Gujarat High Court
Vishnu @ Gabbar Prahaladbhai Dantani vs State Of Gujarat on 9 May, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 88 of 2011
With
R/CRIMINAL APPEAL NO. 62 of 2011
With
R/CRIMINAL APPEAL NO. 90 of 2011
With
R/CRIMINAL APPEAL NO. 781 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No
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VISHNU @ GABBAR PRAHALADBHAI DANTANI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR PS CHAMPANERI(214) for the Appellant
MS CM SHAH APP for the Respondent
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/05/2025
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since, the facts of the case and issue involved in captioned appeals are identical and arise out of the Page 1 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined same judgment, the appeals are taken up together and are being disposed of by this common judgment.
2. This common judgment shall decide four criminal appeals bearing Criminal Appeal Nos.88, 62, 90 and 781 of 2011, preferred by the appellants as well as State.
3. The aforesaid criminal appeals preferred by the original accused nos.1, 2 and 3 viz. Vishnu Dantani, Sunil Vaghari, and Amirmiya Shaikh, against the judgment of conviction and order of sentence dated 31.12.2010 passed by the Sessions Judge, Gandhinagar in Sessions Case No.47 of 2010 by which the appellants have been convicted under Sections Sections 457, 380, and Section 413 read with Section 114 of the Indian Penal Code and sentenced to undergo imprisonment as tabulated hereinunder:
Accused Conviction Punish Fine In
under ment default
Section of fine
Vishnubhai Section 380 Rigorous 2000 Simple
@Gabbar of IPC read imprison impriso
Prahladbhai with 114 of ment for nment
Dantani (A- IPC 3 years for 3
1) months
Vishnubhai Section 457 Rigorous 1000 Simple
@Gabbar of IPC read imprison impriso
Prahladbhai with 114 of ment for nment
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NEUTRAL CITATION
R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025
undefined
Dantani (A- IPC 2 years for 2
1) months
Sunil @Tino Section 457 Rigorous 1000 Simple
Popatbhai of IPC read imprison impriso
Knatilal with 114 of ment for nment
Vaghri (A-2) IPC 2 years for 2
months
Sunil @Tino Section 380 Rigorous 2000 Simple
Popatbhai of IPC read imprison impriso
Knatilal with 114 of ment for nment
Vaghri (A-2) IPC 3 years for 3
months
Amirmiya Section 413 Rigorous 2000 Simple
Kodarbhai of IPC read imprison impriso
Sekh(A-3) with 114 of ment for nment
IPC 3 years for 3
months
4. The State has preferred the appeal being Criminal Appeal No.781 of 2011, under Section 377 of the Cr.P.C. for inadequacy of the sentence.
5. The facts leading to fling of the aforesaid appeals are as follows:
5.1 The accused were charged of theft allegedly committed in the Jain temple, said to have taken place in the night of 18.11.2009 and FIR by the administrator of the Jain temple came to be fled on the same day i.e. on 18.11.2009 with Mansa Town Police Station. The temple is situated in the street of Maru at Mansa.Page 3 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025
NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined It is the case of the prosecution that in order to commit the ofence of theft, the accused nos.1 and 2 by night hours on 18.11.2009, entered into temple by breaking the necessary doors etc., stolen gold and silver ornaments and cash amount worth Rs.98,000/-, and thereafter, the accused sold stolen ornaments to accused No. 3 Amirmiya Shaikh, a goldsmith, doing his business at Vijapur and after receiving the stolen ornaments, he melted it and retained in the form of ignot.
5.2 The ofence being I-C.R.No.136 of 2009 came to be registered with Mansa Police Station, for the ofences punishable under Sections 380, 457 and 114 of the IPC against the unknown thieves.
5.3 The Investigating Ofcer PW:13 PSI, Faridmiya Malek was entrusted the investigation of the case. He took visit the temple and in the presence of independent panchas, drew the panchnama of place of occurrence on same day i.e. on 18.11.2009.
5.4 It is relevant to note that, after the ofence of theft, the another incident of theft reported by the Jain temple situated in the area of Swaminarayan temple at village: Mansa, which was registered on 23.12.2009 Page 4 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined as I.CR. No. 150 of 2009 with Mansa Town Police Station for the ofences under Sections 380, 457, read with Section 114 of the IPC against the unknown thieves. The said ofence was detected with the help of LCB Police, Mehsana, on 29.03.2010, and by transfer warrant, the Mansa Police took the custody of the accused herein. In such circumstances, upon interrogation of the appellants accused, the IO came to know that, the accused herein committed the ofence of theft and after the theft of ornaments, the accused no. 3 purchased it and converted into ignot by melting the ornaments. During the course of investigation, the IO arrested the appellants accused no. 01.04.2010 and the accused while in custody, admitted the guilt and made voluntary disclosure statement that they intend to show the place of occurrence and shop of accused no. 3, where, they had gone to sale the stolen ornaments. The I.O., noted the disclosure statement with the panchnama and completed the proceedings in terms of Section 27 of the Evidence Act. The IO recorded the statement of the witnesses, obtained the purity certifcate of the melted ornaments, seized and recovered the melted ornaments in the form of ignot from the son of accused no. 3 Faridmiya. In such circumstances, after completion of the investigation, the IO fled the chargesheet before the Court of Sessions against the Page 5 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined appellants - accused herein.
6. After due framing of the charge and upon accused pleaded not guilty, the trial commenced before the Sessions Court, Gandhinagar. In order to prove the charges, the prosecution examined in all 19 witnesses and exhibited 5 documents:
Oral evidence PW 1-Exh.13 Kanubhai Somabhai Patel, Complainant PW 2-Exh.15 Naryanbhai Deviprasad Jayshval, panch witness PW 3-Exh.17 Jayantibhai Devshankar Barot, panch witness PW 4-Exh.18 Dinesh Champaklal Shah, panch witness PW 5-Exh.22 Yakubmiya Husenmiya Sekh, panch witness PW 6-Exh.26 Usmangani Makbulhusen Rangrej, panch witness PW 7-Exh.27 Mahesh Jatashanker Joshi PW 8-Exh.30 Sanjay Uttam Yadav PW 9-Exh.32 Faridmiya Amirmiya Sekh PW 10-Exh.33 Jayeshbhai Natvarlal Soni PW 11-Exh.37 Bhikusinh Ishwarsinh Chavada, Head Constable PW 12-Exh.42 Mahadev Mevabhai Rabari, Police Inspector PW 13-Exh.43 Faridmiya Sarfumiya Malek, Investigating Ofcer Documentary evidence Page 6 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined Exh.14 FIR Complaint Exh.19 Panchnama of Scene of Ofence Exh.16 Discovery panchnama as per Section 27 of Evidence Act Exh.23 Panchnama regarding recovering the material Exh.31 Certifcate Issued by Jewelers
7. After closure of the prosecution evidence, the appellants were questioned under Section 313 of the Cr.P.C. to which, they stated that they have been falsely implicated by the police in the undetected ofence and as such, they have not committed any ofence of theft. So far as accused no.3 is concerned, he stated that his son Faridmiya was pressured to produce the ignot and accordingly, by selling the house, he produced the ignot at the behest of the police.
8. Though opportunity was extended, no evidence was tendered from the side of the appellants accused.
9. After hearing the parties and upon appreciation of the evidence, the Trial Judge convicted the accused nos.1 and 2, for the ofences punishable under Sections 457, 480, and Section 413 read with Section 114 of the IPC, whereas accused no.3 was convicted under Section 413 of the IPC and sentenced the accused accordingly, as mentioned in Para-2 of this judgment.
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10. Challenging the said conviction and sentence, the appellants have fled the criminal appeal, whereas the State has fled enhancement appeal against the quantum of sentence.
11. We have heard learned counsel Mr.P.S. Champaneri, Mr.Yogendra Thakore, Mr.R.J. Goswami, and Ms.C.M. Shah, learned APP for the respective parties.
12. Learned counsels appearing for the accused made the following submissions:
(A) That the judgment of conviction is unjust, improper and is not sustainable in eye of law; that there is no evidence either direct or circumstantial to prove the charge against the accused and therefore, the prosecution miserably failed to prove the charges against the accused beyond reasonable doubt.
(B) That it is the case of the prosecution that, the accused by trespassing and breaking the doors of the temple, stolen valuable ornaments and then-after sold it to accused no. 3, who had converted it into ignot by melting the stolen ornaments. That there is no evidence to show that the accused had committed the ofence of theft. That the accused were in the custody of IO, as they had been apprehended in the another Page 8 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined ofence of theft; thus, based on the confession of the guilt of the accused, they had been again arrested in the present case of theft and except the admission of the accused, no any evidence found during the course of investigation to connect them in the alleged ofence; the discovery of place shown by the accused cannot be used against him, because, after the registration of the ofence the facts of place of occurrence has already been disclosed and put on paper by way of panchnama; the panchas have declared hostile and did not have supported the case of the prosecution; so far as, purchasing of stolen ornaments by accused no. 3 is concerned, the said fact has not been proved by the prosecution; the accused no.3 and his son accused no. 4, who later on acquitted by the court below, were in custody of Mansa Police; the son of accused no. 3 Faridmiya was not doing the business with the accused no. 3, as at relevant time he was employed as Security Supervisor at private company at Sanand and under the pressure of the police, he managed to produce the ignot as per the weight of the stolen ornaments; thus, there was no evidence found that the stolen ornaments were purchased by accused no. 3.
13. In such circumstances, learned counsels appearing for the appellants would urge that the prosecution failed Page 9 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined to discharge their burden to prove the charges against the accused beyond reasonable doubt and there can be no conviction on the basis of surmises, conjectures and suspicion, howsoever grave it may be and therefore, they prayed that the order of conviction and sentence be set aside and appellants may be acquitted of the charges leveled against them.
14. On the other hand, opposing the contentions, learned APP Ms. C. M. Shah submitted that the accused, during the course of investigation, voluntarily made a statement that they intend to show the place of the ofence and thereafter, they also made a statement that they intend to show the shop of goldsmith, owned by accused nos.3 and 4 and the I.O. in his testimony, narrated the contents of the panchnama and merely panchas have not supported the case of the prosecution would not be a ground to discard the evidence of the I.O. on the aspect of panchnama, as referred above. Thus, she submitted that I.O. seized the melted stolen property and the son of accused no.3 PW:18 Faridmiya produced the ignots and the said ignot would exactly tally with the weighed of the stolen ornaments for which, there is no explanation on the part of the accused. The allegation on the police of adopting pressure tactics would substantiate from the explanation of the witness. It is difcult to digest Page 10 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined within day one from the arrest, the witness PW:18 sold his house and produced the ignots to the police. Thus, the accused no.3 found in the possession of the stolen property soon after the incident of theft. In such circumstances, the learned APP submitted that the accused having a past antecedent of like nature and they are involved in the so-many cases of theft and receiving stolen properties and therefore, the Court below has not committed any error either on facts or on law in holding the accused appellants guilty of the ofence and therefore, she prayed that there being no merits in the appeals fled by the accused and the same may be dismissed and having regard to the nature of ofence, and its impact on the society, the appeal for enhancement of sentence may be allowed as the Court below despite of the evidence that the accused are habitual ofender awarded a lesser sentence.
15. Before dealing with the rival contentions of the parties, it would be useful to analyses the evidence of some of the relevant witnesses:
(1) Kanubhai Somabhai Patel (PW-1) being administrator of Jain Temple, lodged an FIR against the unknown thieves, inter-alia, stating that, the approximate amount of theft would be Rs.98,000/-. In his Page 11 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined deposition, he has stated the factum of theft allegedly took place in the temple on 18.11.2009.
(2) PW-2 Naran Jaiswal, has stated on oath that, on 01.04.2010, he was called by the Mansa Police and took his signature on the papers, and show the accused sitting in the police station. The witness has denied that, in his presence, the accused made a disclosure that, they intend to show the place of occurrence wherefrom, they stole the ornaments. The witness was declared turned hostile.
(3) PW-3 Jayantibhai Devshankar Barot, has stated that, on 01.04.2010, he was called by Mansa Police, where police had shown him two accused. The witness has further stated that he along with two accused and police party went to the temple, where the theft took place and the police had written the said facts about showing the place allegedly pointed out by the accused.
(4) PW-4 Dinesh Shah, being a Trustee of the Temple, has produced the hand book mentioning therein the list of ornaments possessed by the temple board.
(5) PW-7 - Mahesh Jatashanker Joshi, being a priest of the temple was examined by the prosecution to prove the Page 12 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined particulars of the ornaments said to have been stolen on 18.11.2009.
(6) PW-9 - Faridmiya Shaikh, being a son of Accused no.
3, was examined to prove the seizure of melted stolen ornaments purchased by accused no. 3. The witness in his testimony has stated that since last three years, he was working as a security man with Lockzim Company at Sanand. He has further stated that, he was never part of his father's business. The witness has further stated that, the police pressurize him to produce the alleged stolen ornaments and same was purchased from market and produced in the form of ignot.
(7) PW-13 - Faridmiya Malek, Police Inspector, Mansa Police Station, was examined by the prosecution. The witness had investigated the case. The witness has stated that on 01.04.2010, the appellant accused were in their custody in connection with the ofence I.CR. No. 150 of 2009 and during the interrogation, it revealed that the accused had trespassed the temple with an intention to commit the ofence of theft and accordingly, by breaking the doors, they stolen the ornaments of the temple and sold it to the accused no. 3, who after purchase, melted and retained it in the form of ignot. The witness thereafter arrested the Page 13 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined accused and on their disclosure statement, the place of ofence came to be discovered and also they pointed out the shop of the accused no.3. The witness
- IO has stated that the son of accused no.3 had produced the stolen ornaments in the form of ignot and same was recovered and seized in presence of panchas. The witness has stated that, he obtained purity certifcate from goldsmith and thereafter, recorded the statement of 11 material witnesses and fled the chargesheet. In the cross-examination, witness has admitted that since long the ofence was undetected. The witness has denied that due to pressure of Trustee, the accused had been falsely implicated in the ofence.
16. We have heard learned advocates for the respective parties, perused the records and proceedings and fndings of conviction.
17. Having regard to the facts and circumstances of present case, the issue arise for our consideration as to whether the Court below was right in convicting the appellants - original accused nos.1 and 2 for the ofences punishable under Sections 380, 457 read with Section 114 of the IPC and accused no.3 for the ofences punishable under Section 413 of the IPC p Page 14 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined
18. As per the prosecution case, the accused nos.1 and 2 i.e. Vishnu Vaghari and Sunil Vaghari, on 18.11.2009, in night hours, after breaking the temple, committed a theft of golden and silver ornaments situated in the area of Village Mansa and then, sold the stolen ornaments to accused no. 3 Amirmiya, who had retained the ornaments after melting the same in the form of ignot. On the other hand, it was the defence of the accused that they have been implicated on the basis of suspicion and as such there is no iota of evidence to prove that the accused had committed the theft and sold the ornaments to accused no. 3 and accused no. 3 was found in the possession of stolen ornaments.
19. In order to appreciate the evidence as well as rival contentions, it is necessary to refer the statutory provisions of theft, and theft in dwelling house and house trespass by night in order to commit ofence of theft.
20. Section 378 defnes the term 'theft' which says that whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Section 379 provides the punishment for theft. Section 380 Page 15 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined pertains to the theft in a dwelling house which says that whoever commit thefts in any building which building is used as a human dwelling or used for the custody of the property shall be punished. Thus, to sustain conviction under Section 380 the prosecution is to prove that the accused committed a theft; that such theft was committed in any building, etc.; and that such building, etc. was used as a human dwelling. Section 457 pertains to lurking house trespass by night or housebreaking by night in order to committing any ofence. The other relevant penal provision required to be referred is dishonestly receiving stolen property, knowing or having reason to believe that the same to be stolen property and if the person is habitual then Section 413 would be applicable because the punishment is life imprisonment.
21. In the case on hand, after careful examination of the evidence oral as well as documentary, It is not in dispute that in the night hours on 18.11.2009, the incident of theft alleged to have been taken place in the Jain temple of Village Mansa and silver and gold ornaments worth Rs.98,000/- were being stolen by unknown thieves. At the time of ofence, no CCTV cameras had been installed by the temple. In the FIR, the allegations of theft being made against the Page 16 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined unknown thieves. On 01.04.2010, the PSI, IO of the case PW-13, was in charge of investigation of the case, being CR. No. 150 of 2009 and in the said ofence, the present appellants were arrested in connection with another ofence of theft and receiving stolen ornaments. In that view of the matter, we are of the view that, on the basis of suspicion and in order to clear the backlog of undetected cases, the accused no. 1 and 2 were arrested on the basis of their admission of guilt. Except the so called admission, there is no evidence to establish the complicity of the accused in the alleged act of theft. It is settled position of law that, a confession made to a police ofce is prohibited and cannot be admitted in the evidence (Section 25 of the Evidence Act). Section 26 provides that no confession made by any person whilst he is in police custody of a police ofce shall be proved against such person unless it is made in the immediate presence of the Magistrate. Therefore, confession of guilt cannot be read against the accused, because at relevant time, they were under the custody of the police. The prosecution mainly relied on the circumstance that after the arrest, the accused had pointed out the place of ofence and thereafter, show the shop of accused no. 3, which is suggestive of the fact that the accused was knowing about the theft. In our opinion, the said incriminating Page 17 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined circumstance cannot be used as proved against the accused. The panchas of both the panchnama, either turned hostile or have not stated the exact words spoken by the accused and contents of the panchnama. The Investigating ofcer in his testimony also fails to prove the factum of panchnama. In such circumstances, when the place of ofence, already been discovered, the subsequent showing the place by the accused, cannot be said to be a discovery of facts of place of ofence. In such circumstances, the incriminating circumstances of pointing out the place of the ofence and shop of the goldsmith - accused no. 3 cannot be read as evidence against the accused. So far as charge of receiving and possessing stolen property by accused no.3 is concerned, the prosecution mainly relied on the testimony of Faridbhai, who is son of accused no. 3. The fact remains that, at relevant time, he was not in charge of the shop and on the contrary, he was serving as a security man with private company and further, he has categorically stated that under the pressure, he purchased the gold from the market and produce in the form of ignot to the police authority, as he was threatened by the police that, if he would not produce, then, they will frame in the ofence. If had it been the case that the witness being an administrator of the shop and in presence of accused and at their Page 18 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined instance, the melted ornaments were being produced, then, case would be appreciated on a diferent footing. Therefore, the recovery of melted ornaments becomes doubtful and prosecution failed to prove that the melted ornaments in the form of ignot were the stolen ornaments purchased by the accused no.3 goldsmith. In such circumstances, we are not agree with the contention raised by learned APP that in absence of any explanation by accused no. 3 about the seizure of ignot from his son, the accused presumed to be thieves in view of Section 114A of the Evidence Act, because, when the recovery is not proved, the question does not arise for application of presumption clause.
22. For the reasons aforementioned, the prosecution miserably failed to prove by adducing cogent, acceptable and reliable evidence that, accused nos.1 and 2, on 18.11.2009, at night hours, after breaking the temple, committed a theft of gold and silver ornaments and same were received or retained by the accused no. 3 knowing it to be a property acquired by the theft.
23. For the reasons aforementioned, the Court below was not right in convicting the accused for the ofences, as referred above, as it is the fundamental principles of Page 19 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined criminal jurisprudence is that the burden of proof squarely rests on the prosecution and there can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicion factors to inculpate the accused. It is no doubt true that the accused have in their credit so many cases of like nature but such past records cannot be by itself overweight as far as legal proof is concerned. (Digambar Vaishnav Vs. State of Chhatisgarh, 2019 (4) SCC 522). Thus, in the facts of the present case, after reanalysis of the evidence, the prosecution failed to prove the charges beyond reasonable doubt against the appellants accused. The judgment of conviction and order of sentence passed against the appellants accused is not sustainable in law and accordingly, deserves to be set aside and are hereby set aside.
24. In the result, the appeals i.e. Criminal Appeal Nos. 90, 88, 62 of 2011 stand allowed. The judgment of conviction and order of sentence dated 31.12.2010 passed in Sessions Case No.47 of 2010 is hereby set aside. The appellants accused stand acquitted of the ofence under Sections 380, 457, 413, read with Section 114 of the IPC. The accused are on bail. Their Page 20 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025 NEUTRAL CITATION R/CR.A/88/2011 JUDGMENT DATED: 09/05/2025 undefined bail bond is cancelled and surety is discharged. Fine amount deposited if any, be refunded to them. R & P be sent back to the Trial Court concerned forthwith.
25. In view of the setting aside the conviction and sentence, the enhancement State Appeal i.e. Criminal Appeal No.781 of 2011 does not survive and accordingly, stands disposed of.
(ILESH J. VORA,J) (SANDEEP N. BHATT,J) P.S. JOSHI Page 21 of 21 Uploaded by P.S. JOSHI(HC00177) on Fri May 09 2025 Downloaded on : Sat May 10 21:05:51 IST 2025