CR.A/71419/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 714 of 1987 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 MAGANBHAI MOGAJIBHAI TADVI VAGHETHA, TAL.SANKHEDA & OTHERS ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant Mr US BRAHMBHATT for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/71419/1987 2/5 JUDGMENT Date : 26/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the State of Gujarat against the judgment and order dated 12.06.1987 passed by the Additional Sessions Judge, Baroda in Sessions Case No. 195 of 1986. By the impugned judgment the Trial Court has acquitted all the accused persons – respondents herein of the offence punishable under Section 302 read with Section 114 of the Indian Penal Code. The case of the prosecution is that complainant Ravjibhai Chitabhai owns about 40 bighas of agricultural land in the sim of village Vagetha. This land was purchased by his father from one Girdharlal Mohanlal who in turn had purchased it from Naranbhai Tadvi. Dispute over this land had been going on between the family of complainant and the accused persons, who are collaterals of Naranbhai Tadvi, the original land owner. The father of the complainant was alleged to have been killed by one Moghaji Tadvi, father of accused Maganbhai about 20 years back but Moghaji was acquitted by the competent court for the said offence. Because of past history of violence and animosity, complainant Ravjibhai had engaged the services of deceased Hajimohamad Dinmohamad, a watch-man (sim-rakha), to guard his farm and protect the standing crop about 4-5 days prior to the date of incident. On 1.07.1986, the day of occurrence, at about 9:00am, deceased Hajimohamad and one Faridkhan Miyadad (PW-7), also a sim-rakha had left the house of Ravjibhai (PW-6) after taking tea for guarding the farm. CR.A/71419/1987 3/5 JUDGMENT At that time, they were armed with sticks. About 5 minutes later, Ravjibhai also left for his farm. Both the sim-rakhas were walking ahead and Ravjibhai was following them. When Ravjibhai reached his farm, he saw an altercation happening between the sim-rakhas and the accused persons. Thereafter, accused no. 1 Maganbhai gave a spear blow in the stomach, accused no. 2 Shanabhai gave a dharia blow on his neck and accused no. 3 Zaverbhai gave a dharia blow on the knee of Hajimohamad. As a result, Hajimohamad fell on the ground. The other sim-rakha Faridkhan (PW-7) fled from the place fearing for his life and complainant Ravjibhai also hid himself behind a bush. After the assailants left the place, Ravjibhai went around the village looking for Faridkhan and on not finding him went to the police station in the evening to register the complaint. The Trial Court after careful examination of the evidence of PW-6 Ravjibhai and PW-7 Faridkhan came to the conclusion that the version given by both these witnesses who claim to have witnessed the incident is improbable and not believable, and in absence of any other evidence acquitted all the three accused persons. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and with his assistance have gone through the judgment and the entire record of the case. We are broadly in agreement with the findings recorded by the Trial Judge for acquitting the accused persons. As observed by the Trial Court, the conduct of Ravjibhai is not natural. After departure of the assailants, Ravjibhai went near Hajimohamad and found him dead. Thereafter, instead of attending him or calling for help, he goes around the village to inquire about the other sim-rakha. CR.A/71419/1987 4/5 JUDGMENT It is really strange for a master to leave a dead-body of his servant unattended and equally outlandish for him not to inform anyone about the incident and simply go around looking for the other sim-rakha. Also, it is very likely that deceased, who was only hired to protect the farm, would inform the accused persons during the altercation which preceded the fatal attack about the owner Ravjibhai following them and requesting the accused not to quarrel with them for right over the land. It is also not believable that the accused would fatally assault the guard and not attack the owner of the land, with whom they had an on- going dispute over title of the land. Therefore, it is doubtful whether Ravjibhai actually witnesses the incident. Further, as stated by Ravjibhai, both the guards were armed and hired to protect the land and therefore it is unrealistic that no resistance would be shown by either of them on being attacked. No injuries have been found on the body of the accused persons. Also, Ravjibhai in his evidence admits that he did not know the name of other guard (later identified as Faridkhan) nor did he give his visual description to the police in his statement. For the first time Ravjibhai identifies Faridkhan as the other sim-rakha in the Court during the trial. In absence of any details having been given by Ravjibhai, it is indeed astonishing as to how the Investigating Officer PSI Dhanji (PW-8) found out Faridkhan the very next day and recorded his statement. Further, the evidence of Faridkhan is contrary to that of Ravjibhai. Whereas Ravjibhai talks about both the sim-rakhas having tea at his house before leaving for the farm, Faridkhan categorically denies going to the house of Ravjibhai on the day of incident. It, therefore, appears that Faridkhan has been falsely introduced as an eye-witness in this case. Also, Faridkhan did not know the accused persons prior to the incident and for the first time identifies them in the Court. CR.A/71419/1987 5/5 JUDGMENT As held in several cases, where a witness identifies an accused not otherwise known to him for the first time in Court his evidence is valueless unless there has been a prior test identification parade held to test his power of observation. In the instant case, admittedly no test identification parade was held. Therefore, the evidence of Faridkhan is of no use to the prosecution. Thus, presence of both witnesses projected by the prosecution as eye-witnesses being doubtful and their evidence otherwise not being credible or inspiring confidence, we see no reason to interfere with the findings recorded and conclusion arrived at by the Trial Court. As per prosecution case, the dispute of the accused was with PW 6 – Ravjibhai. He claims to be an eye witness. He sees his man being assaulted. Yet, he does not behave in natural manner. The other sim- rakha was of no consequence as far as he was concerned on that moment. His conscience was to salvage the position, which he did not. His reaction being unnatural he has rightly been disbelieved. Reasons for not believing PW 7 – Farid Khan are more than obvious. The appeal filed by the State, therefore, deserves to be rejected and is accordingly dismissed. Bail bonds, if any, stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd