[file : cr.a31589j ] .FO 1 HIGH COURT OF GUJARAT AT AHMEDABAD. CRIMINAL APPEAL NO. 315 OF 1989. DATE OF DECISION: 1.8.1996. FOR APPROVAL AND SIGNATURE THE HONOURABLE Mr.JUSTICE J.M.PANCHAL, AND THE HONOURABLE Mr.JUSTICE M.H.KADRI. .T.......T.......T.........T......T............J....T.......T.......T.... 1. Whether Reporters of Local Papers may be allowed to see the Judgment? NO. 2. To be referred to the Reporter or NO. not ? 3. Whether Their Lordships wish to see NO. the fair copy of Judgment ? 4. Whether this case involves a subst- -antial question of law as to the interpretation of the Constitution of India, l950 or any order made thereunder ? NO. 5. Whether.......T....R JJ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the Civil Judges ? NO. Mr.K.B.Anandjiwala, Advocate, for the appellants. Mr.S.R.Divetia, APP, for the Respondent. CORAM: J.M.PANCHAL & M.H.KADRI, JJ. ( August 1, 1996 ) ORAL JUDGMENT (per PANCHAL J.) In this appeal, which is filed under S.374 of the Code of Criminal Procedure, 1973, the appellants have assailed legality and validity of judgment and order dated March 27, 1989, rendered by the learned Sessions Judge, Rajkot, in Sessions Case No. 45 of 1988, convicting them under S.302 read with S.34 of the I.P.Code as well as S.135 of the Bombay Police Act, and sentencing them to R.I. for life. It may be mentioned that no separate sentence is imposed on the appellants under S.135 of the Bombay Police Act. 2. The prosecution case in brief is that deceased Dhanabhai was residing with his family members at Street No.9 situated at Ramnathpara, Rajkot, and was dealing in scrap. Manjulaben Bhagwanjibhai is the sister co-religionist of deceased Dhanabhai. The incident took place on March 7, 1988 at about 6.00 p.m. in Ramnathpara area of Rajkot, near the raised platform where grain for birds is laid. One Laxman Koli and his wife were selling eggs and fish at their residence. Deceased Dhanabhai in company of his uncle Mavjibhai Savabhai Rajput had gone to the house of Laxmanbhai for purchasing eggs. As it was late in the night, Laxmanbhai had refused to sell eggs. Thereupon quarrel had taken place between deceased Dhanabhai and Mavjibhai Savabhai Rajput on one hand and Laxmanbhai Koli on the other. On the date of incident, after taking pan, deceased Dhanabhai and his friend Abdul Aziz were standing near the raised platform where grain for birds is laid. At that time, the appellants who are friends of Laxmanbhai Koli, came near deceased Dhanabhai and started abusing him. Accused no.1 started the quarrel by saying that the deceased had quarrelled with Laxmanbhai and had therefore, become a bully. However, deceased Dhanabhai did not reply. Thereafter accused no.1 took out knife from the waistband of his pants, whereas accused no.2 was armed with dharia. Both the appellants attacked deceased Dhanabhai indiscriminately with their weapons. Manjulaben Bhagwanjibhai who was passing by the chabutra raised shouts to the effect that deceased Dhanabhai was being assaulted. At that time, Labhuben Koli and other persons also gathered near the place of incident. Deceased Dhanabhai sustained injuries on stomach, thigh, head, neck, hands, etc. and therefore, fell down on the ground and died on the spot. Manjulaben Bhagwanjibhai who is the sister co-religionist of deceased Dhanabhai, therefore, covered the dead body of deceased Dhanabhai with her sari. As people started gathering near the place of incident, the appellants ran away and while running away, appellant no.2 dropped dharia near the house of Labhuben Koli. After covering the dead body of deceased Dhanabhai with her sari, Manjulaben was going to Street No.12 of Ramnathpara where Mavjibhai, who is the uncle of deceased Dhanabhai was residing, to inform him about the incident. Mavjibhai Savabhai Rajput was, at the relevant time, at his house. He heard certain children saying that Dhanabhai was beaten. Therefore, he started for going towards chabutra. On way he met Manjulaben Bhagwanjibhai who informed him that accused no.1 with knife and accused no.2 with dharia had attacked deceased Dhanabhai. Manjulaben also requested Mavjibhai to summon ambulance van and go near chabutra so that deceased Dhanabhai could be removed to hospital. Mavjibhai Savabhai went to a shop and telephoned for ambulance van. On arrival of ambulance van, the deceased who was lying in a pool of blood was taken to civil hospital, Rajkot. The doctor on duty in the OPD declared that deceased Dhanabhai had expired. Police Constable Mastram Odhavdas, who was on duty at the police chowky, Civil Hospital, Rajkot recorded the information given by Mavjibhai Savabhai and made necessary entry at Sr.No.6 in the register which was maintained at the hospital police chowky. Thereafter, the police constable sent intimation to Rajkot City 'B' Division Police Station. PSO Jatubha Pathubha, who was on duty at the Rajkot City 'B' Division Police Station registered the First Information Report. It was investigated into by Chimanlal Trikamlal Sonara, who was then discharging duty as Police Inspector, Rajkot City 'B' Division Police Station. The Investigating Officer went to the hospital and recorded the complaint of Mavjibhai Savabhai and sent it to the police station for registration. The Investigating Officer thereafter held inquest on the dead body of deceased Dhanabhai and sent it for autopsy. He also recorded the statements of three eye-witnesses during the night between 7.3.88 and 8.3.88. Meanwhile, the appellants surrendered before police between l2.30 a.m. and 1.30 a.m. on 8.3.88. The Investigating Officer, in the presence of panch witnesses prepared arrest panchnama and seized incriminating articles like blood stained clothes of the accused, etc. At about 2.15 a.m., accused no.1 showed his willingness to point out the place where he had concealed the knife used in commission of the offence. The Investigating Officer, therefore, prepared discovery panchnama, and knife was discovered at the instance of appellant no.1 in presence of panch witnesses. Panchnama regarding seizure of dharia was also prepared in due course. Blood stained articles which were seized, were sent to Forensic Science Laboratory for analysis. The autopsy report prepared by Dr.Kishore Ratilal Raiyani indicated that deceased Dhanabhai died due to shock because of haemorrhage resulting from multiple injuries. On completion of investigation, the appellants were charge-sheeted under S.302 read with S.34 of I.P.code and S.135 of the Bombay Police Act. As the offence under S.302 of the I.P.Code is exclusively triable by Court of Sessions, the case was committed to Sessions Court for trial. The learned Sessions Judge framed charge against the appellants at Exh.3, under S.302 read with s.34 of the I.P.Code and S.135 of the Bombay Police Act. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3. The prosecution, therefore, examined the following witnesses, in order to prove its case against the appellants : (i) Manjulaben Bhagwanjibhai PW 1 Ex. 10, (ii) Labhuben Narshibhai PW 2 Ex. 11, (iii) Kalyanbhai Becharbhai PW 3 Ex. 13, (iv) Dr.Kishore Ratilal Raiyani PW 4 Ex. 14, (v) Mavjibhai Savabhai Rajput PW 5 Ex. 16, (vi) Abdul Aziz PW 6 Ex. 23, (vii) Iqbal Valibhai PW 7 Ex. 24, (viii) Kishorebhai Mohanbhai PW 8 Ex. 26, (ix) Pravin Amarshi PW 9 Ex. 28, (x) Prakash Jivanbhai PW 10 Ex. 30, (xi) Mastram Odhavdas PW 11 Ex. 32, (xii) Jasubha Pathubha PW 12 Ex. 34, (xiii) Chimanlal Trikamlal Sonara PW 13 Ex. 38. The prosecution also relied on documentary evidence such as the complaint, map of scene of offence, autopsy report, panchnama regarding seizure of clothes from the dead body of deceased Dhanabhai, report of Forensic Science Laboratory, inquest panchnama, panchnama of scene of offence, discovery panchnama regarding production of knife by accused no.1, etc. to prove its case against the appellants. 4. After the witnesses for the prosecution had been examined, the learned Sessions Judge questioned the appellants generally on the case and recorded their statements under S.313 of the Code of Criminal Procedure, 1973. In their statements which were recorded under S.313 of the Code, the appellants stated that the case of the prosecution against them was false. However, the appellants did not lead any evidence in their defence. The learned Counsel for the accused submitted written arguments on their behalf at Ex.43. Original informant had also instructed Mr.S.N.Sonpal, learned Advocate to assist the ld.P.P. in charge of the case. Mr.S.N.Sonpal, the learned Counsel for the original informant submitted an applic.......T....R submit written arguments on behalf of the original informant. That application was granted by the court and therefore, on behalf of original informant written arguments were submitted under S.301(2) of the Code of Criminal Procedure, at Ex. 46. 5. After taking into consideration the evidence led by the prosecution, and hearing the learned Counsel appearing for the parties, the learned Sessions Judge recorded the following conclusions : (i) The evidence of Medical Officer Dr.Kishore Ratilal Raiyani read with post-mortem notes indicates that deceased Dhanabhai died a homicidal death. (ii) From the evidence of eye-witnesses, viz. (1) Manjulaben Bhagwanjibhai, (2) Labhuben Narshibhai, (3) Kalyanbhai Bechharbhai, and (4) Abdul Aziz, it is evident that the appellants had assaulted deceased Dhanabhai by means of knife and dharia respectively, as a result of which the deceased died. The eye-witnesses' account inspires confidence of the court because they have no grudge or animosity against the appellants and therefore, they would not involve the appellants falsely in the case. (iii) The evidence of eye-witnesses is amply corroborated by medical evidence. (iv) The evidence of eye-witnesses also gets corroboration from the fact that the clothes of the appellants which were seized immediately after the incident were stained with blood having 'A' group, which was also the blood group of the deceased. The knife used by appellant no.1 in the incident which was discovered pursuant to information given by him had also blood having 'A' group. (v) The dharia used by appellant no.2 in the incident which was dropped by him near the house of witness Labhuben, was also seized, and it had human blood-stains which corroborates the sworn testimony of the eye-witnesses. (vi) The medical evidence establishes that the injuries sustained by deceased Dhanabhai were possible by means of knife and dharia, which were produced by prosecution as muddamal articles no. 3 and 7. (vii) The medical evidence proves it beyond reasonable doubt that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. (viii) The evidence on record proves it beyond reasonable doubt that the common intention of the appellants was to kill the deceased, and to execute the common intention, appellant no.1 had armed himself with knife, whereas appellant no.2 had armed himself with dharia. (ix) The appellants had in furtherannce of common intention, caused serious injuries to deceased Dhanabhai by means of knife and dharia which resulted into his death, and are therefore guilty under S.302 read with S.34 of the I.P.Code. (x) Appellant no.l had knife with him whereas appellant no.2 had dharia with him on 7.3.1988, in contravention of the Notification issued by the Competent Authority under the provisions of the .......T....R to 30.3.1988, and therefore, the appellants have committed offence punishable under S.135 of the Bombay Police Act, 1951. 6. In view of the above referred to conclusions, the learned Judge convicted the appellants under S. 302 read with S. 34 of the I.P.Code as well as S.135 of the Bombay Police Act, and imposed the sentence which is referred to earlier, giving rise to the present appeal. 7. Mr.K.B.Anandjiwala, ld. Counsel for the appellants has taken us through the entire evidence on record. After referring to the evidence of Head Constable Mastram Odhavdas, it was submitted that witness Mavjibhai Savabhai failed to disclose in his earliest version that he was informed by Manjulaben about assault on the deceased by the appellants and therefore, his testimony should be disbelieved. It was emphasised that before noting down the information given by witness Mavjibhai, he was interrogated by Head Constable Mastram Odhavdas, but Mavjibhai did not mention the fact that appellant no.2 had given blows with dharia to the deceased and therefore, his evidence should be rejected as unreliable. It was contended that witness Mavjibhai has made material improvements in his deposition before the court and therefore, the same deserves to be discarded. With reference to the evidence of Manjulaben Bhagwanjibhai, it was urged that her evidence deserves to be disbelieved because, though in examination-in-chief she has stated that while going to the tea larri of her father at about 6.0 p.m., she witnessed the incident when she reached near chabutra, in cross-examination, she has admitted that the place of incident does not come on way to the tea larri of her father and therefore, her presence at the place of incident becomes doubtful. It was claimed that though she has stated in her evidence that she had covered the dead body of deceased Dhanabhai with her sari, the sari was not seized as muddamal article and therefore, her testimony is unreliable. The learned Counsel for the appellants drew the attention of the court to that part of the deposition wherein Manjulaben stated that near Ramnath Temple, her friend Nirmalaben was residing and in the neighbourhood of Nirmalaben, one Parvatiben who is the sister of appellant no.1 was residing and as appellant no.1 in company of appellant no.2 used to visit the residence of Parvatiben, she knew them, and submitted that identity of the accused is not established by her evidence as neither Nirmalaben nor Parvatiben are examined by the prosecution. It was maintained that she did not raise shouts for help though she was the sister co-religionist of deceased Dhanabhai, and therefore, the possibility that she had come to the scene of offence at belated stage is not ruled out. The learned Counsel for the appellants brought to the notice of the court, the omissions and contradictions appearing in the evidence of eye-witness Manjulaben and argued that her evidence also deserves to be discarded by the court as not trustworthy. While assailing the evidence of Labhuben, it was highlighted that she is doing household work at Vardhmannagar, and she takes about half an hour to reach the place of work from her house and as she had reached the place of work at about 5.0 p.m., she could not have returned back by 5.30 p.m. after attending work at two houses and could not have been present at the time when the incident is alleged to have taken place, which makes her claim that she is an eye-witness to the incident, doubtful. While challenging the evidence of witness Kalyanbhai Becharbhai, the learned Counsel submitted that his presence at the scene of incident is not referred to by any of the witnesses and therefore, his presence at the time when the incident is alleged to have taken place, becomes highly doubtful. It was maintained that he has stated in his evidence that he knows deceased Dhanabhai and witness Manjulaben Bhagwanjibhai since 20 years and if this had been correct, his presence would have been referred to by Manjulaben Bhagwanjibhai, but witness Manjulaben does not refer to the presence of witness Kalyanbhai at the scene of incident and therefore, the evidence of Kalyanbhai should be disbelieved. It was also emphasised that as per the version of Kalyanbhai, he had gone to the house of his daughter to inquire about the health of his son-in-law, at 5.0 p.m. and as house of his daughter is situated on the other bank of river Aji, he could not have been present at 6.0 p.m. at the place of the incident and as his presence is doubtful, his testimony should not be accepted by the court. With reference to evidence of witness Abdul Aziz, it was argued that though this witness claims to be an eye-witness, Manjulaben Bhagwanjibhai has stated that on seeing accused no.2 coming with dharia, witness Abdulbhai had run away, which indicates that Abdulbhai was not an eye-witness. It was asserted that though witness Abdulbhai was a friend of deceased Dhanabhai, he did not try to save his friend, and therefore, his presence at the place of incident becomes doubtful. It was emphasised that police statement of witness Abdul Aziz was recorded after two months and though he was in Rajkot City, he did not go to police for giving statement nor informed anyone that he had witnessed the incident, and having regard to the doubtful conduct of this witness, his evidence should be rejected as not inspiring confidence. After elaborate reference to medical evidence, it was emphasised on behalf of the appellants that injuries no. 1, 2 and 5 sustained by the deceased were contused lacerated wounds which could have been caused only by hard and blunt substance, and as prosecution witnesses have not mentioned that blow or blows was/were given either by accused no.l or accused no.2 with blunt portion of the weapons, their testimony should be discarded as untrustworthy. It was also maintained on behalf of the appellants that as the prosecution witnesses have not referred to any hard and blunt substance having been used by the appellants, origin of the occurrence becomes doubtful, benefit of which must be given to the appellants. In the alternative, the learned Counsel for the appellants submitted that before the incident in question, deceased in company of witness Mavjibhai had been to the house of Laxmanbhai where a quarrel had taken place and thereafter the incident had taken place in which the deceased sustained injuries, and as the fatal blow was given on thigh which is not a vital part of the body, the appellants should be convicted under S.304 part-II of the I.P.Code as the appellants had no intention to cause death of Dhanabhai. 8. Mr.S.R.Divetia, ld.APP submitted that the eye-witnesses who have deposed before the court are independent witnesses and therefore the learned Sessions Judge did not commit any error in placing reliance on their evidence. It was emphasised on behalf of the State that the presence of all the eye-witnesses is natural and as it is not brought on record of the case that any of the eye-witnesses had any enmity with the appellants, their sworn testimony deserves to be accepted by the court. The learned Counsel for the Respondent stressed that the incident had taken place in day-light and therefore, there is no question of mistaken identity. It was argued on behalf of the respondent that the evidence of eye-witnesses gets ample corroboration from the medical evidence, and therefore, their evidence deserves to be acted upon. It was claimed that witness Mavjibhai had conveyed information to Head Constable Mastram Odhavdas immediately without loss of time wherein names of both the appellants were mentioned and therefore, it cannot be suggested that the appellants are falsely involved in the case after due deliberations by the witnesses. The learned Counsel for the Respondent referred to panchnama of arrest of the appellants, discovery panchnama prepared under S.27 of the Indian Evidence Act, as well as other documents, and pleaded that the testimony of eye-witnesses also gets corroboration from circumstantial evidence led by the prosecution and therefore, the appeal should be rejected. It was contended that soon after the incident, both the appellants had surrendered to police and their clothes were seized which were found to be blood stained and as per the report of the analyst the blood found on the clothes worn by the appellants was of 'A' group which was also the blood group of the deceased and therefore, the appellants have been rightly convicted by the learned Sessions Judge. Mr.S.R.Divetia, ld.APP, referred to the evidence of Investigating Officer and argued that sufficient explanation is given by the Investigating Officer as to why the statement of Abdul Aziz could be recorded on May 4, 1988, and in view of the satisfactory explanation given by the Investigating Officer, sworn testimony of Abdul Aziz should not be rejected on the ground that there is undue delay in recording his police statement. On behalf of the respondent, it was claimed that the case against the appellants is proved beyond reasonable doubt and therefore, the appeal should not be accepted. 9. Before dealing with the submissions.......T....R bar, it would be advantageous to refer to the principle of appreciation of evidence as laid down by the Supreme Court. While dealing with an acquittal appeal, the Supreme Court in the case of STATE OF U.P. vs. ANIL SINGH, AIR 1988 SC, 1998, has held as under : "13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matagini, 24 Cal W N 626: (AIR 1919 PC 157), the Privy Council had this to say (at p. 628) of Cal WN) : (at p. 158 of AIR) : "That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence." 14. In Abdul Gani vs. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J. speaking for this court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Courts should make an effort to disengage the truth from falsehood and to sift the grain from the chaff. 15. It is also our experience that invariably the witnesses add embroidery to prosecution story, .......T....R that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." Again in the case of BHARWADA BHOGINBHAI HIRJIBHAI vs. STATE OF GUJARAT, AIR 1983 SC 753, the Supreme Court has observed as under : ".... Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may