CR.A/1069/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1069 of 2006 With CRIMINAL APPEAL No. 1921 of 2006 With CRIMINAL MISC.APPLICATION No. 2604 of 2008 In CRIMINAL APPEAL No. 1069 of 2006 With CRIMINAL MISC.APPLICATION No. 13301 of 2007 In CRIMINAL APPEAL No. 1921 of 2006 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 ? ========================================================= SALIM @ BHURO ISAK SANDHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HRIDAY BUCH & Mr H AHMED for Appellant(s) MS HANSA PUNANI for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 12/05/2008 CR.A/1069/2006 2/9 JUDGMENT ORAL JUDGMENT Appellant in Criminal Appeal No.1069 of 2006 is original accused No.1 and appellant in Criminal Appeal No.1921 of 2006 is original accused No.2 who were by the impugned judgment and order dated 9th March 2006 passed in Sessions Case No.70 of 2005 by the learned Additional Sessions Judge, Jamkhambhalia convicted for offence punishable under section 323, 342, 506(2) and sections 394 and 397 of the Indian Penal Code. For offence under section 323, they were sentenced to two months of simple imprisonment, for offence under section 342 again for two months of simple imprisonment, for offence under section 506(2), imprisonment for two years and for offence under sections 394 and 397, rigourous imprisonment for seven years. They were also ordered to pay fine. 2. As per charge Ex.5, it was alleged against the appellants that along with an absconding accused, at 2 O' clock night on 15th January 2005, they robbed the priest of temple called Chakreshwar Mahadev in the sim of village Methan, Taluka Jamjodhpur, Dist: Jamnagar of cash of Rs.15,000/-, a sword and a wrist watch by threatening that he would be electrocuted by tying an electric wire on his toes. They also caused him bodily injuries. After committing the robbery, they locked up the priest in a room. They were thus charged with offence punishable under section 323, 342, 506(2), 394 and 397 read with section 114 of the Indian Penal Code. CR.A/1069/2006 3/9 JUDGMENT 3. Complainant, Madhusudandas Girnari, PW-1, was examined at Ex.9. He stated that at the relevant time, he was doing the work of performing prayers etc. in the temple of Chakreshwar Mahadev. When he was sleeping outside the temple late at about 2 O' clock, three people came there and started beating him and demanded money. They also threatened that if he did not give money, they would kill him by electrocuting. He, therefore, took out 15,000 rupees which was concealed in a heap of sand nearby. After that they locked him up in a room and left. Next morning at about 9 O' clock when one Amrutbhai came to deliver milk, he brought him out. He had thereafter gone to Upleta for treatment an stayed there for a night. He returned next day and thereafter lodged the complaint. He had shown the scene of the incident to the police and also informed them about the robbers having taken away a sword and a wrist watch. About two months thereafter, he was called by the Mamlatdar, Jamjodhpur for identifying the accused. He had identified them before the Mamlatdar. He also identified them before the Court. In the cross-examination, though he admitted that he is aged about 70 years, he denied that he had a weak eye sight and could not see clearly at night. He stated that there was light in the temple which was drawn from a nearby farm. He admitted that police had come with the accused at the temple. Though he did not remember the exact date when they were CR.A/1069/2006 4/9 JUDGMENT brought, he stated that next day thereafter, he was called at the Mamlatdar's office. He admitted that in his complaint he had not stated about the watch or sword being taken away. He admitted that the accused whom he identified before the Mamlatdar was shown by the police the previous day. It may be noted that the alleged incident took place between the night of 14th and 15th January 2005 at about 2 O' clock. The complaint was lodged on 17.1.2005 at 17.45 hours. 4. Amrutbhai Parsottambhai, PW-3, Ex.13 was the person who had released the complainant in the morning of 15th January 2005. He stated that at about 9.30 in the morning when he reached the temple, he did not find the priest. He looked around and heard someone crying in pain. He opened the room and found that the priest was lying inside and he was bleeding from hand. He stated that the priest did not tell him about anything other than cash missing. 5. Dr.Ashokbhai Pithwa, PW-6, Ex.16, had treated the complainant. In his deposition,he stated that he runs an orthopedic hospital at Upleta. The complainant had come to him on 20th January 2005. He had stab injuries on his left elbow and also marks of beating on the chest. He had treated the patient and given injection. In cross-examination, he stated that the patient CR.A/1069/2006 5/9 JUDGMENT had come to him on 20th January 2005 and never before that and though he asked the patient, he refused to give the history. 6. Executive Magistrate Kantibhai Kalabhai, PW-7 was examined at Ex.19. He explained the procedure followed for conducting the test identification parade and the fact that the complainant had identified the accused before him. From the panchnama of the test identification parade, it can be seen that the dummies provided were aged 44, 40, 35 and 64 years respectively whereas the accused were said to be aged 22 and 33 years respectively. 7. PW-11, Muljibhai Ramjibhai Parmar, Ex.31 was the IO. In his deposition, he stated the manner in which the investigation was conducted. He stated that the accused were arrested on 16th March 2005 by LCB, Jamnagar in connection with other cases. The accused had confessed having committed robbery in the temple. There custody was obtained on orders from the Court on 22.3.2005. They claimed to have spent the stolen amount, but sword and wrist watch were discovered at their instance. In the cross-examination, he admitted that on 23.3.3005 he had taken the accused to the scene of the incident at which point of time, the complainant was present and he had seen the accused. He also CR.A/1069/2006 6/9 JUDGMENT admitted that since the accused were shown to the complainant on the previous day, the complainant could identify them before the Mamlatdar. He had recorded the further statement of the complainant on 23.3.2005. It may be noted that the panch witness to the discovery of the muddamal articles sword and wrist watch turned hostile and did not support the prosecution. 8. At the outset, it can be seen that the test identification parade had no efficacy. Admittedly, the accused were shown to the complainant only a day before holding of TIP. This was so much so admitted by the complainant himself, PW-1, Ex.9, as well as by the Investigating Officer, PW-11, Ex.31. In fact, the IO went on to state that on account of the accused having been shown to the complainant on the previous day, he was able to identify the accused before the Mamlatdar. Additionally, as noted, the dummies supplied were in the range of 35 to 64 years of age whereas the accused were aged 22 and 33 years respectively. The entire test identification parade, therefore, loses its efficacy. The same was conducted in an irregular manner and cannot provide any basis for successful identification of the accused by the complainant. 9. It is true that test identification parade, as pointed out by the learned APP, Ms.Punani is not a CR.A/1069/2006 7/9 JUDGMENT substantive piece of evidence and non-conducting of test identification parade or some defect therein would not be in all cases fatal to the prosecution. In the present case, however, one has to see the evidence in light of several factors emerging. First of all, the alleged incident took place at about 2 O' clock at night. The complainant himself was aged about 70 years. The accused were totally unknown to him. His identification of the accused before the Court some 11 months later, therefore had to be corroborated by other evidence. 11. Insofar as the prosecution version is concerned, I find that there are large number of lacuna and loopholes. First of all there is unexplained delay of about 2 days in filing the complaint. As noted, the incident took place at about 2 O' clock of early morning of 15.1.2005. The complaint was lodged at 17.45 on 17th January 2005. To explain the delay, the complainant stated, inter alia, that initially he was terrorized. He thereafter went to Upleta for treatment and came back on the next day and thereafter lodged complaint before the police. Dr.Ashokbhai, PW-6, Ex.16, who had treated the complainant stated that the complainant had come to him on 20th January 2005 and never before. Thus the version given by the complainant that he received treatment at Upleta on 16.1.2005 has been contradicted by the doctor. The explanation offered by him on first priority being given to his treatment and thereafter the complaint having been lodged, thus CR.A/1069/2006 8/9 JUDGMENT stands falsified. Additionally, I find that in the complaint itself, the complainant did not disclose about the sword and wrist watch having been taken away by the accused. He mentioned only about cash of Rs.15,000/-. The accused were taken in custody by the IO on 22nd March 2005. On 23.3.2005, further statement of the complainant was recorded in which he made fresh allegations of sword and wrist watch being stolen by the accused. Discovery of such articles also remains doubtful. Though the IO stated before the Court that such articles were discovered at the instance of the accused, panch witness did not support the prosecution. Discovery of these articles, therefore, was not proved through independent witnesses. 12. Under the circumstances, I find that there are large number of contradictions and inconsistencies in the prosecution version. To recapitulate, test identification parade has no efficacy since the accused were shown to the complainant only a day before identification was carried out. Identification of the accused before the Court has to be viewed cautiously since the incident took place late at night and the complainant was aged about 70 years and the complainant did not know the accused previously. In addition thereto, there was an unexplained and substantial delay in lodging the complainant. At the first instance, the complainant did not disclose about the sword and wrist watch being stolen. Such revelations were made through a CR.A/1069/2006 9/9 JUDGMENT further statement recorded on 23rd March 2005, a day after the custody of the accused were taken over by the IO. The discovery of the muddamal articles was not supported by any independent panch witness. 13. In view of the above circumstances, I find that to base conviction of the accused on the above evidence would be unsafe. They are therefore required to be given the benefit of doubt. 14. In the result, conviction and sentence of the appellants recorded by the learned Additional Sessions Judge in Sessions Case No.70/05 are set aside. The appellants shall be released forthwith if not required in any other criminal case. Fine if paid shall be refunded. Both the appeals are allowed and disposed of accordingly. In view of the order passed in the main appeal, Criminal Misc. Applications do not survive and are disposed of accordingly. (Akil Kureshi, J.) (vjn)