CR.A/961/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 961 of 1986 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 KANJI KHIMJI @ FARKO AND OTHERS ========================================= =Appearance : MR IM PANDYA, ADDL PUBLIC PROSECUTOR for the Appellant MR KAMLESH C PATEL for Opponent No.1 MRS SHILPA R SHAH for Opponent Nos. 2 to 5 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 18/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/961/1986 2/4 JUDGMENT 1. The present Appeal is filed by the State of Gujarat against the respondents being aggrieved by the order of the learned Additional Sessions Judge, Gondal dated 15.2.1986 in Sessions Case No.47 of 1985. 2. According to the prosecution case, on 29.4.1985, all the accused persons had gone to the residence of deceased Umiya Shankar. Deceased Umiya Shanker owed some money to respondent No.1 When the demand was made, according to the prosecution, there was altercation between the parties and a slap was given by respondent No.1 to the deceased. The deceased, therefore, ran inside the house. It is said that he was followed by respondent Nos.1 and 5 in the house, wherein the deceased entered into the room and where respondent Nos. 1 and 5 entered and respondent Nos. 2,3 and 4 remained outside. According to the prosecution, coming of the accused persons was witnessed by three witnesses, namely (1) Bhavna Dadubhai -PW 27 (Exh.65) (2) Vinod- PW 26 (Exh.63) and (3) Amrutben-PW 25(Exh.61). 3. The learned Trial Judge has examined the case of the prosecution. In light of the evidence adduced by the aforesaid three eye witnesses, none of these witnesses were known to the accused. Out of the three witnesses, Bhavna and Vinod are child witnesses. They are alleged to have seen the accused having come and quarreled with the deceased. It is alleged that when the quarrel started, they went to call Amrutben- mother of the deceased and Amrutben, thereafter, arrived. Thus, the case of the prosecution is that none of these witnesses have seen the actual occurrence which took place in the room. The learned Trial Judge has not believed the testimony of the eye witnesses because neither the names of the accused were given nor their roles were described in the FIR or the police statement. Thus, the material detail of the prosecution case was absent in the statement of these witnesses. For the first time, the witnesses identified the accused CR.A/961/1986 3/4 JUDGMENT in the T.I. Parade held on 11.5.1985 and 12.5.1985. The learned Trial Judge has gone into details of the T.I. Parade, wherein it is stated that in the office of the Mamlatdar, the accused and the witnesses were called and kept in a separate room. Then, eight persons who were brought from outside and the persons present in the office, mixed with the accused. The learned Trial Judge was of the opinion that this approach wherein the witnesses and the accused were kept in the office awaiting and then private persons from outside were brought in, is a curious fact. Such mixing is easily distinguished and, therefore, T.I. Parade was not given credence by the learned Trial Judge. 4. We have heard the learned counsel for the parties and given thoughtful consideration to the submissions made by them. Out of the three witnesses, two are child witnesses. They had not seen the accused committing crime. For the first time, they have identified the accused in the T.I. Parade, which is subject to doubt. Thus, the T.I. Parade can be said to be a farce. Once we came to the conclusion that the T.I. Parade was not good enough to give credence, then there remains nothing in the case because the identification in the Court has no value and the identification parade is doubtful. The witnesses were not known to the accused before. The manner in which the incident is alleged to have taken place, does not inspire confidence that the children were sufficient enough to notice the quarrel in the manner in which it has taken place. Consequently, calling of the mother is also unbelievable. In the aforesaid circumstances, the finding recorded by the learned Trial Judge is not liable to be interfered and consequently the same is maintained. In the result, the appeal is dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) CR.A/961/1986 4/4 JUDGMENT (S.R.BRAHMBHATT, J.) omkar