CR.A/53919/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 539 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 GIRA NATHUBHA MOBATSINH STRUCK OFF AS PER CT'S ORDER AND ANOTHER ========================================= =Appearance : MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Appellant MR AD SHAH for Opponent No.2 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed against judgement and CR.A/53919/1987 2/4 JUDGMENT order passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 64 of 1984 by which the learned trial Judge acquitted the accused of the charges framed against them. Briefly stated the facts of the prosecution are that complainant Noormohammed Jhaku was sleeping at Bhatia Railway Station near hotel Mahmadbhai. Thereafter, he suddenly woke up due to noise of quarrel and saw his brother Osman was standing near the shop of one Ramjibhai Valand and he saw Darbar Natubha and Govubha of Bathel village along with ten other persons were forcibly asking the persons to close their shops and accused also beating his brother with stick. Therefore, the complainant reached there to save his brother and found that Natubha and other persons armed with deadly weapons like iron pipe gave one blow on the left side temple of the head of his brother and therefore his brother fell down. The other accused persons gave stick blows on the hand and other parts of the body. Thereafter, witness Ibrahim intervened to save the brother of the complainant. However, he also sustained injuries on his head by stick. Even Bhikubha who was also standing near his house also tried to intervene to save the brother of the complainant and therefore he also received injuries on his head by stick as well as pipe. Thereafter, the victim and the other injured persons, namely, Ibrahim and Bhikubha were taken to Khambalia hospital and thereafter Ibrahim was taken to Irvin hospital for further treatment. Subsequently, FIR was lodged on 12.6.1984 at 3.30 p.m. at Khambalia Police Station being C.R. No. I-62 of 1984 under Sections 323, 147, 148, 149 of the IPC and Section CR.A/53919/1987 3/4 JUDGMENT 135 of the Bombay Police Act. Thereafter, during investigation charge under Sections 307 and 324 of the IPC was added. Charge under Section 25(1)(a) of the Arms Act was also added. On 14.6.1984 all the accused were arrested. Chargesheet was filed before the competent Court. The case was committed before the Sessions Judge, Jamnagar, under Section 209 of the Criminal Procedure Code. The case was tried. The learned trial Judge after hearing both the sides acquitted the accused persons of the charges on the ground of benefit of doubt by order dated 14.5.1987. Against the aforesaid order of the learned trial Judge acquitting the accused of the charges levelled against them, the State has filed present appeal against original accused Nos. 1 and 2 only. The appeal against original accused No. 1 Gira Natubha Mohabatsinh abated as per the order dated 17.8.1989. Hence the present appeal is only against original accused No. 2 – Gira Vovubha Hemubha. So far as respondent No. 2, it is alleged that he has given axe blow to Noormohamad. The main injury has been caused by accused No. 1 by firing tamancha. Appeal against accused No. 1 has been abated. So far as respondent No. 2 is concerned, two witnesses, namely, Ibrahim and Osman Jhaku have given name of the accused person. However, the prosecution has failed to establish that the accused were known to the complainant or the witnesses and in absence of CR.A/53919/1987 4/4 JUDGMENT test identification parade more particularly when the names and distinction of other accused persons were not revealed, probability of false implication of accused person cannot be ruled out. Therefore, considering the said evidence, the learned trial Judge has rightly acquitted the accused persons. Per contra the learned A.P.P. has submitted that the learned trial Judge has not considered the facts properly that there were more than ten persons armed with deadly weapons and the prosecution has established the contention of unlawful assembly. Therefore, no separate role is required to be seen. We have given our thoughtful consideration to the facts of the case. Considering the fact that identity of the accused has not been established by the prosecution, benefit of doubt has been given by the learned trial Judge while acquitting the accused persons. We are, therefore, of the considered opinion that the learned trial Judge has rightly acquitted the accused of the charges. The order of learned trial Judge does not require any interference. The appeal is therefore dismissed. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar