STATE OF GUJARAT Vs. AHMAD ALIBHAI THARANI

JUDGEMENT

(1.) The State has come by way of Appeal against the order of acquittal of the respondent. Mr. M. A. Bukhari, learned A. P. P. appearing for the State argued that the learned Trial Judge has erred in acquitting the respondent of the charges levelled against him. The charge against the respondent is that on 18-10-1982 at about 4 o'clock in the evening, he has caused death of Roshanbehn, wife of Feroz Rahim Hussain Gard, by smothering or by any such acts of his, or with his knowledge that the death of the deceased would occur, he had smothered the deceased and thereby committed an offence under Section 302 of the Indian Penal Code; that at the same time and place the respondent committed robbery of the belongings of the deceased Roshanbehn in the form of golden and silver ornaments from the cupboard, wrist-watch, alarm piece and other articles belonging to her and thus has also committed offence under Section 394 of the I. P. C. and in order to commit the offence of robbery, he has intentionally caused death of the above referred Roshanbehn. After murdering her, he has taken away the ornaments worn by her on her body and other belongings and thereby committed offence under Section 397 of the I. P. C. He argued that the charges are very serious of having committed murder and robbery. The prosecution has examined as many as six witnesses in the form of Rahim Hussain Mohammad-Exh. 9, Feroz Rahim Hussain-Exh. 63, Ashikbhai R. Hussian-Exh. 50, Amita Ashokbhai-Exh. 43, Ranvir Nur Ali -Exh. 59, Zarina Mur Ali-Exh. 45, he argued that these are the witnesses who have deposed to have seen the accused at the relevant time at different places starting from the shop of Rahim Hussian-Exh. 9 to the street in which the house of Feroz Rahim Hussain-Exh. 63 is situated, in which the deceased Roshanbehn resided.

(2.) It has to be borne in mind that the case is not proved by direct evidence or on eye-witnesses. It has to be proved from circumstances and, therefore, the identity of the accused to connect him with the crime has to be definitely proved by the prosecution. Learned Judge, while dealing with the evidence of the witnesses who are said to have seen the accused, has shown that none of them know the respondent. He was an unknown person to them. The only connecting link in the identification parade and as has been elaborately discussed by the learned Trial Judge in his judgment, the identification parade has been held to create prejudice to the respondent. Therefore, the same cannot be made use of much less to be used in order to convert the acquittal into a conviction. We are in agreement with the learned Trial Judge that at the time of identification, the necessary care has not been taken by the authorities that there is every possibility of the identity of the accused being leaked to the witnesses or at least the accused was in such a position as to be identified on mere asking. One strong reason that was considered by the learned Judge was that at the time of the identification parade, the accused was brought with open face so as to expose him to the public and the possibility of the witnesses identifying the accused at the identification parade is not ruled out. The other strong argument against the prosecution is that the other persons who were brought for identification were all Hindus as against the lone Muslim respondent. With respect to some of the witnesses, it is shown that they were shown the photographs of the accused before they came to the identification parade. In this state of affairs, it is not at all safe to hold against the respondent about his identity particularly so as to connect him with the crime.