KALUBHAI ISABHAI JUNEJA (DAFER) Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present appeal is preferred by the appellant under the provisions of Section 374 (2) of the Code of Criminal Procedure Code, challenging the legality and validity of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gondal, in Sessions Case No.35 of 2004 on 12th January, 2005. The appellant-accused has been charged and tried for the offence punishable under Section 394, 397 and 212 of the Indian Penal Code wherein at the end of trial the learned Judge was pleased to convict the appellant for the offence punishable under Sections 394 and 397 of the Indian Penal Code and sentenced them as under:

(2.) Mr.Hemang R. Raval, learned Advocate for the appellant has taken this Court through the various grounds of challenge as mentioned in paragraph 4 of the memo of appeal. It is submitted that the accused ought to have been acquitted from the charges levelled against him or at least he was entitled to benefit of doubt in the background of crucial fact that similarly situated three accused persons were acquitted at the conclusion of trial and the present accused person even as per say of prosecution is one of the co-accused. There is no material difference in the nature of evidence led by prosecution against the present appellant, vis-a-vis the evidence led against the three acquitted accused persons, who had been tried as accused of Sessions Case No.154 of 1995. The difference in the evidence of present case is insignificant in nature and it was not safe for the trial Court to place reliance on the evidence of the complainant who claims to have identified the appellant-accused alongwith other three acquitted accused persons. There are number of infirmities in evidence led by prosecution. No muddamal has been recovered at the instance of accused nor from the custody of the accused. The test identification parade was arranged after nine years of the incident. Ultimately, the evidence collected in the form of test identification parade, as per settled legal position is not a substantive piece of evidence and when complainant claims that he is able to identify the accused even after nine years in open Court, this aspect ought not to have been given any weightage than required especially when he was not believed on the very crucial aspect qua the rest of the accused persons who have been acquitted by the trial Court in Sessions Case No.154 of 1995.

(3.) When this matter was listed for final hearing, certain deliberations were made but at the outset the Court found that the papers of Sessions Case No.154 of 1995 were not before this Court so in the interest of justice the Court found that the judgment of acquitted accused persons recorded by the learned trial Judge of the same crime should be looked into otherwise it is likely to cause serious prejudice either to prosecution or to the present appellant-accused and therefore the Registry on the strength of the order passed by this Court has called for the papers of Sessions Case No.154 of 1995 and those records and proceedings are made available to the Court for perusal. This Court is not supposed to consider any part of evidence or evidence tendered in the Sessions Case No.154 of 1995 which was earlier tried. It would be nothing but an extraneous consideration. However, the learned Advocate appearing for the appellant has very well relied upon the finding recorded by the learned trial Judge in respect of three accused persons who have been acquitted and their acquittal appears to have become final. Because, according to Mr.Raval and Mr.Bhate, ld. A.P.P., as per available information no acquittal appeal has been preferred by the State against those acquitted accused persons of Sessions Case No.154 of 1995. So, without entering into merits of other pieces of evidence, according to Mr.Raval the present appeal requires to be allowed and appellant may be acquitted by observing that it would not be safe for this Court to accept the say of complainant as gospel truth that he was able to identify the accused during the test identification parade even after lapse of about nine years and he has identified that person and his evidence of identifying the accused in the open Court should be treated as a very weak piece of evidence because the name of the accused was very well reflected in the charge framed of Sessions Case No.154 of 1995.