==========================================Appearance vs The on 23 July, 2008

Gujarat High Court
==========================================Appearance vs The on 23 July, 2008
Author: Bhagwati Prasad,&Nbsp;Honourable S.R.Brahmbhatt,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CR.A/2/1987	 5/ 5	JUDGMENT 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 2 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
 

KOLI
MOHAN SHARDUL AND ANOTHER 

 

==========================================Appearance
: 
MR MAULIK
NANAVATI, ASSTT PUBLIC PROSECUTOR for the
Appellant 
MR MR YAGNIK FOR MR ND NANAVATI for the Opponents
 
==========================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE BHAGWATI PRASAD
		
	
	 
		 
			 

 

			
		
		 
			 

and
		
	
	 
		 
			 

 

			
		
		 
			 

HONOURABLE
			MR.JUSTICE S.R.BRAHMBHATT
		
	

 

 
 


 

Date
: 23/07/2008 

 

ORAL
JUDGMENT

(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)

1. The
present appeal has been filed by the State of Gujarat against the
order of acquittal dated 26.9.1986 passed by the Assistant Sessions
Judge, Junagadh in Sessions Case No.58 of 1985.

2. The
facts, in brief, are such that it is the case of the prosecution
that complainant -P.S.I. Kesarbhai Chaudhari (PW 3) alongwith other
Police officers had to carry out a prohibition raid at Sejdivadi
village on 2.1.1998 at about 7.45 p.m. As no liquor was found in
the village, the raiding party had gone to Nava Bandar Custom Chowky
and had reached there at about 7.30 p.m.

3. The
panch witnesses were called and they were informed by the raiding
party about the purpose of their visit. At that point of time, the
police officers saw one person carrying a cane of liquor and they,
immediately, chased and arrested him. On inquiry, the arrested person
disclosed his name as Mohan Shardul, accused No.1. Thereafter, the
police party alongwith the panch witnesses got on board a boat
alongwith the arrested accused. About 8- 10 persons also got on the
boat and inquired from the raiding party as to why they were taking
away their owner. The police party appraised them of the reason for
arrest of accused Mohan. They were also instructed not to interfere
with their official work. The persons who subsequently got on board
asked the police to release accused Mohan.

4. As
the police refused to release Mohan, accused No.2 Koli Bhikha alias
Ghela Jetha gave a blow on the head of PSI Chaudhari with a sailing
oar. The other accused persons, thereafter, gave stick blows to PSI
Chaudhari and other police officers and the panch witnesses. During
the scuffle, accused No.2 gave a push to PSI Chaudhary. As a
result of which, he fell over the boat into the water. Some other
police officers, who were standing nearby, saw the incident and
rushed to the rescue of the raiding party and also fired two rounds
from the service revolver to disperse the assailants. Thereafter,
the complaint was lodged against 10 accused persons for the offences
punishable under Sections 147, 148, 149, 307, 332 and 353 read with
Section 34 of the Indian Penal Code.

5. The
Trial Court, after appreciating the evidence, acquitted all the
accused persons mainly for the reason that the prosecution has not
led any evidence to establish the identity of accused Nos.3 to 10.
Admittedly, as per the witnesses, these accused persons were not
known to them and no test identification parade was held to establish
their identity. As regards accused No.2, the Trial Court has
noticed that the incident has occurred at about 8.00 p.m. on the
winter night. There is no evidence on record to show that there was
sufficient light on the boat so as to enable the complainant to
notice and identify accused No.2. Also, no test identification
parade was held immediately after the arrest of accused No.2 to
establish conclusively his identity.

6. The
Trial Court has also noticed that there are several discrepancies in
the testimonies of the eye witnesses as to who pushed the
complainant of the boat. As regards accused No.1, the Trial Court
has observed that no overt act of causing any injury has been
attributed to accused Mohan. Also, there is no evidence to show
that accused Mohan called upon the other accused persons to help in
releasing him from the custody of police. The Trial Court, therefore,
did not accept the case of the prosecution for convicting the accused
for substantive offices read with Section 34 of the Indian Penal
Code.

7. We
have Mr. Nanavati, learned Additional Public Prosecutor for the State
and Mr. M.R. Yagnik, learned advocate for the respondent-accused. We
have also perused the record of the trial Court.

8. Mr.

Nanavati has fairly submitted that there is no evidence on record to
prove that an attack was made on the raiding party at the behest or
on the call of accused Mohan. He has, however, submitted that the
Trial Court was in error in acquitting original accused No.2 He has
submitted that the prosecution has led evidence of police officers,
all of whom have unequivocally stated that accused No.2 had inflicted
a blow with a sailing oar on the head of PSI Chaudhary.

9. The
medical evidence also proves injury on the head. As regards identity
of accused No.2 is concerned, Mr. Nanavati has submitted that Psi
Chaudhary as well as other police officers who were standing beside
Chaudhary have identified the accused in the Court. He has,
therefore, submitted that the acquittal as regards accused No.2 be
set aside and the present appeal to that extent be allowed.

10. We
have heard the learned counsel for the parties and have perused the
record. The question of identity of the accused is of paramount
importance in the case. The accused were not known to the police
party prior before. The other accused had made their escape good.
Identification in Court is not held to be of any worth unless
preceded by earlier identification.

11. When
the acquittal of other accused persons is not challenged, it becomes
a case where the identity of accused No.2 cannot be considered to be
of conclusive value. No instigation is established to have been given
by accused No.1 of any kind. Any act of unknown person cannot,
therefore, be of incriminating nature, more particularly in an
appeal against acquittal.

12. We
do not think that any perversity is committed by the Trial Court in
recording the findings of acquittal by the Trial Court. Thus, we
think that when one possible view has been taken by the Trial
Court, it would not be appropriate to disturb the findings.
Consequently, we dismiss the appeal and uphold the acquittal.
Bail bonds of the accused are cancelled.

(BHAGWATI
PRASAD, J.)

(S.R.BRAHMBHATT,
J.)

omkar

   

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