Gujarat High Court
State Of Gujarat vs Kailash @ Kaiyum @ Mithun @ Kailash ... on 28 April, 2016
Author: M.R. Shah
Bench: M.R. Shah, A.J. Shastri
R/CR.MA/8125/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION
(FOR CONDONATION OF DELAY) NO. 8125 of 2016
In
CRIMINAL MISC.APPLICATION NO. 8124 of 2016
In
CRIMINAL APPEAL NO. 555 of 2016
With
CRIMINAL MISC.APPLICATION NO. 8124 of 2016
In
CRIMINAL APPEAL NO. 555 of 2016
With
CRIMINAL APPEAL NO. 555 of 2016
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STATE OF GUJARAT....Applicant(s)
Versus
KAILASH @ KAIYUM @ MITHUN @ KAILASH ASHOKBHAI
VASAVA....Respondent(s)
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Appearance:
MS MOKSHA THAKKAR, APP for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 28/04/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Criminal Miscellaneous Application No.8125/2016 has been preferred by the applicant-State of Gujarat under Section 5 of the Limitation Act requesting to condone the delay of 44 days in preferring the Appeal challenging the impugned judgment and order of acquittal passed by the learned 5th Additional Sessions Judge, Surat (hereinafter referred to as "the learned trial Court") in Sessions Case No.382/2012 by Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun May 01 03:58:34 IST 2016 R/CR.MA/8125/2016 ORDER which the learned trial Court has acquitted the respondent- original accused for the offences punishable under Sections 302, 307, 379 and 188 of the Indian Penal Code.
[2.0] Criminal Miscellaneous Application No.8124/2016 has been preferred by the applicant-State of Gujarat for leave to Appeal against the aforesaid impugned judgment and order of acquittal passed by the learned trial Court.
[3.0] To satisfy ourselves whether there is any merit in the Appeal, as, if on prima facie considering the case if it is found that there is no substance in the Appeal and the Appeal lacks merits to condone the Appeal after calling the respondent-original accused who seems to be very poor and doing masonry work would be an exercise in futility and as such it would cause financial burden upon the respondent- original accused, we have heard Ms. Moksha Thakkar, learned APP appearing on behalf of the applicant-State at length. She has placed on record the evidence on record for our perusal. We have re appreciated the entire evidence on record. We have considered the impugned judgment and order of acquittal passed by the learned trial Court, more particularly, the findings recorded by the learned trial Court recorded while acquitting the respondent-original accused.
[4.0] Having heard Ms. Moksha Thakkar, learned APP appearing on behalf of the applicant-State and on re appreciation of the entire evidence and considering the prosecution case, the case rests on circumstantial evidence only. The prosecution has heavily relied upon the deposition of P.W. 9 - Zhakir Mohhamad Ibrahim. He had identified the Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun May 01 03:58:34 IST 2016 R/CR.MA/8125/2016 ORDER respondent-original accused in T.I. Parade and also before the Court. The prosecution also examined wife of the deceased, who was also the injured witness, P.W. 8 at Exh.37. However, considering the deposition of P.W.8 she cannot be said to be the eye witness. She has stated that when she went upstairs her husband was already injured and somebody caused injury on her by pipe from behind, and therefore, her evidence is not helpful to the prosecution to the prove the case against the respondent-original accused and / or to prove the identity of the respondent-original accused and / or to prove the presence of the respondent-original accused at the time of commission of the offence. As observed hereinabove, the prosecution has mainly relied upon the deposition of P.W. 9 son of the deceased-Zhakir Mohhamad Ibrahim. However, he has only stated that he had seen one person going to kabrastan when he was playing cricket between 5:00 p.m. to 7:00 p.m. and thereafter that person did not come back from kabrastan. However, he has not stated that he had seen the said person coming from his house. He has also admitted in his cross- examination that he had seen that person going to kabrastan constantly for three days. At this stage, it is required to be noted that when he was playing cricket between 5:00 p.m. to 7:00 p.m. he had seen one person going to kabrastan and thereafter he had not seen that person coming out from kabrastan, and therefore, it is required to be noted that the incident had occurred after 9:00 p.m. in the night. As observed hereinabove, it was not the case of the prosecution that P.W. 9 had seen that person coming out from his house. Now so far as the identification of the respondent-original accused by P.W. 9 in T.I. Parade and in the Court is concerned, it is required to be noted that as per the said witness the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun May 01 03:58:34 IST 2016 R/CR.MA/8125/2016 ORDER person he had seen going to kabrastan had curly hairs. However, nothing is on record that those persons who were kept alongwith the respondent-original accused all were having similar look and having curly hairs. It is also required to be noted that even the T.I. Parade was conducted after a period of five to six months and he identified the respondent-original accused in the T.I. Parade after a period of five to six months. It is required to be noted that as per the case of the prosecution as such the respondent-original accused was working as a mason doing masonry work in the house of deceased and P.W.9, and therefore, when the respondent- original accused was doing masonry work in the house of the deceased and P.W. 9 the respondent-original accused must be known to P.W. 9 and alteast P.W. 9 would have known the respondent-original accused by face, and therefore, as such there was no requirement of conducting the T.I. Parade. P.W. 9 has never stated that the person whom he had seen going to kabrastan when he was playing cricket was the same person doing the mason work in the house of the deceased and P.W.
9. The case of the prosecution is based on circumstantial evidence only. As per catena of decisions of the Hon'ble Supreme Court as well as this Court, unless and until by leading cogent evidence the prosecution is successful in proving the complete chain of events and is able to prove by leading cogent evidence that the respondent-original accused alone and alone had committed the offence, the respondent- original accused cannot be convicted. In the present case, the prosecution has miserably failed to complete the chain of events and miserably failed to prove that the respondent- original accused alone and alone had committed the offence. As observed hereinabove, as such the prosecution has Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun May 01 03:58:34 IST 2016 R/CR.MA/8125/2016 ORDER miserably failed to prove that the respondent-original accused had committed the offence as alleged.
[5.0] Considering the aforesaid facts and circumstances of the case when the learned trial Court has acquitted the respondent-original accused, we see no reason to interfere with the impugned judgment and order of acquittal. Under the circumstances, when the Appeal lacks merits, to condone the delay after calling the respondent-original accused, who is very poor and thereafter to dismiss the Appeal / leave to Appeal would not be an exercise in futility and it would cause unnecessary financial burden upon the respondent-original accused. Under the circumstances, when the Appeal lacks merits, the present application for condonation deserves to be dismissed and is accordingly dismissed. Consequently, the application for leave to Appeal as well as main Appeal deserves to be dismissed and are accordingly dismissed.
(M.R. SHAH, J.) (A.J. SHASTRI, J.) Siji Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun May 01 03:58:34 IST 2016