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CR.A/757/1987 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 757 of 1987
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
HONOURABLE
MR.JUSTICE P.P.BHATT
=========================================================
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 - Appellant(s)
Versus
NAGARSING
FATESING NUT & 2 - Opponent(s)
=========================================================
Appearance :
MR
KARTIK PANDYA APP for Appellant(s) : 1,
NOTICE SERVED for
Opponent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P.P.BHATT
Date
: 14/06/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The
present appeal is notified at serial number 21 “for orders”.
The remark column contains the following remark:
“*
B/W un-executed upon respondent Nos. 1 to 3. As per report of
Sessions Court, Navsari. (Only fax received) R & P and paper book
received”.
2. On
perusal of papers, it is noticed that the appeal was admitted by
Division Bench of this Court (Coram: D.C.Gheewala & J.P.Desai,
JJ. as they were then) by order dated 20th January, 1988.
The order reads as under:
“Leave
granted. Appeal admitted. Bailable warrant in the sum of Rs.2000/- to
issue against each of the accused”.
It
is this order of bailable warrant which has remained un-executed on
all the respondents i.e. 1 to 3.
3. It
is painful that in the matter of 1987, bailable warrant issued by
this Court on 20th January 1988 has remained un-executed.
In this regard, it will be appropriate to refer to an order passed by
Division Bench of this Court (Coram: A.M.Kapadia, as he then was and
B.N. Mehta, JJ) dated 31st January, 2011. “….A
perusal of the record of the case, it is seen on behalf of the
appellant, Mahendrasinh H.Puwar, Police Sub-Inspector, Jalalpore
Police Station, District- Navsari has filed an Affidavit, wherein it
is stated that, the respondents are not residing permanently anywhere
as they are regularly moving from one place to another for earning
bread and they are not easily traceable, so for further inquiry,
minimum two months period is required, which may be granted….”
4. Taking
into consideration the age of the appeal, it is deemed fit to examine
the matter on merits and therefore, we heard learned APP Mr.Pandya at
length. Learned APP tried to assail the judgment and order dated
12.6.1987 passed in Sessions Case No.83 of 1986, whereby, the learned
Judge was pleased to acquit the accused under Section 232 of Criminal
Procedure Code by giving them benefit of doubt for the offences
punishable under Sections 460, 395, 396 and 397 of Indian Penal Code
(IPC).
5. Learned
APP vehemently submitted that the offences alleged against the
present accused is of very grave nature, inasmuch as the mother of
the complainant was killed in the incident which took place on
13/14-8-85. Learned APP also submitted that there was convincing
evidence in the form of deposition of Bharatbhai, brother of the
complainant and Meeraben, wife of Bharatbhai.
6. On
perusal of the record and proceedings and the relevant documentary as
well as oral evidence, this Court is of the opinion that learned
Judge has not committed any error in recording acquittal of the
present accused. In this regard, it is important to put it on record
that the learned Judge has rightly answered issue No.1 in affirmative
and has then focused his attention to issue No.2 and that focused
attention is reflected in Para 22, 23, 24, 25, 26, 27, 28, 29, 30 and
last but not least 31.
7. Learned
Judge has also discussed the same aspect in Paragraph Nos. 32, 33,
34, 35 and 36 and then recorded a finding that it is not established
by the prosecution that the present accused-three in number, were
present in the incident of loot which took place on 13/14-8-1985.
8. In
his threadbare analysis of the evidence on the point, the learned
Judge has given convincing reasons for not believing the evidence of
Meeraben and that of Bharatbhai. To illustrate some of the reasons
for not believing the deposition of these two witnesses are:
(i) Both
witnesses have tried to improve upon their version not only from
their statement before the police but even from the deposition in
another sessions Case being Sessions Case No.72 of 1985. A Certified
copy of deposition of Meeraben in Sessions Case No.72 of 1985 was
placed before the learned Judge and though it was recorded in that
deposition that, ‘except four persons, she has not seen any other
persons’, she tried to depose before the Court that she had occasion
to see these three accused who were standing on an ‘Otla’ (outside
the house) from the window of her bed room. Distance between the
witnesses and the accused was 10 to 15 feet.
(ii) The
learned Judge has also taken pain to notice and take appropriate note
of the fact that Meeraben had numbered glasses and at night to
identify a person who was seen from a distance of 10 to 15 feet that
too without glasses may not be possible.
(iii)Learned
Judge has also noted and appreciated the fact that these accused were
arrested from Village: Bhat, District: Gandhinagar on 9.7.1986 on the
basis of available description while Navsari Police visited Village:
Bhat in connection with the investigation of a ‘Crime’ registered as
C.R. No.I-215 of 1986. These three accused were handed over to PSI,
A.M. Rathod. Delay from 9.7.1986 to 16.7.1986 (16.7.1986 – the day on
which identification parade was held) is not explained by the
prosecution.
(iv)(A) The
learned Judge has very rightly appreciated the fact that
identification parade took place on 16.7.1986. The time gap between
the unfortunate incident and the identification parade was more than
one year. The learned Judge has rightly posed a question to himself
that whether a person having seen an accused for a while that too, at
night from a window, at a distance of 10 to 15 feet that too while
she was not having her numbered glasses on, can identify
such persons after more than one year. The learned Judge has
come to a right conclusion that the evidence of this witness on this
point cannot be relied upon.
(iv)(B) In
this regard, it is equally important to note that Shri Rathod has
deposed in his deposition that, ‘before the actual identification
parade took place on 16.7.1986, the identification parade was
scheduled on 13.7.1986 and thereafter on 15.7.1986 but for one or the
other reason, it could not have been held’.
(iv)(C) On
the point of identification itself, the learned Judge has rightly
considered that, these persons were taken to the place of offence on
10.7.1986 at around 2.00 p.m. because as per the prosecution, they
wanted to show the place of offence, of their own wish. At that time,
Panchnama was also drawn. Learned Judge has recorded that, Meeraben
has admitted in her deposition that she knew about the arrest of the
present accused. Though she has not admitted that, ‘the police had
taken Meeraben and Nitinbhai to Jalalpur Police Station and had shown
the present accused. Similarly, the witness has deposed that, on
10.7.1986 when these accused were brought to her residence, ‘she had
not seen them’ but then no material is placed on record to show that
Meeraben was absent from her residence at the relevant time.
(v) Learned
Judge has rightly discarded the evidence led before the Court on the
ground that there were material contradictions and thus the
prosecution failed in proving the case against the accused.
(vi) Howsoever,
heinous the crime may be the basic requirement of connecting the
accused with it cannot be dispensed with. It is settled principle of
law that prosecution has to discharge its pious duty of establishing
the case beyond reasonable doubt. Merely because, police arrested
three persons on the basis of doubt, and according to them (police),
they are answering the description available with them (police)
cannot satisfy the requirement of proving the guilt with the help of
convincing evidence.
9. Taking
into consideration the overall evidence available on record, this
Court is of the considered opinion that learned Judge has not
committed any error in recording acquittal.
10. In
the result, the appeal fails and the same is dismissed.
(RAVI
R.TRIPATHI, J.)
(P.P.BHATT,
J.)
(ashish)
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