CR.A/1311/2006 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1311 of 2006 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 ? 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 ? YES. Amongst all Sessions Judges and Addl. Sessions Judges ========================================= THE STATE OF GUJARAT Versus PATEL ASHWINKUMAR RANCHODBHAI ========================================= Appearance : MR DIPEN A DESAI APP for Appellant MR FB BRAHMBHATT for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 15/05/2008 CAV JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/1311/2006 2/22 JUDGMENT 1. The State has preferred instant Criminal Appeal under Section 378 of the Code of Criminal Procedure, 1973, against the Judgment and Order delivered by Additional Sessions Judge, Mehsana ( Mr. A.N. Vakil), on 20th of November,2004, in Sessions Case No. 185 of 2004, whereby the present respondent, being accused of the said Sessions Case, came to be acquitted for the offences charged against him under Sections 302, 451 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2. Learned APP Dipen A Desai for the State and learned Advocate Mr. F.B. Brahmbhatt for the respondent were heard in detail in respect of this Appeal. 3. As per the prosecution case, deceased in the incident, happens to be uncle of accused – respondent herein. Deceased and the accused families were residing in adjoining houses. On 15th of June, 2004, there was a rainfall, and on account of rainfall, the accused was digging a ditch to prevent flowing water and, therefore, the deceased Keshavlal, uncle of the accused, scolded the accused that why the accused was preparing a ditch. Some altercations took place at that time. Thereafter, at about 10' O clock in the night, on the same day, the family members of the deceased went to sleep and at about 3.00 CR.A/1311/2006 3/22 JUDGMENT p.m., accused came to the house of the deceased, giving abuses. Deceased Keshavlal awakened. Kiritkumar Keshavlal, complainant in this matter and son of the deceased, brother of the complainant and other son of the deceased also awakened. When they switched on the lights, they noticed that accused had encroached and trespassed in their house with an iron bar in his hands and complainant Kiritkumar accosted him, but even then, accused gave a blow by iron bar on the head of the deceased Keshavlal, who was sleeping on a cot. Due to commotion all the family members of the deceased were awakened and some scuffle ensued between the accused and other family members, but accused ran away and escaped from the spot. Thereafter, complainant Kiritkumar and his younger brother Prakash and uncle Sombhai brought deceased Keshavlal in jeep vehicle at village Vijapur before Dr. Subhashbhai. Doctor informed them that the injury was serious and, therefore, deceased was required to transfer to Lions Hospital at Mehsana in ambulance. So, complainant and his family members were taking deceased to Mehsana Hospital, the deceased died in transit. Therefore, the complainant Kiritkumar filed a complaint before Vijapur Police Station for the above said offences, being Crime Register No. 168 of 2004. The crime was investigated and charge sheet came to be filed against the accused. The case was committed to the Court of Sessions and made over to the Trial Court. The record reveals CR.A/1311/2006 4/22 JUDGMENT that charge was framed against the accused by the Trial Court vide Exhibit-3 on 30th of October, 2004 and accused pleaded not guilty. The record reveals that, therefore, the prosecution examined six witnesses and produced on record documents to prove its case. Prosecution examined Kiritkumar Keshavlal, complainant, vide Exhibit-9; Joitiben Keshavlal Patel, vide Exhibit-11; Prakashbhai Keshavlal Patel, vide Exhibit-12; Kailashben Kiritbhai Patel, vide Exhibit-13 and Ushaben Prakashkumar Patel, vide Exhibit-14. All these witnesses were eye witnesses and the family members of the deceased. All these witnesses happen to be related to the accused and the deceased. The only independent witness which the prosecution examined is PW-6, Exhibit-15, Dr. Pravinbhai Shankarbhai, who conducted the postmortem on the dead body of deceased and produced on record the postmortem note. However, all the witnesses i. e. P.W. 1 to P.W.5 did not support the prosecution case and turned hostile. Therefore, the learned Trial Judge in his very brief judgment, came to the conclusion that though the death of the deceased Keshavlal was homicidal, but in para 10, in very few lines, came to the conclusion that, the accused was not linked to the crime on account of eye witnesses did not support the prosecution case. In para–10 only within few lines, the whole trial came to be disposed of by learned Trial Judge. CR.A/1311/2006 5/22 JUDGMENT 4. We have heard learned Counsels appearing in this Appeal to considerable extent. We have gone through the record of the case very carefully. We found that this is a case of failure of justice in which the criminal trial is taken very lightly by all concerned. 5. It is found from the record that after framing of the charge, PW-1 Kiritbhai Keshavlal Patel was examined on 8th of November, 2004 and PW-2 Joitiben also was examined on 8th of November, 2004. Thereafter, the case was adjourned to 20th of November, 2004, and the depositions of PW-3, PW-4, PW-5 and PW-6 were recorded and on that very day, the learned APP In-charge of the case, vide Exhibit-17, presented purshis for closing of evidence. On the same day, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure and the arguments were heard and judgment ensued immediately on the same day. In charge sheet, at least 21 witnesses are named. They are the witnesses found during the investigation. List of muddamal shows that muddamal was seized by police during investigation. Important muddamal is article No.6 i.e. iron bar recovered from the house of the accused in presence of panchas and muddamal articles 9 and 10 are shirt and pant of the accused, recovered from the body of the accused, in the presence of panchas, containing blood stains. Other muddamal articles are the bloodstained clothes of CR.A/1311/2006 6/22 JUDGMENT the deceased, mattress of the deceased where he was sleeping and other articles containing bloodstains of the blood of the deceased. We find on record that the Forensic Science Laboratory reports, after analysis, is placed on record by the prosecution vide list at Exhibit-8 at Sl. Nos. 13, 14 and 15. Even then, the learned Trial Judge only considered the evidence of five eye witnesses related to the accused and deceased, and came to a brief conclusion without probing further the case to reach at truth. We are constrained to observe that the trial has been taken very lightly by concerned APP, who without probing further or adducing evidence, filed purshis of closing of evidence at Exhibit-17 wherein without assigning any reason, the learned APP noted in this purshis that “now prosecution did not want to adduce any evidence and, therefore the prosecution evidence is over”. It is also required to be noted at this stage that even the learned Advocate appearing on behalf of the accused gave one application at Exhibit-7 dated 30.10.2004 requesting the learned Sessions Court to produce medical papers related to the accused by submitting that deceased – Patel Keshalal Ishwarbhai caused injury to the accused – Patel Ashwinbhai Ranchodbhai and therefore, it was requested to direct to produce medical papers of the injuries caused to the accused and on the said application, learned Trial Judge passed an order 'fix for hearing'. Thereafter, no order has been passed by the learned Additional Sessions Judge. Therefore, from the CR.A/1311/2006 7/22 JUDGMENT aforesaid application – Exhibit-7 submitted on behalf of the accused, even presence of the accused is established. Still, neither the learned Public Prosecutor nor the learned Additional Sessions Judge has bothered to consider the said vital aspect. 6. Crimes in society are real and concrete incident actually occurs. Crimes are not fancy or imagination, which courts are called upon to decide. Therefore, greater responsibilities are to be shouldered by courts while dispensation of justice. Prosecuting agency and investigation agency are also important factor in criminal justice system. Each component must do justice to its role in doing justice to aggrieved persons. The crimes are not affecting the individual, but influences the society as a whole and, therefore, the grave crimes are not against individual but against the society. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. This could be achieved through instrumentality of criminal law. The contagion of lawlessness would undermine the social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved through courts of law through the role assigned to a court. Law as a cornerstone of the edifice of order, should meet the challenges confronting the society. CR.A/1311/2006 8/22 JUDGMENT 7. We are at pain to observe that neither the learned Trial Judge nor the learned APP endeavoured to find out the truth by probing further the case. Instead, as soon as the witnesses, who were eye witnesses, turned hostile, the Trial Court as well as the learned APP shut the doors towards their pious and prime duty to search for the truth and the trial was closed in extreme hurry. We find that the Investigating Officer, who is named in the charge sheet, could not be examined by the learned APP nor such vigilance could be shown by the Trial Court to reach at the truth. It is not the law that when eye witness turns hostile, the courts should abandon the search for the truth and learned APP should become oblivious to put forward the whole prosecution case and instead of adducing further evidence for search of truth, simply giving purshis in the case to lock the whole case in a cup board so as to ignore completely the heinous crime like murder committed under the nose of the society. The Investigating Officer could have been examined to throw light on the circumstances of the case and could have proved the case beyond reasonable doubt despite eye witnesses turned hostile. Necessary it is to mention that the Investigating Officer draw panchnamas by which iron bar seized from the house of the accused, contained bloodstains, and according to Forensic Science Laboratory, those bloodstains contained the blood CR.A/1311/2006 9/22 JUDGMENT group of the deceased. This is not the end but shirt and pant worn by the accused when he was arrested and seized by the Investigating Officer through a panchnama, contained bloodstains, which according to Forensic Science Laboratory report, contained the blood group of the deceased. Learned Trial Judge and prosecuting agency, however, did not bring this evidence on record and adopted “shutters down” approach. It is nowhere so defined in any criminal law of the country that evidence means the evidence of eye witnesses only. Evidence may be in any shape, and in search for the truth, this evidence must be appreciated by the courts of law as evidence in criminal trial to come to the truth. In this case, the learned Trial Judge as well as learned APP both shut their eyes to their duties to explore the truth. The worst thing which we find is that the Forensic Science Laboratory report which is produced by the prosecution requires to be exhibited without formal proof under Sections 293 or 294 of the Criminal Procedure Code, is neither exhibited by the Trial Court nor any endeavour was made by the learned APP. Besides, we find from the record that accused himself through his Advocate preferred an Application at Exhibit-7 on 30th of October, 2004, wherein the accused prayed before the Court that in the said case, accused also got injuries and the papers relating to the injuries of the accused be called for and be placed on record as the documents were important for the defence of the accused. The learned Trial Judge CR.A/1311/2006 10/22 JUDGMENT passed an order dated 30th of October, 2004 that the application was kept for hearing. However, it appears that, no further orders came to be passed below such application. Perhaps, a judicial adjudication after due consideration, could have assisted the Trial Court to arrive at the truth of the matter, which is the sole purpose of the criminal trial. 8. True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In trials, therefore, it becomes the duty of the Judge presiding over a criminal trial, to appreciate the evidence from all corners, and if the evidence is not produced, though available, then, the same could be produced. The courts exist for doing justice to the persons who are affected. As afore-stated, the crimes of such nature like murder are affecting the society. The court is not merely to act as a tape recorder recording the evidence, overlooking the object of trial i.e. to get at the truth. The courts cannot be oblivious to the active role to be played, for which there is not only ample scope but sufficient powers are conferred under the Code. The court has a greater duty and responsibility to render justice in a case where it appears that the role of the prosecuting agency itself is dubious. The courts are expected to CR.A/1311/2006 11/22 JUDGMENT perform its duties and functions effectively and true to the spirit with which the courts are sacredly entrusted the dignity and authority and an alert judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly to reach at the truth. The interest of the parties in conducting the trial in such a way so as to gain success is understandable, but the obligation of the Presiding Judge to hold the proceedings as to achieve the dual objectives i.e. search for truth and delivering pure justice cannot be subdued. Wherever necessary, even courts are empowered to curb perjury. This is a fact that most of the witnesses coming in the courts despite taking oath, make false statements to suit the interest of the parties. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take evasive recourse despite proof of the commission of the offence. 9. We find to our utter shock that so far as this Appeal is concerned, the role of prosecuting agency also appears stigmatic. Witnesses are the eyes and ears of the justice. If the witnesses are incapacitated from acting as eyes and ears, the trial gets putrefied and paralysed and cannot be termed as a fair trial. The incapacitation may CR.A/1311/2006 12/22 JUDGMENT be due to various factors. In this case, it may be the relations of the parties because at one hand, the accused was the cousin of the witnesses and the deceased was the father of the complainant and witnesses. It is the cardinal principle in law of evidence that the best available evidence should be brought before the court. Unfortunately, this is a case wherein other evidence besides eye witnesses was available to support the prosecution case was not brought on record by the prosecuting agency nor any attempt was made to show to the court that how the witnesses have failed to support the prosecution case. Evidence of recovery of weapon through panchnama, may not be a discovery, still is a good evidence if proved beyond doubt. Finding bloodstains of group of the deceased on the clothes of the accused as well is a good evidence to support the prosecution besides the direct evidence of eye witnesses. When accused himself files an application that in same case the accused has got injuries and the prosecution as well as court becomes, perhaps, oblivious to bring on record such relevant facts, supporting the search of truth, itself is an example of lack of awareness towards pious duties. Undoubtedly, therefore, the role attributed to learned APP in this trial has been eschewed in hurry of disposal of the trial, which has resulted in failure of justice. 10. It is known and cardinal principle of evidence that even if a CR.A/1311/2006 13/22 JUDGMENT major portion of evidence is found to be deficient in case residue is sufficient to prove guilt of an accused, the conviction can be maintained. It is the duty of the court to separate grain from chaff in coming to the conclusion of truth. It also becomes the duty of the court to take into consideration of relevant evidence available and courts are empowered to produce on record such evidence if the prosecution failed in their duties to produce such evidence. The conclusion of a criminal trial must be the outcome of cool deliberations and the scanning of the material by the informed mind of the Judge that leads to determination. How can a prosecuting agency or concerned Trial judge afford to be so perfunctory in dealing with the criminal trial of grave crime of murder. 11. Necessary it is therefore to refer to the decision of the Apex Court in the matter of KRISHNA MOCHI AND ORS vs. STATE OF BIHAR, as reported in AIR 2002 SC 1965. In paras 75 and 76, the Apex Court observed as under : “75. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, CR.A/1311/2006 14/22 JUDGMENT more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross- examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross- examination, certain answers are snatched from him. When a rustic or illiterate witness faces as astute lawyer, there is found to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. 76. Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which CR.A/1311/2006 15/22 JUDGMENT should not weigh with the Court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and another v. State (Delhi Administration ), AIR 1978 Supreme Court 1091, Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh AIR 1988 Supreme Court 1998, it was held 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. In the case of State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73, it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the CR.A/1311/2006 16/22 JUDGMENT smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. 12. In the case of ZAHIRA HABIBULLA SHEIKH AND ANR. vs. STATE OF GUJARAT AND ORS., reported in (2004) 4 SCC 158, the Hon'ble Supreme Court has occasion to deal with the role of the Public Prosecutor. It is observed by the Hon'ble Supreme Court that Public Prosecutor is not supposed to be a persecutor, yet the minimum that was required to be done, to fairly present the case of the prosecution, was not done. It is further observed that it is as much the duty of