Gujarat High Court
State Of Gujarat vs Shivaji Manilal Machhi on 9 January, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/1062/2003 JUDGMENT DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1062 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
SHIVAJI MANILAL MACHHI & ANR.
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Appearance:
MS C.M. SHAH APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed under Sections 378(1)((3) of the Code of Criminal Procedure, 1973 emanates from the judgment and order dated 17.05.2003 passed by the learned District Judge, Vadodara in Sessions Case No.95 of 2002, acquitting the accused for the offences punishable under Section 307 read with Section 114 of Indian Penal Code, 1860 and Section 135 of Bombay Police Act, 1951.
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2. The case of the prosecution, as per the charge Exh.3 is that on 18.02.2002, during the marriage ceremony of one Ranjanben, which was arranged in Vishala Vadi near Lal Akhada Vadodara, both the accused who attended the marriage ceremony and were having their food which was being served by the injured witness No.3, had some exchange of words, which led to the alleged stabbing of injured witness by the accused No.1, while the accused No.2 had caught hold of the injured witness.
3. The injured witness was taken to the hospital on the very same day. In this regard, P.W.9, who is Dr. Udayprakash Hradayprakash at Exh.21 has proved the injuries, which was suffered by the injured witness - Ashokbhai Mohanbhai, P.W.3. The Medical Certificate at Exh.22 reveals that when he was brought in the hospital, he was in semi-conscious condition and he was having 5x3 cms. incised wound on his left side of his stomach and incised would of 3x1 cms. on his back. He was treated as an indoor patient for ten days and thereafter he was released. This incident culminated into registration of the FIR dated 18.02.2002 by P.W.1 - Kokilaben Natubhai Machhi, who is the relative of the injured witness. Before the Trial Court, ten witnesses were examined and the documentary evidence were also pointed out and after examination of ocular as well as documentary evidence, the Trial Court has acquitted the accused for the offence.
4. Learned APP Ms. C.M. Shah appearing for the appellant State has submitted that the Trial Court has acquitted both the accused without appreciating the evidence of the Page 2 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:16 IST 2025 NEUTRAL CITATION R/CR.A/1062/2003 JUDGMENT DATED: 09/01/2025 undefined witnesses more particularly, the injured witness. She has referred to the evidence of P.W.1, the complainant - Kokilaben Natubhai Machhi, and has submitted that her evidence clearly proves that the incident had occurred and the injured had suffered serious injuries on the stomach. She has also referred to the deposition of the injured witness P.W.3 - Ashokbhai Mohanbhai at Exh.14 and has submitted that he has categorically narrated the facts of the incident, and he has identified the accused No.1 in the Court.
5. While placing reliance on the judgment of the Supreme Court in the case of Shyamal Ghosh Vs. State of West Bengal, 2012 (7) SCC 646, it is contended by learned APP Ms. Shah that there was no need of undertaking the Test Identification Parade of the accused, and the identification of the accused by the witness for the first time before the trial court can be considered as valid evidence for establishing the identity and involvement of accused . She has also referred to the deposition of P.W.3, who is the brother of the accused and was an eye witness and submitted that though, he has turned hostile, his cross-examination would suggests that the accused were present and they had committed the offence. Thus, it is urged that the judgment and order passed by the Trial Court may be reversed.
6. We have examined the findings recorded by the Trial Court as well as the evidence, which has surfaced on record. As mentioned hereinabove, the entire case of the prosecution hinges on the deposition of the injured witness P.W.3, who was examined at Exh.14. As per the version of the Page 3 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:16 IST 2025 NEUTRAL CITATION R/CR.A/1062/2003 JUDGMENT DATED: 09/01/2025 undefined complainant P.W.1 and as per the charge, the incident had occurred on 18.02.2002 at the marriage ceremony of one Ranjanben. The charge specifically refers that the accused No.1 had inflicted knife blows on the stomach and back of the injured witness, while he was caught hold by the accused No.2 - Vijay Machhi.
7. In context of the charge, we have examined the evidence of the injured witness. A perusal of the evidence of the injured witness P.W.3 at Exh.14, reveals that the said witness has not even whispered about the role played by the accused No.2. There is no mention by him that he was caught hold by the accused No.2, while the accused No.1 had inflicted blows of knife on his stomach. Thus, a very vital and major aspect is missing in the evidence of the injured witness P.W.3.
8. In the cross-examination of the witness P.W.3, it is elicited that after he was inflicted the blows, he was unconscious whereas, the Medical Certificate at Exh.22 refers that when he was brought to the hospital he was in semi- conscious condition. He has also in cross-examination deposed that the assault occurred for half an hour, which is an exaggeration since in his examination-in-chief, he has categorically stated that the accused No.1 inflicted blows on his stomach and immediately fled away from the place of incident and thereafter he went unconscious. He has also deposed that he had inquired the name of accused No.1 while he was serving the food, when the accused No.1 asked him to serve more vegetable. The complaint at Exh.8 lodged by the complainant P.W.1, does not refer to any name of the accused.
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9. The brother - Sureshbhai Mohanbhai, and eye witness of the injured witness was examined as P.W.4 at Exh.15. The evidence of the brother of the injured witness on the contrary names accused No.2 - Vijay Machhi who has inflicted knife blows. He has turned hostile and has not supported the case of the prosecution. Similarly, other witness P.W.6 - Kallibhai Chimanbhai Machhi has also turned hostile. The serological report also does not support the case of the prosecution.
10. It is also pertinent to note that in the scene of offence, panchnama at Exh.11, it is recorded that there was an eye witness Shankerbhai Brajlal Dalvadi, who had actually seen the incident and was present at the time and place of offence and on his instruction the panchnama was drawn. He was also arraigned as a witness at serial No.18 in the charge-sheet. However, such a vital witness has not been examined during the trial proceedings.
11. Under the circumstances, in light of the evidence which has emerged on record, the prosecution has failed to establish the case against accused No.1 and accused No.2 also. There is absolutely no evidence against the accused No.2 against whom it is alleged that he had caught hold of the injured witness. Thus, there is inconsistency in the entire evidence and the prosecution has failed to pin-point the actual perpetrator of the incident.
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12. There are some observations recorded by the Trial Court with which we do not agree. We have threadbare reexamined the entire witness and we do not find that the prosecution has been able to safely establish the offence against both the accused for which they were charged.
13. We may at this stage refer to the observation of the Supreme Court in case of Shyamal Ghosh (supra), which is as under:
"57. It is equally correct that the CrPC does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631], Sheo Shankar Singh v State of Jharkhand and Anr. [(2011) 3 SCC 654]."
14. It is settled legal precedent that failure to hold the Test Identification Parade, while in police custody, does not by itself render the evidence of identification in court as inadmissible or unacceptable, and the identification in court for the first time alone may not form the basis of conviction, but the same is not an absolute rule. It is further held that as a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to identity of the accused who are strangers to them, in form of earlier identification proceedings. This rule of prudence is, however Page 6 of 7 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:17:16 IST 2025 NEUTRAL CITATION R/CR.A/1062/2003 JUDGMENT DATED: 09/01/2025 undefined subjected to exceptions.
15. In the present case, the brother of the injured has deposed that in fact, the accused No.2 has inflicted the blows. Whereas, the injured himself has not referred to the presence of accused No.2.
16. In light of the above, the appeal stands dismissed. Record & Proceedings be sent back to the concerned Trial Court forthwith.
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