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Judgment
Akil Kureshi, J.—These appeals arise out of the common judgment of the learned Additional Sessions Judge, Bhavnagar dated 17.10.2008 rendered in Sessions Case No. 77 of 2004. Appellant of the Criminal Appeal No. 2999 of 2008 was original accused No. 4. Appellant of the I Criminal Appeal No. 43 of 2009 was original accused No. 1. They along with other two accused were charged with commission of offences punishable under Sections 394, 397, 307 and 302 of the Indian Penal Code read with Section 114 thereof. They were by the impugned judgment convicted for the said offences. For the offence u/s 302 of the Indian Penal Code they were sentenced to imprisonment for life. For the remaining offences lesser punishment was imposed. Substantive sentences were made concurrent. Original accused No. 2 was acquitted. Accused No. 3 was absconding, his trial was separated. These two convicts have therefore preferred separate appeals challenging the said judgment dated 17.10.2008. Briefly stated the prosecution version was that, on 27.11.2003 deceased Ashokbhai and his companion Dilipbhai were travelling on a motorcycle at night at around 9:30 to 10 between Padwadar and Raniyala villages. They were assaulted by the accused with sticks and logs of wood. Serious injuries were caused on both the persons. Ashokbhai died on the spot. Dilipbhai lost his consciousness. Since they did not return home in time, their relatives started looking for them. During the search they were found at the scene of the incident. Initially missing-cum-persons report was lodged with the police. When it was found that they were assaulted, FIR was lodged before the concerned Police Station.
Charge was framed at Ex. 7 alleging that on the night of the incident when deceased Ashokbhai and Dilipbhai were traveling on motorcycle, near village Malpara, near a river their motorcycle was lying, Ashokbhai had received injuries, he had died. Dilipbhai was also injured, but still alive. Their valuable articles, such as cash and ornaments were missing. The accused had after assaulting them with wooden sticks and logs of wood decamped with valuable articles and thus committed offences punishable under Sections 394, 397, 307 and 302 read with Section 114 of the Indian Penal Code.
Jethabhai Premjibhai, P.W. No. 1 Ex. 34 deposed that, in the early morning at 6 O''clock (after the date of the incident) one Babubhai Dhanjibhai came to his house and informed that Ashokbhai and Dilipbhai had started from village Padwadar at about 8:30 at night, but not returned home. He and Madhubhai therefore left for village Padwadar on the motorcycle to look for them. On the way near Village Malpara close to the river they found that the motorcycle was lying there. Their further search revealed two persons lying between Village Padwadar and Raniyala. They had multiple injuries on the body. They were bleeding. Close to them two wallets were lying, two sticks and three logs of wood were lying nearby. Gold chain, two rings and watch worn by Ashokbhai were missing. Dilipbhai''s gold chain, wrist-watch, and three thousand rupees of cash were also missing. Dilipbhai was sent to hospital at Bhavnagar.
Dilipbhai Radhavbhai, P.W. No. 2 at Ex. 36 the injured witness deposed that on 27.11.2003 he and Ashokbhai had started from Village Padwadar between 9:30 and 10 O''clock on a motorcycle. Ashokbhai was driving the motorcycle. Between Padwadar and Raniyala three people were standing on the road carrying logs of wood. On the moving motorcycle he was given a blow with such piece of wood. Both of them fell down. They started beating both of them with the wooden pieces on the head, on the face and on the back. He lost consciousness. When he regained consciousness, he was in a hospital. The person who given him the first blow was wearing white pants and white shirt and he was slim and aged about 20 to 22 years. He had seen all three of them in the light of the motorcycle. He identified the three accused before the Court as the assailants. He identified some of the valuable articles recovered during the course of the investigation as those belonging to him and Ashokbhai.
4.1 In the cross-examination he stated that his statement was recorded after he regained consciousness few days later. He, however, stated that when the statement was recorded, he was not fully conscious. To a question, when the motorcycle fell down whether the head light went off or not, he could not give any definite answer.
Some of the mudamal articles stolen during the incident were recovered from the goldsmith to whom they were allegedly sold. The panch witnesses of recoveries, however, turned hostile. Additionally we notice that these articles were allegedly recovered not at the instance of the present appellants, but the acquitted accused No. 2. We would, therefore, not be required to refer to such panchnamas for the purpose of this judgment.
Dr. Anilkumar Yadav, P.W. No. 7 Ex. 72 had carried out the postmortem of deceased Ashokbhai and noticed multiple injuries on his body. According to him, the cause of death was due to brain hemorrhage caused by the injuries.
Dr. Rajendra Kabariya, P.W. No. 8 Ex. 75 was a private doctor stationed at Bhavnagar. He had treated injured Dilipbhai to whom he was brought on 28.11.2003. He deposed that he had operated Dilipbhai for brain hemorrhage and discharged the patient on 9.12.2003. He produced before the Court the injury certificate at Ex. 76.
Yashwantsinh Ramdevsinh Zala, P.W. No. 14 Ex. 95 was the Investigating Officer. He gave the detailed steps undertaken during the course of investigation. In the cross-examination he admitted that no test identification parade was carried out. Significantly he also agreed that before the commission of the present offence the accused were in jail in connection with the offences registered before Amreli and Liliya Police Stations.
This in the nutshell is the evidence on record. On the basis of such evidence learned counsel Mr. Tolia vehemently contended that identification of the present appellants was hugely doubtful. The incident took place late at night. The accused and the witness were not known to each other. No test identification parade had been carried out. Identification before the Court years later cannot be relied upon. In this respect he relied on the decision in the case of Kanan and Others Vs. State of Kerala, wherein it was observed that, it is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. The counsel also placed much reliance on the admission of the Investigating Officer that the accused were already arrested previously before the date of the present offence.
On the other hand, learned APP Mr. Jani relied heavily on the evidence of the injured eyewitness Dilipbhai P.W. No. 2, who had identified all the three accused before the Court.
In so far as the nature of the incident, the fact that Ashokbhai was killed with the blows of wooden sticks and logs of wood, the fact that Dilipbhai was seriously injured during the same incident and the fact that both these persons were robbed of their cash and valuables, there is simply no doubt in our mind. From the clear evidence of the witnesses and in particular P.W. No. 2 Dilipbhai it has clearly come on record that Dilipbhai and Ashokbhai set out from Village Padwadar at about 9:30 night on 27.11.2003. They did not reach home till next morning. Their relatives therefore started looking for them. In the morning hours of 28.11.2003 they were found between Padwadar and Raniyala. The motorcycle was lying on the ground. Ashokbhai was lying dead, a little further Dilipbhai was lying unconscious but still alive. Their cash and valuable articles were missing. This was duly supported by the medical evidence in the form of Dr. Anilkumar Yadav P.W. No. 7, who carried out postmortem and Dr. Rajendra Kabariya, P.W. No. 8, who treated injured Dilipbhai. The crucial question is, was the involvement of the present appellants established?
To this last question, our answer clearly has to be in the negative. Firstly, there was no discovery or recovery made from these accused. No mudamal articles, murder weapon or blood soiled clothes were recovered. Whatever recoveries made of ornaments were made at the instance of the acquitted accused No. 2. In any case, panch witnesses to such recoveries turned hostile. There was thus nothing to connect the present accused to the said offences in the form of evidence other than that of deposition of Dilipbhai P.W. No. 2.
Before analyzing evidence of this witness we may also recall that the Investigating Officer, Yashwantsinh Zala P.W. No. 14 at Ex. 95, in clear terms admitted that before the present incident, the accused were already arrested in connection with the offences registered before Amreli and Liliya Police Stations. The record suggests that these accused were arrested through arrest warrants on 4.2.2004 when they were in jail in connection with Criminal Case bearing CR No. 80 of 2003 registered before Gadhda Police Station for the offence u/s 394 read with Section 114 of the Indian Penal Code. When so much was the evidence and when such was the admission of the Investigating Officer, in our opinion, the prosecution owed a duty to establish on record under which circumstances the accused were able to commit the crime in question. It is true that the admission of the Investigating Officer can be read as to mean that they were arrested earlier in connection with other offences. This admission does not necessarily mean that on the date of the incident they were under detention. It may be, on the date of the incident, they were on bail. Nevertheless in face of such admission by the Investigating Officer himself and in view of the fact that these accused were arrested pursuant to transfer warrant in connection with the crime registered in another Police Station in the year 2003, the prosecution owed a duty to bring further evidence on record to establish under which circumstances they were roaming at large so as to be able to commit further offences. No such evidence was led. The question whether these accused were therefore at large and, therefore, able to commit the offence in question becomes hugely doubtful.
With this background we may revisit the evidence of Dilipbhai P.W. No. 2. We may recall, as per this witness himself he and Ashokbhai had set out from Village Padwadar at about 9:30 at night on the motorcycle. They were traveling on the village road where near a river they were assaulted by three people carrying sticks and wooden logs. First blow was given to Dilipbhai who was the pillion rider. As soon as the riders fell down, due to this blow, the assailants started giving repeated blows on their head and other parts of the body. Dilipbhai by his own account quickly lost consciousness. His identification of the accused before the Court more than two and half years later would be extremely unsafe to rely upon.
To begin with, the accused and the witnesses were total strangers. The incident took place late at night at about 10 O''clock. There was no other source of light except the head light of the motorcycle. The blow was given to Dilipbhai who was a pillion rider, obviously therefore after the motorcycle would have crossed the assailants. As soon as the motorcyclists fell down on the ground, the assailants gave them several blows on the head. Dilipbhai was not certain whether when the motorcycle fell down its head light also went off or not. He himself lost consciousness due to the injuries. No test identification parade was carried out. The witness thus had the occasion to identify the accused before the Court for the first time more than two and half years later. All these factors would unerringly point to only one conclusion viz. that the identification of the accused by this witness before the Court simply cannot be relied upon, more so when this is the sole factor to connect the accused with the commission of the offence. As already noted there was no other independent evidence or any circumstance brought on record which would even remotely connect the accused with the crime.
In our opinion, therefore the trial Court committed serious error in convicting the accused for the offences in question. In the result, the judgment of the trial Court is reversed. Conviction and sentence of both the accused are set aside. Both appeals are allowed. The appellants-accused may be released forthwith if not required in any other criminal case. R & P to be transmitted to the trial Court. Before closing we may record that our judgment is based on evidence brought on record in this sessions trial and would have no bearing on the trial if pending against the absconding accused.