CR.A/586/2000 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 586 of 2000 With CRIMINAL APPEAL No. 745 of 2000 With CRIMINAL APPEAL No. 749 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ========================================================= BHAYALU @ SANJAYBHAI VINODRAI BHATT & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 586 of 2000 MR BS SUPEHIA, Amicus Curiae, for Appellant(s) : 1 - 2. Ms. Hansa Punani, APP, for Opponent(s) : 1, Criminal Appeal No. 745 of 2006 & 749 of 2000 Mr. M.M. Tirmizi, for the appellants Ms. Hansa Punani, APP, for the opponent ========================================================= CR.A/586/2000 2/9 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 10/11/2008 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals are filed by the appellants against judgement and order passed by the learned trial Judge on 30.5.2000 in Sessions Case Nos. 299 of 1998 and 258 of 1999 whereby learned Judge convicted accused Nos. 2 and 3 for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced them to rigorous imprisonment for life and fine of Rs. 1000/- each, and in default, to undergo simple imprisonment for three months. Learned Judge further convicted the accused for the offence punishable under Section 201 of IPC and sentenced to suffer simple imprisonment for five years and fine of Rs. 500/- each and in default to undergo simple imprisonment for one month. All the sentences are ordered to run concurrently. 2. PW – 1 Babubhai Roopabhai Khada, in his First Information Report, alleged that two accused came to his galla. Prior to that, deceased along with his cousin was there. Six persons arrived at the scene of offence and assaulted the deceased. On this FIR investigation started. After investigation, CR.A/586/2000 3/9 JUDGMENT charge-sheet was filed against six accused persons. One of them, namely, Hari Om Bapu – accused No. 1 died during the course of trial. Out of five accused persons, three accused persons were acquitted by learned trial Judge and accused No. 2 Bhailu @ Sanjay V. Bhatt and accused No. 3 Vipulbhai @ Dayavan Hariprasad Pandya were convicted and sentenced to undergo rigorous imprisonment for life. 3. Learned counsel for the appellants, assaulting judgement, stated that the case is based on direct evidence of three eye witnesses, namely, PW-1 Babubhai Roopabhai Khada; PW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Chauhan. Criticizing the statement of three eye witnesses, learned counsel for the appellants submitted that PW-2 Pratapsinh Dhirubhai is alleged to be the cousin of the deceased. The assailants were not known to any one of the alleged eye witnesses and therefore no name was given in the FIR. Suspect accused were arrested and then identification parade was conducted and only two appellants who were identified at the identification parade. Rest of the accused were not subject matter of identification. 4. PW-2 Pratapsinh Dhirubhai in his statement has admitted in following terms: “......Ane te vqte hu> babuwa[ Ane c>duwa[ sa4e gyela. Ane pkDaya Tyare me> hirAaem bapu temj tenI sa4e pkDayel bIJa VyiktAae ne tarapur laekApma> Jaeyel te smye marI Saa4e babuwa[ t4a CR.A/586/2000 4/9 JUDGMENT c>duwa[ p` hta. PaaelIse marI hajrIma> pkDayel VyiktAaena nam pu0el nhI. te vat qrI 0e ke pkDayel VyiktAaema> ivpulwa[ Ane s>jywa[ na nam mne pealIs marfte Ja`va m5ela. Ae vat qrI 0e ke hirAaembapu sIvay je bIja VyiktAae pkDayela hta tene Aga] me> kyarey Jaeyel n4I. “ 5. In view of the aforesaid statement, learned counsel for the appellants submitted that if the accused before put to the identification parade were shown to the witness then the identification parade is not valid. This not only takes away the rigour of the prosecution case but also mala fide nature of the investigation wherein they were trying how to implicate the appellants. In view of this fact, learned counsel for the appellant submitted that the prosecution is condemned. 6. It is further case of the learned counsel for the appellants that according to PW-1 Babubhai Roopabhai Khada who was the eye witness, on the scene of offence two vehicles came whereas according to PW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsin Parshottamdas Chauhan only one vehicle came to the place of incident. Thus, there is a major contradiction in the story given by the prosecution. According to PW-1 Babubhai Roopabhai Khada six persons came to the scene of offence whereas according of PW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Chauhan four persons came there. This has resulted in altering the prosecution story. 7. Learned counsel for the appellants has further CR.A/586/2000 5/9 JUDGMENT submitted that PW-3 Prabhatsinh Parshottamdas Chauhan has not identified the accused even in Court. Therefore, his testimony is of no consequence. PW-2 Pratapsinh Dhirubhai has admitted to have seen the accused persons when they were in police lock up before he is put to identify them. PW-1 Babuphai Roopabhai Khada has not named two eye witnesses, PW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Chauhan by name. He only says that uncle's son of the deceased was present who came along with the deceased to his pan shop. This is not the story given by either pW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Chauhan. 8. Learned counsel for the appellants further urged that PW-2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Cauhan never made any attempt to lodge FIR. So much so PW-3 Prabhatsinh Parshottamdas Chauhan did not inform anybody about the incident until next morning when he was contacted. Thus, he ignored the incident as having not happened in any fashion. PW-2 Pratapsinh Dhirubhai who was cousin of the deceased never bothered to go to the police station to lodge FIR which is an unnatural conduct. Not only this, if he was there when the persons came, he should have intervened. He did not intervene when the persons came as he was not present. 9. As regards testimony of PW-1 Babubhai Roopabhai Chada, it is a bald statement. That he had identified the accused after having shown the accused in police lock up. He did not specify as to which accused participated and in what CR.A/586/2000 6/9 JUDGMENT manner. In this fashion, this testimony of PW-1 would not inspire confidence because such a statement can be given by anybody and mere identification parade shown by the police does not guarantee that he is the person who has seen the incident. Further he had not named the eye witnesses. A new story has been tried to built up by said two set of persons namely PW-1 Babubhai Roopabhai Khada on one part and PW- 2 Pratapsinh Dhirubhai and PW-3 Prabhatsinh Parshottamdas Chauhan on another part. Thus, learned counsel for the appellant has urged that the story of the prosecution does not inspire confidence and in this view of the matter it is not required to give credence of the statement of the eye witnesses. Therefore, the accused are entitled to be acquitted. 10. Learned counsel for the appellant has further stated that accused No. 2 Bhailu @ Sanjaybhai V. Bhatt was arrested on 29.4.1998. Accused No. 3 Vipulbhai @ Dayavan Hariprasad Pandya was arrested on 15.5.1998. Identification was conducted on 10.6.1998. Yet accused must be identified. The identification which inspires no confidence. 11. Per contra: learned A.P.P. submitted that the witnesses identified the accused. Notwithstanding the fact that the witnesses had admitted such information in the statement of eye witnesses when they gave in the Court, this was a cold- blooded murder. The accused had one vehicle and assaulted the deceased. 12. We have given our thoughtful consideration. We are CR.A/586/2000 7/9 JUDGMENT of the considered opinion that the identification put forward by the prosecution is a shaky one. It is unexplainable as to why the identification was conducted late. Further PW-2 Pratapsinh Dhirubhai admits that accused persons were shown in the police lock up. Then it shakes the very foundation of the identification. If the testimony of PW-1 Babubhai Roopabhai Khada is considered then the testimony of PW-2 Pratapsinh Dhirubhai of the occurrence of incident is different what he himself describes. Even the presence of PW-2 is doubtful on the scene of offence. It is more doubtful in the background where PW-2 did not at all intervene while his own cousin was being assaulted. He is not going to the police to lodge complaint knocks the bottom of rigour of his testimony. In the background that he admits that he had shown the accused in the identification parade, his identification is of no consequence and this has to be discarded. PW-3 Prabhatsinh Parshottamdas Chauhan has not identified the accused in Court. In any case, his testimony is so shaky and so infirmed that he did not immediately inform anybody until next morning and he tries to come to the terms of the prosecution. Thus the testimonies of PW-2 and PW-3 are discarded. 13. Now remains the testimony of PW-1 Babubhai Roopabhai Khada. He has not named PW-2 by name. He has only stated that the deceased came to his place with his uncle's son. It is not the story of PW-2 and PW-3 at all because according to them Pratapsinh came alone. Thus, the prosecution has condemned itself regarding the presence of PW-2 Pratapsinh Dhirubhai. That the version of this witness that two vehicles came and other two eye witnesses seen that CR.A/586/2000 8/9 JUDGMENT only one vehicle was there, The prosecution story is unreasonable. This witness says that he had left the place without intervening is also unbelievable because the incident occurred at the place and he did nothing. In any case, if this testimony is read in conjunction with testimonies of PW-2 and PW-3 then they are shaky which result from no corroborative evidence available on record with the testimony of PW-1 because according to other witnesses, the deceased was taken away by the accused in their car. It is not the case stated by this witness. Therefore, the testimony of this witness is not liable to be accepted. We have held that testimonies of all the eye witnesses suffer from infirmity and are not accepted. In that background, the prosecution story fails. We are not in agreement with the findings recorded by learned trial Judge because none of the findings would inspire confidence to sustain the conviction. That being the position, the conviction as recorded by learned trial Judge by his judgement dated 30.5.2000 against the accused is required to be quashed and set aside. 14. In the result, appeal No. 586 of 2000 is allowed. Conviction and sentence recorded against the accused by the learned trial Judge by judgement and order dated 30.5.2000 in Session Case Nos. 299 of 1998 and 258 of 1999 is quashed and set aside. They are behind the bars. They should be released forthwith if not required in any other case. One of the two accused filed two separate Criminal Appeals, namely, one through jail i.e. Criminal Appeal No. 586 of 2000 and another Criminal Appeal No. 745 of 2000 through advocate. Since the appeal filed through jail by different accused is decided by the CR.A/586/2000 9/9 JUDGMENT common judgement being against the same judgement passed by the learned trial Judge, separate appeal i.e. Appeal No. 745 of 2000 filed by one of the accused against the same judgement is not required to be considered. It stands disposed of. 15. Appeal No. 749 of 2000 is accepted and allowed because conviction and sentence as recorded by the learned trial Judge has been quashed and set aside. The complicity of the vehicle in the crime is not found. In that view of the matter, the same is liable to be restored to the registered owner of the vehicle. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J)