CR.A/386/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 386 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 VALIMAMAD OSMAN AND OTHERS ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR YM THAKORE, Amicus Curiae for Opponent Nos. 1 - 3, 5, DELETED for Opponent(s) : 4, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 29/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. This appeal is preferred by the State of Gujarat against CR.A/386/1987 2/5 JUDGMENT the judgment and order acquitting the respondents by Additional Sessions Judge, Jamnagar in Sessions Case No.77 of 1986, vide judgment dated 10.3.1987. 2. It is the case of the prosecution that on 19.6.1986, at about 1.15 in the midnight, there was a bhajan going on in the complainant's vadi on the bank of river near the city of Jamnagar. At that time, one person (deceased) Ashokbhai Jethanand- Hasan) came there and sat in the bhajan gathering. Immediately, thereafter, five respondents accused came there and alarmed persons sitting in the bhajan gathering and said that they should not get up from their places, they are in search of a person. Upon finding such person, they will leave. At that moment, the person who came and was sitting in the bhajan gathering started running and went inside the room near the vadi. All the respondents accused followed him inside the room with their weapons and started bearing him and thereafter, said Ashokbhai Jethanand was found there in a profusely bleeding condition and all the respondents accused who earlier came and threatened persons assembled for bhajan went away. 3. On such and other facts, a complaint came to be filed which was investigated and after completion of the investigation, chargesheet was filed against them. Since the case was triable by the Court of Sessions, it was committed to the Court of Sessions, Jamnagar. The learned Additional Sessions Judge framed charge for the offence punishable under Sections 302, 147, 148, 149 and 506(2) of the Indian Penal Code and recorded the plea of the respondents accused. Since they did not plead guilty, trial proceeded CR.A/386/1987 3/5 JUDGMENT against them and after considering the evidence, the learned Additional Sessions Judge, vide judgment, acquitted the respondents accused by giving benefit of doubt. 4. The learned Additional Public Prosecutor took us through the evidence of Ravjibhai PW 3 and other eye witnesses and contended that since all the witnesses were knowing the accused persons, there was as such no need of identification of which insistence is made by the learned Additional Sessions Judge and on that ground alone, the learned Additional Sessions Judge has acquitted the respondents- accused. He also contended that apart from Ravjibhai, there were three other witnesses, namely, PW 13 Mahesh Savjibhai, PW 14 Narendra, PW 17 Bharat Jantilal, who knew all the accused persons and whose statements were recorded. All the eye witnesses have identified all the accused persons in the Court. In this set of circumstances, insistence of Test Identification parade ought not to have been given much weightage, so as to discard the evidence of eye witnesses, who, in fact, knew all the accused persons. 5. Per contra, the learned counsel for the defence drew our attention to the fact that none of the persons who assembled at the gathering had known the accused from before. It is claimed that PW 3 Ravjibhai knew at least one of the accused by name Habib Isha. But, then in cross- examination, this witness admits that he does not know any accused from before. In view of this admission, his claim falls to ground. 6. It is also asserted that if this witness knew only one CR.A/386/1987 4/5 JUDGMENT accused, namely Habib Isha, then the name of other accused coming in the FIR shows that there is manipulation. This has come on record that the police officer has indicated the name of the accused persons. Thus, it was claimed that the appeal deserves to be dismissed. 7. We have heard the learned counsel for the parties and given our thoughtful consideration to the submissions made by them. 8. We have gone through the evidence of Ravjibhai, upon whose information, FIR came to be lodged. We are unable to find any clue from the record and proceedings as to how the names of other accused persons were brought to the knowledge of the investigating agency, more particularly when Ravjibhai has claimed to know only Habib Isha. We have also gone through his evidence before the Court. Perusing the same, we are sure of the fact that said Ravjibhai was also not very confident about identity of Habib also because he does not say in his evidence as to how he knows him. In cross- examination, he has admitted that he does not know any of the accused persons. He subsequently, improves his version while responding cross-examination on behalf of the other accused persons, but there also he does not state as to how he knows Habib. 9. In the aforesaid set of circumstances, how the investigating agency could come to know about identity of other accused persons when FIR was lodged at the instance of Ravjibhai, is a question which remains to be answered. We have gone through the evidence of other eye witnesses as we CR.A/386/1987 5/5 JUDGMENT have been taken through by the learned Additional Public Prosecutor, but we are not impressed because the learned Additional Sessions Judge apparently has given benefit of doubt on the basis of fact that no Test Identification parade is held when witnesses have said that before the incidence, they have not seen any of the accused persons. 10. The learned counsel for the respondents took us through the evidence of witnesses Khimjibhai Nathabhai at Exh.26, who in his cross-examination said that he does not know any of the accused persons, but Police Inspector Shri Chudasma had told him that these were the accused persons and they were the assailants. If these were the set of circumstances during the course of investigation, the learned Sessions Judge has rightly given the benefit of doubt. We are not discussing further evidence in order to avoid the repeatation. We confirm that the learned Sessions Judge has rightly given the benefit of doubt and we do not deem it fit to interfere with it. The appeal is, therefore, dismissed. Bail bonds stand cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar