CR.A/576/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 576 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 SEGLA BALU KOLI & OTHERS ====================================== Appearance : Ms Mita Panchal, Additional Public Prosecutor for the Appellant MR KG SHETH for Opponent(s) : 1 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/07/2008 CR.A/576/1987 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the State of Gujarat being aggrieved by the decision of the court of the Additional Sessions Judge, Vadodara. The accused – respondents were tried by the court below and all the accused who were charged for the offence under Sections 147, 148, 149, 425, 302 and 324 of the Indian Penal Code had been acquitted of the charges of which they were alleged. It is the case of the prosecution that the accused and one other accused namely Nasariya Balu, who was a juvenile, came with deadly weapon at the residence of the complainant in the night at 12.00 midnight on 18th November 1985 and caused serious injuries to the complainant's side. Due to that two persons namely Vesta Bhilia and Surga Vesta died on the spot. Thereafter, FIR had lodged on 19th November 1985 at 8.30 AM and accused persons were arrested on the same day and thereafter investigation was carried out and after completion of Judge for trial. After completion of the trial, the learned Additional Sessions Judge was pleased to acquit the accused by giving benefit of doubt. Being aggrieved and dissatisfied with the said order, the State has preferred the present appeal before this Court against the four accused. Ms Panchal, learned Additional Public Prosecutor states that the accused were named in the FIR, they had actively participated in the commission of offence with the deadly weapon like Paliya and blow and arrow and caused serious injuries to both the deceased persons resulting CR.A/576/1987 3/5 JUDGMENT into death of both the victims. According to her, the medical evidence of Dr Subhashbhai, P.W.No.9 below Exhibit supports the case of the prosecution and shows that the injuries could be caused by the weapons recovered. It is also submitted by the learned Additional Public Prosecutor that the complainant – Sevlabhai Vestabhai, PW No.1, Remlabhai Vestabhai, PW No.2 and Sumlabhai Vestabhai, PW No.3 who are the eye witnesses to the incident have supported the case of the prosecution. In spite of that the learned Judge had committed an error in acquitting the accused persons by giving benefit of doubt. As against that, the submission made by learned counsel, Shri K.G.Sheth for the respondents – accused submitted that there are contradictions in the deposition of three eye witnesses and they have not supported the case of the prosecution by stating different version regarding how they have seen the offence, namely, by stating that when the incident had occurred at their house, they have seen the offence namely by stating that when the incident had occurred at their house, they have seen the entire incident in the light of lantern. However, during the course of investigation lantern is not seized. Besides that initially after the occurrence of incident the complainant – Sevlabhai went to the house of police Patel for informing the incident. At that relevant time also names of the accused persons were not given by the complainant but it has been given at the time of registration of the FIR. This aspect has been considered by the learned Judge because it has come on record that there was previous enmity between the complainant and accused and therefore on the basis of theory of false implication the learned Judge has given benefit of doubt to the accused persons and acquitted the accused persons. CR.A/576/1987 4/5 JUDGMENT Heard the learned counsel for the parties. Upon thoughtful consideration, the first and foremost question in this case which is required to be considered is what is the impact of omission made by the complainant of not naming the accused person while he narrated the incident to the police. According to the prosecution version, at the time when the complainant met the police Patel, he had not given the name of the accused. Thus, we find that in the first place while the incident was reported to the public authority the name of the accused was not given. This is such a lapse which is to be taken very seriously. We also find from the record that it has come in the prosecution case that the prosecution witnesses subsequently sat down and decided to give the names of the accused. This leads to only one inference that the name of the accused was not known to the complainant and they tried to imagine and incorporate the names of such persons and could possibly be roped in. If that is the plight of the prosecution, then, it has put us on our guard to scrutinise the case of the prosecution. The eye witnesses claim that they have seen the incident in a lantern light. While the incident is happening, can it be presumed that the witnesses would have the time enough to light a lantern or light of the lantern would be sufficient enough to identify the accused? It is not a case where the house was equipped with the electric light, which can be immediately be switched on. The kerosene lamp takes time in its illumination and this cannot be presumed and as is not the case of the prosecution that the kerosene lamp was burning all through. This luxury is not afforded in the small families like the one where the incident had taken place. In this background, the only conclusion which can be drawn is that the witnesses were not in a position to name the accused persons needless to say identify them while making the assault. The entire case was cooked up at a subsequent stage as can be CR.A/576/1987 5/5 JUDGMENT made out from the various versions given by the prosecution witnesses. If the witnesses were not in a position to name the accused immediately and have then tried to make out a case in favour of the prosecution, then, it becomes very difficult for us to conclude otherwise than what has been concluded by the trial court in an appeal against the acquittal. When the acquittal findings are required to be disturbed, it has to be done on a very strong grounds, which are not available here and therefore we are of the considered opinion that at the instance of prosecution no interference is called out. Consequently, the appeal is dismissed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd