Gujarat High Court
State Of Gujarat vs Dilip Bhikhabhai on 21 April, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1165 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
DILIP BHIKHABHAI & ORS.
==========================================================
Appearance:
MR MANAN MEHTA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2,3,4,5
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No.
1,2,3,4,5
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) (1) The present appeal has been filed by the appellant - State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") against the judgment and order of acquittal passed by Additional Sessions Judge, Gondal (hereinafter referred to as "the Trial Court") in Sessions Case No.200 of 1995 on 15.09.1997, whereby, the Trial Court has acquitted the respondents - accused for the offences punishable under Sections 147, 148, 149, 302, 504 and 449 of the Indian Penal Code, 1860 ("the IPC" for short).
Page 1 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined The respondents are hereinafter referred to as "the accused"
as they stood in the rank and file in the original case for the sake of convenience / clarity and brevity.
(2) At the outset, learned APP has referred to the report dated 06.02.2025 of Police Inspector, Dhoraji Police Station, Rajkot (Rural), Dist. Rajkot and has submitted that as per the aforesaid report, the accused No.1 is suffering from paralysis and is the bedridden since last 8 years.
BRIEF FACTS :-
(3) The case of the prosecution as per the Charge Exh.1, is that on 16.08.1995, at 11 O'clock at night, all the accused formed an unlawful assembly, and rushed to the house of the complainant, (PW-1, the wife of the deceased). The accused no.1 (brother of the complainant) was carrying a knife, whereas the other accused (sisters of the accused no.1) were instigating him to kill the deceased, and after the accused chased the deceased, he inflicted blows of knife and committed murder of the deceased. The charge for the offences punishable under sections 302, 147, 148, 449, 504 of the IPC was framed.
(4) An F.I.R. Exh.61 was registered with Dhoraji City Police Station, Rajkot, for the offences punishable under Sections 302 and 504 of the IPC, vide I-C.R. No.172 of 1995. The investigating agency, during the course of investigation, recorded statements of the witnesses, drawn various panchnamas, including the panchnama of scene of offence, Page 2 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined collected medical papers, post mortem report etc. for the purpose of proving the offence. After having found sufficient material against the respondents accused, a charge-sheet came to be filed in the Court of Judicial Magistrate, First Class (JMFC). As the said Court lacks jurisdiction to try the offence, as the alleged offences being exclusively triable by the Court of Sessions, it committed the case to the Sessions Court, Dahod, as provided under Section 209 of the Code, which was numbered as Sessions Case No.200 of 1995.
(5) Upon committal of the case to the Sessions Court, Dahod, the Sessions Judge, framed charges vide Exh.1 against the respondents - accused for the aforesaid offences. The respondents - accused pleaded not guilty and claimed to be tried. They were tried for the said offences and in order to bring home the charge, the prosecution has examined 21 prosecution witnesses and also produced various documentary evidence before the Trial Court. The prosecution had examined the complainant, witnesses, medical officer and the police witness, which, according to the prosecution, was sufficient enough to bring home the charge. The prosecution has also relied upon documentary evidences in support of the oral evidence led by them before the Trial Court. At the end of the evidence, necessary pursis was presented before the Trial Court declaring closer of evidence. The Trial Court has thereafter proceeded to record further statement of the accused under Section 313 of the Code. With such evidence being noticed, the Trial Court, after evaluating the same, arrived at a conclusion that the prosecution has failed to prove Page 3 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined the charge against the respondents - accused and has thereby recorded acquittal.
SUBMISSIONS BY THE LEARNED APP:-
(6) Learned APP, Mr.Manan Mehta has submitted that this is a clear case of murder and offence under Section 302 and other relevant sections of the IPC. It is submitted that the prosecution has proved the guilt beyond reasonable doubt by establishing through ocular evidence of the original complainant - wife of the deceased - sisters of the accused, who was not only the complainant but also had seen the entire incident of offence and has fully supported the case of the prosecution. He has submitted that apart from the said eye-
witnesses - original complainant, there are four other eye- witnesses, including one child witness, who have fully supported the case of the prosecution by describing the entire incident of the offence of murder and to discard those evidences, there is no material placed by the defence and there is no cogent and valid reasons for the Trial Court to disbelieve and discard the evidence of the eye-witnesses. Further, the case of the prosecution is fully supported by the medical evidence, FSL evidence as well as the serological report and discovery panchnama and the witness, in whose presence the discovery of muddamal knife was recovered and to discard these overwhelming material in evidence, the Trial Court had not assigned any cogent and valid reason and there is no material to contradict the same and, therefore, the judgment of acquittal is erroneous and unsustainable and the same may be quashed and set aside.
Page 4 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined SUBMISSIONS ON BEHALF OF THE ACCUSED :-
(7) Learned advocate Mr.Khanderia, appearing on behalf of the accused has urged that the acquittal recorded by the Trial Court may not be interfered with, since the Trial Court has precisely appreciated the evidence. While referring to the observations of the Trial Court, it is contended that the prosecution has miserably failed to bring home the charge. He has referred to the findings of the Trial Court, more particularly the medical evidence. While referring to the testimony of PW-
3, Medical Officer, it is submitted that the injuries found on the deceased could not have been inflicted by the weapon-knife, as the shape of the injuries do not reconcile with the make of the weapon. He has also referred to the deposition of the eye- witnesses, and has contended that their evidence is tainted with major contradictions, and these witnesses have not established themselves as reliable witnesses.
(8) Learned advocate Mr.Khandheria appearing for the accused no.1 has also submitted that apart from paralysis, he is also suffering from Throat Cancer and is on liquid diet. He has further submitted that in case the Court reverses the acquittal, looking to the medical condition of the respondent- accused No.1, mercy may be shown to him.
APPRECIATION OF EVIDENCE AND FINDINGS OF THE TRIAL COURT :
(9) Keeping in mind the general principles prescribed by the Supreme Court in the case of Chandrappa vs. State of Karnataka, 2007 (4) S.C.C. 415 regarding the powers of Page 5 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined appellate Court, while dealing with an appeal against an order of acquittal, we shall now examine the evidence and the findings of the Trial court.
(10) The prosecution has examined PW-1, who is the complainant - Haluben Babulal, wife of the deceased and sister of the accused at Exh.19. In her examination-in-chief, she has deposed that when she was sitting outside her house at around 11 p.m., the accused No.1 and four other accused i.e. his sisters rushed at their home and when she had seen the accused no.1 with knife, she shouted and rushed to the husband, who was sleeping in the house and on hearing commotion, the deceased i.e. her husband rushed outside and the accused No.1, who is the brother of the present witness, chased her husband with a knife and inflicted a knife blow on his chest. The reason assigned by her for the assault is of some dispute, which had happened five years ago between her husband and the accused No.1 - her brother, relating to consumption of liquor, in which, the accused No.1 got injured by the knife. She has further deposed that there were occasional quarrels happening between the accused no.1 and her husband. In her cross-examination, she has stuck to her version about the assault of knife. She has also deposed that her husband was taken in the tractor along with Vallabhbhai and Damjibhai with other persons, who lifted her husband and put him in the tractor. She has also deposed that when they reached the hospital, the police thereafter had arrived within fifteen minutes and accordingly, a complaint was registered by her. She has also disposed that the house of the accused was Page 6 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined near to her house. In her cross-examination, she has categorically stated that the accused had inflicted blow on the deceased. There is omission emerging from her evidence with regard to the presence of accused nos.2 to 4 and their instigation. In her statement recorded under section 161 of the Code she has not referred to the instigation by the accused nos.2 to 4. There is minor contradiction on the exact spot where the deceased was stabbed, i.e. in the courtyard of Somabhai. However, her core version of the stabbing of the deceased by accused no.1 by the knife at the place remains intact.
(11) Another eye-witness, who is examined by the prosecution as PW-2, Ravjibhai Ramjibhai, (Exh.20). In his examination-in-chief, he has deposed in the line with the complainant and has stated that he saw the accused No.1, Dilipbhai, armed with knife rushing towards the deceased and he saw him inflicting blows on the deceased, as the deceased rushed from his house to the house of one - Soma Bheema and at that time, his sisters i.e. the rest of the accused instigated him for inflicting the blows and to kill him. This witness has categorically stated that the accused had inflicted two blows and accordingly, he fell down near the house of Vallabhbhai Ramjibhai and the crowd had gathered there at that time and thereafter, the deceased was taken in the tractor of Damjibhai. He has reiterated that the deceased was inflicted one blow on his chest and another blow on his back. In the cross- examination, he has stuck to his version about the infliction of blows by the accused No.1 on the deceased. It is elicited in his Page 7 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined cross-examination that before they tried to save the deceased, the accused No.1 had inflicted the blow of knife and it is reiterated by him that two blows were inflicted by the accused No.1 on the deceased by the knife and thereafter, after 10 to 15 minutes, when the tractor had arrived, they had taken the deceased to the hospital. Again, he was cross-examined with regard to the number of blows and this witness has stuck to his version that he has seen the accused No.1 inflicting two blows on the deceased and the accused Nos.2 to 5 were instigating the accused to kill the deceased. The version of this witness corroborates the testimony of the complainant. In the deposition also, we find omission between the police statement and the evidence before the Trial Court relating to the role of the accused nos.2 to 4. However, the version of assault by the knife of the deceased remains integral.
(12) There is another eye-witness, who has supported the case of the prosecution as PW-9, Keshuben Karshanbhai (Exh.33). She has also deposed that at the time of incident, when she was sitting with the complainant, the accused rushed to the house of the complainant and the accused No.1 was armed with knife. She has submitted that the deceased was warned by his wife - complainant and thereafter the deceased ran and while he was running, the accused No.1 chased him and inflicted the knife blow on his back and when the deceased turned towards the accused, he inflicted another blow with the knife on his chest and at that time, four accused - his sisters had arrived and instigated the accused No.1 to kill him and thereafter, the deceased fell down near the house of one Page 8 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined Vallabhbhai and was thereafter taken to the hospital. In her cross-examination, she has stuck to her original version, except minor contradictions, we do not find any infirmity in her evidence. So far the role of accused No.1 is concerned, she has in the cross-examination has asserted that the accused No.1 had inflicted two blows of the knife on the deceased and has reiterated the manner, in which he was inflicted the blow, as deposed by her in the examination-in-chief. In her statement recorded under section 161 of the Code, she has not referred to the role of inciting by the other accused. The rest of her testimony remains consistent.
(13) Another eye-witness - PW-14, Vallabhbhai Ramjibhai, is examined at Exh.46. He has also supported the case of the prosecution. In his examination-in-chief, he has deposed that at around 10 O'clock in the night, when he was going to sleep, he heard some uproar outside and accordingly, he rushed and saw that the accused No.1 running behind the deceased with the knife and when he reached at the house of Soma Bheema, at that time, the accused No.1 inflicted one blow of knife on the back of the deceased and the second blow on his chest. He has stated that at that time, he saw that rest of the accused i.e. the accused Nos.2 to 5 - the sisters of the deceased, were shouting. He has further deposed that after the deceased was injured, he fell down in the courtyard and thereafter, he was taken to the hospital. In his cross-examination, he has stuck to his version, though the prosecution has very intensively cross- examined him with regard to the spot of the incident and the measurement between his house and where the deceased was Page 9 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined fell down. In his cross-examination, this witness has asserted that the first blow was inflicted by the accused No.1 on the deceased near the house of Somabhai and the second blow was inflicted on his chest and thereafter, the deceased fell down. He has thereafter deposed that four sisters of the deceased i.e. the accused Nos.2 to 5 had caught hold of the deceased, and he was taken to his house. He has also reiterated, what is mentioned by the complainant and PW-2, Ravjibhai Ramjibhai that thereafter, the deceased taken in the tractor of Damjibhai to the hospital and before the doctor, this witness has given the history that the accused No.1 had inflicted blows of knife on the deceased and thereafter, the deceased passed away. Further, when he was cross-examined with regard to the number of blows, this witness has asserted that the second blow was given by the accused No.1 on the chest of the deceased. Though, this witness has mentioned presence of the accused no.2 to 4, the sisters of the accused no.1, he does not refer any instigation on their part, but refers to their presence, and also taking away the accused no.1 from the scene of offence. The minor contradiction with relating to the spot of knife blow is emerging. The defence has failed to dislodge his testimony relating to the assault by the accused no.1 by a knife on the deceased.
(14) The minor daughter of the deceased and the complainant - Anita Babubhai (PW-16) is examined at Exh.48. She has also deposed on the line of her mother-complainant and has stated that when her father rushed outside, at that time her mother and she had also followed her father and saw Page 10 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined that the accused No.1 inflicting one blow of knife on the back of the deceased and the second blow on his chest. She has categorically stated that when one blow of knife was inflicted on his back, her father i.e. the deceased all of a sudden turned towards the accused No.1 and thereafter, the accused No.1 gave the second blow of knife on the chest of the deceased and thereafter, the deceased fell down near the house of Somabhai. There are contradictions brought in the cross- examination with regard to the place, where the deceased had fallen down, but her testimony describing the core incident remains intact. There is omission relating to the role of the rest of the accused.
(15) At this stage, it would be apposite to refer to the deposition of PW-3, Dr.Ushaben Trivedi at Exh.21, who is the Medical Officer, who has conducted the post mortem of the deceased. The post mortem report is at Exh.22. The cause of death as per the post mortem report is "hemorrhagic shock due to injury to major vessels (aorta). The post mortem report refers to the injuries to the deceased i.e. "(1) Stab wounds on 3rd Rt. (right) rib ICS (intercostals space) and 3rd ICR (intercostals rib), 3.5 cm right to midline, 2 mm shape size, 3.5 cm x 1cm going inside the cavity directly medially and posteriorily; (2) Stab wound on Rt. (right) lumbar region (back) at the level of umbilicus 5 cm lateral to midline size 1 cm x 0.5 cm x 1cm."
(16) This witness was extensively cross-examined with regard to the shape of injury, whether it was 'wedge' shaped or 'egg' shaped. She was also cross-examined on the weapon of Page 11 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined offence i.e. knife. When she was examined extensively, whether such injuries can be caused by the muddamal article i.e. knife, she has categorically explained that if the knife is sharp at one edge and blunt on the other edge, the external injury No.17(1) as well as the internal injury as specified in column No.20(k) can be inflicted, whereas the injuries in column No.20(k), can be inflicted by the pointed edge which is 5 cm. long. Thus, the injuries, which emerge from the medical evidence corroborates the testimony of the eye-witnesses.
(17) We may further refer to the FSL report at Exh.71. On the muddamal article of knife, the blood group 'A', is found which belongs to the deceased. The discovery of the muddamal article is made on the premise of the disclosure statement made by the accused no.1. For proving the discovery, the prosecution has examined the Panch Witness - Nileshbhai Harjivanbhai (PW-8) at Exh.31. This witness has proved the discovery panchnama at Exh.32. He has specifically stated that in view of the disclosure statement of the accused, the muddamal article was found below one stone in Safura River. Thus, the knife was found from such a place which was not accessible to any public, but was hidden below a stone of the river. He has further clarified, on a suggestion being made that the knife was concealed in the stand, after digging a hole under a huge stone. The Investigating Officer (PW-21) - Ghanshyamsinh Roopsinh Vaghela at Exh.67 has also supported the discovery of muddamal article and the panchnama. Thus, the discovery of offence of weapon is proved, and it directly links it with the deceased. The FSL Page 12 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined report also reveals two holes on the shirt of the deceased, and it is opined that such holes can be made by knife.
(18) At this stage, we may refer to the findings of the Trial Court acquitting the accused for the offence. The Trial Court has discarded the material evidence of the eye-witnesses without assigning any cogent and valid reason. The Trial Court in the judgment has recorded that the testimony of the original complainant cannot be believed as it does not prove that there was unlawful assembly of the accused persons, they have assaulted the deceased. By placing reliance on the minor contradiction, the Trial Court has disbelieved the evidence of PW-2 and another eye-witness. Similarly, the evidence of eye- witnesses - PW-9 and PW-14 have been discarded by the Trial Court on the minor contradiction between the ocular evidence as well as the statement made under Section 161 of the Code before the police. The Trial Court has also acquitted the accused by observing that the place and time of the offence is not established from the evidence and the injuries do not reconcile with the medical evidence, more particularly from the evidence of the doctor, who has undertaken the post mortem. The Trial Court was very much influenced with the shape of the injuries, whether the same could have been caused by the knife. The Trial Court was also impressed with the manner in which the injuries were inflicted on the body of the deceased by recording that some of the witnesses have stated that the first injury is inflicted on the backside of the body of the deceased, whereas the medical evidence shows otherwise. Thus, finally, it is recorded that the prosecution was unable to Page 13 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined prove the actual place of offence or the time of offence and the medical evidence being contrary to the ocular evidence. The discovery of knife is also disbelieved by the Trial Court.
(19) In the case of Birbal Nath vs. State Of Rajasthan and Ors., AIR 2023 S.C. 5644, the Apex Court has reiterated the evidentiary value of statements recorded under section 161 of the Code. The same is as under:
"19. No doubt statement given before police during investigation under Section 161 are "previous statements" under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict"
such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong.
20. The contractions in the two statements may or may not be sufficient to discredit a witness. Section 145 read with Section 155 of the Evidence Act, have to be carefully applied in a given case. One cannot lose sight of the fact that PW-2 Rami is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination in chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross examination by the defence. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not Page 14 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined always sufficient to discredit a witness. In Rammi v. State of M.P. (1999) 8 SCC 649 , this Court had held as under:
"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."
In the same case, how far a contradiction in the two statements can be used to discredit a witness has also been discussed.
"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 Page 15 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the crossexaminer 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 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."
21. In Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 , it was held that to contradict a witness would mean to "discredit" a witness. Therefore, unless and until the former statement of this witness is capable of "discrediting" a witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit a witness. This has been followed consistently by this Court in its later judgment, including Rammi (supra). Moreover, in this case the High Court lost sight of other more relevant factors such as the witness being an injured eye witness.
22. The purpose of the cross examination of a witness in terms of Section 145 and 155 of the Evidence Act is to bring contradictions in the two statements of the witness, in the case at hand, one given to police under Section 161 Cr.PC., and the other given before the court. Even assuming for the sake of argument that there is a difference in the two statements of PW-2 as she evidently does not disclose in her examination-in-chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started. The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW-2, yet for this discrepancy the entire testimony of PW-2 cannot be discarded."
Page 16 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined (20) We may also refer to the decision of the Apex Court in the case of Gangadhar Behera vs. State of Orrissa, 2002 (8) S.C.C. 381, which clarifies the evidentiary value of witness, whose testimony cannot be discarded for minor falisity:
"15 To the same effect is the decision in State of Punjab V/s. Jagir Singh, and Lehna V/s. State of Haryana, (2002 (3) SCC 76). Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because Page 17 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment and Ugar Ahir V/s. The State of Bihar. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto and Balaka Singh V/s. The State of Punjab. As observed by this Court in State of Rajasthan V/s. Smt. Kalki, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi V/ s. State of Bihar etc., (2002 (4) JT (SC) 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned".Page 18 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025
NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined (21) Thus, it is no more res integra, that even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in two statements would result in totally discrediting this witness. The Apex Court has held that even if a major portion of the evidence is found to be deficient, in case the residue is sufficient to prove guilt of the accused, his conviction can be maintained. The Supreme Court has reiterated that the maxim "falsus in uno, falsus in omnibus"
has no application in India, and the witnesses cannot be branded as "liars" if there is falsity of particular material witness or material particular, and such aspect will not ruin the entire evidence. It is held that the doctrine is dangerous one especially in India for, if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that the administration of criminal justice would come to a dead stop. The Apex Court has asserted that merely because in some respect the court considers the evidence to be insufficient for placing reliance on the testimony of the witness, it does not necessarily follow as a matter of law that it must be disregarded.
(22) Keeping in mind the aforesaid dictum, we hold that the testimony of the eye-witnesses cannot be disregarded at all, which is done by the trial Court. The evidence of the eye-
witnesses establishes that the incident has happened. The complainant is the sister of the accused no.1 and she has seen him assaulting her husband. We see no reason of false implication of her brother by this witness. She has established Page 19 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined herself as a reliable witness. The contents of F.I.R. (Exh.61), which was recorded in the hospital reveals that she has narrated that the accused no.1 assaulted the deceased with knife. The incident, as narrated by the witnesses, has happened in night hours and the deceased was assaulted while he was running. The evidence also reveals that many people had gathered at the place of incident and there was lot of chaos. In such circumstances, the witnesses may not be able to recall the exact spot where the deceased was assaulted and at what spot he fell down. This discrepancy cannot discard the secure ocular evidence of assault by the accused no.1 on the deceased. The discovery of knife is proved. It was hidden at a place which was not accessible to public. Thus, there is abundant evidence to establish the complicity of the accused No.1 in the offence, who had inflicted two fatal blows of knife on the deceased.
(23) Having held that the accused No.1 has inflicted fatal blows of knife on the deceased, which resulted into his death, we may now make an endeavor to establish the ingredients of section 300 of the IPC, which reads thus :-
"SECTION 300 : Murder -- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or --
Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is Page 20 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
(24) The facts, which are established from the evidence, are that the accused No.1 armed with a knife, rushed to the home of the deceased and the complainant. The complainant warned the deceased, and the deceased rushed outside and ran. While chasing the deceased, the accused No.1 inflicted the first blow, and thereafter another blow was inflicted and the deceased fell down. The medical evidence reveals that both the blows were fatal for the deceased and he succumbed to his injuries and he was brought to the hospital, he was already dead. The deceased and the accused No.1 were having strained relationship due to some incident, which has happened between them before five years relating to inflicting of blow of knife, in which the accused No.1 had suffered the injuries.
However, there is nothing to suggest that before the incident, on that day or in near past, there was any quarrel between the accused no.1 and the deceased. Thus, the manner in which the accused no.1 has assaulted the deceased, it can firmly be said that he had the intention to cause death of the deceased or to cause bodily injury to him, and the injuries which were inflicted were sufficient in the ordinary course of nature to cause death, hence the offence squarely falls under Clause thirdly of section 300 of the IPC. In the present case, the accused cannot be granted any benefit of Exception 1 to section 300 of the IPC, as the evidence does not disclose any element of grave and sudden provocation.
Page 21 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined (25) So far as the acquittal of the accused Nos.2 to 5 are concerned, we find that the evidence proves their presence, however neither their instigation or inciting the accused no.1 nor their sharing of 'common object' of murdering the deceased is proved beyond reasonable doubt. The complainant, in the FIR (Exh.61), has not referred to their presence.
(26) The accused nos.2 to 4, who are the sisters of accused no.1 are roped in the offence by taking aid of section 149 of the IPC, which reads as under:-
"SECTION 149 : Every member of unlawful assembly guilty of offence committed in prosecution of common object:
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
The core ingredient for proving the relevant offence by taking the aid of section 149 of the IPC is "common object" of the unlawful assembly. The element of intention on the part of unlawful assembly is not required to be established and a person can be held guilty of the relevant offence under section 149 of the IPC, though he/she had no intention to commit the crime or such person may not be even aware of its commission. In the present case, the evidence does not confirm that the accused nos.2 to 5 accompanied the accused no.1, while he charged himself with the knife to assault the deceased or they had come along with the accused no.1 by forming an unlawful assembly. The evidence reveals that the Page 22 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined accused no.1 was taken away by the accused nos.2 to 5 after the incident. Their membership at the time when the accused no.1 inflicted the blows by chasing the deceased is not firmly established, and is in flux. Thus, the constructive guilt on the part of the accused nos.2 to 5 is not proved beyond reasonable doubt. The accused nos.2 to 5 are the sisters of the accused no.1 and the complainant and all were staying in close proximity. Their presence was natural at the time of offence. The evidence discloses that except the accused no.1, there was no prior enmity between the accused nos.2 to 5. Hence, the prosecution has failed to establish firmly that the accused nos. 2 to 5 formed an unlawful assembly with accused no.1, and they shared a common object with accused no.1 of eliminating the deceased.
(27) However, for acquitting the accused no.1 from the offence, we find that the Trial Court fell in error in discarding the medical evidence also. PW-3 - the Medical Officer has not denied that the injuries cannot be caused by the muddamal article - knife and the Trial Court has disbelieved the evidence and acquitted the accused only for the reason that the injuries do not reconcile with the shape of the weapon.
(28) We do not subscribe the view expressed by the Trial Court since, PW-3, Medical Officer, as mentioned hereinabove, in her evidence has not entirely denied that such injuries cannot be caused by the muddamal article knife.
(29) We do not affirm the view expressed by the Trial Court in acquitting the accused no.1 that the prosecution has failed to Page 23 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined establish the exact spot of infliction of blows by the accused no.1, both on the body of the deceased and the spot / place. The eye-witnesses in the heat of moment and wake of the chaotic situation may not be able to exactly recollect the manner in which the fatal blows were inflicted. This minor discrepancy cannot entirely discredit their ocular evidence. The scene of offence panchnama, Exh.42 is proved by panch witness PW-12, Jivanbhai Bhayabhai, which establishes the commission of crime.
(30) So far as the evidence of eye-witnesses are concerned, it cannot be said that they have established themselves as unreliable witnesses.
(31) At this stage, we may refer to the decision of the Supreme Court in the case of State of Rajasthan vs. Bablu @ Om Prakash, 2022 (14) S.C.C. 624, wherein it has been held that even version of a single witness, if his testimony is found reliable by the Court, can be the foundation of the order of conviction. The eye-witnesses, in the present case, are consistent, so far as the role played by accused No.1 is concerned and commission of the offence.
(32) Further, the Supreme Court in the case of State through the Inspector of Police vs. Laly alias Manikandan & Anr., 2022 S.C.C. Online SC 1424, has held that if there is a direct evidence in the form of eye-witness, even in absence of recovery of weapon, the accused can be convicted and also similarly even in the case of some contradictions with respect to timing of lodging the FIR/ complaint cannot be a ground to Page 24 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined acquit the accused when the prosecution case is based upon the deposition of eye-witness. In the present case, the discovery of weapon used by the accused no.1 is proved, and there is ample direct evidence to prove the complicity of accused no.1 in the offence.
(33) It is well settled legal proposition of law that the testimony of the eye-witnesses cannot be discarded merely because the eye-witnesses are related to the victim and the statements made by the rustic witnesses cannot be totally discarded as they may not be worst with the vocabulary or may be imperfect or may have imperfect capacity to describe the manner of assault.
(34) After threadbare examination of the evidence, we hold that the accused No.1 had the intention to commit murder of the deceased, as defined under Section 300 of the IPC, which attracts punishment as defined under Section 302 of the IPC.
(35) Upon overall appreciation of the evidence, we are of the opinion that the findings of the Trial Court acquitting the accused No.1 is not only illegal but perverse also.
(36) As required under the provisions of Section 235(2) of the Code, in order to hear the accused No.1 on the question of sentence, the matter shall be listed for further hearing on 04.03.2025 at 2:30 p.m. FURTHER ORDER (37) After pronouncement of the judgment convicting the original accused No.1 - Dilip Bhikhabhai, we had kept the Page 25 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined matter for hearing the accused No.1 on the question of sentence, as required under Section 235(2) of the Code of Criminal Procedure, 1973.
(38) Today, learned advocate Mr. Khandheria has submitted that the accused No.1 is bedridden and is suffering from various ailments. It is urged by him that the accused No.1 can be ordered to complete the sentence by house arrest. No further submissions are advanced.
(39) Mr. Manan Mehta, learned APP has submitted that the request of house arrest and completion of his sentence at the house cannot be acceded to, as it is illegal and impermissible under the law. It is submitted that at the most, accused No.1 can be offered some considerable time for surrender.
(40) The report of the Police Inspector, Dhoraji Police Station dated 06.02.2025 reveals that the accused No.1 is paralysed since last 8 years and is bedridden. Hence, in these circumstances, we allow the time of six months for the accused No.1 to surrender before the jail authorities.
(41) We have heard the learned advocates appearing for the respective parties on sentence. In a comprehensive judgment, we have recorded his complicity in the crime and we have found him guilty in the offence of committing murder of the deceased as defined under Section 300 of the Indian Penal Code, 1860 (IPC), which attracts punishment as defined under Section 302 of the IPC. The provision of Section 302 of the IPC Page 26 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025 NEUTRAL CITATION R/CR.A/1165/1997 JUDGMENT DATED: 21/04/2025 undefined prescribes that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Thus, on an overall appreciation of the evidence, we sentence the accused No.1 to the life imprisonment. We also direct that the jail authorities shall provide all the available treatment to the accused No.1 after he surrenders.
(42) As and when the accused No.1 reports before the jail authorities, he shall be immediately provided the medical assistance which he is undertaking. The appeal stands partly allowed.
(A. S. SUPEHIA, J) (GITA GOPI,J) Maulik/1 Page 27 of 27 Uploaded by MAULIK R. PANDYA(HC00205) on Thu Apr 24 2025 Downloaded on : Mon Apr 28 21:28:02 IST 2025