The prosecution failed to prove the appellant's guilt beyond reasonable doubt due to inconsistencies in witness testimonies and lack of corroborative evidence.

JUDGMENT :

GITA GOPI, J.

1. The appellant is accused No.1 of Sessions Case No.06 of 2000 wherein both the accused came to be convicted by learned Additional Sessions Judge, Navsari on 21.12.2002.

2. The First Information Report (FIR) and the charge-sheet were against three accused, since accused Mukesh Brijram was found absconding, the trial was conducted against the present appellant-Anandhari Tilakdari and another accused-Maleshsinh as acccused No.1 and 2. Both the accused were convicted under Section 393 read with Section 34 of the INDIAN PENAL CODE (IPC) for 5 years rigorous imprisonment and Rs.1,000/- fine and in default of payment of fine, three months simple imprisonment.

3. The trial was under Sections 392 , 397 and 34 of the IPC and Section 25 (1B) of the ARMS ACT , 1959. The conviction order sentencing both the accused is under Section 393 with Section 34 , while there is no punishment for the offence under the ARMS ACT . Section 393 and Section 34 of the IPC are extracted hereinunder :-

“ Section 393 . Attempt to commit robbery.

Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Section 34 . Acts done by several persons in furtherance of common intention.-

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

4. The facts of the case in a nutshell are as under :-

The first informant-PW1-Harishchandra Jinalal Patel on 19.08.1999 as per his routine left his house at 7.00 in the morning from Village Mankad to Hond on his Hero Honda motorcycle for the purpose of depositing milk at the Milk Co-operative Society. While he was on his way, at that point of time, he saw three persons sitting on the bridge of Jarikotar. While returning back at 7.30, the first informant parked his motorcycle to collect fodder at the edge of the road beside the farm of one-Mr. Desai. At that point of time, those three persons came walking near him. The first informant was locking his motor cycle, and was about to put the keys of the motorcycle in his pocket, suddenly one out of three took out a countrymade pistol (tamancha) and pointed it to the first informant and another person touched him with a knife and asked the first informant to hand over all his belongings. It is stated that when these people were searching his pockets, his father came there on his cycle and therefore, the complainant gathered strength and before, they could cause him any injury he stepped behind and shouted that there are ‘thieves and looteras’. The complainant stated that as he shouted, all the three started his motorcycle and tried to run away but since it was raining, the driver of the motorcycle could not control it and since the motorcycle skidded, all the three fell down. At that time, as per the complainant, Yogesh Bhagu Bhanabhai Babarbhai and his father Jinabhai as well as Shailesh were passing since they were also on their way to deposit milk in the Co-operative Society, with their support, they caught the escaping persons who had come for loot and after nabbing them, they took them to the farm belonging to Mukesh Ramanbhai, Dipak Ramanbha