CR.A/2289/2005 1/51 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2289 of 2005 With CRIMINAL REVISION APPLICATION No. 55 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge? No ========================================================= STATE OF GUJARAT - Appellant(s) Versus AMARSING RUPSING MAHIDA & 2 - Opponent(s) ========================================================= Appearance : CRIMINAL APPEAL NO.2289 OF 2005 MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1, MR MB GOHIL for Opponent(s) : 1 – 3. Appearance : CRIMINAL REVISION APPLICATION NO.55 OF 2008 MS MARIA DALAL FOR MR YATIN SONI for Opponent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date :16/06/2008 CR.A/2289/2005 2/51 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Facts of this case illustrate a disquieting feature as to how the trial Court has committed a grave miscarriage of justice in recording the acquittal of the respondents – accused by playing in the hands of the witnesses who were admittedly relatives of the respondents - accused. 2. As observed by the Hon'ble Supreme Court in the case of Zahira Habibulla Sheikh and Anr. V/s. State of Gujarat and Ors. reported in (2004) 4 SCC 158 and in the case of Zahira Habibulla Sheikh (5) and Anr. V/s. State of Gujarat and Ors. reported in (2006) 3 SCC 374 'A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to met out justice and to convict the guilty and CR.A/2289/2005 3/51 JUDGMENT protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine, by becoming a participant in the trial evincing intelligence, active interest and eliciting all relevant materials necessary for reaching the correct conclusions, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to the proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators'. The Hon'ble Supreme Court has further observed 'the Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold CR.A/2289/2005 4/51 JUDGMENT the 'majesty of law'. It is further observed that “due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as to court of law in the future as in the case before it.” It is further observed by the Hon'ble Supreme Court that “Courts have to ensure that the accused persons are punished. A criminal trial should not be reduced to be mock trials or shadow-boxing or fixed trials.” 3. Present Criminal Appeal being Criminal Appeal No.2289 of 2005 is filed by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgement and order dated 04.03.2005 passed by the learned Presiding Officer, 3rd Fast Track Court, Nadiad in Sessions Case No.260 of 2002 acquitting the respondents herein – original accused for the offences punishable under Sections 302, 307, 323, 504 read with Section 114 of the Indian Penal Code. CR.A/2289/2005 5/51 JUDGMENT 4. Criminal Revision Application No.55 of 2008 is registered pursuant to the order dated 17.12.2007 passed by this Bench wherein respondent Nos.2 and 3 in the said Revision Application i.e. PW-1 – Takhatsinh Bhikabhai Mahida and PW-2- Chhatrasinh Bhikabhai Mahida were directed to show cause as to why they should not be punished for perjury and giving false evidence on oath and why appropriate proceedings against them should not be initiated considering provisions of Section 344 of the Cr.P.C. which permits the Court to try the accused / witnesses who have given false evidence on oath summarily, aforesaid two witnesses and the respondents are tried summarily and are given reasonable opportunity as contemplated under Section 344 of the Cr.P.C. 5. Briefly stated the facts are as follows: Original complainant – Takhatsinh bhikhabhai Mahida son of the deceased victim, resident of the village Navagam gave complaint before the Mahelav Police Station on 11.08.2002 which was recorded by one – Jasosing Ratansing – Head Constable against the CR.A/2289/2005 6/51 JUDGMENT accused persons for the offences punishable under Sections 302, 307, 323, 504 read with Section 114 of the IPC alleging inter-alia that he is residing with his parents at village – Navagam and on 11.08.2002 in the evening at about 7.00 p.m., the accused persons came there and started quarreling with his father and his sister's son – Bhimsing. At that time father of complainant requested them not to quarrel and abuse and at that time Amarsing Rupsing Mahida– original accused No.1 was shouting that why he is harassing his daughter – Lilaben and at that time original accused No.1 – Amarsing Rupsing gave 'Pavda blow' on the right side of the head above ear of his father and his father got injured and other accused – Danaben Amarsing, Lilaben Amarsing and Akbarbhai Amarsing were giving filthy abuses and were giving fist blows to his father and at that time his elder brother intervened and they were also abused. It was further alleged in the complaint that thereafter, all the accused went to their residence who were staying in the same faliya and as his father sustained injuries he was taken to hospital. It is required to be noted at this stage that at the time when the CR.A/2289/2005 7/51 JUDGMENT complaint was given father of the complainant was alive and was taken to hospital. However, subsequently he succumbed to injuries, therefore, accused persons were charged for the offences punishable under Sections 302, 307, 323, 504 read with Section 114 of the IPC. 6. The complaint was recorded by Head Constable of Mahelav Police Station – Jasosingh Ratansing. That thereafter, injured – Bhikabhai father of the complainant died in the hospital and necessary entry to that effect was made in the station dairy. Arvindbhai Ravjibhai Patel- P.S.I., Mahelav Police Station reached the hospital. Inquest Panchnama was carried out in the presence of two panchas. Investigation was carried out by him. Panchnama of place of offence was also drawn by him in presence of two Panchas. Panchnama of recovery of weapon was also drawn by him in presence of two panchas. Postmortem was carried out by Dr.Jignesh Kachralal. During investigation, Investigating Officer, P.S.I. - Arvindbhai Patel recorded the statement of witness / eye-witnesses who were present at the time of CR.A/2289/2005 8/51 JUDGMENT incident such as Takatsing Bhikabhai – original complainant son of deceased; Kesarben Bhikabhai – widow of the deceased; Mohamedsing Mahida; Ashwinbhai; Bhimsing @ Tinabhai; Sukhben Chatrasing Mahida and others. Investigating Officer also collected other documentary evidences such as injury certificate issued by Dr.Vipul Shah of Urvish Hospital who treated the deceased in the hospital; PM note; FSL report; Serological report, etc. That thereafter, having found that there is case made out against the accused persons, he filed charge-sheet against the accused persons for the offences punishable under Sections 302, 307, 323, 504 and 114 of the IPC in the Court of learned JMFC, Petlad. As the case was sessions triable, the case was committed to the learned District and Sessions Court, Nadiad which was numbered as Sessions Case No.260 of 2002 and it was sent to the Court of Additional Sessions Judge, Nadiad. Charge was framed against the accused persons vide Exh.4 by the learned Presiding Officer, 6th Fast Track Court, Nadiad on 04.06.2004 against all the accused persons for the offences punishable under Sections 302, 307, 323, 504 and 114 of the IPC. All CR.A/2289/2005 9/51 JUDGMENT the accused persons pleaded not guilty and therefore, they were put to trial. During trial, prosecution examined as many as 15 witnesses and produced on record voluminous documentary evidence. Takatsing Bhikabhai – original complainant and son of the deceased – PW-1 came to be examined at Exh.10 initially on 06.07.2004; his examination-in-chief was recorded on 06.07.2004 and he was partly cross examined on the very day and that thereafter, the trial was adjourned and he came to be further cross examined on 09.08.2004. He was throughly cross examined. He fully supported the prosecution case and stick to what was stated by him in the complaint as well as whatever he stated before the police during investigation. Another witness – Chatrasingh Bhikabhai, son of the deceased and elder brother of the original complainant came to be examined by the prosecution as PW-2 vide Exh.14 on 27.08.2004. He fully supported the prosecution case and stick to what was stated by him before the police during investigation. It appears that settlement was arrived at between the parties between 27.08.2004 and 04.11.2004 and the defence gave one application at CR.A/2289/2005 10/51 JUDGMENT Exh.40 on 04.11.2004 before the learned trial court requesting to recall the aforesaid two witnesses with a view to prove contradictions in the complaint and deposition of PW-1 as well as contradictions in the police statement of the PW-2 and his deposition. Learned trial Court granted the said application on the very day mechanically. On 19.11.2004 both the aforesaid two witness who earlier fully supported the case of the prosecution came to be further cross examined by the defence and surprisingly they turned hostile and they deposed contrary to what was deposed by them in examination-in-chief and earlier cross examination recorded on 27.08.2004 and even contrary to what was stated by the complainant in the complaint as well as contrary to their own statements recored by the Investigating Officer during investigation. Both of them for the first time stated that at the time of incident they had gone to their sister's residence at village – Kanjari and they returned at about 7.30 p.m.; they came to know that their father got injured when they reached their residence and many persons had gathered. It was further deposed by aforesaid two witnesses that other CR.A/2289/2005 11/51 JUDGMENT persons staying in the said faliya told him that their father fell down and sustained injury by Otli. They further deposed that they have not seen how the incident had taken place and what happened. Prosecution gave application at Exh.55 to recall aforesaid two witnesses in light of their further cross examination recorded on 19.11.2004. Said application came to be allowed and the aforesaid two witnesses came to be recalled for further examination-in-chief. They deposed that whatever they have deposed in further cross examination is correct though in examination-in-chief and at the time of earlier cross examination it is deposed by them that at the time of incident they were at their home. However denied what was stated by them during examination-in-chief recorded earlier. However, both of them admitted that they have deposed earlier as per their statement before the police which was at the instance of other persons and having realized, they stated correct facts in the further cross examination. That thereafter, prosecution examined other witnesses, relatives of deceased who were also relatives of accused persons, all of them turned CR.A/2289/2005 12/51 JUDGMENT hostile. Even panch-witnesses also turned hostile. Prosecution examined Dr.Vipul Shah who treated deceased at his Urvish Hospital. In the examination- in-chief he has stated that he was informed that his relatives have given 'Pavda blow'. He was also cross examined. Prosecution further examined Dr.Jignesh Kachralal who conducted postmortem. As per postmortem report cause of death was stated to be Cardiorespiratory arrest due to intracranial hemorrhage. Prosecution also examined head constable – Jasosingh Ratansing who recorded the complaint given by Takatsing Bhikabhai. He stated in examination-in-chief that the complaint was given by Takatsing Bhikabhai Mahida in his presence and same was signed by Takatsing in his presence and he also signed as Police officer. He is not cross examined. Prosecution further examined Investigating Officer – PSI Arvindbhai Ravjibhai Patel, he fully supported the prosecution case and deposed that he recorded statement what was stated by the witnesses. In the cross examination he has specifically deposed that it is not true that he has not recorded the statement as per their say. That thereafter, attention of the CR.A/2289/2005 13/51 JUDGMENT accused persons were drawn to the incriminating material found against them and statement of accused persons under Section 313 were recorded on 13.01.2005. That thereafter, learned Presiding Officer, 3rd Fast Track Court, Nadiad solely relying upon the further deposition of the aforesaid two witnesses Exh.10 and 14 acquitted the respondents - accused by the impugned judgment and order by observing that it is true that the prosecution has proved the statement of those witnesses made before the police during investigation who have turned hostile before the Court by examining PSI Arvindbhai Patel – PW 15 examined at Exh.52, however, as the witnesses are not supporting the case of the prosecution, said proved statements cannot be used against the accused persons and thereby acquitted the accused persons for the offence punishable under Sections 302, 307, 323, 504 and 114 of the IPC. Being aggrieved and dissatisfied with the same, State has preferred the present appeal under Section 378(1)(3) of the Code. 7. Mr.A.J.Desai, learned Additional Public CR.A/2289/2005 14/51 JUDGMENT Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in relying upon the further cross examination / further deposition recorded after cross examination was over. It is submitted that the learned trial Court ought not to have relied upon the deposition (cross examination recorded on 19.11.2004 after they were recalled). It is submitted that the learned trial Court ought to have relied upon deposition recorded prior to the application Exh.40 (recalling of the witnesses). It is submitted that the learned trial Court has not considered and/or discussed deposition of other witnesses on record i.e. deposition of Dr.Vipul Shah who has stated that he was told that deceased sustained injury by 'Pavda' by relatives and deposition of Head Constable – Jasosingh Ratansing at Exh.34 who recorded the complaint given by Takatsing – PW-1. It is submitted that even the trial Court has not considered and discussed deposition of Arvindbhai Patel- Investigating Officer, PSI- Mahelav Police Station who recorded the statement of the witnesses, who subsequently turned hostile. It is submitted that he CR.A/2289/2005 15/51 JUDGMENT has specifically deposed that he has recorded the statements of the witnesses during investigation as per and whatever was stated by those witnesses. It is submitted that the learned trial Court ought to have become more vigilant and alert after aforesaid two witnesses i.e. PW-1 and PW-2 turned hostile after they were recalled by further realizing that said witnesses and other witnesses who have turned hostile are all relatives of accused persons. It is therefore, submitted that the learned trial Court ought to have relied upon other independent witnesses and ought to have reached the truth rather than acquitting the accused persons relying upon further cross of the witnesses at Exh.10 and 14. It is submitted that the learned trial Court has become mute spectator and acquitted the accused persons by playing in the hands of the witnesses who are relatives of the accused. It is submitted that the learned trial Court has failed in its duty to convict the accused persons. It is submitted that evidence of Dr.Vipul Shah, Postmortem report, injury sustained by the deceased, evidence of head constable – Jasosingh Ratansing and evidence of Arvindbhai Patel, CR.A/2289/2005 16/51 JUDGMENT Investigating Officer are sufficient to convict the accused persons. However, the learned trial Court has not discussed and/or considered the evidence of aforesaid witnesses as well as aforesaid documentary evidence and has acquitted accused persons which has resulted into miscarriage of justice. It is submitted that even the learned trial Court has also observed that the prosecution has proved the statements of the witnesses who turned hostile in the Court, still solely relying upon those witnesses who have turned hostile and that too after they were recalled, the learned trial Court has acquitted the accused persons, which requires to be quashed and set aside. Mr.Desai, learned APP has relied upon decision of the Hon'ble Supreme Court in the case of State of M.P. V/s. Badri Yadav and Anr. Reported in (2006) 9 SCC 549 as well as decision of the Hon'ble Supreme Court in the case of Zahira Habibulla Sheikh(supra) in support of his prayer to allow the present appeal, quashing and setting aside the judgment and order of acquittal and convict the accused persons for the offences punishable under CR.A/2289/2005 17/51 JUDGMENT Sections 302, 307, 323, 504 and 114 of the IPC and to impose appropriate sentence. So far as Criminal Revision Application No.55 of 2008 is concerned, Mr.Desai, learned APP has submitted that considering deposition of two witnesses PW-1 and PW-2 recorded prior to 19.11.2004 and subsequent deposition recorded in cross examination dated 19.11.2004, it is clear case of perjury and even in the statement recorded before this Court, Chattrasing Bhikhabhai – PW-2 has admitted that he has given false evidence. Therefore, it is requested to appropriately punish aforesaid two witnesses – respondents of Criminal Revision Application No.55 of 2008 so as to curb such type of practice as in recent days incident of witnesses turning hostile has increased day by day. 8. Mr.M.B.Gohil, learned Advocate has appeared on behalf of the respondents – accused. It is submitted that on appreciation of evidence and considering evidence of deposition of PW-1 and PW-2 who were examined at Exh.10 and 14, when it was found by the learned trial Court that witnesses who were examined by the prosecution to prove the case have CR.A/2289/2005 18/51 JUDGMENT not supported the prosecution case and thereby acquitted the accused persons, same is not required to be interfered with by this Court in an appeal against the order of acquittal under Section 378 of the Code. It is submitted that the impugned judgment and order passed by the learned trial Court cannot be said to be so perverse which requires interference of this Court in an appeal under Section 378 of the Code. It is submitted that as held by the Hon'ble Supreme Court in catena of decisions when there are two versions possible and one which is in favour of the accused has been accepted by the learned trial Court and that accused persons are acquitted, the High Court in an appeal under Section 378 of the Code should not interfere with the same. Therefore, it is requested to dismiss the present appeal. 9. Ms.Maria Dalal, learned Advocate appearing for Mr.Yatin Soni, learned Advocate appearing for two witnesses – PW-1 and PW-2 i.e. Takatsing Bhikabhai and Chhatrasinh Bhikabhai whose evidence was recored at Exh-10 and 14 and who are respondents in Criminal Revision Application No.55 of 2008, has vehemently CR.A/2289/2005 19/51 JUDGMENT submitted that if this Court is of the opinion that aforesaid two witnesses are liable for perjury by giving false evidence, in that case, appropriate remedy is to follow procedure as required under Section 195 of the Code and this Court cannot assume criminal jurisdiction and convict them without trial. She has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Ramsingh v/s. State of Haryana and Anr. reported in AIR 2000 SC 544 and in the case of M.S.Alawat v/s. State of Haryana and Anr. reported in AIR 2000 SC 168. By making above submissions, she has requested to discharge notice issued in Suo-moto Revision Application No.55 of 2008. On merits she has addressed the Court by submitting that said witnesses have not committed any offence of perjury as whatever was found to be true, they have stated in the subsequent cross examination and therefore, it is requested to dismiss the Criminal Revision Application. 10. Heard the learned Advocates appearing on behalf of the respective parties. CR.A/2289/2005 20/51 JUDGMENT 11. We have minutely considered the deposition of all the witnesses in detail. PW-1 – Takatsing Bhikabhai – son of the deceased initially gave complaint at Mahelav Police Station which is at Exh.11 which was recorded by the Head Constable – Jasosingh Ratansingh. In the complaint he has specifically alleged that Amarsingh Mahida – original accused No.1 gave 'Pavda blow' on the right side of the head near ear of the deceased and other accused persons – Dhanaben Amarsing Mahida and Lilaben Amarsingh Mahida were giving filthy abuses and giving fist blows to the deceased. Head Constable – Jasosingh Ratansing who recorded the complaint at Exh.11 is examined by the prosecution as PW-14 at Exh.34. He has deposed that the complaint was given by Takatsingh Mahida in his presence which is at Exh.11 and same was signed by Takatsing in his presence and he also signed on the same as Police Officer. Said witness is not cross examined by the defence. Thus prosecution has proved beyond doubt the complaint at Exh.11. No question is asked to the said witness against recording of the said complaint. During trial prosecution examined Arvindbhai Patel – CR.A/2289/2005 21/51 JUDGMENT Investigating Officer who investigated the case and who recorded the statements of the witnesses during investigation who subsequently turned hostile. He is throughly cross examined. He specifically deposed that whatever was stated by the witnesses their statements were recorded. He has also deposed what was stated by the said witnesses in their statement during investigation. Though said witness was cross examined the defence has failed to prove any contradiction. It is required to be noted at this stage that even the learned Trial Court has also specifically observed and held that by examining Arvindbhai Patel – Investigating Officer at Exh.52, the prosecution has proved in Court, statements of those witnesses who have subsequently turned hostile such as Takatsing Bhikabhai, Chatrasingh Bhikabhai, Kesarben Bhikabhai etc. Prosecution has also examined Dr.Vipul Shah who treated the deceased at his Urvish Hospital. It is specifically deposed by him that he was told that his relative has given 'Pavda blow'. No question is asked to him so far as that aspect is concerned in the cross examination. Medical certificate of the said Doctor is at Exh.17 in which CR.A/2289/2005 22/51 JUDGMENT also it is alleged that injury is due to assault by 'Pavda'. Inspite of above overwhelming evidence on record, the learned trial Court has not considered and dealt with and/or discussed said evidences at all. Takatsing Bhikabhai – original complainant and son of the deceased – eye witness – PW-1 came to be examined at Exh.10. His examination-in-Chief and some cross examination was recorded on 06.07.2004. He was fully and throughly cross examined by the defence on 09.08.2004. He fully supported prosecution case and stick to what was stated by him in the complaint as well as in his statement before the police during