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CR.A/53919/1987 2/ 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 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 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 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
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