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TMI Blog2019 (8) TMI 1861X X X X Extracts X X X X X X X X Extracts X X X X ..... licitor General, appearing for respondent no. 1 Central Bureau of Investigation (hereinafter referred to as the CBI for the sake of brevity) at the outset, has raised objection regarding maintainability of the instant appeal by contending that appellant Mahendrasinh Jorubha Zala, who is merely examined as a witness during the course of the trial, cannot be considered as the victim of the crime in question, and as such, cannot validly maintain the appeal under Section 372 of the Cr.P.C. As agreed by both the parties, the instant appeal was therefore heard on the point of maintainability of the appeal at the instance of the appellant, who claims to be the victim. 3. Briefly stated, facts of the prosecution case, projected from the charge-sheets filed by respondent no. 1 CBI, can be summarized thus: (a) According to the prosecuting agency, the investigation revealed that during the year 2004, the criminal gang of Sohrabuddin had become very active in the area of Rajsamand, Nathdwara, Sukher and Udaipur districts of Rajasthan. The said areas are known for marble mining and trade. One Hamid Lala gang was very active in these areas and was giving protection to the marble traders and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers approached political leaders as well as police officers of Rajasthan. On the basis of intelligence inputs given by Rajasthan Police, the First Information Report (FIR) was lodged by Anti-Terrorist Squad of Gujarat police against Sohrabuddin Shaikh and others. According to the Investigator, since there was no active/recent criminal case against Sohrabuddin Shaikh in Gujarat State, a stage managed firing was arranged in the office of Popular Builders, Ahmedabad on 8th December 2004. (d) The prosecution averred that investigation further disclosed that around 14th/15th/16th November 2005, at about 8.00 p.m., Soharbuddin Shaikh along with his wife Kausarbi, left his village Jhirniya, Madhya Pradesh for Hyderabad to meet his friend, Nayabuddin @ Bongir Nayeem @ Capt. Hasif Khan who was also known as Kalimuddin in connection with Eid Celebrations. Nayabuddin, brother of Sohrabuddin had gone to see off Sohrabuddin, sister-in-law Kausarbi and Tulsiram Prajapati at Indore bus stand. They left in a white Maruti vehicle which belonged to Kalimuddin. They went to Hyderabad. At Hyderabad, Sohrabuddin stayed with Kalimuddin. (e) Investigation disclosed that in the morning of 22nd Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age Illol. (h) The third person who was abducted along with Sohrabuddin and Kausarbi was Tulsiram Prajapati. Investigation further disclosed that he was a material witness/eye witness to the abduction of Sohrabuddin and his wife. In pursuance of the criminal conspiracy to screen themselves from the legal consequences of the crime, the accused acted in concert with each other to keep Tulsiram Prajapati, a significant material eye witness to the abduction of Sohrabuddin Shaikh and Kausarbi under their continuing control and beyond the reach of others. Accordingly, Rajasthan Police detained Tulsiram Prajapati on 26th November 2005 for achieving the common object of keeping Tulsiram Prajapati under their control. At around 1500 hours on 26th November 2005, Tulsiram Prajapati was picked up at Bhilwara and was brought to Udaipur in the evening of the same day. He, however, was shown to be arrested only three days later on i.e. 29th November 2005 in the Hamid Lala Murder case (Crime No. 214 of 2004 of Police Station Hathipole). He was then remanded to police custody till 10th December 2005. (i) According to the prosecution case on 25th December 2006 Tulsiram Prajapati was given in cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding appellant Mahendrasinh Jorubha Zala, who was examined as Prosecution Witness No. 205 (hereinafter referred to as PW205 for the sake of brevity). After closure of evidence of the prosecution, accused persons, who faced the trial, were examined under Section 313 of the Cr.P.C. They, however, did not enter in the defence. (l) After hearing the parties, the learned trial court, by the impugned judgment and order dated 21st Deceased 2018, was pleased to acquit the accused persons in Sessions Case Nos. 177 of 2013, 178 of 2013, 577 of 2013 and 312 of 2014. This judgment is sought to be impugned by PW205 Mahendrasinh Jorubha Zala in the instant appeal. 4. We have heard the learned counsel appearing for appellant Mahendrasinh Jorubha Zala (PW205). He drew our attention to paragraph 165 of the impugned judgment and order and argued that the appellant was co-accused with the deceased Tulsiram Prajapati and Mohd. Azam in the case of firing at the office of Polular Builder and he is direct victim of the crime. Therefore, as per provisions of Section 2(wa) of the Cr.P.C., he is entitled to file the instant appeal. Our attention was drawn to the statement of the appellant recorded unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of firing at the office of the Popular Builder. 5. To counter these submissions, the learned Additional Solicitor General of India has vehemently argued that in the instant appeal the appellant is making allegations against discharged accused D.G. Vanzara and Abhay Chudasama. The appellant has arraigned even all discharged accused as party respondents to the instant appeal without challenging the orders of their discharge. It is further argued that case of Popular Builder has no relevance to the case in hand. It is further contended that two appeals challenging the impugned judgment and order of acquittal viz. Criminal Appeal Nos. 656 of 2019 and 641 of 2019 filed at the instance of two brothers of deceased Sohrabuddin, namely, Nayabuddin Shaikh and Rubabuddin Shaikh, are already admitted for final hearing by this court, and therefore, the appellant, who was merely examined as witness by the prosecution cannot be construed as the victim of the crime in question. His appeal is, therefore, liable to be dismissed as not maintainable. The learned ASGI has submitted that several third parties have filed various proceedings in the instant case and lastly the Division Bench of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Code. The said right of appeal cannot be 'read into' any class of citizen/party to a trial if not expressly contemplated under the Cr.P.C. It needs to be pointed out that Chapter XXIX of the Cr.P.C. provides for appeals and no appeal can be filed, maintained and validly entertained if the same is not filed as per the provision of Chapter XXIX of the Cr.P.C. The relevant provision of the said chapter, in so far as appeals against acquittal are concerned, are quoted herein below for ready reference:- 372. No Appeal To Lie Unless Otherwise Provided No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Provided the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. 378. Appeal In Case Of Acquittal (1) Save as otherwise provided in Sub-Section (2) and subject to the provisions of Sub-Sections (3) and (5), (a) the District Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature in its wisdom has given a right of appeal only as provided in the Cr.P.C. and has expressly forbidden any appeal which is not contemplated under the Cr.P.C. Further perusal of Sections 372 and 378 of the Cr.P.C. manifest the nature of order. The party who is competent to file an appeal against the said order is also clearly and unambiguously stipulated in the Cr.P.C. 9. In so far as order of acquittal is concerned the legislature in its wisdom has specifically conferred right to specified class of parties to the trial to file an appeal against an order of acquittal. The same is clear from the following:- (i) Section 372 confers right of appeal on a victim against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, directly and without seeking leave of the concerned court; (ii) Section 378(1)(1) confers right on a District Magistrate to direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence (iii) Section 378(1) (2) confers right on the State Government to direct the Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations of the Madhya Pradesh High Court found in paragraphs 7 and 8. They read thus: "7 In view of the above, it is evident that "victim" who is the ultimate sufferer in the commission of a crime has been given recognition as an aggrieved party by introducing the abovesaid amendment in Cr.P.C. There is no manner of doubt that right from the occurrence of the incident till the decision of trial, appeal or revision, till the highest court of law, the "victim" is as much interested in the decision as is the accused or the State. Infact, the "victim" on account of being the injured person and the sufferer, deserves to be recognized as the most aggrieved party in a crime. It is a happy state of affairs that the stand of the victim are now vindicated in shape of amendment in the Cr.P.C." "8 This court has, thus, no hesitation to hold that the victim is an aggrieved person not only in a crime, but also in an investigation, enquiry, trial, appeal, revision, review and also the proceedings by which the inherent powers of this court under Section 482, Cr.P.C. are invoked." 12. It is, thus, clear that victim is a person who has suffered any loss or injury caused by reason of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and thereby you committed an offence punishable under Sections 120(B), 341, 342, 364, 365, 368 of IPC and within my cognizance. THIRDLY: That you along with other remaining accused on the night of 22.11.2005 and 23.11.2005 abducted Kausarbi from Luxury Bus at Village Tadola in which she was travelling alongwith Sohrabuddin and you wrongfully restrained and confined Kausarbi at Disha Farm and Arham Farm at Ahmedabad out of your criminal conspiracy and you conspired to kill her and you thereby committed an offence punishable under Sections 120(B), 341, 342, 364 and 368 of IPC and within my cognizance. FOURTHLY: That you alongwith other remaining accused out of your criminal conspiracy on 26.11.2005 at Vishal Naka to Narol Circle at Ahmedabad, killed Sohrabuddin intentionally and with the knowledge that fire of bullet on his person will kill him and you thereby committed an offence punishable under Section 120(B) and 302 of IPC and within my cognizance. FIFTHLY: That you alongwith other remaining accused out of your criminal conspiracy on 26.11.2005 kill Sohrabuddin and gave false FIR showing fake encounter to be genuine and in a stage-managed encounter out of your criminal co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal conspiracy, abducting of Sohrabuddin and Kausarbi, commission of their murder, causing disappearance of evidence to screen the offenders, committing murder of Tulsiram Prajapati etc. Those allegations are aptly mentioned in the opening paragraphs of this judgment. 14. We have also perused the deposition of the appellant who is examined as PW205 by the prosecution. The said deposition makes it clear that the appellant/PW205 is an accused in Crime No. 1124 of 2004 of Navrangpura Police Station, Ahmedabad, for offences punishable under Sections 307, 427, 452, 114, 120B, 384, 386, 201, 202, 203, 204, 212, 193, 118 of the Indian Penal Code read with Sections 25(1)(b)A, 27(1) (2) of the Arms Act. It is reported that the trial of this offence is still pending. The appellant/PW205 has deposed that he was inmate of jail with co-accused Tulsiram Prajapati (since deceased) who used to express apprehension of his encounter by the police. Even the appellant/PW205 has not deposed about so called threatening and extortion of an amount of Rs. 15 lakh by discharged accused D.G. Vanzara, the then Deputy Inspector General, Anti Terrorist Squad, Ahmedabad, before the learned trial court. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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