LALARAM PUTTULAL SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned counsel for the parties. The admitted facts are that there are two deceased in the case. Both of them have died, according to the prosecution, by gunshot injuries. This is also admitted that none of the accused persons who were tried and are before this Court in appeal against conviction and the appeals against acquittal were assigned guns. The accused who are attributed guns are at large and have not been apprehended. This is also admitted that there are only two pieces of evidences relied on by the trial Court, namely, one test identification parade before the Executive Magistrate and another recovery of weapons like lati, dharia, pipe, kodali. None of these weapons are said to have been the weapons which were responsible for causing death of the deceased because the deceased died due to gunshot injury. In the aforesaid circumstances when we have been informed that the test identification parade is the basis of conviction, we record here with shock that unless test identification parade is followed by substantive identification in Court, that cannot be relied on as the piece of evidence. In this case the witnesses have, admittedly, not identified the accused in Court. In the Court they have stated that these are not the accused persons who are responsible for causing injury. The witnesses have even gone to the extent of denying the fact that before the Executive Magistrate they have identified the accused in identification parade. A clean chit has been given to the accused because none of the 11 witnesses have supported the case of prosecution. The only evidence relied on by the trial Judge is panchnamas. Recovery of weapons is not forming substantive piece of evidence and test identification is a piece of evidence which is subject to doubt. In that view of the matter, the conviction as recorded against the accused persons is unsustainable. Since the conviction is unsustainable, the appeal filed by the State for enhancement of sentence cannot survive. So also appeal against acquittal of the other accused persons would not survive because the eye witnesses have categorically stated that these were not the persons who were responsible for causing injury to the deceased. There are two other accused persons who are at large who were the actual assailants as alleged. In that view of the matter, the appeal filed by the convict-appellants deserves to allowed. In the result, the appeal filed by the appellants against their conviction and sentence is allowed. They are acquitted of the charges levelled against them. Sentences against them is set aside. Convict-appellants are behind the bars. They are ordered to be released forthwith if not required in any other case. The appeals filed by the State for enhancement of sentence and against the acquittal of the other accused persons are dismissed.