STATE OF GUJARAT Vs. KANJI KHIMJI @ FARKO

JUDGEMENT

(1.) THE present Appeal is filed by the State of Gujarat against the respondents being aggrieved by the order of the learned Additional Sessions Judge, Gondal dated 15.2.1986 in Sessions Case No.47 of 1985.

(2.) ACCORDING to the prosecution case, on 29.4.1985, all the accused persons had gone to the residence of deceased Umiya Shankar. Deceased Umiya Shanker owed some money to respondent No.1 When the demand was made, according to the prosecution, there was altercation between the parties and a slap was given by respondent No.1 to the deceased. The deceased, therefore, ran inside the house. It is said that he was followed by respondent Nos.1 and 5 in the house, wherein the deceased entered into the room and where respondent Nos. 1 and 5 entered and respondent Nos. 2,3 and 4 remained outside. According to the prosecution, coming of the accused persons was witnessed by three witnesses, namely (1) Bhavna Dadubhai -PW 27 (Exh.65) (2) Vinod - PW 26 (Exh.63) and (3) Amrutben -PW 25(Exh.61).

(3.) THE learned Trial Judge has examined the case of the prosecution. In light of the evidence adduced by the aforesaid three eye witnesses, none of these witnesses were known to the accused. Out of the three witnesses, Bhavna and Vinod are child witnesses. They are alleged to have seen the accused having come and quarreled with the deceased. It is alleged that when the quarrel started, they went to call Amrutben - mother of the deceased and Amrutben, thereafter, arrived. Thus, the case of the prosecution is that none of these witnesses have seen the actual occurrence which took place in the room. The learned Trial Judge has not believed the testimony of the eye witnesses because neither the names of the accused were given nor their roles were described in the FIR or the police statement. Thus, the material detail of the prosecution case was absent in the statement of these witnesses. For the first time, the witnesses identified the accused in the T.I. Parade held on 11.5.1985 and 12.5.1985. The learned Trial Judge has gone into details of the T.I. Parade, wherein it is stated that in the office of the Mamlatdar, the accused and the witnesses were called and kept in a separate room. Then, eight persons who were brought from outside and the persons present in the office, mixed with the accused. The learned Trial Judge was of the opinion that this approach wherein the witnesses and the accused were kept in the office awaiting and then private persons from outside were brought in, is a curious fact. Such mixing is easily distinguished and, therefore, T.I. Parade was not given credence by the learned Trial Judge.