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1990 Supreme(Guj) 217

Gujarat High Court
Judgename :K.J.VAIDYA, K.R.Vyas
Abbas Hasam - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL
Decided On : 12/26/1990

Advocates Appeared: A.D.SHAH, K.H.BAGCHI

Headnote:

Acquittal – Challenged – Held, Some sort of personal accountability is also required to be fastened upon the erring Investigating officers as well as the Executive magistrates and the Officers supervising them by the State Government in order to see that the circulars issued by the government in such matters do not remain merely lifeless cold prints on papers, but the same are effectively implemented for the purposes for which they are meant – In this regard, it shall also be the duty of every Criminal Courts coming across the lapses or remissness in the matter of test identification parade and other investigation exhibited by any investigating Officer or Executive magistrate to immediately report to the concerned D. S. P. , D. G. P. , as well as the Home Department without fail – Order Accordingly

K. J. VAIDYA, J.

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( 10 ) WHILE parting, it may be stated that ordinarily since the original accused No. 2 Habib Siddi Khatki having been already acquitted of all the charges and further still there being no appeal against him by the State before us, we are not supposed to touch that part of the evidence which particularly pertains to him. Still, however, having regard to the overall importance of two material consequential questions involved in the case, namely - (i) the necessity and urgency of holding the test identification parade within the shortest possible time to ensure fair trial to the prosecution and the accused on the one hand, and on the other hand (ii) in future how to tackle such most sluggish, callous and irresponsible manner and method in which the identification parade of the accused No. 2 came to be attended to both by the investingating agency and the Executive Magistrate, we feel constrained and duty bound to spotlight, discuss and suggest certain remedial measures with a view to see that the same as far as practicable do not occur in future to the prejudice of the prosecution and disadvantage to the liberty of innocent citizen. In fact, we have been noticing in number of such cases that whenever the question as regards the test identification parade of any suspect arises, time and again simple and avoidable mistakes somehow are committed repeatedly by the investingating agency and as a result of which even the good cases fail and the accused get acquitted. It is solely with a view to meet with this persistent and nagging problem of the carelessness and irresponsibility in conduct of the test identification parade that we deem it all the more necessary to discuss the point involved at some length and highlight the material factors for (i) the better, fair and efficient investigation, which may in turn (ii) not only protect and preserve the liberty of an innocent citizen, who to his misfortune, sometimes gets booked by the police as a suspect on some vague allegations costing him his precious liberty, but also to help the prosecution in securing better results at trial, if possible. 10. 1. Now in order to appreciate the problem involved and the attempt sought to be made by us to resolve and salvage the same, it is necessary first of all to recapitulate certain relevant facts of the prosecution case touching upon the question involved. Accordingly, we may briefly refer back to FIR Ex. 148 filed by Tapu Popat (PW - 4, Ex. 22) an only eye witness in this case. As per the said fir, the alleged incident took place at about 22-30 hours at night time on a lonely road at Wankaner when two accused persons came on bicycle, out of which one was the appellant-accused who after having some conversation with the deceased Hari Soma immediately gave him three successive knife blows on his chest, while another unidentified accused who was riding the bicycle (accused No. 2) exhorted the appellant-accused by asking him to give 2-3 more knife blows to the injured so as to finish him. Thus, in the FIR Ex. 148, except the above general allegations regarding the manner of participation in commission of offence against the said unidentified accused, no other particulars as such have been furnished. No description about any physical appearance, that is to say the description regarding any height, structure, complexion of the skin, shape of face, nose, eyes, forehead, voice, clothes and/or any other distinct features by way of any injury marks, if any, etc. etc. , have been given on the basis of which the said unidentified suspect could ne reasonably spotted, arrested and ultimately put up for the test identification by the investigation agency. What is merely alleged against the unidentified accused in the FIR Ex. 148 is only to the effect that "i do not know the name of a person who




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