CR.A/120119/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1201 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus GAMECHA VAGHARI KAYALA BACHU - Opponent(s) ========================================================= Appearance : PUBLIC PROSECUTOR for Appellant(s) : 1, MR VIJAY H PATEL for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 21/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/120119/1986 2/5 JUDGMENT This is an appeal filed by the State against the order of acquittal passed by the learned Sessions Judge, Bhavnagar, in Sessions Case No. 156 of 1985 on 25.6.1986. By the aforesaid judgement, the learned trial Judge has acquitted the accused of the charges levelled against him. 2. Briefly stated, the prosecution case is that Lakha Nagjibhai , aged 10 years, has gone for grazing cattle in outskirt of village Luvadhara of Valbhi taluka on 21.8.1985. He had gone along with one girl named Rambha, aged 11 years, who also went for grazing her cattle for the same area. When they were grazing their cattle at about 11.30 hours accused named Kaleya Bachu came there and asked Lakha if he is coming with him in the field and thereafter Lakha started with him at that time Rambha told him that he should not go with unknown person. Upon that Lakha told her that he is not unknown but he is Kaleya, son of Bachu Vaghri and he knows him. Thereafter, they went a little and were playing at the fron of the lake , at that time it was about 12 to 12.30 noon. Thereafter, they went in the meadows and deceased Lakha did not come back from there. Rambha came back with her cattle as well the cattle of Lakha and while giving back cattle of Lakha to his mother she told her that Lakha went to the border of the village and thereafter he has not returned and so she brought his cattle back and entrusted her. Thereafter, until late evening Lakha did not return so his mother talked to her husband and pursuant to that he along with his brother and one uncle, went to the place of Rambha, learnt entire information and then wnt ahead to inquiry. For some time no CR.A/120119/1986 3/5 JUDGMENT trace were found of Lakha and, therefore, they informed the village Sarpanch and members of taluka panchayat and other people who also went out to search Lakha and accordingly while they were searching at the front of the lake on the southern side in the bush of babul, they found dead body of Lakha which was profusely bleeding and he was dead. It was inquired whether any ornaments were there in his body and thereupon it was learnt that he was wearing ring on the wrist and one silver string around the navel. Upon further inquiring at the scene of incident, one stick was floating in one pit near the dead body. However, searching in the said pit, a pair of shoes of the deceased were found which were identified that of the deceased. As investigation proceeded, respondent accused was arrested and he was charge-sheeted. Since the offence was triable by the Court of Sessions, charge was framed on 20.5.2006 and plea was recorded. Since the accused did not plead guilty, trial proceeded and after considering the witnesses the learned Sessions Judge was pleased to acquit the respondent by giving him the benefit of doubt. Being aggrieved by the said judgement, the State is in appeal. 3. The learned Additional Public Prosecutor contended that the entire case admittedly is resting upon circumstantial evidence against the respondent. He contended that the learned Sessions Judge has wrongly appreciated the circumstances in favour of the respondent accused while acquitting him. 4. The learned Additional Public Prosecutor has raised contention assailing the judgement of the learned Sessions CR.A/120119/1986 4/5 JUDGMENT Judge acquitting the respondent accused and contended that version of Rambhaben, who is a child witness, ought to have been believed by the learned Sessions Judge and the same has been discarded as such without assigning any justifiable reason. He further contended that the ornaments which were found from the possession of the respondent accused were recovered on the spot and, therefore, that recovery ought to have been believed by the learned Sessions Judge. He further assailed the judgement of the learned Sessions Judge on the basis of age of inquiries which were doubted by the learned Sessions Judge which ought not to have been doubted on the ground that difference of an hour or two ought not to have been believed to be material by the learned Judge. 5. We have gone through the evidence of Rambhaben, PW-3, Exh. 13, who appears to be main witness and a child witness. She admits in her deposition that during the course of evidence it has come out that earlier to the said incident she has never seen the respondent accused. She for the first time identifies him in the Court more so she deposes that she knows him by face. In these circumstances the prosecution ought to have undertaken identification parade. Perusing the entire judgement and record of the case, we do not find any justifiable reason for not holding test identification parade in this behalf. More so for identifying the ornaments which were found in the possession of the accused when he was arrested, complainant has not produced any documentary evidence with the Investigating Officer and the same is produced first time in the Court. In these set of circumstances that also appear to be got up and subsequently an engineered evidence so as to CR.A/120119/1986 5/5 JUDGMENT strengthen the identification of the ornaments which were found from the possession of the accused. The identification of accused in a case like this was very much material in our considered opinion, more particularly when witness who has last seen the accused person with the victim, ought to have been identified in an independent test identification parade. If that is not done, link between the accused and the guilt is not established. Therefore, we do not find any infirmity in the judgement rendered by the learned trial Judge acquitting the accused of the charges levelled against him. Hence the appeal is dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)