IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 336 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT AND Hon'ble MR.JUSTICE J.R.VORA ========================================================= 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO --------------------------------------------------------- SIPAI HANIF KALU & OTHERS Versus STATE OF GUJARAT --------------------------------------------------------- Appearance: Mr. A.D. Shah, Advocate for the appellants. Mr. B.D. Desai, APP for the State. --------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT and MR.JUSTICE J.R.VORA Date of decision: 09/02/2000 ORAL JUDGEMENT: (Per: H.R. Shelat, J. ) This appeal is directed against the Judgment and Order dated 29th February 1992, passed by the then learned Additional Sessions Judge at Bhavnagar in Sessions Case No. 29 of 1990 on his file, convicting the appellant (original-accused No. 1, 2 & 3) of the offence of murder punishable under Section 302 read with Section 34 of the Indian Penal Code & Section 135 of the Bombay Police Act, and sentencing each of them to Rigorous Imprisonment for life qua the offence of murder and also sentencing them to one month R.I. and fine of Rs. 100/=, in default 15 days simple imprisonment more qua the offence punishable under Section 135 of the Bombay Police Act. In order to appreciate the rival contentions, necessary facts may in brief be stated. 2. Oghadbhai Apabhai is having 7 sons. Virabhai is one of his sons. He by mistake, took poisonous germicide. He was therefore admitted in the hospital at Mahuva. Kadubhai Bhanabhai deals in milk at Mahuva. He comes to Mahuva from village-Taveda taking milk. On 1st November 1989 at 3.00 p.m. Bachubhai had gone to his shop for tea. At that time he informed that Virabhai had taken poisonous germicide, and was brought to the hospital for treatment. The treatment in the Hospital was going on. Kadubhai then told that he would be going to the hospital to ask for Virabhai and asked Bachubhai to go first taking the tea. Thereafter Kadubhai went to the hospital. At that time Oghadbhai, Unadbhai and Gabharubhai met him near the gate of the hospital as they were going to Vrindavan Dham for darshan. Kadubhai Bhanabhai then went into the ward where Virabhai was kept. After asking for Virabhai he came back to the compound of the hospital where under the Nimb tree Shivdhanbhai, Babbhai, Nagbhai and 2 to 3 others were sitting. Shivdhanbhai, in order to have his obligation regarding hospitality discharged, asked Kadubhai Bhanabhai to go to his place and informed at home to prepare supper for 5 to 6 persons. Kadubhai was therefore going to the house of Shivdhanbhai riding over the motorcycle, and Babbhai, the deceased was the pillion rider. When they reached near the nursing home close to the hospital they saw a stationary rickshaw on the side of the road wherefrom 3 persons alighted and intercepted their motorcycle. Hanif Kalu, the appellant No.1 was armed with sword, Razak Kalu, the appellant No.2 was armed with gupti, and Husein Alubhai, the appellant No.3 was armed with knife. The appellant No.3 running amok gave the knife blow first on the back of Babbhai. Unfortunately the blade was broken and got stuck into the body of Babbhai. Thereafter rest of the appellants assaulted and showering the blows with the weapons they were having started to cause injuries. In order to save himself Babbhai ran into the nursing home and went to the compound on the back of that home. He was chased by the appellants where he was brutally beaten by sword and gupti the appellants No. 1 & 2 were having. Being aghasted seeing such poignant scene, Kadubhai Bhanabhai went into the hospital to inform Shivdhanbhai. On being informed Shivdhanbhai, Bhankubhai and Nagbhai rushed to the scene of offence where Babbhai was lying in wounded condition. Babbhai was no more. There was profuse bleeding. Shivdhanbhai then through some one informed the police. The police officer of Mahuva police station went to the scene of offence, and taking Kadubhai Bhanabhai to the police station recorded his complaint pursuant to which investigation commenced. At the conclusion of the investigation, the Police Officer found that there was a case worth triable against the appellants. He therefore filed the chargesheet relating to the abovementioned offences against the appellants in the Court of the Judicial Magistrate (F.C.) at Mahuva. The learned Magistrate of that court was not competent to hear and decide the case relating to the offence of murder. He therefore committed the same to the Court of Sessions at Bhavnagar which came to be registered as Sessions Case No. 29 of 1990. The then learned Sessions Judge at Bhavnagar assigned the case to the then learned Additional Sessions Judge, Bhavnagar who was also holding his sitting at Mahuva for some days in a month. The charge Ex.4 was then framed against the present appellants. They pleaded not guilty and claimed to be tried. The prosecution therefore led necessary evidence to establish the charge. Appreciating the evidence before him, the learned Additional Sessions Judge found that the prosecution had succeeded beyond reasonable doubt in establishing the charge levelled against the present appellants. He therefore held them guilty and sentenced them as aforesaid. It is against that order of conviction and sentence, the present appeal is filed by the present appellants. 3. Mr. A.D. Shah, the learned advocate representing the appellants, while assailing the judgment and order of conviction, submits that the evidence on record is not at all sufficient to hold the appellants guilty. When entire evidence is perused with care it appears that the same is fishy. The names of the assailants given in the FIR as well as referred to in the evidence would show that some improvements for getting the conviction anyhow are made and that act raises the doubt. Kadubhai and Oghadbhai are not the eye witnesses but subsequently after concocting the story they were got up for required support. The manner in which the incident happened is suppressed and distorted versions are purforth before the court. When the evidence as a whole is read, it would appear that there might be collision of the rickshaw and motorcycle as a result of which there might be the scuffle between the rickshaw driver and Kadubhai or the deceased Babbhai and during that scuffle Babbhai might have sustained the injuries, but because of the enmity Shivdhanbhai who is the retired Police Officer, and whose other relatives and family members are also at present serving in the police department, used his good offices and manoeuvering got the false complaint filed against the present appellants through Kadubhai Bhanabhai and as Shivdhanbhai was steering the investigation remaining behind curtain the police officer did not investigate sincerely, fairly and honestly. He tried to be in tune with the design of Shivdhanbhai. The investigation is therefore not honest and thorough but defective and dubious. The Doctor while performing the post mortem found the injuries having 1 inch or 1 1/2 inches in length but not more than the same. If the injuries were caused by sword or gupti, the length and breadth of the wounds would have been found more than the size mentioned in P.M. Note. The wheel of the motorcycle was found bent, and few dents were seen on the rickshaw. The police have not explained under what circumstances the motorcycle wheel came to be bent and dents on the body of the rickshaw were found. Such damage would never be there if the incident had happened in the manner the prosecution has alleged, but when the damage to the motorcycle and rickshaw is found and no elucidation in this regard is made, the same indicates happening of some thing unusual, and that casts clouds of doubt on the entire wrap and woof of the prosecution story. According to him, possibility of plantation cannot be ruled out. He therefore urges to allow the appeal, set aside the judgment and order convicting the appellants, and acquit the appellants. 4. In reply, Mr. B.D. Desai, the learned APP contends that it is the common experience hardly to be stated that the accused in his defence adopts hairsplitting approach like a drowning man catching any thing available. He misses no chance to blame the police and lower it down in the estimation of others & the Court to the maximum extent so as to have the order of acquittal any how. The defence in this case is not the exception to such common experience. He taking us to the entire evidence contends further that the evidence is free from every doubt and it inspires confidence. The same is also sufficient to hold that charge beyond reasonable doubt is proved by the prosecution. The learned Judge was therefore perfectly right in passing the order of conviction and sentence. There is no reason to disturb the same. Contending accordingly he submits to dismiss the appeal. 5. The prosecution mainly relies upon the evidence of Kadubhai Bhanabhai and to a certain extent the evidence of Oghadbhai who is supporting the say of Kadubhai. We will, therefore, have to examine the evidence of both the witnesses with meticulous care and finicky details, in view of the rival contentions. If without any comment on its face the evidence is accepted as it is, one would be inclined to hold that the prosecution has succeeded in establishing the charge, but when the same is perused with meticulous care and finicky details, it becomes clear that the evidence is not worthy of credence. 6. While lodging the complaint (Ex.48), Kadubhai Bhanabhai gives the names of the appellants No. 1 & 2, and the appellant No.3 is referred to as one unknown person. His evidence reveals that he did know about that unknown person. According to him, he after the incident commenced and seeing that Babbhai was being attacked and injured went into the hospital to inform Shivdhanbhai. All then went to the scene of offence where Babbhai was found lying in seriously injured condition. He was no more and there was profuse bleeding. At that time, Kadubhai was apprising them how the incident happened and who were the assailants. While giving the names of appellants he made it clear that there was the third person who was not known to him. At that time Unadbhai supervened saying that the said third person was no one else but Husein, the son of Alubhai (appellant No.3). Thereafter, Shivdhanbhai called the police officer who came to the scene and took Kadubhai to the police station for recording the complaint. His evidence thus reveals that when he went to the police station to lodge the complaint, he was very much knowing about the name of respondent No.3. Still however he in the complaint does not name appellant No.3 and prefers to describe him as one unknown person, and pretends to be ignorant. 7. Para 9 of his deposition cannot be lost the sight of. The appellants belong to Village Kumbhan. Their no relative resides at Kumbhan. When asked, Kadubhai made it clear that he was knowing Alubhai and his son Husein (appellant No.3). He knew the appellants No. 1 & 2 by name for the last two years and was also knowing that they were the sons of Kalubhai, but when he had to face further grilling cross-examination he had to succumb to the real fact stating that he never met either the appellant No.1 or the appellant No.2, and till the date of incident no one had introduced the appellants No. 1 & 2 saying that he was Razak and another was Hanif. His such evidence reveals that he was in fact knowing no one by name or by full name. However, he while lodging the complaint gives full names of appellants No. 1 & 2 and for the reasons best known to him prefers to give the name of appellant No.3 though as mentioned above he came to know through Unadbhai what the full name of appellant No.3 was. At this stage, it may be mentioned that according to his evidence he was also very much knowing about the appellant No.3 by full name. However, he did not prefer to give the name of appellant No.3 while lodging the complaint. This shows that necessary improvements to rope in the appellants is made while lodging the complaint and possibility of the involvement of the appellants at the instance of Shivdhanbhai, as submitted by Mr. A.D. Shah for the appellants, cannot be ruled out. 8. In the case of Nayudu Srihari V. State of A.P. - 1996 S.C.C. (Cri.) 1285, the evidence of witness who had lodged the FIR was not believed because in that case the person lodging the FIR claimed to have known all the 15 accused by full name but at the time of identification he could identify only 7 accused and in the cross-examination when asked he made it clear that he knew the names of the fathers of half of the accused and did not remember whether he had given the names of the fathers of the accused persons in the FIR. He had then gone to the leader of the faction Venkataramaya who wrote down the FIR which was lodged. The Supreme Court then found that obviously this fact shows that to rope in the members of the rival group to which the accused persons belonged, a garbled version relating to the murder of Nagulu was furnished to the police through the FIR. The High Court was therefore wrong in accepting the evidence of that witness. That evidence was then excluded from consideration. Here, in this case also as stated above Kadubhai though claiming to have known the full names of the appellants, he does not give the full names of appellants No. 1 & 2 in FIR, and does not name the appellant No.3. In view of the fact and such decision, the evidence of Kadubhai cannot be said to be reliable. 9. It should also be mentioned that Kadubhai came to know about the full name of appellant No.3 or came to know who that unknown person was when Unadbhai at the scene of incident told him. If his evidence is viewed from another angle, this fact would show that he is not telling the truth but supporting the case which was woven later on. It is pertinent to note that Unadbhai who made necessary clarification with regards to appellant No.3 is not examined and no reason is assigned for such omission. Of course the prosecution has to select which of the witnesses are to be examined before the court and who should be dropped, but the selection by the prosecution must be honest and fair and prosecution must examine those witnesses who are helpful to it for unfolding the real truth and while unfolding the truth the concerned witness available is not examined, the court would be entitled to infer everything against the prosecution. In this case, it is not explained why Unadbhai, the source of information, though available, is not examined. When for no good reason Unadbhai is dropped and source is suppressed, whatever Kadubhai says about appellant No.3 cannot be accepted for consideration. 10. There is also another point which also indicates improvement having been made later on in the FIR. Kadubhai while describing the happening of the incident states that when all the three assailants were chasing and wielding the weapons for inflicting the injuries the deceased uttered "Salehbhai Revade", ("Salehbhai stop"). Who is this Salehbhai is also not explained because neither of the appellants' name is Salehbhai, and even neither of the appellants is also in that locality or in particular section of the society known as `Salehbhai'. The prosecution has to prove the charge beyond reasonable doubt. Whatever reasonable doubt arises while investigating into the offence or while drawing the panchnama at the scene of offence or at the time of giving description of the incident or recovery of weapons, it is incumbent upon the prosecution to make all endeavour to clear out every reasonable doubt that arises, and if the prosecution fails to clear out the doubt, the benefit, that arises therefrom, must go to the accused. From the deceased it is revealed that assailant was one Salehbhai, but it is not made clear who that Salehbhai is, and the police officer has also not inquired into this aspect of the case so as to elucidate who that Salehbhai was when the incident happened and why that Salehbhai is not made the accused. This shows that the investigation is not honest and thorough, but it is defective and whatever the doubt arises, the benefit thereof must go to the appellants. 11. The evidence of the Investigating Officer, Chhatrasinh Chudasma (Ex.67) reveals that slippers were found from the scene of offence. On the slippers blood marks were seen. The slippers were therefore seized and sent to the Forensic Science Laboratory for analysis. The Chemical Analyser on analysis found that on both the slippers human blood was found and the group thereof was `B', and on the left leg slipper, marks of perspiration were also found, the group of which was found `B'. It may be stated here that the blood group of deceased was also `B'. On such facts, one may be inclined to believe that the slippers must be of the deceased and must have fallen off when deceased was running away in order to save himself but that cannot be the conclusion because while drawing the inquest panchnama the police officer has made it clear in his evidence that the shoes put on by the deceased were taken out and were then seized, but they were not sent to the F.S.L. for analysis. It was therefore necessary for the prosecution to explain whose slippers were found and whether the person who had put on the slippers was the real assailant. The possibility that the slippers might be of Salehbhai cannot be ruled out. When prosecution has not elucidated on the point and the police officer has also not preferred to investigate in detail with regards to the slippers so as to go to the root of the case and find out the truth, the learned advocate for the appellants was perfectly right in submitting that the investigation is not thorough, fair, but defective and dubious, and the possibility of involvement of the appellants wrongly at the instance of Shivdhanbhai cannot be ruled out. 12. It is the case of the prosecution that by the rickshaw all the three appellants had gone near the nursing home taking the aforesaid weapons with a plan to assault Babbhai and do him away with showering the blows and causing fatal injuries. Whether the accused hired the rickshaw or whether one of the accused was the driver of the rickshaw is the point kept in mystery. Of course, while drawing the panchnama (Ex.26) when the rickshaw was seized, Masani Hyderali Babubhai was present because he was found to be the owner of the rickshaw. He in the presence of panchas, when the panchnama was being drawn stated that Hanif Kalu, the appellant No.1 was driving the rickshaw. The learned Additional Public Prosecutor, drawing our attention to this panchnama, makes a lame attempt to convince us that whatever doubt that may arise is cleared out when aforesaid statement incorporated in the panchnama is taken into account. No doubt, Masani Hyderali Babubhai, the owner of the rickshaw has stated what we have hereinabove just now stated, but unless the source is examined, the statement cannot be made the base for drawing one or another conclusion. The party has to lead the prime evidence and cannot rest contented with the evidence of another witness, which may, in the absence of examination of the source, turn out to be the hearsay evidence. Here, in the case, the source i.e., the maker of the statement is Masani Hyderali Babubhai. He is not examined, and no reason is assigned for non-examination. For the aforesaid reason, the Court is therefore entitled to infer everything against the prosecution holding that had Masani Hyderali Babubhai been examined, his evidence would have seriously damaged the case of the prosecution and would have shown who the real assailants were and who remaining behind the curtain tried his best to rope in the present appellants because of the enmity. 13. In view of such circumstances, the evidence of Kadubhai not inspiring confidence cannot be made the base for drawing the conclusion in favour of the prosecution. We have, therefore, now to see whether there is any other evidence on record supporting the case of the prosecution and establishing the charge beyond reasonable doubt. 14. Mr. B.D. Desai, the learned A.P.P., submits to place reliance on identification parade held on 3rd November 1989. No doubt, Kadubhai, at the time of identification parade in the office of Executive Magistrate, Mahuva, identified the appellant No.3 so as to clear out the doubt that arose when he described appellant No.3 to be some one - unknown person. He in his evidence has also made it clear that he would be able to point out who that Salehbhai was if shown to him. It seems because of this reason, the identification parade was held and Kadubhai pointed out appellant No.3 when he was made to stand in the row of 11 dummies. However, the identification made by Kadubhai cannot be accepted because the identification parade is not held in accordance with the requirements of law. In the case of State of Gujarat V. Mahmad @ Munno Usmanbhai Chauhan [1996 (2)] 37 (2) G.L.R. 821 = 1996 (1) G.L.H. 919, this Court, when occasion arose, held that care should be taken in selecting the dummies and the authority must see that the dummies are selected nearly falling within the same age group. A care should also be taken while selecting the dummies that they are also having the similar physique after ascertaining the description of the accused, and then the description if possible of the dummies selected must be mentioned in the panchnama. In reply to our query whether as per such requirement, dummies were selected, Mr. Desai, the learned APP with his usual candour conceded that Jayantilal Amrutlal, Ex.12 who was at the relevant period serving as Mamlatdar and Executive Magistrate and who carried out the identification parade did not take care in selecting the dummies as per such requirement of law. When dummies are not selected according to the requirement of law, whatever may be the outcome of the identification parade cannot help the prosecution and the same cannot be made the base for our conclusion. The same has to be kept out of consideration. If that is done, is there any other material on record supporting the prosecution and also the version of Kadubhai, is the query, we when, made, Mr. Desai, the learned APP submits to place reliance on the discovery panchnamas Exs.42, 43, and 44. 15. No doubt, the appellant No.1, as per the panchnama Ex.42 in the presence of the panchas taking the police and panchas to one wadi, pointed out the sword and the clothes secreted in the ground removing the mud which were found bloodstained and those blood marks were found to be of human blood the group of which was by laboratory on analysis found to be "B". Likewise, the appellant No.2, when panchnama Ex.44 was drawn, took the panchas and the police to the same wadi, and at a distance of 5 to 6 feet from the first place wherefrom the appellant No.1 had pointed out