MOHAMMED SAYIED GULAMHUSAIN SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE five appeals arise out of the same decision. Therefore, they are being decided by common judgement. These five appeals relate to an incident occurred on 20. 7. 1999 when there is said to be a commotion backed by communal feelings. In that, according to the first informant Pandit Gangaram Patil the deceased was seen on a motor-cycle. He was injured and therefore he was brought. Though he was taken for treatment to the hospital, he succumbed to the injuries. On the basis of the statement of PW-8 Pandit Gangaram Patil, first information report was lodged. Thereafter, investigation was conducted. Chargesheet was filed against five accused persons.

(2.) IT has been urged on behalf of the defence that in the first place on 20. 7. 1999 when the incident took place pw-8 Pandit Gangaram Patil lodged the FIR. No names of the accused were given. Not only this, names of the accused persons were not given by two injured persons, namely, Surendrakumar and Dinesh having been produced by the prosecution to support its case. This is precisely for the reason that at the identification parade these two injured persons refused to identify any of the accused persons when they were put to identification. Since they did not identify the accused persons, the prosecution failed to support its case. In this background, we have to examine whether the trial Court has correctly convicted five accused persons for the offences alleged against them or not. It has been put to the statement of PW-8 Pandit Gangaram Patil, the first information. His statement has been read. He, in his examination, has stated that he saw the injured. He brought him to the hospital but he has not identified any of the accused persons in Court and also they were not named before the Court. If this witness refuses to identify the accused in Court then a serious doubt arises whether these accused persons were the accused persons who were responsible for injuring the deceased. Apart from this witness, there are two other eye witnesses namely PW-11 Kantibhai Salubhai Damor and PW-14 Chimanbhai Bhikhabhai Baria. These two witnesses were not examined. That on 27. 7. 1999 the statement of these witnesses was recorded i. e. after one week. It goes against the prosecution that apart from the late examination of the witnesses, none of them have identified the entire lot of accused persons. PW-11 Kantibhai Salubhai Damor has identified two accused person i. e. accused Nos. 1 and 2 namely Nasirkhan Mahebubkhan Pathan and Mohamad Saiyed Gulamhusen Shaikh and PW-14 Chimanbhai Bhikhabhai Baria has identified accused Nos. 3, 4 and 5 namely Abdulvahid @ Bambaiya Luxariya Driver Fakir Mahmad Shaikh, Altafhusen @ Kaliyo Ahemadhusen Shaikh and Rafikahemad @ Rafik Tikawala Gulammahemad Shaikh. Therefore, they also did not corroborate each other about implication of various accused persons. Identification parade was held on 15. 9. 1999 for the first time. That was not the solitary identification parade. Multiple identification parades were held. In the background that two eye witnesses have not identified the correct accused persons all of them and multiple identification parades were held. The first informant having not identified the accused in the Court or at the identification parade then there has been a serious doubt about the prosecution case. If the witness has not identified the accused in the Court or at the identification parade to pinpoint who is the actual accused then that is hazardous to the prosecution. In that background, we are constrained to observe that the prosecution has murdered its case and has not seriously conducted in pinpointing the actual accused.

(3.) THE first informant has identified accused No. 4 Altafhusen @ Kaliyo Ahemadhusen Shaikh but in Court he did not identify the accused and withheld this proposition.