Gujarat High Court
Harshad @ Hasmukh Bhanabhai vs State Of Gujarat on 21 November, 1998
Equivalent citations: (1999)2GLR182
Author: A.M. Kapadia
Bench: A.M. Kapadia
JUDGMENT J.N. Bhatt, J.
1. Both these appeals arise out of common judgment and order recorded by the learned Additional Sessions Judge, Rajkot, in, Sessions Case, No. 143/89 passed, on 24.4.92, and raise the question as to whether the culpability of the appellant-original accused No. 1, Harshad @ Hasmukh Bhana, held to be proved under section 302 of the Indian Penal Code (IPC) and acquittal of original accused No. 2, respondent No. 1 in Acquittal Appeal No. 773/92, Kishore Uyo Bhana, from the charge of murder of one young deceased, Anil Gora Makwana, in an incident, which occurred on 5.10.89, in the evening about 6.00 to 6.30 p.m., and therefore, they are being dealt with, simultaneously, by this common judgment.
2. Criminal Appeal No. 388/92 is filed by original accused No. 1 (A-1) whereas, Criminal Appeal No. 773/92 is filed by the State questioning only the acquittal of respondent-original accused No. 2, Kishore @ Uyo (A-2) and acquiesced in case of original accused Nos. 3 & 4. Therefore, out of the four accused persons, only two, A-1 and A-2 are, before us, in these two appeals and, whereas, the State has chosen not to question the acquittal of original accused No. 3, Tulsi Bhana and original accused No. 4, Kalu Kala. Initially, there were four accused persons out of which original accused No. 1 has questioned his conviction by filing Criminal Appeal No. 388/92, whereas, original accused No. 2's acquittal has been questioned by the State in Criminal Appeal No. 773/92.
3. Obviously, a skeleton spectrum of relevant and material facts, leading to the rise of this group of two appeals need narration, at this stage.
4. On 5.10.89, in the evening at about 4.00, deceased Anil Gora, went to the residence of his, father-in-law, situated, near Mafatiapara, in Ambedkar Nagar, in the city of Rajkot, in a rickshaw to see his minor daughter who was with his wife, who was, on account of strained matrimony was sheltering, at her father's place. After seeing his daughter and sitting for a while in the house, the deceased started going back his home around 6.30 to 7.00 p.m. in the said rickshaw. He was driving rickshaw No. GRP-289.
5. When his rickshaw reached near Survoday Society, A-1, Harshad @ Hasmukh Bhana and A-2, Kishore @ Uyo, who are real brothers, came in a rickshaw, from the opposite direction. They attacked on the running rickshaw of the deceased. A-2, who was armed with an axe, attacked the frontal of the rickshaw with the help of axe he held, as a result of which, deceased stopped the rickshaw and no sooner the rickshaw came to be stopped, then, accused No. 1, Harshad @ Hasmukh Bhana, who was armed with knife inflicted blow on the right side portion below, arm-pit and also on the abdomen. Accused No. 2, Uyo, who had held axe also attempted to blow on the person of the deceased with the help of axe which was saved and warded off by the deceased by raising his left hand, as a result of which he sustained injury on his left hand. There were two other persons, at the time of attack, who held the hair of the deceased. Original accused No. 3, Tulsi Bhana, is also the brother of A-1 and A-2. Original accused No. 3, Tulsi Bhana, and original accused No. 4, Kalu Kala, came after the rickshaw came and they had also contributed in and abetted the common intention to kill deceased, Anil Gora. Thus, the deceased had sustained injuries due to infliction of knife and axe blows.
6. The prosecution has also ascribed, deep-seated, motive for commission of the culpability by the accused persons. In that, it has been alleged that the wife of the deceased, PW 5, Geeta and the accused No. 1, Harshad had affairs and illicit relationship, as a result of which, in the month of April 1989, the deceased attempted to punish, A-1, Harshad, by inflicting knife blows. Thus, the motive for the commission of the crime in question, is alleged to be the illicit relationship between, PW 5 Geeta, and A-1 Harshad.
7. The deceased who had sustained serious injuries was taken to the Civil Hospital, at Rajkot, by one Bhikha Khoda in a rickshaw, where, he was admitted in the emergency ward for medical treatment. After seeing the seriousness of the injuries and the medico-legal case, the doctor who examined him, immediately, communicated to the duty police constable of, the Police Chowky, situated in the hospital premises, itself. On being summoned, the police constable, on duty, reached to the hospital before whom, upon inquiry, the deceased made an oral dying declaration. PW 15, Govind Moti, was the Head Constable before whom the deceased made an oral dying declaration about the incident which came to be reduced to writing in the hospital police chowky register, as a cognizable offence entry, which came to be communicated to the Head Constable, in charge of City 'B' Division Police Station, who is PW 16, and thereafter PW 17, C.V.Sonara, Police Inspector started investigation. Upon completion of the investigation, accused persons came to be chargesheeted for having committed offences under section 302 and 324 read with section 34 and in the alternative read with section 114 of IPC over and above under section 135 of the Bombay Police Act in the Curt of Chief Judicial Magistrate, Rajkot who remitted and committed the matter to the Sessions Court, at Rajkot, for trial in Sessions Case No. 143/89 arising out of C.R.No. 280/29. Four accused persons were charged by the Sessions Court on 3rd February, 1990 for offences under section 302 read with section 34 or under section 302 read with section 114, 427, 324 of IPC and section 135 of the Bombay Police Act to which accused persons denied and claimed to be tried. In order to fortify and substantiate the charges against the persons, the prosecution placed reliance on the following 17 prosecution witnesses.
1. Khimjibhai Govindbhai Ujariya, PW 1.
2. Dr.Yogeshkumar Mehta, PW 2.
3. Dr. Nikhilkumar Buch, PW 3.
4. Vinubhai Gorabhai, PW 4.
5. Geeta, wife of the deceased, PW 5.
6. Jivanbhai Mangalbhai, PW 6.
7. Dineshbhai Bhanjibhai, PW 7.
8. Bhanuben, eye witness, PW 8.
9. Ajay Premshankar Dave, PW 9.
10. Rameshgiri Bhavangiri Goswami, PW 10.
11. Lalji Mavji, PW 11.
12. Dawood Haji, PW 12.
13. Amarben Nathabhai, PW 13.
14. Gangaben Muljibhai, PW 14.
15. Govind Moti, PW 15.
16. Omkarnath Shukla, PW 16.
17. C.V.Sonara, PW 17.
8. The prosecution has also placed reliance on documentary evidence to which reference will be made by us at an appropriate stage, as and when, required. The defence of the accused persons is of total denial. No evidence was led by the defence, but the defence placed reliance on the documentary evidence in the form of previous complaint lodged by them against the deceased asserting that there was an animosity.
9. Upon assessment of the evaluation of the testimonial collection and the documentary evidence relied on by the prosecution, the Trial Court found that the original accused No. 1, Harshad @ Hasmukh Bhana, is guilty for the offence punishable under section 302 of the IPC and sentenced him to undergo minimum sentence of imprisonment for life for the murder of deceased, Anil Gora, and acquitted original accused No. 2, Kishore @ Uyo, original accused No. 3, Tulsi Bhana and original accused No. 4 Kalu @ Kala giving them benefit of doubt. Consequently, the convicted original accused No. 1 has challenged the impugned judgment and order by filing Criminal Appeal No. 388/92, whereas, the State has filed acquittal appeal only against original accused No. 2, Kishore @ Uyo and it is Criminal Appeal No. 773/92. Thus, no acquittal appeal is filed against A-3 and A-4.
10. Learned advocate Mr Shah appearing for the accused in both the appeals has, vehemently, raised following contentions before us:
1 That the prosecution has not been able to prove that A-1, Hasmukh was ever known by his alias name Harshad and, therefore, the identity of accused No. 1 has not been established.
2. Likewise, A-2, Kishore is not proved to be known as Uyo and, therefore, identity of accused No. 2 is also questioned.
3. That the evidence of eye-witness, PW 8, Bhanuben, is got up and cannot be relied on.
4. Oral dying declaration which came to be transformed into an entry in the register of the Police Chowky of Civil Hospital and transmitted to the City 'B' Division Police Station and produced, at Ex. 59, is not only unreliable, but appeared to be manipulated.
5. The dying declaration recorded by the Executive Magistrate as well as by the oral dying declaration transformed into entry Ex. 59 have not been shown to be voluntary truthful version of the deceased in a fit mental state and more so in the event of non-examination of the doctor who initially examined the deceased.
6. That the seizure of muddamal weapon knife produced, at article No. 11/1, is not proved to have been discovered by the accused as required under section 27 of the Evidence Act, and therefore, it is not a discovery but at the best a recovery which has no material evidentiary value.
7. That the evidence of prosecution witness, Executive Magistrate who recorded the dying declaration is not acceptable.
11. In short, Mr Shah has supported the judgment in so far as the acquittal of original accused No. 2, Kishore @ Uyo, is concerned, but has, seriously, opposed the conviction of A-1, Harshad @ Hasmukh Bhana. He has also placed reliance on the several case law.
12. The learned Additional Public Prosecutor has supported the conviction of A-1 and has, strongly, opposed the acquittal in the impugned judgment. He has also controverted the submissions raised by learned advocate Mr. Shah. He has also placed reliance on case law. The case law relied on by the sides will be examined and appreciated by us, as and, when required at a later stage, in course of our judgement.
13. Since the conviction of A-1 and acquittal of A-2 arise out of the common impugned judgment and relate to the same set of facts and evidence, obviously, therefore, with a view to avoid repetition of evidence, we propose to discuss the entire evidence 'pari-passu'.
14. Before we embark upon the evaluation of the testimonial collection and the documentary evidence, let us first have, at this juncture, the highlights of the aspects of this group of two appeals which have remained incontrovertible.
1. Deceased Anil Gora, A-1, A-2 and A-3 were working as drivers of rickshaw and also A-1 and A-2 were also running vehicle repair works, having their workshop.
2. Wife of deceased Anil, PW 5, Geeta, was at her parental home with a child long before the incident in question on account of strained matrimonial relationship.
3. That deceased Anil had gone to meet his minor daughter in the evening at about 4.00 p.m. on the day of incident in his rickshaw and the incident occurred on his return to home between 6.30 and 7.00 p.m. in the day light around dust.
4. Animosity between the deceased on one hand and accused on the other is not disputed. Because of strained relationship, there were two criminal cases registered with C.R.No. 16/89 and 49/89 by the Police against the deceased upon complaint of the accused.
5. That the main incident was preceded by an incident of stabbing to A-1 by the deceased, the complaint, whereof, was lodged and it was pending at the time of incident.
6. The stabbing by the deceased to the accused No. 1 was on account of the intimate extra marital relationship between PW 5, Geeta, wife of the deceased and A-1.
7. That A-1, A-2 and A-3 are the real brothers and A-1, Harshad @ Hasmukh Bhana and A-2, Kishore Uyo were staying jointly in a house, situated in the locality and the area which is the venue of offence.
8. That deceased Anil had sustained three grievous injuries on the vital part of his anatomy which were possible by sharp cutting instrument like knife, and four other injuries which were possible by the blunt portion of the axe.
9. That, rickshaw No. GRP-495, in which the accused party went to the venue of offence and intercepted deceased who was also coming driving his rickshaw, bearing GRP-289. The rickshaw used by the accused persons in commission of the offence was given to the accused party for repairs by its original owner PW 11, Lalji Mavji, at Ex. 53.
10. That the said rickshaw was smashed and partly damaged which was seized by the Police in course of the investigation along with the rickshaw used by the deceased.
11. That the unfortunate conduct of PW 5, Geeta, wife of deceased Anil, who of course, turned hostile to the prosecution case, has been spelt out compatible to the allegation of the prosecution.
12. That A-1 had sustained injuries who was examined and treated by Dr.Nikhil Buch, at Ex. 19.
13. That A-1 had sustained injury on his left hand which was possible by sharp cutting instrument as per the evidence of Dr.Buch. The medical certificate in respect of the injuries sustained by him is produced, at Ex. 22.
14. Ex. 21 is the case paper, wherein, nature of injury and treatment is mentioned.
15. We have noticed from the medical papers that the name of A-1 is, consistently, mentioned and referred as Harshad @ Hasmukh Bhana, which is, of course, disputed by the defence before us in course of the submissions.
16. That A-1 and A-2 came to be arrested on the same day and their clothes were found stained with human blood 'A' group which was also the group of the deceased.
17. That A-1 discovered the muddamal knife which also contained human blood marks on the blade portion whereas the muddamal article axe was recovered at the time of making panchnama of scene of offence.
18. That PW 8, Bhanuben, niece of deceased Anil is an eye witness who has, fully, supported the prosecution case.
19. That PW 15, Govind Moti, at Ex. 58 had made an entry of narration of the incident given by deceased Anil when he was undergoing treatment in the emergency ward as he was in-charge of the hospital police chowky, at the relevant time.
15. First in point of time, the dying declaration made by the deceased was before the duty police constable who after reducing it in writing in the relevant register as an entry which is, at Ex. 59, communicated to Head Constable, PW 16, O.R.Shukla of City 'B' Division Police Station upon which PW 17, Police Inspector, C.V.Sonara, had commenced investigation and upon completion of the same, chargesheeted all the four accused persons for having committed offence punishable under section 302, 324 read with 34 and in the alternative with section 114 of the IPC and also under section 135 of the Bombay Police Act.
16. PW 1 who is examined, at Ex. 12, had recorded the written dying declaration upon being summoned by the Police in the emergency ward in the City Civil Hospital, Rajkot, on 5.10.89, at about 9.20 p.m. After contacting the Medical Officer, he was informed that the patient was conscious and he was, therefore, able to record his statement. He himself also verified from the injured and found him in conscious state of mind and thereafter started recording the dying declaration which is produced at Ex. 14. It is in question-answer form and the deceased had put his thumb mark impression as he was undergoing medical treatment with intravenous medical management with a prick of a needle in his hand. It was commenced at 9.50 p.m. and was concluded at 10.00 p.m. It bears the endorsement of the Medical Officer. The yadi, also, bears the endorsement of the Medical Officer that the patient was conscious. In his written dying declaration at Ex. 14, the deceased has, manifestly, narrated the name of A-1, Harshad @ Hasmukh and thereafter on being questioned further has stated about one person known as 'Uyo'. According to the prosecution case, A-2, Kishore's alias name is Uyo. It may also be mentioned that the deceased did state that he was attacked by Harshad and three other persons and, thereafter, on being, pointedly, questioned mentioned the name of A-2, but has not given the name of A-3 and A-4 and we are not concerned about these aspects, since no acquittal appeal has been preferred against their acquittal.
17. PW 2, Dr.Y.D.Mehta, is examined, at Ex. 15, who conducted the autopsy in the morning at 8.30 a.m., on 6.9.89, at Rajkot Civil Hospital. Post mortem report is produced at Ex. 17.
18. In view of the medical evidence on record, deceased Anil Gora had sustained following injuries:
"1. One stab wound present over the (Rt.) hypochondrine region 1 1/2" in length and oblique in direction starting from 5 an below the costal margin and 7 an away from the wound. It is viscera deep.
2. Stab wound over the medial wall of (Rt) Axilla. 1" in length transverse in direction, probably muscle deep.
3. Two stab wound over the (Lt) buttock. One near the anus (3 an visera deep & 2nd 9 an. from Anus, x 011 inch in length, muscle deep.
4. Back (Rt) Renal area, one contusion of 2 x 4 inch in size. (Lt) shoulder are one contusion of about 2 x 3 inch. Back of neck a small contusion of 1 x 1.
5. Limbs - (Lt) Upper limb, 3" long inside wound over (Lt) forearm. Muscle deep. All are fresh wound."
19. It is, very, clear from the testimony of Dr.Mehta, at Ex. 15, that external injuries Nos. 1, 2 & 3 were possible by sharp cutting instrument like knife, whereas, remaining four injuries could be caused by hard and blunt substance. He has, also, clearly testified that the muddamal axe could cause external injuries Nos. 4A, 4B, 4C (are all item No. 4 in his certificate) and 5. He was shown the axe, as well as, the knife in course of his evidence and he also stated that the external injuries Nos. 1, 2 & 3 were possible by sharp cutting instrument like muddamal knife. External injury No. 1 itself was sufficient, in ordinary course of nature to cause death. There was internal haemorrhage and profuse loss of blood on account of cutting of liver which caused shock and it was the cause of death. Medical evidence, unequivocally, goes to suggest that during the course of the attack on the deceased, at least two persons attacked with different weapons. That is, precisely, the case of the prosecution. The prosecution has propounded a case that A-1 gave knife blows whereas A-2, Kishore @ Uyo gave blows with blunt portion of muddamal axe. Muddamal knife was found stained with blood of group 'A' which was the blood group of the deceased as per the report of the forensic science laboratory.
20. It becomes quite clear from the testimony of prosecution witness Dr.N.B.Buch, Ex. 15, that A-1, Harshad @ Hasmukh was examined by him in the Rajkot Civil Hospital, when he was in charge as Medical Officer and he found one injury on the little finger of left hand of A-1. The forensic science laboratory reports are produced, at Ex. 37 and 38. The blood group of the deceased was 'A' and the same blood group marks were noticed on the muddamal knife and the muddamal clothes recovered from A-1 who had used the same at the relevant time. The blood group of the A-1, Harshad @ Hasmukh was identified by the Serologist as group 'O'. The arrest panchnama of A-1 along with the blood-stained clothes is produced, at Ex. 66, whereas, in case of accused No. 2, the arrest panchnama along with the blood stained bush shirt and pant which were seized is produced, at Ex. 67. It is also very clear from the Serological report, at Ex. 13, that the blood group of the deceased was 'A' whereas it was 'O' in case of A-1, Harshad.
24.11.98
21. Obviously, it would lead to the appreciation of evidence of PW 4, Vinu Gora, Ex. 25, who is the brother of the deceased. He is not an eye witness as he went to the scene of offence only on learning about the incident. However, his evidence radiates an imprint of truth with regard to the previous animosity and the incident of stabbing by the deceased to the accused party. For the purpose of motive, this witness has thrown abundant light. According to his evidence, the previous incident had resulted into criminal case against the deceased. Not only that, he has also, clearly, stated in his evidence that the wife of his brother Anil, Geeta, had extra marital affairs with accused No. 1 and as a result of which, he had stabbed accused No. 1. It is noticed from his cross-examination that the animosity was also culminated into chapter case under section 107 of the Cr.P.C. Thus, in so far as the motive aspect is concerned, he has supported the prosecution case.
22. The case of the prosecution from the inception is, and which is also not disputed by the defence, that the bone of contention and past-animosity was on account of the illicit relationship of accused No. 1 Harshad with the wife of the deceased, Geeta, who is examined, as PW 5, at Ex. 26. To our utmost surprise, the wife of the deceased who has claimed to have no ill-will or any grudge or grievance against the deceased husband has gone to the extent of deposing against the prosecution case. Of course, she does not dispute the incident. On hearing the shouts, she went to the venue of offence and found that the incident had occurred. It is also her case that she was staying at the parental home with a minor baby since more than two to three months as her husband, according to her version, was beating her after drinking. Therefore, the deceased had gone to meet and inquire about the minor daughter at the residence of his in-laws. So the venue of incident is just near the house of Geeta's father. She has also, clearly, admitted in the cross-examination when she was confronted with the police statement that after the marriage with the deceased, her husband was doubting her character and chastity which had resulted into bitterness and quarrels. When she was staying, at her husband's house, the previous incident of stabbing by the deceased occurred and since then, the animosity prevailed between the groups. She has admitted that, on 5.10.89, in the evening, deceased Anil had come for half-an-hour to meet the minor daughter. It is brought on record in course of her evidence the contradictions of the statements made by her. As per the contradicted version, six months before the incident, on account of illicit relationship with the accused No. 1 Harshad, there was ill-will and bad blood between the deceased and accused No. 1. In order to retaliate and take revenge, all the accused persons had come in the evening, at 6 O'clock near her house, with knife and axe and caused death of her husband.
23. At this stage, let us have a minor detour and digression and to have a close look into the relevant proposition of law with regard to the evidence of the hostile witness. The contention was advanced that the evidence of the hostile witnesses cannot be taken into consideration. In our opinion, the proposition of law is other-way round. No doubt, it is true that once a person is deposing as a hostile witness, the Court has to be cautious and circumscribed so as to seriously scrutinise the evidence of the prosecution. However, there is no legal ban or bar which could deter us from taking into consideration as one of the circumstances in view of the celebrated principle of law.
24. Let us have, now, a look into the statutory provisions incorporated in section 154 of the Indian Evidence Act. It provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. In criminal proceedings when a permission is sought by the Prosecutor with the aid of section 154 of the said Act and questions are put, the witness is treated as hostile witness. The evidence of the prosecution witness, who has turned hostile, cannot be rejected, wholesale, merely on the ground that the prosecution had dubbed him or her, as the case may be, as hostile and had cross-examined him. This proposition is very well expounded long before by the Hon'ble Apex Court in "Syad Akbar v. State of Karnataka," AIR 1979 SC 1848.
25. No doubt, the contingency of cross-examining the witness by collar is an extra-ordinary phenomena and permission is given on the ground of special reasons and facts. Further more, it is not, merely, on the basis of small or insignificant omission that the witness might have made before the authorities that the party calling the witness can ask the Court to exercise its discretion. The Court before permitting the party calling the witness to cross-examine him is obliged to assess, weigh and scan the circumstances in proper perspective and properly and should not exercise its discretion in a casual or routine manner, which is not the case before us. Apart from the fact that the life of a young man aged 24 was cut-short at the cruel hands of the offenders and his young wife, in our society, deposing against the interest of the deceased and telling in favour of the accused is 'ipso-facto' very unusual, uncommon and very rare. Be that, as it may. The conduct of the wife of the deceased, Geeta, PW 5, is compatible with the case of the prosecution. We do not want to enter into further criticism of her evidence, but the manner and mode in which she has testified before the Court as a witness of the prosecution, despite she being the better-half(?) of the deceased, coupled with the indictment of the prosecution that her illicit relationship with the accused No. 1, Harshad, was the motivating factor and was the main terminus and in this set of unusual facts and special circumstances, we could not resist the temptation of mentioning our anxiety, feeling and anguish and heart-burning which we have to extinguish only with these observations.
26. It may, also, be stated, at this stage, that the discretion exercised by the Trial Court in according permission to the prosecution to cross-examine the otherwise star witness of the prosecution, has turned hostile to the prosecution is in proper exercise of the power of section 154 of the Evidence Act and such a power is unfettered and unqualified. It cannot be, now, contended that such an exercise of power could not have been exercised more so in a case like this where the wife of deceased has embarked upon an expedition to testify, adversely, against the prosecution case though she was the main prosecution witness and star witness, in reality. The proposition of law which we have highlighted, hereinabove, is also very much reinforced by the decision of the Hon'ble Apex Court in "Sat Paul vs. Delhi Administration," AIR 1976 SC, 294. In fact, it is also observed in this decision that while granting permission under section 154, it is preferable to avoid the use of such expression, such as "declared hostile", "declared unfavourable". At this stage, the only requirement contemplated under section 154 of the Evidence Act is to assess the factual scenario and to consider whether the power under section 154 should be exercised or not. It is not that the Court has decided the witnesses as hostile. The entire testimony has to be examined and weighed. It is a different issue what weight could be attached and what level of creditworthiness could be employed.
27. In "Bhagwan Singh vs. State of Haryana," AIR 1976 SC 202, it has been, clearly, held that the Court giving permission to the Prosecutor, to cross-examine, his own witness and thus characterising him as a hostile witness, that fact does not, completely, efface his evidence. Of course, in such a situation, though the evidence of hostile witness may not be rejected outright, the Court has, at least, to be aware that, prima-facie, a witness who makes at different times different statements has no regard for truth. Therefore, ordinarily, in such a case, the Court may not base the conviction on such evidence. However, whatever the evidence is favourable and compatible and consistent with the case of the prosecution borne out from the evidence of the hostile witness could, positively and definitely, be taken into consideration for assessment of the entire evidence along with other relevant evidence. In fact, the proposition which we have highlighted hereinbefore is also consistently propounded in host of judicial pronouncements. Therefore, we would not like to reiterate and repeat such other principles from other decisions. Nonetheless, let us have a look into a latest decision of the Hon'ble Apex Court in "Balram Prasad v. State of Bihar & Ors". 1997(1) Crimes (SC) 10. It has been, clearly, held in this decision that so far as the evidence of hostile witnesses is concerned, they have, though, resiled from the original version before the Investigating Officer with a view to help (unfortunately the killer of the husband in this case) the neighbours-accused and their contrary versions on oath before the Court were, clearly, unreliable and false ones. In this decision, the Court relied on the evidence of hostile witnesses who were alleged to have given some information to the main witness of the prosecution on a particular day and had even whispered in the chief examination or cross-examination that they had not conveyed any such information and had not met the main witness. It is in this context, it has been, clearly, observed that the evidence of hostile witness cannot be thrown overboard unceremoniously. The detailed discussion is very well articulated and expounded in para 11 of the Judgment. We have, therefore, no doubt in our mind that wife of the deceased, Geeta, PW 5, at whose house deceased had gone on the day of incident in the evening to see his minor daughter, has not only surprisingly but startlingly testified against the prosecution case though she was the main witness.
28. PW 10, Rameshgiri Bhavangiri Goswami, is a panch witness in respect of panchnama of discovery of knife by accused No. 1, Harshad. It is found that on being contradicted with his original statement with the Police that muddamal knife was discovered by the accused No. 1. The panchnama is proved in the evidence of the Investigating Officer. We are also conscious of the fact that the material requirements and requisites of the provisions of section 27 of the Evidence Act ought to be established so as to make use of discovery panchnama which has the material evidentiary value. After having given our anxious thoughts to the panchnama Ex. 52, and the material requirements of the provisions of section 27, we are convinced that it cannot be treated or tantamount as discovery panchnama. It is also found from the record that panch witness has not been able to specifically state as to which of the accused had taken out knife. Nonetheless, it is a discovery of knife from the accused.
29. Although PW 11, Lalji Mavji, Ex. 53, has turned hostile to the prosecution case, it is very clear from his evidence that he was the owner of rickshaw No. GRP-495. He had given his rickshaw to one Govind. He has denied the suggestion that he has not been able to say as to whether he was getting his rickshaw repaired from one Govindbhai. However, it is, obviously, clear from the contradiction proved in cross examination that he had given his rickshaw in the garage of accused No. 2, Kishore for repairs on the previous day of incident i.e. 4.10.89 and the same rickshaw was seized by the police after investigation in the offence. No doubt, he has turned hostile. Therefore, we have to consider only the probative value of his evidence. PW 12, Dawood Haji is examined, at Ex. 54. He has also turned hostile. In fact, nothing has been brought out, successfully, from his evidence and therefore it is inconsequential.
30. The evidence of prosecution witness No. 13, Amarben Nathabhai, examined, at Ex. 56, requires consideration, though she has turned hostile. However, the first version and factum in the statement under section 162 of the Code, upon contradictions proved in P.I. evidence.
31. We have found from the evidence of PW 13 Amarben, that she stays near the venue of offence and she knows the accused persons. It is noticed from her evidence that the accused persons had a quarrel with the deceased. It is also found from her evidence that she had witnessed the incident, on 5.10.89, in the evening, which was going on near the house of Jiviben, adjoining to her house. It is, also, very clear from her evidence that the accused persons were present and they were quarreling with deceased Anil, as a result of which, prosecution witness No. 8, Bhanuben started shouting. She has stated in her evidence that accused Nos. 1 & 2 are the residents of Survoday Society and deceased Anil was quarreling. A that time , Tulsi, accused No. 3 had come from the road and he had also joined in the fray. Original accused No. 4 had also come there who had no weapon in his hand. However, she has, clearly, stated in her evidence that accused No. 1 was armed with knife and accused No. 2, Kishore, was armed with axe and they were giving blows with knife and axe and in the meantime, on hearing the shouts of Bhanuben, accused persons fled away in the rickshaw in which they had come.
32. Similarly, in case of PW 14, Ex. 57, Gangaben, who also turned hostile, all the accused persons are involved by her. She has been contradicted with her earlier statement under section 162 and the contradictions are successfully proved. In her evidence, it is found that accused No. 1, Harshad was armed with knife and accused No. 2, Kishore, was armed with axe and thereafter accused Nos. 3 & 4 had come.
33. In order to establish the motive part, the prosecution has placed reliance, on Ex. 68, which is the complaint by Tulsi, original accused No. 3, brother of accused No. 1. As per this complaint, on 19.4.89, previous incident had occurred in which deceased had given knife blow to accused No. 1, Harshad. Original accused Nos. 1, 2 and 3 are brothers. In all there were four brothers out of whom, accused No. 1 and accused No. 2, both, were running garage for vehicle repairs and younger brothers were studying. Accused No. 1, Harshad, was given knife blows by deceased Anil. He had stabbed him on left portion of chest, right portion of chest and left hand palm as per, Ex. 69, the copy of the chargesheet.
34. The prosecution has placed reliance on three dying declarations, out of which one is oral and two are written. Let us, therefore, first have the appraisal of the evidence pertaining to dying declarations. PW 1, Khimji Govind Ujariya, Executive Magistrate, is examined at Ex. 12, who had recorded dying declaration in the Civil Hospital, at Rajkot, on 5.10.89, at about 9.50 p.m. after having received the note from the City 'B' Division Police Station for recording the dying declaration, at 9.20 p.m. He then, straightway, went to the Civil Hospital, Rajkot, in ward No. 1 and obtained the endorsement of Medical Officer that the patient is conscious. Nothing has been brought out in his cross-examination which would affect the veracity of his evidence. The written note of dying declaration is produced, at Ex. 14.
35. After having seen the dying declaration which is recorded in question-answer form and there is an endorsement of the Medical Officer that the patient was conscious at the time when dying declaration was sought to be recorded and when it was concluded. Following facts have emerged from the dying declaration and the evidence of the Executive Magistrate.
(1) The Executive Magistrate himself had asked initially few questions so as to ascertain whether the deceased was in fit state of mind. From the manner and mode in which the questions and answers appearing in the dying declaration, Ex. 14, it cannot be said, prima facie, that the deceased was not in fit state of mind.
(2) The deceased had also stated about the previous enmity with the accused party. Upon pointed question by the Magistrate as to who attacked him, the deceased stated that one person named Harshad and three others with knife. Upon a specific question being raised as to who were the other persons, at that time, the deceased replied that a person known as 'Uyo'. He has also stated about the previous enmity on account of the alleged intimate relationship between the wife of the deceased and accused No. 1.
36. Before the Executive Magistrate recorded the dying declaration, the duty constable of Civil Hospital, Rajkot, went to the injured upon being summoned by the Medical Officer from emergency ward. He had asked about the incident to the deceased, who, in turn, replied that accused No. 1, accused No. 3 and two to three other persons had given stab blows on his abdomen. He had accordingly, noted down such information in the register of the Police Chowky. He has also informed 'B' Division Police Station at Rajkot. The deceased survived for more than seven hours and succumbed to the injuries at about 2.20 a.m. The entry made in the register is produced, at Ex. 60. We are satisfied after having gone through the evidence of PW 15, Govind Moti, that there is no infirmity in his evidence.
37. Pursuant to the entry made in the Police Chowky of Civil Hospital, Rajkot, a note was sent to 'B' Division Police Station which is produced, at Ex. 59. The offence was registered against the accused persons and the investigation started. One head constable Omkarnath Shukla, PW 16, is examined at Ex. 61, who was the PSO at Rajkot 'B' Division Police Station. Upon completion of the investigation chargesheet followed. PW 16, Police Head Constable, Shukla has proved his entry in the register which is produced at Ex. 64. Investigating Officer, PW 17, C.V.Sonara, who was working as PI in Rajkot 'B' Division Police Station on 5.10.89 was examined at Ex. 65. It is brought out successfully from his evidence the contradictions in the evidence of the eye witnesses and other witnesses. He, initially, went to the Rajkot Civil Hospital at about 8 O'clock and inquired about the health of the injured Anil Gora. Thereafter, he had sent a note to the Taluka Magistrate for recording the panchnama. He had also recorded the detailed complaint from deceased Anil which is produced at Mark 11/1. At the time of evidence of the PI, the Trial Court had observed that the question of giving exhibit number to the complaint Mark 11/1 will be appreciated at the time of submissions and the said document will be considered for giving exhibit number. According to the evidence of the Investigating Officer, both the accused persons had put on blood stained clothes which were also seized. The muddamal articles including two rickshaws were seized and collected by the Police, out of which the muddamal clothes and blood sample had been sent to the forensic science laboratory. Upon report being received, it as noticed by the Investigating Officer that there was blood marks of group 'A' on all the muddamal articles. The deceased had the same blood group.
38. Now, the first question we are required to address ourselves, is as to whether, the detailed complaint given by deceased Anil, before the Police Inspector, C.V.Sonara, could be considered and if yes, could be given exhibit for reading in the evidence. Our, spontaneous, answer is in the positive. In fact, it is a, detailed, statement given by the deceased before he succumbed to the injuries. Obviously, therefore, the detailed complaint given by the deceased would assume the character of a dying declaration in view of the provisions of section 32(1) of the Evidence Act. In the statement made by the author in anticipation of death with regard to the cause of death is a dying declaration which is admissible under section 32(1) of the Evidence Act. Law on dying declaration has been, extensively, explored and very well analysed by host of judicial pronouncements.
39. The provision incorporated in section 32(1) of the Evidence Act itself is an exception to the hearsay evidence. However, there is a purpose and policy behind incorporating such a provision in the Evidence Act. Let us, now, highlight the important principles of law relating to dying declaration. This Court had occasion to deal with the law of dying declaration in the recent past while deciding Criminal Appeal No. 446/92 on 28/29.7.98 by the Division Bench to which one of us (J.N.Bhatt, J.) was a party.
(i) Mode of dying declaration is not prescribed, but ordinarily, it should be in a question and answer form, but not following this method would not, in any way, render the dying declaration weak piece of evidence.
(ii) In fact, a dying declaration is a statement made by a person as to cause of death or as to in what circumstances and transactions it resulted in his/her death, and therefore, it becomes relevant under section 32(1) of the Evidence Act. Dying declaration is not a deposition, but the statement of a person made in the teeth of fast approaching death assures the credibility of the statement.
(iii) Unlike English law, section 32(1) makes relevant not only the statement to the cause of his death but as to the circumstances of transaction resulting in his death. The grounds of admission are : (a) necessity for the victim being generally the only principal eye-witness to the crime, (b) the exclusion of his or her such a statement might defeat the ends of justice and (c) the sense of impending death, which creates a sanction, equal to the obligation of an oath, (d) dying declaration is a substantive piece of evidence and, therefore, conviction could be based upon the dying declaration, may be oral or written, provided it is shown to the satisfaction of the court that the declaration and the statement made by the deceased was voluntary, truthful and untutored and in a fit mental condition.
(iv) Section 32, itself is an exception to the rule of hearsay and makes admissible the statement of a person who dies whether the death is homicide or suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.
(v) The section 32(1) of the Indian Evidence Act widens the scope and sphere than the English provision in respect of not only the cause of death stated by the deceased but any of the circumstances of transaction which result in his death in case in which because of that person the death comes into question.
40. It would be very well seen from the aforesaid celebrated principles that the conscious of the Court should be satisfied that dying declaration was the version of the deceased and that it was made voluntarily, umprompted, untutored, in a natural way. If the material ingredients of provisions of section 32, and the celebrated principles laid down in host of the decisions are satisfied, then in that case, dying declaration can be acted upon. There is no rule of law that dying declaration should be corroborated by material particulars. Conviction can be founded even on a sole dying declaration if it radiates the imprint of truth without there being influenced by any extraneous consideration. Again, it is not necessary that it should be in a particular form. No doubt, preferably, it should be in a question-answer form so that the Court while scrutinising such an evidence can appreciate the same better. There is no statutory prescription of form. Therefore, each case has to be considered and examined on the strength and on its own merits keeping in view the circumstances in which the dying declaration came to be recorded.
41. The circumstances which lend authenticity and assurance to a dying declaration are as under:
(i) That the dying declaration, preferably, be recorded in question-answer form and as far as practicable in the words of the declarant which depends the oral testimony which may suffer from various human behavioural discrepancies and mistakes including failure of memory and human character.
(ii) That in order to test the reliability of the dying declaration, the Court is obliged to keep in mind the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light or not if the crime is committed, at night, whether the declarant was in a position to identify the assailants, whether he was in good mental faculty to remember the incident and and certain circumstances beyond his control on account of mental and physical position as then prevailed.
(iii) That his statement was made at the earliest available opportunity without any help or aid or tutoring, he can make several dying declarations if he is in a mentally fit state of condition to make and it may happen that some discrepancy or some deficiency may enter into the dying declaration if more than one dying declaration are taken or relied on. It has also to be shown that it has been signified from the record that it was his own version which was uninfluenced by any other source and it was his truthful, voluntary assertion of the incident.
(iv) That the dying declaration may be oral or written. In case dying declaration is recorded by an authorised officer like the Executive Magistrate, it can be relied upon if he has properly recorded the same after taking all requisite precautions.
42. It is not necessary that in order to place reliance on the dying declaration there ought to be an endorsement of the medical officer, invariably, as a matter of course and that if such endorsement is not proved, it has to be thrown in the wind. Such a contention was advanced before us and we are of the opinion that in so far as the recording of dying declaration is concerned, the main anxiety of the person recording the dying declaration of the declarant should be to see that he is in a position to make rational and reasonable statement with regard to the important aspects of the incident, whether, he is in fit state of mind or not could be certified by the Medical Officer, and it could also be verified by the person recording the dying declaration. It cannot be taken as a matter of course that, whenever, the medical opinion is not obtained about the mental condition of the declarant and even if it is taken in the form of "patient conscious" and not that patient was "in fit state of mind" and that too in absence of medical evidence would turn out to be fatal to the dying declaration in its entirety. It is true that as far as possible and so long as the medical personnel is available for such an endorsement, the person recording dying declaration ought to ascertain the mental condition of the declarant so that it could be found upon the medical examination whether the injured is in a position to make a rational statement or not.
43. In "Paniben vs. State of Gujarat" reported in 34(2) GLR 985, the Hon'ble Apex Court has, extensively, examined and has, elaborately, assessed the various decisions on the point. In Paniben's case, after having read the entire decision, we have found that the Hon'ble Apex Court has laid down several principles governing the dying declaration which could be summed up, here as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Mannu Raja v. State of U.P., 1976 (2) SCR 764 : AIR 1976 SC 2199.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416; Ramvati Devi v. State of Bihar, AIR 1983 SC 164).
(iii) This Court has to scrutinise the dying declaration, carefully, and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rusheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. AIR 1992 SC 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath v. State of U.P., 1981 SCC (Cri.) 581).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989, SC 1519).
44. It was noticed by us that the main principle on which dying declarations are admitted in evidence is indicated in legal maxim "Nemo-moriturus-proesumiture-mentiri" - a man will not meet his Maker, with a lie in his mouth". The dying declaration though, unsworned, and untestified by cross-examination, is relied upon even for basing the conviction, in a given case, if material principles are established for the simple reason, that a man who is fast approaching in the direction of death and when he is almost in the teeth of death as a natural humane spontaneous instinct he would not like to resort to falsity. Therefore, the situation in which a man is on death bed, is so solemn and sublime that he would be interested in stating truth and correct version. It is, therefore, time and again, held that if the dying declaration inspires the confidence of the Court and if it is, successfully, spelt out from the record that it is the truthful and real version of the declarant untutored, uninfluenced and unprompted from any quarter, then, in that case, conviction can be founded upon the sole evidence of dying declaration. The legal maxim which we have seen, hereinabove, is sufficient to place implicit faith on the declarant.
45. The first dying declaration was recorded by the police constable on duty, at Civil Hospital, Rajkot. He had made entry in the police chowky register as narrated by the deceased when he was called by the Medical Officer in the emergency ward. He after consulting the doctor found that the injured was in a position to make his statement. He therefore asked questions as stated hereinbefore and he found the truthful version which he recorded. The first oral dying declaration was recorded, at 8.05 p.m. on the day of incident in the hospital. In our opinion, it is transcribed in the register as per the oral dying declaration made by the deceased and it is quite trustworthy and reliable.
46. In fact, Ex. 59, was first in point of time information about the incident. Therefore, the Trial Court has treated it as first information report (FIR). In our opinion, the averments made in Ex. 59 answer the requirements of section 154 of the Criminal Procedure Code. Therefore, it is an FIR in so far as provisions under section 154 of the Cr.P.C. as well as oral dying declaration made before the police constable Govind Moti in the Civil Hospital, at about 8.00 p.m. in the emergency ward. PW 15, Govind Moti, has also clearly stated in his evidence that the injured had informed him that one Harshad Bhana, Tulsi Bhana and three other persons have given stab blows on his abdomen. Thereafter, such an entry was made in the Police Chowky register and it was also transmitted to 'B' Division Police Station, Rajkot. The original Police Chowky register was brought by the deponent, Govindbhai, and he has produced a certified true copy of the dying declaration which was, orally, made to PW 15, Govind Moti which is transcribed as an entry in the register. The deceased succumbed to the injuries at about 2.20 a.m. and therefore entry was also made on 6.10.89 as per Ex. 60.
47. It can very well be seen from the aforesaid dying declaration that deceased Anil Gora had made oral dying declaration involving accused No. 1, Harshad, accused No. 3 and 3 others.
48. The second dying declaration came to be recorded by the Executive Magistrate in the Civil Hospital by prosecution witness No. 1, Executive Magistrate, Khimjibhai G. Ujariya, at Ex. 14 which came to be recorded at about 9.50 p.m. on the same day i.e. on 5.10.89 and completed at about 10.00 p.m. It is in question-answer form. As per the evidence of the Executive Magistrate, PW 1, at Ex. 12, the injured was conscious at the time of recording his statement and he himself had raised question to elicit information from the injured. The dying declaration is produced, at Ex. 14. As per this dying declaration, the injured has involved accused No. 1 and one Uyo. According to the prosecution case, the alias name of Kishore, accused No. 2 is Uyo. Therefore, it is propounded by the prosecution names of accused No. 1, Harshad @ Hasmukh and accused No. 2 Kishore @ Uyo are disclosed in the dying declaration, at Ex. 14, which was also recorded within a period of almost two hours after the incident. Despite searching cross examination, we have noticed that the evidence of the Executive Magistrate, who recorded the dying declaration has remained unimpeachable.
49. The endorsement on the second dying declaration made by the Medical Officer is that the injured is conscious. Such an endorsement is also made on the yadi by the Medical Officer. Ex. 13 is the yadi in which the endorsement of the doctor was that "patient conscious at present" and the time is also mentioned and again on the original dying declaration Ex. 14, when the dying declaration was concluded the endorsement of doctor is made. It is also mentioned that dying declaration completed. It was completed at about 10.00 p.m. It is also certified by the Medical Officer that the patient remained conscious all throughout. This is also clearly certified by the Executive Magistrate. A serious contention is raised that in absence of the evidence of the Medical Officer who put the endorsement, it cannot be relied upon. It is true that the Medical Officer who had put the endorsement has not been examined. Two endorsements are there. One is on the yadi Ex. 13 and one endorsement is on the dying declaration Ex. 14.
50. Prima facie, one would be tempted to accept the contention that the Doctor who makes an endorsement should be examined and the endorsement as submitted should be that the patient was in fit state of mind. So is not the position in the present case. The question, therefore, falls for consideration is as to whether in absence of medical evidence and a specific endorsement as suggested would lead to us the stage of no return in so far as the written dying declaration recorded by the Executive Magistrate is concerned ? We are required to examine and adjudicate upon as to whether in such a situation the written dying declaration can be considered or has to be discarded ?
51. Before we consider this submission, let us refer to a decision relied on by the learned advocate for the accused in this behalf. Reliance is placed on a decision of the Hon'ble Supreme Court in Kanchy Komuramma v. State of A.P., 1996 SCC (Cri) 31. The principles underlying the provisions of section 32 of the Evidence Act have been highlighted. The prosecution must prove that the deceased was in proper mental condition to make the dying declaration. Merely because the dying declaration has been recorded by a Judicial Magistrate is not by itself a proof of its truthfulness. Failure of Magistrate to observe safeguards regarding ascertainment of mental fitness of the deceased would adversely affect the case of the prosecution and in the facts of that case, dying declaration though recorded by the Executive Magistrate was not held reliable. There can hardly be any question about the principles laid down in the said decision of the Hon'ble Apex Court. In fact, it is a decision in the light of the facts of that case. It was found in that case that the deceased had not disclosed anything about the incident to her mother and husband as to who was the real culprit or responsible person. In that set of facts, it was held not reliable. So is not the factual scenario before us.
52. It cannot be contended on the basis of the said decision that whenever and wherever the endorsement of the Medical Officer that the injured is in fit mental condition to give his statement is not placed and even if it is placed, not proved, the dying declaration in all cases should invariably be discarded. We, therefore, find that the said decision is not attracted to the facts of the present case, as in this case the factual scenario is quite different. The prosecution has relied on three dying declarations, the evidence of the eye witnesses and deep-seated and strong motive for the commission of the offence in question.
53. Our attention is also drawn to an unreported decision of this Court rendered in Criminal Appeal No. 564/96, decided on 11.12.96. We have, dispassionately, examined the entire judgment. We have not been able to appreciate why and how this decision is cited by him because here there is no question or there is no application of prosecution to prove the endorsement by calling the Medical Officer concerned. It will be interesting to note that it was observed that the whole case rests on the dying declaration and other witnesses have not supported the case of the prosecution. The endorsement if taken on its face value even in absence of the supporting evidence of the Doctor, would not be able to lead the Court to the conclusion that the deceased was in fit state of mind at the relevant time. Again we may mention that this decision rendered at an interim stage, in the circumstances of the present case, could be said to be a binding precedent or not will be a different issue, but without entering into that we are confident that in the light of the facts and circumstances of the present case, the said order does not help the accused. Therefore, the preposition advanced before us that in order to rely on or to consider the written dying declaration, the medical endorsement of the mental state of the injured being fit and the proof thereof in the evidence of the Medical Officer is compulsory, cannot be propounded as a preposition of law nor such a proposition could be made applicable to other cases diverse from the factual context.
54. That will lead us to the consideration of the detailed complaint recorded by PI in the hospital as narrated by the injured while undergoing treatment. According to the prosecution, it is the third dying declaration and second in writing. PI, C.V.Sonara, was in charge of the Rajkot 'B' Division Police Station on the day of incident on 5.10.89. On that date at about 8.00 p.m., PSO, Omkarnath gave an intimation (vardhi) pursuant to which PI went to the Civil Hospital in the emergency ward and recorded the complaint of injured Anil. The original complaint recorded by PI is produced at Ex. 11/1. It is true that so far it has not been given exhibit for the reasons not known to us and not disclosed in the judgment despite the fact that after hearing at the end of the trial, it was to be decided whether to give exhibit number or not.
55. Even in absence of exhibiting the documents by the Trial Court, this Court as an appellate Court, can give exhibit provided material conditions are fulfilled. Though, it was recorded by the PI as a first information report, it cannot be considered, as FIR in view of the first declaration-cum-dying declaration made by the deceased immediately after getting admitted in the Civil Hospital, Rajkot, before the duty constable at the Hospital. Ex. 11/1 is duly proved. It was recorded by the PI who is examined as prosecution witness No. 17 at Ex. 65. He has also identified the thumb mark of deceased Anil Gora. It is a statement of the declarant who was then injured and subsequently succumbed to injuries he had sustained in a cognizable offence. He has also indicated the names of assailants. It, therefore, becomes clear that it would meet the eligibility criteria of dying declaration under section 32 of the Evidence Act. Therefore, we are left with no option, but to direct the office to exhibit it. However, we are told that it will be now A-Ex. 76. Accordingly, it is exhibited. It will, therefore, stand exhibited accordingly.
56. It was objected by the learned advocate for the accused that this dying declaration cannot be exhibited as the person who have attested the right thumb mark impression of the deceased has not been examined and also on the ground that it appears to be a manipulated one. We have heard also the learned Addl. Public Prosecutor. The grounds on which it is sought to be challenged for giving exhibit number are not relevant and material in so far as the procedure of giving exhibit number is concerned. It is found from the evidence of Police Inspector, PW 17, that the deceased had signed in his presence and the person who identified with his right thumb mark impression had also put the endorsement in his presence. Again, the dying declaration is not required to be attested as such. The document which needs no attestation can be proved by any other mode of evidence even without the attesting witness. It cannot be gainsaid that the dying declaration is not statutorily prescribed to be attested by requisite number of persons. In the facts of the case, merely, because the person who has identified the thumb mark of the deceased have not been examined will not justify, to dynamite the whole written dying declaration. It may also be noted, at this juncture, that we have not been able to find from the record of any enmity or any ill-will between the Investigating Officer and the accused persons. He had, therefore, no reason to falsely prepare a dying declaration, more so when two other dying declarations were recorded. The main anxiety of the Court in such a factual situation is to satisfy itself that the version mentioned in the dying declaration is same version recorded by the person who recorded it and it represents the truthful, voluntary, untainted, umprompted rational statement of the deceased. Therefore, the third dying declaration cannot be discarded or rejected.
57. Reliance is placed on the decision of the Hon'ble Supreme Court in Mohar Singh v. State of Punjab, AIR 1981 SC 1578 and it is contended that even dying declaration is exhaustive and detailed account of the occurrence is mentioned in serious condition and when it is not attested by relative or the doctor, it cannot be relied on as it smacks of concoction. We have examined this decision and we are of the opinion that it would not apply to the facts of the present case. In the light of the facts of the case, it was observed that the statement of the declarant is not attested or identified, it has to be excluded from the consideration. This question would not assume any survival value in so far as the merits of the present case is concerned for the reason that the first dying declaration, orally, made by the deceased was quite prompt without loss of time and again, in the present case, there is no allegation of enmity against the PI, Investigating Officer. He had, therefore, no any earthly reason to falsely implicate the accused persons. We, therefore, find that the challenge against the dying declaration, Ex. 76, is meritless.
58. The learned advocate for the accused Mr Shah has relied on a decision of the Bombay High Court in State Maharashtra v. Asaram, 1978 Cr.L.J. 1017. We have examined this decision. It pertained to non-examination of the doctor who has put the endorsement on the dying declaration. As observed by us hereinabove, the third dying declaration is recorded by PI, Investigating Officer, who has, clearly, testified that the deceased had put his thumb mark in his presence. This decision is not applicable to the facts of the present case for the reason that there is no any grievance whatsoever against the Investigating Officer. It cannot be denied that, if the examination of doctor in each and every dying declaration is insisted or taken as a rule or even as a rule of prudence, it will have an impact on the whole structure and interpretation of the provisions of section 32(1) of the Evidence Act. In the facts of that case, the decision was rendered by the Bombay High Court.
59. Strong reliance is placed on the evidence of the eye witness, PW 8, Bhanuben, Ex. 45. She is the relative of the deceased and an eye witness. She is, as such, the niece of the deceased. We have, carefully, scrutinized the evidence of eye witness PW 8, Bhanuben. In our opinion, her evidence is quite natural, reasonable, probable, dependable and reliable. It is true that the deceased was her uncle. It was, therefore, contended that she is a partisan witness or an interested person. It is not the relationship but the reliability that matters. It is not the acquaintance, but the acceptability of the witness that matters. On the contrary, in a case like the one on hand, more reliance can be placed on close relative like niece who had witnessed the incident as she would not be interested to falsely implicate an outsider in place of the real offender or culprit. Again, her presence at the place is quite natural. Her evidence has remained, totally, unimpeachable. No doubt, there are some contradictions. But they are, at micro level. They do not affect the main core and theme of the prosecution case. We are impressed to accept the testimony of this eye witness as the same inspires confidence.
60. Apart from the deceased being her uncle, she is a neighbour. She stays in a house in the same area where the incident took place. She has also supported the prosecution case on motive aspect. She had seen deceased Anil in company of his wife Geeta in the back of the house. Deceased had gone to the house of the parents of Geeta and the incident occurred immediately he came out from the house in the evening. This witness Bhanuben, PW 8, was feeding her child in the Falia portion of her house around 6.30 p.m. and at that time she saw accused No. 1, Hasmukh and accused No. 2 Kishore in a rickshaw and it was proceeding towards the shop of accused No. 1, Hasmukh as it was loaded with goods. Rickshaw stopped near the place of Jiviben which is about three houses away from the house of PW 8, Bhanuben. She has also deposed that accused No. 1 Hasmukh was armed with knife and accused No. 2 Kishore was armed with axe and accused No. 1, Hasmukh started giving knife blows and accused No. 2 Kishore started giving axe blows and remaining two accused persons, original accused Nos. 3 & 4 appeared in the venue of offence and also entered in the fray and started pulling the hair giving kick to deceased Anil. It will also be very interesting to mention, at this juncture, that she has identified original accused No. 1, Harshad @ Hasmukh and also accused No. 2, Kishore @ Uyo. Both these persons were sitting in the Court and in course of her testimony, she had identified both of them. On account of raising shouts by her after seeing the blows on the person of her uncle, some people started coming as a result of which, the accused persons fled away from the venue of offence in the rickshaw.
61. It is very clear from her testimony that accused No. 1 Harshad @ Hasmukh and accused No. 2, Kishore, who is also known as Uyo, who were sitting in the court room, about which there is no dispute, were identified by PW 8, Bhanuben. The manner and model in which she has testified before the Court is quite stimulating and natural. She has in terms stated in her evidence that accused No. 1 was armed with knife, whereas, accused No. 2 was armed with axe and accused Nos. 3 & 4 had no weapon. She had, immediately, narrated the incident to the next door neighbour Amarben who has been examined by the prosecution as eye witness, but who has turned hostile. It is also very clear from her evidence that she has identified the muddamal axe shown in the Court. She has also identified the foot-wears. Even on the motive part, she has, clearly, stated in her testimony that deceased did cherish suspicion that his wife Geeta had illicit relationship with accused No. 1 Harshad which had culminated into stabbing by deceased Anil to accused No. 1 about which also there is no dispute.
62. One important thing which is borne out from the testimony of this eye witness and which needs to be narrated is that even on hearing the shouts, the neighbours and the residents of the area did not come to the venue of offence as according to her a good movie was being witnesses by the neighbours on TV and she did not to see TV. After the incident occurred two persons had come out, and she on being questioned, narrated the incident to them. After having closely and carefully considering and examining the testimony of sole eye witness supporting the prosecution case, we are convinced that her evidence radiates an imprint of truth and there is no reason to disbelieve her version in so far as accused No. 1, Harshad @ Hasmukh and accused No. 2, Kishore @ Uyo are concerned, since accused Nos. 3 & 4 are not before us in absence of acquittal appeal by the State.
63. As stated earlier, the prosecution witness No. 13, Amarben, a neighbour and an eye witness examined, at Ex. 56 has turned hostile. Likewise, another eye witness PW 14, who is also a neighbour and eye witness has also turned hostile to the prosecution version. However, as observed hereinabove, the evidence of the hostile witness cannot be overlooked or discarded in its entirety. The part of the evidence which supports the prosecution case even in the evidence of a hostile witness can be taken as one of the circumstances against the accused persons. It is amply and manifestly borne out from their evidence when they are confronted with the statement before the Police in course of the cross-examination that both the accused persons had come in the evening around 6.00 p.m. on 5.10.89, accused No. 1 armed with knife and accused No. 2, armed with axe and they had inflicted blows. In the meantime, prosecution witness, No. 8, Bhanuben, raised shouts and, therefore, accused persons fled away in the rickshaw.
64. In so far as the reliance on the part of evidence of the hostile witness is concerned, we have dealt with the relevant legal proposition. Therefore, it would not be expedient to reiterate and repeat the same at this juncture. It is a settled proposition of law that part of the evidence of the hostile witnesses, if supported by other evidence of the prosecution, could be taken as corroborative piece of of evidence.
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65. However, we would like to refer the latest decision of the Hon'ble Apex Court in Balram Prasad Agrawal (supra) on this point wherein, it has been specifically propounded that even the evidence of hostile witness also to the extent it corroborates the prosecution version can be relied upon. In the said case, the evidence of the complainant was corroborated by the evidence of other witnesses who had resiled from their original version before the Investigating Officer with a view to help their neighbours and the accused and their contrary version on oath before the Court were clearly unreliable and false ones. Thus part of the evidence of the hostile witness which manifests the prosecution case can be relied upon.
66. In Balram Prasad Agrawal (supra) the Hon'ble Apex Court has also placed reliance on earlier two decisions of the Apex Court (1) Khuji @ Surendra Tiwari v. State of MP, AIR 1991 SC 1853, and (2) Sat Paul v. Delhi Administration, AIR 1976 SC 294. It is not the proposition that the evidence of the hostile witness must be discarded as a whole. In Khuji @ Surendra Tiwari (supra), in para 6, this proposition is, elaborately, explained and expounded. The approach of the Trial Court in rejecting the evidence of the hostile witness was not upheld on the ground that the evidence of the hostile witness can be used as a piece of corroborative evidence by the prosecution. The evidence of the witness who is declared hostile is wholly not effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. In this decision also, the Apex Court has placed reliance on the decision in (1) Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 (2) Rabinder Kumar Dey v. State of Orissa, AIR 1977 SC 170, and (3) Sayed Akbar v. State of Karnataka, AIR 1979 SC 1848. So it is a proposition of law which 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 the witness. The evidence of such witness cannot be treated as effaced or washed off the record together, but same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. It appears from the plain perusal of the impugned judgment that while giving benefit of doubt to original accused No. 2 Kishore @ Uyo, the Trial Court has failed to appreciate the above celebrated proposition of law.
67. We would like to, now, discuss the other case law relied on behalf of the accused by the learned advocate for the accused. Firstly, reliance is placed on a decision of the Apex Court in Prabhoo v. State of UP, AIR 1963 SC 1113. Therein the provisions of section 25, 26 and 27 of the Evidence Act are highlighted. It is held that if the statements relating to muddamal articles in the discovery panchnama do not answer the eligibility criteria, it cannot be said to be a discovery panchnama. This proposition of law applies squarely to the facts of the present case. After having considered the discovery panchnama and the evidence of PW 10, R.B.Goswami, Ex. 52, could not be said to be in strict sense a discovery panchnama and weapon knife. It was found from the public place and it was accessible to the members of public. Again the panch has not been able to fully help the entire version of the prosecution. However, we are of the opinion that the muddamal knife found at the instance of accused No. 1 was sent to the forensic science laboratory for test and examination and as per the report of forensic science laboratory, human blood of group 'A' was found on the blade portion of the knife. Therefore, even in absence of strict compliance of the provisions of section 27, the muddamal knife recovered at the instance of accused in presence of Police and panch could be considered as an incriminating circumstance even treating it as a recovery panchnama.
68. Reliance is also placed on a decision of the Hon'ble Apex Court in State of UP v. Madan Mohan, AIR 1989 SC 1519. Therein, the principles are highlighted for the appreciation of facts in a criminal case, if the presence of eye witness at the place of offence is found doubtful and no independent witness is examined whose presence otherwise would have been natural, the benefit of doubt should go to the accused. It is a settled proposition of law. However, in the present case, accused is not in a position to make any capital out of it.
69. Likewise, reliance is placed on a decision of the Apex Court in State of Maharastra v. Bandu @ Pradip Pundalik, JT 1998 (1) SC 1 to show that when the common object of the unlawful assemble is not proved, there cannot be a conviction under section 302. The evidence of the prosecution is weak and it has not established the guilt, obviously the accused cannot be convicted.
70. It was also contended before us that the prosecution has not, successfully, proved that accused No. 1 Hasmukh is the same person alias Harshad and that accused No. 2 Kishore is the same person alias Uyo. The first part of the contention is, rightly, disbelieved by the Trial Court. We are also in complete agreement with the Trial Court in so far as the proof of the guilt of accused No. 1 Harshad @ Hasmukh is concerned. The medical case papers produced on record also, clearly, go to show that accused No. 1 was known as Harshad @ Hasmukh. Again eye witnesses have identified both the accused persons in the Court. Not only that, but they are the persons who are residing in the same locality and neighbourhood. There was sufficient day light when the incident took place. So, there was no question of mistaken identity. Of course, the incident took place in the evening when the Sun was either set or about to set between 6.30 to 7.00 p.m. on 5.10.89. It is a matter of common knowledge and understanding that even after the sun is set, there would be twilight and day-light remains for some time. Therefore, in our opinion, the contention that there was darkness and identity was not possible is rightly not accepted by the Trial Court and we approve it.
71. The prosecution has, successfully, proved that accused No. 1 and accused No. 2, who are real brothers, had strong and high degree of animosity because of criminal cases and stabbing given by deceased Anil to accused No. 1, Harshad @ Hasmukh. We have no hesitation in finding that the deceased had gone to the house of his father-in-law where his wife, Geeta, was staying along with his daughter, to see his minor daughter. He spent time with his daughter and on his return from the house, the incident occurred and both the accused, accused No. 1 and accused No. 2, who are real brothers, came in a rickshaw and accused No. 2 Kishore @ Uyo, who was armed with axe, smashed the wind screen of the rickshaw. He also attempted to land axe blow on the person of deceased Anil, but it was warded off by raising hand and he sustained injuries. In the meantime, accused No. 1, who was armed with knife inflicted three knife blows and that too on the vital part of the anatomy.
72. The manner and mode in which the accused persons emerged in a rickshaw, intercepted the rickshaw coming from the opposite direction and without waiting for any moment started attacking first rickshaw and then on the person of the deceased with deadly weapon like knife and axe coupled with the previous animosity between the parties, which we found are deep-seated and rooted and the evidence of eye witness PW 8, Bhanuben, who is the niece of the deceased and who is a neighbour and the corroboration obtainable from the evidence of two hostile witnesses who were eye witnesses, but who resiled from their original version before the Police go to clearly show the common intention of the accused. In addition to that, three dying declarations were made by the deceased. Dying declarations were recorded immediately with promptness without loss of time. One oral dying declaration was made by the deceased before the Civil Hospital Police Chowky duty constable when the deceased was undergoing emergency treatment in the Civil Hospital, at Rajkot. The deceased has, clearly, mentioned in his first version, like that, dying declaration that accused No. 1 Harshad and one Tulsi who was original accused No. 3 and three other persons were the assailants. Merely because in the first dying declaration, the name of accused No. 2, Kishore @ Uyo, is not specifically mentioned, it cannot be contended that he was not one of the assailants for the reason that both the brothers, accused No. 1 and accused No. 2, had started for taking revenge armed with deadly weapons in search of the deceased and in course of that, went to the house of the Geeta, prosecution witness 5 who is the wife of the deceased who was at the relevant time, on account of strained relationship, was staying at her parental home. In other words, the accused persons found out the deceased who was coming out from the house of Geeta, PW 5, and without loss of time, immediately, pounced on deceased who was in his rickshaw like leopard waiting for his prey in a hidden situation. There is no any evidence to show that even they had allowed the deceased to explain or discuss nor was any evidence to show that there was exchange of abuses between the accused party and the deceased. These are the important circumstances which would go to show that there was a common intention of all the assailants, in general, and both the accused, accused No. 1 and accused No. 2 in particular to do away with the deceased.
73. In the written dying declaration before the Executive Magistrate, which is in question-answer form, deceased Anil has disclosed the names of accused No. 1 and accused No. 2 and we have no doubt about it. In the second dying declaration which is recorded by the Executive Magistrate in question-answer form, the deceased has, clearly, stated the name of accused No. 1, at the first instance, whereas on being questioned by the Executive Magistrate, he has also stated the name of accused No. 2, Uyo. Initially, the deceased stated that accused No. 1, Harshad and three other persons whereas on further being questioned, he has disclosed the name of accused No. 2. Of course, he has stated the expression 'Uyo'. The prosecution case is that Uyo is the alias name of accused No. 2, Kishore.
74. The written dying declaration Ex. 14, recorded by the Executive Magistrate at 9.50 p.m. on the same day in the hospital when the deceased was undergoing treatment, inspires confidence. Of course, it has been seriously criticised by the learned advocate for the defence. In that context, the first contention advanced before us may be noted. It was contended that name of Harshad is mentioned and name of Uyo is mentioned in the written dying declaration, at Ex. 14, but they are not proved to be accused No. 1 and accused No. 2, respectively. This submission, prima facie, would appear to be very subtle and conticent, but not sound and sustainable in the light of the evidence on record.
75. We would like to highlight the material circumstances propounded and proved by the prosecution in the course of evidence before the Trial Court, which would, undoubtedly, connect accused Nos. 1 & 2 in the commission of the offence of murder of deceased Anil because of the deep-seated motive and malice.
(1) The evidence of PW 8, Bhanuben, Ex. 45 is very convincing. She is the niece of the deceased and she had no reason to falsely involve the accused persons. She is an eye witness and in her evidence, she has clearly involved both the accused persons, accused No. 1 and accused No. 2. Her evidence has remained unshaken in so far as the part played by accused Nos. 1 & 2 and the infliction of blow with the help of knife by accused No. 1 and axe by accused No. 2 is concerned. Both are real brothers. They are also identified in the Court by the witness who was staying in the neighbourhood.
(2) Prosecution witness No. 1, Lalji Mavji, examined at Ex. 53, is the owner of the rickshaw which was used by the accused persons as he had given his rickshaw on the previous day of the incident to accused No. 2, Kishore @ Uyo, for repairs as accused No. 2 was running a vehicle repair work-shop along with his brother accused No. 1. This aspect is very clear from the cross-examination. This witness though posed to be a prosecution witness resiled from his earlier statement and was permitted to be cross-examined. Obviously, his relationship with the accused would compel him to oblige them. However, the prosecution case that accused No. 2, Kishore Uyo, was involved in the incident and he was armed with axe and he had common intention is established.
(3) The topographical situation emerged from the evidence, clearly, indicate that deceased was staying in Ambedkarnagar and deceased had also gone to the house of his father-in-law to meet his daughter, which is hardly 4 houses away from the house of Bhanuben, PW 8. She had also seen deceased Anil and Geeta in the court-yard of the house. She was feeding her baby in the evening in 'Fali' portion of her house. At at that time, she also saw accused Nos. 1 & 2 going in a rickshaw towards the house of one Jiviben. Accused No. 1 was armed with knife and accused No. 2, Kishore @ Uyo was armed with axe and both attacked on the deceased and accused No. 1 inflicted knife blows and accused No. 2 used axe and thereafter both of them fled away from the venue of offence when she started shouting and other persons had collected. It is, also, very clear from her evidence that original accused No. 3 and 4 were unarmed. In so far as the previous enmity on account of illicit relationship between accused No. 1 and wife of deceased is concerned, her evidence is quite clear. Her presence at the scene of offence was reasonable and probable and she had no reason to falsely mention the names of accused No. 1 and 2. Since accused Nos. 3 & 4 could not be connected with the complicity in question on account of lack of evidence, who came later on, according to the prosecution case, does not necessarily mean that the evidence of eye-witness Bhanuben should be also discarded as a whole.
(4) The Trial Court has, also, relied on the evidence of eye witness, Bhanuben, PW 8 in transfixing the guilt of the accused No. 1 for the offence under section 302 of the IPC, but the Trial Court has failed to appreciate the entire evidence and particularly the evidence of this eye witness and some of the corroborative version borne out from the evidence of eye witnesses who later on resiled from their original statements, which has, in our opinion, culminated into great miscarriage of justice.
76. Apart from that, there were reasons for both the accused to form a common intention and to finish or kill the deceased. The following aspects would also significantly lend reinforcement to the proposition of the prosecution that both the accused persons are guilty for the offence.
(a) Rickshaw No. GRP 595, was used by accused No. 1 and accused No. 2 who are real brothers, who have a vehicle repair garage.
(b) The said rickshaw was given for repairs on the previous day by prosecution witness No. 11 Lalji Mavji, whose evidence is highlighted hereinbefore. The same rickshaw was seized by the police and even in the final order, it is ordered to be given back to the person from whom it was seized. This is an important corroborative piece of evidence.
(c) Second Rickshaw No. GRP 289 used by deceased, which was also seized by the police from the venue of offence after the incident in a smashed condition. It is not disputed that the said rickshaw was, practically, smashed and damaged. It is, also, very clear from the panchnama that the wind screen portion of the rickshaw was, totally, broken and smashed.
(d) It is found from the evidence that accused No. 1 was armed with knife and accused No. 2 was armed with axe. It was not possible for accused No. 1 to smash with the use of knife. The manner and mode in which the rickshaw was damaged just before the infliction of blows on the person of the deceased, it can, safely, be concluded that it must be because of infliction of axe blows only.
(e) On seeing rickshaw No. GRP 289 coming from the opposite direction, the accused persons who were travelling in, rickshaw No. GRP 595, attacked the said rickshaw. First, the rickshaw was damaged and thereafter accused No. 2, Kishore @ Uyo, attempted to give blow with axe on the person of the deceased which was defended by the deceased with his left hand and he sustained injuries. Medical evidence, clearly, shows that the deceased had sustained injury on the fore-arm muscle deep. It was 3" inch long.
(f) Post-mortem report, Ex. 17, and the medical evidence of Dr.Y.D.Mehta, at Ex. 15, who had conducted autopsy, unequivocally, goes to show that the deceased had sustained following injuries on his left hand: "Limbs - (LT) Upper Limb; 3" long inside wound over (LT) fore arm, muscle deep."
(g) Accused No. 1, Harshad @ Hasmukh inflicted knife blows with which he was armed on the person of the deceased. Three blows on the vital part of the body were given with knife which is supported by the medical evidence on record.
(h) Since eye witness Bhanuben raised shouts, people started collecting and the accused persons fled away along with rickshaw. Muddamal article axe was recovered from the scene of offence.
(i) Of course, muddamal axe does not contain blood marks, which is, seriously, criticized. Firstly, it is not necessary that in order to prove the guilt of the accused, the incriminating weapon invariably be produced before the Court. Other wise also, on the incriminating weapon, there may not be blood marks. In the present case, the axe blows were defended by the deceased and he suffered injury on his left hand.
(j) Accused persons have, nowhere, stated in the further statement under section 313 that they are not known as or in alias names as alleged by the prosecution.
(k) A person who has sustained injuries and when he makes a statement in anticipation of his death and when he is undergoing excruciating pain on account of severe injuries, his perception and reaction in such situation cannot be lost sight of.
77. The oral dying declaration which was later on noted in the police chowky register, clearly, show that the deceased intended to mention the names of five assailants. He mentioned the names of accused No. 1 and accused No. 3 by name and stated that three other persons. It does not, necessarily, mean that he had excluded the name of accused No. 2. It is not in his first dying declaration that he had, only, disclosed the name of accused No. 1 and accused No. 2. Needless, to reiterate, that accused Nos. 1, 2 & 3 are, real, brothers.
78. In the dying declaration recorded by the Executive Magistrate, Ex. 14, the deceased has mentioned the name of accused No. 1 and accused No. 2 as Uyo, whereas, he has not mentioned the name of accused No. 3, Tulsi, saying in an answer to a specific question put by the Executive Magistrate. When a question was put to say any other name than accused No. 1 Harshad, the deceased stated that 'one Uyo, and names of others do not know". In dying declaration Ex. 76, which is also in writing, recorded by the Investigating Officer, the names of accused No. 1 Harshad and accused No. 2, as Uyo, were mentioned.
79. It could very well be visualised from the entire testimonial collection and the documentary evidence emerging from the record of the present case that accused No. 1 Harshad @ Hasmukh and accused No. 2, Kishore @ Uyo have assaulted the deceased. Since the acquittal recorded by the Trial Court against original accused No. 3 & 4 is not questioned before us by the State, we do not deem it necessary to discuss the evidence pertaining to original accused No. 3 & 4. However, in our opinion, the complicity of accused No. 1 Harshad @ Hasmukh and his real brother, accused No. 2, Kishore @ Uyo for committing murder of deceased Anil is established beyond doubt. Merely, because the prosecution has failed to connect original accused Nos. 3 & 4, it does not mean that evidence of prosecution should be thrown overboard in its entirety.
80. It cannot be contended that a part of the prosecution evidence if disbelieved by the Court would culminate into rejection of the whole evidence. The proposition that `falsus in Uno, falsus in omnibus' has not been recognised in the criminal proceedings under our criminal jurisdiction. This proposition is very well established since long and requires no further elucidation or support from any case law. However, we would like to refer to one latest decision of the Hon'ble Apex Court in Jivanlal & Ors. v. State of Madhya Pradesh, 1997 (1) Crimes 1 (SC). It is very clear from this decision that 'falsus in Uno falsus in omnibus' is not the rule of law accepted by Courts in this country. Therefore, it cannot be permitted to contend that since the prosecution version in respect of original accused Nos. 3 & 4 have not been accepted and culminated into acquittal thereof, the whole prosecution case should be discarded. Merely because the declarant of dying declaration did not specifically mention the name of accused No. 2, Kishore @ Uyo, in his first oral dying declaration before the Police or that merely because the declarant mentioned the name accused No. 2 as 'Uyo' in the second dying declaration before the Executive Magistrate does not prompt us to accept that the dying declarations are unreliable. It is specifically, stated in both the dying declarations that other persons were also there. We would have taken a different perception had there been a case that the declarant stated only particular names and stated no other persons. So is not the factual scenario here. He stated certain names and stated some others. One cannot be oblivious to the fact that a person who is undergoing excruciating pain who is kept under the medical management cannot be expected to speak minutely and meticulously. The aspects which have been pointed out, in defence, as such, do not affect the main theme and core of the prosecution case.
81. Anxiety of the Court, is to assess and evaluate, the evidence and to find out as to who were the real offenders. In the voyage of search of the truth, we have unhesitantly and without any cloud of doubt, found that accused No. 1, Harshad @ Hasmukh and accused No. 2, Kishore @ Uyo were the assailants who attacked on the deceased, and accused No. 1 was armed with knife and accused No. 2 was armed with axe. They are the authors of the complicity which culminated into the unfortunately, untimely, death of Anil Gora which was in furtherance of the common intention of the assailants. With the result, accused No. 1 who has committed an offence of murder was in pursuance of the common intention of the assailants. Therefore, accused No. 2 is also, vicariously, liable with the aid of section 34 of the IPC.
82. Consequently, original accused No. 1 Harshad @ Hasmukh Bhana, appellant in Criminal Appeal No. 388/92 and original accused No. 2, Kishore @ Uyo Bhana, respondent in Criminal Appeal No. 773/82, are both guilty for the offence punishable under section 302 read with section 34 of the IPC. The conviction recorded by the Trial Court of original accused No. 1, Harshad @ Hasmukh Bhana, is confirmed and the acquittal recorded by the Trial Court against original accused No. 2, Kishore @ Uyo Bhana, respondent in Criminal Appeal No. 773/92 is quashed and set aside. Original accused No. 1, Harshad @ Hasmukh Bhana and original accused No. 2, Kishore @ Uyo Bhana are hereby, held, guilty for the offence punishable under section 302 read with section 34 of the IPC. Consequently, Criminal Appeal No. 388/92 shall stand dismissed, whereas, Criminal Appeal No. 773/92 shall stand allowed.
83. Upon request of learned advocate for the accused Mr Shah, the matter is adjourned for hearing on the quantum of sentence of original accused No. 2 and respondent in Criminal Appeal No. 773/92. He also states that he will keep the original accused No. 2, who is on bail, present in Court. S.O. to 26.11.98.
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84. Reverting back to the sentence to be awarded to original accused No. 2, Kishore @ Uyo, we have heard him in person who is present in Court today. We have also heard learned advocate Mr Shah for the accused as well as the learned Addl. Public Prosecutor Mr Raval.
85. Learned APP has, fairly, stated that this is a case of minimum sentence under section 302 of IPC. Under section 302, the Court has two options, either to impose imprisonment for life or capital punishment. Since we are also convinced that this is not a case falling within the rarest of rare category and again since the learned APP has also submitted that minimum sentence for life imprisonment under section 302, we propose to impose minimum sentence.
86. Consequently, original accused No. 2, Kishore @ Uyo Bhana, shall undergo rigourous imprisonment for life under section 302 read with section 34 of the IPC.
87. At this stage, learned advocate Mr Shah for the accused has submitted that accused No. 2 may be granted some time to surrender to the custody in view of the family circumstances to which learned Addl. Public Prosecutor has, rightly, not objected.
88. In the circumstances, 12 (twelve) weeks time is granted to surrender to the custody.