CR.A/382/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 382 of 2004 With CRIMINAL APPEAL No. 518 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= AMRUT HARJI @ HARJIVAN THAKKAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR RJ GOSWAMI and MR JM BUDDHBHATTI for Appellant(s) MR PD BHATE, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/01/2008 ORAL JUDGMENT These appeals are directed against the common judgment and order dated 25.2.2004 rendered by the CR.A/382/2004 2/8 JUDGMENT learned Additional Sessions Judge, Gandhidham, Kutch in Sessions Case No.34 of 2003. 2. Appellant of Criminal Appeal No.382 of 2004, namely, Amrut Harji @ Harjivan Thakkar, was original accused No.3. Appellant of Criminal Appeal No.518 of 2004, namely, Rameshsinh @ Balio Fatehsinh Thakor was original accused No.1. 3. These accused were charged with offence punishable under section 394 read with section 34 of the Indian Penal Code as well as under section 397 read with section 34 of the Indian Penal Code and under section 135 of the Bombay Police Act. 4. Broadly stated, charge against the present appellants and one Bharat @ Mafabhai Parmar was that on 9.4.2000, late at night at about 1.45 when the complainant was returning from journey and got down at a bus-stop, they caught hold of the complainant, showed him a knife and snatched away gold chain, wrist watch, silver ring and cash of Rs.20,050. The learned Additional Sessions Judge convicted accused No.1 for offence punishable under section 397 of the Indian Penal Code and sentenced him to 7 years of RI. He was also convicted under section 135 of the Bombay Police Act and sentenced to RI of 3 months. He was also convicted under section 394 of the Indian Penal Code, but no separate sentence was imposed. He was also ordered to pay fine. Accused No.3 was convicted under section 394 of the Indian Penal Code and CR.A/382/2004 3/8 JUDGMENT sentenced to 3 years of RI and fine of Rs.500/-. 5. Bharat Chhanabhai Parmar, PW-1, was examined at Ex.13. He was the Mamlatdar who had carried out the test identification parade of the accused persons on 23rd July 2001. He stated that he conducted TIP as per the yadi received by him from the police station. He had called 14 persons and mixed them with three accused. The complainant had identified the accused persons. 6. Complainant, Kaushik Bhatt, PW-2 was examined at Ex.16. He stated that on 9.4.2000 he had returned to Gandhidhamm from Morbi after finishing his work. When he had reached Oslo cross- roads at Gandhidham at about 1.30 at night, he was carrying a small bag and a big bag. He was trying to reach at his uncle's house at Manli Towers. He was looking for a rickshaw. Since he did not find a rickshaw, he started walking towards his uncle's house. When he reached near Manali Tower, three people crossed him from the front. Sometime thereafter, they suddenly turned back. One of them who was big built caught him from behind. Other two pressed his mouth and started giving fist blows in his stomach. One of these persons had a knife. They took away the gold chain which he was wearing and a silver ring. They also took away Rs.400/- which was in his pocket. He was thereafter, dragged to a place where it was dark. They also opened the small packet and took away the wallet from it which contained CR.A/382/2004 4/8 JUDGMENT money. They also hurt him with a knife and kicked him. His hands were tied behind and he was pushed in the bushes. He, thereafter, got up and dragged himself to his uncle's house. They thereafter, went to the police station and lodged the complaint. He identified the accused before the Court. In the cross-examination, however, he stated that before going for identification parade, he had gone to the police station from where he had gone to the Mamlatdar's office. He had reached the police station at 1.30 in the afternoon and he reached the Mamlatdar's office between 3.30 and 4.00 p.m. He admitted that when he was in the police station, he was shown the accused persons and he was asked whether he would be able to identify them before the Mamlatdar. He, however, added that there were other persons also in the police lock-up besides the accused. 7. Though, apparently, the police had drawn panchnama of the scene of offence, seizing of the bag and belongings to the complainant as also the recovery of wrist watch of the complainant, none of the panch winesses supported the prosecution and they all turned hostile. 8. Dr.Chandrakant Acharya, PW-5, was examined at Ex.25. He had treated the complainant and found some superficial injuries on his body. In his cross- examination, he agreed that such injuries could have CR.A/382/2004 5/8 JUDGMENT been caused if he had fallen down. 9. One Vasubhai Mangtani, PW-15 was examined at Ex.44. He was the goldsmith having a shop in Gandhidham. He stated that some two or three years back, police had come with some persons. These persons had come to his shop about three months before that and had sold a gold chain for Rs.5600/-. He however, could not identify these persons and stated that at the time when they had come to his shop, his brother's both the kidneys failed and that therefore he was disturbed. He had produced before the police the gold-slug to which he had converted the gold chain purchased by him. 10. PW-16, Karamshibhai Desai, Ex.18 was discharging his duties as PI Gandhidham. He stated that initially 'A' summary was filed. On 11.7.2001, a message was received from the Superintendent of Police, Kutch-Bhuj that Banaskantha police has arrested the accused persons for offence punishable under section 380 of the Indian Penal Code and during investigation of the said offence, their involvement in the present case has been revealed. 11. PW-17, Dhanesinh Chauhan, Ex.49 had carried out the investigation. He had drawn the panchnamas of different places and recovery of gold-slug as well as wrist watch. He had also ensured that test identification parade was conducted with the help of the Executive Magistrate. CR.A/382/2004 6/8 JUDGMENT 12. From the evidence on record, it can be seen that the entire case hinges on the identification of the accused persons by the complainant. Admittedly, there were no other eye-witness and it is solely the identification by the complainant of these accused which would clinch the issue for or against the appellants. 13. It may be recalled that though test identification parade was carried out by the Executive Magistrate as per the request of the police, such parade was held on 23rd July 2001. The incident took place on 9.4.2000. Thus the test identification parade was carried out more than one year after the incident. Additionally, I also find that in his deposition, the complainant, Kaushik Bhatt, PW-2 clearly stated that before going to the Mamlatdar's office for test identification parade, he had gone to the police station. As per his version, he reached the police station at 1.30 in the afternoon. He reached the Mamlatdar's office between 3.30 and 4.00 p.m. He was thus in the police station for nearly two hours. He in fact, admitted that the police had shown the three accused to him while he was in the police station. He was in fact, asked whether he would be able to identify them before the Mamlatdar. Thus before taking the accused and the complainant for test identification parade, the accused was shown to the complainant in the police station. The entire secrecy of the test CR.A/382/2004 7/8 JUDGMENT identification parade was thus destroyed. Conducting of test identification parade thus remained a farce. No reliance can be placed on such test identification parade. 14. Ultimately, thus, what remains on record is the identification of the accused by the complainant before the Court. The evidence of the complainant was recorded on 19.12.2003. The incident took place on 9.4.2000. Thus more than 3½ years passed before the complainant had the occasion to identify the accused persons. It may be recalled that the incident took place at about 1.45 night. Much of the incident took place in dark conditions. The witness himself had stated that he was dragged to a dark corner and beaten up. None of the accused persons were known to the complainant before hand. No description or identification was given by the complainant. Thus, it would be highly unsafe to rely on the identification of the accused by the complainant before the Court for the first time more than 3½ years after the incident. 15. Additionally I also find that the panchanamas were not supported by the panch witnesses. Barring the goldsmith, Vasubhai, PW-15, none of the panchas supported the prosecution. Even Vasubhai stated that he could not recognize the accused persons because at the relevant time he was pre-occupied by his brother's illness. The gold chain which he had purchased from the accused also CR.A/382/2004 8/8 JUDGMENT did not remain in the same condition. Thus, from the goldsmith also, the chain belonging to the complainant was not recovered. Connecting the accused with the crime thus would remain incomplete. 16. Taking overall view of the facts and circumstances of the case and in view of the evidence discussed hereinabove, I find that the learned Additional Sessions Judge committed an error in convicting the accused persons. 17. In the result, conviction and sentence of both the appellants are set aside. Bail bond of appellant in Criminal Appeal No.382 of 2004 is discharged. Appellant in Criminal Appeal No.518 of 2004 be released if not required in any other criminal case. Both the appeals succeed and disposed of accordingly. (Akil Kureshi, J.) (vjn)