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Received on : Registered on : Decided on : Duration :
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IN THE COURT OF ADDITIONAL SESSIONS JUDGE, PORBANDAR.
2.1 Further, it was the prosecution case that on the day of incidence;
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 Further, it was the case of prosecution that the appellants-accused
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
4/28from 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. The police has registered an offence against the appellants-accused
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. After hearing arguments advanced by the either sides, learned C. J.
M. came to the conclusion that offence against the accused is duly
proved. Learned C. J. M. has recorded conviction of all the accused and
inflicted rigorous imprisonment for three years and fine of Rs. 5,000/- for
the offence under Sec. 379 of the Indian Penal Code, 1860. In default of
payment of fine, has also inflicted imprisonment for more six months.
Further, all the appellants-accused have also been held guilty for the
5/28offence 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. The entire impugned judgment is based on following evidences.
Oral evidences
Sr. No.
Exhibit Description of witnesses Documents produced
1 22 Witness– Karshanbhai Sidibhai.The labourer who has informed the complainant about illegal mining by the accused, signed rojkam prepared by inspecting team. Hostile.
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2 27 Complainant – Umeshbhai Ishwarlal Bhavsar - Assistant Manager, Saurashtra Chemicals Ltd. who has deposed regarding lease, payment of dead rent and excavation of lime stone.
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 Witness – Pravinbhai Veljibhai,Surveyor, Mines & Minerals Dept., member of inspecting team.
Exh. 198, Exh. 199, Exh. 200, Exh. 201, Exh. 202, Exh. 203, Exh. 204 - certified copies of sketch maps of adjoining mines (other than the place of offence).
4 211 Witness – Madanchandra Kedardutt.Assistant Manager, Saurashtra Chemicals Ltd. who has deposed regarding excavation in lease area.
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5 212 Witness – Ruturaj Girdharlal.Supervisor, Mines & Minerals Dept. who has deposed regarding excavation in place of offence, signed rojkam.
Exh. 213 - A letter from Collector.Exh. 14 - Panchnama / Rojkam.
Exh. 387 - Exh. 405 - Show-cause notices to different lease holders.
9 547 Witness - Dharmendra Kanubhai Patel - Geologist, Mines & Minerals Dept. who has deposed regarding quantity of lime stone unlawfully excavated by different lease holders.
Exh. 548 - Information tables.Exh. 549 & Exh. 551 - Exh. 553 A letter to Police Station
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including its annextures.
10 673 I. O. - Hardevsinh Bhagvatsinh Vaghela - P. S. I., Bagvadar Police Station.
11 676 I. O. - Naranbhai Bhayabhai Chavda - P. S. I., Bagvadar Police Station.
Hearing of appeal.
6. Read the appeal memo, perused impugned judgment and all the
evidences on record. Heard, learned advocates Shri A. J. Desai, Mr. V. G.
Popat, for the appellants as well as learned P. P. Shri S. B. Jethwa for the
respondent. Perused written arguments submitted by learned advocates
for the appellants. It is pertinent to note that all the controversies created
by some third parties have been resolved by Hon'ble Gujarat High Court
vide Common CAV Judgment dated 08.09.2014 in Criminal Revision
Application No. 613/2013, 614/2013, 616/2013. Thus, there is no any
stay order from the Hon'ble the Supreme Court of India or Hon'ble High
Court of Gujarat.
Submission made by learned advocates for the appellants.
7. Submission made by learned advocate Shri A. J. Desai and learned
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
9/28appreciation 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 Sec. 354 of Criminal Procedure Code, 1973. Learned
advocates for the appellants have placed reliance on various case-laws
(which are discussed at appropriate place).
Submission made by learned P. P.
8. According to submission made by learned P. P. Shri S. B. Jethwa
that impugned judgment is strictly according to law and based on
evidences on record. Learned C. J. M. has rightly came to the conclusion
that offence against the appellants are duly proved. There is sufficient
evidence on record against the appellants. These can be grouped in
different categories; i.e. oral and documentary evidences regarding (i)
The place of occurrence belongs to the Saurashtra Chemicals Ltd. (ii) The
lease holder company has never excavated any lime stone from the mine
in question. The company used to pay dead rent till occurrence of offence.
(iii) There is excavation of lime stone from the place of offence, worth
rupees 54.18 Crore. Thus, the basic ingredient of theft has been duly
proved by such evidences. Learned Trial Judge has considered the same
in its true perspective. (iv) Oral evidence of Government officers like
Geologist and Mining Department staff and official record of
Government regarding mining lease, its area, excavation in such area are
the evidences on record which have been duly considered by learned Trial
Judge. (v) Evidences regarding transportation of stolen lime stone from
place of offence to the Tata Chemicals Ltd. and Nirma Chemicals Ltd.
etc. (vi) Evidences regarding unlawful gain obtained by appellants is also
on record. Thus, learned Trial Judge has considered all the incriminating
10/28evidences in the true perspective. Learned P. P. has placed reliance on a
case-laws (which is discussed at appropriate place).
Points for determination.
9. For the just decision of this appeal, following points for
determination have arisen for my decision.
(1) Whether the common judgment of conviction and order of
sentence recorded by learned Chief Judicial Magistrate,
Porbandar in Cri. Case No. 11258/2006 & Cri. Case No.
117/2008, dated 15.06.2013 is sustainable in the eye of law?
Is it in consonance with settled principles regarding
appreciation of facts and appreciation of evidences?
(2) What order?
Findings
10. My findings to the above mentioned points are as under.
(1) In the negative.
(2) As per final order.
REASONS
Points No. 1 and 2.
11. It is pertinent to note that one of the appellant is the Cabinet
Minister, State of Gujarat. Another appellant is Ex-Member of
Parliament. With context to this fact, it is pertinent to remember the
Upnishad's mandate which says that " law is the king of kings, far more
powerful than the king. Nothing can be mightier than law by whose
strength weak may prevail or the strong." Further, nobody is above the
law. Besides this the concept of justice is supreme. Prejudices and
personal belief has no relevancy while deciding the innocence or guilt of
appellants. The sole aim of law is approximation of justice.
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Relevant basic principles of appreciation of evidence.
12 Before entering into merits and dealing with the facts and
evidences on record, learned advocates for the appellants have recollected
some basic principles of Criminal Jurisprudent by was of placing reliance
on various case-laws that - trial of a poor accused and rich or highly
placed person and dignitaries should be conducted with one standard. In
Criminal Trial the burden of proof always lies on prosecution. Onus of
proving all ingredients of an offence is always on prosecution. It does not
shift to accused. Prosecution should prove its case beyond all shadow of
doubt. Whole evidence is to be considered. Prosecution shall stand on its
own legs. It cannot take advantage of the weakness of defence. It is duty
of a public prosecutor to examine material and relevant witnesses. It is
also duty of prosecution to prove place of offence. Further, it is also
important to note that evidence is to be weighted and not counted.
Another golden thread which runs through the web of the administration
of justice in criminal cases is that if two views are possible on the
evidence adduced in the case, one pointing to the gulf of the accused and
the other to his innocence, the view which is favorable to the accused
should be accepted. Thus, keeping in mind all these basic principles the
question arises here that essential ingredients of offence is duly proved by
the prosecution?
Essential ingredients of an offence under Sec. 379 of the Indian Penal
Code, 1860.
13. An offence under this Section requires that (i) dishonest 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
12/28the property in order to accomplish the taking of it. Thus, prosecution is
duty bound to prove these all the essential ingredients by relevant and
legally admissible evidences.
13.1 In other words, to bring home an offence under Sec. 379, I. P. C.
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. According to prosecution case narrated in Exh. 28 - complaint that
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 Learned Trial Judge in the impugned judgment at para-7 has came
to conclusion that the complainant has duly proved the entire facts of
13/28prosecution 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 Whether the place of offence; i.e. mines situated in the part of S.
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 Learned advocates for the appellants has rightly placed reliance
on H. Siddiqui (Dead) By L.rs. V/s. Ramalingam 2011 (1) GLH 586
14/28(S.C.). Hon'ble Supreme Court while dealing with the question of
admission of a document and its proof in evidence, has once again
clarified the principle that mere admission of a document in evidence
does not amount to its proof. Further, it is held at para-10 that -
The provisions of Sec. 65 of the Act, 1872 provide for
permitting the parties to adduce secondary evidence.
However such a course is subject to a large number of
limitations, In a case, where original documents are not
produced at any time, nor, any factual-foundation has been
led for giving secondary evidence, it is not permissible for
the Court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a
document is inadmissible, until the non-production of the
original is accounted for, so as to bring it within one or
other of the cases provided for in the Section. The secondary
evidence must be authenticated by foundational evidence
that the alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not amount
to its proof. Therefore, the documentary evidence is required
to be proved in accordance with law. The Court has an
obligation to decide the question of admissibility of a
document in secondary evidence before making endorsement
thereon.
Thus, ordinary xerox copies of documents or other secondary evidence
relating to the contents of a document is inadmissible. Further, it can
certainly be said that marking any document as an exhibit is not the proof
of document. Although, it is impliedly admitted fact that 250 Acre and 60
Acre land of S. No. 22/2 are not belongs to any of the appellant-accused.
In other words, the said movable property-lime stone obtained from
15/28alleged place of offence was in the possession of the Saurashtra
Chemicals Ltd. It was not in possession of accused.
14.4 Looking to the documentary evidence on record, it becomes clear
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. According to prosecution case, accused have excavated lime stone
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 Jitubhai Hathibhai Patel, Geologist (P.W.-35, Exh. 187) has
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
16/28that the facts deposed by this witness which is regarding involvement of
all the accused is nothing but hearsay evidence. The Geologist himself
has no any personal knowledge regarding this particular fact. In view of
Sec. 60 of the Evidence Act, 1872, hearsay evidence is not admissible in
evidence. Such incriminating facts is required to be proved by direct
evidences.
15.2 This witness has produced Exh. 189 - a copy of rojkam which is
pertaining to a mining lease belongs to one of the accused which is
situated in the adjoining area. Impliedly, such document is helping the
defense side. Implied meaning of such fact is that the accused might have
excavated lime stone from his own lease holding property.
15.3 Likewise, above mentioned witness, other members of raiding
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 cross-
examination (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