CR.A/251920/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2519 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ==================================================== 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 ? ==================================================== BABUBHAI POPATBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ==================================================== Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ==================================================== CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 26/09/2008 CR.A/251920/2008 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) Appeal admitted. 1. In peculiar facts and circumstances of the case, appeal is taken up for final hearing today itself. The circumstances are :- 1. The appellant was unable to file an appeal due to financial hiccups. 2. The appellant was never released either on temporary bail or on furlough. 3. The appeals of the other co-accused, who are on the same footing along with appellant, are allowed. 2. In view of the above aspects, having found that the evidences led by the prosecution is not trust-worthy and evidence is common qua all the accused persons, the said appeals of the co-accused were allowed on 23.09.2008. In that appeal, we have observed as under:- “8. We have considered the rival side submissions. From the Record and Proceedings, we find that first informant - Champaklal Bhurabhai Vaniya was examined at Exh.40, his wife was examined at Exh.41, his son – Depak Champaklal was examined at Exh.51 and Dipak's wife – Heenaben was examined at Exh.88. The depositions run in number of pages but what emerges therefrom, can be discussed as under:- 8.1. Undisputedly, there was darkness in the house of the first informant where the robbery is alleged to have been committed. The assailants were wearing masks on their CR.A/251920/2008 3/5 JUDGMENT faces leaving open only the part of the eyes. In the F.I.R., the F.I.R. does not give the name of any of the assailants nor does it give any description of any of the assailants. It does not emerge from the F.I.R. that the assailants had asked for water and, while taking water, they had unmasked their faces. It also does not emerge from the F.I.R. that there was light coming from the windows with the help of which, the assailants were identified by the first informant or other witnesses. 8.2. It also emerges from the evidence that the theory of the assailants asking for water and while taking water unmasking their faces emerges from the statements recorded of those witnesses after the Test Identification Parade. This, in our opinion, is a clear attempt on the part of the Investigating Agency to fill up the lacuna in the case of the first informant and by this, an attempt is made to give colour of truthfulness to the identification made by the witnesses in the Test Identification Parade. 8.3. It also emerges from the evidence of these witnesses that while deposing before the Court witnesses – Vinaybala Champaklal (Exh.41) and Dipak Chempaklal (Exh.51) have not identified the accused persons in their examination in chief. Unfortunately, the defence has put certain questions regarding identity of the accused persons and during the course of examination, the witnesses have tried to identify the accused persons by their names as assailants but in doing so, they have committed mistakes and have fixed the identity wrongly, incorrectly or erroneously. As a result, the accused persons were identified by the names of other accused persons. 9. It also emerges from the evidence of the Investigating Officer that the photographs of the accused persons were shown to the witnesses before Test Identification Parade. It also emerges from the evidence that photograph of one Anakbhai Kabubhai Kathi was also shown to the witnesses during the course of investigation. But, thereafter, what happened and why that Anakbhai is not arraigned as an accused is not explained by the prosecution. 9.1. It also emerges from the evidence that no booty is CR.A/251920/2008 4/5 JUDGMENT recovered or discovered from any of the accused persons. 9.2. It also emerges from the evidence of Executive Magistrate – Dipakbhai Shukla at Exh.146 that no precautions were taken to ensure that the accused persons were not exposed before exposing to public or to witnesses, before Test Identification Parade was conducted. 10. It is also on the record that the Investigating Officer was present when the Test Identification Parade was conducted by the Executive Magistrate. The evidence is totally silent, so far as charges of offences punishable under Sections 504 and 506(2) are concerned. No weapon is recovered from any of the accused or discovered by any of them.” 4. We have heard the learned advocate Mr.Buddhbhatti, appointed by this Court as amicus curiae for appellant – accused. The learned advocate, during the course of his argument, relied upon the above findings, which were arrived at in the common judgment delivered in the appeals preferred by the four co-accused of this case, namely appellant – accused Dhanji Mohan Vaghri and Dhiru Panna Vaghri, who filed Criminal Appeal No.83 of 2005 and appellant – accused Madhu Desha Vaghi and Himmat Desha Vaghri, who filed Criminal Appeal No.255 of 2005. The common judgment in both these appeals was delivered on 23.9.2008. The learned advocate Mr.Buddhbhatti submitted that the findings arrived at in those appeals, with equal force, shall apply to the case of the appellant, who was one of the co-accused persons, who were acquitted from all the offences charged against them, as their appeals were allowed. 5. We have heard learned APP Mr.Bhatt for the respondent – State. CR.A/251920/2008 5/5 JUDGMENT 6. In light of what is observed by us in the said appeal and since the evidence is common, we allow this appeal as well, and set-aside the judgment and order qua the present appellant and direct that the appellant be released from prison forthwith, if not required in any other case, and fine, if paid, be refunded to him. 7. Before parting, we would like to place on record a word of appreciation for the promptness with which the services were rendered by Mr.M.J.Buddhbhatti, who worked as amicus curiae. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)