CR.A/1006/1985 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1006 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT Versus RABARI JAYRAMBHAI HARJIBHAI (APPEAL DISMISSED) AND ANOTHER ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant MR PRAFUL J BHATT for Opponent(s) : 2, MR KG SHETH for Opponent(s) : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/1006/1985 2/8 JUDGMENT 1. The present appeal has been filed by the State of Gujarat challenging the judgment and order dated 24.5.1985 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No.29 of 1985, acquitting the present respondents- original accused for the offence punishable under Sections 397 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2. It is the prosecution case that one day prior to the date of the incident, i.e. on 11.11.1983, original complainant Babulal Modi was serving as a Clerk in one High School. He used to help his elder brother Kantilal, who was doing a business of selling Ghee. The complainant wanted to purchase Ghee on behalf of his brother, he met one Chaudhary Bababhai Ramsangbhai. This man was working in Dudh Sagar Dairy. He was knowing number of persons doing business of selling Ghee. Original complainant Babubhai Modi met Chaudhary Bababhai on 11.11.1983 at 6.00 p.m. in the evening in the garden. Both went near the bus stop in search of some businessmen indulging in the activity of selling Ghee. One Babubhai who was known to both the persons, met there and he gave the name of one Manibhai who was performing his duty as Secretary, Kansara Kui Dudh Mandali. 3. According to said Babubhai, Manibhai is the person who would be in a position to provide 20 to 25 containers of Ghee. It was made clear to the complainant that he has to bring cash amount for the said stock and thereafter, the complainant left the place and came again on the next date, i.e. on 12.11.1983, at around 12.00 noon along with Chaudhary Bababhai Ramsangbhai. They were waiting at one place from CR.A/1006/1985 3/8 JUDGMENT where they have to start for Kansara Kui Dudh Dairy. Chaudhary Bababhai brought one jeep on rental basis for the purpose of going to Kansara Kui Dudh Dairy. Rent was fixed Rs.50/- with the driver of the jeep. 4. It is the case of the prosecution that in the said jeep, two unknown persons were also sitting. While boarding the jeep, Chaudhary Bababhai has stated that those persons were known to him. Thereafter, they started their journey towards Kansara Kui. However, when the jeep reached near Dela Bus stand, due to mechanical defect, the jeep stopped. The jeep driver had requested them that they have to engage another vehicle for rest of the journey. The complainant hired a rickshaw from the said place and in the said rickshaw, the said two unknown persons along with Chaudhary Bababhai travelled. When they reached near Kansara Kui village, the rickshaw was stopped by Chaudhari Bababhai by informing to the complainant that there is very short cut way passing through Nalia, therefore, at the request of Bababhai Ramsang, all dropped down from the rickshaw and started walking towards Kansara Kui village. When they reached near Nalia, at that relevant time, Bababhai Ramsangbhai had tried to snatch away the purse of the complainant Balulal Modi. Other person wearing white shirt and pant took out Rampuri knife from his pocket and put it on the chest of the complainant and asked him to give his money- purse in which Rs.14,500/- were there. Thereafter, the complainant tried to escape and therefore, the accused had given one knife blow on the back side of the palm. Accused snatched away the purse from the left hand of the complainant and ran away from the place towards the farm. The complainant had tried to chase them CR.A/1006/1985 4/8 JUDGMENT but he could not and thereafter, he came at Visnagar and lodged a complaint under Sections 397 and 34 of the Indian Penal Code and Section 135 of the Bombay Police Act, being C.R. No.I-377/1983, at Visnagar Police Station. 5. The accused No.1 was arrested on 12.11.1983 but so far as accused No.2 is concerned, he was arrested on 21.1.1984. Thereafter, investigation was carried out. Chargesheet was filed. The accused pleaded not guilty and, therefore, after full- fledged trial, both the accused persons were acquitted. Against the said acquittal order, the State Government has preferred Appeal against both the accused persons. However, at the time of admission, Appeal against accused No.1 was not pressed and, therefore, the present appeal is only against accused No.2. 6. It is submitted by Ms. Mita Panchal, learned Additional Public Prosecutor appearing for the State- appellate that the prosecution has produced sufficient evidence, viz. prosecution witnesses Shivabhai Joitaram Patel, Medical Officer of Visnagar Hospital, who had examined the complainant after he received injury from accused No.2 and according to the deposition of the Doctor, complainant Babulal Modi had received four injuries, out of the said injuries, three injuries could be caused by the sharp cutting weapon and the forth injury can be caused by the blunt substance for which certificate is also issued by the said Doctor below Exh.15. Even the prosecution has also examined the complainant PW 2, Bablulal Modi below Exh.17, who has deposed in his deposition that the accused No.2 was one of the accused persons who robbed him; he has also stated that when they have started their journey from his CR.A/1006/1985 5/8 JUDGMENT village to Kansara Kui, he saw that two unknown persons were sitting in the same jeep but they were not known to the complainant and, therefore, during the investigation, after the accused No.2 was arrested, T.I. parade was held before the Executive Magistrate for the purpose of identifying the accused persons and in the said T.I. parade, the accused was identified by the complainant and the complainant had also stated that this accused No.2 had shown Rampuri knife to him and thereafter, all the three have looted him. Thus, the complainant had identified the present accused person and, therefore, the learned Judge ought to have believed that the prosecution has proved its case beyond reasonable doubt and, therefore, the acquittal order passed by the learned Judge is required to be quashed and the accused may be convicted for the said offence. 7. The learned counsel for the accused argued that it is a case of offence under Section 397 read with Section 34 of the Indian Penal Code occurred in broad day light and even though the complainant has deposed in his cross-examination that he was not knowing accused No.2 and, therefore, when the accused was arrested on 21.1.1984, before his arrest was shown officially, a T.I. parade was held before the learned Magistrate to identify the accused persons and in the said T.I. parade the complainant had identified the accused but it cannot be a identification parade defined under Section 9 of the Evidence Act and it cannot be said to be a T.I. parade when the accused was in custody and, therefore, there is a serious lapse on the part of the prosecution and hence, according to him, the accused is rightly acquitted by the learned Judge. The learned counsel also submitted that CR.A/1006/1985 6/8 JUDGMENT considering a submission made, the learned Judge has disbelieved the case of the prosecution mainly on the ground that the complainant in his deposition has tried to improve his version by stating the entire case in detail. Thereafter, he has also stated that when the police statement was recorded with regard to the presence of two accused persons in the jeep, he has admitted that before police, he has not disclosed this fact that when Bababhai Chaudhari came along with the jeep, two unknown persons were sitting in it. However, in his complaint and in his deposition, he has stated so that they were in the jeep. 8. Other prosecution witness was Kantibhai Shamalbhai who is examined as PW 9 Exh.29, who has tried to support the case of the prosecution which were available at S.T. stand. On the date of the incident when the jeep was hired by Bababhai, the accused No.2 was also sitting in the said jeep. In his cross-examination, he has not supported the case of the prosecution by remembering even number of jeep. He has also tried to establish the presence of the accused No.2. However, the learned Judge has not considered the same as it is found that the said witness and the accused No.2 were having previous enmity and his statement was recorded after the accused No.2 was arrested on 21.1.1984 and, therefore, his deposition was not considered by the learned Judge. The learned Judge has passed an order of acquittal mainly that the T.I. Parade held for identifying accused was not in accordance with law. Also the prosecution has not proved its case by examining any other witness who could support the case of prosecution. In absence of it, the acquittal order was passed by the learned Judge. CR.A/1006/1985 7/8 JUDGMENT 9. We have heard the learned counsel for the parties. The prime question is the identity of accused on whose behalf, the appeal is. The known accused has suffered the conviction of the sentence. The present respondent was one of the unknown persons sitting in the jeep. 10. Strangely while the jeep was carrying, the complainant had made no attempt to know anything about the co- passenger. More particularly when his fellow said that the man was known to him. The silence of the point is not understood. 11. When identity was not known, it is not a reasonable conduct of the prosecution that the T.I. Parade is held without arrest. The is a fact which has been seriously taken note by the Trial Court. What is strange is that the evidence is recorded subsequent to that. 12. In the aforesaid circumstances, the participation of the accused is not understandable. Thus, the findings recorded by the trial Court cannot be found to be incorrect. No illegality which can be corrected in an appeal against acquittal is seen to have been found by us. Thus, we confirm the same. Hold that the accused is not guilty of the charges levelled against him. The appeal is dismissed. Bail bonds, if any, stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) CR.A/1006/1985 8/8 JUDGMENT omkar