CR.A/18819/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 188 of 1987 With CRIMINAL APPEAL No. 189 of 1987 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 GHANSHYAM @ GAMA TALAJI ====================================== Appearance : Mr Maulik G Nanavati, Additional Public Prosecutor for the Appellant Mrs Shilpa R Shah for the Respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/18819/1987 2/6 JUDGMENT Date : 07/08/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Both the appeals have been preferred by the State of Gujarat against the common judgment and order dated 24.11.1986 passed by the Third Extra Assistant Judge and Additional Sessions Judge, Vadodara in Sessions Case No. 39 of 1986 and Sessions Case No. 40 of 1986 acquitting all the accused persons for the offences punishable under Sections 143, 146, 147, 307, 332 and 224 of Indian Penal Code and Section 135 of the Bombay Police Act. Five persons – Dilipbhai Ambubhai, Rajeshbhai Govindbhai, Bharatsinh Abaysinh, Ashokbhai Ambudhbhai and Ghanshyam Talaji were accused of misbehaving on a public road in an inebriated condition and further beating police personnel who were on duty and had come to apprehend them. As accused Ghanshyam Talaji was not available, the police charge-sheeted the other four accused and sent them for trial. Sessions Case No. 39 of 1986 commenced against them. Accused Ghanshyam was arrested subsequently and he stood trial in Sessions Case No. 40 of 1986. As charges in both cases were common, they were heard together. Common evidence was led and a single judgment was delivered by the learned Additional Sessions Judge disposing of both session trials. The Trial Judge acquitted all the accused persons for the following reasons: (i) Prosecution has not led any evidence to show as to how the complainant and other injured witnesses came to know the names of accused persons. Similarly, Constable Prabhatsinh CR.A/18819/1987 3/6 JUDGMENT Shankarsinh (PW-2) has not stated as to how he knows accused Ashok and Dilip though he has identified them in Court. (ii) No test identification parade was held to establish the identity of assailants and to prove that the present accused were the ones who assaulted the police officers on the day of incident; (iii) It is unlikely that the accused persons would instead of going to a tea stall near their house in Bakrawadi walk some distance to Market Chowky and go there for tea. Also, the prosecution has not been able to prove as to why the accused persons had come to Market Chowky area when they were staying in Bakrawadi. (iv) Homeguard member Bhikabhai Motibhai (PW-4) has not identified any other accused except accused Ashok. (v) Accused Ashok was arrested by police in connection with the present crime on 30.10.1985 when they came to know from Vadi Police Station that Ashok has been apprehended under the Gunda Act. Prosecution has not led any evidence to show as to when Ashok was arrested under the Gunda Act and therefore the possibility of Ashok being in custody of police on date of incident, i.e., 23.09.1985 cannot be ruled out. (vi) Prosecution has not led any evidence to show who arrested accused nos. 1 to 3 and under what circumstances. No arrest panchnama has been done of their arrest. (vii) Independent witnesses have turned hostile. On 24.07.2008, when the appeal came up for final hearing, none was present on behalf of accused. Therefore, in the interest of justice, this Court had issued bailable warrants against the accused to secure their presence for hearing of the appeal. Pursuant to the said warrants, accused Ashok and accused Ghanshyam appeared before the Court today in person and on their request the appeal was taken up for hearing. CR.A/18819/1987 4/6 JUDGMENT During the hearing, the Court was informed that three other accused persons – Dilip, Rajesh and Bharatsinh have expired during the pendency of appeal. This fact was verified and confirmed on behalf of the State. Therefore, appeal against these accused persons stands abated. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Ms. Shilpa Shah, Advocate who was requested to assist the Court on behalf of the surviving respondents. Mr. Nanavati, learned Counsel for the State, has submitted that PW-1 Chandubhai has stated in his testimony that he knows the accused persons as they sit on the tea stall near Market Chowky. Once the witness has stated that he knows the accused and has given their names, there is no necessity to further state the circumstances under which the accused persons are known to the witness. It was for the defence to elicit in the cross examination that the witness is falsely stating his acquaintance of accused but no suggestion has been put to the witness that he does not personally know the accused and has given their names on being told by someone. He has further submitted that the witness is a police officer attached to Market Chowky police station and therefore it is very likely for him to know the names of vendors having their stall in his beat area. He has further submitted that in view of the fact that the accused persons were known to the complainant and there was no vagueness about their identity, there was no reason to hold a test identification parade to establish identity of assailants. As regards the finding that it is unlikely that accused persons would walk to a distant tea stall instead of a nearby tea stall, he has submitted that the said finding is presumptive. On the point of arrest of accused Ashok, the learned Prosecutor has submitted that it is not even the case of defence that Ashok was in custody of police, having been arrested under provisions of the Goonda Act, on the date of incident and, therefore, the CR.A/18819/1987 5/6 JUDGMENT Trial Judge was in error in raising such a presumption. Mr. Nanavati has lastly submitted that though the independent witnesses have turned hostile, that by itself would not be fatal to the prosecution case. Nothing has been shown by the accused to suggest that the police officers are unreliable and are falsely implicating them. The evidence of all the injured witnesses is reliable and inspires confidence. However, looking to the nature of injuries, Mr. Nanavati has fairly submitted that evidence led before the Trial Court is not sufficient to entail a conviction under Section 307 of the Indian Penal Code, but there is clear, reliable and unimpeachable evidence making out guilt of the accused for the offences punishable under Section 332 of the Penal Code. He has therefore submitted that the appeal deserves to be partly allowed the accused convicted for the offences punishable under Sections 142, 143, 147, 224 and 332 of the Indian Penal Code and Section 135 of the Bombay Police Act. On the other hand, Ms. Shah has supported the judgment of the Trial Court and submitted that no error has been committed by the Trial Judge in acquitting the respondents. She has submitted that the evidence of police officers is not credible and in absence of any independent corroboration the respondent could not have been convicted of the offence. We would have considered the submission of Mr. Nanavati of partly allowing the appeal, but in the peculiar facts of the case, we are not inclined to interfere with the conclusion arrived at by the Trial Court. As noted above, three of the accused persons have died. Of the surviving two accused, one is suffering from leprosy, which has rendered him almost immobile. The other surviving accused is the one who has not been ascribed any overt act of attacking the police and has been CR.A/18819/1987 6/6 JUDGMENT arraigned as an accused only because of his presence at the scene of offence. So even otherwise there is no evidence against him of having committed any offence of assault. We may also observe that the reasons recorded by the Trial Judge are not contrary to the evidence on record and are plausible. Therefore, considering the scope of appeal under Section 368 and keeping in mind the settled principle of law that where two views are possible and the view taken by the Trial Court is not incorrect or improbable, and further taking into consideration the number of years that have passed by since the date of incident and acquittal of respondents, we are not inclined to interfere with the conclusion arrived at by the Trial Judge. The appeal, therefore, deserves to be rejected and is accordingly dismissed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd