused No. 1, a raid was carried out at Bungalow No. 19 of Satyam Society and from that very Bungalow one A.K. 47 Rifle, three country-made pistols alongwith used and live cartridges were seized alongwith more than 120 Killograms of silver wire.

       (iii) The Maruti Car involved in the crime which was driven by accused No. 1 is of the ownership of accused No. 2 and bearing registration No. GCB-122.

       (iv) The Bungalow raided from which the prohibited arms were recovered is owned by original accused No. 4 - Mohmmed Rafik and he was in possession of that bungalow. [Para 11]

       The finding recorded by the learned trial Judge that above four major facts have been established by the prosecution successfully by leading oral as well as documentary evidence and circumstances emerging from the evidence are sufficient to link the accused with the crime. [Para 12]

       In the present case it is possible for the Court to observe that this Court is in agreement with the basic reasons given by the learned trial Judge for linking the three accused with the crime and this Court can adopt the reasons assigned by the learned trial Judge, but these three appeals are preferred under the provisions of Section 374 read with Section 386 of the Code of Criminal Procedure and by undertaking the exercise of reappreciating the entire set of evidence, the Court reaches to the conclusion that it is not possible for the Court to say that the conviction and sentence recorded by the learned trial Judge is either bad, illegal or unsustainable in the eye of law. [Para 67]

       Appeal Dismissed