IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 28 of 1991 with CRIMINAL APPEAL No 63 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- FARUQMIYA N MALEK Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 28 of 1991 MR BS SUPEHIA for Petitioner MR KC SHAH, APP, for Respondent No. 1 2. Criminal AppealNo 63 of 1991 MR NITIN M AMIN for Petitioner MR KC SHAH, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA Date of decision: 03/02/98 ORAL JUDGEMENT (Per S.M.Soni, J.) Criminal Appeal No.29/91 is by original accused No.3 and Criminal Appeal No.63/91 is by accused Nos.1 &2 of Sessions case No.77/89. Respective accused have filed these appeals against the judgment and order of conviction dated 7th December 1990 passed by the learned Sessions Judge, Sabarkantha at Himatnagar. The learned Sessions Judge by the judgment and order held accused No.3 guilty under section 302, 324 and 506(2) of the Indian Penal Code and awarded respective sentence of rigorous imprisonment for life, rigorous imprisonment for two years and fine of Rs.500/- in default rigorous imprisonment for six months and rigorous imprisonment for six months, respectively. Learned Sessions Judge has ordered the substantive sentence to run concurrently. Original accused Nos.1 & 2 are held guilty under section 302 read with section 34 and 324 read with 34 and section 506(2) of the Indian Penal Code. They are also ordered to undergo sentence as ordered in case of original accused No.3, however concurrently. The accused have preferred these appeals. 2. Few facts leading to the prosecution of the accused are as under : Police Inspector, P.W.10, who was on patrol duty at 11.00 a.m. on 18th July, 1989 was informed on his return to the Police Station by the Police Station Officer that there was scuffle on the canal in Chhaparia area of Himatnagar town. P.W.10, therefore, in company of some police personnels rushed to the scene of offence in his jeep car. When P.W.10 reached there, all the shops around in the area were closed and he found pool of blood at one end of the canal. On inquiry from the persons standing there, he learnt that there was scuffle between Muslims and Marwadis and injured were removed to hospital. He, therefore, reached the Civil Hospital, Himatnagar and found P.W.6, 7 and 8 as well as accused No.3 admitted in the hospital. He found that one Madanlal Ranchhoddas was dead. Complaint of Fufaram, PW 6, was recorded and sent to the Police Station Officer to register the offence. The offence was registered. Investigation carried out and completed. On completion of the investigation, chargesheet was submitted against all the accused in the Court of Chief Judicial Magistrate, Himatnagar, who in his turn, committed the case to the Court of Sessions Judge, District Sabarkantha at Himatnagar where the case was registered as Sessions Case No.77/89. 3. The learned Sessions Judge framed charge against the accused. The accused pleaded not guilty and prayed to be tried. The prosecution led necessary evidence to prove the charges levelled against the accused. On completion of the prosecution evidence further statement under section 313 of the Code of Criminal Procedure, 1973 was recorded. In that statement all the accused have pleaded total denial initially. However, thereafter, accused No.3 has filed one additional written statement wherein he has come out with the theory of self-defence which we will deal in detail at an appropriate stage. No defence witness was examined. The learned Sessions Judge after hearing the learned Additional Public Prosecutor and the defence advocate Mr H.N.Zala held the accused guilty of the offence charged against them and awarded respective sentence referred to hereinabove. This judgment and order is assailed in these appeals. 4. Learned Advocate Mr.B.S.Supehia for accused No.3 and learned advocate Mr.Nitin M. Amin for accused Nos.1 & 2 have their common submissions. They have challenged the conviction mainly on the ground that oral evidence of eye witnesses have been wrongly accepted by the learned Sessions Judge. The evidence of such witnesses is neither corroborated by medical evidence nor by any independent witness though available and cited in chargesheet, yet not examined in the Court. They have contended that all the three eye witnesses, namely, P.W.6, 7 and 8 in the previous statements have stated contrary to what they have stated before the Police in their police statement as well as before the Court and therefore their evidence ought not to have been accepted. They also contended that the prosecution witnesses are guilty of suppression of material fact inasmuch as they have not explained the injuries on the person of accused No.3. They have, therefore, contended that the evidence only creates suspicion and the same ought not to have been accepted. In the alternative, Mr Amin has contended that the alleged act which amounts to offence was committed by accused No.3 in his self-defence as all these three witnesses, P.W.6, 7 & 8 were assaulting him and he just escaped and had given knife injuries to save himself. Mr. Amin further contended that in the facts and circumstances of the case, it cannot be said that accused No.3 has exceeded in his self-defence. In view of these facts, it is contended that all the accused ought to have been acquitted by the learned Sessions Judge. 5. Learned APP, Mr K.C.Shah, has contended that if the evidence of these eye witnesses, viz. P.W.6, 7 & 8, who are also injured witnesses, are properly read in the perspective of the case, then the judgment and order of the learned Sessions Judge does not call for any interference. Mr Shah further contended that the contradiction proved during the evidence of P.W.9, Pashabhai, Executive Magistrate, who is alleged to have recorded the dying declaration, which is now required to be treated as a previous statement, is not proved in accordance with law. Therefore, any of such contradictions cannot be held against the said witnesses either to reject their evidence or to make their evidence suspicious one. Mr Shah further contended that when there is sufficient evidence of injured eye witnesses, P.W.6, 7 & 8, non-examination of other witnesses though alleged to be eye-witnesses and independent one does not adversely affect the prosecution case. It is not shown that by non-examination of said eye witnesses what adverse inference is required to be drawn? Either they would be eye witnesses or they would not have seen the incidence. Mr Shah further contended that for non-examination of those witnesses, no adverse inference to the effect that the victims were not injured and others were the assailants can be inferred. Mr Shah, therefore, contended that the appeals deserve to be dismissed. 6. Before dealing with the evidence of P.W.6, 7 & 8 individually it will be necessary to decide whether the contradictions in their evidence through the previous statements recorded by P.W.9, Pashabhai can be relied upon or acted upon. There is no dispute about the fact that P.W.10, issued yadi to P.W.9 to record dying declarations of P.W.6, 7 & 8 and accused No.3. The said P.W.9, Executive Magistrate had gone to the hospital and according to him, recorded dying declarations of the said witnesses and accused No.3. However, the said witnesses and accused No.3 having survived, though the statements lose the significance of being a dying declaration, they retain the character of previous statements. It will be relevant to refer to section 145 and 157 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act'). Section 145 reads as under : "145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Section 157 reads as under : "157. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." In our opinion, section 145 is more relevant in the facts of the present case. Section 145 of the Evidence Act contemplates that before contradicting a person as to his previous statement, his attention is required to be drawn to that part of evidence. But before the attention is drawn to that part of the evidence, it is necessary first to prove that previous statement. In the instant case, P.W.6, 7 & 8 have specifically denied that Executive Magistrate has recorded their statement in the hospital. Thus when the witnesses denied to have recorded their statement, it was the prime duty of the prosecution to first prove the recording of those statements and after proof of such statement being recorded bring it to the notice of the witness to those part of statement which are proposed to be used for the purpose of contradicting him. In the instant case, when the witnesses P.W.6, 7 & 8 have denied to have given any previous statements, it is necessary to prove that their previous statements are recorded. For this purpose, it will be relevant to refer to the evidence of P.W.9, Pashabhai, Executive Magistrate. P.W.9, Pashabhai, in his evidence has stated that "on 18th July, 1987, I received one yadi from Police Inspector of Himatnagar Town Police Station. I was requested by the said yadi to record the statements of Kanaiyalal, Ranchhoddas Achalda and Fufaram Waghaji. I received that yadi at 5 O'clock in the evening ......then my clerk Shri Vyas and myself went to the hospital. ..........There one peon was standing. I asked him where is Ranchhodbhai .......Ranchodbhai was lying in a bed. I asked his name. Then the man lying in the bed told me that he is Ranchhodbhai Achhalda. Ranchhodbhai was conscious. I asked him as to how the scuffle took place. Then he told how he was injured. Then I recorded his statement in the manner he dictated. Thereafter I went to my office. Now I say that after recording the statement, I read over the statement to him and obtained his signature. Then I went to Mamlatdar's office with the statement. ..... I placed that statement in the cub-board ...... I have brought that statement ..... Again I went to hospital by about 6.15 p.m. ..... I inquired from a Lady Doctor as to where Kanaiyalal was admitted and she showed me the bed of Kanaiyalal. Kanaiyalal was in ward No.28. There are 5 coats in ward No.28. The lady doctor showed me Kanaiyalal. I interrogated and recorded his statement. I read over the same to him and took his signature. In the opposite room Fufaram was there. I inquired of him about his name etc. Then I recorded his statement which was read over to him and I took his signature". 7. By this part of the evidence, the prosecution wants to suggest and the defence wants to rely on the suggestion that this part of evidence is a proof of recording statements of P.W.6, 7 & 8 by P.W.9, Executive Magistrate. Whether the said statements can be said to have been proved ? It is for the Court to decide whether the said statements are proved in accordance with law. We are of the opinion that the said statements are not proved as required under the law of evidence. Any statement, if required to be proved, some formalities are required to be gone into more particularly when the statement bears signature. Unless the signatures are proved to be of the signatory, the said statement cannot be said to have been proved. 8. Section 3 of the Evidence Act has given interpretation of the word 'proved' which is referred in the Evidence Act. Word 'proved' means a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists to lead to a conclusion that the existence of such document is so probable to rely on the same, under the circumstances of the present case. In the present case, P.W.9 has simply stated before the Court that he went to the hospital and inquired from someone to find out P.W. 6, 7 & 8 and interrogated them, took down their statements and also took their signatures below the same. P.W.6, 7 & 8 have specifically denied to have made and signed any such statements before the Executive Magistrate. In view of the denial, it was necessaary to prove the signature below that statement as required under section 67 read with section 49 of the Evidence Act. PW 9 has stated that he recorded statement of PW 6, 7, 8 and obtained their signatures below it. This statement that PW 6, 7 and 8 have signed the statement, by itself is not the proof of signature. Some formal questions are required to be asked and if the answer thereof is in affirmative then the document can be said proved and required to be exhibited. Then it can be read in evidence. Those formal questions are whether the said document is executed by the witness ? Whether the contents are true ? Whether it bears your signature ? If the document is to be proved through some third party then the formal question to be put and answers to be in affirmative are (1) whether the document is executed in your presence or within your knowledge ? Whether the contents are true ? Whether it is signed in your presence or you know the signature of signatory being acquainted with it ? Signature to the document can be proved either examining expert or prove the document by comparison with the admitted signature. Unless this procedure is followed, document is not proved and cannot be read in evidence. This procedure being not followed the said statements of PW 6, 7 & 8 are not proved. As they are not proved they cannot be used for the purpose to contradict the witnesses. 9. P.W. 9 has not stated before the Court by referring to that statement, which was, according to him, duly signed by the respective witnesses; that the signature below the statement was that of a particular P.W. and that the said P.W. had signed in his presence and/or he knows the same. In absence of this part of evidence, there is no proof of signature of P.W.6, 7 & 8 below the alleged previous statements. When the signatures are not proved below the statements and when the alleged signatories have denied to have give much less signed any such statement, it cannot be said that the prosecution by evidence of P.W.9 has proved the previous statement. This apart, when any part of the evidence is required to be contradicted, then it is necessary, first to ensure that he has made such a statement. If he admits to have made such a statement, it stands proved and nothing more is required to prove the same. But if he denies to have made such a statement, then the person who has recorded the statement has to prove that he has recorded the statement of that witness and that the witness in that statement has deposed or stated as stated therein. In our opinion, in the instant case, the prosecution has failed to prove the previous statements of P.W.6, 7 & 8. 10. Question may arise that this law pertaining to proof of a document to rely upon the document is not applicable to the defence. The defence can put any question relying on any document relied on by the prosecution even if that document is not proved. It is true that the defence has a very wide prospective while cross-examining the witness. But simply because the prosecution has produced a particular document saying that they rely on the said document, that by itself is not a proof of the document. When the author of the same disputes the execution even the defence is required to prove that document or bring before the Court necessary material to hold that it is a document executed or it is a statement of a person though he denies the same. Defence is required to put on record necessary material to show that the author is wrongly denying the execution thereof. Either the prosecution or the defence has to bring on record necessary materials to show that the author wrongly denies the execution thereof and after bringing such materials, such a document can be relied on or acted upon. In the instant case, neither the prosecution nor the defence has brought on record necessary evidence to make the court believe that such a statement was recorded by the Executive Magistrate, P.W.9. We are of the view that there is nothing on record from which one can infer that P.W.6, 7 & 8 have made such statements before the Executive Magistrate. 11. Apart from the above discussion, manner, method, preserving and stage at which it is produced make the recording of such statements by Executive Magistrate a little doubtful one.. P.W.9, Executive Magistrate, was asked to go to record dying declaration of P.W.6, 7 & 8 and accused No.3. P.W.9 has stated that till the date of his deposition, he has recorded as many as 50 dying declarations. Necessary formalities before recording dying declarations are not only required to be known by the persons recording dying declarations but is required to be gone into and followed scrupulously. Dying declaration is a piece of evidence acted upon by the Courts on the assumption that dying man normally do not lie. The fact is required to be first established that the man is dying or is about to die or is in such a condition that there are no chances or prospect of his survival. P.W.9 has failed in his duty firstly to verify by necessary inquiry about the physical condition of the author of the alleged statement. He has not recorded statement in question answer form which is normally expected of. Unfortunately, when the statements are not on record, it cannot be said that non-compliance of the above requirements is vital or not. As this is the state of affair, the evidence of P.W.9 does not inspire any confidence to accept it. On receipt of yadi, he goes to the hospital. The manner and method in which he has inquired of the persons whose statements he was required to record does not inspire any confidence. He simply relies on irresponsible persons on his own assumption as to the identity of those persons. Normally, a dying declaration is to be recorded of the person who is in a very serious condition of health. It is, therefore, necessary to verify from the Doctors attending the person whose dying declaration is to be recorded is conscious and rational. That question does not arise in the instant case as the statement has not remained to be a dying declaration. But when it was recorded, it was under expectation that it may be used as a dying declaration. Absence of necessary precautions by the Executive Magistrate, P.W.9, speaks adverse of him. Apart from this, he has not proved the signature which he purports to be of the person who according to him have signed particularly when the authors have denied to have given any such statement and signed below it. Unless the signature below the statement is proved, the said statement, in our opinion, cannot be relied upon to prove contradictions as contemplated in section 145 of the Evidence Act. 12. Assuming that such statement is proved, then also the question remains whether the contradictions are duly proved in accordance with law or not. P.W.9 was asked certain questions in cross-examination with respect to the previous statement of the witness is concerned, namely, P.W.6, 7 & 8. P.W. 7 is alleged to have stated before the Executive Magistrate as under : "...... today in the morning at about 12 O'clock I was given slap by one person on a misunderstanding that some two-three days before a joke was cut against a Muslim woman and I was that person. ........ that all the three accused have given a threat to Madanlal at my house that we will not leave Kanaiyalal alive ... ...... my father and my brother where coming near canal and they were also assaulted by knife and stick." If we refer to the evidence of P.W.7, he has first denied to have made any statement before the Executive Magistrate. He has stated that ".... I have not given any statement before the Magistrate. I have not stated that I was given slap by one person on misunderstanding that a joke was cut on a Muslim woman some two-three day before and that I was that person". No other part of his alleged statement before the Executive Magistrate is brought to his notice in his examination and therefore, in our opinion, any of the statements even if proved by evidence of P.W.9 cannot be used against Kanaiyalal P.W.7. 13. So far as the evidence of Ranchhoddas, P.W.8 is concerned, he has denied to have made statement before the Executive Magistrate. He has denied to have stated the following facts in the reply. He denied that statement was recorded before the Magistrate. He has denied to have stated as under: "Today at about 12.00 noon, I was going to the house of Kanubhai from my house to call him. By that time, near canal, there was scuffle between Kanaiyalal and Madanlal who are my sons and some other persons. At that time my son Madan was hit by crowbar, I was injured by stone on my private part and, I became unconscious and fell down near canal." " ..... it is denied that Farooq was injured with knife and by us..." Except this part of the statement, no other part of alleged statement before the Executive Magistrate is brought to the notice of this witness. 14. P.W.6 Fufaram has also denied that his statement was recorded by any Magistrate at 6 O'clock in the evening. He has denied that Executive Magistrate has come to him in the evening at 6.00 p.m. and he has stated that three persons had come to the house in the morning. He has denied to have made the following statement before the Magistrate: ".... in the morning I was cutting betelnut at the house of Kanaiyalal at about 11.30. ..... There were 4 to 5 persons on the cabin and these persons assaulted me and my master Kanaiyalal and gave a knife blow ...... I do not know these persons." Except this alleged statement before the Executive Magistrate, nothing more is brought to the notice of P.W.6. While in the cross examination of P.W.9, practically an attempt is made to prove the whole of the statement. It is now settled law that part of the statement which is brought to the notice of the witness can only be brought in evidence of the witness who has recorded the alleged previous statement. Whatever is brought to the notice of the witness