Gujarat High Court
Vishal Rajendra Trivedi vs State Of Gujarat on 13 October, 1995
Equivalent citations: (1997)1GLR1
JUDGMENT K.J. Vaidya, J.
1. The question of indeed, quite great importance that arises for consideration in this appeal is-"Whether the prosecution witness who having once been examined through and through before the trial Court, and quite relying upon his evidence and also along with that of others, if the trial Court has reached the conclusion thai the prosecution has proved its case beyond doubt, much less the reasonable doubt to hold accused guilty for the alleged offence punishable under Section 302 of I.P. Code sentencing him to life, then whether under such undisputable circumstances it would be just, legal and proper for this Court to recall and examine the very same witness as Court witness and/or at the instance and on an application of the appellant-accused under Sections 311 and 391 of the Cri. P. Code 1973, made by the convict-prisoner because as submitted the same was likely to change the very nature and complexion of the offence alleged against him and ultimately thereby modify and alter the quantum of sentence that may be passed against him?" The background and context in which this question arises is set out as under:
2. To briefly narrate, the prosecution case as summed up in Charge Exh. 2 it is to the effect that the incident in question wherein the appellant Vishal Rajendra Trivedi aged 18 years killed his step-mother Smt. Lata by giving three successive knife blows, in the house itself situated at Gokulnagar Society, Dakor, took place on 18-7-1993 at 12-00 noon. The eye-witnesses to this incident were (1) P.W. 2-Rachna Rajendra, and (2) P.W. 5-Prithvik Rajendra (child witness aged 12). On the basis of this allegation, F.I.R. Exh. 9 was filed by P.W. 2-Rachna Rajendra, which was recorded by P.W. 10 P.S.I. Dashrathsinh Parmar of Dakor Police Station at 12-55 p.m. At the trial, the accused pleaded not guilty and claimed to be tried. It appears that as the accused was unable to engage a private Advocate, he was given the legal aid, and was defended by the learned Advocate Mr. P.M. Mistry. The trial Court accepting and relying upon the prosecution evidence brought on the record, by its judgment and order dated 28-11-1994, convicted the accused Vishal for the offence punishable under Section 302 I.P. Code, and sentenced him to imprisonment for life, and to pay a fine of Rs. 5,000/- and in default to undergo further S.I. for 15 days, giving rise to the present Misc. Criminal Application, which we have admitted and with the consent of learned Advocates appearing for the respective parties, decided to hear and dispose of the same today.
3. Earlier when the appeal came up for admission before us, at the request of learned Advocate Mr. F.B. Brahmbhatt, we had directed the Superintendent, Junagadh District Jail, to keep the appellant-accused present before us, as he wanted to take some instruction from bunas this was an appointed matter. Accordingly, appellant-accused is produced before us today. At the time of admission, it was frankly submitted before us by the learned Advocate for the appellant that he was not in a position to assail the factum of the incident and involvement of the appellant-accused in stabbing his step-mother Lata to death. However, having regard to the facts and circumstances of the case, according to Mr. Brahmbhatt, this appears to be more or less a case of suppressed grave and sudden provocation, where the accused ultimately losing temper, in grave and sudden provocation unfortunately stabbed Lata. To bring home this point, he intends to rely upon the affidavit of the father of accused Vishal, viz., P.W. 4 Rajendra Ramanlal Trivedi, which clearly goes to indicate that no doubt, he had stabbed his mother, but having regard to the facts and circumstances of the case, the offence would be either the one under Section 304 Part-I or Section 304 Part-II of the I.P. Code. Mr. Brahmbhatt, under the circumstances, further submitted that the appellant should be given a reasonable opportunity to bring on record the tell-tale material, in order to place the correct facts, truth on the record so that the Court can re-examine the entire case in the said light, and reach its own just decision. It was pointed out by Mr. Brahmbhatt that at the trial, the accused was given legal aid.
4. Now, having regard to the peculiar question raised, namely, whether this Court would be justified in entertaining the submission made by Mr. Brahmbhatt. we, in the overall interest of justice, requested learned Senior Counsel Mr. K.J. Shethna present in the Court also to appear on behalf of the appellant so as to assist and enlighten this Court as regards the correct position of law, as to what can be done and what cannot be. Mr. Shethna, as usual, responding to the call of duty, has been good enough to readily agree to appear on behalf of the appellant-accused and accordingly has today tendered an application under Sections 311 and 391 of the Criminal Procedure Code, 1983 inter alia praying this Court to recall and re-examine PW 4 Rajendra Ramanlal, before this Court, and after recording his evidence, decide and decree the fate and future of Vishal, aged 18 accordingly, in light of the fresh evidence. Accordingly, on behalf of the appellant it is submitted that undisputably he had stabbed his step-mother Lata to death. But the facts and circumstances which swayed him to the stabbing were unfortunately suppressed before the trial Court, and as a result, what otherwise ought to have been an offence at the most punishable under Section 304 Part-I or Section 304 Part-II of the I.P. Code, the appellant came to be convicted for an offence under Section 302 of the I.P. Code. Making good this plea, Mr. Shethna, has taken us through the affidavit of Rajendra Ramanlal, who as stated above happens to be the unfortunate father of equally unfortunate son appellant-accused, giving out a heart-rending pathetic story, which is as under:
4.1. According to the deponent Rajendra Ramanlal, he has studied upto Tenth Standard, and thereafter joined as a peon in Bank of Baroda at its Kapadwanj Branch, on 25-8-1969. At the age of 23, he married with his first wife Leela, through whom he had one son Vishal, the appellant-accused, and one daughter, namely, PW 2 Rachna. On 11-4-1978, Leela passed away due to jaundice. At that time, since Rachna and Vishal were quite minors, in order to nurse and bring them up, he was constrained to marry second time. This marriage with Lata took place on 12-2-1979, who was 12 years younger to him. Through her on 27-1-1981 Rajendra got one son who was named Prithvik, P.W. 5. It is further the case of Rajendra that after passing certain bank examinations, he was promoted as a clerk on 16-4-1984 at Dakor. At Dakor, he was residing in the rented house of one Vinubhai Chhotubhai Patel for about 4 years, and as a result of that, they developed, relations with Rajubhai, who was often coming to his house. After he went to reside in his own house, Rajubhai Patel continued often coming to the house in his presence as well as in his absence. As the fate would have been, his son accused Vishal once saw Rajubhai and his wife Lata in compromising position behaving like husband and wife and from that day onwards, Vishal started hating her. In the beginning, Vishal could not dare tell this incident to Rajendra. However, on the other hand, his deceased wife Lata continuously started poisoning his ears and as a result, he ultimately drew away Vishal from his house. Thereafter he came to know from Vishal only that Lata was of very loose character, and that she had developed illicit relations with one Rajubhai Vinubhai Patel. Because of that, Vishal had constantly quarrelled with Lata. Not only that, but after this information, even Rajendra quarrelled with his wife Lata whom he was constrained to warn that under no circumstances, she would be permitted to have nonsense relations with Rajubhai and that he should not be allowed to enter the house. This resulted into frequent bickering, and despite his protests and dislike, Rajubhai continued coming to his house at his back as subsequently reported to him. At that time, as he was quite worried and anxious about the marriage of his daughter Rachna thinking that if the loose character of Lata was exposed and came to the knowledge of the society, not only it would bring into disrepute the name of the family, but the same would as well forestall and prejudice the marriage prospects of Rachna. And accordingly wiser under the constraints, brought about by conspiratorial circumstances, he restrained himself and preferred to suffer in silence. Lata also on the other hand, obstinately persisted that Vishal should not be permitted to enter the house and under such time, turmoil and crises, helpless as he was, at the instance of his wife Lata, he also advertised a public warning in the issue dated 16-7-1993 of Gujarati daily "Sandesh", which reads as under:
Notice is hereby given to the public that our son Vishal aged 19 is not within our control since last many years and that since last 3 years, he is not residing with us. Under the circumstances, no person should have any financial dealings with him, and in case anybody enters into such financial dealings with him, we will not be responsible.
This was done through an Advocate of Thasara. After this notice was published in the newspaper of 16-7-1993, within two days of it, violent incident in question took place on 18-7-1993 where Lata came to be stabbed by Vishal. According to Rajendra, Vishal told him that on 16-7-1993 at about 2-30 P.M. when he visited his house, the scooter of Rajubhai Vinubhai was found parked outside, while the door of the house was bolted from inside. After knocking the door for some five minutes, the same was opened and immediately Rajubhai coming out and made good his escape on his scooter. At that time, the clothes put on by Lata were not in order. Under the circumstances, a quarrel took place between Lata and Vishal. On the day of the incident, for about half an hour, he had gone outside and when he returned home, he found his wife Lata was lying on the ground bleeding, gasping and able to speak with great difficulty. Lata told him that Vishal had come home and therefore, she had scolded him as to why he had come. Not only that but he was also told that this was not his house and therefore, he had no right to come and the house belonged to her (i.e. Lata) and that she will live her life as she liked. Thereafter there was some heated exchange of words and filthy abuses between herself and Vishal wherein in the result Vishal stabbed her. Further, according to Rajendra Trivedi, even his daughter Rachna has stated the very same story. However, he had requested her not to disclose these facts to the police in the interest of family name, reputation, and it was under his pressure that she also gave a different version before the police. According to Rajendra, he is a heart patient and has taken treatment at Jaslok Hospital, Bombay. At present his daughter Rachna is pregnant and delivery is due." Still further, according to Rajendra Trivedi, on the date of the incident. P.W. 2 Rachna-his only daughter was of marriageable age and was unmarried He belongs to orthodox Hindu Brahmin community, and accordingly if the facts and circumstances in which Lata was stabbed to death were disclosed, the matrimonial prospects of Rachna, who was borne through his first wife would have been put to great question mark, adding to the list of his agonies of (i) losing his first wife Leela, (ii) thereafter losing his second wife; (iii) losing his son sentenced to life imprisonment; and (iv) the daughter being denied marriage prospects. It was under these gruelling circumstances that though he should not have, but still he was compelled to become party to the conspiracy of circumstances, and had given evidence before the Court, which accordingly to him was contrary to what actually happened resulting into life to his son Vishal.
5. Mr. Shethna, the learned Counsel has earnestly urged this Court to take the aforesaid tell-tale facts and circumstances narrated in the affidavit of Rajendra Ramanlal into consideration and in the greatest interest of justice pass appropriate order to recall and re-examine him by this Court as Court witness. Mr. Shethna further submitted that this Court has, indeed the ample powers under Section 311 of the Code to summon material witness, if the evidence appeared to the Court essential for the just decision of the case. Mr. Shethna further submitted that by virtue of the provision contained in Section 391 of the Cri. P. Code, this Court is empowered, even at the appellate stage, to record additional evidence or direct it to be recorded by the trial Court. Mr. Shethna further urged that there is no reason to distrust and disbelieve and thereby discard the affidavit of the father of the accused at this stage. Mr. Shethna further submitted that once the Court has reason to believe and accept the oral dying declaration of Lata, then it will entirely change the very nature and complexion of the offence alleged against the accused and once the nature of offence is changed, then obviously there will be substantial change so far as quantum of sentence is concerned. In this view of the matter, and more particularly, the tender age of appellant, Mr. Shethna fervently appealed to us that there indeed cannot be any better case than the present one and accordingly, this application be allowed, and P.W. 4 Rajendra Ramanlal be examined as a Court witness.
6. As against the above, Mr. S.R. Divetia, the learned A.P.P. opposing this application vehemently submitted that this application is nothing but a clear afterthought to dislodge the prosecution case which stands having been duly brought home the charge beyond doubt, much less reasonable doubt. He further submitted that there is indeed no guarantee whatsoever of witness Rajendra conveniently not blowing hot before the trial Court and cold before this Court. The learned A.P.P. further submitted that if this type of applications are lightly entertained, it would simply open a pandora's box, and the Court would be simply flooded with such frivolous applications and this would indeed be a very dangerous precedent. Learned A.P.P. finally submitted that under the circumstances high-lighted above, it would not be safe and expedient to allow such type of applications and give interested witness a second innings and thereby upperhand.
7. Now, we are indeed quite conscious of the fact that we are having before us a witness, who had the guts and heart to give evidence on oath before the Sessions Court against the appellant-accused who is none else but his son to the extent of making him liable under Section 302 of the I.P. Code. We are also further conscious of the fact that Rajendra Ramanlal Trivedi is a fairly intelligent man serving in Bank of Baroda. But then, the million pound question that bugs our conscience and accordingly arises for our consideration is-"whether merely because once a witness has given evidence on oath before the Court, under certain possible unavoidable compulsions (and they are prima facie made out), should the Court refuse to hear him also, if by examining him justice would come out with true colours and in true light?" We are further quite conscious, apart being put on guard by the learned A.P.P. Mr. Divetia, that by entertaining such application, sometime the Court would be opening a "pandora's box", viz. there would be a spate of such applications for reversion of conviction and in certain cases even acquittal orders also. But merely because that possibility is there, we are not supposed to be chicken-hearted deterred by some apprehensions, as we as a Court of justice and law, and over and above as constitutional functionaries, must ready to meet with any such challenges and eventualities and decide the same in light of the attending facts and circumstances of a particular case. In fact, the Court doing justice is never deterred by such alleged apprehensions or threats. What would happen if such an application is allowed is indeed not the way to do justice. If immediate and urgent concern for the Court is to do justice and if indeed there is some material which clicks and appeals to judicial conscience, then not to examine witness would be as good as gagging the mouth of justice. It is not that merely because in case we are inclined to allow this application, this will stand as a precedent in each and every case. Every case shall have to be tested and decided on its own sterling qualities, and not on some deceitful submissions made before the Court by the concerned witness. Therefore, it must be stated with all force at our command that merely because at the initial stage the prosecution succeeded on the evidence of a particular witness and that witness takes a somersault and gives a different version and that different version clicks the common-sense, conscience and overall probabilities of the Court, then in that case, the Court is duty bound to consider it for whatever worth it is at any cost. By recalling a witness it is not that the Court is readily accepting whatever he would be deposing before the Court. What the Court is doing is affording an opportunity to the witness, which strikes to us at this stage as essential to do justice to the case. This is what Section 311 mandates and the facts of the present case warrant us to grant the application. We, at this stage, without expressing any opinion as to whether the contents of the affidavit of Rajendra Ramanlal can be taken as gospel truth or not and accepted at its face value, just direct him to appear before this Court and give evidence, which the learned A.P.P. in turn would be at liberty to challenge and convince us to the contrary and thereafter, and after hearing both the sides, we will be deciding the fate of the accused as to whether his case is required to be reviewed to be toned down to the one under Section 304 Part-I or Part-II, or it has to be maintained at the highest level under Section 302 of the I.P. Code, as has been done by the trial Judge.
8. Finally, Mr. Divetia urged that if at all this Court is inclined to re-examine Rajendra, then, on the basis of one sided allegations made by him, the Court would not be justified in coming to a particular conclusion in case unless and until it examines Rajubhai with whom it is alleged that Lata had illicit relations. Now, this contention of the learned A.P.P., though attractive, is at the same time devoid of any substance. The reason is, even if we direct Rajubhai Patel to be examined as a witness before this Court, it is difficult to humanly conceive even that he would admit extremely serious allegation that he was having illicit relations with deceased Lata. When this could be a reasonable inference and thereby a safely forgone conclusion, to examine Rajubhai Patel for the sake of examination only, would be an idle exercise in futility serving no purpose and in that view of the matter, we don't accede to the request of the learned A.P.P. to examine Rajubhai Vinubhai Patel as, in our opinion, his non-examination would in no way prejudice the prosecution and hamper the ultimate course of justice.
9. Thus, having considered the rival contentions quite at length and in depth, having regard to the peculiar facts and circumstances of the case, we arc inclined to adopt the wiser and safer course, that is to say, by chance even if erring then of erring on the safer side by granting the prayer made by the appellant-accused, to examine his father Rajendra Ramanlal, in the overall interest of justice. Accordingly, we feel that by not doing so what ought we not know, we would be indirectly shutting the possibility of real truth trying to streak out, resulting into miscarriage of justice. We refuse to take chance which may result into miscarriage of justice.
10. The answer emerging from the net result of the aforesaid discussion to the question raised at the top of this judgment, namely, whether a witness who has already been examined and partly on whose evidence, the conviction has been recorded, should be permitted to be re-examined at the appellate stage or not, is essentially and entirely a question and matter lying within the judicial discretion of the concerned Court which is called upon to exercise such discretion depending upon all the relevant attendant circumstances as high-lighted by the appellant-accused and the learned A.P.P., and there cannot be open and shut formula in the matter of exercising the discretion in question. If the facts of the case clicks and appeals judicial conscience then in interest of justice a witness needs to be recalled and re-examined. The Court has the necessary power to do so, and it is under the obligation to exercise the same when just case is made out by the concerned party.
In the result, we allow this application and accordingly direct Rajendra Ramanlal to give evidence before this Court. Rule made absolute accordingly.
11. Rajendra Ramanlal is very much present before the Court, and in that view of the matter, we don't deem it necessary to ask the office to issue witness summons to appear before this Court on particular date to give evidence. He is informed in the Court that his evidence shall be recorded before this Court on 17-10-1995 at 11-00 A.M.
12. At this stage, Mr. Divetia, learned A.P.P. has requested this Court to stay the implementation of this order as he proposes to move the Supreme Court. We reject this request of the learned A.P.P. not only because this is an interlocutory application, but also because, in case on the basis of the evidence of Rajendra Ramanlal, we allow the appeal partly, then in that case, while challenging that order, the question of permitting the appellant-accused to examine Rajendra Ramanlal before this Court can as well be challenged in the appeal, and thereby no prejudice is going to be caused so far as the State is concerned.