MOTILAL GAJARBHAI CHASISIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) On 8-5-1985 this incident took place at about 5 A.M. between Nainpur and Kanij Railway Stations on Ahmedabad-Baroda railway track. Bakulkumar Raval and some others were travelling by this train. We are not concerned with the other persons travelling by this train and who were examined as prosecution witness at the trial because the present petitioner is convicted only on the evidence of Bakulkukar Raval as regards his identity. At about 5.30 am. this Bakulkumar Raval awoke on hearing the shouts and found a person standing there with a knife in his hand and he had pointed the knife at his body. There were 6 to 7 persons. The wrist watch which he had put on was snatched away by one of them. The person who snatched away the wrist watch was having fairly white skin, was able-bodied and was about 5-8" tall and he had put on a blue jersey and black pant. The person who had taken away the wrist watch was single- bodied person and had put on white pant and bush shirt and his height was about 5"- 4" and he had moustaches and was also having fairly white skin. The person who committed robbery went away after committing the offence. About four months thereafter the present petitioner was arrested and one month thereafter he was identified by this Bakulkumar at the identification parade. He was tried along with others before the learned Assistant Sessions Judge, Kheda at Nadiad. The learned Assistant Sessions Judge convicted this petitioner of the offence punishable under Section 395 I.P.C. and sentenced him to rigirous imprisonment for five years and to pay a fine of Rs.500/- and in default to rigorous imprisonment for three months more. The matter was carried in appeal before the same Court and the learned Addl. Sessions Judge who heard the appeal confirmed the order of conviction and sentence so far as the present petitioner is concerned. Being dissatisfied with the same this Revision Application has been filed before this court.

(2.) Mr. Kartikeya Raval appointed for the petitioner has been heard. Mr. G.D. Bhatt, learned Addl. Public Prosecutor for the State has also been heard. I have also gone through the judgment of the learned Addl. Sessions Judge delivered in appeal and also through the material evidence on record. It is true that the Courts below have reached a concurrent finding of fact, relying on the evidence of Bakulkumar Raval that the identity of the present petitioner as one of the decoits is established. This court will be slow in interfering with such a finding recorded by the trial Court and confirmed in appeal. But here is a case which depends solely on the identification by a single witness. I do not propose to lay down that no conviction can be based upon the sole testimony of a single witness based on identification at an identification parade, but there are peculiar features of this case. The incident took place on 8-5- 1985. The statement of this Bakulkumar was recorded about four months thereafter. This accused was arrested about two days after the statement of Bakulkumar was recorded. Then after a month identification parade was held. Some explanations are given in this regard, but the fact remains that the incident took place in the early hours of 8-5-1985 and the statement of Bakulkumar was recorded for the first time by the police officer about four months thereafter and the identification parade was held one month after the arrest of the petitioner. These facts have to be borne in mind while considering the case against the petitioner. It is pertinent to note that in the substantive evidence Bakulkumar Raval has stated that he had identified one person at the identification parade. He identified before the Court the accused-petitioner as the person whom he had identified at the identification parade. It is pertinent to note that the present petitioner was accused No.4 before the Court and not accused No.3 before the Court. But it appears that the original accused No.2 expired on March 3,1986, while the evidence of this witness was recorded on 18-3-1988. In view of this, it appears that the original accused No.4, the present petitioner must have been put up as accused No.3 before the Court But in the substantive evidence there is no such clarification while recording the evidence of this witnesses. It is only stated that the witness identified accused No.3. When original accused No.2 had expired and when the present petitioner was accused No.4 and not accused No.3 while recording the evidence of this witness, care should have been taken by the trial Court to write the name of the accused whom this witness identified in the Court Even otherwise also it is desirable that while recording the evidence, name of the accused who is identified by the witness should be invariably stated so that such a confusion may not arise. In the present case, we may take it that it was the present petitioner who was identified by this witness in the Court, though it is stated that he had identified accused No 3

(3.) The witness has then stated that this person was present at the time of this incident It is pertinent to note that he does not say anywhere in the substantive evidence as to what part was played by this accused. He does not say as to which weapon was there in the hands of this accused. It is only the substantive evidence before the Court which has to be taken into consideration at the trial. Unless the witness states at the trial that the person whom he identifies load played a particular part, that substantive evidence is of no value. The substantive evidence of this Bakulkumar only shows the presence of this petitioner at the time of mis incident. The substantive evidence does not show mat the petitioner was armed with a knife or any other weapon or that he had taken away the wrist watch of this Bakulkumar. The prosecution case is that the petitioner had taken away the wrist watch of this Bakulkumar, but the substantive evidence does not say so about the same. It is true that in me earlier portion of the examination-in-chief, Bakulkumar has stated as to how the incident took place and what the culprits: did, but he does not say a word about this petitioner except that he was present at the title of this incident. The substantive evidence, therefore, does not advance the case of the prosecution any further so far as the petitioner is concerned, assuming that Bakulkumar correctly identified the petitioner as one of the persons present in the train. Apart from this, so far as the identification parade is concerned, neither the substantive evidence nor the Panchnama prepared at the time of the identification parade shows that necessary care was taken at the time of identification parade. The names of the persons who were made to stand in a line along with the petitioner have been mentioned but their ages have not been mentioned. If there is a wide difference between the ages of the persons who were made to stand in the line vis-a-vis the age of the suspect who is to be identified, then it win be very easy for the person who has to identify the suspect by having a mere look at him. Neither the substantive evidence nor the Panchnama shows as to what were the ages of these persons. There is also nothing on record to show that proper care was taken to see that the witness Bakulkumar was not able to see the petitioner before he was called upon near the line to identify him. Sheikh Tajmohmed Nurmohmed is examined at Ex. 26. He was an Executive Magistrate in whose presence the identification parade was held. He has stated that the witness was made to sit in the affidavit room and his peon went to call panchas, while the identification parade was held in the meeting . hall of the Mamlatdar-office where 11 persons were called and two panchas were called. His evidence shows that the petitioner was called from the jail through police and the police left the two suspects including the petitioner in the meeting room. He has stated that the petitioner and the other suspect refused to change clothes and thereafter, one of the suspects was made to stand at serial No.4 and the other at serial No.7 and then the panch was asked to go and call the witness for identification parade. It is pertinent to note that the evidence of this witness shows that the petitioner and the other suspect were made to stand at a particular serial number. It does not show that the petitioner and the other suspect were given the choice to stand at whatever place they wanted to in 6th line. His evidence does not show that the meeting hall where the identification parade was held was not visible from the affidavit-room where the identifying witness was made to sit. The evidence of this witness does not show as to what were the ages of the 11 persons who were called to stand in the line. The Panchnama, Ex.25 prepared by him also does not show as to what were their ages. The Panchnama also does not show that the petitioner and the other suspect were given a choice of standing at whatever serial number they wanted to stand in the line, but it shows that the petitioner was made to stand at serial No.7, while the other suspect was made to stand at serial No.4. It is also pertinent to note that some portion of the Panchnama, Ex.5 is written in black ink and some portion in blue ink. Even the name of Sharifmiya the other suspect is written in black ink, while the name of his father and other details are in blue ink. No questions were, of course, put to the Executive Magistrate as regards this discrepancy in the ink, but it is so obvious that it is difficult to explain. Anyway, the material on record does not show that sufficient precaution was taken by the Executive Magistrate while holding the identification parade.