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2017 DIGILAW 259 (GUJ)

State of Gujarat v. Ghamecha Vagri Kama

2017-02-02

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Biren Vaishnav, J. 1. This acquittal appeal has been filed by the State challenging the judgment and order dated 22.12.1993 passed by the learned Additional Sessions Judge, Junagadh, in Sessions Case No. 54 of 1992, by which, the three accused charged for offences under section 457, 342, 394, 34 and 114 of Indian Penal Code were acquitted. 2. Complainant Khokharbhai Kalabhai filed the FIR on 19.01.1992. According to the version in the complaint, on the night of 18.01.1992, when he alongwith his father Kalabhai and mother Lakhiben and brother Arshi were at home and were sleeping and after having locked the door, they heard noises of somebody breaking the lock and entered the veranda of residence where the family was sleeping. Of the four persons who had entered, one was wearing a red shirt and a black trouser and had covered his face and was holding a gun. The second was wearing a shirt and a trouser and had a sword in his hand. While the complainant and his father and the brother-in-law were sleeping outside the veranda, the person holding the gun attacked his father with the butt of the gun, while the second stood beside the complainant and his brother-in-law. The other two then entered the house, opened the cascade and remove the cash that was lying therein. A total amount of 84,200/- and certain ornaments, according to the complainant, was looted. According to the complainant, he could not identify any of the accused, however, if these persons were shown, he would identify them. The person holding the gun was aged around 35 years. The complainant in his complaint stated that he did not suspect any particular individual. Based on this complaint, a charge-sheet at Exh. 1 was filed before the Sessions Court at Junagadh and the three accused were implicated for offences under sections 457, 394, 397, 342 read with section 34 of the Indian Penal Code and section 114. 3. The complainant-Khokharbhai Kalabhai was examined as PW-1 at Exh. 10. According to this witness, on the date of the incident i.e. on 18.01.1992, he alongwith his father and his brother-in-law and Vaghari Manubhai was sleeping on the courtyard on veranda. His mother Lakhiben and sister were sleeping inside the room. The main door of the house was locked from inside. The complainant-Khokharbhai Kalabhai was examined as PW-1 at Exh. 10. According to this witness, on the date of the incident i.e. on 18.01.1992, he alongwith his father and his brother-in-law and Vaghari Manubhai was sleeping on the courtyard on veranda. His mother Lakhiben and sister were sleeping inside the room. The main door of the house was locked from inside. At 12 midnight, somebody broke open the lock and when his father confronted the person, the four broke open the door and walked in. One of them stood by his father's side whereas the other two stood by his side and his brother-in-law. The person who was standing by his father's side, was carrying a gun and he hit his father with the butt of the gun. The person who was standing by his side was standing with a sword and the other person standing by his brother-in-law's side was also holding a gun. The person who had attacked his father, then threatened to kill both him and his father if they did not part with the cash and ornaments lying in the house. Of all the four who had come, two of them entered the room of their house, and on founding cascade locked, returned and asked for keys. When his father denied that the keys were with him, they entered the room where the mother and the sister were sleeping and asked for the keys. Since the mother could not open the lock of the cascade, they broke open the cascade and removed the ornaments and the cash lying in the cascade. All four of them left after locking the four occupants in a room. He thereafter came out of a window, opened the door from outside. He together with his brother-in-law then went to the Sarpanch of the village. Sarpanch came to their house and called the police patel. Kunjabhai was the member of the legislative assembly to whom they subsequently went where the police had come and the complaint was lodged. This witness further deposed that the four persons who came and had entered the house at night, were present in the house for about two to three hours, while the person who was standing by his father's side, stood there for two hours or so and the others looked around the house for valuables. This witness further deposed that the four persons who came and had entered the house at night, were present in the house for about two to three hours, while the person who was standing by his father's side, stood there for two hours or so and the others looked around the house for valuables. The man with the gun was wearing a black shirt and black trouser and he was about 20-25 years of age. The person standing by his side was also wearing a trouser and a shirt. He identified the sword shown to him. He also identified the accused No. 3-Balu who was present in the Court. This witness further testified that a test identification parade was held by Mamlatdar. In the test identification parade so held, he identified the accused No. 3. He also identified Babu Govind, the accused No. 2. The test identification parade was held on the same day. This witness is cross-examined wherein he stated that his village Gir Gadhada is about four kms and the local police station is Gir Gadhada, whereas, Una is at a distance of about 15 kms. He did not clarify as to why the complaint was not lodged at the Gir Gadhada police station. He admitted that when the complaint was lodged, he was not in a position to identify the accused and that he had informed the police that certain unknown persons had come and committed robbery. He admitted that after 8 to 10 days of the incident, few persons from Una police station had come to his home, so he thereafter had gone to Una police station where certain persons were presented before him for identification. That he did not know the names of the persons who were presented for identification. He was thereafter called for test identification parade at the Mamlatdar's office eight days after he was called to Una police station. He stated that the Mamlatdar's office and the Una police station are within the same compound. He denied the suggestion that he was shown the same persons whom he was shown at the test identification parade. He was thereafter called for test identification parade at the Mamlatdar's office eight days after he was called to Una police station. He stated that the Mamlatdar's office and the Una police station are within the same compound. He denied the suggestion that he was shown the same persons whom he was shown at the test identification parade. In his cross-examination, this witness further admitted that before he went to the Mamlatdar office for test identification parade, the police had come to his home on about two occasions and whenever they came to his house, they had come with persons who were presented before him for identification of such persons on the basis of the complaint that was lodged by him. 4. PW-5, Lakhiben is the mother of the complainant who was examined at Exh. 18. According to this witness, on the date of the incident, her son-in-law and one Manubhai and her husband were sleeping outside the varanda, whereas, she and her daughter were sleeping inside the room. The three persons broke open the lock, entered the room and asked for the keys of the cascade which was in the room. Since, she could not open the cascade with the keys that was with her, these persons broke open the lock and took the ornaments that were lying there in the cascade. The persons who had come and robbed all the family's belongings, stayed in the house over about two hours. In all there were four persons who had stayed back. One of them was having a gun and the other was with a spear. The other two carried a sword and a rod. The man carrying the gun was wearing a black shirt and a trouser. 5. PW-2, Rambhai Naranbhai, was the police patel who was examined at Exh. 13. According to this witness, on 19.01.1992, at around 3:30 in the morning, Arjan Pola and Dhiru Lakha came to his place and informed him that there had occurred a robbery at Khokharbhai's place. He then proceeded to Khokharbhai's house and found that the cascade inside the room was broken up and the belongings were lying scattered on the floor. He then accompanied Khokharbhai, the complainant, to Una police station. Sarpanch Babubhai Lakhabhai also accompanied him. Scene of offence Panchnama is at Exh. 14. 6. PW-6 is the Panch witness for discovery of the ornaments. He then accompanied Khokharbhai, the complainant, to Una police station. Sarpanch Babubhai Lakhabhai also accompanied him. Scene of offence Panchnama is at Exh. 14. 6. PW-6 is the Panch witness for discovery of the ornaments. That panchnama is at Exh. 20. 7. The other important witness apart from the two witnesses viz. PW-1, the complainant and Lakhiben PW-5, was Executive Magistrate who carried out the test identification parade. He was examined at Exh. 27. In his testimony, this witness stated that Balu Govind-accused No. 3 and Kama Vashram-accused No. 1 were presented before the complainant and his father and were made to stand in line at No. 5 and 9 respectively. Both the complainant and his father identified both the accused No. 1 and accused No. 3. This witness has been cross-examined. In his cross-examination, this witness stated that apart from the complainant and Khokharbhai, a third person was present whose name he could not recollect. He did not recollect whether Lakhiben was present to identify the accused. According to this witness, the test identification parade was not carried out on 27.01.1992. 8. PW-10 is a panch witness, one Lakhman Kana from whose fields the weapons, i.e. the sword and the spear and the gun have been recovered. 9. On the basis of the evidence which has come on record, the learned Trial Judge in the judgment under challenge acquitted the accused of the offence they were charged for. 10. As is evident from reading the complaint, according to the version of the complainant Khokharbhai, the identity of the intruders, four in number, who had come on the night of 18.01.1992, was unknown. He categorically stated in his complaint that he did not know any of the intruders who had entered the house. He could identify them only if they were presented before him. According to the complainant, the man who was carrying the gun was about 35 years of age and was wearing a black trouser and a shirt. Even in his testimony which is at Exh. 10 the only description that the complainant gives about the identity of the intruder who entered the house that night, was akin to the contents of the complaint. Even in his testimony which is at Exh. 10 the only description that the complainant gives about the identity of the intruder who entered the house that night, was akin to the contents of the complaint. According to the version of this witness, all the four who had entered the house, the man who was holding the gun, was about 35 years of age and was wearing a black shirt and a black trouser. His face was covered with a black scarf. In his examination-in-chief, this witness further stated that they had stayed back in their house for about 2 to 3 hours. The man who was holding a sword and was standing by the side of his brother-in-law, was there for at least half and hour. Qua the other two, he had identified them only by their dress. In his cross-examination, he admits that in the complaint, he had not named anybody specifically and suspects the act of robbery. The complaint only stated that he suspected certain "unidentified persons". He further admitted that after 8 to 10 days of the incident, he was called to Una police station where certain individuals were presented before him as suspects of the incident of 18.01.1992. However, according to him, they were not the persons who had carried out the act in question. Eight days after having gone to Una police station, it is in the test identification parade that he identified accused No. 1 and accused No. 3. 11. PW-5, Lakhiben who is supposed to be an eyewitness to the incident, from whom the suspects had taken the key to open the cascade, in her testimony, does not reveal either the description or identity of the persons who had come to her house on the night of 18.01.1992. 12. With the version of these witnesses examined in light of the version of PW-9; the Executive Magistrate who carried out the test identification parade, it comes out from the cross-examination of this witness that Lakhiben was a part of test identification parade, is a fact, which, he was not sure of. 13. The test identification parade was carried out a few days after the accused No. 1 and accused No. 3 were arrested on 27.01.1992, which fact is borne out from the testimony of the Investigating Officer, PW-11 Harjibhai Sukhabhai Bodat who was examined at Exh. 33. 13. The test identification parade was carried out a few days after the accused No. 1 and accused No. 3 were arrested on 27.01.1992, which fact is borne out from the testimony of the Investigating Officer, PW-11 Harjibhai Sukhabhai Bodat who was examined at Exh. 33. The Investigating Officer in his examination-in-chief, categorically stated that the accused were arrested merely on the basis of suspicion. The test identification parade was carried out subsequently. 14. On the basis of assumption of evidence, it has become apparent that at the first point of time when the complaint was lodged by Khokharbhai, he did not name any individual whom he suspected to carry out the act. The evidence of this witness, as is indicated from the testimony, is that only on the basis of identity he could suspect the individuals on the sight that one of them was wearing a black trouser and a black shirt. In the cross-examination of this witness, it comes out that on the basis of this suspicion of the identity of the accused, the police at Una periodically presented before him individuals, which he could not link with the incident in question. 15. After the arrest of the accused which admittedly also was pressed as is evident from the deposition of the Investigating Officer, test identification parade was carried out where the accused No. 1 and accused No. 3 were identified by the complainant and his father. From the testimony of Lakhiben that she had identified the accused is a fact that is missing. The Executive Magistrate in his examination-in-chief as well as in cross-examination, does not support the fact that Lakhiben was also part of the test identification parade which was carried out. 16. The identities of the accused therefore by virtue of the exercise of the test identification parade is highly suspected. 17. Based on this evidence and based on the testimonies of the panch witnesses, by virtue of which the weapons and the ornaments were recovered, the learned judge found that the evidence was not credible and therefore, the case against the accused was not proved that warrant imposition of conviction and the sentence for the offence charged. He therefore gave the accused benefit of doubt and acquitted the accused for the offences they were charged of. 18. He therefore gave the accused benefit of doubt and acquitted the accused for the offences they were charged of. 18. Having found as referred to herein above that the identity of the accused itself could not be clearly revealed on the basis of test identification parade, particularly in view of the fact that even in the first information report of the subsequent testimony of the complainant, the complainant himself was unsure of the identity of the accused, benefit of doubt given by the Trial Court and the resultant acquittal need not be interfered with at our hands. 19. The criminal appeal is dismissed. R & P to be transmitted back to the Trial Court.