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State Of Gujarat vs Sanjaysinh Alias Raju Rushikesh ... on 27 February, 2025

Author: A. S. Supehia

Bench: A.S. Supehia, Gita Gopi

                                                                                                                    NEUTRAL CITATION




                           R/CR.A/914/1997                                       CAV JUDGMENT DATED: 27/02/2025

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                                                                                Reserved On   : 17/02/2025
                                                                                Pronounced On : 27/02/2025

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 914 of 1997


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      and
                      HONOURABLE MS. JUSTICE GITA GOPI

                      ==========================================================

                                    Approved for Reporting                        Yes           No
                                                                                   √
                      ==========================================================
                                            STATE OF GUJARAT
                                                  Versus
                       SANJAYSINH ALIAS RAJU RUSHIKESH BAHADURSINH TAHKUR & ANR.
                      ==========================================================
                      Appearance:
                      MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      DR. HARDIK K RAVAL(6366) for the Opponent(s)/Respondent(s) No. 1,2
                      HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
                      ==========================================================
                        CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                              and
                              HONOURABLE MS. JUSTICE GITA GOPI


                                                     CAV JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The present appeal has been filed by the State under Section 378(1)(3) of Code of Criminal Procedure, 1973, (for short 'CRPC') challenging the acquittal judgment and order dated 26.06.1997 passed by learned Additional Sessions Judge, Ahmedabad in Sessions case No.171 of 1996. The respondent- accused were charged for the offences, under Sections 302 and Page 1 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined 34 of the Indian Penal Code (for short 'IPC') and section 135(1) of the Bombay Police Act (for short 'B.P. Act').

2. The charge noted that on 18.12.1995, at about 6:30 in the evening on Sariam Road, opposite at Rakhiyal cross road both the accused had come with the common intention to kill deceased Zakir and that both the accused had caught deceased Zakir and accused No.2. Baguesh @ Birju gave one knife blow on the chest of deceased Zakir, which was sufficient to cause death in the common course of nature and thereby, has committed the offence under section 302 of IPC read with section 34 of the IPC.

3. The FIR was lodged by Abdul Razak Hassan Ali on the same date of incident at Rakhiyal Police Station and it was registered as I-Cr. No.124/95 under Sections 302 and 34 of the IPC and Section 135(1) of the B.P. Act.

4. Learned APP submitted that the deposition of Abdul Razak i.e. complainant (P.W.4) has corroboration from the eye witnesses, Girisihbhai Ranchhodbhai (P.W.1), Zubairali Umedali (P.W.2) and Kamlesh Pravinbhai (P.W.8). Learned APP has submitted that the evidence of the eye witnesses clarifies the fact that accused No.2 - Birju had inflicted the knife blow. The panchnama of clothes of accused-Birju has been identified by the owner of a sweet shop, Gandalalbhai and the panch Raish Ahmed Abdul Rahim (P.W.10) has proved the fact that two persons had changed their clothes at the shop of Gandalalbhai ,further accused-Birju was named by Gandalalbhai. The front side of biscuit cololured safari shirt reflected the stains.

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5. Learned APP Mr. Soni further stated that by Exh.26 - Panchnama, the recovery of the knife, at the instance of accused-Birju was proved, which was hidden below the sand of the bushes. The accused himself, after removing the soil had handed over the knife. Learned APP submitted that the shop from where the clothes of the accused were recovered, the shop owner Gandalalbhai Patel, himself has stated during the course of panchnama that about 7:00 on Monday evening, both the accused i.e. Sanjay and Birju had come and Birju had changed his clothes and early morning they had left the place. The said person Gandalalbhai had produced the clothes before the panchas, the panchnama at Exh.28 has been proved in the deposition of the panch witness. Referring to the deposition of rest of the witnesses, learned APP Mr. Soni submitted that the learned trial Court Judge has materially erred in not believing the evidence of the eye witnesses and the panchnama proved on record. The learned Judge has not assigned cogent reasons to reject the evidence while acquitting the accused and has erred in holding that there was apparent conflict between the oral testimony and medical evidence.

6. Learned APP has further submitted that the learned trial Court Judge has also erred in holding that both the accused did not share common intention to commit murder. He has submitted that the presence of accused No.2 at the place of offence itself proves that he was not innocent.

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7. Referring to the facts, as emerged on record during the trial, learned APP has submitted that the first incident took place because of the kite, which got torn off in the scuffle which took place between deceased Zakir and one boy. Deceased Zakir had given two slaps to the boy and ultimately, at that time, on the spot, they had settled the dispute and arrived at compromise, but however, the boy thereafter, went to call both the accused, who had come there with the knife, which clearly shows their intention to murder Zakir. Learned APP further submitted that the eye witnesses, who were examined had ran away from the place of murder since they got frightened. Learned APP thus submitted that the trial Court was required to give concession to the age of the eye witnesses and their conduct should not have been made doubtful. The eye witnesses examined by the prosecution can neither be regarded as interested nor as partisan. Learned APP further submitted that in case of conflict between oral evidence and medical evidence, oral evidence will prevail and thus, the learned Judge has materially erred in not considering that established principle by virtue of the decisions of the Apex Court.

8. Learned APP further submitted that FSL report on record are the corroborative piece of evidence which was required to be accepted by the trial Court since it was assisting the learned Judge to come to the conclusion of the involvement of the accused. Thus, submitted to set aside the acquittal stating it to be illegal and erroneous and to allow the appeal.

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9. Countering the argument, learned Advocate Dr. Hardik Raval for the accused submitted that the prosecution has miserably failed to prove as to how the deceased sustained three injuries (i) stab wound on the chest at the nipple level (ii) incise wound on neck at lower part (iii) incise wound on left arm. Advocate Mr. Raval submitted that the evidence of Dr. Gaurang Govindbhai Kothari (P.W.11) denies the possibility of the injury deposed by eye witness by the Muddamal life allegedly used as weapon. Mr. Raval referring to deposition submitted that the muddamal weapon was shown to the witness, the knife was a double edged sharp instrument, while according to the Doctor the material injury No.1 i.e. stab wound was possible by single edged weapon and according to the Doctor, possibility of injury Nos.2 and 3 would be by either single edged or double edged weapon.

10. Learned Advocate Mr. Raval submitted that the conduct and behaviour of the eye witnesses were doubtful. The deceased was along with P.Ws.1, 2 and 8 and the deposition shows that along with them there were also other boys, who were playing cricket but were not examined, the referred eye witnesses had not chosen to inform about the knife injury allegedly caused by the accused to the complainant the brother of the deceased, who was having a shop near the place of incident, nor had preferred to inform even other person or police station about the incident, rather had ran away from the place, nor had they intervened to protect the deceased. Learned advocate Mr. Raval submitted that the witnesses have referred to only one injury on the chest with the knife, while there is no mention about the other two injuries, Page 5 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined all the witnesses were present there till the end of the incident, as according to the witnesses, both the accused had left the place on a scooter and thereafter the witnesses had left the place without attending the deceased. Mr. Raval further stated that the witnesses had not even cared to take the deceased as injured person to the hospital nor had tried to contact any medical person for medical assistance.

11. Learned advocate Mr. Raval further submitted that the panchnama, which has been drawn at Exh.26 reflect that it was at the instance of accused No.2-Birju, who had shown the place. Mr. Raval referring to the panchnama Exh.26, has submitted that the knife which was shown was a double edged sharp knife, which was described as was on one iron pipe covered with a sky blue colour plastic.

12. Learned advocate Mr. Raval further stated that the presence of scooter at the place of offence could not be proved by way of some independent witness nor the ownership of the scooter could be proved and the prosecution had tried to bring the scooter through accused Sanjay while the scooter was found to be at some place which would have no relevance with any of the accused. Learned advocate submitted that the evidence has been rightly appreciated by the learned Judge and has disbelieved the eye witnesses and has rightly considered the unnatural conduct of the eye witnesses.

13. Having heard learned APP and Mr. Raval appearing for the respective parties. The present appeal is against the acquittal judgment. The judgment of Chandrappa v. State of Karnataka Page 6 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined (2007) 4 SCC 415, would be relevant to be mentioned since the judgment lays down the general principles for the consideration of the acquittal appeals. The Supreme Court has held thus:

The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.

Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court.

14. Perused the judgments of the Trial Court. The learned Judge acquitted both the accused on coming to the conclusion that the evidence of all the 3 eye-witnesses friends and one witness who was declared hostile, are unbelievable. The learned Page 7 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined Judge observed about the medical evidence with regard to 3 injuries, noting that the inquest Panchnama reflects two injuries, while the witnesses have deposed of only one injury, further observing that all the witnesses were at the place of the incident from the very beginning till the end. Learned judge observes also that it does not become clear as to who had given the names of the accused to the complainant. The registration number of the scooter, as was stated by the complainant, was informed by Kamlesh. However, witness - Kamlesh himself does not state such facts. The learned Judge has further noted that the complainant's case is of the injury sustained by the Muddamal weapon, while on the other side, the medical opinion does not supports the prosecution case as the injury no. 1 as deposed by the eye witnesses would not occur by the Muddamal weapon. The learned Judge has further observed that though the independent witnesses were available, they were not examined. All these facts go against the prosecution case and therefore, by giving benefit of doubt, had acquitted the accused.

15. The learned Judge examined the evidence of the witnesses and has raised doubts against the eye-witnesses and the fact that witness - Kamlesh has not corroborated the evidence with regard to the scooter, which was alleged to have been used by the accused. The learned Judge has also disbelieved the witnesses examining the depositions and finding the evidence so given by the witnesses as improbable. The learned Judge has also observed the unnatural conduct of the eye-witnesses and giving weightage to the evidence of the Doctor who had denied the injuries to have been caused by the Muddamal knife, Page 8 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined coupled with the evidence of the witnesses, had disbelieved the prosecution case.

16. The complainant, PW4 the brother of the deceased along with all the family members, was staying in Dahyabhai's Chali in Rakhiyal area. On 18.12.1995, he states that the accident had taken place. The complainant was serving in grass fodder shop at Rakhiyal cross roads. His service time was from 10:00 a.m. to 02:00 p.m. and 05:00 p.m. to 08:00 p.m.

17. On the date of the incident, he was on his job and he saw traffic jam and therefore, he went to inquire. The witness states that at that time, his another brother - Abdul Hamid met him and informed him that someone had beaten Zakir. The witness states that when he reached the place, he saw his brother Zakir and therefore, he and his friend - Hasmukhbhai took Zakir in a rickshaw at Shardaben Hospital, swhere the Doctor declared him dead.

18. Complainant states that when he was in the hospital, Kamlesh had informed him that Shami had given the scooter number and as per Shami who had informed Kamlesh, two persons had ran away on scooter. The scooter registration number was GBR-5936. The complaint Exh.17 was given at the hospital.

19. Now in the cross-examination, he states that at about 06.30 p.m., he had reached Shardaben hospital. He states that the police had arrived after 5 minutes of mother's arrival. He denied the suggestion that prior to giving the complaint, his Page 9 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined mother had told him that Tinia Puniya and Kaliya Puniya had informed her that Zakir was lying at the cross road. Voluntarily, he stated that after giving the complaint, when he reached home at night about 01.30 a.m., his mother had informed him the same.

20. The evidence of this witness, as a complainant, does not relate to any of the accused. He is a hearsay witness. The only fact that emerges from his evidence is the scooter registration number GBR-5936, which according to him, was given by the witness - Kamlesh, PW8 who was informed by Shami that two persons had escaped on that scooter.

21. PW8 Kamlesh Pravinbhai who, at the time of the deposition, recorded on 08.05.1997, was aged about 19 years. He was also residing at Dahyabhai's chali. On the day of the incident at about 04.00 p.m., he states that they had gone to play cricket. The cricket ground was opposite Soneria block and along with him, there were 10-12 friends. During that time, a kite had come flying down there and deceased - Zakir and one small boy both ran to catch the kite. While catching the kite, it got torned and therefore, Zakir gave a slap to the boy. Thereafter, the said boy went to Rakhiyal Village and brought two persons. According to the witness, those two persons had a verbal quarrel with Zakir they, stopped their cricket game, and initiated for settlement. The witness identified both the accused in the Court. According to him, after the settlement, for some time, they continued with the game of cricket and thereafter, started for their home. The witness states that they had gone to ice-cream Page 10 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined cart, which was at Rakhiyal cross roads. At that time, both the accused were standing there and both the accused started quarreling with Zakir and slapped him. Thereafter, out of two, one of them gave a knife blow on the chest of Zakir. The present witness - PW8 could identify accused Birju in the court, who he states had given the knife blow. According to the witness, thereafter, they went away to their house, while both the accused too ran away.

22. The witness, according to the deposition-in-chief, thus, is the person who was present there continuously and had seen Zakir running for the kite and had also seen the other child being slapped by Zakir and observed the child going towards Rakhiyal village and bringing both the accused. The witness also deposed of the verbal altercation between the accused and Zakir and thereafter, their settling the issue. The witness also states of their proceeding home while passing the ice cream cart, saw both the accused present there. He also deposed of both the accused again initiating quarrel with Zakir and slapping him. The witness had also deposed that out of two, one had given one knife blow at the chest. Thus, the deposition refers to only blow at the chest.

23. The cross-examination brings out the details that the witness was always accompanying Zakir to play cricket and on the day of the incident, while they were returning, they were in total four of them. He stated in the cross examination that he does not know the accused and on the date of his deposition too he stated, that till date, he does not know them. He clarifies that Page 11 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined in the police statement, he had not given the names of the accused and clarified that if at all the police has written the name, then, that would be by the police.

24. He affirmed that there was grass fodder shop on the side of Rakhiyal cross roads, but denied knowing deceased brother- the complainant working there. He also clarifies that the accused had not beaten him, nor had beaten his friends. They had not taken Zakir to any hospital, nor had called anyone from the neighbouring place for assistance, nor had gone to the deceased brother for assistance. He states that deceased Zakir's mother was informed. The suggestion was denied that Zakir was coming all alone and he was beaten by unknown person.

25. Girish Ranchchodbhai (P.W.1) aged about 21 years was examined before the Court on 07.05.1997, who is the resident of Kadiyani Challi near Rakhiyal Cross Road. According to him the incident had taken place between 6.00 to 6.30 in the evening on 18.12.1995. He stated that they were coming back from the place behind Rakhiyal village after playing cricket and Kamlesh (P.W.8), Juber (P.W.2) and deceased Zakir were along with him. At that time, two persons had come, who started beating Zakir near an Icecream Cart. According to the witness, a kite came there and Zakir had rushed to take the kite and that boy too had run for the kite. During the pull and push, the kite got torn off, so Zakir gave two slaps to that boy. Thereafter, this witness stated that the boy went to Rakhiyal village and brought two boys, at that time there was verbal quarrel and then the matter was settled. This witness (P.W. 1) further stated that thereafter Page 12 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined through Ramini Challi they were returning home. There at the ice-cream cart, the witness stated that two persons caught Zakir and out of the two, one gave two three slaps to Zakir and removed a knife from the shocks and gave blow to Zakir.

26. Girish Ranchchodbhai (P.W.1), named the two persons as Sanjay and Birju and as per his deposition, Birju had the knife and he deposed that Zakir was injured at the chest and thereafter, accused ran away from the place and they too ran away from the place of incident. The witness identified both the accused in the Court.

27. The facts that could be elicited in the cross-examination notes that they had gone to play cricket at about 4 O' clock. The cricket ground is between Rakhiyal village and General Hospital. There were 10 boys in the cricket team. After about one hour, the incident of giving slaps had occurred. The witness stated that he did not intervene. When the boy went and called two other persons, according to this witness, there was quarrel by the boys with Zakir. As per this witness, when these two persons had come, they had stopped playing. After the verbal altercation, there was compromise and thereafter, they went home. The witness stated that the boy to whom two slaps were given, was aged about 10 to 12 years.

28. Girish Ranchchodbhai (P.W.1) has stated in the cross- examination that he does not know where these two accused are staying. Deceased Zakir was residing in the same Challi, where Page 13 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined he resides, and even Juber is from the same Dayabhai Chali. From Bapunagar, General Hospital, the witness states, is at a walking distance to Rakhiyal Police Station and from there they could reach Dayabhai Chali. The incident had occurred on a public road. He further stated that to avoid any communal riots on the cross road, there is a S.R.P. Point. He further clarified that near the cross road at the grass fodder shop, deceased Zakir's brother Abdul Rajak (P.W.4) was having his job. From the place of incident, this grass fodder shop was easily visible and on all the sides of the cross road, there are shops. The witness further clarifies that on the left, there is a Municipality School. On the right side on the footpath there is Pan stall and tea stall and there was always traffic at the cross road.

29. In the cross examination, it was further brought on record that while returning Kamlesh Pravinbhai was along with them. All the four were walking together. There was no stump or bat in their hands. The witness stated that opposite the school there was one dispensary. The incident had occurred on the road which was going towards market, where he further clarifies that there is fruits and vegetable market therefore there were many handcarts.

30. The further cross-examination reveals that they had not interfered when there was a quarrel, no had shouted for some help, and he further stated that none had gathered when the incident of slapping had occurred. The witness also states that Rakhiyal Police Station is at the distance of 300 feet from the Page 14 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined place of incident and stated that he had seen the knife being removed, but does not recollect the clothes and colour of the clothes of the person, who had removed the knife. He says that the weapon was open knife and even after the knife was inflicted, they had not made any uproar. The witness voluntarily stated that they had got frightened.

31. This witness, P.W.1 categorically states in the deposition that after giving one blow of the knife, the accused had ran away and they too had run away from the place. He had not informed about the incident to the deceased mother. The parents of the deceased are staying in the same Chali and the deceased's brother was working just little bit ahead of the road, he had not even informed the brother. He does not remember if people had gathered after the infliction of knife blow. The witness says that two days after the incident, he came to know about the death of Zakir. The witness clarifies that for two days he was not in the village. He denies the suggestion that in the evening at about 7.00, on the same day, he came to know about the death of Zakir. The police inquired from him after two days. He denied in the cross-examination that he was lying about both the accused holding the deceased. He denied the suggestion that he does not even know both the accused and had falsely named both the accused at the instance of the police.

32. The age of P.W.1 - Girishbhai and P.W.8 - Kamleshbhai, were about 21 and 19 respectively at the time of the deposition in the Court. The similarity between the evidence would be about Page 15 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined the quarrel regarding the kite, which had come down and Zakir giving slaps to the boy and thereafter, the boy bringing back two boys from Rakhiyal village and they were returning back after the compromise. Both the witnesses have stated about the incident near the ice-cream stall, however the difference between the evidence of these two witnesses is about the fact whether, both the accused had caught hold Zakir. The evidence of both the witnesses do suggest that both the accused had quarrel with Zakir and had given him slaps, and out of the two, one had given one knife blow on the chest of Zakir. Both the witnesses have identified the accused in the Court and had specified that Birju had given the knife blow. After the incident, both the accused had run away and they too also went back to their home. The evidence of both the witnesses thereby is consistent about the incident and the slap and even of one blow on the chest with the knife. The conduct of the witnesses, which become surprising is that the witnesses had run away from the place. Though the General Hospital was near the place of incident, they had neither taken the injured Zakir to the hospital, nor had informed anyone, who were present there, nor they had informed the brother of Zakir, who was working there at the grass fodder shop near the cross road. Both the witness had not interfered in the quarrel. The incident had occurred near the ice-cream cart, but the person manning the ice-cream cart has not been examined nor any attempt could be found by the person on the ice-cream parlor to immediately take the injured to the hospital, nor any medical assistance was called for. Both the witnesses were residing at the same place, where Zakir was having his house, in spite of that they had not even informed any of the neighbours or Page 16 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined their own parents.

33. Learned APP has urged that the witnesses got afraid because of their young age and being teenagers they were not having the maturity in their understanding. The said aspect could be taken into consideration. However, it cannot be believed that after going home the witnesses had not informed their parents nor it be believed that the though it was a busy place, they had not tried to take the injured to the hospital. The conduct or act of the ice-cream cart owner is absolutely not brought on record. Further, the fact which the complainant stated that, it was he, who had taken Zakir to Sardaben Hospital in a rickshaw, while seeing Zakir at the place when he had gone with others to see the place of incident, as there was a traffic jam. According, to the complainant, when he was in the hospital, P.W.8 - Kamlesh had informed him that Shami told him about the scooter registration number, while such fact of a scooter being used to run away from the place has not been deposed by Kamlesh in his evidence, nor Shami has been examined during the trial. The registration number of the scooter comes on record during the trial in the deposition of the complainant.

34. According to the complainant - witness, he had gone to the hospital and police had come 5 minutes after arrival of his mother. It was put in the cross-examination that his mother had informed him that Tinia Puniya and Kaliya Puniya of the Chali had informed that Zakir was lying at the cross road. He denied that suggestion and voluntarily stated that at about 01:30 a.m. Page 17 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined when he reached home, his mother has informed the said fact.

35. In the recent judgment of the Hon'ble Supreme Court in the case of Goverdhan & Anr. v. State of Chhattisgarh, 2025 Law Suit (SC) 51, the law point which came to be decided was that the convictions based on credible eyewitness testimony and corroborative evidence are not vitiated by minor inconsistencies, provided guilt is established beyond reasonable doubt. The Hon'ble Supreme Court in the referred judgment has placed reliance on the judgment of Ramakant Rai v. Madan Rai, (2003) 12 SCC 395, wherein the requirement of the standard degree of proof in a particular case has been discussed. The relevant paragraphs to understand the degree of probabilities and its concept had been looked into in the judgment of Miller V. Miller of Pensions, 1947 2 AIIER 372, 373 H. The reference made by the Hon'ble Apex Court is reproduced hereunder:-

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the court of justice...."

36. The Hon'ble Apex Court has stated about the requirement of law in criminal trials, to observe, that it is not to prove the case beyond all doubts but beyond reasonable doubt and such doubt cannot be imaginary, fanciful, trivial or merely a possible doubt but a fair doubt based on reasons and common sense.

37. With regard to the discrepancies in the account of eye- witnesses, certain observations made in the judgment of the Page 18 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined Hon'ble Apex Court has been referred in Para 51, which read as under:-

"51. As we proceed to examine this crucial aspect, it may be apposite to keep in mind certain observations made by this Court relating to discrepancies in the account of eye-witnesses.

In Leela Ram (Dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525 it was observed as follows:

"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105]. In para 10 of the Report, this Court observed : (SCC pp. 514-15) '10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on Page 19 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.'

10. In a very recent decision in Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] this Court observed : (SCC p. 656, para 24) '24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.' This Court further observed : (SCC pp. 656-57, paras 25-27) '25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below:

"155.Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him-- (1)- (2) *** (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"

26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section Page 20 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness.

27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] )."

38. The case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 was referred and the caution was expressed for attaching too much importance on minor discrepancies of the evidence of the witnesses in Bharwada Bhoginbhai Hirjibhai (supra), the observations are as follows:-

"5. ... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by the learned counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by Page 21 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him--perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

39. Here the case in not of contradiction or inconsistency of individual witness, own statement. The evidence are evaluated by the trial court to find corroboration in the evidence of two witness before the court and on finding corroboration has turn to find credibility in their versions. The evidence of the complainant and eye-witness - Sureshbhai Somabhai have variations, as observed in the evidence, which the learned Trial Court Judge has considered it to be vital. The evidence of the complainant as well as PW8 - Kamlesh was observed by the Trial Court by appreciating the fact that eye-witness - Kamlesh had Page 22 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined not given the names of the accused to the complainant. As per PW8-Kamlesh, he was not knowing the accused, nor was knowing the accused till the date of deposition in the Court. The learned Judge, therefore, examined the evidence to question as to how the names of the accused got disclosed before the complainant. The Trial Court showed reluctance to rely on the evidence of the complainant. The scooter, which has been referred, was seized by Exh.18, through Mohammad Yusuf Shaikh-PW5, it was deposed that accused no.1-Sanjay had given the number of the scooter and accordingly, the scooter was taken into custody. The learned Judge came to the conclusion that merely showing the scooter would not bear any special importance.

40. The analysis of the evidence of PW5 and PW6 would, if taken into consideration, the panchanma of the scooter was on 22.12.1995 while accused no.1-Sanjay was present. At that time, grey colour scooter having registration no.GBR-5936 was found near the Hindi school, which was behind Monogram Mill. The cross-examination of PW5 would reveal that it was not at the instance of Sanjay the said scooter was found since the panch was informed by the police that the panchnama was to be done of a place, where the scooter was lying. The panch has not deposed that accused Sanjay had informed him about the scooter and then it was found. Therefore, even before accused no.1 could show the place to the panch, the police had already informed the panch about the scooter. The place where the scooter was found becomes unknown since how and why the said scooter was lying there, has not been brought on record.

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NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined PW6 is the employer of the complainant. At the time of the incident, the complainant was working at his shop and he states that the shop was on the opposite side of the corner of the place of incident. PW6 would not be a independent panch he is an interested person.

41. The evidence of Dr. Gaurang Govindbhai Kothari was recorded as PW11 who had conducted the autopsy on 19.12.1995 of deceased Zakirali Hasanali Shaikh at 08:00 a.m. to 10:00 a.m. and during examination, he found following injuries:-

"1) Stab wound present on chest, at nipple level, 8 cm. below medical end of left clavicle, vertically oblique, size 2.8 cm. with 1 cm. gap. Both edges & medical angle sharply cut, lateral angle abratted.

2) Incised wound present on nape of neck at lower part, mid part of neck, vertically oblique, size 2 cm x 1 cm. All edges & angles are sharply cut.

Wound is bone deep.

3) Incised wound on left arm antero medical part size 1.5 cm. x 1 cm. Injuries are red in colour and dry clotted blood present on wounds."

The Doctor further has stated as below:-

"1) External wound no.1 (stab wound) passes through skin & chest.

2) Suboutanous tissues passes through steenum at level of 3rd costel cartilage and then it has cut pericardium then it has passed through & through left ventrical then it has pierced into right lung at upper part. Tract of wound passes upwards and to right side and posterior. Tract of wound is 14 cm.

long Thoracic cavity contains about 1500 c.c. of blood with clotts."

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42. The deposition of the Doctor shows that there were 3 injuries. The injury, which has been referred by PW1-Girishbhai Ranchhodbhai and PW8-Kamleshkumar Pravinbhai is the stab wound on the chest, while no reference has been made by both the witnesses with regard to two incised wounds. The Doctor has categorically deposed that external injury no.1 was corresponding the internal injury no.1, which was possible by sharp-edged weapon. The Muddamal shown to the Doctor was double-edged knife. Injury no.1, as per the Doctor, was possible was only by single-edged weapon, while injuries no.2 and 3 could be done by either single-edged or double-edged weapon. Thus, the Doctor clarified that injury no.1 was not possible by Muddamal weapon.

43. The weapon, which has been brought on record, is a double-edged weapon and by that weapon, there was no possibility of causing injury no.1 which was stated to be caused by the eye-witnesses. The glaring fact, which becomes relevant is that during the deposition of Girishbhai Ranchhodbhai, PW1 and PW8-Kamlesh Pravinbhai, the accused were made to be identified, but the Muddamal knife was not shown to both the witnesses for identification. The whole narration of the incident shows that the eye-witnesses were very much at close quarters. They had clearly specified of accused-Birju removing the knife and inflicting a blow on Zakir's chest. Both the witnesses refer to only one blow with the knife, while the deposition of the Doctor clarifies that the said injury was not possible by Muddamal knife, which was double-edged.

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44. Even the eyewitness Zuberali Umedali-PW2 refers to the use of knife by accused no.2-Birju, which was removed from his socks and the said witness also states that after the blow, they all got frightened and went home and accused left the place on a scooter. The evidence of the eye-witness Zuberali is consistent till the aspect of giving a knife blow with the other witnesses, while witnesses Girishbhai Ranchhodbhai, PW1 and PW8- Kamlesh Pravinbhai have not made mention of the scooter. The cross examination of Zuberali brings out the fact that Kadiya ni Chali and the cricket ground of Soneria block was at a distance of 1 km. Zuberali in the cross also states that prior to the incident, he had never met both the accused-Sanjay and Birju. He also states that when there was verbal altercation and after the compromise, there was no physical quarrel. He says that they were 10 players and all the 10 players had returned back together walking on the road, few of them were ahead and deceased- Zakir was walking along with him.

45. The witness Zuberali-PW2 states that when they reached cross roads of Rakhiyal, both the accused were coming from Rakhiyal village. According to this witness, there was no verbal altercation prior to beating Zakir. He also states that he has not stated before the police that Zakir had given 2-3 slaps to the accused Birju. When Zakir was receiving 2-3 slaps, they had not tried to rescue him, nor had they tried to snatch away the knife or stop Birju while he was removing his knife. According to the witness, when the incident had taken at cross roads of Rakhiyal, people had not gathered there and the accused ran away after inflicting blow on the scooter which he himself had seen. He Page 26 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined thereafter had left for his home. He clearly states that he has not informed Zakir's parents about the incident, nor he had informed his mother about the incident. He states that his mother had not gone to inform about the incident to Zakir's mother, nor had he informed the neighbours.

46. The evidence of this witness adds to the doubt, which gets created on perusal of evidence of PW1 and PW8. Why none of the witnesses had informed the parents about the incident and if at all the incident was informed, why the parents kept silence. The incident further becomes doubtful since the Muddamal knife also is not the weapon which can inflict the injury, as was stated by all the 3 witnesses i.e. PW1, PW2 and PW8.

47. PW3-Sureshbhai Somabhai was examined as eye-witness to the incident, but he turned hostile. The evidence with respect to hostile witness and its assessment is referred to in the case C. Muniappan & Ors. v. State of Tamil Nadu, (2010) 9 SCC 567, wherein it has been observed thus:-

"81. It is settled legal proposition that: (Khujji case, SCC p. 635, para 6) "6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : 1996 SCC (Cri) 1278] this Page 27 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543 : 2003 SCC (Cri) 112] , Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 :

(2008) 1 SCC (Cri) 109] , Radha Mohan Singh v.

State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661] , Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462."

48. In context of law, as propounded, where the evidence of witness who has been pleaded as hostile and cross-examined cannot be washed off from the record altogether, but requires a careful and close scrutiny. PW3 examined as an eye-witness was staying in Kadiya ni Chali and he was selling telephone directories. He states that he had not seen the incident, he doesn't even know the date of the incident, nor he knows the deceased Zakir. The Public Prosecutor cross-examined him referring to his statement and he denied of giving any statement before the police by saying that at 6:00 p.m. to 6.30 p.m. one person aged about 20-25 years with some sharp weapon came crossing the road towards him, and also, denied of having shouted "scooter la scooter la" and a scooter no.GBR- 5936 was driven by a person and the person who was heading towards his side sat as a pillion rider on it. He says that on 24.01.1996, he was called by the Executive Magistrate and he has identified two persons but he denied that the person whom he identified were present in the Court. The evidence of this witness would be Page 28 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined referred to consider the aspect that there was a scooter on which one of the accused holding a sharp weapon was crossing the road and sat as a pillion rider on the scooter. The scooterist's identity is not disclosed, since even the panchnama, which was drawn in presence of accused-Sanjaysinh could not prove the ownership and if at all this statement which has been brought on record by way of cross-examination of the Public Prosecutor is to be relied, then accused no.1 was the person who was driving the scooter. Thus, the presence of accused no.1 at the place of incident gets doubtful. Futher the witness says that the person he identified are not present in the court. So as per the evidence the accused were not the person on the scooter.

49. Section 34 of the IPC has been invoked in the present matter. In the case of Vasant @ Girish Akbarasab Sanavale & Anr. v. The State of Karnataka, rendered in Criminal Appeal No.593 of 2022, the Supreme Court has explained the scope of aid of Section 34 of IPC. The concept has been made clear in the judgment, which read as under:-

"38. If there is one decision explaining Section 34 IPC which could be termed as locus classicus then the same is the Allahabad High Court decision in the case of Om Prakash v. State reported in 1956 CrLJ

452. Justice M.H. Beg (as His Lordship then was) has beautifully explained the provision and its applicability.

39. In order that an intention should be common, it should be attributable to every member of the group. This is also clarified by the fact that the section itself characterises the common intention to be the 'common, intention of all'. Section 34, IPC, therefore, does not ignore the intention of the individual offender.

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40. It only adds some more persons in the commission of the offence and postulates that the same intention was jointly existing in the mind of every individual member of the group as well. It may be that the intention was alleged to be common, but that only means that every member shared it along with others and not the some members shared it and others did not.

41. The common intention required under Section 34 Penal Code need not, however, be identical with the guilty intention or 'mens rea' which is the ingredient of the offence and is to be distinguished from it. The latter might be coincident with or collateral to the former.

50. Section 34, IPC, as contrasted with Section 149, IPC, therefore, balances the individual and the general aspect, although while taking into account the individual aspect it conceives it as part and parcel of the general aspect. In this sense, Section 34, IPC, is far more restricted than Section 149, IPC. If, therefore, a person is charged with an offence with the application of Section 34, IPC, and convicted for the substantive offence only, it is not so easy for him to advance the plea that he was not aware that the matter had any individual aspect.

53. ...... Section 34, IPC, a mere agreement, although it might be a sufficient proof of the common intention, would be wholly insufficient to sustain a conviction with the application of Section 34, IPC, unless some criminal act is done in furtherance of the said common intention and the accused himself has in some way or the other participated in the commission of the said act.

54. The offence itself would be complete even though the act abetted is not committed; or, even if the act is committed, the abettor himself has not participated in it. Thus, actual participation in the commission of the offence, which is a condition precedent of Section 34 and is its main feature, again distinguishes it from the offence of abetment.

55. Section 34, IPC, compendiously summarises the liability imposed under English Law on what are therein called as principal in the first degree and principal in the second degree and assimilates the Page 30 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined principles underlying both by compressing them in one section and treating them as what have been called accessories at the fact as opposed to what are termed as accessories before the fact and accessories after the fact.

57. A person present on the scene might or might not be guilty by the application of Section 34, IPC. If he is present on the scene for the purpose of participating in the offence, he would certainly be guilty as a participator in the offence. On the other hand, if he is present there merely as a spectator, he would not be guilty.

58. Thus, for example a person who is an eyewitness of the incident is present at the spot as well as a person who is a confederate of the assailant. The former is not guilty because he is present merely to see the commission of the crime. On the other hand, the latter is guilty because he is present for the purpose of seeing that the crime is committed. In other words, presence on the spot for the purpose of facilitating or promoting the offence is itself tantamount to actual participation in the criminal act.

59. As observed by the Privy Council in the case of Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (C), "It is to be remembered that in crimes as in other things 'they also serve who only stand and wait'". The following observations of Mookerjee, J. in the case of Emperor v. Barendra Kumar Ghosh, AIR 1924 Cal 257 (FB) (D) are relevant in this connection:

"It is the expectation of aid, in case it is necessary to the completion of the crime and the belief that his associate is near and ready to render it which encourage and embolden the chief perpetrator, and incite him to accomplish the act. By the countenance and assistance which the accomplice thus renders, he participates in the commission of the offence."

60. It is, therefore, sufficient to hold a party as principal, if it is made to appear that he acted with another in pursuance of a common design; that he operated at one and the same time for the fulfilment of the same pre-concerted end, and was so situated as to be able to furnish aid to his associates with a Page 31 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined view to insure success in the accomplishment of the common enterprise", (p. 280)

61. In a similar strain are the following instructive observations in the judgment of Richardson, J., in the same case:

"Moreover, it is impossible to say what might have happened, if one man alone had set out to accomplish the murder. Without the support moral and physical, of a comrade, his resolution might have failed him and his pistol remained in his pocket or diminution of confidence might have interfered with his aim; or again, he might have been successfully resisted and put to flight", (p. 296).

62. At p. 308 col. (1) of the same case Ghose J. has quoted the following illuminating passage from Poster's Criminal Law:

"Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned to him; some to commit the act, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the act be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant towards the same common end, and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to ensure the success of their common enterprise. To sum up persons executing parts of a crime separately in furtherance of a common intention are equally guilty".

63. It is, therefore, not correct for the appellant's learned counsel to say that a person present on the spot does nothing. He plays a very important part in the scheme of the commission of the offence. The potential utility of a person who is present as a guilty confederate on the scene of offence cannot be overestimated.

64. The word 'criminal act' is used in Section 34, IPC in the broadest possible sense. It would cover Page 32 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined any word, gesture, deed or conduct of any kind on the part of a person whether active or passive, which tends to support the common design.

65. A 'criminal act' in Section 34, IPC consists of the entire bundle of acts or omissions tied together with the chain of common intention that have combined to constitute the offence. The acts that it might comprise within itself may be similar or diverse."

50. In the case of Perumal Raja alias Perumal v. State, Rep. By Inspector of Police, reported in 2024 SCC OnLine SC 12, the Hon'ble Supreme Court has referred the case of Mohmed Inayatullah v. State of Maharashtra, reported in (1976) 1 SCC 828, wherein elucidating on Section 27 of the Evidence Act, it has been held as under:-

22. ...... it has been held that the first condition imposed and necessary for bringing the section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the information is to be excluded. The word 'distinctly' is used to limit and define the scope of the information and means 'directly', 'indubitably', 'strictly' or 'unmistakably'. Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible.

23. The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely,

(i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place.

The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence.

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51. The evidence of hostile witness as was brought by prosecution in cross is that the person with the knife was addressing the other person as "scooter la.. scooter la" meaning thereby he was not knowing the scooter driver the person with the knife, sat as pillion rider on the scooter. It is not the case that both the accused came running and sat on scooter. The scooter was alleged to be shown by accused Sanjay and the panchnama was proved in evidence by panch witness , then the presence of accused Sanjay becomes doubtful at the place of offence. Section 34 envisages any word ,gesture, deed or conduct of any kind on the part of a person whether active or passive, which tends to support the common design. The entire bundle of acts or omissions tied together with chain of common intention that have combined to constitute the offence. That chain gets missing in this matter to connect both the accused. It is not the case that both the accused had come on a scooter at the place of incident. The expression used by the accused and narrated by witness before police shows that the scooter driver was not known to the accused running with the knife.

52. The prosecution case is that both the accused after changing clothes had kept the same at a confectionery shop and had left the place. One Gandalalbhai had produced the clothes in presence of panchas and for that purpose P.W.10 - Raishahmed Abdul Rahim had been examined as a panch witness. According to P.W.10 on 20.12.1995, police had called them at Ashirwad Society at a confectionery shop, another Page 34 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined panch along with him Yogesh was there. Gandabhai, who was present there, informed the panchas that two persons came and had changed their clothes. According to the witness, Gandabhai had named Birju. The witness stated that one biscuit colour safari shirt was found and on the middle part of the shirt, they saw stain. The cross-examination notes that the distance between the place where they had gone from Rakhiyal Police Station, was almost 4 kms. Both the panchas had met at the Pan stall at Rakhiyal Cross Road, which is at the distance of five minutes from Rakhiyal Police Station. They had gone in the afternoon. The witness does not remember the name of the shop and he states that there was no other shop adjourning to it. After making inquiry from Gandalalbhai, he had given the clothes. The panch witness does not even remember the door of the shop and states that there was no other person except Gandabhai in the shop. He does not even know the direction of the shop. He also stated that in the shop they had found paint and shirt, but they were not produced.

53. Here, it is to be noted that Gandalalbhai has not been examined by the prosecution thus, the fact does not get clarified on record, whether actually both the accused had gone to the shop to change the clothes. The safari shirt only was produced before this panchas, though other clothes were available, it were not seized.

54. The prosecution has also examined P.W.7, the panch Jahangirbhai Yusufbhai, the panchnama was conducted on 21.12.1995, in the police station. Along with him was one Afjer Page 35 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined Hussain as a panch, there the black colour paint and white bushirt of one accused was shown with a mark of a rainbow tailor brand.

55. The evidence of this panch does not clarify the accused and the relation of the shirt and paint with any of the accused. This panchnama does not carry any value since, it does not relate to any accused.

56. Shekhar Kandarbhai Munshi (P.W.9) was called on 08.01.1996 at Rakhiyal Police Station and along with him there was another panch Hirabhai Jetabhai. From the Police Station they had gone in a vehicle near Municipal School No.2 passing Sagar Hotel. He states that except both the panch and the police, there was no other person. There at Acacia bushes, he states that, accused Birju dug the knife out, which was at a length of one foot. The witness says that as soon as they entered the vehicle, he first saw Birju. The witness was shown the muddamal knife, which he identified it to be the same. Both the panchas are staying in Kadiyani Challi, where the deceased was residing. In cross-examination, it was noted that the place from where the knife was found, was an open place and surrounding that place, cricket are played and it is the place with frequency of people.

57. This evidence does not satisfy the ingredient of Section-27 of the Indian Evidence Act, 1872. The incident had occurred on 18.12.1995 and the discovery, as has been shown, is dated 08.01.1996. The ingredients, as are required under Section-27 of the Indian Evidence Act, does not get satisfied, since the panch Page 36 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined does not clarify the fact as to what was the information given by the accused in custody of the police and the information had led to discovery of fact. Nothing could be proved that, the discovery, as alleged was distinctly related to the information provided by the accused. The panch does not state as to what was the information that was given by the accused during the police custody. The condition necessary to bring Section-27 of the Indian Evidence Act into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information, as relates distinctly to the fact thereby discovered may be proved.

58. Further, it has been deposed by the panch that the place where the knife was found, was an open area and a place where cricket is played is having larger frequency of public. In view of the principle "what is not covered cannot be discovered", the weapon found in an open place, not belonging to the accused, statement of accused be cannot said to have distinctly led to discovery of particular weapon. In order to bring a statement within the scope of Section-27 of the Indian Evidence Act, the person making it must not only be in the custody of the police but the statement must be of a person, who was then an accused.

59. In accordance with the provision of Section-27 of the Evidence Act, the 'Information' would consist of a statement made by the accused to the Police Officer and the Police Officer is obviously precluded from proving the information or part thereof, unless it comes within the four corner of the Section. If Page 37 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined the Police Officer wants to prove the information or a part thereof, it must relate distinctly to the fact thereby discovered. The information is allowed to be proved only if that condition is satisfied. 'Information' used in Section-27 means the content or substance of a statement. Therefore, the exact information given by the accused while in custody or in other words, the statement made by the accused, must be recorded by the I.O. and if pursuant to such information or statement, recovery is made then that information or statement becomes admissible under Section 27.

60. In the case of Pulukuri Kottaya And Others, V/s. Emperor, (AIR 1947 PC 67), followed by the Hon'ble Supreme Court in Prasadi's case. It is well established now, that provisions of Section 27 of the Evidence Act, are by way of exceptions to the Rule of inadmissibility of confessional statement of an accused in custody of the Police Officer, as provided in Section-25 and 26 of the Evidence Act. The provision of Section-27 reads as under:

"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

60.1 Before above provisions are attracted, following essential requirements should be satisfied, namely,

(i) that the person making the statement is accused of any offence,

(ii) that the accused must be in the custody of a police officer.

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(iii) the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information;

(iv) only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused; and

(v) the discovery of the fact must relate to the commission of some offence.

60.2 Therefore, it can be easily accepted that, Section-27 of the Evidence Act, has two requisites, namely;

(i) the disclosure of statement; and

(ii) the discovery of fact in consequence of it.

60.3 If the statement is there, but the recovery of the fact is not there, the statement cannot be read in evidence under Section- 27 of the Evidence Act. Section-27 of the Evidence Act is based on the doctrine of 'confirmation of subsequent fact." If the subsequent fact, which means the discovery of a fact, are not there, the information furnished by the accused loses its evidentiary value, because the information is not confirmed by the discovery of any fact.

60.4 The section lays down that where an accused is in the custody of a police officer and furnishes some information in consequence of which some fact is discovered, then so much of such information as relates distinctly to the fact so discovered Page 39 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined can be proved, and it would not matter whether such information amounts to a confession or not. This section is based on the doctrine of confirmation by subsequent facts. That doctrine is, that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered which confirm it in material points, then such discovery is a guarantee that the confession made was true. But only that portion of the information can be proved, which relates distinctly or strictly to the facts discovered. The section can have no application, if the fact is discovered otherwise than on account of the information given.

60.5 Here the weapon allegedly recovered is a double edged knife and the doctor clarifies that by such knife, injury no. 1 inflicted on the chest is not possible. That is the only injury deposed by all the three eye witnesses. The evidence though corroborate in material part cannot be believed, since the knife brought on record stated to be recovered is not the one that has caused the injury. The knife shown by accused Birju, is not the one which can cause injury no.1, which is the cause of death. The statement of accused Birju if any recorded before the panchas is also not proved, to believe the recovery to consider it as discovery of knife as consequences of facts sated by accused.

61. The Investigating Officer - Lallubhai Haribhai Desai, was examined at P.W.12. According to him, on 18.12.1995, he was at Rakhiyal Police Station serving as a senior police inspector. On that day, at about 8.30 in the evening, the complaint (Exh.13) was registered in his presence. Thereafter, he had gone to the place of incident, where he had arranged the Police Officers to Page 40 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined safe guard the place and thereafter he had gone for inquest of body at Sardabhai Hospital. The inquest panchnama was produced by this witness at Exh.33. The I.O. further stated that thereafter, he recorded the statement of Kamlesh, Abdul Hamid and other persons, who had witnessed the incident. He had also recorded the statement of persons near the place of offence. Thereafter, the F.S.L. Officer had come at the place, the panchnama at the place of offence Exh.21 was drawn.

62. The witness stated that the police constable Naresh kumar had produced the clothes of the deceased and for that panchnama Exh.34 was drawn, thereafter, he had recorded the statements of necessary witnesses.

63. The I.O. states that he had seized the clothes of accused- Birju, which were blood stain and were stated to be worn at the time of the incident, seized by panchnama Exh.28. On arrest of accused-Sanjay panchnama of his person was drawn at Exh.23. He states that since injury on the little finger was found he was sent for treatment. His remand was received and discovery panchnama of the scooter was drawn at Exh.29. The F.S.L. Officer has taken the blood sample from the scooter and the panchnama he produced at Exh.35. On 23.12.1995, he had taken the blood sample of accused-Sanjay and produced the panchnama at at Exh.36.

64. The I.O. states that on 06.01.1996, he had arrested accused-Birju and on receiving remand, the discovery panchnama of the weapon was drawn at Exh.26, which was sent for F.S.L. Report. The I.O. also states that he had also initiated Page 41 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined for Test Identification Parade of the accused before the Executive magistrate, the panchnama was drawn at Exh.30, and the accused were identified.

65. The I.O. has affirmed the statement of the hostile witness- Sureshbhai Maganbhai, as referred herein above, who had given the statement of accused aged about 20 to 25 years, running towards him with sharp weapon crossing the road and having sat as pillion rider on the Scooter No.GBR 5936. In the cross- examination, the I.O. stated that he does not remember where he had recorded the complaint, but explains that possibly it would have been at Sardaben Hospital. He denied the suggestion that since he had received the 'Wardi' from Sardaben Hospital, he had gone there. He denied the suggestion that scooter, knife and clothes were not actually seized in presence of the panchas and they were made to sign the prepared panchnama. He denies the suggestion that the statement of the persons nearby the place of offence, were not deliberately produced by him, since they were causing damage to the prosecution case. He affirmed that when the clothes of accused-Birju were seized, he was yet not arrested. He states that he had not taken the opinion of the Doctor to find out whether the injury could be caused with the muddamal weapon.

66. The evidence of the Investigating Officer does not inspire any confidence. It appears that he has not sincerely tried to investigate the matter. The investigation appears to be in casual manner. The police has not made sincere efforts to bring best evidence.

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67. Here in this case, the boy, because of whom, the quarrel occurred has not been examined. Other boys, who were along with the deceased, who all had come back after playing cricket, have not been examined. Those, who have been examined as eye witness, had run away from the place of the incident and had even not cared to inform the parents of the deceased or the brother who was working just nearby the place of offence at the grass fodder shop. One of the witness, who is shown as an eye witness i.e. Sureshbhai Somabhai aged about 31 years, has not supported the prosecution case, he has denied any such incident. He does not even know the deceased. He has denied of giving any statement of seeing a person crossing the road coming towards his side with the sharp weapon and ascending the scooter.

68. The trial Court Judge by the examination of the witnesses has disbelieved them and has come to the conclusion that the injury caused was not proved. The blood group 'A' on the knife and on the cover of the knife, though was reckoned as proper, but the learned Judge has rightly appreciated the aspect that it was not proved that the same weapon was used to cause the injury. In other words, the trial Court observed that the first injury was caused on the chest, was not possible with the muddamal weapon. As could be seen from the serological report, the blood group 'A' on the knife and the hand cover and that of the shirt of accused-Birju is the same, and the clothes of the deceased showed the blood group 'A'. While the blood group on Page 43 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined the bushirt had remained undecided, however, the bushirt of the accused Sanjay showed blood group as 'B'.

69. Therefore, it was rightly observed by the trial Court that the prosecution has miserably failed to prove the case beyond all reasonable doubt. The first injury sustained and seen by eyewitnesses was not proved couple with the fact that eyewitnesses do not explain other two injuries. The learned Judge thus, concluded that merely relying upon the evidence of the adolescent boys, the conviction cannot follow. The learned trial Court Judge had occasion to observe the demure of the witnesses. The learned judge has come to right conclusion that who gave the names of the accused to the complainant is not proved. The scooter number, as alleged to have been given to him by Kamlesh does not get proved by witness Kamlesh himself. The prosecution totally failed to prove that the injury could be caused by the muddamal weapon. The independent witnesses were not examined and the other only eyewitness who was not in the cricket was declared hostile.

The evidence of the eyewitnesses are consistent they appeared to be tutored. The conduct of adolescents create doubt. The concession cannot be given to them by giving benefit of their age. If the prosecution wants to urge their age to plead lack of maturity then the another eyewitnesses were to be examined. The learned judge has rightly concluded that relying on the evidence of adolescent, conviction cannot follow. The I.O. though had recorded the statements of other eyewitnesses had not joined their statement in the charge sheet. Considering Page 44 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined that all these facts goes against the prosecution, the learned trial Court Judge gave benefit of doubt to the accused.

70. The connection of both the accused with common criminal intention has not been proved. As per witnesses both the accused had not come on scooter. The accused had come from nearby village in spite of that their identity could not be proved. Why none had assisted the injured to have medical assistance in time. The eyewitnesses are not informing anyone about the incident. The parents of the witnesses also failed to inform the deceased parents about the quarrel and the infliction of knife blow, though all were staying in the same challi. The discovery of knife is not as per section 27 of the evidence act. The panchanama of scooter too does not inspire confidence. Who was the scooterist is not known, no investigation is there in that direction. Gandalalbhai, the confectionery shop owner has not been examined to prove the fact that both the accused had come to his shop to change their clothes, mere taking in custody one shirt from his shop would not connect the accused to the crime, more so when stain on one bushirt remained undetected.

71. In the case of Ram Kumar v. State of Haryana, reported in AIR 1995 SC 280, the Hon'ble Supreme Court has held as under:

"The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the Page 45 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025 NEUTRAL CITATION R/CR.A/914/1997 CAV JUDGMENT DATED: 27/02/2025 undefined lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

72. The judgment of acquittal by the Trial Court bears reasons. No interference in the judgment is necessary as it does not suffer from any perversity. The prosecution has failed to establish any grounds raised to upset the reasoning given. No any grounds are found to be proved to call for extreme necessity to take a different view. Thus, considering the scope under Section 378 of Cr.P.C., no case is made out by the State for reversing the acquittal order.

73. In view of the matter and for the reasons stated hereinabove, the present Criminal Appeal deserves to be dismissed and is accordingly dismissed. Record & Proceedings be sent back to the concerned Trial Court forthwith.

(A. S. SUPEHIA, J) (GITA GOPI,J) Pankaj /Maulik/1 Page 46 of 46 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:36:29 IST 2025