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CR.A/251920/2008 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2519 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
====================================================
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 ?
====================================================
BABUBHAI
POPATBHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
====================================================
Appearance :
MR
MJ BUDDHBHATTI for Appellant(s) : 1,
MR UR BHATT, APP for
Opponent(s) : 1,
====================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 26/09/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
Appeal
admitted.
1. In
peculiar facts and circumstances of the case, appeal is taken up for
final hearing today itself. The circumstances are :-
The
appellant was unable to file an appeal due to financial hiccups.
The
appellant was never released either on temporary bail or on
furlough.
The
appeals of the other co-accused, who are on the same footing along
with appellant, are allowed.
2. In
view of the above aspects, having found that the evidences led by the
prosecution is not trust-worthy and evidence is common qua all the
accused persons, the said appeals of the co-accused were allowed on
23.09.2008. In that appeal, we have observed as under:-
8. We
have considered the rival side submissions. From the Record
and Proceedings, we find that first informant – Champaklal Bhurabhai
Vaniya was examined at Exh.40, his wife was examined at
Exh.41, his son Depak Champaklal was examined at Exh.51 and
Dipak’s wife Heenaben was examined at Exh.88. The depositions
run in number of pages but what emerges therefrom, can be discussed
as under:-
8.1. Undisputedly,
there was darkness in the house of the first informant where the
robbery is alleged to have been committed. The assailants were
wearing masks on their faces leaving open only the part of the eyes.
In the F.I.R., the F.I.R. does not give the name of any of the
assailants nor does it give any description of any of the assailants.
It does not emerge from the F.I.R. that the assailants had asked
for water and, while taking water, they had unmasked their faces. It
also does not emerge from the F.I.R. that there was light coming from
the windows with the help of which, the assailants were identified by
the first informant or other witnesses.
8.2. It
also emerges from the evidence that the theory of the assailants
asking for water and while taking water unmasking their faces emerges
from the statements recorded of those witnesses after the Test
Identification Parade. This, in our opinion, is a clear attempt on
the part of the Investigating Agency to fill up the lacuna in the
case of the first informant and by this, an attempt is made to
give colour of truthfulness to the identification made by
the witnesses in the Test Identification Parade.
8.3. It
also emerges from the evidence of these witnesses that while deposing
before the Court witnesses Vinaybala Champaklal (Exh.41) and
Dipak Chempaklal (Exh.51) have not identified the accused persons in
their examination in chief. Unfortunately, the defence has put
certain questions regarding identity of the accused persons and
during the course of examination, the witnesses have tried to
identify the accused persons by their names as assailants but
in doing so, they have committed mistakes and have fixed the
identity wrongly, incorrectly or erroneously. As a result,
the accused persons were identified by the names of other accused
persons.
9. It
also emerges from the evidence of the Investigating Officer that the
photographs of the accused persons were shown to the witnesses before
Test Identification Parade. It also emerges from the evidence
that photograph of one Anakbhai Kabubhai Kathi was also shown to
the witnesses during the course of investigation. But, thereafter,
what happened and why that Anakbhai is not arraigned as an accused
is not explained by the prosecution.
9.1. It
also emerges from the evidence that no booty is recovered or
discovered from any of the accused persons.
9.2. It
also emerges from the evidence of Executive Magistrate
Dipakbhai Shukla at Exh.146 that no precautions were taken to ensure
that the accused persons were not exposed before exposing to public
or to witnesses, before Test Identification Parade was conducted.
10. It
is also on the record that the Investigating Officer was present
when the Test Identification Parade was conducted by the Executive
Magistrate. The evidence is totally silent, so far as charges of
offences punishable under Sections 504 and 506(2) are concerned. No
weapon is recovered from any of the accused or discovered by any of
them.
4. We
have heard the learned advocate Mr.Buddhbhatti, appointed by this
Court as amicus curiae for
appellant accused. The learned advocate, during the course of his
argument, relied upon the above findings, which were arrived at in
the common judgment delivered in the appeals preferred by the four
co-accused of this case, namely appellant accused Dhanji Mohan
Vaghri and Dhiru Panna Vaghri,
who filed Criminal Appeal No.83 of 2005 and appellant accused
Madhu Desha Vaghi and Himmat Desha Vaghri, who filed Criminal
Appeal No.255 of 2005. The common judgment in both these appeals was
delivered on 23.9.2008. The learned advocate Mr.Buddhbhatti submitted
that the findings arrived at in those appeals, with equal force,
shall apply to the case of the appellant, who was one of the
co-accused persons, who were acquitted from all the offences charged
against them, as their appeals were allowed.
5. We
have heard learned APP Mr.Bhatt for the respondent State.
6. In
light of what is observed by us in the said appeal and since the
evidence is common, we allow this appeal as well, and set-aside the
judgment and order qua the present appellant and direct that the
appellant be released from prison forthwith, if not required in any
other case, and fine, if paid, be refunded to him.
7. Before
parting, we would like to place on record a word of appreciation for
the promptness with which the services were rendered by
Mr.M.J.Buddhbhatti, who worked as amicus curiae.
(A.L.DAVE,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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