Gujarat High Court
Bahadursinh @ Darbar Bhikhubhai Mahida vs State Of ... on 28 August, 2014
Bench: Anant S. Dave, Sonia Gokani
R/CR.A/1502/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 1502 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE ANANT S. DAVE
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation
of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BAHADURSINH @ DARBAR BHIKHUBHAI MAHIDA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
Mr PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1
Mr JK SHAH APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE ANANT S. DAVE
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
28th August 2014
CAV JUDGMENT (PER : HONOURABLE Ms. JUSTICE SONIA GOKANI)
This Appeal is preferred under Section 374 (2) of the Code of Criminal Procedure {hereinafter to be referred to as, Page 1 of 46 R/CR.A/1502/2010 CAV JUDGMENT "CrPC"} challenging the judgment and order dated 7 th May 2010 of conviction and sentence passed by the learned Sessions Judge, Kheda at Nadiad in Sessions Case No. 97 of 2009, in the following factual background.
Prosecution case :
It is the case of prosecution-complainant Rajeshbhai Jashbhai Sodha, the brother of the deceased that on 16 th May 2009, he had visited Mamlatdar Gramya Court and when he returned in the evening, his maternal aunt apprised him of the details she gathered from his paternal grandmother, that his elder brother Ajit had gone to meet Darbar in the morning after instructing him to wash a bu-shirt as they were to attend marriage at village Sillor. However, he had not returned home, and therefore, the complainant inquired at the place of Bhadhursinh @ Darbar Bhikhubhai Mahida [present appellant] and thereafter on 18th May 2009, an intimation was given in the form of 'janva jog' entry at Nadiad Police Station. It is also averred in the complaint that when he went to search for his brother, Bahadursinh @ Darbar Bhikhubhai Mahida was not found nor could he get belongings of his. However, he could notice burnt wooden logs lying in the backyard of the house of the appellant wherein he noticed that something was buried and a bad odour was coming from beneath the land. He Page 2 of 46 R/CR.A/1502/2010 CAV JUDGMENT intimated this to one Punamsinh B. Solanki and also the Police was also in turn reported this aspect. In presence of Mamlatdar and panchas, after removing the wooden logs, body was exhumed. From the clothes he could notice that it was the dead body of his elder brother whose hair were missing and on the backside of the scalp, an injury was noticed from where worms were oozing out. It was found in an extremely bad condition.
It is averred in the complaint that his brother disliked the factum of complainant visiting Darbar who also was used to consume liquor. He was unhappy about the complainant keeping company of such persons. He also had scolded the appellant in this respect and that had resulted into acrimonious debate between his brother and Darbar. It is the case of prosecution that the deceased was done away with due to such dispute.
On due investigation, chargesheet came to be filed and on committal of the case to the Court of Sessions, charges came to be framed on 11th November 2009 for the offences punishable under Section 302 read with Section 201 IPC against the appellant.
On the appellant denying the charges, prosecution examined in all twenty witnesses and also adduced Page 3 of 46 R/CR.A/1502/2010 CAV JUDGMENT documentary evidence and on appreciation of oral and documentary evidences, convicted the appellant for the offence punishable under Section 302 terming the same as homicidal death amounting to murder and sentenced the appellant for life imprisonment coupled with fine of Rs. 50,000/=; and in default, punishment of three years rigorous imprisonment. Whereas, for the offence punishable under Section 201 IPC, rigorous imprisonment of one year has been awarded and fine of Rs. 500/= and in default, to undergo rigorous imprisonment of three months, directing both the sentences to run concurrently under Section 427 CrPC. Learned Sessions Judge also directed compensation to the tune of Rs. 30,000/= to the complainant under Section 357(1)(b) from the amount of fine.
Submissions :
Aggrieved by such decision, present appeal is preferred where we have heard learned advocate Shri Pratik B. Barot for the appellant and learned APP Mr. J.K Shah for the respondent- State.
It is strenuously urged by the learned advocate Shri Barot that the entire case of prosecution hinges on a solitary witness, Page 4 of 46 R/CR.A/1502/2010 CAV JUDGMENT PW-3, who has chosen not to speak a word with regard to his having eye-witnessed the incident for five days. He also questioned his having left a piece of wood on the shed of the appellant. The entire story narrated by PW-3 is unbelievable, according to the learned advocate. He, therefore, has pleaded that this witness is not a witness of sterling quality, as time and again defined by the Apex Court and this Court. He, therefore, has urged that no conviction can be based on his deposition. In support of his submissions, he has relied upon the following decisions :
[a] Chanan Singh v. The State of Haryana, AIR 1971 SC 1554;
[b] Vinubhai Goswami v. State of Gujarat, 2009(3) GLH 618;
[c] Subramanian v. State of Kerala, (1996) 7 SCC 77;
[d] Rai Sandeep @ Deepu v. State {NCT of Delhi},
(2012) 8 SCC 21.
According to the learned advocate, there is nothing to indicate that the land from where the body is exhumed belongs to the appellant, and therefore also, it is incorrect to link him with the crime in question. It is his case that panch witness has also not spoken anything about the appellant having uttered any incriminating words at the time of so-called discovery of wooden log and in the deposition of the Page 5 of 46 R/CR.A/1502/2010 CAV JUDGMENT Investigation Officer also, such words are absent, and therefore, the same would at the most amount to recovery of weapon and not the discovery under Section 27 of the Indian Evidence Act, and therefore also, such weapon cannot be attributed to the appellant. His reliance on the decision of this Court rendered in case of Bachubhai Kadai Baria v. State of Gujarat, reported in 53 (3) GLR 2400 for this purpose shall be discussed at a later point of time. It is also the say of the learned advocate that mere abscondance of the accused would not prove his guilt, as it would depend upon the nature of person as to how he would react to a particular situation. His abscondence per se may not be a ground for the Court to conclude anything against the appellant. It is for the prosecution to independently prove the case of prosecution beyond all reasonable doubt as provided under the Criminal law. He has also relied upon the following authorities for availing the support to his submissions on this issue. {a} SK Yusuf v. State of West Bengal, (2011) 11 SCC 754; and {b} Birju v. State of Madhya Pradesh, (2014) 3 SCC 421;
Learned advocate has also urged that both the appellant and the deceased were not seen together nor his medical Page 6 of 46 R/CR.A/1502/2010 CAV JUDGMENT evidence support the case of the prosecution. Moreover, even if the case of the prosecution is believed, it being a solitary blow, at the most the same can be said to be with the knowledge of the same resulting into death sans the intention to commit any such crime, and therefore also, in the alternative, conviction under Section 302 IPC can be regarded under Section 304 Part-I IPC and for which, he relied upon a decision of Apex Court rendered in case of Baljinder Singh @ Bittu v. State of Punjab, reported in 2011 (4) Crimes 161 (SC).
Per contra, learned APP Shri Shah vehemently submitted for and on behalf of the respondent-State that there is no reason as to why PW-3 be not believed for establishing the fact that he had witnessed the appellant giving solitary blow on the death of the deceased. He urged that the provision of Indian Evidence Act does not require repetition of evidence. He relied upon decision of the Apex Court in case of Veer Singh & Ors. v. State of Uttar Pradesh, (2014) 2 SCC 455 and Gulam Sarbar v. State of Bihar {Now Jharkhand}, reported in (2014) 3 SCC 401. He further emphasized that PW-3 had no enmity with the appellant and that is another strong ground for disagreeing the version of the defence as far as PW 3 is concerned. Reliance is placed on the decision of this Court in Page 7 of 46 R/CR.A/1502/2010 CAV JUDGMENT case of Vinugiri Motigiri v. State of Gujarat, 2002 (1) GLH
176. It is also further urged that in the entire cross examination of PW-3, there is not a question to indicate that he had not seen the appellant hitting the deceased and when no foundation is laid before the trial Court, such submission is not sustainable. With regard to the submission of defence that the solitary blow should lead the Court to convict in the alternative under Section 304 Part-I IPC, he has resisted the same and also relied upon the decision of Apex Court rendered in case of Phulia Tudu & Anr. v. State of Bihar [now Jharkhand], reported in AIR 2007 SC 3215.
On thus having heard both the sides extensively and on having considered at length the oral and documentary evidences led before the trial Court, at the outset, we deem it appropriate to discuss the law on the subject touching some of the relevant aspects emerging in this appeal. Law on Evidence [with particular emphasis on solitary witness ] The basic principles which underline the law of evidence under the Indian Evidence Act, 1872 {"Evidence Act" for short} are - (a) evidence must be confined to the matters at issue; (b) hearsay evidence must not be admitted; and best evidence must be given in all cases.
The Apex Court in Zahira Habibulla H. Sheikh & Anr. Page 8 of 46 R/CR.A/1502/2010 CAV JUDGMENT vs. State of Gujarat & Ors., reported in AIR 2004 SC 3114 has held that the principles of a fair trial manifest itself in virtual of our practice and procedure including the law of evidence. It also further has held that the object of any criminal trial is to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it serves.
Section 134 of the Evidence Act states that no particular number of witnesses shall in any case be required for the proof of any fact. What is required for proving of the fact, therefore, is not a particular number of witnesses to be examined in any case, but, the quality of the evidence. Examination of more number of witnesses is not desirable, however, the quality of their evidence would surely matter in the appreciation of evidence.
The Apex Court in case of Krishna Mochi v. State of Bihar, AIR 2002 SC 1965, has held and observed that it is not required to insist upon plurality of witnesses. However, the Courts have time and again insisted that the evidence of the witnesses who have been called for proving any fact has to be truthful and of highly sterling quality. In other words, there is no bar to act upon testimony of single witness, however, caution is shown by the Courts while acting on the testimony Page 9 of 46 R/CR.A/1502/2010 CAV JUDGMENT of single witness particularly when the same is not corroborated by other evidence. In Vadivelu Thevar v. The State of Madras, reported in AIR 1957 SC 614, the Apex Court has held that in a case of murder, the first question which the Court has to consider is whether the accused has been proved to the satisfaction of the Court to have committed the crime. If the Court is convinced about the truth of the prosecution story, conviction has to follow.
In Chanan Singh v. The State of Haryana [Supra], the Apex Court had disbelieved the version of the witness, who was alleged to be the sole witnesses, on the ground of his abnormal conduct after the occurrence, although, he was not chased or threatened by anyone of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal conduct.
In Subramanian v. State of Kerala [Supra], it was a case of a solitary witness who did not come forward as a witness at any time either during the inquest held or earlier, the Apex Court held that his evidence is to be scrutinized with a great care and caution.
In case of Natubhai Bhudarbhai v. State of Gujarat [Supra], the benefit of doubt was given to the appellant as the conduct of the witnesses were not found natural who Page 10 of 46 R/CR.A/1502/2010 CAV JUDGMENT belonged to a small village and who claimed to have seen accused firing upon the deceased. The Court disbelieved his testimony, since the incident occurred in a small village where normally many people would gather at the scene.
In case of SK Yusuf v. State of West Bengal [Supra], the case of the prosecution is that the appellant-accused had allegedly tried to rape deceased and on being resisted by her, assaulted her on head with a spade, leading to her death, and then buried her in a graveyard. However, in absence of any evidence of their having been last seen together, the Court did not believe the version of the prosecution. Moreover, there was absence of any report of Serologist as to the presence of human blood on weapon.
The Apex Court in case of Gulam Sarbar v. State of Bihar [Now Jharkhand] reported in (2014) 3 SCC 401 has held that there is no requirement under the Law of Evidence that any particular number of witness is to be examined to prove/disprove a fact. In the words of the Bench, "...In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured Page 11 of 46 R/CR.A/1502/2010 CAV JUDGMENT principle that evidence must be weighed and counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value proved by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence."
In case of Vinubhai @ Daghiyo Himmatbhai Goswami v. State of Gujarat [Supra], discussing different categories of the eye witnesses, divided the same into three categories viz., [i] wholly reliable; [ii] not found to be wholly reliable and [iii] wholly unreliable. The Court held, thus -
"..If the evidence is solitary eyewitness is found to be wholly reliable, the conviction can be based on it, but if it is not found to be wholly reliable, the Court may insist for some corroboration before acting upon the evidence. However, when such evidence is found wholly unreliable and defective, then the same is required to be discarded in toto and no amount of corroboration can cure that defect."
In case of Shivasharanappa & Ors. v. State of Page 12 of 46 R/CR.A/1502/2010 CAV JUDGMENT Karnataka [Supra], while appreciating the evidence, the Court found unnatural conduct of the witnesses where the daughter of the deceased, who was eyewitness to the occurrence informed her maternal grandmother that the accused had forcefully taken away her mother and despite such information, the grandmother did not disclose the incident to her relatives, co-villagers or police for two days. In absence of any explanation as to why she thought it apt to search for deceased without informing anyone else, the order of acquittal was held to be plausible view where such acquittal was not interfered with.
"16. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness who is competent and whose version is reliable.
17. xx xx xx
18. In Rana Partap and others v. State of Haryana, while dealing with the behaviour of the witnesses, this Court has opined thus: -
" Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep Page 13 of 46 R/CR.A/1502/2010 CAV JUDGMENT themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
19. In State of H.P. v. Mast Ram14, it has been stated that there is no set rule that one must react in a particular way, for the natural reaction of man is unpredictable. Everyone reacts in his own way and, hence, natural human behaviour is difficult to prove by credible evidence. It has to be appreciated in the context of given facts and circumstances of the case. Similar view has been reiterated in Lahu Kamlakar Patil and Anr. v. State of Maharashtra.
20. Thus, the behaviour of witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance..."
In case of Rai Sandeep alias Deepu v. State [NCT of Delhi] {Supra}, the Apex Court has considered as to who could be stated to be sterling witness whose version can be accepted by the Court without any corroboration.
"15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the Page 14 of 46 R/CR.A/1502/2010 CAV JUDGMENT status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting Page 15 of 46 R/CR.A/1502/2010 CAV JUDGMENT materials for holding the offender guilty of the charge alleged."
Ocular Evidence :
In light of this discussion, facts which were sought to be proved by the prosecution shall have to be reverted. Taking first the version of the complainant, who is the real brother of the deceased and who has been examined at PW-2 Exh.14. According to him, deceased was his elder brother and on account of his divorce, he was staying with his grandmother- Manchhaben. On 16th May 2009, in a pending matter at Mamlatdar, Nadiad Rural Court, this witness had visited Nadiad. Since the scheduled date being a public holiday on account of election, he had gone to see a movie. In the evening, when he returned home at around 5:00 pm, his maternal aunt-Kokilaben told him that Ajit had left home intimating grandmother-Manchhaben of his visit at Darbar's place and to wash his bu-shirt so that they could go together in a marriage in the evening at Silod village. However, till this time, he has not returned home. Knowing this fact, complainant went at the place of Darbar Bhikubhai Mahida @ Bahadursinh and his other relatives. He found the house of Bahadursinh closed. He returned home at his village Dabhan. Page 16 of 46 R/CR.A/1502/2010 CAV JUDGMENT
It is the say of the complainant that he once again had visited the house of Darbar. He found hips of wooden logs and he also could smell foul odour. On intimating the Police, exhumation of the death body of his brother-Ajit took place. He could identify his brother wearing pink flowery bushirt and pent. He could identify his brother from these clothes and the tattoo mark on his right hand. On the back side there was injury on his head. He, of course, has not supported in the examination in chief a limited aspect which is reflected in the complaint indicating that visit to the place of Darbar for the purpose of consuming liquor was disliked by his deceased brother-Ajit.
This witness has been requested to be declared hostile to the case of prosecution since the last aspect which incriminates himself has not been supported by him. This fact suggested to him was that Darbar was not a good company and not a good human being and yet, he kept company, and therefore, Darbar was scolded by his elder brother. Since this resulted into a dispute where his brother alleged Darbar that he was spoiling the complainant. On 15 th May 2009, one person named Nario @ Tino Mafatlal had come to call his brother at the behest of the appellant. His brother refused to go at night and conveyed him that he would visit Darbar in the morning. Page 17 of 46 R/CR.A/1502/2010 CAV JUDGMENT On the 16th May 2009 at around 10 O'clock, by intimating his grandmother that as he was called by Bahadursinh @ Darbar, he was going to his place and had not returned home thereafter. Agricultural field belongs to one Shri Ishwarbhai Mukhi in whose filed Darbar has his residence. Suggestion is also put to him that as Darbar is his friend and hence, attempt was being made to save him.
In the cross examination for and on behalf of the appellant, this witness had agreed that he inquired of whereabouts of his brother on 16th May and also on the 17th May and thereafter, a 'janva jog' entry before the Nadiad Police Station was given.
His complaint given on 19th May 2009 when is examined, it not only confirms those details given in the examination-in- chief, but also, additional version wherein he has chosen not to support as far as genesis of dispute between the deceased and Darbar is concerned which has directly involved the conduct of the complainant. It is quite understandable that the witness has chosen not to support that portion which incriminate him, however for the rest, he supported the case of prosecution.
The Apex Court in case of Birju v. State of Madhya Pradesh [Supra] has held that while appreciating the evidence of a hostile witness, his entire version cannot be discarded as a Page 18 of 46 R/CR.A/1502/2010 CAV JUDGMENT whole and the relevant part thereof, which is admissible in law, can be used either by the prosecution or the defence. The Court has also made a reference of decision of the Apex Court rendered in case of C.Muniappan v. State of Tamil Nadu, reported in (2010) 3 SCC (Cri) 1402 to hold that version of other eyewitnesses are consistent and reliable and when the same is corroborated by the postmortem and FSL report, admissible part of evidence of hostile witness for the purpose of corroborating other prosecution evidences has been made use of. In the instant case, accordingly, version of the complainant could lend much support to the case of prosecution.
In case of Veer Singh & Ors. v. State of Uttar Pradesh, reported in (2014) 2 SCC 455, the Apex Court has held that the legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses, by holding and observed thus -
"21. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. The evidence must be weighed and not counted. It is quality and no quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the Court can Page 19 of 46 R/CR.A/1502/2010 CAV JUDGMENT and may act on testimony of a single witness provided he is wholly reliable."
With this, it is essential to appreciate deposition of Manshaben PW-10, who is grandmother of the deceased and of the complainant. According to her, deceased had told her of his visit at Darbar's place. They continued to search him and he was found after four days on exhumation. It was found from the field of Mukhi where Darbar resides. She had also gone to see the dead body.
PW-11 is the mother of the deceased who has deposed that the deceased was residing with her mother-in-law and on the fateful day, he went to Darbar [appellant]. They had a wedding in the family of their daughter and he had gone to intimate him not to serve liquor to any one. Search was made by the complainant and her son was found on exhumation. According to her, he had an inquiry when the dead body was found. She also identified the clothes worn by the deceased.
PW-12 is father who also had supported and has deposed along the line of PW-11.
PW-13 is the wife of the appellant-Darbar. She, of course, would not support the case of prosecution, however, she agreed to the effect that nearer to their residence known as hut of Darbar. The dead body of Ajit was found from the Page 20 of 46 R/CR.A/1502/2010 CAV JUDGMENT backyard. She agreed also the suggestion that the clothes worn by the deceased were flowery shirt and pent and it had injury over the head. It was the Investigating team which exhumed the dead body. She also agreed to the suggestion that Ajit came to tell her husband not to sell liquor. However, in the cross examination of the learned counsel for the defense, she supported the version of the defense by stating that by 15th May, she with her husband and the family members had gone to Nanavadar village and has no clue as to what has happened in the Dhabhan village. No further re-examination of this witness is sought. Whatever material is available from the deposition of this witness who is the wife of the accused appellant supports the case of prosecution of visit of deceased to their house and his dead body having been exhumed from backyard of their residence situated in the agricultural field.
Vital would be the deposition of PW-3 Maheshbhai Mafatbhai Parmar, a labourer who knew the accused and the complainant both, hailing from the same village ie., Dabhan. On 15th May 2009, after his labour work when he went to Darbar's house, his wife requested him to stay back fearing that Rajesh and Ajit may turn up to pick up quarrel. This witness and the uncle of deceased Ajit namely Fatesinh were friends. When he went to call him, Ajit was not at home, and Page 21 of 46 R/CR.A/1502/2010 CAV JUDGMENT therefore, he returned home. On 16th May 2009, he went with his wife for collecting the wood from there they visited Darbar's residence [frequently referred to as Darbar's shed/hut]. His wife went with Darbar's wife for fetching water and he alone went for cutting wood. Entire piles of wood sticks were carried by them. However, one log being heavy, which he dropped on the road side as he was unable to carry the same. Instead of carrying the stack of wood, he decided the same to be left on the roof top of the shed of Darbar's hut. He left on the roof top decided that after a while he will come and collect the same. When he went to intimate Darbar about the same that as and when time permits, he would come and carry the same, he found Ajit standing there and Darbar came and gave blow of the said wood on the Ajit. Being extremely scared on, witnessing such an incident, he went back home. When his wife inquired about the thick wood, the illusive answer which he gave was that he was unable to carry the same and that he would bring the same after sometime. According to him, his wife and children had gone for some wedding and Darbar's wife and children and his father-in-law all had gone away after the incident being scared of their possibility of involvement in the incident. On 18th May he could know from the talks of village persons that Ajit had been killed. He also identified the Page 22 of 46 R/CR.A/1502/2010 CAV JUDGMENT muddamal article - a wooden log ie., "Dandha".
In the cross examination, this witness stated that he had studied upto VII standard. He had gone to collect wood from the field of Jitu Kaka. The axe for such purpose had been taken from the roof top of the appellant. However, he chose not to stop on that day. According to him, he knew the appellant. This witness acts as a labourer. He agreed that from 16 th to 22nd May he did not inform the police. He also agreed that he had neither intimated the complainant nor his paternal aunt about such blow given by the appellant over the head of the deceased. A very strange suggestion in the cross examination is made for impeaching the version of this witness by stating that he was desirous of appellant mediating in the matrimonial dispute of his paternal aunt and uncle and on his such refusal, witness had involved the appellant falsely in the heinous crime. The very suggestion can be brushed aside as it is irrational to suggest that this entire story would be imagined and cooked up only because appellant did not act as a mediator in the matrimonial dispute of paternal uncle and that of PW-3. However, coupled with the deposition of PW-3, witness PW-5 in whose presence exhumation of the body of victim is taken, requires a reference at this stage. According to him, a pit was found around 13 inches deep and under the hip Page 23 of 46 R/CR.A/1502/2010 CAV JUDGMENT of wooden logs and branches, the dead body was found half visible. It was from the field that such body was found and the body was identified by the brother of the deceased. Panchnama has been carried out in his presence. The said panchnama Exh.24, if is read, it confirms the version of this panch.
In detail, the same speaks of the process of exhumation viz., on the southern side, 33 ft. away from the Darbar's hutment.
Wooden log used as a tool was discovered at the instance of the appellant-accused where preliminary panchnama and later subsequent panchnama was drawn. Exh. 26 is such panchnama which gives entire details. PW-6 Premjibhai Hansabhai Chauhan is one of the panchas who had stated that the place was identified by the appellant and also the log. This witness has completely supported the discovery panchnama and has in detail described that the appellant had agreed to show the weapon used for the purpose of committing crime.
PW-7 Maheshbhai Jashbhai Solanki was summoned as witness. This witness has video-graphed the place of offence of exhumation of the body of victim on 22nd May 2014. A panchnama to that effect had been carried out. He agreed that Page 24 of 46 R/CR.A/1502/2010 CAV JUDGMENT the videography of exhumation was carried out in toto. Exh. 28 is the panchnama supported by this witness.
It is to be noted at this stage that videographic recording carried out by the Investigating Officer at the time of discovering dead body on exhumation has been watched by the Court and it gives a complete picture of process of exhumation. The clothes recovered from the dead body were also taken under panchnama Exh. 30 and the same also stood proved duly as one of the panchnama of Bhimsinhbhai Bachubhai Chauhan PW-8 has supported the said panchnama and identified the clothes before the Court.
PW-9 Thakorebhai Parshottambhai Soddha is paternal uncle of the deceased. He came to know later at point of time that his nephew was missing, who had gone to the appellant's house, since Fathesinh had visited his mother's place to call the deceased Ajit. To a limited extent of the place from where dead body was exhumed and the reason of deceased visiting the house of appellant is further vindicated by the deposition of this witness who otherwise supports the version of other family members.
Exh.14-Narainbhai Sumantlal Jaiswal was a Circle Police Inspector at Nadiad Town Police Station. On 31 st May 2009 he prepared a map of the scene of offence [Exh.40]. On 25 th May Page 25 of 46 R/CR.A/1502/2010 CAV JUDGMENT 2009 he had visited the place and also found a pit near the hut in the field owned by one Shri Ishwarbhai. The distance of hut from such pit was about 33 ft.
PW-15 Ishwarbhai Yuvrajbhai Thakore in his deposition at Exh. 41 confirms such version of the witness. On receiving intimation vide Entry No. 5/2009 he went to the field owned by one Shri Ishwarbhai in presence of Mamlatdar, Nadiad (Rural); Police Sub-Inspector, Nadiad (Rural) and other police personnels entire videography was carried out.
ASI Shri Rameshbhai Khushalbhai Parmar in his deposition at Exh. 46 has confirmed the entry No. 5/2009 by stating that it was the complainant-Rajeshbhai Jashbhai Soddha who had got this entry made stating that his brother Ajit on 16th May 2009 by saying that he was to visit Darbar's place had never returned. Ajit was described as a person of thin body, having height of about four and half feet and having worn flowery shirt and cream colour pent.
PW-17 Exh. 48 Mavjibhai Galabhai Rohit in his deposition has stated that on receiving janvajog entry no. 5/09, he had taken over the investigation.
Before adverting to the medical and forensic evidences, from the details narrated hereinabove of ocular version and supporting documentary evidences, it can be safely held that Page 26 of 46 R/CR.A/1502/2010 CAV JUDGMENT the prosecution succeeded in establishing not only the manner in which crime is committed but also the motive behind such crime and also the cause of action of the intention, coupled with recovery of the corpus and thereby had successfully established vital link necessary for the purpose of proving the complexity of the appellant accused.
The relatives are bound to know the reason why the deceased had left home. The person who had gone to call him at the behest of the appellant is said to be Fatehsinh - also known as Fatiyo states that Ajit was not at home. He told his grandmother with whom he was staying that he was to visit Darbar. Otherwise he was planning to attend to a marriage in a nearby village of a relative. He wanted his shirt to be washed by grandmother and hence, left home with the intimation to return soon. He also was unhappy about the complainant keeping company of appellant who was known for selling liquor. A marriage was approaching in the family of his sister and hence, he also told the appellant not to serve liquor to any one. His dislike for liquor has come on record. However, it becomes clear from the ocular evidence that it was appellant who had called the deceased Ajit at his place. The man never returned home after his visit to the place of the appellant who was popularly known as Darbar. He resides in a hut which is Page 27 of 46 R/CR.A/1502/2010 CAV JUDGMENT situated in the field of Ishwarbhai Motibhai. PW-3 Maheshbhbai Mafatbhai Parmar has friendly terms with the appellant and his wife. He also visited frequently the residence of appellant. The day when he went to collect wood from the field, his wife had gone ahead and one heavy wooden log since he was unable to carry it home, he chose to leave it on the roof top of the appellant's hut. This man has supported the case of prosecution by stating that he had seen appellant giving a blow on the head of the deceased. This not only proves having seen last together but he is the only eye-witness who has deposed to prove the version of the prosecution. Serious doubt is attempted to be created about behaviour and conduct of this witness in post crime period and thereby a question is raised with regard to his being witness of sterling quality.
Apex Court, as stated hereinabove, in case of Rana Partap & Ors. v. State of Haryana, AIR 1983 SC 680 has ruled that all the witnesses of murder would react in different manner. There could be no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in a particular manner is to appreciate evidence in a wholly unrealistic way. This has further been reiterated in case of State of Himachal Pradesh v. Mast Ram, reported in AIR 2004 SC 5056 and also in Lahu Kamalkar Patil & Anr. v. Page 28 of 46 R/CR.A/1502/2010 CAV JUDGMENT State of Maharashtra, AIR 2013 SC (Cri) 441. The Apex Court in case of Shivasharannappa & Ors. v. State of Karnataka [Supra] also reiterated the same by holding that expectation of uniformity in the reaction of witnesses would be unrealistic, but, the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance.
In case of Rai Sandeep alias Deepu v. State {NCT of Delhi}, reported in (2012) 8 SCC 21, while opining as to who could be a witness of sterling quality, the Apex Court has laid down the test to ascertain the quality of such a witness whose version is unassailable where the status of the witness would be immaterial, however, truthfulness of the statement made by such a witness is relevant. What would be more relevant would be the consistency of the statement right from the starting point till the end. It should be natural and consistent with the case of the prosecution connecting the accused. There should not be any prevarication in the version of such a witness and that the witness should be in a position to Page 29 of 46 R/CR.A/1502/2010 CAV JUDGMENT withstand cross examination of any length and howsoever strenuous it may be and under no circumstances, should leave room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the export opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Thus, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. Of course, such observations are made in a case of gang rape alleged on the accused and the question that arose was that on relying on oral version of the prosecutrix solely for the purpose of proving the guilt.
Page 30 of 46 R/CR.A/1502/2010 CAV JUDGMENT
Going by this ratio, it is not expected of PW 3 to react in a particular manner, witnessing the crime in question. In the context of given facts-circumstances, if his behaviour is considered, the witness had been consistent from the time he has given statement to police. In the cross examination nothing much has been extracted to shake the very credentials of this witness. He, of course, has chosen not to report to the police on his own of this incident. He chose to go away from the place being scared that he would be involved as well because he had gone to tell Fatesinh at the instance of appellant for calling the deceased. Fatesinh, who is uncle of deceased Ajit, as stated by this witness in his deposition, had studied with him upto Standard VII. Moreover, he had reason as well to be out of town as there were marriages in the family. He agreed of not having met the Police upto 22 nd May 2009, but that, in no manner, would lessen the degree of truthfulness of deposition of this witness who otherwise is working as a labourer and knew Darbar - the appellant herein closely. One important and relevant aspect needs a particular mention at this stage that his credibility is sought to be impeached by the defence by questioning him in respect of relationship of his paternal uncle and aunt. He agreed that their matrimonial life was not smooth and he was requesting Page 31 of 46 R/CR.A/1502/2010 CAV JUDGMENT the appellant to act as a mediator. Suggestion came in defence that because the appellant refused to so act as a mediator, he chose to involve him in the murder case. The witness, of course has categorically denied this suggestion but even otherwise, it is impossible to accept such a proposition. Denial on the part of the appellant to act as a counsellor or a mediator is trivial a thing for a person to ignore the relationship he shared with the appellant and to involve him in such a serious crime. As noted hereinbefore, this indicates complete lack of rationale in raising defence while questioning the credibility of deposition of eye-witness. He has rightly been held by the Trial Court as truthful eyewitness.
Yet another test that also requires to be applied to verify the truthfulness of the witness is to test the veracity of the case of prosecution, though other dependable evidences viz., scientific evidence adduced in the form of post mortem report, deposition of concerned Doctors, Serological reports, etc. At this stage, it need to be evaluated as to be discussed hereinafter, it could be noted that this witness lends complete corroboration to the version of eyewitness and also to the case of prosecution.
Discovery of Article/Weapon & Medical Evidence :
Again, it is to be noted that at the instance of the Page 32 of 46 R/CR.A/1502/2010 CAV JUDGMENT accused, discovery has been made of the wooden stick or log with which he had hit on the backside of the skull. The Court in this case has held that so much of the information given by the accused in custody in consequence of which the fact discovered, is admissible in evidence. Whether such information amounts to confession or not. It also went to an extent of holding that even without the aid of Section 27, the statement so made by the appellant would be admissible as 'conduct' under Section 8. Section 8 of the Evidence Act, 1872 states that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any part, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Illustrations to Section 8 indicates that after the commission of the alleged crime, if a person has absconded, or attempted to conceal the things, which were or might have been used in committing it, would be relevant.
To recapitulate, hitting of wooden stick/baseball stick on Page 33 of 46 R/CR.A/1502/2010 CAV JUDGMENT the head of the deceased Ajit is said to be the cause of his death and his dead body was hidden and buried in the backyard near the hut/shed of the appellant, which was exhumed after three days. In light of these circumstances, post mortem report if it is examined, this was carried on 20 th May 2009 wherein age of the deceased is shown as 25 years; wearing red shirt, while baniyan and cream colour pent. Tatoo mark of "Ajit " was visible on the right hand of the deceased body and PM lividity present over dependent part of body. In column no. 17, reference is made to external injuries viz., (1) Old CLW of 7 cmx4 cm x upto bone deep upto brain tissue over occipital region; & (2) Maggot formation and multiple part of body. All injuries were found ante-mortem in nature. Internal injuries corresponding to external injuries reveal that the skull bone was fractured and there was injury to the brain tissues.
Blood group could not be examined as the sample was already hemolysed. The cause of death is shown as cardio respiratory arrest due to grievous head injury due to hard blunt weapon. Two doctors in panel have performed this post mortem. One of whom ie., Dr. Nimesh P. Desai deposed [as PW 1 at Exh. 9] in support of this document. He was shown the muddamal article weapon and according to him, the external injury shown, which has a corresponding internal injury Page 34 of 46 R/CR.A/1502/2010 CAV JUDGMENT fracturing the skull bone and injury to the brain tissues is possible due to this injury which alone was sufficient in the ordinary course of nature to end the life of a person. According to the expert, this injury was three days old. According to him, the megohms formation is possible after eight to twenty four hours of bury. In the cross examination, he had agreed that any substance akin to muddamal wooden stick can cause such an injury. Nothing turned on such cross examination.
Admittedly, the death is caused on account of head injury which is - fracture on the skull bone.
At this stage, a particular reference is to be made on the fervent submission made by the learned advocate appearing for the appellant with regard to not taking X Ray of brain of the deceased. According to the appellant, this has to be termed fatal to the case of the prosecution and does not lead to any conclusion of proving of injury over the head of the deceased. This of course deserves to be negatived for the reason that the fracture of any part of body in the living person may be possible to be detected with the aid of X Ray for the medical expert to conclude essentially for the purpose of treatment of the patient. However, in the instant case, when the PM is being carried out by the expert and it is apparent with naked eyes a fracture of the particular bone, is it not at all necessary for the Page 35 of 46 R/CR.A/1502/2010 CAV JUDGMENT expert to undertake exercise of taking X Ray for concluding fracture. Ordinarily, at the time of performance of PM, aid of X Ray is not being taken. Sometimes MRI is found to be essential for a particular cause. However, otherwise when the expert also has deposed that he could clinically examine fracture on the skull, not only in the examination-in-chief, but also, in the cross examination, this issues does not require any further elaboration and it could be concluded unhesitatingly that the death of the deceased Ajit has been caused on account of head injury.
This evidence further corroborates the theory of prosecution of the death having been caused some days before the dead body was exhumed. Maggot formation and the condition of the dead body had also revealed such aspect. This also is in further conformity with the evidence of PW-3 and those witnesses and Investigating Officer, at whose instance, the body was exhumed by recording videography from near the dwelling unit of the appellant.
At this stage, from the deposition of Investigating Officer and PW-19, it could be noted that various samples were taken and sent for examination to Forensic Science Laboratory. Serological report of the sample of the soil taken from the pit and the clothes of the deceased reveal that the blood group Page 36 of 46 R/CR.A/1502/2010 CAV JUDGMENT found on the cloth was B+ve. However, as mentioned hereinabove, since the blood was hemolysed, it was not possible for the Doctors to collect the blood sample. In its all probability, the blood group of the deceased could be of B+ve. In absence of collection of the blood sample from the dead body, it is not possible to so say that. The only evidence which is worth mentioning is that visit of investigation van by FSL at the place of incident which was after exhumation, when placed in the ambulance van, examination with the search light revealed blow on the auxipal region 3 inches deep and from the hold of the skull presence of house-flies could be noticed. No other injuries were found on the dead body. It was extremely in a decomposed condition.
Video Compac Disc has been prepared when the portion of land in the backyard of the hut of appellant-accused was being dug in search of the corpus of the deceased. Such CD is produced on record at Exh. 42. Such CD was recorded in presence of complainant, panch witnesses, Investigating Officer, etc. It was the police photographer who recorded such CD. It shows the remoteness of the place of incident. It could also be noticed that a way-ment for carts would lead to interior part of agricultural field and jungle. A hand made wooden gate is created for allowing entry to the residence of Page 37 of 46 R/CR.A/1502/2010 CAV JUDGMENT the appellant. At the distance of about 30 ft. in the backyard of residence of the accused, a hip of wood systematically arranged becomes apparent. It was removed with the help and assistance of panchas and police personnel. Gradually, soil from the surrounding had been removed and the body could be exhumed. Many flies were seen from the open part of the wound and on turning the body, a deep wound was apparently visible. It was less than three to four days when the same could be recovered, and therefore, decomposition was not to a great extent. The body was identified by the complainant wearing red flowery shirt, off-white pent and a tattoo on the right hand. After removing the clothes from the body of the person of the deceased, the body of victim was sent to hospital for PM, after carrying out inquest panchnama and also panchnama of the place of offence from where the body was exhumed, as noted above, sample of soil and other samples were collected from the place where the body was buried. In the ambulance, the deceased was removed to the Civil Hospital for the purpose of carrying out post-mortem.
As far as possible, attempts were made to take aid of scientific tools. However, with almost no difficulty with which the dead body was identified, presumably, the Investigating Officer has not carried out other scientific tests. Page 38 of 46 R/CR.A/1502/2010 CAV JUDGMENT
On examining Compact Disc also, remoteness of the place where the incident has occurred and where the body was buried becomes clear. The incident clearly has occurred in the agricultural field where people do not habitat. Taking advantage of such loneliness, the incident of murder has happened.
At this stage, reference need to be made of the decision of the Supreme Court rendered in case of Dharam Deo Yadav v. State of Uttar Pradesh, reported in (2014) 5 SCC 509 where a twenty two years old girl - a New Zealander, who came to India as a visitor, after visiting Agra had gone to Varanasi where she was found missing and after one year of such incident, on her father's complaint, the Police had arrested the appellants therein. The trial Court had convicted the accused of strangulating the young girl and had awarded him death sentence. High Court of Judicature of Allahabad confirmed the death sentence which was challenged before the Apex Court where the entire case was resting on circumstantial evidence. On the basis of DNA test and as super-imposition tests, coupled with other scientifically designed tests, the Court had held the guilt to have been proved. The Court while summarizing the requirements in a criminal trial in the matter of circumstantial evidence held and Page 39 of 46 R/CR.A/1502/2010 CAV JUDGMENT observed as under -
"14. We have no eye-witness version in the instant case and the entire case rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC 343, this Court held as follows :-
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established and all the facts so established should be consistent only with the hypotheses of the guilt of the accused. Again, the circumstances would be of a conclusive nature and tendency and they should be such as to exclude but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye- witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, accused may be convicted on the basis of such circumstantial evidence."
Page 40 of 46 R/CR.A/1502/2010 CAV JUDGMENT With regard to the last seen together evidence, the Apex Court held that once it is established that reliable evidence that a person came to be missing, after having been seen in the company of the accused, it would be incumbent upon the accused to explain the circumstances in which he parted company with the missing person. The Court in this regard, held and observed, as under :-
"18. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. The conduct of the accused and the fact of last seen together plus other circumstances have to be looked into. Normally, last seen theory comes into play when the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. It will be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. However, if the prosecution, on the basis of reliable evidence, establishes that the missing person was seen in the company of the accused and was never seen thereafter, it is obligatory on the part of the accused to explain the circumstances in which the missing person and the accused parted company. Reference may be made to the judgment of this Court in Sahadevan Alias Sagadeven v. State represented by Inspector of Police, Chennai (2003) 1 SCC 534. In such a situation, the proximity of time between the event of last seen together and the recovery of the dead body or the skeleton, as the case may be, may not be of much consequence. PWs 1, 2, 3, 5, 9 and 10 have all deposed Page 41 of 46 R/CR.A/1502/2010 CAV JUDGMENT that the accused was last seen with Diana. But, as already indicated, to record a conviction, that itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."
In the above referred case before the Apex Court, the skeleton of the victim girl was recovered at the instance of the accused. The Apex Court held and observed that proper precaution need to be taken to preserve the evidence and also all attempts should be made not to allow tampering of the material for causing any contamination. Emphasizing all along on the scientific evidence, the Court held thus-
"28. Criminal Judicial System is this country is at crossroads, many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. Investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence. In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection. Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness etc., whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases Page 42 of 46 R/CR.A/1502/2010 CAV JUDGMENT based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence.
29. Scientific evidence encompasses the socalled hard science, such as physics, chemistry, mathematics, biology and soft science, such as economics, psychology and sociology. Opinions are gathered from persons with Scientific, technical or other specialized knowledge, whose skill, experience, training or education may assist the Court to understand the evidence or determine the fact in issue. Many a times, the Court has to deal with circumstantial evidence and scientific and technical evidence often plays a pivotal role. Sir Francis Bacon, Lord Chancellor of England, in his Magnum Opus put forth the first theory of scientific method. Bacon's view was that a scientist should be disinterested observer of nature, collecting observations with a mind cleansed of harmful preconceptions, that might cause error to creep into the scientific record. Distancing themselves from the theory of Bacon, the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) held as follows: "Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement."
In light of the discussion held hereinabove, in the instant case also, all the para-meters laid down time and again by the Apex Court in all the trials were evidence is sought to be proved on the basis of circumstantial evidence also can be said to have duly established. In the instant case, as discussed at length hereinabove, the person who had last seen the deceased and the accused together also is an eyewitness who had seen giving of the blow on the head on the person of the deceased by the appellant. Not only in about three days' time Page 43 of 46 R/CR.A/1502/2010 CAV JUDGMENT of the happening of the incident, the dead body was recovered from the backyard of the appellant's hut, but, the manner in which the Investigating agency handled the crime scene and also proved discovery of the wooden stick at the instance of the appellant, coupled with other evidences discussed hereinabove, it can be said that prosecution succeeded in proving the guilt beyond reasonable doubt, and therefore, the trial Court has rightly held the appellant guilty of commission of murder.
The last submission that requires to be deat with at this stage is of lessening the punishment by converting the guilt from culpable homicide amounting to murder to culpable homicide not amounting to murder. According to the learned advocate for the appellant, it was a solitary blow which could be at the most said to be an act done with the knowledge that it is likely to cause death but without any intention to cause the death, or to cause such bodily injury as is likely to cause death. He also further has urged that with the solitary blow, number of decisions pronounced on the subject hold that the case would fall under Section 304 Part-II of the Indian Penal Code. In the instant case also, the Court ought to have convicted the present appellant under Section 304 Part-II.
It is true that the appellant has given a single blow on the Page 44 of 46 R/CR.A/1502/2010 CAV JUDGMENT head of the deceased as is apparent from the various documents and the ocular version, so also from the postmortem note. The death is also caused by a wooden log and the Doctor has confirmed the death being homicidal where the injury caused is sufficient to cause death in the ordinary course of nature. Every single blow on the vital part of the person of the deceased leading to death need not be held to be culpable homicide not amounting to murder. It cannot be said that the person had no intention to cause death and had only knowledge that such act of his is likely to cause death or to cause bodily injury, as is likely to cause death. In our opinion, such submission is not found acceptable, considering the manner in which death is caused and the conduct of the accused before and after the crime in no uncertain manner points to only conclusion of his nefarious design.
The deceased was called by the appellant at his place with whom he did not share good terms. The entire act appears to have been done with an intention to do away with the deceased. His residence is in the remote area in the agricultural field where there are no other habitants. After giving him the blow over the head, his body was buried in the backyard and the land was covered with wooden logs and other materials. Not only such act of killing but the subsequent Page 45 of 46 R/CR.A/1502/2010 CAV JUDGMENT act of this appellant of burying the body and hiding the same under the heep of woods as also of his fleeing away from the place speaks volume of his involvement in a serious crime. Overall facts and circumstances proved on record have rightly been held conclusive to be the act of culpable homicide amounting to murder. This conduct does not call for any benefit in terms of converting the conviction from Section 302 to Section 304 Part-I or II of the Indian Penal Code.
Resultantly, Criminal Appeal fails and the same is dismissed. The impugned order and judgment dated 7th May 2010 passed by the learned Sessions Judge, Kheda at Nadiad in Sessions Case No. 97 of 2009 is hereby sustained. Rule is discharged with no order as to costs.
{Anant S. Dave, J.} {Ms. Sonia Gokani, J.} Prakash* Page 46 of 46