FAKRUDDIN AND ORS. Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed against the judgment and order dated judgment and order dated 18.5.2006 passed by learned Special Judge, City Sessions Court No. 9, Ahmedabad City, in Atrocity Criminal Case No. 5 of 2003. By the impugned judgment, learned trial Judge has convicted the accused persons for the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code (for short, "IPC") and sentenced them to suffer rigorous life imprisonment and two years' rigorous imprisonment was awarded to the accused for offence punishable under Sec. 201 of IPC. For offence under Sec. 364 of IPC, the accused were awarded two years' imprisonment. For offence under Sec. 135(1) of the Bombay Police Act, the accused were awarded one month's imprisonment. Fine of Rs. 5,000/ - each was imposed on the accused, and in default of payment of fine, rigorous imprisonment of six months was imposed. All the sentences were ordered to run concurrently. Being aggrieved by the impugned judgment, accused persons have preferred present appeal.

(2.) The facts in brief giving rise to the filing of present appeal are as under:

(3.) Mr. B.B. Naik, learned Senior Advocate appearing with Mr. M.M. Tirmizi for the appellants -original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Mr. Naik submitted that the trial Court has committed an error in convicting the appellants on the basis of statements of four prosecution witnesses, who were recalled and whose statements were again recorded by the trial Court. He further submitted that these four witnesses i.e. PW -1, PW -2, PW -3 and PW -4 have deposed totally against their earlier statement recorded in the same case, therefore, their statements cannot be relied upon to convict the accused. He submitted that these four witnesses were claiming to be eye -witnesses in Atrocity Criminal Case No. 1 of 2005 and they have deposed totally in contradiction to their earlier statements recorded in Atrocity Criminal Case No. 5 of 2003. He further submitted that this case is based on circumstantial evidence and there is no evidence except the statements of these witnesses to involve the appellants in the offence. He further submitted that these witnesses were recalled in view of arrest of absconding accused and filing of supplementary charge sheet against them, therefore, there was no need to record their statements with regard to present appellants -accused Nos. 1 to 4, as their statements were already recorded in this regard. He further submitted that by relying upon subsequent statements, the accused have been convicted and thereby the trial Court has committed serious error. He further submitted that panchas and other witnesses have turned hostile. He also submitted that Indumatiben, widow of the deceased in her statement recorded on 16.3.2005 in Atrocity Criminal Case No. 1 of 2005 has stated that she had not given names of any of the accused in the complaint and no Test Identification Parade was carried out and none of the accused were identified by her. Therefore, by relying upon such evidence the accused could not have been convicted, as per the submission. He further submitted that another witness Dharmesh Devanand Solanki, Son of the deceased, in his evidence recorded on 23.3.2005 in Atrocity Criminal Case No. 1 of 2005 has deposed totally contrary to his earlier statement recorded in Atrocity Criminal Case No. 5 of 2003. He further submitted that in the cross -examination of this witness, he has categorically stated that it was completely dark at the place from which his father was taken away by the accused and faces of the accused were covered. He also deposed that no Test Identification Parade was held. This witness has also stated that stone pelting was so heavy that nothing could be seen and since faces of the accused were covered, he was not in a position to identify them and he was not knowing them earlier also. PW -3, Dilipbhai Nanjibhai had turned hostile. So far as evidence of PW -4, Vishwanath Kantilal Shrimali in Atrocity Criminal Case No. 1 of 2005 is concerned, he submitted that there are serious contradictions in the statements of this witness also. He further submitted that all these witnesses have improved upon their earlier statements and the trial Court has committed an error in convicting the accused only on the basis of such statements of the accused. He further submitted that considering all these aspects of the matter, this appeals may be allowed by setting aside the impugned judgment convicting the accused.