STATE OF GUJARAT Vs. RAMSEVAK GEYADIN PANDIT

JUDGEMENT

(1.) The facts giving rise to this appeal may be summarised thus: In the early hours of 23rd October 1981 at about 3.15 a.m. the house of the complainant, named Bipinchandra Mafatlal Soni was visited by some four unidentified robbers and the valuables worth Rs. 72,210/- were robbed from his house. The complainant was the resident of the city of Patan. He lodged his complaint of the incident with the Police Station. His complaint was registered with respect to the offence punishable under Section 395 read with Sections 397 and 398 of the IPC and also with respect to the offence punishable under Section 25(c) of the Arms Act so far as accused No. 1 was concerned. In the course of investigation accused No. 1 was arrested in the evening on that very day that is on 23rd October, 1981. At his instance, one motorcycle and other articles styled as muddamal articles Nos. 1 to 14 packed in one bag styled as muddamal article No. 15 were discovered and recovered in the presence of two panchas. The panchanamas in that regard are Exhs. 19 and 20 on the record of the case. The other three accused participating in the robbery in the house of the complainant remained absconding. Some four persons were alleged to be standing on the road in front of the complainant's house and it was alleged that they aided and abated the commission of the crime. On completion of the investigation, the necessary charge-sheet against in all five accused was submitted to the Court of the Judicial Magistrate (First Class) at Patan. Since the case was triable by the court of Sessions, the learned Judicial Magistrate (First Class) at Patan committed it to the Sessions Court of Mehsana for trial and disposal. It came to be registered as Sessions Case No. 55 of 1982. It appears to have been assigned to the learned Assistant Sessions Judge of Mehsana. The charge against the accused was framed on 22nd June 1982. It is at Exh. 3 on the record of the case. No accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence, the further statement of each accused was taken down. Each of them denied the prosecution case in toto in his defence. No accused stepped into the witness box in defence nor was any evidence led in defence at trial. After hearing arguments by his judgment and order passed on 17th July 1982 in Session Case No. 55 of 1982, the learned Assistant Sessions Judge of Mehsana acquitted the accused of the charge levelled against them. The aggrieved State of Gujarat has, therefore, preferred this appeal before this Court questioning the correctness of the impugned judgment and order of acquittal.

(2.) Shri Shelat the learned Addl. Public Prosecutor for the appellant-State has taken us through the entire evidence on record and has tried to convince us that the prosecution in the instant case has been able to bring the guilt home to the accused beyond any doubt at least qua accused No. 1, that is the respondent herein. Shri Shelat for the appellant- State has submitted that the learned trial Judge was not right in disbelieving the identification parade as well as the discovery of muddamal articles Nos. 1 to 14 at the instance of the respondent herein. We are unable to agree with the aforesaid submission urged before us by Shri Shelat for the appellant-State.

(3.) So far as the identification parade is concerned, the learned trial Judge has found several infirmities therein raising a serious doubt about the genuine identity of the respondent as one of the chief culprits. The first infirmity found by the learned trial judge was to the effect that there was delay of one month and four days in holding the identification parade. It is an admitted position on record that during this period of one month and four days the respondent herein remained in the beginning in police custody and later on in judicial custody. The possibility of his exposure to the material witnesses for his identification by them cannot altogether be ruled out on account of such delay in holding the identification parade. Such inordinate and undue delay in holding the identification parade was sought to be explained by the prosecution by suggesting that the Executive Magistrate was busy in panchayat elections and as such the identification parade could not be held earlier. The learned trial Judge has found this explanation to be without any substance. As found by the learned trial Judge, the Executive Magistrate at Exh. 24 had nowhere stated that he was busy in panchayat elections and that is why he could not hold the identification parade as expeditiously as possible. This infirmity by itself would be sufficient to render the identification parade as of no consequence.