CR.A/2165/2005 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2165 of 2005 With CRIMINAL APPEAL No. 2327 of 2005 With CRIMINAL APPEAL No. 2445 of 2005 With CRIMINAL APPEAL No. 2310 of 2005 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 ? ========================================================= SAHIR ASHRAFBHAI SHAIKH & Ors.- Appellants Versus STATE OF GUJARAT – Respondent. ========================================================= Appearance : MR NK MAJMUDAR for Appellant in Criminal Appeal No.2165/05 MR MM MANSURI for MR TIRMIZI for Appellant in Cri.Appeal No.2327/05 MR AA HUSEINI for Appellants in Criminal Appeal No.2445/05 MR SS SAIYAD for Appellant in Criminal Appeal No. 2310/05 MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent-State in all the Appeals. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE CR.A/2165/2005 2/16 JUDGMENT and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) First informant Jayubha Pratapsinh Gohil and his driver Kalubhai were travelling on Lathi – Amreli Road by his vehicle No.GJ-7Y-7026 at about 3.30 A.M., on 23rd March, 2004. The vehicle was a Goods-Carriage and about 5000 Kgs of cotton was loaded in it. According to the prosecution, the said cotton belonged to one Ganeshbhai Patel and was to be delivered to the Firm of K.R.Patel Bros., situated in the Market Yard at Manavadar. It is the case of the prosecution that when the first informant reached near village Toda, his vehicle was overtaken by an Eicher vehicle and thereafter the first informant's vehicle was intercepted and stopped. Four persons came out of the Eichar vehicle and pushed themselves into the vehicle of the first informant. The vehicle was then driven further about three quarters of a kilometer and then both the vehicles were stopped. The first informant and his driver Kalubhai were CR.A/2165/2005 3/16 JUDGMENT pushed out of the vehicle and taken to a field on the side of the road, where they were denuded and then tied to a tree with the help of their own clothes. The money that they were carrying on their persons, totalling to Rs.4700/-, were also robbed and thereafter the assailants ran away with both the vehicles. Somehow, the first informant and his driver could manage to free themselves from the ties, and then, after taking lift, went to a nearby restaurant, then hired a vehicle and went to Lathi Police Station. It is the further case of the prosecution that the assailants were armed with weapons, like knife, country made pistol, iron pipe, wooden log, which they used in commission of the dacoity. On the basis of the first information given to the police, the police registered an offence and started investigation. 1.1 On 26th March, 2004, an Eicher truck was seized by Godhra police. It was loaded with loose cotton and on interrogation, the accused persons allegedly revealed about the present incident. Therefore, Godhra police informed Amreli police CR.A/2165/2005 4/16 JUDGMENT telephonically. Amreli police, therefore, went to Godhra and took charge of the vehicle as well as the accused persons arrested by Godhra police. The matter was further investigated into. It was found that some quantity of cotton was sold through a Commission Agent in the Market-Yard at Babara. Test- Identification-Parade was also conducted during the course of investigation and the assailants were identified by the witnesses, though there are some inconsistencies about the same. The police having found sufficient material, filed charge sheet in the Court of learned J.M.F.C., Lathi, who, in turn, committed the case to the Court of Sessions and Sessions Case No. 68/2004 came to be registered in the Sessions Court at Amreli. 2. Charge was framed against the accused persons at Exh.4 for the offences punishable under Sections 395, 397, 506(2), 504 & 341 of the Indian Penal Code as well as Section 25(1)(a)(b) of the Arms Act. All the seven accused persons pleaded not guilty to the charge and came to be tried. The Sessions Court found that the prosecution was successful in proving the CR.A/2165/2005 5/16 JUDGMENT charges for the offence punishable under Section 395 read with Section 397 of I.P.C., sections 506(2) & 341 of I.P.C., and sentenced all the accused persons to undergo R.I for ten years and to pay a fine of Rs.5000/-, in default, to undergo S.I for two months, for the offence punishable under Section 395 r.w.section 397 IPC. The Sessions Court also ordered the accused persons to undergo R.I for two years and to pay a fine of Rs.2000/-, in default, to undergo S.I for four months, for the offence punishable under Section 506(2) IPC. The Sessions Court further ordered the accused persons to undergo S.I for one month and to pay a fine of Rs.500/-, in default, to undergo S.I for one month, for the offence punishable under Section 341 IPC, by judgment and order dated 14th September, 2005 in the said Sessions Case. The Sessions Court, however, acquitted all the accused persons of the offence punishable under Section 25(1) (a)(b) of the Arms Act and Section 504 of I.P.C. 2.1 It is against the said judgment dated 14th September, 2005, in Sessions Case No.68/2004, that the convict accused persons have preferred these CR.A/2165/2005 6/16 JUDGMENT appeals. 3. Criminal Appeal No.2165/2005 is preferred by original accused No.6 Tahir Asharafbhai Shaikh and he is represented by learned advocate Mr.N.K.Majmudar. Criminal Appeal No. 2327/2005 is preferred by original accused No.1 Hasmukhbhai @ Hako Chunilal Chauhan and he is represented by learned advocate Mr.M.M.Mansuri, appearing for learned advocate Mr. Tirmizi. Criminal Appeal No. 2445/2005 is preferred by original accused Nos.2, 3, 5 & 7, namely, Kasam @ Shahun @ Sonu Kamarkha Pathan, Asid Shahbudin Meu- Pathan, Tahir @ Kalukhan Taili-Pathan and Jekamkhan Kamarkhan Meu-Pathan, respectively, and they are represented by learned advocate Mr.A.A.Husaini; whereas Criminal Appeal No.2310/2005 is preferred by original accused No.4 Iqbal @ Gulam Mahmmed Belim and he is represented by learned advocate Mr.S.S.Saiyad. The respondent- State of Gujarat, in all the appeals, is represented by learned A.P.P. Mr.U.R.Bhatt. CR.A/2165/2005 7/16 JUDGMENT 4. We have heard the learned advocates for the appellants. Their main contentions are that the evidence on identity of the miscreants is defective and not sufficient to connect the appellants with the crime. The second fold of the contention is that the procedure followed for T.I.Parade is defective. The identity of the Eicher vehicle used in the commission of the crime is not properly established. 4.1 There is no evidence to show that at the time of the incident, cotton was loaded in TATA vehicle of the first informant. The evidence regarding seizure of the truck by Godhra police and transfer of the same with cotton and the accused persons to Amreli police does not reveal that the requisite procedure therefor was followed. There are material discrepancies in the evidence of first informant Jayubha and his driver Kalubhai. They do not seem to have respect for the truth and they have changed their version to suit the requirements of their case. It was, therefore, argued that the trial Court has overlooked all these aspects while recording conviction and, therefore, this Court may CR.A/2165/2005 8/16 JUDGMENT entertain these appeals and acquit the appellants of the charges levelled against them. 5. Learned A.P.P. Mr. Bhatt has opposed these appeals. According to him, the incident had occurred in the early hours and the first informant and his driver were caught by surprise and, therefore, there may be some discrepancies in their evidence, depending upon their power of observation and description. He submitted that though there is no evidence on record to show that the requisite procedure was followed for bringing the truck and the accused from Godhra to Amreli, it could not have been done without following the requisite procedure. It is also submitted that the ownership of the cotton is not a relevant factor and want of evidence on that aspect would not affect the prosecution case. Lastly, it is submitted that T.I.Parade has been appropriately conducted by an independent officer of the rank of Executive Magistrate and it, therefore, may not be doubted. The learned A.P.P., therefore, submitted that the appeals may be dismissed. CR.A/2165/2005 9/16 JUDGMENT 6. We have examined the record and proceedings in light of the contentions raised before us. 7. In our view, the primary and prime evidence would be on the question of identity of the miscreants. In this regard, if the evidence of first informant Jayubha and his driver Kalubhai is examined, we find that they, for the first time, identify the miscreants at the time when the T.I.Parade was conducted by the Executive Magistrate. The first informant in his F.I.R and witness Kalubhai in his statement do not seem to have given any specific identity of the miscreants. The FIR does not reveal any description of the miscreants, except the colour of the clothes of two or three of the assailants. There is discrepancy about the number of the assailants, and the description of the incident makes it difficult for us to accept the same at its face value. As per the evidence of these two eye witnesses to the incident, Eicher vehicle intercepted their TATA vehicle, four persons came out of the Eicher vehicle and two persons came on each side of TATA vehicle, opened the door and pushed themselves CR.A/2165/2005 10/16 JUDGMENT into the vehicle taking control of the vehicle. We are unable to reconcile as to how six persons could sit in the front seat of TATA vehicle, which is ordinarily fitted with bucket seat. Even if it is a bench seat, then also, how six persons could have been accommodated, is the question, which remains unanswered to our mind. 7.1 After the vehicles are taken to a distance of three quarters of kilometer, the eye witnesses are allegedly pushed out of the vehicle and then taken to a field on the side of the road, where they were denuded and tied with their own clothes. It has specifically come in the evidence that it was very dark and that the headlights of the vehicles did not throw any light in the field where the first informant and his driver were allegedly intimidated and robbed. No specific overtact is alleged against any of the assailants. In fact, the allegations are too vague on the above aspect. 7.2 We find that first informant Jayubha, initially, says that four persons came out of the CR.A/2165/2005 11/16 JUDGMENT Eicher vehicle and three persons remained in the vehicle. He then says that there were three assailants. At one point of time, he says that he could identify three persons out of the group of the assailants. But, when he goes to the Executive Magistrate, he identifies six persons and does not attribute any overtact, in specific, to any of the identified persons. Similarly, witness Kalubhai identifies five persons in the T.I.Parade out of the group of seven. 8. It comes in the evidence of the Executive Magistrate that though he, initially, says that he had sent his peon to call the witnesses, at a later point of time, he admits that the witnesses were brought to him by police along with the accused persons. Even the oral evidence of the Investigating Officer supports this aspect when he says that he had called the eye witnesses to the police station and had asked them to wait outside and when T.I.Parade was to be conducted, he asked them to go to the office of the Executive Magistrate. But, during this time, the accused persons were in police custody. CR.A/2165/2005 12/16 JUDGMENT Against this, witness Kalubhai says that he was called by the peon of the Executive Magistrate. This would go to show that Kalubhai changes his version so as to suit the need of the prosecution case. The possibility of the witnesses having seen the accused persons before they were asked to identify the miscreants, cannot be ruled out. 9. The sum and substance of the foregoing discussion is that the evidence of the eye witnesses, i.e. the first informant and his driver Kalubhai, as well as the Investigating Officer and the Executive Magistrate, go to show that the procedure adopted for fixing the identity of the miscreants or the accused persons is defective and does not rule out the possibility of a mistaken identity. 10. The vehicle used in the commission of offence, i.e. Eicher vehicle, is sought to be proved as one which was seized by Godhra police. In this regard, if the evidence is seen, both, first informant Jayubha and driver Kalubhai have admitted that though the vehicle had come in front of their TATA vehicle and CR.A/2165/2005 13/16 JUDGMENT the headlights of TATA vehicle were on, they could not focus on the number of Eicher Vehicle and they did not remember it. The description that they have given is only regarding colour, which, according to them, was green. Ultimately, when the vehicle was seized by Godhra police, it was found to be a blue vehicle and it is nobody's case that the colour has been changed. As has been rightly argued, there is no evidence to show that the vehicle was loaded with approximately 5000 Kgs of cotton and part of it is shown to have been sold in the Market-Yard at Babara. Witness Pareshbhai has been examined, whose deposition does not inspire any confidence for the reason that he claims to remember all details, including the number of the vehicle, name of the party, except the exact transaction amount and the three persons, who accompanied the vendor of the cotton, but, fails to remember any of the details relating to other transactions. 11. There is no evidence to show, when and how, or if at all the cotton was transferred from TATA vehicle to Eicher vehicle, it becomes important for CR.A/2165/2005 14/16 JUDGMENT the reason that the cotton was loaded loose in the vehicle, and shifting of it from one vehicle to another would call for skilled workers and it would be a time-consuming affair. The result is that, this is a matter of doubt, whether it is the Eicher vehicle seized by Godhra police and brought before the Court as the vehicle used in the commission of crime, or it is some other vehicle. The seizing officer has been examined, but, the panch witnesses have not been examined, and no explanation for that purpose is tendered by the prosecution. Additionally, it has come in the evidence of Revabhai Galvabhai Patel, PSI of Godhra Taluka Police Setation, (Exh.70) that he had transferred the vehicle with accused to Amreli Police, without following the requisite procedure. He has admitted that he had not informed the concerned Magistrate about the same. 12. Lastly, witness Pareshbhai (Exh.72) has been examined after the Investigating Officer is examined. He is the witness, who tells the Court about he being the intermediary for sale of the cotton as a Commission Agent at Babara. During his cross- CR.A/2165/2005 15/16 JUDGMENT examination, he has stated that description of Chhaganbhai Virjibhai Bathadavala was stated by him in his police statement and has no explanation to offer, if his police statement does not contain the description. The opportunity to prove the contradictions through the Investigating Officer has been lost, as the Investigating Officer is examined prior in point of time. This would certainly cause prejudice to the defence. 13. For the foregoing reasons, we are of the view that the prosecution cannot be said to have proved the charges against the appellants beyond reasonable doubt and the conviction could not have been recorded on the basis of the evidence before the trial Court. The appeals, therefore, merit acceptance. 14. For the foregoing reasons, all the four appeals are allowed. The conviction and sentence awarded by the learned Additional Sessions Judge, Amreli by judgment and order dated 14.09.2005, in Sessions Case No. 68/2004, is hereby set aside. The appellants-accused are acquitted of the offences with which they were charged. The appellants-accused be set at liberty forthwith, if not required in any CR.A/2165/2005 16/16 JUDGMENT other case. Fine, if paid, be refunded to the appellants-accused. (patel) [ A.L. Dave,J.] [ J.C.Upadhyaya,J.]