CR.A/348/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 348 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 - Appellant Versus ANWARMIYA M SHEIKH & 5 - Opponents ================================================= Appearance : MS. MITA PANCHAL, LD. APP for Appellant: (MR MC KAPADIA) for Opponents : 1, 3 - 4. MR NM KAPADIA for Opponents : 1,3 - 4. NOTICE SERVED for Opponents : 5 - 6. ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal is filed by the State against the judgment & order of acquittal dated 16/2/1987 passed by learned Addl. CR.A/348/1987 2/4 JUDGMENT Sessions Judge, Baroda, passed in Sessions Case No. 204 of 1986. 2. The facts involved in the present appeal are as under: According to the case of the prosecution, the respondents / accused formed an unlawful assembly with the common object of robbing and burning properties of Hindu community. And with this intention they came with arms and set on fire to the properties and vehicles of the informant and entered her house by breaking open the window and took away cash worth Rs.23,300/-. The complainant therefore filed complaint for the offence punishable under section 143, 147, 148, 149, 152, 332, 336, 435, 436, 395, 506 (2) of Indian Penal Code read with section 135 of Bombay Police Act. 3. After considering the case of the prosecution the trial Court gave following reasons for recording judgment of acquittal. 3.1 There are general allegations that a mob of 30 to 35 persons came and committed aforesaid offences, without pointing out any specific role to any particular accused. Accused No. 1,2, 4, 5 were identified in the Court. 3.2 Learned trial Judge had held that the deposition of complainant Tarunaben can not be relied upon as it was not truthful. She had gone inside the house and had closed the door. No identification parade was held. Learned trial Judge found that deposition of rest of the witnesses were also not reliable. 3.3 No independent witness was examined and there were contradictions in the deposition of witnesses. Learned trial CR.A/348/1987 3/4 JUDGMENT Judge found that the prosecution could not prove that the accused were present in the mob and even if they were present, it can not be said that they had committed any offence in furtherance of the conspiracy. 4. Learned APP arguing the appeal assailed the foundation of reasonings adopted by learned trial Judge in acquitting the respondents / accused. Learned APP urged that the parties were not unknown persons. When the mob had come to make an assault the complainant had an opportunity to identify the assailants. In view of the evidence of the eye witnesses the Court should not have discarded the prosecution case. 5. Per contra learned counsel for the respondents / accused urged that the incident was said to be occurred at a time when darkness has set. It was a mob attack in darkness. At such point of time it is not only not possible but rather impossible to consider that the identification was possible. 6. We have heard learned counsels of the parties and have given our thoughtful consideration. The best case of the prosecution is that a mob came. Capacity to identify the accused is reflected in the conduct of the prosecution where no identification parade was held. It only reflects the weakness of the prosecution. 7. The witnesses have alleged to have identified few of the accused in Court. It is settled principle of law that unless corroboration by earlier identification, the identification in Court is next to no value. Thus on such identification no reliance could be placed by the Court. The trial Court has thus rightly not placed any reliance on the testimony of the prosecution witnesses. CR.A/348/1987 4/4 JUDGMENT 8. There is no reliable evidence available on record to base the conviction. The trial Court has rightly acquitted the accused of the charges levelled. We, in the present appeal are not persuaded to disturb the findings of the trial Court. In the result the judgment & order of acquittal passed by the trial Cort is upheld. 9. Consequently, we dismiss the appeal. The bail bonds of the accused stand cancelled. Registry is directed to send record & proceedings to the trial Court forthwith. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn