Gujarat High Court
Vishnuji Shankarji Thakor vs State Of Gujarat on 26 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/698/2009 JUDGMENT DATED: 26/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 698 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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VISHNUJI SHANKARJI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MR VIKRAM J THAKOR(2221) for the Appellant(s) No. 1
MR ROBIN PRASAD(9344) for the Appellant(s) No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/09/2025
ORAL JUDGMENT
1. The appellant was convicted on 25.3.2009 by the
learned Additional Sessions Judge, 3rd Fast Track
Court, Mehsana in Sessions Case no.148 of 2008
with Sessions Case no.171 of 2008.
1.1 The conviction was under Section 379 of the
Indian Penal Code, 1860 (IPC) with sentence of
two years rigorous imprisonment and fine of
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Rs.2,000/-, in default of payment of fine,
further six months rigorous imprisonment.
1.2 Further, the conviction was also under Section
447 IPC with sentence of three months rigorous
imprisonment and fine of Rs.100/- with the
default stipulation that in failure to pay the
fine, fifteen days further rigorous imprisonment
had to be served.
1.3 The learned Judge had given benefit of set off.
However, the sentence was to be served
consecutively.
1.4 The appellant was acquitted for the offence
punishable under Section 413 read with Section
114 of IPC and Sections 3 and 7 of the
Prevention of Damage to Public Property Act,
1984.
1.5 Along with the appellant, four other accused
were tried. The accused - Zala Malbha Jalamsinh
faced Sessions Case no.171 of 2008 under
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supplementary charge-sheet. Sessions Case no.148
of 2008 was against four accused including the
present appellant, while Sessions Case no.171 of
2008 was only against accused - Zala Malbha
Jalamsinh. Both the Sessions Cases were tried
together. Except the present appellant, rest of
the accused came to be acquitted under all
charges.
2. The complaint was filed by the Security
Inspector of Project Department of ONGC. When he
was duty on 20.3.2008, he received a telephone
message from Police Sub-Inspector of Santhal
Police Station informing him that Arvindji
Udaji, Lalaji Udaji, Govaji Dalsangji, Jasaji
Dalsangji and Mansinh Jalamsinh Zala were
committing offence of theft by taking away iron
pipes of ONGC from Well no.36, Balol. As per the
complaint, having received the message, the
complainant along with the police personnel went
to the alleged place and they saw few persons
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cutting pipes and angles. However, seeing the
complainant and the policemen, those persons ran
away in a Matador, but the present appellant was
apprehended by the police at the alleged place.
3. The investigation was conducted, which ended in
filing of charge-sheet in the Court of learned
JMFC, Mehsana. The matter was committed under
Section 209 Code of Criminal Procedure, 1973 to
the Sessions Court.
4. Learned advocate Mr. Robin Prasad submitted that
the learned Trial Court failed to appreciate the
facts of the matter, where it has come clearly
on record that if at all the presence of the
appellant was found at the place of offence, he
was in the capacity of a labourer. Advocate Mr.
Robin Prasad submitted that secret information
which was received by the appellant did not
include the name of the present appellant, which
itself suggests that he was not at the place
alleged with the intention to commit any theft.
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Advocate Mr. Robin Prasad submitted that real
culprit had ran away from the place, who the
complainant as well as the witness and the
police could not apprehend them, while the
appellant had no reason to run away from the
place since he had not come with any intention
of theft. Advocate Mr. Robin Prasad submitted
that in a defence, witness has been examined to
prove that he was actually working with the
witness.
4.1 Advocate Mr. Robin Prasad submitted that no
ingredients of Section 378 IPC would be
attracted since in the case of no intention to
dishonestly take away any movable property out
of the possession of the complainant or the ONGC
has been proved. The recovery of iron cutter
(Karvat) alleged to be in the hands of the
present appellant would be unbelievable since no
recovery Panchnama as contemplated under Section
27 of the Indian Evidence Act has been prepared,
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rather the iron cutter (Karvat) was shown to be
recovered from the complainant. The witness -
Jaysukhbhai Devjibhai Vaghela has stated in his
deposition that no arrest Panchnama has been
drawn, nor any other Panchnama was prepared.
Advocate Mr. Robin Prasad submitted that the
Panchas as PW5 to PW12, none of them have
supported the prosecution case. The whole of the
case has been relied upon only on the testimony
of PW1 to PW4 who were the security guards of
ONGC and PW13 and PW14 who were the police
witnesses. Advocate Mr. Robin Prasad submitted
that all these witnesses should be considered as
interested witnesses, as they had the interest
in the result of the trial. Advocate Mr. Robin
Prasad submitted that surprisingly, none of the
security officers or the guards examined as PW1
to PW4 had any knowledge about the theft in
ONGC, where the witnesses were working as
security personnel. The secret information was
given by the police and it was the police who
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had arrested the present appellant while the
other actual accused who had come there and who
were responsible for the commission of theft had
gone scot-free. Advocate Mr. Robin Prasad
submitted that the learned Trial Court Judge was
required to appreciate the fact that the secret
information to the police did not include the
name of the present appellant, which itself
proves the fact he though may have been
apprehended on the spot at the place of ONGC, he
would not be present there with any intention to
commit theft. The witnesses examined had stated
that when inquired from the appellant at that
relevant time when he was apprehended, he
identified himself as a labourer. Advocate Mr.
Robin Prasad submitted that this fact was
required to be verified by the police rather the
police took pride in showing the arrest of the
present appellant at the place of incident,
which the security persons failed to guard.
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4.2 Referring to the depositions of the witnesses,
Advocate Mr. Robin Prasad submitted that the
appellant had produced oral as well as
documentary evidence to establish that he was at
the field for the supply to irrigate the land
and that the appellant was called to become
Panch witness and he has been arrested in
connection with the offence. The documentary
evidence in the form of extracts of village form
no.7/12 was produced. The learned Judge
discarded such evidence on the ground that the
document does not bear mention of the means of
irrigation. Advocate Mr. Robin Prasad submitted
that the learned Judge failed to observe that
village form no.7/12 clearly indicated tubewell
as a source of irrigation and the learned Judge
was required to appreciate the evidence of the
Defence Witness.
4.3 Advocate Mr. Robin Prasad submitted that the
complainant himself has not supported his own
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complaint and he was declared hostile, inspite
of that, reliance has been placed on the
deposition of the police and other witnesses who
themselves had not arrested the appellant on the
place of incident. Advocate Mr. Robin Prasad
submitted that defence of the appellant would
get corroborated from the evidence of DW1 that
he was called for being a Panch and that would
get corroboration from the evidence of PW13 who
had claimed that he had arrested the appellant.
The contrary evidence of the witnesses regarding
the arrest of the appellant was also required to
be considered by the learned Trial Court Judge
to conclude that the present appellant was not
involved in the theft.
4.4 Referring to the deposition of PW1 - complainant
who was a Security Inspector, ONGC, Advocate Mr.
Robin Prasad submitted that the witness had
received 'Batmi' from the police while he had
not received any such secret information of the
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appellant being present there and the persons
who were named by the police have been
acquitted. The cutter which is alleged to be of
the appellant was actually found in the hands of
the complainant. Advocate Mr. Robin Prasad
submitted that PW2 has admitted that he does not
remember whether the accused had tried to run
away with the pipes found at the place. PW3, the
Contractual Security Guard had admitted that the
appellant was not caught by him but by the
police and had admitted that he along with PW1
and PW2 had not chased the running offenders.
Referring to PW4, the Contractual Security
Guard, Advocate Mr. Robin Prasad submitted that
the testimony of the witness admits that the
police had caught the appellant at a distance
from the Well and not at the well itself.
4.5 Referring to the depositions of the police
personnel - PW13 and PW14, it has been contended
by learned advocate Mr. Prasad that PW13 -
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Unarmed Police Constable has stated about the
secret information received and PW13 had deposed
that Thakor Arvindji Udaji, Thakor Lalaji Udaji,
Thakore Govaji Dalsangji, Vishnuji Dalsangji and
Malbha Darbar were cutting pipes. As per the
deposition of PW13, when he approached the
offenders, one person ran towards the farm and
that was the appellant while the other persons
ran away in the Matador. Advocate Mr. Robin
Prasad thus, stated that the very conduct of the
appellant on the place would prove that he had
no connection whatsoever with rest of the
accused. Advocate Mr. Robin Prasad submitted
that PW13 has admitted that offence had taken
place in dark and has also admitted that the
pipes, which were cut were found near the Well
and not from the accused and has also admitted
that he had no secret information (Batmi)
regarding the appellant being present there.
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4.6 Referring to the testimony of PW14 - the
Investigating Officer, Advocate Mr. Robin Prasad
submitted that the Investigating Officer stated
that he ran behind the person who had escaped in
the Matador and the deposition of the
Investigating Officer with regard to Batmi
refers to other co-accused, but not the present
appellant. PW14 as an Investigating Officer had
admitted that after he returned from chasing the
Matador till the distance of 15-16 kms., a
person who was caught and ran towards the farm,
was the appellant and had admitted that he had
not received any Batmi with regard to the
present appellant.
5. Per contra, by referring to the charge, Ms.
Monali Bhatt, learned APP submitted that the
charge against all the accused clarifies that
all of them had come with a common intention of
theft and the materials, which were cut were the
iron pipes and angles near the tubewell in the
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compound and the instrument used for cutting the
iron pipes and the angles which was known as
iron cutter (Karvat) was found there, the
vehicle in which the other co-accused ran away
has been referred, the cost assessed of the
theft is of Rs.15,000/- and the incident has
been stated by the complainant though was
declared as hostile, but the facts could be
brought on record by the cross-examination of
the Public Prosecutor, wherein the complainant
has affirmed about the incident and the evidence
could be brought by the Public Prosecutor in
view of cross-examination of the complainant.
Learned APP submitted that the evidence of the
complainant, thus, would be considered as
remained uncontroverted though was declared
hostile. Referring to the evidence of PW2 and
PW3, learned APP submitted that the evidence of
both the witnesses are supporting and are
corroborating in nature. The fact of the
appellant being arrested at the place itself
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proves that he was involved in the theft. PW2
had stated in his evidence that he had ran to
catch the present appellant who was cutting the
pipes found at Well no.36 and PW3 and PW4 have
supported the fact of the presence of the
appellant.
5.1 Learned APP submitted that the evidence of the
police witness proves the theft and the damage
which has been caused to the ONGC, which is a
public property. PW13 had arrested the appellant
and the Investigating Officer was present there
at the place, where the alleged offence has
taken place.
5.2 Referring to further statement under Section 313
of the Code of Criminal Procedure, 1973 of the
accused and the Defence Witness and the
testimony of the Defence Witness, Ms. Bhatt,
learned APP submitted that the appellant had
tried to bring a false alibi, which is contrary
to the evidence on record that the arrest of the
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appellant was made at the place of the
occurrence. Supporting the judgment of the
learned Trial Court, learned APP submitted that
the learned Judge had appreciated the evidence
on record and had found the appellant engaged in
the offence of theft and thus, urged to uphold
the judgment.
6. After hearing both the advocates, perused the
record. The charge which was framed below Exh.9
in Sessions Case no.148 of 2008 is to the effect
that on 20.3.2008 at about 1 O'Clock night in
the outskirts of Village Balol, within the
territorial jurisdiction of Santhal Police
Station, in the compound of ONGC Well no.36, all
the four accused and accused - Zala Malbha
Jalamsingh had committed illegal trespass and in
abetment, had cut the iron pipes and angles of
the tubewell situated in the compound and
committed the offence of theft. The material was
carried in Matador no.GJ-3 X-2102, which was
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valued as Rs.15,000/- and the stolen angles were
given to the persons who would normally receive
those from them and thereby, had committed an
offence under Sections 447, 379, 413 read with
Section 114 of IPC.
7. Further the charge stated that on the same date,
time and place, all the accused habitual in
committing the offence of theft, had caused
damage to the public property of ONGC and
therefore, were found guilty under Sections 3
and 7 of the Prevention of Damage to Public
Property Act, 1984.
8. The present appellant had taken the defence in
his statement under Section 313 Cr.P.C. that he
was resident of Khara, Taluka District Mehsana
and that they had two and a half vigha
agricultural land near the bore of Patel
Natubhai Ishvarbhai. The agricultural land was
running in the name of his father - Shankarji
Amathaji. On 20.3.2008, he was in the field of
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Patel Natubhai on the bore since the water was
to be released for irrigation and during that
time, between 9.00 to 10.00 at night, the police
had come there in the field and had asked
informing that they wanted to take signature on
the Panchnama and the police had asked them to
join and therefore, the appellant, informing the
owner of the bore Natubhai to remain present to
shut down the water flow, the appellant on the
instructions of the police had joined. He stated
that he has no other knowledge and he has not
committed any offence, nor any iron cutter
(Karvat) was in his hand and a false case has
been lodged against him.
9. The complainant-Thakore Dahyaji Mafaji was a
Security Inspector at ONGC Project, Mehsana. His
working was to supervise and to oversee GPS,
VGS, CGF of ONGC. On 19.3.2008 at about 10:00
night, when he was on his patrolling duty along
with the Security Officer - B.D. Bhatt and
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Dineshbhai and Babubhai who were working as
private security guards. He was in Santhal-Balol
area in patrolling and at that time, they
received 'Batmi' from the police that on Well
no.36 of Balol, ONGC, the thieves were trying to
cut the pipes. As per the complainant, no sooner
did they receive the information, they went on
Well no.36 with the police of Santhal. When they
reached the place of incident, they saw cut
pipes and articles lying down on the ground. As
per the deposition of the complainant, the
thieves had parked one vehicle in the dark and
on seeing them, they all ran away in the
vehicle. He received the information regarding
the registration of the number later on, which
was GJ-3 X-2102. As per the deposition of the
witness, while the thieves were running away,
one person - Vishnuji Shankarji who too was
escaping the place, he as well as the police
persons caught him. The complainant stated that
the materials which were cut for theft were
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lying at the place. He had given the complaint
Exh.17 to Santhal Police Station.
10. The deposition of the witness as a complainant
is consistent to what has been narrated by him
in the complaint. Inspite of that, the learned
APP during the trial, chose to declare him
hostile. What was the purpose could not be
known. The learned Trial Court Judge has also
not inquired from the learned APP the cause for
declaring the complainant as hostile witness.
Under what ground, the permission was granted to
cross-examine the complainant has not been
recorded.
11. The normal procedure for declaring a person as
hostile would be, to ask from the learned APP
the grounds for a prayer to declare the witness
hostile. The proceeding does not show any ground
raised before the learned Trial Court Judge, nor
the learned Trial Court Judge has inquired from
the learned APP and mechanically, the permission
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was granted to cross-examine the witness.
12. This attempt of the learned APP may not be
conducive for the complainant since he was
working as Security Inspector in a responsible
post of ONGC. Being a public servant, though he
had maintained the consistency in his deposition
with the complaint, he was declared hostile.
Such act of the learned APP during the trial may
subject the witness as a public servant to face
the departmental inquiries. The learned APP was
required to conduct himself in a responsible
manner, more specifically, when he was examining
the complainant who was a public servant.
13. Be that as it may, in the cross-examination by
the learned APP, the complainant has affirmed
that he received an information telephonically
from the police on his mobile from PSI, Santhal
Police Station that in the surrounding area of
ONGC Well no.36, Thakore Arvindji Udaji, Lalji
Udaji, Govaji Dalsangji, Jasaji Dalsangji of
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Khara Village and Zala Manlbha Jalamsingh and
others of Kotasana Dhanpur Village were cutting
the pipes and were taking away from the area of
ONGC. The witness had affirmed all the
suggestions made by learned APP in the cross-
examination. The complainant has stated in the
cross-examination affirming that the iron pipes
and angles, which were facing the Well of the
ownership of the ONGC were found to be cut and
in the hands of the arrested person an iron
cutter was seen, which was a iron cutter
(Karvat) of Hacksaw blade and had also found one
another different type of iron cutter (Karvat).
The complainant as was cross-examined by the
learned APP after being declared, he stated that
when they had arrested that person, on inquiring
from that person, the arrested man stated that
he had come there for labour work as instructed
by Thakorji Arjitji Udaji who were staying near
his house in the outskirts of the village and by
Zala Malbha of Kotasana and by brother of
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Arvindji Lalji and his uncle Jasaji and Govaji.
This evidence of the complainant would prove the
fact that appellant was there as a labourer. He
had come for labour work and he probably was
engaged by other co-accused for the work. The
accused may not have knowledge that the
intention of the co-accused was to commit theft
and take away goods as stolen property. If this
evidence of the complainant is taken into
consideration, which can be read with the
definition under Section 378 IPC which defines
theft, then as per the definition, theft would
be said to have been committed if the person has
the intention to take dishonestly any movable
property out of the possession of any person
without that person's consent and who actually
moves that property in order to such taking is
said to commit theft. If this evidence of the
complainant is to be believed, then the
appellant had not come there with any intention
of taking away the movable property as alleged,
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which was the pipe and the angles at Well no.36
of ONGC. The Matador which was brought was of
the ownership of Pravinbhai of Village Chanasma.
However, the prosecution has not examined the
owner of the Matador. The value of the angle as
well as the tubin pipe which was alleged to be
cut was stated to be of Rs.15,000/-. In the
cross-examination by the accused, the
complainant affirmed that he was ONGC employee
and there were many Wells of ONGC in the area of
Santhal, Balol, Jotana, and within night hours
between 10.00 to 12.00 on the Well, there would
be movement of bringing and taking away the
employees by the guards and the Wells of the
ONGC, and the duty to oversee the Wells of the
ONGC was with private Chokidars.
14. In the cross-examination, the complainant stated
that they received Batmi at 12:00 midnight, the
Batmi was given by PSI, Santhal (PW14) on the
mobile and he had received five names from the
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police. The witness as complainant stated that
he had not received the name of the present
appellant. When they had reached the place along
with the police, there were people present
there. The Matador was at a little distance. He
denied the suggestion that they had not made any
attempts to run after the accused. He denied the
suggestion that the present appellant was
working on the private bore from where the
police had brought him, while the witness
affirmed that the present appellant was brought
by the police and when the police had inquired
in his presence, the appellant had given his
name as Vishnuji to the police. In further
cross-examination by the accused nos.2 and 3,
the witness stated that he had not noted down
the names of the persons on the paper who were
informed to him by the PSI. They had not taken
any person from the public at the place of
incident. He affirmed that hearing their voice,
the accused had run away from the place and had
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also affirmed that when the accused had run
away, they could see only their back.
15. From the evidence of the complainant, it
transpires that the secret information was given
by the police. Complainant and other security
staff had gone along with the police. Though
they were working as a Security Inspector, it
appears that they had no information with regard
to theft, which was being commissioned at their
own place, which was the Well under their
custody and supervision of ONGC. All the accused
had escaped from the place in the Matador.
Strangely, the present appellant who was alleged
to be with the other co-accused had not tried to
escape in the Matador along with the co-accused.
The conduct of the appellant itself would make
him different from the other co-accused, as he
had not made any attempt to run away in the
Matador. The complainant witness had not seen
the police apprehending the appellant from that
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place, where he had been with the police.
According to the evidence, it appears that the
police had brought the appellant and in their
presence itself, he had heard the accused - the
present appellant as an accused stating that he
had come for labour work. In the further
statement under Section 313 Cr.P.C., the
appellant had stated that he was working in the
field of Patel Natubhai on the bore and was
waiting there for the supply of water in the
field. The Defence Witness no.1 - Patel
Natwarlal Ishwarbhai has affirmed the statement
of the appellant as an accused and the witness
has stated that the accused was on his field
since he would come during night hours for the
supply of water. On 20.3.2008 at 10.15 hrs.,
they had started the supply of water, at that
time, the accused was working on the bore and
between 10.30 to 11.00, police had come there
asking them to remain as the Panchas to sign the
Panchnama and the Defence Witness stated that
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Vishnuji was taken by the police to sign for the
signature as Panch.
16. PW2 - Barudatt Rajaram Bhatt was also there as a
Security Officer on Well no.36. They had gone
along with the complainant and other security
persons with the police. As per the deposition
of PW2, the police had gone earlier than them
and when they had reached there, a person was
attempting to run away from the place, which he
saw in the brightness of the light. Other
persons had already run away prior to him and
PW2 stated that the man who was making an
attempt to run away, they as well as the police
persons had apprehended him. On inquiring his
name, he stated that he was Vishnuji Thakore.
The witness has no knowledge whether the accused
had taken away the goods and materials, which
were cut. According to him, the goods were lying
there. The witness identified the appellant and
he further stated that at the time of the
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incident, the private guards were Dineshbhai and
Babubhai.
17. The deposition of PW2, thus, would show that he
could identify only the appellant. The other co-
accused had already escaped from the place prior
to their apprehending the present appellant. The
materials which were alleged to be stolen were
actually lying there. There was no theft as
alleged by the complainant according to PW2. In
the cross-examination, it has come on record
that they were at a distance of 100 mtrs. in
their vehicle from the Well. He affirmed that
the police had arrested the accused - Vishnuji.
The witness also stated that there was a
tubewell in the Village, which was at a distance
of 1 km. from Well no.36. He had no occasion to
talk with the accused - Vishnuji. The evidence
of PW2, therefore, would clarify the fact that
the field was adjoining Well no.36.
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18. PW3 - Babulal Ambalal Solanki was the Security
Guard under contract. His service was of last
four years with ONGC, Mehsana. On 19.3.2008,
they were on patrolling. During that period, the
officer of ONGC received a phone call from
Police Sub-Inspector of Santhal Police Station
and thereafter, they all had come at the
outskirts of Village Balol on Well no.36. There,
they saw the cut pipes and angles lying down. On
seeing them, all the thieves had run away while
one was arrested whose name was Thakore Vishnuji
Shankarji. The witness identified the accused.
The parked matador was with registration no. GJ-
3 X-2102. He stated that hacksaw blade was lying
at the place of the incident. He affirmed in the
cross-examination that when they had reached in
the jeep, people were running away, they had not
followed the vehicle. The police had already
reached the place prior to them and had arrested
Vishnuji. He had no occasion to talk with the
accused - Vishnuji. According to the witness,
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the police had arrested the appellant from near
the Well. The evidence of this witness would
bring the fact on record that hacksaw blade was
lying on the place of incident. The witness is
not stating that such a blade was in the hand of
the appellant - accused. No attempt was made to
chase or catch the other co-accused who had come
in a Matador. The owner of the Matador has not
been examined.
19. The evidence of PW4 - Dineshbhai Khatubhai
Prajapati clearly state the fact that there was
nothing in the hands of the present appellant
whose name when inquired by the police was
Vishnuji Thakore. PW4 had identified the accused
in the Court. He had also seen 3-4 accused
running away in the Matador. The witness
affirmed that Vishnuji was arrested by the
police and the inquiry was by the police only.
He also affirmed that Vishnuji was arrested at a
distance from the Well by the police. So the
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evidence of PW4 supports the fact that nothing
was found in the hands of the accused.
20. The evidence of PW5 to PW12 would be of no
assistance to the prosecution. They are the
hostile Panchas who have not supported the
prosecution case.
21. However, it would be relevant to refer to the
evidence of PW13 and PW14 who are the police
witnesses.
22. Kiritkumar Chaturji Brahmbhatt was examined as
PW13 who was working as Unarmed Police Constable
at Santhal Police Station. He was in patrolling
on 19.3.2008 at about 10 O'Clock with the Police
Sub-Inspector - Vaghela - PW14 and other Police
Constables. As per the witness, the Police Sub-
Inspector - Vaghela had received an information
that Arvindji Udaji, Lalji Udaji, Thakore Govaji
Dalsingji and Vishnu Dalsangji of Village Khara
and Malbha Darbar and others from Kotasana
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Dhanpura Village were moving around the Well and
were cutting the angles and iron pipes and this
information was relayed to ONGC security and
they had come to Jotana and appraised them of
the fact and had started from Jotana in the
private vehicle. In the dark in night, they
could see people cutting and taking away iron
angles from near the Well. Seeing them
approaching, all of them had run away. The
witness stated that the Matador was lying at a
distance of 3 fields from the Well, all the
accused were running away and then had sat in
the Matador, one person was running towards the
field and he chased him and arrested him. On
inquiring his name, he stated that he was
Thakore Vishnuji Shankar. When he was inquired,
he stated that he had come for the labour work
with Thakore Ardiji Udaji and at that time, it
was 1 O'clock night. The registration number of
the Matador the witness stated was GJ-3 X-2102.
The fact now transpires from the deposition of
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the witness that PW13 was not alone. Along with
him was Police Sub-Inspector - Vaghela, Police
Constable - Kumudsinh and Jayantiji and others
from the police. However, he was the only person
who could run after the accused. What was the
act of the other police has not been described
by the present witness PW13. It is a case of the
accused - appellant that he was working in the
field during the night hours for water supply.
The evidence for the supply of water in the
field for irrigation corroborates with the fact
of bore of Natubhai. The evidence of witness
clarifies that there were agriculture fields
near Well no.36. It is not the case of PW13 that
the present appellant was running away along
with the other co-accused. Had the appellant
come with the co-accused, he would have
certainly sat in the Matador to escape from the
clutches of the police. It had not so happened.
The fact does not become clear that how only
this witness had gone after the accused and that
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other police persons were not available at the
relevant time to arrest the accused. As per the
deposition, he could name four of the police
persons including him. The accused were five in
number. The police were four and if PW1 to PW4
could be added, they were in total eight who all
could have rushed behind the co-accused to
apprehend them, but it had not so happened. The
presence of iron cutter (Karvat) was brought in
the hands of the present accused by the learned
APP after declaring the complainant as hostile.
The complainant in the chief examination has not
stated that iron cutter (Karvat) was in the hand
of the appellant, while his evidence states that
when they had reached the place, they had seen
pipes and angles lying down on the ground at the
place of incident. He has also stated that the
thieves were trying to run away from the place.
PW2 has not stated about the goods and materials
taken away from the place. According to PW2, the
goods were lying there. So there was no actual
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theft as per the deposition of PW2. PW3 also
stated that the pipes and angles were lying down
there, when they had come near Well no.36. The
hacksaw blade was also lying at the place of
incident. Thus, PW3 also does not state that it
was in the hands of the accused, while PW4 very
much clearly states in the deposition that there
was nothing in the hands of the appellant -
Vishnuji Thakore. The evidence of PW13 would
become doubtful and it does not inspire
confidence when he could not depose about the
Police Sub-Inspector - PW14 who had joined there
at ONGC Well no.36. PW13 states that it was he
who had arrested the accused. While the accused
stated that he was in the field of Natubhai on
the bore and he had also examined Natubhai as a
Defence Witness. PW14 - Investigating Officer
himself was the witness to the incident and
thus, his evidence prima facie should be
considered as interested witness as he was
investigating the case, to which, he was a
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witness of occurrence. PW14 was required to hand
over the investigation to some other independent
officer or rather could have informed the
superior officer to hand over the investigation
to some other officers for the fairness of the
trial. The secret information was received by
PW14. He has given the names of the accused,
which does not include the present appellant.
The information which was received was of the
named person being a habitual theft, while the
appellant was not named therein. So no such
secret information was received with regard to
the appellant of his involvement in such offence
of theft on the Wells of ONGC. When they had
reached the Well, few of them had run away in
Matador no. GJ-3 X-2102 and one was running
towards the field and the police persons along
with him chased after him and he with the
security guards had followed the vehicle and
when after investigating at the outskirts of
Village Khara, they saw one person arrested
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whose name he inquired was Thakore Vishnuji
Shankarji, resident of Khara. PW14 stated that
the security in-charge - Shri D.M. Thakore had
given a complaint before him. So the role of
PW14 would be as a person who had received a
complaint, as a person who has eye-witnessed the
incident, and as a person who has recorded the
statement of the witnesses, as well as as an
Investigating Officer filing charge-sheet. Right
from the beginning from taking up the complaint
till filing of the charge-sheet, PW14 appears to
have taken an active role and appears to have
taken interest in getting the conviction of the
present appellant, but the facts of the case
clarifies that there was no name of the
appellant in the secret information, nor the
appellant had tried to flee away in the Matador,
wherein other co-accused had escaped the place.
It has also not been proved that the alleged
iron cutter (Karvat) was in the hands of the
present appellant - accused. The accused had
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clarified himself by his statement as well as by
examining the Defence Witness no.1 that he was
working in the field at night hours for starting
the supply of water on the bore, which
clarification becomes very plausible in view of
the fact that the arrest was made from the field
and not from the place of incident. The
information which Investigating Officer received
were that the alleged persons whose name he had
received in the secret information were
continuously and habitually taking away the
pipes and angles from ONGC. The dog squad was
also taken on the place, inspite of that, the
dog could not sniff the co-accused who though
had come on the place of offence. The witness
stated that they had followed the Matador for
about 15-16 kms. The Investigating Officer
stated that in the hands of the arrested person,
they had seen the iron cutter (Karvat) for
cutting the iron and the hacksaw blade and on
the place, they had seen different type of iron
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cutter (Karvat). While the other witnesses who
are the security persons PW1 to PW4 are not
supporting this evidence of the Investigating
Officer. The Investigating Officer identified
the accused and also stated that he could even
recognize the other accused. The Investigating
Officer admitted that the mobile number has not
been recorded in the complaint. He denied the
suggestion that the statement of the owner of
Matador - Pravinbhai was not recorded, but
voluntarily stated that Pravinbhai was yet to be
arrested as he was absconding and while
inquiring from the RTO, they found the ownership
of Matador of Ismailbhai who also could not be
found. The Matador was not seized by the
Investigating Officer and has also affirmed that
no Panchnama has been drawn to show that the
accused had produced any instrument. He had also
affirmed that there was no such evidence in the
case papers that he had informed about the same
to the DSP. This itself makes the present
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witness Investigating Officer - PW14 as
interested witness who had not even made any
attempt to inform his superior officer. He has
also affirmed that at about four accused were
shown in the charge-sheet as absconders. He
states that in all, there were nine accused. He
also affirmed that Jamadar - Kiritkumar i.e.
PW13 was as a pillion rider on the motorcycle
during the patrolling and when they reached
Jotana, the informer has given the information
to him. The witness - Investigating Officer also
stated that he had not inquired from the
informer regarding the direction of Well no.36
and he clarified that he had not inquired since
security guard would be moving around the Well.
They reached the place after about one and a
half hour of receiving the information. He
denied the suggestion that the present
appellant-Vishnuji was not arrested in his
presence. This evidence also becomes contrary,
to what has been stated by PW14 since rest of
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the accused had run away in the Matador, PW14 -
Investigating Officer had gone for about 15-16
kms. behind the Matador, while PW13 had rushed
towards the field to catch the accused. The
Matador was lying in the field. The evidence of
PW13 and PW14 - police officers are not
trustworthy. They cannot be relied upon. While
PW1 to PW4 have not supported the prosecution
case that the iron cutter (Karvat) was seen in
the hands of the accused. It is also not the
case that they had seen the accused cutting
tubewells and the angles. The material was still
lying there. There was no actual theft within
the meaning and definition of Section 378 IPC.
23. Section 378 IPC defines 'theft' as the dishonest
removal of movable property 'out of the
possession of any person' without the consent of
that person. Here none of the witnesses have
claimed of any removal of the movable property.
Theft has the ingredients of (i) dishonest
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intention to take property; (ii) the property
must be movable; (iii) it should be taken out of
the possession of another person; (iv) it should
be taken without the consent of that person; and
(v) there must be some moving of the property in
order to accomplish the taking of it. To bring
home an offence under Section 378 IPC, the
prosecution is to prove (a) that there was a
movable property; (b) that the said movable
property was in the possession of person other
than the accused; (c) that the accused took it
out or moved it out of the possession of the
said person; (d) that the accused did it
dishonestly i.e. with intention to cause
wrongful gain to himself or wrongful loss to
another; (e) that the accused took the movable
property or moved it without the consent of the
possessor of the movable property.
24. The evidence of all the witnesses, if read
conjointly, it can be said that there was no
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movement of any movable property from Well
no.36. The witnesses as security guards of ONGC
have stated that all the materials were lying
down there. There is no evidence of any of the
witnesses who had seen the present appellant
cutting the pipes or the angles. PW1 to PW4 do
not state of seeing the iron cutter (Karvat) in
the hands of the accused while the accused was
apprehended, nothing was found in his
possession. PW14 has stated that they had not
drawn any Panchnama to show any recovery from
the accused. The ingredients as contemplated
under Section 378 IPC have not been proved.
25. For the case of criminal trespass to be
punishable under Section 447 IPC, the
prosecution was required to prove the criminal
trespass as defined under Section 441 IPC, where
the prosecution was required to prove trespass,
where the person enters into or upon property in
the possession of another with intent to commit
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an offence or to intimidate, insult or annoy any
person in possession of such property, or,
having lawfully entered into or upon such
property, unlawfully remains there with intent
thereby to intimidate, insult or annoy any such
person, or with intent to commit an offence. The
Section requires the entry into or upon the
property in possession of another and if such
entry is lawful, then unlawfully remaining upon
such property, and such entry or unlawful
remaining must be with an intent to commit an
offence or to intimidate, insult or annoy any
person in possession of the property. Here the
place which is a Well no.36 is in the Village,
the Well could be considered as property of
ONGC, but it has not been proved that the land
on which the Well was situated also belonged to
the ownership of ONGC. It appears to be in open
area since the evidence of the witnesses proves
that the accused had ran away in the field,
which was adjoining the Well. Unauthorized entry
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upon the property of ONGC has not been proved.
The accused having entered the property, it has
not been proved that the appellant was seen
committing any offence of theft. As analysed
hereinbefore, there was no actual theft by way
of taking away any property from the place of
occurrence. Thus, ingredients under Section 441
IPC which were necessary to punish the appellant
under Section 447 IPC has not been proved. The
analysis of evidence of all the witnesses would
lead to the conclusion that the learned Trial
Court Judge has erred in convicting the
appellant. The evidence does not prove theft,
nor proves criminal trespass.
26. In view of the reasons given hereinbefore, the
judgment and order of conviction and sentence
dated 25.3.2009 passed by the learned Additional
Sessions Judge, 3rd Fast Track Court, Mehsana in
Sessions Case no.148 of 2008 with Sessions Case
no.171 of 2008 is hereby quashed and set aside.
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In the result, the appeal is allowed. The
appellant is acquitted of all charges. Bail bond
discharged. Registry is directed to send the
record and proceedings back to the concerned
Court forthwith.
(GITA GOPI,J)
Maulik
