CR.A/37020/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 370 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ====================================== 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 ? ====================================== RASHMIN VINODBHAI NAYAK Versus THE STATE OF GUJARAT ====================================== Appearance : MR NM KAPADIA for the Appellant Ms Hansa Punani, Additional Public Prosecutor for the Opponent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 08/10/2008 CR.A/37020/2006 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The appellant has challenged his conviction as recorded by the Court of Sessions, Surat vide his judgement and order dated 4th January 2006 in Sessions Case No.129 of 2004. The accused was arrested and charge-sheeted in connection with the crime wherein a girl, named Vandana was alleged to have been murdered by the accused – appellant. At the time when the First Information Report was recorded, the name of the witness – Rekhaben Didarsinh, PW No.2 was given and it was stated by the complainant in the FIR that there was one another person. That is later on revealed to be Rajubhai Javerbhai Pawar, PW No.4, an eye witness produced by the prosecution. After usual investigation, the police found the complicity of the accused to be proved and a charge sheet was filed against the accused. The case was committed to the Court of Sessions. The accused – appellant denied the charge and claimed trial. At the trial, the prosecution proposed to produce two eye witnesses, namely, Rekhaben Didarsinh, PW No.2 and Rajubhai Javerbhai Pawar, PW No.4. Rekhaben Didarsinh turned hostile and has not supported the case of the prosecution. Rajubhai has tried to support the prosecution case and it is on the strength of the evidence of the sole witness the learned Sessions Judge has recorded the finding that the crime has been committed by the accused and, therefore, the accused was convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment and a fine of Rs.500/- was imposed in default the appellant-accused was ordered to undergo Simple Imprisonment of three months. CR.A/37020/2006 3/5 JUDGMENT Challenging the conviction, learned counsel for the appellant has urged before us that the trial Court was wrong in accepting the evidence of remaining solitary eye witness - Rajubhai Javerbhai Pawar, PW No.4 as Rekhaben Didarsinh has turned hostile. According to him, the evidence of Rajubhai Javerbhai Pawar could not have been believed by the trial Court for the simple reason that he was not named by the complainant in his deposition before the police. In the Test Identification Parade said Rajubhai Javerbhai Pawar failed to identify the appellant-accused and consequent thereto Test Identification memo was not produced by the Investigating Agency with the charge sheet papers. Said Rajubhai Javerbhai Pawar has accepted in his court statement the fact that he failed to identify the appellant-accused in the Test Identification Parade. However, he stated that he identifies the accused in the Court. The learned counsel for the appellant urged that as far as identification in court is concerned it is next to no value if the accused is not identified in the Test Identification Parade. The next criticism of the learned counsel for the appellant-accused against the evidence of Rajubhai is that the alleged incident pertains to the date of 11th February 2004 and his statement was recorded on 12th February 2004 and therefore the late recording of the testimony statement of this witness goes a long way because, had he seen the accused-appellant, his statement would have been recorded immediately. The another criticism of the learned counsel for the appellant against the testimony of this witness is that he was not named in the FIR and in the FIR the reference is one another person who has seen the incident. The another incident which this witness does not support is the presence of Rekhaben and thus the learned counsel for the appellant submitted that the other circumstantial piece of evidence, which is only the evidence of discovery of muddamal weapon, which is found to be bloodstained, is of no consequence as a corroborative piece of evidence and they cannot be CR.A/37020/2006 4/5 JUDGMENT treated as substantive piece of evidence against the accused person. Per contra, the learned Additional Public Prosecutor stressed that no matter if at the Test Identification Parade the witness has failed to identify the accused and he has identified the accused at trial and that should be treated to sustain the findings of the learned trial Judge. The learned Additional Public Prosecutor has vehemently argued that though Rekhaben has turned hostile, her statement cannot be brushed aside in its entirety. That is not the law. The testimony of hostile witness should be discarded in its entirety. Therefore, part of the testimony of Rekhaben wherein she supports the case of the prosecution should be considered. However, she has not pointed out as to which part of the statement of Rekhaben which supports the cause of the prosecution. The learned Additional Public Prosecutor is further of the view that the Investigating Officer has supported the case and there is recovery of the weapon and thus the findings of the trial Court are correct. We have given our thoughtful consideration to the materials and arguments advanced before us. The most important aspect of the case is that of failure of prime witness – Rajubhai to identify the accused at the Test Identification Parade. If he fails to identify the accused at the Test Identification Parade and identifies the accused at the time of trial, it is next to no value. Further, when the incident is of 11th February 2004 and his statement was recorded on the next day i.e. 12th February 2004 and therefore it can safely be said that he was not eye witness of the occurrence. We are of the opinion that this witness has not seen the occurrence and if seen could not identify the accused, which fact is writ large at Test Identification Parade. In this background, we are constrained to observe that the learned Sessions Judge should not have placed reliance on this witness. CR.A/37020/2006 5/5 JUDGMENT In this background, it is difficult to sustain the conviction and sentence. The appellant-accused deserves to be acquitted of the charges and his conviction and sentence deserves to be set aside. Consequently, the appeal is allowed. The conviction and sentence imposed by the learned Court of Sessions, Surat vide his judgement and order dated 4th January 2006 in Sessions Case No.129 of 2004 is set aside. The appellant shall be set at liberty forthwith if not required in any other case. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd