Gujarat High Court
State Of Gujarat vs Hira Karashan Boricha on 4 May, 2018
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.A/1658/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1658 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
HIRA KARASHAN BORICHA
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Appearance:
MR. L.R.PUJARI, APP for the PETITIONER(s) No. 1
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 1,2,3,4,5,6,7
MR PRATIK B BAROT(3711) for the RESPONDENT(s) No. 1,2,3,4,5,6,7
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : /05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI) Page 1 of 31 R/CR.A/1658/2006 CAV JUDGMENT
1. The present Criminal Appeal is filed under Section 378 (1) (3) of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short) against the judgment and order of acquittal passed by the learned Fast Track Court No.9, Rajkot in Sessions Case No.44 of 1992 dated 15.04.2006.
2. The case of the prosecution, which is emerging from the record, is that on 06.07.1991, the complainant viz Rameshbhai Parbatbhai, a prosecution witness No.6 has lodged the complaint before the Police Inspector (Incharge) of 'C' Division Police Station by projecting that he along with mother and deceased brother Navinbhai Parbatbhai were residing together and complainant Rameshbhai Parbatbhai was driving a rickshaw. His elder brother is residing in Gopalnagar-I and on 05.06.1991 at about 11:00 O'clock when the complainant Rameshbhai Parbatbhai has returned with his rickshaw at his house and after taking meal was sleeping, at around 01:30 hrs in night, one unknown person came to his house and informed the complainant that his brother Navla is lifted by some 23 persons, who came in rickshaw and as a result of this, complainant Rameshbhai Parbatbhai was informed that he may go at Nilkanth Cinema and then said unknown person went away. Complainant accordingly went to Nilkanth Cinema in his rickshaw where that unknown person was not available and at that place of Cinema, one Kishorebhai met the complainant and informed that his brother was lifted by two persons in rickshaw but it appears that the destination could not be noticed. Resultantly, complainant was searching his brother near Sorathiya Vaadi Chok but then Navinbhai @ Navla could not be traced out. It was also asserted in Page 2 of 31 R/CR.A/1658/2006 CAV JUDGMENT the complaint that on 23.06.1991, his brother Navla i.e. Navin had an altercation with Ahir Hira Karshan near Champaknagar Sheri where said Ahir was residing and with respect to that incident even complaint was also lodged by Hira Karsan and, as such, complainant apprehended that keeping that factor in mind, said Hira Karshan might have abducted his brother Navla in a rickshaw and thus complaint was registered before Police Inspector Mr.A.Y.Patel, Prosecution Witness No.34, who, in turn, lodged the complaint for the offences punishable under Sections 365, 367 and 114 of the Indian Penal Code and the FIR was registered as I.C.R.No.339 of 1991.
2.1 Pursuant to the said complaint being registered, the Investigating Officer Mr.A.Y.Patel, a Police Inspector recorded statement of witnesses and then took the steps in the course of investigation pursuant to which on 06.07.1991 at around 8:35 p.m. from Navagam Checkpost a phonecall received by Head Constable, Sukhdevnagar of Rajkot Police Station that near Navagam bridge, at about half kilometer, one deadbody of person is lying and then process of investigation is carried out, necessary panchnama is carried out, bloodstained deadbody was recovered, it was sent for postmortem examination, inquest panchnama was prepared, the identification of dead body was done, the bloodstained clothes and leaves of trees have been sent for FSL, recovery of weapon is made and after taking all necessary steps, when enough material was found by prosecution, the chargesheet came to be submitted by Mr.J.K.Ravat, Police Inspector then was Incharge. After the charge sheet having been filed before the learned Chief Judicial Page 3 of 31 R/CR.A/1658/2006 CAV JUDGMENT Magistrate, Rajkot, a Criminal Case was registered being Criminal Case No.4141of 1991 against all the accused persons, total nine in numbers, and since the learned Magistrate found that the case is triable by the Court of Sessions, in exercise of jurisdiction under Section 209 of the Cr.P.C., vide order dated 17.03.1992, the case was committed to the Court of Sessions and upon such committal of the case, it was registered as Sessions Case No.44 of 1992 before the Fast Track Court No.9, Rajkot.
2.2 After the said case having been registered, it appears that at Exh.1, on 18.06.1998 the charge has been framed and since in the pleas, which have been recorded of accused persons, offence was denied to have been committed, the case was put up for further evidence to be led. The prosecution has led oral evidence 37 in numbers as well as 42 documentary evidence.
2.3 The prosecution has also led the documentary evidence and after leading such evidence, an opportunity was given to the accused persons by recording further statements under Section 313 of Cr.P.C. but when again the offence is denied to have been committed case was put up for further adjudication, after considering every material, by detailed judgment it was found by learned Fast Track Court that prosecution has miserably failed to prove the case against respondents accused beyond reasonable doubt and ultimately passed an order of acquittal on 15.04.2006, in exercise of jurisdiction under Section 235(1) of Cr.P.C. and it is this judgment and order of acquittal is made the subject matter of present Criminal Appeal by the State in which Mr.L.R.Pujari, Page 4 of 31 R/CR.A/1658/2006 CAV JUDGMENT learned Additional Public Prosecutor has represented the State Authority and Mr.Pratik Barot, learned advocate has represented the respondent accused. The fact is to be taken note of that during the pendency of trial, original accused no.5 Karshan Bijal Boricha had expired and original accused no.9 Bharatpari @ Dablo Bachugiri Goswami Bavaji had also expired and, therefore, proceedings have been left insofar as original accused nos.5 and 9 are concerned.
2.4 With this background, Mr.Pujari, learned Additional Public Prosecutor appearing for the State has vehemently contended that a serious error of law is committed by learned Fast Track Judge in ignoring the evidence and thereby coming to the conclusion of acquittal. In fact, though the prosecution has led enough evidence in the form of eyewitness as well as oral testimony of several witnesses, the same have not been considered in its true perspective. It has been contended that though on the basis of material on record it is evidently clear that the brother of the complainant has been done away by the respondent accused on account of previous animosity, still by giving undue weightage to some of the aspects, which are not material, an order of acquittal is passed. Mr.Pujari, learned Additional Public Prosecutor has further contended that even if some of the prosecution witnesses have turned hostile, then other cogent material could not have been overlooked by the learned Fast Track Judge. Mr.Pujari, learned Additional Public Prosecutor has further contended that one of the eye witnesses has clearly established the role of each of the accused and though in crossexamination, which is reflecting on page:410 Page 5 of 31 R/CR.A/1658/2006 CAV JUDGMENT of paperbook compilation, the guilt is established of the respondent accused but erroneously the evidence has not been properly appreciated. Mr.Pujari, learned APP has further contended that even on the basis of the FSL report, there is a connectivity of incident in question to the respondent accused and though chain of circumstances is clearly indicating the role of the accused, with no cogent reasons an order of acquittal is passed, which is nothing but a clear example of nonapplication of mind. Mr.Pujari, learned APP has further submitted that by leading oral as well documentary evidence substantial case has been made out and, therefore, when the prosecution has proved the case beyond reasonable doubt, it is not open for the learned judge to ignore such material piece of evidence and on the contrary the learned judge has misconstrued the principle of responsibility of prosecution to establish the case. In fact, it is settled position of law that the prosecution has nodoubt to prove the case beyond reasonable doubt, but then it is not the principle that the prosecution has to prove the case beyond shadow of doubt and when substantial material is very much available on record connecting each link of crime with the respondent accused, there is no germane reason available in passing the order of acquittal.
2.5 Mr.Pujari, learned APP has further contended that even while coming to the conclusion of innocence of respondent accused, no cogent reasons are assigned, which clearly reflects nonapplication of mine on the part of the learned judge. Mr.Pujari, learned APP has further contended that the blood group 'O' matches with the clothes of original accused nos.2 and 4 as well as on the shirt of Page 6 of 31 R/CR.A/1658/2006 CAV JUDGMENT original accused no.1 and there is no cogent explanation given by respondents accused on this issue and, therefore, when that be so, it is not proper on the part of the learned judge to exercise jurisdiction, in such a manner, which would turn out to be the miscarriage of justice. Here is the case, as per the say of learned APP that, with immediate effect the complaint has been brought before the police, the names have been given specifically and though some of the witnesses have turned hostile but their cross examination is definitely assisting the prosecution and, therefore, to that extent of said hostile witness which supports the case of the prosecution such material piece of evidence could not have been overlooked. It has also been contended by Mr.Pujari, learned APP that if the sequence of events is to be taken note of then every circumstance is connecting the respondent - accused with commission of crime and, therefore, the discussion which has taken place in the judgment to grant the benefit of acquittal, the said discretion is of no avail to the respondents accused. It has been contended by Mr.Pujari, learned APP that one of the police constable - prosecution witness named Raghubhai Mavjibhai Koli (Exh.157) has categorically supported the case of the prosecution and this material witness could not have been misconstrued by learned judge. Mr.Pujari, learned APP has further contended that one material witness Dineshbhai Shantibhai (P.W.No.14, Exh.88), a Rickshawala, who is considered to be a relevant witness has turned hostile but then though the said Rickshawala is not supporting but one another witness viz. Kishorbhai Chhaganbhai (P.W.No.15, Exh.89) though turned hostile is giving rickshaw number as well. Mr.Pujari, learned APP has further submitted that one of the Page 7 of 31 R/CR.A/1658/2006 CAV JUDGMENT documentary evidence at Exh.408, Page:759 if to be looked into, the same is consisting that the deposition of the witnesses are strengthening the case of the prosecution. This aspect has also been lost sight by the learned judge. Even a very relevant confessional statement recorded under Section 164 of the Cr.P.C. reflecting on page:366 of paperbook compilation is also on the contrary supporting the case of prosecution to a substantial extent. Of course, on the basis of 164 statement, no conviction can be maintained but when such 164 statement is corroborating the material piece of evidence, the same can be taken note of and, therefore, according to Mr.Pujari, learned APP, conjoint reading of oral evidence and the documentary evidence would lead to one situation in which the order of acquittal cannot be said to be sound in law which requires interference.
2.6 Mr.Pujari, learned APP has contended that testimony of eye witness Raghubhai Mavjibhai and the FSL material are indicative of the fact that there is a sufficient evidence on record which establishes the case against the respondent. Mr.Pujari, learned APP has further contended that even in a further statement also no explanation is coming forth about innocence in Section 313 statement and this statement recorded under Section 313 is not merely an empty formality. In fact, it is an opportunity given to the accused in defense to show some element of innocence. A bare perusal of Section 313 statement of these respondents accused clearly indicates that in none of the statements incriminating material though pointed out no cogent explanation is offered and it is only mere piece of bare denial and therefore considering this Page 8 of 31 R/CR.A/1658/2006 CAV JUDGMENT entire material on record it appears that a serious error is committed by the learned judge in passing the order of acquittal. The material evidence completely appears to have been ignored and such erroneous exercise of jurisdiction is thoroughly uncalled for and hence learned APP has requested the Court to allow the Criminal Appeal by setting aside the impugned order. In fact, learned APP while submitting and raising aforesaid contention has referred to and relied upon some of the piece of evidence and ultimately requested the Court to set aside the impugned order. No other submissions have been made.
3. To meet with the stand taken by learned APP, Mr.Pratik Barot, learned advocate appearing for the respondents accused have vehemently contended that the prosecution has miserably failed to connect the respondent accused in commission of crime. On the contrary on account of some rivalry they have been wrongly roped into prosecution. In fact, the prosecution has miserably failed in discharging its primary obligation of establishing the case beyond reasonable doubt. There are enough circumstances available on record which establish that present respondents accused have been wrongly roped in.
3.1 While contending this, Mr.Barot, learned advocate has referred to some of the testimonies of prosecution witnesses and thereafter has contended that case is not proved against the respondents accused.
3.2 Mr.Barot, learned advocate has made an attempt to analyze the evidence and has contended that each evidence is analysed and Page 9 of 31 R/CR.A/1658/2006 CAV JUDGMENT raised a probability of innocence. The contention of Mr.Barot, learned advocate are, in brief manner, summarized as follow:
"1. PW6 ORIGINAL COMPLAINANT RAMESHBHAI PARBATBHAI PATEL AT EXH.48 IS NOT AN EYEWITNESS TO THE CASE.
Original complainant of the case in eye of brother of the deceased in his chiefexamination itself on page232 of the PaperBook comes up with a case that on 06.07.1991 while at about 1 to 1:30 AM in the midnight, he was sleeping at his house, one unknown person came to him and woke him up, in turn, informing him that his brother deceased was abducted by a set of six to seven persons in a rickshaw, pursuant to which original complainant rushes to a place called as Nilkanth Cinema.
Original complainant of the case who as such does not have any first hand knowledge of the incident, the fact that the information is passed on to him by one unknown person, unfortunately, such unknown person, neither his identity is revealed in the entire case nor he has come forward before the Court to depose under the lines of original complainant.
Original complainant in his evidence, over and above his chiefexamination, he himself in his crossexamination on page233 deposes that he was not present at the time of incident and he has no personal knowledge about the same visàvis who has abducted the brother of the original complainant whereas who has made him sit in a rickshaw he is not aware of.
2. EVIDENCE OF SOLITARY WITNESS RAGHUBHAI MAVJIBHAI KOLI AT EXH.157 IS NOT WORTHY OF CREDENCE.
SOLITARY WITNESS, A POLICE PERSONNEL IS NOT A STERLING QUALITY WITNESS.
A solitary witness in the case who happens to be an armed police constable serving at Police Head Quarters, Rajkot, is the closet prosecution witness available with the prosecution who could throw some light upon the inception and Page 10 of 31 R/CR.A/1658/2006 CAV JUDGMENT conclusion of the incident as alleged. Be that as it may, if the witness as per his chiefexamination on Page403 of the PaperBook comes up with a case that on 05.07.1991 somehow he was in the company of a set of accused persons in the case on hand, all of a sudden at the end of chief examination on Page405, on one hand by deposing that at around 7:00 PM in the evening of the incident after having accompanied the set of accused persons, he left for his house, on the other hand, he also comes up with a case that on the next day of the incident, two of the accused persons i.e. original accused Nos.1 and 2 had stayed at his house post incident, in a way he was instrumental in harbouring the accused persons.
The witness very candidly in his chiefexamination of Page 405 of the PaperBook asserts by deposing that he has seen the incident by his own naked eyes, he did give a 164 Code of Criminal Procedure, 1973 statement before Judicial Magistrate First Class Mr.C.M. Bhatt, as also he identifies all the accused persons before the Court below.
The Witness once his chiefexamination which started on 07.09.2005 and concluded on 16.09.2005, in his cross examination which began on 20.09.2005, he started resiling from his police statement one after the other as also tried to show a hostile approach to the prosecution case. He was declared so therefore a hostile witness by the prosecution on page 410, after having referred to detailed discussion on the point of how and in what manner a witness can be declared hostile, this conduct of firstly supporting the case of prosecution in toto and turning hostile thereafter, in the crossexamination makes this solitary witness a nonreliable witness not of a sterling quality more so when he is a police personnel and there was a greater responsibility attached to his version in facts and circumstances of the present case.
CONDUCT OF A SOLITARY WITNESS POST INCIDENT MAKES HIM A NONACCEPTABLE WITNESS.
The witness whose crossexamination at Page406 of the Paperbook had begun on 20.09.2005, on day one itself, he straightaway deposes by saying that the incident to which he witnesses on 05.07.1991, there was no immediate disclosure Page 11 of 31 R/CR.A/1658/2006 CAV JUDGMENT before the police agency by him, such a conduct, that too, of a police witness who to an extent supports the case of prosecution in his chiefexamination is not acceptable in a serious case like on hand more so when the witness being a police personnel is quite aware as to implications and consequences of late disclosure of the incident before the police agency.
The said witness further comes up with a case that over and above his late disclosure of the incident before the police agency, why his statement recorded after a period of 22 days of the incident, he has no answer to offer to such delay cause in giving his statement.
MODE AND MANNER IN WHICH STATEMENT OF SOLITARY WITNESS WAS RECORDED UNDER 164 CODE OF CRIMINAL PROCEDURE, 1973 The said witness who on page 407 of the PaperBook initially comes up with a case by saying that the time at which he gave his 164 statement, there was no police officer present at such place, he does in a way deposes in the event that whether he was accompanied by any police constable or not, he is at present not aware of as also what was the position of such police personnel at the time of recording, he is not aware of. The witness on the other hand on page 409 of the PaperBook on internal page 7, he absolutely takes a Uturn by deposing that he gave his 164 Code of Criminal Procedure, 1973 statement only because he was told to do so by the police agency, in fact, he has no personal knowledge of the entire incident. At the same time, 3rd occasion i.e. on Page 410 of the PaperBook the witness again comes back to his original version by deposing in affirmative that the statement recorded of his before the Magistrate under Section 164 Code of Criminal Procedure, 1973 dated 09.09.1991 was out of his voluntariness, such mode and manner in which 164 Code of Criminal Procedure, 1973 statement was recorded whether procedure under Section 281 Code of Criminal Procedure, 1973 was actually followed by the Magistrate concerned or not, there is no evidence coming forth at the same time, the witness on one hand supports his 164 Code of Criminal Procedure, 1973 statement at the same breath turning Uturn from such stand, it makes recording of Section 164 Code of Criminal Page 12 of 31 R/CR.A/1658/2006 CAV JUDGMENT Procedure, 1973 statement a highly disputed document as forming part of the record at Exh.408.
NO TEST IDENTIFICATION PARADE CARRIED OUT OF SOLITARY WITNESS The said witness who is a crucial witness of the case, on one hand, he in his chiefexamination on page 405 of the Paper Book identifies all the accused persons first time in the Court, on page 408 of the PaperBook in a crossexamination carried out on 07.01.2006, he answers very clearly in affirmative by deposing that barring original accused No.1, who had no acquaintance with the other accused persons of the case, he did depose in affirmative by saying that on account of dates in the case, he had an occasion to come to the Court and see the facts of the accused persons who sits in the Court room and that is how he has identified them before the Court, it is worth noting as supported from Page No.408 of the Paper Book where the witness answers in affirmative by deposing that till his police statement was recorded on 28.07.1991, there was no as such test identification carried out of the accused persons, so therefore, since there was no test identification carried out as such visàvis the witness as such having no previous acquaintance with the accused persons barring original accused No.1, a crucial piece of corroborative evidence in eye of test identification parade not carried out, it creates an important hole in the case of prosecution.
SOLITARY WITNESS MUST INSPIRE CONFIDENCE TO ARRIVE AT FINDINGS OF CONVICTION The said witness who initially in his chiefexamination comes up with a case that he had seen the incident, pursuant thereto in a crossexamination held on 09.01.2006 on page 408 of the PaperBook, he takes a diagonally opposite stand by depositing that he got to know about the incident by reading a newspaper on 05.07.1991 i.e. how he came to know about the incident having occurred visàvis he also answers in affirmative that he does not get any first hand knowledge about the incident. So therefore, if the witness at regular intervals is changing his stand over and above his quality of evidence the fact that he is a solitary prosecution witness of the case. As per catena of decisions of the Honourable Apex Court, he must inspire confidence of the Page 13 of 31 R/CR.A/1658/2006 CAV JUDGMENT Court to base findings of conviction.
3. PROSECUTION WITNESS NO.22 MOTHER OF THE DECEASED DIVALIBEN PARBATBHAI SOJITRA AT EXH.313 IS A HEARSAY WITNESS TO THE CASE.
A prosecution witness in eye of mother of the deceased she in her chiefexamination page 590 of the PaperBook comes up with a case that while she and her son (deceased) were present at their house, one unknown person came to call the deceased at around 12:00 in the night, she in the event deposes that her son being made to sit by original accused No.1 as also other coaccused persons of the case dragged the son of the witness and was compelled to make him sit in the rickshaw, such fact was told to her, which shows that the witness does not have first hand knowledge of the incident, she is a hearsay witness of the case as also under garb of Section 60 of the evidence act as well, the oral evidence of the witness is not direct.
The witness who comes with the story of she got to know about her son being dragged and made to sit in a rickshaw from other source, if such part of her chiefexamination is seen in reference to evidence of Investigating Officer on Page 691 of the PaperBook, it would go to show that the witness whatever she had stated in her chiefexamination, she has never stated so in her police statement before the Investigating Agency inasmuch as the same is in a form of material contradiction and improvement to that effect which again cannot be a basis to connect the accused persons with the crime on hand.
4. OUT OF IN ALL 37 PROSECUTION WITNESSES IN THE CASE, 24 OF THEM HAVE TURNED HOSTILE.
The case on hand there are in all 37 prosecution witnesses were examined including crucial witness like the complainant who is the brother of the deceased at Exh.48, Doctor who conducted Postmortem at Exh.65, a solitary evidence who is a police constable at Exh.157, mother of the deceased at Exh.313, persons who had an occasion to see the deceased in company of accused persons as also an Investigating Officer of the case, barring such witnesses about a lot of 24 witness have been declared hostile by the prosecution including a Page 14 of 31 R/CR.A/1658/2006 CAV JUDGMENT crucial panch witnesses to various panchnamas which otherwise also is fatal to the case of prosecution more particularly when a solitary witness at Exh.157 is declared hostile as well.
5. SECTION 164 CODE OF CRIMINAL PROCEDURE, 1973 STATEMENT CANNOT BE A BASIS BY ITSELF TO CONVICT AN ACCUSED.
The mode and manner in which 164 Code of Criminal Procedure, 1973 statement is recorded in the case on hand, voluntariness of the accused and procedure thereof under Section 281 Code of Criminal Procedure, 1973, in absence of magistrate being examined as a prosecution witness on the other hand, defence did not had any opportunity to cross examine the Magistrate, Section 164 statement recorded of prosecution witness No.19 on page 759 of the PaperBook is hardly a significant piece of evidence to be relied upon by the prosecution. On the other hand, even if Section 164 Code of Criminal Procedure, 1973 statement is taken into consideration, by itself as per catena of decisions of the Honourable Apex Court, cannot be a basis of conviction of the accused persons or rather not a strong enough circumstance against the accused persons.
6. NO SUBSTANTIVE PIECE OF EVIDENCE - DIRECT OR INDIRECT AVAILABLE ON RECORD OF THE CASE TO ARRIVE AT FINDINGS OF CONVICTION AGAINST THE ACCUSED PERSONS.
If the case of prosecution is examined in its entirety so also assessing the evidence of individual witnesses from the perspective of facts and issues of law, unfortunately there is not a single substantive piece of evidence available with the prosecution which have proved good for the Honourable Court to base findings of conviction upon such substantive piece of evidence. Be that as it may, if the substantive piece of evidence by itself does not exist, there was no question for the Court below to refer to corroborative pieces of circumstances against the accused persons which could have lend support to a substantive piece of evidence.
7. LAW ON HOSTILE WITNESS VISÀVIS QUALITY OF EVIDENCE AVAILABLE IN THE CASE ON HAND.Page 15 of 31 R/CR.A/1658/2006 CAV JUDGMENT
As far as a crucial witness i.e. prosecution No.19 at Exh.157 having been declared hostile by the prosecution on page 410 of the PaperBook, the law on witness declared as hostile is by far a settled law now that a portion of chiefexamination of a witness which supports the case of prosecution as also a defence can be taken into consideration so as to come arrive at a finding of conviction as also the entire evidence of a hostile witness is not washed off for that matter if only two eventualities firstly the witness should remain unshaken in his chiefexamination and secondly, chiefexamination of a witness should get duly corroboration by other reliable evidence on record. Be that as it may, there is no dispute to such proposition of law but chiefexamination of the witness on hand cannot be even if it is inspiring confidence cannot be a sole basis to arrive at a findings of conviction in absence of any substantive piece of evidence or the same getting duly corroborated by other reliable piece of evidence and hence, present is a case where there is as such no a strong proved substantive piece of evidence available on record to bring home the charge against the accused persons and so therefore they are rightly acquitted taking a possible view which was favouring the accused persons at the time of trial as also the Court below had an occasion to witness the see the demeanor of the witness once he was there available in the witness box."
3.3 After analysing the material in aforesaid manner, learned advocate Mr.Barot has relied upon some of the propositions of law laid down by Hon'ble Apex Court as well as by this Court and has referred to following decisions on each of the issue in which a contention is raised. A brief summary of said decisions is as follow:
− (2017 (3) SCC 247) - the evidence of a hostile witness can be accepted to the extent their version is found to be defendable visavis court shall examine more cautiously to find out as to what extent he has supported the case of prosecution. (Paras:15 and 16) Page 16 of 31 R/CR.A/1658/2006 CAV JUDGMENT − AIR 2016 S 3498 - chief examination of a hostile witness should remain unshaken even after crossexamination (Para:19) − 2015 (2) SCC 662 - evidence of a hostile witness in examination in chief supporting the prosecution case can be accepted if it is corroborated from other evidence on record. (Para:19) − 2014 (13) SCC 90 - evidence of a hostile witness, relevant parts thereof which are admissible in law can be used by prosecution or defence. (Paras:20 to 22) − 2016 (10) SCC 506 - evidence of a hostile witness is admissible inasmuch as dependable part thereof is found acceptable and duly corroborated by other reliable evidence available on record. (Para:32) − 2011 (2) SCC 490 - compliance with procedure of recording of Section 164 statement principles stated - (Para:64) − 2005 (3) GLH 769 - a little compulsion, duress or inducement in recording of Section 164 Code of Criminal Procedure, 1973 statement it would render it completely inadmissible as also it cannot be a basis for conviction.
− 2013 (14) SCC 266 - whether Section 164 Code of Criminal Procedure, 1973 statements can be regarded as substantive Page 17 of 31 R/CR.A/1658/2006 CAV JUDGMENT evidence, the same is discussed. (Paras:26 to 29) − 2015 (9) SCC 44 - Evidence of sole witness needs to be considered with caution and after testing it against other material whereas such evidence must inspire confidence and ought to be beyond suspicion - (Paras: 10 to 14) − 2017 Cri.L.J. 169 - Mere fact that another view could also have been taken in evidence is also not a ground for reversal of acquittal whereas view favourable to the accused is adopted when two views are possible. (Paras:10 and 11) 3.4 By referring to aforesaid analysis of evidence on record and the caselaw which has been pressed into service, an ultimate request is made to see that order of acquittal passed by the learned Fast Track Judge be maintained and the criminal appeal filed by the State is devoid of merits. Hence, requested to confirm the order of acquittal.
4. Having heard learned advocates appearing for the parties and having gone through the material on record and upon analysis in detail, it, prima facie, appears that some of the following circumstances are emerging favourable in support of respondents accused rather than prosecution, hence, in brief, summarized as under:
4.1 It appears that the prosecution case is residing upon the main evidence of Raghubhai Mavjibhai whose testimony is reflecting at page:403 at Exh.157. The overall reading of this testimony is prima Page 18 of 31 R/CR.A/1658/2006 CAV JUDGMENT facie giving an impression as if he is an eyewitness but the entire chronology of the Examinationinchief and crossexamination is raising a serious doubt about his quality of evidence which has direct nexus with the credibility of witness. This witness was serving as police officer at a relevant point of time who happened to be an armed police constable who appears to have come out with the case that on 05.07.1991 somehow he was in the company of respondents - accused and all of a sudden, as indicating on page:405, at the end of his Chief examination has given a version which hardly found to be reliable. On one hand, this witness is deposing that at around 07:00 p.m. in the evening of the incident after having accompanied with the respondent he left for his house whereas on the other hand he has also come out with the case that on next date of incident, two accused persons i.e. original accused nos.1 and 2 have stayed at his house immediate after the incident in question and as such this testimony on the contrary reflecting that he was harboring the respondents accused and to the surprise his such act of deposition is not taken serious note of.
4.2 This prosecution witness has further candidly submitted in his chiefexamination that he has seen the incident with his own eyes and he did give a statement before Judicial Magistrate First Class under Section 164 of Cr.P.C. and simultaneously has also identified the accused persons before the Court. Now his Chiefexamination has commenced on 07.09.2005 which was concluded on 16.09.2005 whereas his crossexamination began on 20.09.2005 in which he has started resiting from his police statement one after another and also made a serious attempt to show hostilities to the Page 19 of 31 R/CR.A/1658/2006 CAV JUDGMENT case of prosecution. This conduct firstly supporting the case of the prosecution in absolute term and later on turning to be hostile in cross examination making out a complete doubt about the case of the prosecution. Such conduct being a police officer reflects that he is not a credible witness. On the contrary, he being a person in a police force if could have seen the incident, the incident of going to his house back is harbouring an offence and, therefore, this material piece of evidence on which substantially the case of the prosecution rests, is found to be shakening.
4.3 This material witness has further projected himself which would lead to a conclusion that his evidence is not possible to be accepted as prosecution witness. This witness, nodoubt, has shakened the confidence of being credible, his further conduct of late disclosure of incident before the police agency is also raising a serious doubt as to why his statement has been recorded after almost a period of 22 days and there is no explanation available with him to offer for such a gross delay. Even this solitary witness whose statement is recorded under Section 164 of Cr.P.C. is revealing that he originally comes up with a case that time on which he gave his statement under Section 164 of Cr.P.C., there was no officer present at such place and has further reflected that he is not aware about the fact that whether he was accompanied by police constable or not and this witness, on the other hand, at page 409 of the paperbook, on internal page:7, takes a complete summer salt by deposing that he gave his statement under Section 164 of Cr.P.C. only because he was told to do so by police agency. In fact, he had no personal knowledge about the entire incident.
Page 20 of 31 R/CR.A/1658/2006 CAV JUDGMENTSimultaneously, on third occasion i.e. on page:410 of the paper book, this witness again comes out with a story reflecting back to his original version by deposing in affirmative that the statement recorded of him before the Magistrate under Section 164 of Cr.P.C. on 09.09.1991 was out of his voluntariness and such recording of statement was actually followed by procedure under Section 281 of Cr.P.C. is silent on this issue. So this witness on one hand supports his 164 under Section 164 of Cr.P.C. statement at the same time taking totally a divergent view in later part. Hence, the credibility of this witness is seriously at stake.
4.4 Apart from this, the witness, who is material witness, is not inspiring any confidence and no heavy reliance could have been placed by the learned judge. This overall analysis of his testimony sounds no confidence which cal lean the support to the prosecution case. Even the Test Identification Parade is also carried out of this witness and, therefore, there is hardly any corroborative material which can suggests the credibility of this testimony. As a result of this, it appears that no case is made out on such a strong footing relying upon this witness.
4.5 Yet another witness which has been relied upon by prosecution is Witness No.22 mother of deceased Diwaliben Parbatbhai Sojitra, at Exh.313. This witness appears to be a hearsay witness and her Chief Examination reflects on page:590 of paper book is a piece of evidence which is not sounding any confidence. The manner and method in which narration of incident is given by this witness is landing no support. A perusal of Section 60 of Page 21 of 31 R/CR.A/1658/2006 CAV JUDGMENT Evidence Act would suggest that this hearsay witness can not have any direct bearing. The testimony of this witness indicates that she comes out with the story that she got to know about her son being dragged and made to sit in an autorickshaw from other sources. If such part of her Chief Exmaination is seen in reference to evidence of Investigating Officer on page:691 of paperbook, it reflects that whatever is deposed by her in Chief Examination was never forming part of her police statement and there is no connecting link established by the prosecution with the aid of this witness.
4.6 From further reading of entire material, it appears that out of total 37 prosecution witnesses, as many as 24 witnesses have turned hostile and the main witness whose credibility is seriously in question even the version of brother of deceased at Exh.48 and the testimony of Medical Officer who conducted postmortem examined at Exh.65 and the Investigating Officer, would also suggest that case of the prosecution is not strengthened by these witnesses in any form. On the contrary, effect is fatal and as such it is not possible to come to a definite conclusion about the guilt of respondent - accused. It is reflecting that a main witness, whose testimony is not found to be credential, at the same time, in view of settled position of law, heavy reliance upon Section 164 statement for convicting a person is not permissible and, therefore, conjoint reading of testimony of this material witness referred to above and in correlation to Section 164 statement would indicate that prosecution has been not able to establish the case beyond reasonable doubt and, therefore to convict the persons on the basis of this material would not be safe.
Page 22 of 31 R/CR.A/1658/2006 CAV JUDGMENT4.7 The Court also found that nodoubt there is a proposition that testimony of the hostile witness cannot be thrown outright but it certainly to be looked into whether any part of the cross examination is supporting the case of the prosecution and to what extent and in addition to this the quality of such evidence is also wroth to be taken note of. Hence, when such kind of witness have chosen not to support the case of the prosecution in absence of any cogent connecting material it is not possible for the Court to accept the contention that prosecution has proved case beyond reasonable doubt.
4.8 Now coming back to the conclusion which has been arrived at by the Court below the said conclusions are not reflecting such perversity which can even suggest that order of acquittal is thoroughly impossible. On the contrary, while accepting this evidence on record the settled proposition of law on some of the issues deserve some consideration. In a recent decision delivered by the Apex Court in the case of Arjun and another vs. State of Chhattisgarh reported in (2017) 3 SCC 247, the evidence of hostile witness can be accepted to the extent that their version is found to be dependable, visavis the Court shall have to examine with more caution to find out whether he was supporting the case of prosecution and then to what extent. The relevant observations contained in paras:15 and 16 are worth to be taken note of hence, reproduced hereinafter.
"15. Though the eye witnesses PWs 1, 2, 7 and 8 were treated as hostile by the prosecution, their testimony insofar as the place of Page 23 of 31 R/CR.A/1658/2006 CAV JUDGMENT occurrence and presence of accused in the place of the incident and their questioning as to the cutting of the trees and two accused surrounding the deceased with weapons is not disputed. The trial court as well as the High Court rightly relied upon the evidence of PWs 1, 2, 7 and 8 to the above said extent of corroborating the evidence of PW6 Shivprasad. Merely because the witnesses have turned hostile in part their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be dependable and the court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution.
16. In Paramjeet Singh alias Pamma vs. State of Uttarakhand (2010) 10 SCC 439, it was held as under: "16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness;
normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani (2003) 7 SCC 291.)
17.This Court while deciding the issue in Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 observed as under: (SCC p. 457, para 7) "7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."
18. In Mahesh v. State of Maharashtra (2008) 13 SCC 271, this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) "49. ... If PW 1 the maker of the complaint has chosen not Page 24 of 31 R/CR.A/1658/2006 CAV JUDGMENT to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution."
19. In Rajendra v. State of U.P. (2009) 13 SCC 480, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka (2010) 6 SCC 533 observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.
20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
The same view is reiterated in Mrinal Das and Ors. vs. State of Tripura (2011) 9 SCC 479 in para (67) and also in Khachar Dipu alias Dilipbhai Nakubhai vs. State of Gujarat (2013) 4 SCC 322 in para (17)."
4.9 Yet another decision which is worth consideration and reliance is that evidence of hostile witness can be accepted if it is corroborated by other cogent evidence on record which is not feasible on the case on hand. The said decision in the case of Selvaraj @ Chinnapaiyan vs. State represented by Inspector of Police reported in (2015) 2 SCC 662, para:19 since relevant quoted herein after.
Page 25 of 31 R/CR.A/1658/2006 CAV JUDGMENT"19. It is settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that the witnesses have turned hostile in their crossexamination, the testimony in examinationinchief cannot be outright discarded provided the same (statement in examinationinchief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the crossexamination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examinationinchief. However, such evidence is required to be examined with great caution."
4.10 Simultaneously, on the issue of Section 164 of Cr.P.C. statement, nodoubt it can be regarded as a substantive evidence but acceptability of the same is depending upon on its own background of fact. The compliance of procedure of recording statement under Section 164 of Cr.P.C. is strictly to be observed and the principle about it is propounded by the Apex Court in a decision in case of Rabindra Kumar Pal @ Dara Singh vs. Republic of India reported in (2011) 2 SCC 490. The relevant observations contained in para:64 since relevant is reproduced herein after.
"64. The following principles emerge with regard to Section 164 Cr.P.C.: Page 26 of 31 R/CR.A/1658/2006 CAV JUDGMENT
(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Noncompliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a coaccused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement."
4.11 Yet another decision on this issue of Section 164 is that little compulsion, duress or inducement would render it completely inadmissibe as it cannot be relied upon as a whole base for conviction. The observations made by this Court in para:24.2 of Page 27 of 31 R/CR.A/1658/2006 CAV JUDGMENT said decision referred to in 2005 (3) GLH 769 since relevant quoted hereinafter.
"24.2 Thus, the Court cannot solely rely on the confession and make it a foundation for convicting the accused. Therefore before placing reliance on the confession, the prosecution is required to establish other circumstances involving the accused in the crime; only thereafter, it can bank upon the confession. If this is the position of law, in our opinion, a defect in recording of the confession has little scope to adversely affect the other part of the evidence led by the prosecution."
4.12 The entire prosecution case is encircled around to a substantial extent of evidence of witness Raghu at Exh.157. It appears that the learned trial judge rightly has not placed much reliance despite insistence by prosecution. A well propounded proposition on the issue of sole witness indicates that evidence of such witness needs to be considered with caution and after testing it against other material whereas such evidence also inspire confidence and ought to be beyond suspicion. The relevant observations contained in para:12 of a decision reported in (2015) 9 SCC 44 are reproduced herein after.
"12. The last seen theory in the present case having dimensions in terms of time as well place, would certainly clinch the matter if the testimony of PW2 Mewa Ram is accepted. Everything hinges on his testimony. He is the sole witness. It was stated by this Court in Joseph v. State of Kerala, (2003) 1 SCC 465 that where there is a sole witness his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record.
Further, in State of Haryana v. Inder Singh, (2002) 9 SCC 537 it was laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. Noticing these two Judgments Page 28 of 31 R/CR.A/1658/2006 CAV JUDGMENT this Court in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 summed up the principles as under:
"The principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an accused cannot be based upon the statement of the sole eyewitness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the accused in committing such a crime."
The evidence of the sole witness thus needs to be considered with caution and after testing it against other material and further, such evidence must inspire confidence and ought to be beyond suspicion."
4.13 So far as the main issue is concerned, that scope of acquittal appeal is well defined by now by series of decisions and the same is not to be repeated time and again, however, one of the recent decision in case of Harbeer Singh vs. Sheeshpal reported in (2017) Cri.L.J. 169, it is laid down that mere fact that another view could also have been possible that cannot be a ground to reverse the acquittal. The powers of High Court are wide enough to turtle the acquittal order, however, some parameters are well defined by series of decisions in which this Court is of the considered opinion that State has not made out any case which would permit this Court to exercise such wide powers. Neither any material irregularity is pointed out nor any perversity is reflecting on the contrary it is reflecting that there is an application of mind on the part of learned judge as the entire material on record has been dealt with specifically and the principle of appreciation of Page 29 of 31 R/CR.A/1658/2006 CAV JUDGMENT evidence appears to have been rightly undertaken by the Court below and therefore when such eventuality is reflecting sitting in a jurisdiction dealing with an order of acquittal Court is of the opinion not to interfere with such exercise. The relevant observations of the aforesaid decision in paras:10 and 11 (Cri.L.J.) are reproduced herein after.
"10. The above principle has been reiterated by this Court in a number of judicial decisions and the position of law that emerges from a comprehensive survey of these cases is that in an appeal under Article 136 of the Constitution of India, this Court will not interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or mainfestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record is not a ground for reversing an order of acquittal. [See State of U.P. vs. Harihar Bux Singh & Anr. 1975 3 scc 167; State of Uttar Pradesh Vs. Ashok Kumar & Anr. 1979 3 SCC 1; State of U.P. Vs Gopi & Ors. 1980 Suppl SCC 160, State of Karnataka vs. Amajappa & Ors. 2003 9 SCC 468; State of Uttar Pradesh Vs. Banne @ Baijnath & Ors., 2009 4 SCC 271; State of U.P. Vs. Gurucharan & Ors. 2010 3 SCC 721; State of Haryana Vs. Shakuntla & Ors., 2012 5 SCC 171 and Hamza Vs. Muhammadkutty @ Mani & Ors., 2013 11 SCC 150].
11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram vs. State of Himachal Pradesh, 1973 2 SCC 808; State of Rajasthan Vs. Page 30 of 31 R/CR.A/1658/2006 CAV JUDGMENT Raja Ram, 2003 8 SCC 180, Chandrappa & Ors. vs. State of Karnataka 2007 4 SCC 415; Upendra Pradhan vs. State of Orissa, 2015 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr. 2015 11 SCC 242.]"
5. Considering the aforesaid set of circumstance and in view of the conjoint reading of the conclusion arrived at in corelation with the evidence on record, this Court is of the considered opinion that no case is made out by the prosecution to establish a definite guilt of the respondent. Hence, this being appeal against the order of acquittal, Court deems it proper not to interfere with and while confirming the order of acquittal, the appeal filed by the State is dismissed hereby.
6. Thus, for the reasons stated above, the appeal filed by the State is dismissed. The judgment and order of acquittal passed by the learned Fast Track Court No.9, Rajkot in Sessions Case No.44 of 1992 dated 15.04.2006 stands confirmed. R&P be sent back to trial Court concerned forthwith.
(S.R.BRAHMBHATT, J) (A.J. SHASTRI, J) MISHRA AMIT V. Page 31 of 31