CR.A/2819/1993 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 28 of 1993 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 MUNNA @ MUSTAQ G SHAIKH ====================================== Appearance : MR SP Hasurkar, Additional Public Prosecutor for the Appellant NOTICE SERVED for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 06/08/2008 CR.A/2819/1993 2/3 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The appellant – State of Gujarat has presented this appeal under Section 378 of the Code of Criminal Procedure, 1973 assailing the order of acquittal dated 19.09.1992 passed in Sessions Case No.108 of 1991 by Additional City Sessions Judge, Valsad acquitting the respondent accused for charge of offence punishable under Section 302 of IPC. Heard the learned Additional Public Prosecutor, Shri SP Hasurkar for the appellant-State, who has taken us through the evidence of Yusufbhai and contended that the extra judicial confession ought to have been believed by the learned Sessions Judge and the respondent – original accused ought not to have been acquitted. We have gone through the record and proceedings. We have also considered the deposition of Yusufbhai who was examined as PW No.7. We have also considered the deposition of Ayeshaben who was examined as PW No.2. Ayeshaben has not supported the case of the prosecution and therefore she was declared as hostile witness. The main thrust of the prosecution case was that it was before Ayesha that the extra judicial confession was made. Ayeshaben is alleged to have informed PW 4, Yusufbhai about the facts. We have to consider as to what will be the importance of the evidence of this witness, PW 4 – Yusufbhai. His informer was Ayesha. She has not supported the prosecution case. In this hard ground what ever information PW 4 alleges that he received loses significance. That according to the informer was never given. Apart from the fact that the informed of PW 4, Yusufbhai turned hostile, his own conduct is also of no great worth. He is alleged to have not spoken to anybody immediately after the occurrence. No CR.A/2819/1993 3/3 JUDGMENT information was immediately given to police patel or to the police. It was later that this information was communicated. If any information was received by PW 4 – Yusufbhai, he should have immediately communicated to authorities. Not only that he did not inform the authorities immediately he even did not disclose the fact forthwith to anyone. This witness spoke that the house of the accused was looted but when searched it was found open. There was no lock. Thus, even circumstances do not support this version. All other evidence based on recovery could be used only if there was some substantitve evidence to corroborate the same. In absence of main evidence, corroborative evidence will be of no consequence. The reasoning given by the learned trial Court is thus not found to be of such a nature that the same requires interference in an appeal against acquittal. Thus, we are persuaded that State appeal deserves no attention and deserves to be dismissed. Accordingly, the same is dismissed. Bail bonds of the accused are ordered to be cancelled. Record and proceedings be forwarded to the trial court forthwith. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd