STATE OF GUJARAT Vs. MAHENDRA (RATILAL) HARJIVAN LUHAR

JUDGEMENT

(1.) xxx xxx xxx.

(2.) Before we proceed to dissect the merits of the case, it may be stated that the present appeal had come up for hearing before the then Bench comprising of Mr Justice R. K. Abichandani and Mr Justice A. L. Dave. The said Bench, after hearing the parties, reversed the judgment and held the respondent guilty of the offences under Sections 302, 459 & 397 of the Indian Penal Code, reaching the conclusion that the prosecution had successfully established the charge levelled against the respondent, beyond reasonable doubts, but as he was not present in the Court, non-bailable warrant was issued. After the same was executed, the said Bench was shocked to know that the person who was brought to the Court pursuant to the non-bailable warrant was, no doubt, having the name 'Mahendra' but not the real culprit as he divulged that no doubt his name was 'Mahendra Harjivan Luhar', he was in fact not the perpetrator of the crime, his brother might be whose name was 'Ratilal'. Another warrant was, therefore, issued pursuant to which respondent was produced before the said Bench. The real facts then came to light. The judgment dictated by the said Bench was recalled and the appeal was then ordered to be heard afresh. Some time thereafter the appeal is assigned to us for hearing and disposal. The question of identity, of the real culprit, does not survive before us because Ratilal, the real culprit(respondent) who from the very beginning came out with his name as 'Mahendra' so as to put the authority and others to mistract and hoodwink, was confronted, and perusing the record as well as the notices and signatures on record, the said Bench reached the irresistible and the only possible conclusion that 'Ratilal', the present respondent was right from his arrest pretending to be 'Mahendra' was the real perpetrator of crime. When the said Bench made grilling inquiry putting necessary question, Ratilal, the present respondent admitted that he was the accused who was arrested and tried in the lower Court. It could also be found that some times respondent represented himself as "Narendra" also. He then filed the affidavit to that effect on record. His Ld. Advocate Mr. K. M. Sheth also made it clear before us at the commencement of the hearing that he was representing 'Ratilal', the respondent, who is according to the case of the prosecution, real culprit and who misrepresented himself to be 'Mahendra' right from inception. Thus, the question regarding the identity of the accused is set at rest. It may be mentioned here that Karsan Uka Ex. 14, Chothiben Kalabhai Ex. 21, Gopal Khimji Ex. 22, Bhura Khimji Ex. 27, Kanji Jiva Ex. 28, Mukeshbhai Vasudev Ex. 36, Abdul Isha Ex. 38, Bharatbhai Kishanbhai Ex. 39, Himatbhai Raghavbhai Ex. 40, have also in the Court identified the accused-respondent making it clear how they came to know him, and from what day.

(3.) This is the appeal wherein order of acquittal is challenged. We are conscious about fact that ordinarily, we cannot disturb the order of acquittal rendered by the Court below on the ground that out of two reasonably possible views, our view is better than the view of the lower Court; but we can upset the same in appeal if we find that the approach of the Trial Court is manifestly erroneous and the conclusions drawn are wholly unreasonable, perverse and two views are not possible. For such view, a reference of the decision of Apex Court in Bharward Jakshibhai Nagjibhai v. State of Gujarat 1996 (1) GLH 226 may be made.