CR.A/289/1987 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 289 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 ? 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 SABBIR RASUL & 5 - Opponent(s) ========================================================= Appearance : Mr. S.P. Hasurkar, APP, for Appellant(s) : 1, MR YU MALIK for Opponent(s) : 1 - 3, 5, NOTICE SERVED for Opponent(s) : 4, MR DI DESAI for Opponent(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 ORAL JUDGMENT CR.A/289/1987 2/9 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) This is an appeal filed against the acquittal award passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad at Narol in Sessions Case No. 84 of 1985. By the said judgement the accused respondents are acquitted of the charges under Section 302 read with Sections 147, 148, 149 of the Indian Penal Code and Section 135 of the Bombay Police Act. 2. Briefly stated the case of the prosecution is that the accused respondents alleged to have assaulted the deceased and killed him on 25.5.1985 at 10.30 a.m. The trial Court after considering the case of the prosecution was of the opinion that the first informant complainant Babuji Khodaji PW-2 who lodged the FIR was informed by Chunilal Hiralal at his residence that his brother Dashrathji Khodaji has been assulted by six Muslim persons with dharia, gupti and knives. The complainant in his report stated that the information communicated to him by Chunilal Hiralal was that six persons whose names were given to him were present in Court. Then after receiving the information, he along with Chunilal Hiralal , Somabhai Versibhai and one Pratapji Rupaji went to the place of incident with a hand lorry and lifted the dead body and at that time they found that there were 8 to 10 wounds on the body. The body of the deceased was taken to the civil hospital, Viramgam. Thereafter, he lodged complaint at Exh. 180 in the hospital. This witness is not an eye witness but as stated above the incident has been informed by Chunilal Hiralal. It is admitted by this witness that at the time when he was informed of the incident by Chunilal Hiralal, his mother was CR.A/289/1987 3/9 JUDGMENT also there and his wife was also there. These two ladies have not been examined. Thus, the learned trial Judge was of the opinion that the statement as given by Chunilal Hiralal to this witness could only be possibly to be corroborated if these two ladies were examined but none of these witnesses having been examined, a caution was put by the trial Court. Further the trial Court has got apprehended on the fact that this witness admitted that even the mother and his wife did not react in the natural manner having heard about the death which according to the learned trial Judge was an improbable conduct. Thus the learned trial Judge has disbelieved that at the time when the information was communicated to the complainant by Chunilal Hiralal, the ladies and other witness were present. The trial Judge has addressed its judgement on the question of identity of the accused persons. The defence has raised a question that the assailants were not known to the deceased and they were apprehended on suspicion only. The trial Court has addressed its judgement on the question to the evidence of Babuji Khodaji who is not known to the father of accused No. 1, though the name of Rasulbhai is given as father of accused No. 1. In F.I.R. the complainant has given the name of accused No. 1 and he has not given name of his father. Thus, if he knew name of father of the accused No. 1, there was no reason why the same name was missing from the first information report. The learned Judge said that possibility cannot be ruled out that accused No. 1 was arrested because of similarity in name. The arrest of accused No. 1 was doubted by the learned trial Judge on the ground that the accused was apprehended by Central Reserve Police. In F.I.R. it was not stated that accused No. 1 was arrested red handed by Jamadar Vinodrai Maganlal. The statement of C.R.Ps. has not been CR.A/289/1987 4/9 JUDGMENT recorded. They have not been examined as witnesses. If the person who has arrested accused No. 1 has not been examined, then his apprehending itself becomes a subject matter of doubt. The learned trial Judge has observed that “I fail to understand as to why the statements of the persons of C.R.P. were not recorded and why they were not examined as the witnesses”. 3. To change the prosecution story, further statement of Babuji Khodaji was recorded and it is stated at that time that the police of Viramgam Town Police Station were also there in apprehending accused No. 1 together with the C.R.P. persons. Thus, there is positive attempt on the part of the prosecution to improve the version by stating that it was not the C.R.P. persons but the police personnels who apprehended accused No. 1. Thus the improved version of arrest of accused No. 1 has put the learned trial Judge on guard regarding arrest of accused No. 1. Therefore, the complainant's evidence has been considered by the learned trial Judge as the improved version. The learned trial Judge has further noted that this witness has improved his further story and his whole statement is found missing. In material detail of P.S.I. Mr. V.B. Jadeja – PW No. 13 has stated in his cross-examination that he inquired from Chunilal and thereupon Chunilal gave the names of assailants and he told Chunilal that he knows them. But P.S.I. Mr. Jadeja has further stated that the complainant has not stated before him the aforesaid statement. P.S.I. Mr. Jadeja has also stated that the complainant has not stated before him that deceased expired near Sarvoday Ginning, Viramgam. P.S.I. Mr. Jadeja has also stated that the complainant had not stated before him that the persons of Viramgam Town Police and the persons of CR.A/289/1987 5/9 JUDGMENT C.R.P. were there in apprehending accused No. 1. Thus the improved story of incorporation of police personnels had gone against the complainant. The learned trial Judge has observed that this complainant has not stated in his complaint what has been stated by him in his police statement. The learned trial Judge has also noted that upon inquiry Chunilal gave names of the assailants and Chunilal also stated that he knows them. This statement was disclosed for the first time in his evidence in Court. The story that the persons of Viramgam Town Police were also there in apprehending accused No. 1 is stated in subsequent statement of the complainant. Thus, these two statements have gone against the persuasiveness of the complainant's story. The complainant has stated that he does not know the father's name of accused No. 1 and the locality where he resides. Thus the identity of accused No. 1 having called upon fairly in the F.I.R. goes against the claim of the complainant. The complainant has also stated that he does not know the name of the father of accused No. 2. He does not know the name of accused No. 4. The complainant has further stated that he does not know the address of the accused persons. The complainant has also stated that at the time he gave information he was not knowing the name of the accused No. 6 and was not knowing the address of accused No. 6. The learned trial Judge was of the opinion that considering the fact of mere relationship of Chunilal Hiralal was son of maternal uncle it is not safe to rely upon the evidence of the complainant. The complainant in this case is an informant was near relative. Then the learned trial Judge has considered the evidence of Chunilal Hiralal. According to the testimony of this witness he had gone to Pan Chakla for his domestic work on 20.5.1985 at 10.30 and while he was returning he saw the CR.A/289/1987 6/9 JUDGMENT deceased Dashrathji Khodaji and Dashrathji Khodaji also saw him and on seeing him Dashrathji Khodaji got down from the cycle and both were coming towards their residential locality. This witness also stated that when they arrived near the entrance of Jetvad street about six muslims armed with dharia, gupti and knives assaulted the deceased and that he raised shouts and thereupon Jamadar Vinodrai and persons of C.R.P. arrived there. Accused No. 1 was apprehended armed with a knife and accused Nos. 2 to 6 ran away. He stated that he ran and went to his locality and informed the complainant Babuji Khodaji and the four persons i.e. 2 aforesaid persons and Somaji Versibhai and Pratapji Rupaji came to the place of incident and lifted the deceased and put him in hand lorry and took him to the Civil Hospital. This witness has been contradicted with the police statement. This witness has not been believed by the learned trial Judge being contradicted with the police statement that having told that Babuji Khodaji told him that he will lodge the complaint. The P.S.I. Mr. Bhatia has also stated that this witness has not stated before him that he left the dead body at Civil Hospital when he went home. This witness has not informed the P.S.I. Mr. Bhatia that Babuji told him that he knows all the assailants. Thus, it appears that, according to the trial Court, this witness has also improved the story. The trial Court has disbelieved the testimony of PW-8 Bachubhai Shivabhai wherein in cross- examination he admitted that he did not inform the police about the names of the assailants. This part of the statement goes against him. According to the learned trial Judge he did not consider his going to the residence at the time of incident. Name of this witness is not incorporated in F.I.R. And the statement was recorded on 22.5.1985 much belatedly. Thus, CR.A/289/1987 7/9 JUDGMENT the trial Court has not believed the testimony of this witness. PW-9 Somabhai Versibhai stated that when he was at his residence, Babuji and Chunilal came to his residence and informed him that Dashrathji has been assaulted and that they intend to carry him to the hospital. This witness stated that the name of the assailants were not disclosed and therefore any information communicated to him by the other witness is of no consequence. 4. In the aforesaid circumstances, the trial Court was of the opinion that the prosecution story is not worth of credit. 5. The learned Additional Public Prosecutor assailing the judgement of the learned trial Judge has stated that it was a case where accused No. 1 was arrested immediately and there was an eye witnesses. Therefore, the trial Judge was not correct in acquitting the accused. 6. The learned counsel for the defence submitted that when the complainant has failed to identify all the accused persons in the F.I.R. then this fact goes to the root of the matter that he had not known definite identity of majority of the accused persons. Accused persons were not thus known to witnesses and therefore the identity of accused is in doubt, the complainant being not an eye witness, he having been informed only by Chunilal who is a near relative and alleged to be one who was walking with the deceased having been assaulted and he having not tried to rescue the deceased, goes to the root of the matter. 7. We have heard the learned counsel for the parties CR.A/289/1987 8/9 JUDGMENT and gone through the papers on record. We are of the considered opinion that if the question of identity of the accused is in doubt and as is the case and this being doubted that the accused muslim persons who were the actual assailants, the judgement of the trial Court is not liable to be reversed. Majority of the accused who have been involved in the FIR, their place of residence has not been stated. Accused Nos. 2 to 6 are said to have run away from the scene of occurrence and therefore, having gone they were possibly arrested because of mistaken identity. 8. As regards arrest of accused No. 1 sufficie it to say that the person who is said to have been arrested has not been examined by the prosecution. A false case has been put by the prosecution that police personnels were there at the time of arrest of accused No. 1. This attempt on the part of the prosecution to improve the prosecution case knocks the bottom of the prosecution because there was no involvement of any police person in arrest in the initial case. If there was a person who apprehended accused No. 1 then the same person should have been examined. In not examining that vital witness the prosecution has seen the risk of self condemnation. 9. This is a case which is said to be a fall out of earlier communial violence and in case of communal violence it generally happens that the people are roped in falsely these persons without naming correct identity has been involved. In that background if the trial Court has recorded the findings of acquittal then this Court would be slow to consider when full identity of the accused was not disclosed. The alleged eye CR.A/289/1987 9/9 JUDGMENT witness having not correctly deposed at material point of time the correct information goes to the root of the matter and therefore we are in agreement with the findings of the trial Court and would not venture to disturb the same in an acquittal appeal more particularly when accused No. 1 who is said to be 16 years of age according to prosecution and all others had fled away. This makes us to believe that the prosecution had not come with clean hands and thus the treatment given by the learned trial Judge is in conformity of the criminal jurisprudence as it stands today. In that view of the matter, no interference is call for with the findings of the learned trial Judge in an acquittal appeal. Hence the appeal is dismissed. Bail bonds of the accused are cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)