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CR.A/630/1998 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 630 of 1998
With
CRIMINAL
APPEAL No. 803 of 1998
With
CRIMINAL
REVISION APPLICATION No. 511 of 1998
With
CRIMINAL
REVISION APPLICATION No. 578 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
HONOURABLE
MR.JUSTICE D.N.PATEL
=========================================================
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 ?
=========================================================
FAROOQ
@ ASHISH HABIB PARMAR & 1 - Appellants
Versus
STATE
OF GUJARAT - Opponent
=========================================================
Appearance in
Criminal Appeal No.630 of 1998 :
ABATED
for Appellant No.1.
MR
JM PANCHAL for Appellant No.2.
MS D.S.PANDIT, APP for the
Opponent.
Appearance
in Criminal Appeal No.803 of 1998 :
MS
D.S.PANDIT, APP for the Appellant.
MR
JM PANCHAL for the Opponents.
Appearance
in Criminal Revision Application No.511 of 1998 :
MS
D.S.PANDIT, APP for the Petitioner.
MR
JM PANCHAL for the Respondents.
Appearance
in Criminal Revision Application No.578 of 1998 :
M/S.THAKKAR
ASSOCIATES for the Petitioner.
MR
JM PANCHAL for Respondent Nos.1 to 6.
MS D.S.PANDIT, APP for
Respondent No.7.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
and
HONOURABLE
MR.JUSTICE D.N.PATEL
Date
: 22/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.N.PATEL)
1. Both
the aforesaid Criminal Appeals as well as Criminal Revision
Applications have been preferred because of conviction of some of the
accused; acquittal of some of the accused; for expunging the remarks
against the learned Special Public Prosecutor. Criminal Revision
Application No.578 of 1998 has been preferred by the original
complainant against the judgement and order of acquittal of some of
the accused, which has been passed by learned Additional Sessions
Judge, Kheda at Nadiad dated 6th July,1998 in Sessions
Case Nos.82 of 1997 and 133 of 1997.
2. Criminal
Appeal No.630 of 1998 has been preferred by the original accused
Nos.4 and 5 as they are convicted for life imprisonment for an
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code and to pay a fine of Rs.10,000/-. Accused Nos.1,2,3
and 6 were acquitted from the charges levelled against them.
Therefore, State has preferred an acquittal appeal bearing Criminal
Appeal No.803 of 1998 against accused Nos.1, 2 and 3 only. There is
no Appeal preferred by the State against acquittal of accused No.6.
Criminal Revision Application No.511 of 1998 has been preferred by
the State for expunging remarks against Special Public Prosecutor
appointed by the State, especially in para-102 onwards in the
judgement passed by the Trial Court and Criminal Revision Application
No.578 of 1998 has been preferred by the original complainant against
the judgement and order of acquittal passed in Sessions Case No.82 of
1997 (registered against accused Nos.1 and 2) and in Sessions Case
No.133 of 1997 (registered against accused Nos.3, 4, 5 & 6) by
Learned Additional Sessions Judge, Kheda at Nadiad.
3. If
the facts of the prosecution are unfolded, they are summarised, in
short, as under:
It
is a case of the prosecution that on 31st May,1996 at
about 9:45 a.m., Prafulkumar Bhikhubhai Patel was assaulted. Knife
injuries were caused by the accused. This incident was seen by some
of the eye-witnesses i.e. P.W.Nos.4, 5 and 7. There is also
allegation of conspiracy. Investigation was carried out and these
accused were arrested and charge-sheeted. Sessions Case No.82 of 1997
was instituted against accused Nos.1 and 2, whereas, Sessions Case
No.133 of 1997 was instituted against accused Nos.3,4, 5 and 6. Two
accused have not yet been arrested, as per case of the prosecution.
Incident had taken place in city of Nadiad. Upon evidence, accused
Nos.4 and 5 have been convicted, whereas, rest of the accused have
been acquitted.
4. It
is submitted by the learned counsel for the appellants that accused
no.4 has expired during the pendency of the appeal before this Court.
Therefore, this conviction appeal is left out only for accused no.5
and acquittal appeal preferred only for accused Nos.1, 2 and 3.
Criminal Revision Application No.578 of 1998 is preferred by the
original complainant and another Criminal Revision Application No.511
of 1998 is preferred for expunging remarks against the Special Public
Prosecutor.
5. We
have heard learned counsel Mr.J.M.Panchal for the appellants in
Criminal Appeal No.630 of 1998 (conviction appeal) and on behalf of
respondents of Criminal Appeal No.803 of 1998 (acquittal appeal) and
on behalf of the respondents in both Criminal Revision Applications.
It is submitted by them that prosecution has failed to prove the
case, beyond reasonable doubts, against accused No.5. This aspect of
the matter has not been properly appreciated by the Trial Court.
There is no live link between accused no.5 and death of the deceased.
There is no evidence at all against accused No.5, much less, by
eye-witnesses ? (P.W.Nos.4, 5 and 7) or by P.W.Nos.9, 12 and 13.
All these witnesses have turned hostile. In fact, there is no
eye-witness nor panchas have seen the drawing of the panchnama.
Neither any of the weapon has been recovered. Even so called test
identification parade as alleged by the prosecution, is not proving
the guilt of accused No.5 and, therefore, judgement and order passed
by the Trial Court convicting accused NO.5 deserves to be quashed and
set aside.
6. Learned
counsel for the accused submitted that prosecution has given an
application below Exh-75. Learned counsel for the accused Nos.1,2 &
3 submitted that there is no evidence against these accused. No
prosecution witnesses have linked them with an offence. Accused No.2
is a lady accused and is a wife of business man. Learned counsel for
accused Nos.1, 2 & 3 submitted in detail that loan amount taken
by them from Natpur Co-Op. Bank Ltd. Nadiad, and detailed payment
schedule and withdrawal of the amount has been stated by them and,
therefore, it is submitted that withdrawal of the amount has nothing
to do with the payment of the money to the other co-accused. This
aspect of the matter has been properly appreciated by the Trial Court
and, therefore, they have been rightly acquitted for all the charges
levelled against accused Nos.1, 2 and 3 and, therefore, the order of
acquittal may not be altered, quashed and set aside.
7. Looking
to the overall evidence taken on record, no eye-witnesses or
panch-witnesses have supported the case of the prosecution and even
if, the dropped witnesses have been examined, it would not have been
helpful to the prosecution because none of them is an eye-witness. It
is also submitted that conversation between husband and wife i.e.
accused Nos.2 and 3 is also privileged communication, as per Indian
Evidence Act,1872. Therefore, even if payment slip would have been
brought on record, it would not be helpful to the prosecution.
Learned counsel for the appellants-accused has also narrated, in
detail, about the evidence recorded and submitted that no error has
been committed by the Trial Court in acquitting accused Nos.1, 2 and
3 and, therefore, Criminal Appeal filed by the State as well as
Criminal Revision Application filed by the original complainant
deserve to be dismissed.
8. We
have heard learned Additional Public Prosecutor appearing for the
State in Criminal Appeal No.803 of 1998, which has been preferred
against the acquittal of accused Nos.1, 2 & 3, who has mainly
submitted that even if the eye-witnesses have turned hostile, then
also, there is sufficient material on record, which proves the case
beyond reasonable doubt against accused Nos.1, 2 & 3. On the
basis of circumstantial evidence, there is an allegation of
conspiracy against the accused Nos.1, 2 & 3. These accused have
hatched conspiracy to cause death of the deceased. Likewise, it is
submitted by learned Additional Public Prosecutor that though panch
witnesses have turned hostile, with the help of police witnesses,
panchnama of scene of offence, seizure of the Maruti Car, recovery of
several items from the house of accused No.3, offence have been
proved beyond reasonable doubt. This aspect of the matter has not
been properly appreciated by the Trial Court and, therefore, order of
acquittal against accused Nos.1, 2 & 3 deserves to be quashed and
set aside.
9. Learned
Additional Public Prosecutor submitted that accused Nos. 4 and 5 are
the persons, who are engaged by accused Nos.1, 2 & 3. When
accused Nos.4 and 5 have been convicted by the Trial Court, accused
Nos.1, 2 & 3 ought to have been convicted mainly because they are
the persons, who hatched the conspiracy and hired accused Nos.4 and
5. It is submitted by learned Additional Public Prosecutor that the
Trial Court has passed several remarks against Special Public
Prosecutor appointed by the State, running from para- 102 onwards in
the impugned judgement and order passed by the Trial Court. In fact,
witnesses were dropped and that is the main reason for criticizing
Special Public Prosecutor. Learned Additional Public Prosecutor
pointed out from the memo of Criminal Revision Application No.511 of
1998 that the dropping of the witnesses have been fully explained and
there are convincing reasons for prosecution for dropping them and,
therefore, remarks passed in impugned judgement and order deserve to
be expunged. Special Public Prosecutor is a Navigator. There is no
comment of malafide against the Special Public Prosecutor. It depends
upon wisdom of Special Public Prosecutor, as to who are to be
examined and who are to be dropped. When eye-witnesses are not
supporting the case of the prosecution and when he has opportunity to
meet the prosecution witnesses, in his best judgement, he has
dropped the witnesses. This aspect of the matter has not been
properly appreciated by the Trial Court, and, therefore, remarks
passed against the Learned Special Public Prosecutor in the impugned
judgement and order deserve to be expunged.
10. We
have heard learned counsel appearing for the original complainant in
Criminal Revision Application No.578 of 1998, who submitted that the
Trial Court has not appreciated the evidence laid down by the
prosecution against accused Nos.1 to 3. Though eye-witnesses have
turned hostile, there is enough evidence proved beyond reasonable
doubt against accused Nos.1 to 3. In fact, because of conspiracy
hatched by accused Nos.1 to 3, accused Nos.4 and 5 were hired to
commit murder of the deceased. Learned counsel for the original
complainant further submitted that there are no justifiable reason
for dropping witnesses. Had the witnesses been examined as stated in
both the charge-sheets, truth would have come out and all the accused
would have been adequately punished and, therefore, Criminal Revision
Application may be allowed.
11. We
have heard the learned counsel for both the sides and perused the
evidence on record. Learned counsel for both the sides have read and
re-read evidence of the various prosecution witnesses. P.W.No.1 is
Dr.Shantiswarup Ramjidas, who is examined at Exh-16, is a Doctor at
Utkarsh Hospital. It has been stated by him that he had examined
Prafulbhai, who was semi-conscious and, three injuries were observed
by him as stated in his deposition. He examined Prafulbhai on 31st
May,1996. Incident had taken place on 31st May,1996 at
9:45 a.m. in the city of Nadiad. It is stated by this witness that
Prafulbhai had stated to him that some persons alighted from Maruti
Car and assaulted him. No name of any person was given by Prafulbhai,
who expired later on. No narration of any accused was given to him.
There were three incised wounds and, thereafter, he advised to shift
the patient to V.S. Hospital or Heart Hospital at Nadiad.
12. P.W.No.2
– Kiranbhai Bhikhubhai Patel, is examined at Exh-19, who is a brother
of the deceased. Looking to the deposition of this witness, it
appears that he is not supporting the case of the prosecution. So far
as connection of accused with the offence is concerned, he is not an
eye-witness at all. He has no knowledge about the accused. He is the
original complainant, who has filed F.I.R. on 31st
May,1996 at 14-15 hours (Exh-20). Looking to F.I.R., it has been
stated that three persons came in Maruti Car and they assaulted
Prafulbhai and caused injuries by sharp cutting instrument and,
thereafter, ran away. Thereafter, his brother was taken to Mission
Hospital at Nadiad and, thereafter, his brother was transferred to
V.S.Hospital at Ahmedabad. On the basis of hearsay evidence, F.I.R.
was filed.
13. P.W.No.3-
Shri Kishan Ishwarbhai Marwadi Exh-21, is a painter and who has
painted number plate, which was found to be fake on the vehicle,
which is used in committing murder. He identified accused No.4 in
Test Identification Parade and as per his deposition, accused No.4
had come for preparing number plate of Maruti Car. Accused No.5 was
not been identified by this witness. Looking to the cross-examination
of this witness, it has been stated in cross-examination especially
in para-9 that this witness had opportunity to see accused No.4,
prior to holding of Test Identification Parade. Even otherwise also,
accused No.4 has expired and for accused No.4, Criminal Appeal No.630
of 1998 has been abated and, therefore, we are concerned only with
accused No.5 in Criminal Appeal No.630 of 1998 and as per deposition
of this witness, it has been stated by him that 3 to 4 persons had
come in Maruti Van, but, he has identified only accused No.4. Thus,
accused No.5 was not identified by this witness.
14. Prosecution
has examined P.W.No.4- Nayankumar Chandrakantbhai Amin at Exh-22.
Looking to his deposition, he is not supporting the case of the
prosecution. It is alleged by the prosecution that this witness is an
eye-witness. Likewise, prosecution has examined P.W.No.5-
Jitendrakumar Suryakantbhai at Exh-23. It is alleged by prosecution
that he is an eye-witness, but, he is also not supporting the case of
the prosecution. He knows only the fact that Prafulbhai was
assaulted on 31st May,1996, but, he is not saying anything
about any accused, who has assaulted the deceased.
15. Likewise,
prosecution has examined Kamleshbhai Indubhai, P.W.No.7 at Exh-27,
who is also alleged to have been an eye-witness, but, he has not
supported the prosecution case. He has stated in his deposition that
there was a mob. He was present in the mob. Prafulbhai sustained
injuries and taken to the Hospital. With the help of these witnesses
i.e. P.W.Nos.4, 5 and 7, nothing is coming out against the accused.
Prosecution has examined Dr.Dilipbhai Desai, P.W.No.6 at Exh-24, who
has carried out postmortem of the deceased (Exh-26), who has narrated
that the deceased had sustained several incised wounds. All the
injuries were anti mortem and the death is homicidal death. It is
stated by learned counsel for the accused that they are not objecting
so far as homicidal death is concerned, but, there is no live link
between the accused and the offence.
16.
The prosecution has heavily relied upon the deposition of
Dr.Shivratnama Lalitkumar Vaya – P.W.No.8, examined at Exh-28. This
witness is serving as Assistant Director in Forensic Science
Laboratory, Ahmedabad and has stated that accused No.2 was brought to
her on 11th June,1996 by the police officer of Nadiad Town
Police Station. Accused No.2 was asked several questions by this
witness including question that accused No.2 is ready for lie
detector test. It is stated in para Nos.2 and 3 that accused No.2 was
not ready and has never consented for lie detector test. Thus, from
Para Nos.2 and 3, it appears that accused No.2 was brought in police
custody and she was not ready to undergo lie detector test. It is
stated by this witness that after some assurance given by this
witness to accused No.2, accused No.2 was ready for lie detector test
on 12th June,1996 on which date also, this accused No.2
was brought by Police Officer of Nadiad Town Police Station. It is
stated by this witness that accused No.2 has given confessional
statement, therefore, much reliance is placed by prosecution stating
that this confession before independent witness, which is dated 12th
June,1996. Exh-32 is a list of questions prepared by this witness for
asking the accused No.2. Exh-33 is a graph, which is recorded during
the lie detector test. Exh-34 is opinion given by P.W.No.8. Looking
to deposition given by this witness, it appears that accused No.2 was
brought on 11th June,1996 by police officer of Nadiad Town
Police Station. She was interrogated on the same day as she was not
willing to undergo lie detector test. She was taken back by police
Officer of Nadiad Town Police Station. She was brought with police
officer on 12th June,1996 again, for lie detector test.
For any reason, she has given statement at Exh-37. Thus, police
custody was constant from 11th June,1996 to 12th
June,1996. With a view to shield this police custody, she was
arrested on 12th June,1996. Learned counsel for accused
No.5 has heavily relied upon decision rendered by Hon’ble Supreme
Court in the case of Ram Singh V/s. Sonia and others reported in
(2007)2 SCC (Cri.) 1, especially Paras 54, 55 and 57, read as
under:
?S54. The above statement of PW
17, therefore, clearly depicts that A-2 was brought by the police to
Forensic Science Laboratory (FSL), Madhuban, for the lie detention
test on 24-9-2001 and when she conversed with him the police party
went away. On her saying, A-2 was taken by the police for lunch and
thereafter brought back to FSL. As lie detention test (LDT) was not
possible on 24th September, A-2 was again brought to FSL
by the police on 25th September on which day LDT was
conducted.
55. Learned counsel appearing on
behalf of the accused submits that temporary disappearance
of the police from the scene leaving the accused in charge of
a private individual does not terminate his custody and, therefore,
the extra-judicial confession made by A-2 to PW 17 having been made
in police custody is admissible as it is hit by Section 26 of the
Evidence Act which provides that any confession made by any person
while he is in the custody of a police officer, unless it be made in
the immediate presence of a Magistrate, shall not be proved as
against such person. In support of his submission, reliance has been
placed on Kishore Chand V. State of H.P.
57. Indisputably, A-2 was
arrested on 19-9-2001 and on 24th and 25th
September when he was taken for LDT he was in police custody and it
was at that point of time he made extra-judicial confession to PW 17
at which point of time police personnel went away from the scene
temporarily. Therefore, in the light of the decision rendered in
Kishore Chand we are of the opinion that extra-judicial confession
made by A-2 to PW 17 is hit by Section 26 of the Evidence Act,
it having been made by A-2 while in police custody
and, consequently, cannot be admitted into evidence and,
therefore, has to be eschewed from consideration. However, even the
exclusion of extra-judicial confession made by A-2 before PW 17 would
be of no help to this accused as we are of the view that the
prosecution has succeeded in proving its case beyond reasonable
doubts against A-2 on the basis of circumstantial evidence enumerated
above as well as extra-judicial confession made by A-2 before PW 48.
(Emphasis supplied)
From
the aforesaid judgement, it is clear that confessional statement
given by the accused during police custody is hit by Section 26 of
Indian Evidence Act,1872. This aspect of the matter has not been
properly appreciated by the Trial Court. Confessional Statement given
by accused during police custody is violative of Section 26 of the
Indian Evidence Act,1872, which reads as under :
?S26. Confession by accused
while in custody of police not to be proved against him. – No
confession made by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of a Magistrate,
shall be proved as against such person.??
In
view of the aforesaid section, Exh-31 was reduced in writing when
accused No.2 was in police custody. It is submitted by learned
Additional Public Prosecutor that police was not present, when the
statement was recorded, and, therefore, there was temporary absence
of police during recording time of confessional statement and, hence,
confession of accused No.2 can be considered by the Trial Court for
convicting the accused. This contention is not accepted by this Court
for the reason that as per Section 26 of the Indian Evidence
Act,1872, even if police is temporarily away from the room, in which,
confessional statement is given by accused No.2, still accused is
said to be in police custody. Temporary absenteeism of the police
never ousts, the police custody and, therefore, confession at
Exh-31 given by accused No.2 during police custody is not helpful to
the prosecution to connect the accused with an offence. Looking to
the evidence at Exh-34, there are several conclusions arrived at by
this P.W.No.8, which had never been stated by accused No.2, neither
in any confession nor in reply of the question at Exh-32. How this
witness P.W.No.8 has added facts in Exh-34, while giving her opinion,
has not been explained by this witness.
17. As
a cumulative effect of these two facts, namely confessional statement
made during police custody and added facts in her opinion at Exh-34,
we are of the opinion that both these documentary evidences at
Exh-31 and 34, do not connect the accused with an offence.
18. Prosecution
has also examined Pravinkumar Indravan Pandya – P.W. No.9 at Exh-35,
who is panch witness of Exh-36 and 37. Looking to the deposition of
this witness, he has not supported the case of the prosecution.
Likewise, Bhupendrabhai Babubhai Patel ? P.W.No.12 was also
examined as panch witness, has also not supported the prosecution
case. Likewise, Chandubhai Raval ? P.W.No.13 who was examined as
panch-witness at Exh-57 for panchnama of recovery of Maruti Car, has
also not supported the prosecution case. Prosecution has also
heavily relied upon Indiraben Ambalal Arya ? P.W.No.11, who is
examined at Exh-42. She is Executive Magistrate, who carried out Test
Identification Parade for identification of accused No.5. It is
submitted by learned counsel for accused No.5 that for proving
panchnama, panch-witness has not been examined. The panchnama is not
a substantive piece of evidence. Even before holding of this Test
Identification Parade, P.W.No.3 witness had an opportunity to see
accused No.4. Looking to the overall evidence on record, this witness
is a witness of procedure. This panchnama is not a substantive piece
of evidence. It can corroborate the main evidence and as stated
hereinabove, no eye-witness has supported case of prosecution and
there is no recovery of any weapon. Other panch witnesses have also
turned hostile. No Blood stains on the clothes of the accused, as per
the prosecution. Thus, even if the case of the prosecution is taken
at its highest pitch, it is only a corroborative piece of evidence.
In absence of substantive evidence, this panchnama is of little value
for connecting accused No.5 with the offence, beyond reasonable
doubt. P.W. Nos.5 and 7 have turned hostile, who, according to
prosecution, identified accused No.5 and, therefore, this panchnama
is not helpful to the prosecution for proving the offence beyond
reasonable doubt against accused No.5.
19. It
has been submitted by learned counsel for the appellants-accused that
in First Test Identification Parade, which was held on 28th
April,1997, P.W.No.3 could not identify accused No.5. Thus, much
reliance has been placed upon P.W.No.3- Kishan Ishwarbhai Marwadi and
Trial Court has found him a trustworthy witness, as per the
conclusion arrived by the Trial Court, who is unable to identify
accused No.5. Even as per P.W.No.11, who is Executive Magistrate,
accused No.5 was not identified by Kishanbhai Ishwarbhai Marwadi.
This witness, who is found trustworthy by the Trial Court, is unable
to connect accused No.5 with the offence, whereas, rest of the
witnesses, who have identified accused no.5 namely P.W. Nos.5 and 7
have not supported the prosecution case. Likewise, P.W.No.4
Nayankumar Chandrakantbhai Amin has also not identified accused No.5.
Thus, in Test Identification Parade, which was held on 28th
April,1997, P.W.Nos.3 and 4 could not identified accused No.5. So far
as accused No.4 is concerned, Appeal is abated because of his death
during the pendency of the appeal. Otherwise also, looking to the
cumulative depositions of the prosecution witnesses, conviction could
not have been based solely upon Test Identification Parade, which is
not supported by a person, who has identified the accused. It is only
a corroborative piece of evidence and only with the help of P.W.No.11
i.e. Executive Magistrate, who is a witness of procedure, it cannot
be said that offence is proved beyond reasonable doubt against
accused No.5. This aspect of the matter has not been properly
appreciated by the Trial Court.
20. Looking
to the deposition given by P.W.Nos.12 and 13 i.e. Bhupendrabhai
Babubhai Patel and Chandubhai Raval, they have turned hostile and not
supported the case of the prosecution. They are panch-witnesses of
panchnama of scene of offence and panchnama of recovery of Maruti
Car. Left out witnesses are police witnesses. It appears that
P.W.No.15 Abhay Singh Labubhai Vaghela, who has carried out
investigation along with P.W.No.16, Prakashchandra Vyas and
ultimately investigation was carried out by P.W.Nos.17 and 18.
Looking to overall depositions of the prosecution witnesses, neither
eye-witnesses nor panch-witnesses have supported the case of the
prosecution, so far as accused No.5 is concerned. P.W.No.11 is
Executive Magistrate and rest of the witnesses are police witnesses
i.e. P.W.Nos.15 to 18. As stated hereinabove, the only circumstance
against accused No.5 is Test Identification Parade on the basis of
deposition of P.W. No.11. This is the highest case of the
prosecution. In view of the aforesaid facts and evidence recorded
during the trial, there is no direct evidence against accused No.5
connecting him with the offence. Looking to the circumstantial
evidence against accused No.5 as observed in para-170 of the
judgement of the Trial Court that there are eight circumstances, with
the help of which, common intention between accused Nos.4 and 5 is
inferred, but, as stated hereinabove, P.W.No.3 is unable to identify
accused No.5 in Test Identification Parade. Likewise, P.W.No.4 is
also unable to identify accused No.5. P.W.Nos.5 and 7 have not
supported the case of the prosecution. All these circumstances have
not been appreciated by the Trial Court. Presence of P.W.Nos. 4 and 5
at the scene of offence is not proved by the prosecution. Neither the
weapon is recovered nor blood stained clothes of accused No.5 have
been recovered. No witness says that accused No.5 was present at the
scene of offence on 31st May,1996 at morning hours.
Conclusion referred in para-170 is dehors the facts and evidence
established by the depositions of the prosecution witnesses.
21. Learned
Additional Public Prosecutor submitted that accused No.1 has shown
place of scene of offence which is circumstantial evidence. This is
the only circumstance against accused No.5, but, looking to the
totality of the evidence of the prosecution witnesses, the place of
scene of offence was known to every body. In scene of offence
panchnama at Exh-56, wheal marks of vehicle is referred. During
investigation, Maruti vehicle was recovered, but, wheal marks of this
vehicle has not been checked by Investigating Officer, whether could
be of the same vehicle.
22. It
has been observed by the Trial Court in para-175 that several
conclusion for convicting accused No.5. As per this conclusion also,
it appears that there is no direct evidence against accused No.5. As
stated hereinabove, most of the witnesses have not supported the
prosecution case except Executive Magistrate and Police Witnesses. As
stated hereinabove, accused No.5 was not identified by P.W.Nos.3 and
4 and other eye-witnesses have turned hostile. Trial Court has relied
upon P.W.No.3, who is found to be trustworthy, but, his evidence is
not connecting accused No.5 with an offence. As per deposition of
Executive Magistrate, P.W.No.11, this witness i.e. P.W.No.3 could not
identify accused No.5. Thus, neither weapon is recovered nor blood
stained recovered on the clothes of accused No.5. Eye-witnesses have
not supported the prosecution case, so far as accused No.5 is
concerned. All these circumstances have not been properly appreciated
while recording conclusion in para-175 in the judgement and order by
the Trial Court. Only on the basis of panchnama of Test
Identification Parade and that too, only with the help of Executive
Magistrate much emphasis is given. This is not substantive piece of
evidence. It cannot be said that prosecution has proved the offence
beyond reasonable doubt. In view of these facts and reasons,
conviction of accused No.5 as held by the Trial Court is hereby
quashed and set aside.
23. So
far as accused Nos.1, 2 and 3 are concerned, there is an appeal
preferred by the State against their acquittal. For these accused
also as stated hereinabove, no eye-witnesses have supported the
prosecution case and, therefore, conclusion arrived at by the Trial
Court by appreciating the evidence is absolutely true and correct and
no error has been committed by the Trial Court in acquitting accused
Nos.1, 2 and 3. It is the case of the prosecution that there was
conspiracy hatched by this accused and they hired accused Nos.4, 5
and other accused, who have not been arrested, but, as stated
hereinabove, there is no evidence, connecting accused Nos.1 to 3 with
the offence. There is no live link between accused Nos.1, 2 and 3
with accused Nos.4 and 5. On the contrary, looking to the submission
made by accused No.2, she has given in detail explanation about
withdrawal of the amount for the payment of the loan. It appears that
accused No.2 is a wife of business man. There are also entries about
payment of loan to Natpur Co-Op.Bank Ltd. Criminal Revision
Application has been preferred by the State bearing Criminal Revision
Application No.511 of 1998 for expunging remarks against learned
Special Public Prosecutor made by the Trial Court from para 102
onwards in the impugned judgement and order. It appears that several
links are missing in the case of the prosecution. Witnesses sometime
support the prosecution case and sometime they do not. Learned Public
Prosecutor is a Navigator of the case. Learned Public Prosecutor has
to choose, which witnesses are to be examined and which witnesses
are to be dropped. Looking to the evidence of Prosecution witnesses,
given one by one, enough explanation is given in Criminal Revision
Application No.511 of 1998 for not examining the witnesses. Even
brother of the deceased has not supported the prosecution. He stated
in his deposition that he came to know about the whole incident from
other persons and on the hear say evidence, he has lodged the
complaint. One by one other eye-witnesses have also turned hostile.
Some of the witnesses are employees of the accused and, therefore,
they are not examined by learned Special Public Prosecutor. The
reasons given in Criminal Revision Application No.511 of 1998 are
cogent enough for expunging remarks against the learned Special
Public Prosecutor made by the Trial Court, while deciding the
Sessions Case. Learned Additional Public Prosecutor has taken this
Court to the statement of the witnesses. It has been stated that some
of the witnesses have not referred anything about the conspiracy in
their statement recorded by the police under Section 161. Looking to
the reasons given in para-11 in Criminal Revision Application, it is
stated by learned Additional Public Prosecutor that had witness
Jitubhai Ravjibhai, who is close relative of the deceased, been
examined, he would not have supported the case of the prosecution.
On the contrary, definitely he could have caused damage to the
prosecution case. Likewise, other witnesses have also been referred
by the Trial Court, who are not examined because some or the other
way, they are connected with the accused as employees, etc.
24. In
view of these circumstances and looking to overall case of
prosecution, it was not warranted for the Trial Court to pass remarks
against the Learned Special Public Prosecutor in para-102 onwards in
its judgement and order. Even eye-witnesses, who are P.W.Nos.4, 5 and
7, who were close to the deceased, have turned hostile and have not
supported the prosecution case. In this set of circumstances,
learned Special Public Prosecutor had, wisely not examined rest of
the witnesses, otherwise, whatever evidence collected by the
prosecution, could have been destroyed by them, during his
cross-examination in the Trial Court. This aspect of the matter has
not been appreciated by the Trial Court.
25. We
have also perused, in detail, the prosecution case and evidence of
witnesses, who are not examined. We are of the opinion that had
these witnesses been examined by the prosecution, the case of the
prosecution could not have been carried further and, therefore,
remarks made against learned Special Public Prosecutor in para-156
and 175(iii) are hereby quashed and they are expunged. Thus, Criminal
Revision Application No.511 of 1998 is hereby allowed and remarks
against learned Special Public Prosecutor in the aforesaid paras are
hereby expunged. Criminal Appeal No.803 of 1998, which is preferred
by the State against acquittal of accused Nos.1, 2 & 3 is hereby
dismissed for want of proof against accused Nos.1, 2 & 3.
Prosecution has failed to prove the case against accused Nos.1, 2 &
3. Criminal Revision Application No.578 of 1998 preferred by the
original complainant, is also hereby dismissed. Looking to these
Criminal Revision Applications, State has preferred acquittal appeal
against accused Nos.1, 2 & 3 and, therefore, so far as these
accused are concerned, Criminal Revision Application deserves to be
dismissed. Now, the only question left out for this Court is whether
this Court should remand the matter for rewriting of the judgement,
on the basis of improper appreciation of the evidence. Looking to the
evidence on record, we are of the opinion that the prosecution has
failed to prove the case beyond reasonable doubt against accused
No.5. Eye-witnesses have turned hostile and panch-witnesses have not
supported the prosecution case. In conclusion in para-175 of the
judgement and order, much reliance is placed upon P.W.No.3. This
witness is a painter of number plate, which is fake number plate of
Maruti Car, but, this witness has not identified accused No.5. There
is no ambiguity in his deposition. Even P.W.No.11, who is Executive
Magistrate, has also stated that accused No.5 was not identified by
P.W.Nos.4 and 5, who are eye-witnesses. Thus, a clear evidence was
laid before the Trial Court and, therefore, we are not inclined to
remand the matter to the Trial Court. Likewise, witnesses, who are
not examined by the prosecution, for which, dropping pursis was also
filed. Most of the witnesses, who are dropped, are closely associated
with accused and some of them are employees of the accused. It
appears from the totality of the circumstances of the case, whatever
evidence was collected by the prosecution could have been damaged by
the dropped-witnesses, if they would have been examined by learned
Special Public Prosecutor in his opinion. Even close relatives of the
deceased, who were with deceased, have not supported the prosecution
case. About one dozen years have lapsed after occurrence of the
incident, and so we are not inclined to remand the matter for
reappreciation before the Trial Court and, therefore, Criminal
Revision Application is hereby dismissed. Thus, Criminal Appeal
No.630 of 1998 is allowed. As appellant No.1 (accused No.4) has
expired, this Criminal Appeal is abated for him, therefore, this
Criminal Appeal survives only for appellant No.2 (accused No.5), and
it is hereby allowed. Accused No.5 is hereby acquitted from all the
charges levelled against him. Appellant No.2 (original accused No.5)
was already granted bail by this Court, therefore, his bail bond is
hereby discharged. Criminal Appeal preferred by the State bearing
Criminal Appeal No.803 of 1998, is hereby dismissed. Criminal
Revision Application No.511 of 1998 is hereby allowed and the remarks
made against learned Special Public Prosecutor in para-102 and
175(ii) are hereby expunged. Criminal Revision Application No.578 of
1998 preferred by the original complainant is hereby dismissed.
(C.K.BUCH,J)
(D.N.PATEL,J)
*dipti
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