CR.A/2/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2 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 KOLI MOHAN SHARDUL AND ANOTHER ========================================= =Appearance : MR MAULIK NANAVATI, ASSTT PUBLIC PROSECUTOR for the Appellant MR MR YAGNIK FOR MR ND NANAVATI for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 23/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the order of acquittal dated 26.9.1986 passed by the CR.A/2/1987 2/5 JUDGMENT Assistant Sessions Judge, Junagadh in Sessions Case No.58 of 1985. 2. The facts, in brief, are such that it is the case of the prosecution that complainant -P.S.I. Kesarbhai Chaudhari (PW 3) alongwith other Police officers had to carry out a prohibition raid at Sejdivadi village on 2.1.1998 at about 7.45 p.m. As no liquor was found in the village, the raiding party had gone to Nava Bandar Custom Chowky and had reached there at about 7.30 p.m. 3. The panch witnesses were called and they were informed by the raiding party about the purpose of their visit. At that point of time, the police officers saw one person carrying a cane of liquor and they, immediately, chased and arrested him. On inquiry, the arrested person disclosed his name as Mohan Shardul, accused No.1. Thereafter, the police party alongwith the panch witnesses got on board a boat alongwith the arrested accused. About 8- 10 persons also got on the boat and inquired from the raiding party as to why they were taking away their owner. The police party appraised them of the reason for arrest of accused Mohan. They were also instructed not to interfere with their official work. The persons who subsequently got on board asked the police to release accused Mohan. 4. As the police refused to release Mohan, accused No.2 Koli Bhikha alias Ghela Jetha gave a blow on the head of PSI Chaudhari with a sailing oar. The other accused persons, thereafter, gave stick blows to PSI Chaudhari and other police officers and the panch witnesses. During the scuffle, accused CR.A/2/1987 3/5 JUDGMENT No.2 gave a push to PSI Chaudhary. As a result of which, he fell over the boat into the water. Some other police officers, who were standing nearby, saw the incident and rushed to the rescue of the raiding party and also fired two rounds from the service revolver to disperse the assailants. Thereafter, the complaint was lodged against 10 accused persons for the offences punishable under Sections 147, 148, 149, 307, 332 and 353 read with Section 34 of the Indian Penal Code. 5. The Trial Court, after appreciating the evidence, acquitted all the accused persons mainly for the reason that the prosecution has not led any evidence to establish the identity of accused Nos.3 to 10. Admittedly, as per the witnesses, these accused persons were not known to them and no test identification parade was held to establish their identity. As regards accused No.2, the Trial Court has noticed that the incident has occurred at about 8.00 p.m. on the winter night. There is no evidence on record to show that there was sufficient light on the boat so as to enable the complainant to notice and identify accused No.2. Also, no test identification parade was held immediately after the arrest of accused No.2 to establish conclusively his identity. 6. The Trial Court has also noticed that there are several discrepancies in the testimonies of the eye witnesses as to who pushed the complainant of the boat. As regards accused No.1, the Trial Court has observed that no overt act of causing any injury has been attributed to accused Mohan. Also, there is no evidence to show that accused Mohan called upon the other accused persons to help in releasing him from the custody of police. The Trial Court, therefore, did not accept the case of the prosecution for convicting the accused for CR.A/2/1987 4/5 JUDGMENT substantive offices read with Section 34 of the Indian Penal Code. 7. We have Mr. Nanavati, learned Additional Public Prosecutor for the State and Mr. M.R. Yagnik, learned advocate for the respondent-accused. We have also perused the record of the trial Court. 8. Mr. Nanavati has fairly submitted that there is no evidence on record to prove that an attack was made on the raiding party at the behest or on the call of accused Mohan. He has, however, submitted that the Trial Court was in error in acquitting original accused No.2 He has submitted that the prosecution has led evidence of police officers, all of whom have unequivocally stated that accused No.2 had inflicted a blow with a sailing oar on the head of PSI Chaudhary. 9. The medical evidence also proves injury on the head. As regards identity of accused No.2 is concerned, Mr. Nanavati has submitted that Psi Chaudhary as well as other police officers who were standing beside Chaudhary have identified the accused in the Court. He has, therefore, submitted that the acquittal as regards accused No.2 be set aside and the present appeal to that extent be allowed. 10. We have heard the learned counsel for the parties and have perused the record. The question of identity of the accused is of paramount importance in the case. The accused were not known to the police party prior before. The other accused had made their escape good. Identification in Court is not held to be of any worth unless preceded by earlier CR.A/2/1987 5/5 JUDGMENT identification. 11. When the acquittal of other accused persons is not challenged, it becomes a case where the identity of accused No.2 cannot be considered to be of conclusive value. No instigation is established to have been given by accused No.1 of any kind. Any act of unknown person cannot, therefore, be of incriminating nature, more particularly in an appeal against acquittal. 12. We do not think that any perversity is committed by the Trial Court in recording the findings of acquittal by the Trial Court. Thus, we think that when one possible view has been taken by the Trial Court, it would not be appropriate to disturb the findings. Consequently, we dismiss the appeal and uphold the acquittal. Bail bonds of the accused are cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar