Gujarat High Court
State Of Gujarat vs Raghu @ Raghavbhai Vashrambhai And Ors. on 25 January, 2002
Equivalent citations: (2003)1GLR205
JUDGMENT J.N. Bhatt, J.
1. Prefatorial profile :
At the very outset, let it be mentioned that on account of dissenting and divergent views expressed by two learned Judges of this Court in an acquittal appeal, under Section 378 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the learned Chief Justice, has referred this appeal, pursuant to the exercise of the provisions of Section 392 of the Cr.P.C. and that is how, this single Bench is constituted to call upon to decide, determine and adjudicate upon as to whether it is a case of acquittal or conviction or for any other order or direction, as mandated by Section 392 of the Cr.P.C.?
Before the provisions of Section 392 of the Cr.P.C. are looked into, evaluated and examined, it would be appropriate, at the first stage, to highlight the factual projection requiring consideration for legal fate of this acquittal appeal.
The gist of trial against the three accused persons who are appellant in this appeal is an unfortunate event which occurred, at about, 4-45 p.m., on 19th July, 1988, near Patel Restaurant situated on a road leading from Rajkamal Hotel to Amreli Tower road in a market in the city of Amreli. The incident culminated into the homidical death of one Chakku @ Shekhar Ravishankar Shukla, a married person with a child.
This acquittal appeal, at the instance of State, is against the acquittal of the respondents, original accused Nos. 1 to 3, who are hereinafter referred, as such, as arraigned before the trial Court, for the sake of convenience and brevity. They came to be tried in Sessions Case No. 70 of 1988, upon the main charge, as at Exh. 5, under Section 302 read with Sections 109 and 114 of the Indian Penal Code. Accused No. 1 (A-1) is the father of accused No. 2 (A-2). A-3 has been the friend of A-2. The common phenomenon in this case is that all the accused, and also, the deceased were known by their alias-names.
Upon a complaint lodged by the prosecution witness, one Navnit Ratilal, offence came to be registered with C.R. No. 72 of 1988, by the Amreli City Police, and upon investigation, the charge-sheet (chalans) followed against all the accused persons in the Court of learned Chief Judicial Magistrate, Amreli, on 21-7-1988 and then came to be committed to the Sessions Court, Amreli, being Sessions Triable Case. It came to be registered, as Sessions Case No. 70 of 1988. The learned Sessions Judge framed charges, on 11-10-1990 against all the three accused persons. A-1, Raghu was charged under Section 302 read with Sections 109 and 114 of the I. P. Code, whereas A-2, Ghana, son of A-1, was charged under Section 302 and also under Section 302 read with Section 109 and 114 and in alternative, also, Section 34, as well as Section 323, whereas, A-3, Sanjay, was charged under Section 302 read with Sections 109 and 114 and alternatively under Section 302 read with Section 34 of the I. P. Code. The accused persons denied the charges against them and claimed to be tried. Hence, a full-fledged Sessions trial came to be conducted in the Sessions Court, Amreli.
2. Prosecutorial Pathological Prognosis :
The profile of the prosecution case has been that the commission of murder occurred in the evening at around 4-45 p.m., on 19-7-1988, near Patel Restaurant in the city of Amreli. The respondents who are, original accused persons, alleged to have formed common intention with deadly weapons of causing death of one Chakku @ Shekhar Ravishankar Shukla. Thus, the prosecution alleged that all the accused persons entertained a common intention to kill deceased Chakku and pursuant to the common intention, when deceased Chakku @ Shekhar, who was running a pan-shop in 'Chorapa-Area' in Amreli Town Market, which is the venue of offence, accompanied by his friend Navnit Ratilal, prosecution witness No. 1, complainant, started from the pan-shop for the purpose of taking snacks and in course of that when they reached near Patel Restaurant after passing the Tower Area, which is situated on the Station Road, at that point of time, all the three accused persons were standing. At that time, accused No. 2, who is the son of accused No. 1, pointing at deceased Chaku @ Shekhar to accused No. 1, his father, stated that Shekhar is a son of a head-strong man and is threatening him by gesture of his eyes as and when he met him. Therefore, A-1, Raghu, father of A-2, told him to finish him. Thereafter, A-1 and A-3, Sanjay @ Gaddhi ran near the deceased Chaku Shekhar where he was standing and caught him and brought him near the big hearth (Fire place, also known as 'SHAGHDA' in vernacular) outside the Patel Restaurant. The big hearth is made and meant for preparing snacks. This big hearth was outside the Patel Restaurant, which is a common local phenomena outside the hotel or restaurant for making hot snacks items which is typically a usual feature in such place in Saurashtra Area as stated at the Bar.
It is further alleged by the prosecution that A-1, Raghu started giving iron bar blows held by him on the person of deceased Chaku @ Shekhar. A-3, Sanjay had held the hands of deceased Shekhar and at that time, accused No. 1, father of accused No. 2 told his son to finish him, and therefore, A-2, Ghana, took out knife from the pocket of his pant and inflicted three knife blows on the left portion of the chest and abdomen, as a result of which, deceased started raising shouts and cries. At that point time, prosecution witness No. 4, Parshottam Hanubhai was passing by. He along with one Navnit Ratilal, prosecution witness No. 1, intervened and tried to rescue then injured Shekhar. Thereafter, all the accused persons fled away leaving mudammal motor-cycle there and then while taking incriminating weapons held and allegedly used by them.
Deceased, at that time, injured Shekhar was bleeding. Therefore, he was shifted to the Civil Hospital for treatment by prosecution witness No. I and complainant, Navnit Ratilal and prosecution witness No. 4, Parshottam. As goes the prosecution story, the deceased was, virtually, in an unconscious state of mind. On being taken to the Civil Hospital, after examination, the concerned doctor declared him dead. Therefore, the dead body, was consigned to mortuary for post-mortem examination.
It is, also, the case of the prosecution that during the course of incident, a police constable who was on duty on a traffic point near, Patel Restaurant, on coming to know about the incident went to the city Police Station and informed about the incident. Thereafter, Police Inspector, one Mr. Waghela, came to the venue of offence, who on coining to know that the injured was taken to the Civil Hospital, went to the hospital. But, alas! he found that the injured was no more and he was already declared dead and the dead body was lying for post-mortem examination.
3. Commencement of Investigation :
However, since the prosecution witness No. 1, Navnit, complainant and prosecution witness No. 4, Parshottam were in the hospital, the Police Inspector Mr. Waghela met them and took the complaint from P.W. 1, Navnit, as narrated by him, which was sent to the Police Station for registration, and thus, got away the investigation.
The P. I. made the panchnama of scene of offence, recorded statements of witnesses on the same day. On the next day, thereafter, the accused persons appeared and surrendered before the Police, and therefore, they were taken into custody. Accused No. 2, Ghana, expressed his desire to discover the incriminating muddamal knife, and therefore, it was seized after making discovery panchnama in that behalf. Investigation continued for some days, and thereafter, on sufficient evidence having been found against the accused persons, the Investigating Officer charge-sheeted the accused persons, on 21-7-1988, before the learned Chief Judicial Magistrate, Amreli, and the accused persons were committed to the Sessions Court, as it being a case of murder trial. That is how, the Sessions case was registered upon the basis of the charge-sheet by the learned Sessions Judge, Amreli as Sessions Case No. 70 of 1988.
The Sessions Court framed charges, at Exh. 2, against the accused persons. Accused No. 2 was charged under Section 302 of the Indian Penal Code (I. P. Code) for having committed the murder of deceased Shekhar by inflicting knife blows intentionally, whereas, A-1, was charged under Section 302 read with Sections 109 and 114 of the I. P. Code. Likewise, A-3, Sanjay was also charged for having committed offence punishable under Section 302 read with Sections 109 and 114 of the I. P. Code. All the accused persons were, also, alternatively charged for having committed offence punishable under Section 302 read with Sec, 34 of the I. P. Code. Accused No. 1, Raghu, was also, charged for having committed offence under Section 323 for inflicting iron blow on the person of the deceased.
The learned Sessions Judge, upon analysis, examination and evaluation of the prosecution evidence and after considering the rival submissions recorded acquittal, against the accused persons assigning, inter-alia, 24 main reasons to strengthen his conclusion by his judgment, recorded, on 25th March, 1991.
The acquittal appeal, at the instance of the State under Section 378 of the Cr.P.C. was heard by a Division Bench of this Court. But as observed hereinabove, in the prefatory para, on account of dissent and differing views, reference came to be made, and therefore, the learned Chief Justice has assigned this matter to this Court for examination and adjudication, in view of Section 392 of Cr.P.C.
This Court has heard, at a marathon length the rival submissions raised by the learned Addl. Public Prosecutor and the learned defence Advocates for the respondents, original accused persons. In course of the submissions, this Court has, also, examined the viva-voce, as well as, documentary evidence. Case-law is also examined and analysed relied on by both the sides in support of their rival versions. In short, this Bench has been called upon to decide and determine the legal fate of this acquittal appeal, in view of the provisions of Section 392 of the Cr.P.C.
4. Jurisdictional Zone - Section 392, Cr.P.C.
Before embarking upon the evaluation and analysis of the merits and the challenge against the acquittal appeal, although, there is no much of the controversy about the spirit, ambit, scope and powers enshrined in Section 392 of the Cr.P.C. (Old Section 429), it will be expedient and prudent to have a close look into the provisions of Section 392 which deal with situation, when there is difference of opinion between two Judges of the Bench of the High Court, while deciding criminal appeal. Section 392 of the Cr.P.C. reads as under :
"392. Procedure where Judges of Court of Appeal are equally divided :--When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions shall be laid before another Judge of that Court, had that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion :
Provided that if one of the Judges constituting the Bench, or where the appeal is laid before another Judge under this Section, that Judge, so requires the appeal shall be re-heard and decided by a Large Bench of Judges."
It provides for the procedure where the Judges of the Court of Appeal are equally divided in hearing the criminal appeal. It can, very well, be visualised from the aforesaid provisions that there are two options left open for the Division Bench when there is a dissent or difference. In such a contingency, one of the following two options is exercised while invoking the powers of Section 392 of the Cr.P.C.
(1) Criminal appeal can be referred to a third Judge; (2) It can, also, be referred to a Larger Bench.
Former is resorted to, in this case, under Section 392 of the Cr.P.C. It is, also, manifest from the proviso to Section 392 that upon hearing of such an appeal, by the single Bench, if required, the appeal can be directed to be heard and decided by a Larger Bench of the Judges.
The statutory mechanism of Section 392, clearly, goes to show that the third Judge constituting a single Bench, after reference under Section 392 is obliged to consider the merits of such an appeal, independently, after giving an opportunity of hearing to the concerned parties. He is not an appellate Judge over the dissent and he has to determine and adjudicate upon the criminal appeal upon reference uninfluenced by the views and the conclusions recorded by the dissenting Judges of the Bench, although such a conclusion can be reached only after examining and considering the judgments and the submissions.
5. Jurisprudential Evolution Of The Process In Such Dissent :
The following characteristics and essentials can be carved out and highlighted, at this stage, in the light of the statutory mechanism under Section 392 of the Cr.P.C. before the merits of the appeal are considered, examined and analysed and evaluated.
(1) The expression 'opinion' employed in Section 392 (old Section 429) is nothing more or nothing less than the decision and the operative order to be passed in that case.
(2) It is for the third Judge to decide on what points arguments would be heard, and therefore, he is, always, free to resolve the difference, as he deems it necessary. (Babu v. State of U.P., AIR 1965 SC 1467 decided by Bench of Five Hon'ble Judges of the Hon'ble Apex Court.) (3) When a case is referred to a third Judge, either under Section 370 (Sec. 378 old) or under Section 392 (old Section 492) of Cr.P.C., the third Judge should bring in his independent judgment after giving due weight to the views of both the differing Judges. Section 392 obviously makes it obligatory or rather mandatory for a judgment and order of the Court to follow up the opinion of the third Judge. This proposition is also very well explained and expounded in Hetubha v. State of Gujarat, AIR 1970 SC 1266.
(4) Even a New plea can be considered and accepted if so warranted. The decision in B. N. Anandpadmanabhai, AIR 1972 SC 183 has made significant observations in this connection, which was not reported when Bhagat v. State of Rajasthan, AIR 1972 SC 1502 came to be decided by a Bench of three Hon'ble Judges confirming the decision in Hetubha's case (supra). It will be, therefore, interesting to mention, at this stage, that in this case it was held a new plea can, also, be raised and it was also observed that in case of accused persons who were found guilty under Section 5(2) and other Sections of the Prevention of Corruption Act, 1947, as well as under Sections 467 and 471 of the I.P.C., and there was difference of opinion of the Judges forming the Division Bench and the case was referred to a third Judge. Before the third Judge, a new plea was advanced that the Magistrate at Delhi had no jurisdiction to sanction the investigation and the third Judge held that the order of Magistrate of the local jurisdiction was necessary, that only a Magistrate of the District Court where the crime had been committed and no Magistrate outside the jurisdiction was competent to make an order for investigation. Accordingly, the third Judge quashed the proceedings before the Special Judge. In Appeal, before the Supreme Court it was contended that the third Judge could only deal with the difference between the two Judges and not with the whole case. Such contention was straightaway rejected by the Apex Court.
(5) It is a settled proposition of law from the provisions of Section 392 that it is the duty of a Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and give a final judgment after giving due consideration and weight to the reasons given by two Judges, on whose difference of opinions, the case comes before the third Judge for his opinion. It becomes, therefore, clear that upon evaluation of the evidence and examination of the relevant proposition of law, if the third Judge takes a third view or a decision, it is always open for him to do so. It is not incumbent upon the third Judge to reach to a conclusion out of the two opinions rendered by the Bench of two Judges in a dissent. In short, the settled proposition is evident to indicate that the third Judge's discretion is not encapsuled or circumscribed to decide one of the two views and it is always open for him to take a different opinion and he is empowered to reach to a third conclusion, if 'upon examination of the evidence, such a view is warranted, which may not necessarily be anyone of the two opinions, expressed in two judgments of differing Judges.
(6) It will be also very material to highlight that the reference to third Judge, where the Judge constituted the Bench have differed, the third Judge is free to decide the merits of the appeal by resolving the difference of dispute in the manner he thinks it necessary and proper. The contention that the third Judge as a rule of prudence must lean in favour of the view of the Judge who decided to acquit, is not acceptable and sustainable. The third Judge is called upon to consider all the relevant facts, material evidence and the relevant proposition of law, independently, uninfluenced by the views expressed in the differing judgments and to reach to his own view or opinion or conclusion, may be, even if warranted by taking a third view. This proposition is also amply, appreciated and highlighted by the Apex Court in Tanviben P. Divetia v. State of Guajrat, 1997 (2) GLR 1346 (SC) : AIR 1997 SC 2193 : 1997 (7) SCC 156. In this case, the Apex Court has laid down lucid proposition, clear interpretation and exposition of law emerging from the provisions of Section 392 of the Cr.P.C. (429 old) after taking into account 13 earlier decisions including 5 Judge Bench Judgment in Babu v. State of U. P. (supra).
(7) The procedure to be followed suo-motu by the Court in the event of difference of opinion between two Judges comprising the Division Bench of the High Court was, initially, engrafted in Section 429 of the Criminal Procedure Code, 1898. Section 429 of the Old Cr.P.C. read as under :
"429. Procedure where Judges of Court of Appeal are equally divided :--When the Judges composing the Court of Appeal are equally divided in opinion, the case with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion and the judgment or order shall follow such opinion."
(8) It may be, also, interesting, at this juncture, to mention the remarks and the observations made by the Law Commission in its 41st report, wherein, it came to be mentioned that if either of the Judges first hearing the appeal so requires, or if after the reference, the third Judge so requires, the case should be re-heard and decided by a Bench of three or more Judges. This was also, incorporated in the draft bill. The Joint Select Committee, however, substituted the words Large Bench of Judges for the words Bench of three or more Judges occurring in clause 402. Section 392, is reproduced hereinbefore, from where it is very clear that the duty or obligation cast on the third Judge is to consider the entire record, the differing judgments, the relevant provisions of law and after re-hearing of the whole case, has to reach his own independent, uninfluenced by earlier opinions of the Bench, like that of two Judges, with a view to reach to the conclusion or the opinion in the mission of search of truth which may also include a new opinion, third conclusion, depending upon the analysis, evaluation and examination of the evidence, submissions and differing opinions.
(9) Section 392 of the Cr.P.C., therefore, is quite unambiguous and contemplates that on a difference of opinion between two Judges of the Division Bench and when the matter is referred to the third Judge for his opinion, so that the appeal is finally dealt with and disposed of on merits on the basis of his opinion or conclusion.
(10) It is true, and there is no any manner of doubt that the third Judge is obliged to take into consideration the two opinions of the Division Bench, already, rendered and after considering of such differing opinions and the submissions, coupled with the analysis and the evaluation of the evidence from the record, he has to give his opinion or conclusion free from any leaning or bias and without vision being coloured, by the opinions of his two colleagues, independently, and even if need be or if it is warranted by rendering third opinion or totally different conclusion than expressly mentioned in two differing judgments. By judicial propriety or etiquette or even protocol, he is not, in any way, expected to be led by either of the opinions as per statutory commandment incorporated in Section 392 of the Cr.P.C.
(11) It is in this context and bearing in mind the aforesaid characteristics and material propositions of law in relation to the provisions of Section 392 of the Cr.P.C., this Bench has reheard the whole matter on merits, has gone through the entire voluminous records, 'viva-voce' and testimonials, and also, the case, law cited in course of the marathon submissions.
6. Verdicts Of Trial Court And Dissent Of Judges - DB HC :
Obviously, next, it would lead us to the consideration about the factual situation emerging from two differing opinions and the evidence on record. One learned colleague has upon evaluation of the evidence has recorded conviction of the accused, whereas, other learned colleague has reached to a diametrically opposite conclusion of acquittal. Both these opinions in the differing judgments have been examined in depth, submissions offered are, also, seriously, considered and case law propounded and relied on has been dispassionately considered and examined by this Bench.
The learned Sessions Judge, upon conclusion of the trial and after examination and evaluation of the evidence, has, also, recorded acquittal of all the three accused persons. Needless to state that any interesting student of law or a judicial mind, at the first sight, after having gone through the judgment of the learned Sessions Judge, could hardly resist the temptation of saying that it is a very well written judgment. The question which requires to be considered is that in an acquittal judgment of the learned Sessions Judge, in support of which, no less than 24 aspects and grounds are considered and assigned, are compatible or in consonance with the evidence, documentary as well as oral, relied on by the prosecution and not accepted by the learned Sessions Judge. Here comes the question of appreciation of evidence of the prosecution and the defence version of the respondents-original accused persons. Before an inquiry is embarked upon these aspects, let there be a short conspectus and a resume of oral as well as documentary evidence relied on by the prosecution and rejected by the learned Sessions Judge.
7. Jurisdictional Sweep Of Appellate Court :
In course of submissions before this Bench, the principles enunciated, expounded and applied in acquittal appeal under Section 378 of the Cr.P.C. would be expedient, at this stage, to draw its profile. What should be the approach of the appellate Court, while dealing with an acquittal appeal has been a subject and issue in host of judicial pronouncements. It could be said that in a case of hearing and considering the merits of an acquittal appeal, the appellate Court while dealing with the same, should be at loath to interfere with the conclusion of acquittal recorded by the Court below, merely on the ground that upon assessment and evaluation of the evidence, a better view could have been taken or a third view could have been reached. Such an approach has not been approved by this Court as well as by the Apex Court.
Although, human mind is unfathomable, the views, interpretation and perceptions may vary from individual to individual upon examination and evaluation of the same order, judgment or decision since the appreciation of factual profile and projection is not like a geometry test or standard, nor it is like an arithmetic yardstick, but is an outcome of judicial behavioural and psychological probing and perception. Therefore, it has been, consistently laid down that the appellate Court upon evaluation of evidence a new, better or other perception would take or it could have been taken by the Court, whose verdict is in appeal is not the criteria for interference under Section 378 of the Cr.P.C. The gist and yardstick which requires to be successfully applied, is as to whether, from the proved facts emerging from the record of a given case, the challenged verdict or the impugned conclusion could not have been reached or the opinion or the decision rendered upon consideration of the facts on record is found to be totally unsupportable or fully unsustainable from the facts and the evidence on record.
In short, in a case of acquittal appeal, under Section 378, interference of the appellate Court would not be within the scope and ambit merely on the ground of there having been a scope for a difference or better or a new opinion or conclusion. As stated hereinabove, it may happen or it is possible because of behaviour psychology. Interference in other words, in the event of appreciation of merits of acquittal appeal under Section 378 would be justified if the appellate Court is satisfied that the basis on which the opinion is founded upon or the conclusion reached by the trial Court whose decision is appealed in, is not permissible or possible upon the evaluation of the proved facts emerging from the record of the case and it may, also, be stated, at this stage that if the impugned decision or conclusion is spelt out to have been rendered on material which should not have been considered or is lacking in not considering the material which ought to have been considered.
Obviously, therefore, it can safely be concluded that in an appeal against acquittal, under Section 378, the appellate Court, must bear in mind that order of acquittal cannot be lightly upset or reversed or quashed merely upon the existence of the possibility of two views from the evaluation and examination of proved facts on record. The impugned order or decision or judgment of acquittal when considered by the appellate Court, it must be remembered that the appellate Court should not set aside the acquittal giving importance to one or some of the aspects of the evidence without having overall view and integrity of the evidence emerging from the record.
The powers of the appellate Court, apart from the clear provision of Section 378, have succinctly, been charted out in number of judicial pronouncements, Such powers are highlighted, clearly and cogently in many decisions. Simply because that a view other than the view taken by the Court whose decision is questioned in acquittal appeal, could be taken on the re-examination and reappraisal of the evidence, obviously, could not constitute a good launching-pad for taking a different conclusion setting aside the acquittal recorded against the accused persons. The appellate Court while considering the merits of an acquittal appeal under Section 378, is obliged to keep on its mental radar, the aforesaid facts. In dealing with an acquittal appeal, it is also held that the conscience of the appellate Court, first, must be satisfied that the reasons and ultimately conclusions recorded by the Court below or the trial Court are possible from the examination of the proved facts on record. The appellate Court has to consider whether such findings of the trial Court are palpably wrong, demonstrably unreasonable, or manifestly erroneous leading to the rise of miscarriage of justice. It is equally true in converse situation if the appellate Court finds from the evidence on record that the reasons mentioned in support of the conclusions by the trial Court in passing the order of acquittal cannot at all be sustained. In that eventuality or factual situation, upon reorientation, reappraisal and analysis of the evidence, it is open for the appellate Court to arrive its own conclusion quashing the acquittal.
In conclusion, insofar as, this proposition of law is concerned, it needs to be reiterated that the appellate Court from the proved facts and the evidence on record has to address itself, as to whether, the reasons and conclusions, in support of the ultimate decision rendered by the trial Court would stand the judicial scrutiny, and if upon examination and evaluation of the evidence, the answer is positive, the acquittal appeal deserves to be thrown overboard, and on the other hand, if the judicial conscience speaks against it, the appellate Court is under incumbency to record a different conclusion.
8. The Testimonial Collections :
In order to substantiate and fortify the charges against the accused persons, the prosecution placed reliance on the following, "viva-voce", evidence.
Sr. No. Name Prosecution witness Exh.
No. Remarks, if any
1.
Navnit Racilal P.W. 1 15 Eye witness
2. Dr. Bharatkumar Jayantilal Vyas P.W. 2 17 Medical Officer
3. Nathalal Mohanlal Pandya P.W. 3 21
4. Parshottam Hanubhai P.W. 4 30 Eye witness
5. Kanjibhai Karahshibhai P.W. 5 41 Hostile witness
6. Amrutlal Bhanjibhai P.W. 6 42 Hostile witness
7. Rameshchandra Umiyashankar P.W. 7 43 Witness
8. Gopalbhai Mohanbhai P.W. 8 45
9. Jitendra Maneklal P.W. 9 46
10. Yogesh Navinchandra P.W. 10 48
11. Rameshgiri Bhimgiri P.W. 11 52 Hostile witness
12. Sharad Gokalbhai P.W. 12 53
13. Vinodkumar Khushaldas P.W. 13 55 Hostile witness
14. Dr. Anil Damodar Ashar P.W. 14 56 M. 0. Civil
15. Harisinh Muljibhai P.W. 15 91 16 Dahiben Mohanlal Shrimali P.W. 16 94 17 Kiritsinh Bapusinh P.W. 17 97 18 Manubhai Bliaishankar P.W. 18 99 19 Jamsinh Pratapsinh Waghela Police Inspector, Arnreli City.
P.W. 19 109 I. O. The prosecution has also placed reliance on the documentary evidence to reinforce the charges against the accused to which reference will be made by this Court, as and when, required at an appropriate stage, while examining the merits of the acquittal appeal.
As Special Prosecutor one learned Senior Advocate Mr. B. N. Tolia was appointed. Learned trial Judge had extensively heard the oral submissions of the learned Prosecutor and defence Advocates. He also considered the written arguments, as at Exh. 134 submitted on behalf of the original complainant, by his learned Advocate one Mr. N. S. Daftari. The trial Court had also taken into consideration the entire testimonial collections and the submissions raised on behalf of the prosecution and the defence. The trial Court, upon assessment, evaluation and appraisal of the evidence on record and considering the rival submissions and the facts and circumstances reached to the conclusion by holding a perception that the prosecution has not successfully established the complicity of the accused persons beyond reasonable doubt. In the concluding para of the impugned acquittal judgment, the trial Court has articulated, vividly and elaborately, as many as 24 points and aspects and prompted and guided by those points concluded that the homicidal death of young man deceased Shekhar is established beyond doubt, nonetheless, the complicity alleged by the prosecution against the accused persons could not be established beyond reasonable doubt not because of only waves of doubts, but ocean of doubt was roaring. That is how, the respondents in this acquittal appeal and the original accused persons came to be acquitted from all charges by the impugned judgment and order which was rendered on 25th May, 1991, by the learned Sessions Judge, Amreli.
The appellant, State of Gujarat, being aggrieved by the impugned judgment and order of acquittal of all the three accused persons, by invoking the aids of the provisions of Section 378 of the Code of Criminal Procedure, 1973 filed Criminal Appeal No. 457 of 1991 against the decision of the trial Court in Sessions Case No. 70 of 1988 decided on 25-3-1991, inter alia, contending that the view and the ultimate conclusion recorded by the learned single Judge in passing the acquittal judgment are manifestly perverse, unsustainable, tainted with non-application of mind to vital evidence, a result of wrong interpretation of evidence of eye-witnesses and other substantial evidence, which has resulted into miscarriage of justice.
This appeal, therefore, was admitted. The appeal was placed before a Division Bench for appreciation of merits and adjudication, consisted of learned Brothers, R. K. Abichandani and K. R. Vyas, JJ. However, there was dissent. Both the learned Judges gave separate judgments. The appeal was allowed quashing the judgment of acquittal by learned Brother R. K. Abichandani, J. He held, the accused persons guilty by finding that the complicity against all the accused persons as charged, has been established without any shadow of doubt, Whereas, learned Brother K. R. Vyas, J. confirmed the acquittal judgment of the trial Court by dismissing the acquittal appeal of the State. Thus, the acquittal judgment of the trial Court came to be confirmed by one learned Brother Judge, whereas, it came to be quashed holding all the three accused persons guilty by allowing the appeal. It is, in this context, the respective differing opinions were placed before the Hon'ble Chief Justice of the High Court, who, in exercise of the powers under Section 392 of the Cr.P.C. directed the Criminal Appeal to be placed before a third Judge of this Court and that is how, it has come to this Court for hearing and examining the merits of the acquittal appeal.
This Court has heard the marathon submissions on many days, during the course of hearing. Written submissions are also filed and they are considered. The case-law relied on by the parties, is also, seriously examined and considered. This Court has also extensively, and elaborately, been taken through the excursion of the entire testimonial collections i.e., documentary and 'viva-voce' evidence, the case-law relied on by the Advocates appearing for the parties.
Keeping on the mental radar the provisions of Section 392 of the Cr.P.C. and the evolution of the principles, by host of case-law, and the discussions made by this Court in the prefatory paragraphs of this judgment, merits of the acquittal appeal and the challenge against it ought to be considered and adjudicated upon,
9. Prosecutorial Propositions And Perceptions :
On behalf of the State, it has been, vehemently, contented that the prosecution has, successfully, compaginate the culpability of the accused persons as charged beyond any shadow of doubt. The evidence of eye-witnesses, is reliable and dependable. Their evidence is, also, fortified by documentary evidence as well as circumstantial evidence. The contentions raised before the trial Court as well as before the Division Bench, at the time of hearing on the first occasion, have been reiterated before this Court, and it has been, strongly, canvassed that the 24 points concluded by the trial Court and the approach in analysing and evaluating the evidence is not totally supportable and is wholly unsustainable. In short, the main submission of the prosecution has been that the culpability of all the accused persons, as charged by the trial Court, has been succinctly, soundly, and beyond reasonable doubt proved. Giving of benefit of doubt in the light of the facts and circumstances emerging from the record of the present case by the trial Court is not only unreasonable, unjust, but also manifestly perverse and the result of non-application of mind and no conclusion other than conviction can be recorded, in the light of the voluminous evidence led by the prosecution.
10. Defence Of The Accused :
Essentially, the common defence is of total denial. On behalf of the defence, it has been strongly contended that the impugned acquittal judgment is sound and sustainable. The ultimate conclusion of acquittal against all the three accused persons recorded by the trial Court giving them benefit of doubt is the only possible view which could be recorded in the light of the facts and circumstances and the evidence on record. The defence has also reiterated the submissions raised before the trial Court and the Division Bench before this Court also. It has been, vehemently, submitted that the ultimate conclusion of acquittal is based on correct and proper appreciation and analysis of the evidence; and it cannot be said that the view taken by the trial Court in recording acquittal against all the accused persons is, in any way, tainted or is vulnerable. 24 points summarised and articulated by the trial Court in support of the ultimate conclusion recording acquittal against all the accused persons are fully supported. It was, also, submitted before this Court that merely because another view could be taken on the appreciation and evaluation of the evidence, would not entitle this Court to exercise the powers under Section 378 of the Cr.P.C. to quash the acquittal and convert it into conviction. Thus, on behalf of the defence, the acquittal judgment under challenge in this appeal, at the instance of the State, under Section 378 of the Cr.P.C. is fully supported.
The trial Court has held that though the deceased Shekhar has died a homicidal death, the prosecution has not succeeded beyond reasonable doubt that the accused persons are responsible for the death of deceased Shekhar. In support thereof, various reasons and circumstances are assigned which are summarised and articulated in 24 points in Para 187 of the impugned judgment, to which reference will be made hereinafter.
11. Evaluation Of Medical Evidence :
It is therefore, explicit that the factum of homicidal death of deceased Shekhar is not at all in dispute. However, it may be noted that the post-mortem notes produced at Exh. 18 in the trial Court manifest that the post-mortem was performed between 7-20 p.m. and 8-20 p.m. on the same day of incident, like that, on 19th July, 1988. The post-mortem was performed by Dr. Bharat Jayantilal Vyas, who is examined, at Exh. 17. The report of the cause of death is produced at Exh. 19, It is, clearly, revealed from the post-mortem report that the dead body was received for post-mortem, at 7-12 p.m., on 19th July, 1988, and the clothes put on by the deceased Shekhar were found soiled with blood. The post-mortem lividity and rigidity had been found absent. The clothes of the deceased, namely, cream colour zabba and pyjama and coffee colour nicker were blood stained. The inquest panchnama is produced at Exh. 47.
12. The post-mortem report at Exh. 18, disclosed following three external marks of injuries :
(A) (1) Stab wound on anterior aspect at left side of lower part of chest 1"x1/2" size as on inspection 1" above and lateral to the ziphoid process of the sternum over the left 6th costal cartilage and piercing the 6th costal cartilage upwards, backwards and medially.
(2) On the left side of anterior abdominal wall abrasion was seen, which is lateral to umbilicus.
(3) 2.1/2" below and lateral to umbilicus on left side in left iliac fossa to 3/4"x1/2" size stab wound as on inspection piercing the anterior abdominal wall upwards, backwards and medially.
13. The post-mortem report, also, disclosed following marks of internal injuries :
(B) (1) Stab wound piercing the left 6th costal cartilage upwards, backwards and medially.
(2) Pericardium covering the left ventricle of the heart is pierced by the above-mentioned stab wound on chest. Left ventricle of the heart is pierced by the above-mentioned stab wound on the chest with profuse intra-thoracic haemorrhage.
(3) Abrasion on left side of anterior abdominal wall just lateral to umbilicus.
(4) Stab wound 3/4" x 1/2" in size as on inspection below and lateral to umbilicus in left elia fossa piercing in the anterior abdominal wall upwards, backwards and medially.
Prosecution witness No. 2, Dr. Vyas, who, performed post-mortem report, has, clearly, testified in his evidence at Exh. 17. that external injury Nos. 1, 2 and 3 could be caused by a sharp-cutting instrument like the knife produced at Art. No. 7. The internal injury to the heart and pericardium was corresponding to external injury No. 1. It was a continuous injury going to the heart. He has clearly stated in his evidence that external injury No. 1 was sufficient in ordinary course of nature to caused death. He has further testified that it was not possible to state that external injury No. 3 was sufficient to cause death or not. In the opinion of Dr. Vyas, the definite cause of death was injury on the heart bleeding to rupture of the heart intra-thoracic haemorrhage.
Prosecution witness No. 2, Dr. Vyas, examined, at Exh. 17, who had conducted the post-mortem examination, clearly, unfolds that there were three external injuries found on the body of the deceased, one being a stab wound on the lower part of the chest, second being an abrasion only on the left-side of the anterior abdominal wall just lateral to umbilicus and the third being stab wound 2 1/2" below and lateral to umbilicus on the left in left iliac fossa. The internal injury corresponding to the first stab wound pierced the pericardium covering the left ventricle of the heart leading to profuse intra-thoracic haemorrhage and death. It is, also, found from the medical evidence and the evidence of Dr. Vyas that such injuries were possible by knife like the muddamal Article No. 7. The post-mortem was performed two hours after the incident and there was no post-mortem rigidity nor any post-mortem lividity on the dead body. It is also clear from the medical evidence that there was intra-thoracic haemorrhage and that it was not necessary that considerable amount of blood could have fallen on the ground or that the victim would not be in a position to stand after receiving the external injury No. 1.
14. Highlights Of Evidence Of M.O., Dr. Asher, Exh. 56 :
Prosecution witness 14, Dr. A. D. Asher, is examined at Exh. 56, who has clearly stated that on 19-7-1988, the deceased Shekhar was brought around 5-00 p.m. to the hospital when he was on duty and that he had examined him and found that he was not conscious. There was no pulse and no respiration. There was bleeding and the extremities were cold clammy. He found that Shekhar was dead. The medical case was prepared on the prescribed form for the purpose of record and on receiving the case paper, he had examined the patient. It is, also, noted by him in the case paper that deceased Shekhar was brought by one Parshottam Manubhai Kabariya, prosecution witness No. 4. The O.P.D. case paper prepared was given Case No. 25378. He had also written the history of the stab injury on the abdomen. Obviously, he had started, initially, providing revival therapy, like that, resuscitation and made effort to restart the respiratory system and tried to give medicine for that purpose. But he found that the patient was brought dead.
15. Dr. Asher had declared the deceased dead, at 5-10 p.m. on the same day of incident and he sent yadi Exh. 73 to the P.I. and ordered to keep the dead body in the mortuary for the purpose of post-mortem examination. He had, thereafter, left the hospital when Dr. Vyas came and who had conducted the post-mortem examination. Dr. Asher has, clearly, testified that the case paper produced at Exh. 77 was original case paper prepared by him. Here, one interesting story is sought to be introduced by the defence. The version is that case paper, Exh. 77 prepared by him was sought to be eclipsed by introducing a xerox copy of the subsequently reconstructed case paper, which xerox copy was admitted in the trial Court in the evidence at Exh. 88. It is pertinent to note here, at this stage, that, for the first time, on behalf of the accused persons in the cross-examination of this witness, Exh. 88, reconstructed xerox copy was admitted in evidence. As it appears, the attempt came to be made to show that in the reconstructed case paper, there was no name of prosecution witness No. 4, Parshottam Manubhai Kabariya. Undoubtedly, the name of prosecution witness No. 4. appeared on the top of original case paper, Exh. 77.
16. It will be also pertinent to refer, at this stage, from the evidence of Dr. Asher that he had admitted in his cross-examination that when he was required to find out the original case paper, Exh. 77, it was not available and traceable and he being under pressure, it was reconstructed and the xerox copy of which was given, which is produced at Exh. 88. It is clearly stated by Dr. Asher in his evidence that the xerox copy of Exh. 88 was not prepared from the original case paper because the original case paper was not traceable and it was reconstructed on the basis of the register. Be it noted at this juncture, that the defence has earlier applied by an application, Exh. 51, dated 3-1-1991, for production of those registers. No attempt was made on behalf of the defence to get the original of the xerox copy of the exhibit produced which was in the possession of the defence and Dr. Asher was only confronted with such a xerox copy.
17. No doubt, in the medical register, name of prosecution witness No. 4, Parshottam Kabariya had not been shown as the person who brought the dead body and according Dr. Asher, he had written that name in his own handwriting on the original case paper at Exh. 77. The prosecution had also applied for summoning the original of xerox of Exh. 88 by giving application Exh. 120. The defence had strongly, objected for the production. Despite the fact that defence had suddenly produced xerox copy of Exh. 88 in course of cross-examination of Dr. Asher, the Civil Surgeon of Amreli, later on declared by giving application Exh. 121 dated 11-2-1991 that there was no such original of Exh. 88 in the record of Civil Hospital.
18. It could safely be noticed that the persons who had got the case paper reconstructed, the xerox copy of which is at Exh. 88 from Dr. Asher in the office of the hospital on the ground that the original case paper, Exh. 77, was not traceable ought to be a smart person to see that it did not remain in the record of the hospital after taking xerox copy of it and supplying it to the accused persons. It radiates an imprint of manoeuvring and trickery. Obviously, therefore, such an attempt should and could not affect the authenticity of the original case paper Exh. 77 which cannot be disputed to be a contemporaneous record prepared, at the relevant time. It is really surprising that the reconstructed case paper of which Exh. 88 is the xerox copy was made after 19-11-1990 from the entries in the registers and not from the original case paper Exh. 77. Obviously, therefore, they cannot be compared for clearing a doubtful cloud of doubt unsuccessfully sought to be created with regard to Exh. 77 by the defence. It appears that the vision was sought to be coloured or influenced in course of cross-examination of Dr. Asher when he was replying about the original case paper Exh. 77 as he was suddenly questioned whether he had agreed Exh. 77 was not prepared at the time of treating the deceased Shekhar and was subsequently got up.
19. Of course, Dr. Asher had stated that he did not recollect and a cloud came to be, therefore, created upon such an answer and even submission was made in this behalf being oblivious to the clear and affirmative statement of Dr. Asher that Exh. 77 is the original case paper in which he had written the name of Mr. Parshottam Kabariya, P.W. 4, who had brought deceased Shekhar. Even on being questioned about the comparison of Exh. 77 with Exh. 88 case papers, Dr. Asher has in, unequivocal terms reiterated that Exh. 77 case paper was the original one which was traced out and given to him under a receipt of 20th November, 1990. He has clearly disapproved the suggestion in Para 14 of his deposition, at Exh. 56 that Exh. 77 case paper was a document which was got up subsequently or that he wrote the contents of Exh. 77 under pressure. The reconstructed document came to be made in the month of November, 1990 from the entries in the registers and not from the original case paper Exh. 77. Obviously, therefore, the attempt to ignore Exh. 77 and thereby to believe that prosecution witness No. 4 was not reliable is nothing but an unsuccessful attempt on the basis of a cloud which was sought to be created about the reconstructed case paper, at Exh. 88. It is rightly said a drowning man will try to catch a straw.
20. After giving careful consideration and passionate comparison and examination of Exh. 77 and Exh. 88, there would not be any iota of doubt that Exh. 77 medical case paper carries intrinsic weight and worth. To indicate that it was an contemporaneous original case paper, there was clear indication of the declaration of death, at 5-10 p.m. and even as per the testimony of Dr. Asher, he had declared before the relatives of the deceased Shekhar that he was dead, at 5-10 p.m. According to Dr. Asher, he had gone away after 5-10 p.m. on that day when Dr. Vyas took charge. It will be interesting to mention, at this juncture, that in the xerox copy at Exh. 88, medical case papers which was subsequently reconstructed, the time of death was mentioned, as 5-15 p.m. As regards the particulars of the body being brought by prosecution witness No. 4, Dr. Asher had written his name as Parshottam Manubhai Kabariya, whereas, his father's real name is Hanubhai. It is pertinent to state here that there is a remark about Shekhar being unconscious with a question mark in Exh. 77 case paper which is conspicuously absent in xerox copy Exh. 88.
21. After having taken a close look into the entire medical record and the evidence of Dr. Asher and the manner and mode in which Exh. 88 came to be produced in the cross-examination of Dr. Asher, there can be no any manner of doubt that medical case paper Exh. 77 was the original one and the unsuccessful effort to create confusion to contend that name of prosecution witness No. 4, Parshottam, did not figure in the xerox copy of the reconstructed case paper Exh. 88, does not in the circumstances of the case lend any reinforcement to the version of the defence.
22. How could it be conceived even for a moment that the prosecution would be interested in removing the name of P.W. 4 from the record? It will be also material to note that it has not been explained as to the source of xerox copy of Exh. 88 case paper, the original of which was not traced from the record of the hospital as declared by the Civil Surgeon, by Exh. 121. In any case, there is sufficient evidence on record to show that P.W. 4, Parshottam had gone to the hospital taking Shekhar immediately after the incident. P.W. 4, Navnit, eye-witness to the incident had also accompanied. Exh. 77 is fully supported and reinforced by the evidence of eye-witness, P.W. 1, Navnit and also corroborated by the factum of mention of names of both the witnesses, namely, Navnit, P.W. 1 and Parshottam, P.W. 4 in the F.I.R. which was lodged within an hour's time after the incident. It must be remembered that "what is the use of polishing the brass when whole ship is sinking ; Probably, defence made one more vain attempt to dynamite potent and cogent evidence.
Appraisal Of Evidence Of 1st Eye-Witness-Cum-Complainant-Exh. 15 :
23. The prosecution has placed strong reliance on the evidence of eyewitness and complainant, P.W. 1, Navnit Radial, who is examined at Exh. 15. His evidence is very important. He was having a pan-beedi shop in Chorapa area and he new very well the deceased Shekhar who was also residing in the same area. According to his evidence, on the day of incident, deceased Shekhar and he had started from the shop of deceased Shekhar and when they reached near Patel Restaurant near Rajkamal Chowk on Tower Station Road in Amreli Town, all the accused persons were standing near Patel Restaurant. A-1, Raghu and A-3, Sanjay caught hold of deceased Shekhar by his hair and hands and took him near Patel Restaurant where A-1, who was armed with iron rod inflicted blow with the said iron rod on the person of deceased Shekhar while, A-3, Sanjay had caught hold of both his hands from back-side. Thereafter, A-1, Raghu, spoke that Shekhar should be finished off and thereafter A-2, Ghana, son of A-1, took out a knife from his pocket and gave three blows on the chest and abdomen of Shekhar, as a result of which Shekhar started bleeding and he and one P.W. 4, Parshottam stopped an auto-rickshaw driven by one Rameshchandra Umiyashankar, P.W. 7 and at that time, the accused persons were standing there. It is also in his evidence that an old lady was in the rickshaw who alighted the rickshaw on being requested as the injured Shekhar was to be taken to the hospital. Thereafter, P.W, 1, took Shekhar to the hospital and when Shekhar was taken to the hospital, he was unable to speak as he was unconscious.
P.W. 1, Navnit, has stated in his evidence that the incident had occurred, at about 4-45 p.m. on 19-7-1988 and Shekhar was declared dead by the doctor on reaching the hospital. The dead body was consigned to the mortuary. According to his evidence, on the same day between 5-30 p.m. and 5-40 p.m., Police had reached the hospital and his complaint was recorded by the Police sitting in the Police jeep. The said complaint is produced, at Exh. 38 in the trial Court, He, thereafter, accompanied the Investigating Officer (I.O.) to the venue of offence where panchnama, Exh. 54, was drawn between 7-00 p.m. and 8-00 p.m. he also was taken to the hospital to identify the clothes of deceased Shekhar. He had also identified the shoes of the deceased. Despite searching cross-examination, the evidence of this eye-witness who is the complainant has remained very supportive and strong, insofar as, the main core and prosecution version is concerned. He and deceased were friends. They were, also, neighbours. The deceased and he had pan shop and he used to visit the pan-shop which is known as "Aarti" pan shop. Both of them had left before the incident for going to Patel Restaurant for snacks. Of course, it may be mentioned that he has admitted in the cross-examination that he had not intervened in the incident, he had not tried to snatch away the iron road which was with accused No. 1, Raghu. It is also clearly admitted that he did not use any force to rescue Shekhar from the clutches of accused No. 1, nor had he raised any shouts. After the knife blows, the deceased Shekhar has sustained serious injuries, and therefore, P.W. 1, Navnit and P.W. 4, Parshottam had caught hold of him. It is also admitted by him that he did not state in his complaint that the injured Shekhar was taken in an autorickshaw at the Civil Hospital. He also, could not say as to whether A-1, Raghu had given iron rod blow on the person of deceased with or without force. The evidence of eye-witness complainant, P.W. 1 Navnit is also reinforced by the F.I.R., Exh. 38.
Analysis Of The Evidence Of 2nd Eye-Witness - P. W. 4 Exh. 30 :
24. The prosecution has, also, placed reliance on the evidence of eye-witness, P.W. 4, Parshottam Hanubhai, at Exh. 30. His evidence, also plays a very important role in determining the merits of the case of the prosecution. Of course, it is the allegation of the defence that this witness was not present and he is not reliable as he has committed some offence in past of prohibition and Chapter case had also been filed against him and also that he was very close with the family of the deceased. No doubt, after having carefully examined the entire evidence of this witness, the allegation of the defence that he was not an eyewitness and his evidence is not reliable is not acceptable. His evidence corroborates the version of the prosecution and the evidence of eye-witness and complainant, P.W. 1, Navnit.
25. It is testified by P.W. 4, Parshottam Hanubhai, in his deposition, at Exh. 30 that on the day of incident he had started at about 4-30 p.m. towards Patel Restaurant so as to purchase a lactometer as he was dealing with milk business. When he reached near the venue of offence, at that time, he saw A-1, Raghu, A-2, Ghana and A-3 Sanjay dragging Shekhar towards the "Saghda" (hearth) of Patel Restaurant by holding him with hand and hair. The expression "Saghda" means a big hearth embedded with the earth for preparing snacks, about which there is no dispute. It is stated by this witness that A-1, Raghu was armed with iron rod and A-3 Sanjay had caught hold of Shekhar's hands from behind and A-2, inflicted an iron blow to Shekhar and directed A-2, Ghana to finish him off. Thereafter, A-2, Ghana, taking out a knife gave three blows, one after other, on the person of Shekhar. A-3, Sanjay had caught hold of the hands of Shekhar from behind when knife blows were dealt by A-2. It is, also, testified by him that he and P.W. 1 complainant, Navnit, went near Shekhar, as a result of which the accused persons fled away towards Rajkamal Chowk side. He and complainant, P.W. 1, stopped an autorickshaw passing from that road which was coming from the direction of Tower Road side, in which there was an old lady who was requested to get down and she accepted the request as she had to go to Nana Bus stand. He and P.W. 1, Navnit, thereafter took Shekhar to the hospital.
P.W. 4, Parshottam, in his evidence at Exh. 30, also, clearly stated that he had asked Shekhar as to why he was beaten to which Shekhar replied that A-2, Ghanshyam had told A-1, Raghu that Shekhar was a big bully (in vernacular it is stated as "Dadano Dikro"). After taking Shekhar to hospital, the doctor declared him dead. The statement of this witness came to be recorded at about 9-00 p.m. on the same day by the Police. It is, also, stated by him in his evidence that accused persons got away with their weapons towards Rajkamal Chowk side. He also identified all the three accused persons. This witness had also undergone a lengthy and detailed cross-examination on multi-dimensional aspects. He has, also, admitted that neither he nor Navnit (P.W. 1) raised shouts for help nor called any Police from the police point. He has stated that the their attention was focused on providing immediate medical aid to the injured Shekhar.
During the searching cross-examination, he has admitted that he had contested for Municipal election in 1986 as an independent candidate from Manekpara Ward No. 10/1 and A-1, Raghu had also contested the election, but from different ward in the same election. The suggestion that he had withdrawn his candidature with a view to oblige some other candidate is denied. It is, also, found from his cross-examination that deceased Shekhar had not fallen on the ground after receiving injuries as he and P.W. 1-Navnit caught hold of Shekhar by his hands, and thereafter, also, he had not fallen down. P.W. 1, complainant, Navnit had caught hold of Shekhar's left upper arm, whereas, this witness had caught the right upper arm of injured Shekhar. Insofar as the main theme of the prosecution case is concerned, the testimony of this witness, P.W. 4, Parshottam, corroborated and supported it and lends material reinforcements to the evidence of the complainant, eye-witness, P.W. 1. There is intrinsic worth and weight in this testimony and there is no reason to discard his evidence.
The contradictions on which the defence placed reliance have been brought out in the deposition of this witness in Para 33, at Exh. 30, but in the opinion of this Court, they do not affect the main substratum of the prosecution case. The contradictions brought out on record are quite at micro-level and they do not dislodge the intrinsic worth and the credibility of his testimony. The rejection of the evidence of P.W. 1, Navnit who is an eye-witness and complainant and also the evidence of P.W. 7, Parshottam by the trial Court upon minor contradictions has resulted into miscarriage of justice.
Testimonial Appraisal Of P.W. 7 - Mr. Ramesh - Exh. 43 :
26. The prosecution case is further reinforced by the evidence of P.W. 7, Ramesh Umiyashankar, who is examined before the trial Court, at Exh. 43. He was driving autorickshaw No. GRX 7142. According to his testimony, on the day of incident at about 4.30 p.m. he started from Derasar Chowk to Nana Bus stand to drop one old lady passenger. When his autorickshaw reached near Patel Restaurant, on that day, he had found that about 10 to 15 persons had collected there. He also, found that the complainant, P.W. 1, Navnit and P.W. 4, Parshottam, were holding Shekhar at a distance of about 2 feet away from the road. The complainant, Navnit, stopped his autorickshaw and requested him that injured Shekhar was to be taken to the hospital. He had also found that Shekhar was bleeding. He, therefore, requested the old lady passenger to get down so as to make way for injured Shekhar for being taken to Civil Hospital for treatment. The old lady had, therefore, accepted the request and got down saying that her destination was also not far.
It is also very clear from his evidence that the complainant, P.W. 1, Navnit, and P.W. 4, Parshottam, arranged to place injured Shekhar in his autorickshaw and Navnit had sat in the front seat on his right in the rickshaw and the injured Shekhar was taken to the hospital in his autorickshaw and after waiting for about five minutes, he had left and subsequently, he was called by the Police, at about 9-45 p.m. on the same day for recording his statement. The deposition of P.W. 7, Ramesh, undoubtedly supports the prosecution case and the testimony of P.W. 1 Navnit and P.W. 4, Parshottorn. Despite, unduly long cross-examination, his evidence has supported the prosecution case and the testimony of P.W. 1 Navnit and P.W. 4, Parshottam.
Of course, the trial Court did not rely on his evidence. After having given close and anxious thoughts to his evidence and careful scrutiny thereof, some of the inconsistencies and contradictions which weighed with the trial Court are found to be quite trifle and trivial in nature. In the opinion of this Court, they do not affect the main theme and the factual portrait of the prosecution case. This Court is fully, satisfied that his testimony, insofar as the main version of the prosecution concerned has remained totally unshaken. His evidence also inspires confidence of this Court. There was no any earthly reason for him to be a party in an alleged camouflage. There is no dispute about the fact that deceased Shekhar died a homicidal death. Nothing has been successfully shown or spelt out from the record or evidence of this witness which would lead to believe that he is a false witness and that in place of somebody else, he got fixed by the prosecution or the I.O. in shifting deceased Shekhar from the venue of offence to the Civil Hospital. No clear, cogent, consistent and coherent reasons are assigned even in the impugned judgment of the trial Court which would prompt this Court to accept the view taken by the trial Court in rejecting the evidence of this witness. A few insignificant variations arising out of perceptiveness of witness like him, could not be promoted to the stage of off-loading or dislodging the potency of the deposition on the main theme and the core of the prosecution case. It cannot be said that his deposition is tainted or is an outcome of tutoring. What earthly reason was there for him to create such an evidence had he not, as such, volunteered his support to transport a grievously injured person from the venue of offence to the Civil hospital? Again, had such an allegation against him been even remotely acceptable, he would have been put as an eye-witness. Learned trial Court Judge has failed to appreciate this aspect.
In the opinion of this Court, the rejection of testimony of such a witness by the trial Court does not manifest correct and positive approach. If minor inconsistencies or micro-level contradictions or an insignificant perceptions of the story as witness were to be taken or characterised as a doubtful proposition or supposition, despite the fact that the main substratum of the prosecution case is fully reinforced by his evidence, would not be correctly and properly tilting the scale or balance of justice. At times, witnesses are prompted to embellish the story or incident witnessed by them with a view to enhance the credibility thereof. It is, therefore, the duty of the Court to shift the minor inconsistencies or an untrue narration or wrong account of perceptions from the clouded truth. Inconsistency or discrepancy which do not affect the core of the story of the prosecution should not be annexed with undeserved or undue significance and that too when all important probability factors reverberate in support of the version narrated by the witnesses. Such propositions are very established, very much explored and interpreted by catena of judicial pronouncements. The relevant case-law, obviously, will be taken into consideration to highlight and reinforce the said proposition, hereinafter, at an appropriate stage when this Court will divulge to consider the case-law.
Reinforcement To The Evidence Of Eye-Witnesses :
27. The evidence of two eye-witnesses, significantly, support the prosecution case. They are also corroborated by various circumstantial evidence. The F.I.R. was lodged by P.W. 1, Navnit Ratilal, produced, at Exh. 38, immediately after Shekhar was taken by him in the hospital. The F.I.R., thus was lodged with promptitude, and it also corroborates the evidence of eye-witnesses. The evidence of rickshaw-driver P.W. 7, Ramesh Umiyashankar, who had taken the deceased in the rickshaw at the Civil Hospital along with the complainant and P.W. 4 Parshottam inspires the confidence of the Court. The muddamal knife at Article No. 7 was discovered by accused No. 2 Ghana, in the evening between 5-00 to 6-00 on the very next day after the incident. It contained blood marks. This is, also, a very important corroborative piece of evidence. The discovery panchnama of knife is produced at Exh. 93, The decision of the Apex Court in "State of Maharashtra v. Bharat Fakir Dhiwar", 2001 AIR SCW 4609 also, fully, supports this aspect.
A-2, Ghana, had discovered the muddamal knife from the field of one Bhagwanbhai Popatbhai. He had voluntarily discovered after taking the raiding party to the said place. A-2, Ghana had made night halt in the same field of Bhagwan Popat after running away from the venue of offence along knife. It will be also interesting to note, at this stage that the muddamal Article iron rod was also produced by A-1. The recovery panchnama of iron rod produced by accused No. 1 is placed Exh. 92. A-1 had also lodged N.C. complaint against Parshottam, P.W. 4 and deceased Shekhar on the next day, like that, 20-7-1988, at about 11-00 a.m. It was entered into the station diary, at Exh. 104. The N.C. register Exh. 96, was also, produced before the trial Court in the evidence of Head Constable, Dahiben Shrimali, P.W. 16 at Exh. 94.
28. The N.C. complaint filed by A-1 and produced, at Exh. 96 against P.W. 4 and deceased Shekhar was lodged voluntarily. A-1, had also produced iron rod which was recovered under panchnama. The blood-stained shirt of A-2 was also seized under panchnama, Exh. 92. It will be material to state at this stage that as per the Serologist's report, Exh. 130, the blood-stains clothes and the blood group of deceased Shekhar was common. In other words, the blood-stains were of blood group 'O' which was the blood group of deceased Shekhar.
29. All these facts and circumstances, fully support the core and substratum of the prosecution version and the nexus of death and the infliction of blows by A-2 is fully proved. The Medical Officer, P.W. 2, Dr. Vyas has also fully supported the version of the prosecution that the fatal blow sustained by the deceased was possible by muddamal Article 7 knife discovered by accused No. 2.
30. After having taken into consideration the testimony of two eye-witnesses, the evidence of rickshaw driver, P.W. 7, Ramesh Umiyashankar, the medical evidence of Dr. Vyas and Dr. Ashar, the discovery of muddamal knife by accused No. 2 and recovery of iron rod before the Police by the accused No. 2 and the fact that the F.I.R. which was immediately lodged disclosing the names of the accused persons and the blows given by A-1 and A-2, the find of some blood group marks and the stains on the clothes of A-2 and many other circumstances and documentary evidence, the prosecution has successfully established the culpability of accused No. 2, Ghana, who had given three knife blows and one of them was fatal which took the toll of the life of deceased Shekhar and the presence and involvement of accused Nos. 1 & 3 beyond reasonable doubt. There is clear, consistent, coherent and convincing evidence on record to compaginate the accused persons with the complicity they are charged with beyond reasonable doubt.
31. The trial Court has not held the accused persons guilty and acquitted from the charges against them giving benefit of doubt mainly on 24 reasons given in Para 187 of the impugned acquittal judgment and order dated March 25, 1991.
32. After taking into consideration the 24 reasons assigned by the trial Court, while viewed in the light of the entire proved tactual profile of the prosecution case, coupled with the relevant and material principles of criminal jurisprudence and the proposition of law in appreciation of evidence, they are noticed to be wholly vulnerable and fully unsustainable.
24 Grounds Relied On For Acquittal By Trial Court :
33. In course of the discussions hereinbefore, some of the 24 reasons which weighed with the trial Court in rendering the impugned judgment and order of acquittal against the accused persons in Sessions Case No. 70 of 1988, all the important reasons are dispassionately and seriously considered and in the opinion of the Court, they are found to be not germane and wholly unsustainable. However, it would be interesting to refer and reproduce those 24 reasons on which heavy reliance is placed by the trial Court in passing the impugned judgment and order of acquittal against the accused persons, as follows :
(1) According to the case of the prosecution, Navnit Ratilal is an eye-witness of the incident. However, he is connected with the deceased and his past history is not clean and good. There are contradictions between his deposition before the Court and the First Information Report lodged by him. Similarly, there are contradictions between deposition before the Court and the deposition of another eye-witness Parshottambhai Hanubhai. There are some circumstances, which have been referred to in the discussion in the body of the judgment, which also leaves the Court that deposition of these eye-witnesses cannot be accepted without any doubt or demur, namely, after the incident, he reached Civil Hospital, and thereafter, he remained silent' and without doing anything. He helped deceased Shekhar in boarding rickshaw. He also lifted Shekhar from the rickshaw. Still however, his clothes were not blood-stained, etc. (2) The deposition of another eye-witness is considered and from the same, it is clear that he is a chance-witness. His deposition is not consistent with his statement before the police and the deposition of the complainant, Navnit Ratilal. The blood-stains are not found on his clothes also. He was also not taking any steps or doing anything after reaching the Civil Hospital. Under the circumstances, his deposition cannot be accepted. According to his say, deceased Shekhar made dying declaration, which is contrary to the medical evidence, and therefore, the same cannot be believed and accepted.
(3) The Panchas of the panchnamas are mainly from Chorapa area where the deceased Shekhar was residing. The Panchas are in one way or other not found trustworthy and reliable. While preparing panchnamas, instead of calling panchas from the same locality, why residents of Chorapa are selected as panchas is not satisfactorily explained by the prosecution and this is merely a coincidence which cannot be believed and accepted.
(4) There is no reference to the shoes put on by deceased Shekhar in the inquest panchnama or post-mortem notes, whereas the same were seized by making a panchnama and have been produced as muddamal before the Court. The Medical Officer is also not saying anything about the shoes. The Constable, who was handed over the same by the Medical Officer and from whom the same were seized under the panchnama, is not examined as witness by the prosecution in the case.
(5) The prosecution case is that motor-cycle was seized from the scene of offence as accused Nos. 1 and 2 came at the scene of offence on the said motor-cycle. However, how the motor-cycle came at the scene of offence is not proved by the prosecution by producing any reliable, cogent and relevant evidence before the Court.
(6) From the evidence, it transpires that the Investigating Officer, when reached the Civil Hospital first time, was not having any information about the incident. In spite of that, evidence is to the effect that, he went with the panchas who were panchas of the inquest panchnama, in his jeep. This also not explained by the prosecution that from where the said panchas joined, why they joined and why Investigating Officer came with panchas at the Civil Hospital. But, the Investigating Officer is deposing that the panchas of inquest panchnama were called after he reached the Civil Hospital.
(7) The Investigating Officer was having blank papers, carbon papers, when he recorded First Information Report Exh. 38. In spite of that, he did not prepare copy of First Information Report at that time and also he did not hand over copy of the First Information Report to the first informant. The Investigating Officer could not give any acceptable explanation for that. The law provides that copy of First Information Report is required to be given to the first informant compulsorily when it is recorded.
(8) After the First Information Report is written down, and thereafter, it was sent for registration to the Police Station, and it came back after registration, eye-witness, Parshottam Hanubhai was with the Investigating Officer and the Investigating Officer was not doing anything at that time. The Investigating Officer has not recorded statement of Parshottam Hanubhai. Not only that, the statement of Parshottambhai Hanubhai was not recorded till 9-00 p.m. This delay in recording statement of Parshottambhai Hanubhai is strange.
(9) It is also noteworthy that investigation of this case was completed with exceptional speed. Within three days, charge-sheet was ready and the higher officer granted his approval to the same. This circumstance may not exhibit anything, but it certainly shows that the incident was special in which the police also carried out investigation with utmost speed, either they have done it on their own or they were made to do it.
(10) According to the case of the prosecution, blood-stains at the scene of offence were washed away because of rain, when the panchnama of scene of offence was drawn, whereas, as per the deposition of the eye-witness, at the time of incident, there was no rain and there was no atmosphere of rain. The evidence is also to the effect that at the scene of offence there is roof of about 5 feet length which is made for giving protection to Saheda (earthern stove). In view of this situation, even if there was rain, whether blood-stains were washed off or not, is a question of doubt, and therefore, a theory is propounded during deposition of the witness that Shekhar did not fall on the ground after receiving injuries whereas muddamal jhaba which Shekhar was wearing at the time of incident, were having marks of blood-stains at the back side also. The medical evidence also shows that there was a profuse bleeding because of injuries. Thus, there is as contradictory case put forward by the prosecution about the mark of blood-stains at scene of offence which raises a doubt.
(11) After the incident, after receiving the injuries, Shekhar was standing is the version of the witness of the prosecution, and while boarding the rickshaw, he made dying declaration, are not consistent with the medical evidence.
(12) The pancha of scene of offence stated in his deposition that, on the date of the incident, when he passed near the scene of offence, there was rain at that time, to show that there was rain after the incident. The panch further deposed that there was rain in whole Amreli town, whereas, the first informant deposed that even there was no atmosphere of rain. If there was rain, then deceased and the first informant would not have gone for roaming and the accused also would not have been standing there.
(13) If there was rain after the incident, and because of that, mud was formed, then, how mud was there on the shoes of deceased Shekhar.
(14) When the deceased and the first informant, Navnit Ratilal, were not knowing whether exactly they were to go, then how the accused came to know that the deceased and the first informant were to come at the scene of offence and at the time of the incident.
(15) According to the deposition of eye-witness, Ramesh Umiyashankar, blood-marks were there on the seat and foot-rest of the rickshaw. In that circumstances, there must be considerable blood in the lengha and jhaba put on by deceased Shekhar, specifically on the back side of the lengha and the seat of lengha and back side of sleeves of lengha, but no such blood marks were found at the above-stated places of jhaba or lengha.
(16) Blood-marks are found on the shoulder of jhaba put on by the deceased Shekhar at the time of the incident and if Shekhar was standing after receiving injuries, how blood-marks were found at that place of jhaba?
(17) Shoes of deceased Shekhar were marked with mud and was having mud on it. It is not the case of the prosecution that, before the incident or at the time of incident, there was rain. Shekhar was taken to the Civil Hospital in the rickshaw after the incident. Then, how mud was found on the shoes of Shekhar.
(18) The blood-marks were found on the shoulder part of jhaba, on the back of the jhaba and on the sleeves of jhaba which was put on by Shekhar at the time of incident. If the incident had occurred as deposed by Navnit Ratilal and Parshottam Hanubhai, and if the injuries were inflicted, and Shekhar did not fall on the ground, the above-referred blood marks could not be found at the place where they are alleged to have been fpund, and therefore, either Parshottambhai Hanubhai and Navnit Ratilal are not telling the true facts about the incident or they have not seen the incident at all.
(19) There are blood-marks on the back side of bush-shirt, on the collar of bush shirt and near wrist of sleeves of bush-shirt put on by accused No. 2 which were seized by the police. Witnesses Navnit Ratilal and Parshottambhai Hanubhai are not saying anything about the same. If the incident was occurred in the manner in which the same is narrated, blood-marks could be only found at the front part of bush-shirt, and therefore, either they are not telling the true facts about the incident or they have not seen the incident.
(20) The blood group of accused No. 2 is not known. The blood-marks found on the bush-shirt of accused No. 2 are of the blood group of Shekhar. That can only be concluded and nothing else can be concluded from that fact. It is not proved in this case that blood group of the accused No. 2 is different from the blood-group of deceased Shekhar.
(21) Navnit Ratilal and Parshottambhai Hanubhai, who are claimed to be eyewitnesses of the incident, have not stated a word in the deposition while deposing about the incident regarding sheath of knife, and they are totally silent about sheath of knife. It is their case that Ghanshyam brought out a knife from his pocket and inflicted blows on Shekhar with knife. They did not say anything whether that knife was with sheath, whether knife was pulled out of their sheath and accused No. 2 threw sheath at the place of incident or sheath of knife was dropped at the scene of offence.
(22) The case of the prosecution is that after the incident Navnit Ratilal and Parshottambhai Hanubhai took deceased Shekhar to the Civil Hospital. According to their say, after they reached the Civil Hospital, the doctor declared Shekhar dead, and thereafter, dead body was taken near postmortem room. According to the say of the doctor, a prepared case paper was produced before him. There is no evidence coming before the Court that who got that case paper prepared. Question arisen is that who gave name of deceased, name of father of deceased, age of deceased, income of deceased, etc. to the person who prepared the case paper.
(23) How accused Nos. 1, 2 and 3 are related with other. There is no evidence about the same. There is only conclusion that the accused Nos. 2 and 3 are friends.
(24) According to the case of the prosecution, accused Nos, 1 and 2 came at the scene of offence on the motor-cycle. There is no evidence on the record to show that from where accused No. 3 came, how he came, and he did not accompany accused Nos. 1 and 2.
Total Immateriality (sic.) And Vulnerability Of 24 Aforesaid Grounds : Points Relied Upon
34. Point No. 1 : The evidence of the eye-witness complainant, Navnit Ratilal is discarded by the trial Court and not relied on because of his past history and the contradictions between the deposition before the Court and the F.I.R. and also the contradictions between his deposition before the Court and the deposition of another eye-witness, P.W. 4, Parshottam Hanubhai. The evidence of eye-witness cannot be discarded or discounted, merely, because his past history is not clean and good even if it is proved. Of course, so is not proved to the hilt. His evidence cannot also be totally rejected merely because he happened to be a friend of deceased Shekhar. The contradictions which are quite at micro-level and insignificant would not be sufficient to dynamite the otherwise creditworthy narration of the account of incident witnessed by him. A friend or a relative of a victim of capital crime would not be interested to let off the real offender and rope in an innocent person. Their anxiety, on the contrary, would be to see that the real wrong-doer or the criminal is brought to the book. This proposition is very well established and settled. Otherwise, also, it is a matter of natural human conduct. Once, the evidence of eye-witness proves the guilt of the accused persons beyond reasonable doubt, his evidence cannot be discarded by merely saying that because he is a friend or a chance-witness or that there are insignificant contradictions in the evidence, much less in absence of blood-stains on his clothes, only because he had taken the deceased to the hospital. The first point is, therefore, neither reasonable, legal, or logical to fully discard his testimony. At times, minor contradictions and insignificant discrepancies which do not affect the main core of the prosecution case are the guarantee of the truth.
35. Point No. 2 : The trial Court has fallen in a trap in holding eyewitness as a chance-witness. Again, the absence of blood-stains on the clothes of eye-witness complainant, Navnit is reiterated in point No. 2 by the trial Court. It is necessary to state that the evidence of eye-witness cannot be rejected merely on this ground or on the ground that he has not taken part to disperse or that he did not intercept or interfere in the scuffle. It is not correct to hold that the only dying declaration made by deceased Shekhar while he was being shifted to Civil Hospital involving the accused persons in auto-rickshaw is in any way contrary to the medical evidence. Even if it is contrary to the medical evidence and if the oral evidence of persons to whom dying declaration is made is found dependable and reliable, the witness cannot be disbelieved or dying declaration cannot be rejected. There was a gap of more than one hour and the medical evidence does not say, in clear terms that deceased Shekhar on way was unable to make any rational statement. Therefore, point No. 2 is, also, not sustainable.
36. Point No. 3 : It is really very disheartening and shocking to find from point No. 3 that reliable witnesses are not believed only because they come from and belonged to Chorapa area. It is not the area from where the witness comes from matters, but the degree of reliability of the witness that counts. Nothing has been shown from the record that the Investigating Officer was interested or partisan one, and therefore, he selected witnesses of a particular area of which deceased belonged to. There is no any justifiable material to say that it was not even a co-incidence. Such a factor should not weigh with the Court in rejecting vital and veripotent evidence of the witnesses.
37. Point No. 4 : There can hardly be any doubt that the grounds stated in point No. 4, is totally, trivial and trifle and it cannot override the otherwise creditworthy prosecution witness.
38. Point No. 5 : It is regarding seizure of motor-cycle on which accused Nos. 1 & 2 father and son came to the scene of offence from the venue of offence, why it was lying there and from where it came are not explained by the prosecution, and therefore, it is observed that this aspect would create doubt about the prosecution version. This perception of the trial Court is not only irrelevant, but unwholesome. However, it may be noted, at this stage that the said motor-cycle seized by the Police, admittedly, belonged to A-2, Ghana and he had been handed over the muddamal motor-cycle upon his request in writing during the pendency of the proceedings before the trial Court and it is also admitted that since then, the muddamal, Motor-cycle is with A-2 Ghana till today pursuant to the interim custody order of the motor-cycle passed by the trial Court in favour of A-2, Ghana. It is difficult to resist the temptation of saying that the prosecution is of course, obliged to prove the complicity of the accused beyond reasonable doubt as per the criminal jurisprudence to which we have wedded. But, it does not mean that there should be absolute proof of all the aspects. Undoubtedly, the degree of proof in proving the case of the prosecution is very high. But, it should not be considered to be absolute. Such a trivial and insignificant aspect's should not be considered when the main theme and the heart of the prosecution case is established beyond reasonable doubt.
39. Point No. 6 : The reasons stated in point No. 6 are not only unconvincing, unsustainable, but also not at all germane to the prosecution case. The Court is, always concerned with the intrinsic worth and probative weight of the evidence of the witnesses and not such other immaterial, unnecessary, micro-level aspects depicted in point No. 6 by the trial Court, with due respect.
40. Point No. 7 : The ground mentioned in point No. 7 is also totally irrelevant and immaterial. It must be noted, at this stage, that non-supply of copy of F.I.R. to the complainant for variety of reasons and/or non-preparation of copy of F.I.R. at the relevant point of time could not be taken to the level of discrediting the entire trustworthy prosecution story. It is not correct to mention that the explanation rendered by the I.O. for non-supply of F.I.R. to the informant is not acceptable. How could such an aspect, even if it is believed to be correct, at its face value as stated in point No. 7 come to the rescue of accused persons whose culpability is fully transfixed beyond reasonable doubt by the prosecution by leading clear and cogent evidence. The case-law is also very clear on this point. Non-supply of a copy cannot be treated as fatal to the prosecution case if otherwise the prosecution case is trustworthy and reliable in proving the guilt of the accused persons. Therefore, point No. 7 deserves to be thrown overboard.
41. Point No. 8 : With due respect, the reasons stated in point No. 8 is also, quite flimsy and frivolous, in rejecting the entire prosecution evidence. It cannot be held that the statement of P.W. 4, Parshottam and eye-witness was recorded late. It is true that the statement of eye-witness was recorded at 9.00 p.m. on the day of incident within four and half hours. From the record, it is explicit that the F.I.R. was lodged by eye-witness P.W. 1, Navnit in the hospital when Police reached there, after Shekhar was declared dead by the doctor upon examination. Thereafter, F.I.R. was sent for registration. The period of two to three hours in the light of the evidence on record in recording the statement of P.W. 4, Parshottam, who is also an eye-witness cannot be said to be delayed or such a conduct could be said to be strange. The grounds stated in point No. 8 are militating against the evidence on record and realising the human conduct in life as ordinarily after such a capital crime is committed when doctor has to examine a severely injured person who was unconscious, also, at the time when he was taken to the hospital and after performing necessary formalities by the Police, eye-witness P.W. 1, Navnit gave his complaint in the hospital itself which was transmitted to the Police Station or registration and after registration and the formalities were over, immediately statement of P.W. 7 Parshottam came to be recorded by the Investigating Officer. Such a ground is wholly insignificant and irrelevant to discard the testimony of eye-witnesses who are trustworthy.
42. Point No. 9 : Merely because the Investigating Officer acted promptly and expeditiously in investigation work and in submission of the charge-sheet against the accused persons within a short period of three days, is treated by the trial Court as a discrediting and discounting factor. What a great paradox? In a given case, if delay is caused, it may be a ground to be considered at the time of appreciating the authenticity of the case of the prosecution. Expeditious investigation is a creed and call and if it is followed, how could it be taken as an adverse factor? One would be at a great loss to understand. No doubt, in many cases, investigation is delayed, protracted and conducted with partisanism. So, is not the case in the present appeal. Nothing has been spelt out from the record that the Investigating Officer had an axe to grind or had extraneous reasons to wrongly rope in the accused persons. Therefore, the reason assigned in point No. 9 is also quite unsustainable. On the contrary, the expeditious, investigation and early completion of it and bringing the accused to the book by submitting charge-sheet should be taken as a favourable and supporting factor, rather than an adverse point to the interest of the prosecution.
43. Point No. 10 : Prima facie, one would be tempted to feel that some innovative and ingenious search is made by the trial Court, but when one gets into reality emerging from the record of the present case, one would, without hesitation find that it is a misconceived perception unsupported by the evidence. Contradictory case even if it is presumed to be correct in relation to the mark of blood-stains at the scene of offence, as observed by the trial Court, then also, it does not take the defence of the accused persons any further. Such an aspect is quite inconsequential and it does not at all disintegrate the entire substratum of the prosecution case. The reasons stated in this point are quite insignificant and inconsequential and it would not create any cloud of doubt insofar as the prosecution case is concerned.
44. Point Nos. 11, 12, 13 & 14 : The facts and the reasons mentioned in point Nos. 11, 12, 13 and 14 are also not very germane and material. Mere absence of blood-stains at the scene of offence in panchnama and non-find of mud-stains on the shoes of deceased Shekhar cannot be considered to be fatal to the prosecution case. Again, it may be recalled that the prosecution is not obliged to prove each and every aspect beyond reasonable doubt. The onus probandi heavily lying on the shoulder of the prosecution is to prove the main theme and heart of the prosecution case. The grounds stated in point Nos. 11, 12, 13 and 14 are in the opinion of this Court, totally unconcerned, insignificant and irrelevant when the main story of the prosecution is established beyond reasonable doubt by clear and cogent evidence to the best satisfaction of the Court.
45. Point Nos. 15 to 19 : Again, it is very surprising to find the reasons stated in point Nos. 15, 16, 17, 18, and 19. Undue and unnecessary weight is attached and significance is annexed to the blood-marks on the clothes of the deceased and non-finding of blood-stains on the shoes of the deceased. These are the factors which cannot be raised to the level of heavy cloud of doubt on the veracity of the prosecution case and rejecting the creditworthy testimony of eye-witnesses and the material circumstantial evidence corroborating the version of the eye-witnesses. One witness cannot be discarded by the narration of the another witness. It is a matter of common understanding that the perception of witnessing the incident and watching the sequences happening at the time when the actual offence is being committed cannot be expected to be like a carbon or xerox copy of all the witnesses. Human minds are unfathomable. Different persons perceive differently. Different persons give narration of sequence differently. Therefore, slight difference in sequence of narration of incident by different persons with different perceptions cannot be and should not be accepted to jettison the evidence of the eye-witnesses and substantial corroboration led to such witnesses from other sources and probative value added by the documentary evidence. All these reasons and the grounds stated in point Nos. 15 to 19 are unsustainable in creating doubt about the veracity of the prosecution case and rejecting the reliable and coherent evidence of eye-witnesses and other creditworthy circumstantial and documentary evidence.
46. Point No. 20 : In point No. 20, it is stated that the blood group of accused No. 2, Ghana, is not known. It is true and it is a fact that blood group of accused No. 2 is not taken. Therefore, what was the blood group of accused No. 2 cannot be stated. However, blood marks found on the bush-shirt of the accused No. 2 which is found blood-stained as per the Serological report is of 'O' group blood. Since, it is not proved that accused No. 2 had the same blood group as that of deceased. It cannot, therefore, be positively said that the blood-stains on the bush-shirt of accused No. 2 was only of deceased Shekhar. To this extent, the trial Court cannot be contradicted. However, it is interesting to note that the type and size of blood mark found on the bush-shirt of the accused No. 2, Ghana of blood group 'O' which was the blood group of deceased Shekhar could be also of accused No. 2 himself. In absence of any evidence much less suggestion that accused No. 2 had sustained such serious injuries on the very day. In fact, such a ground is also quite inconsequential. One thing is very certain that the conviction cannot be founded only upon the find of blood-mark on the clothes of accused No. 2 of the same blood group of deceased in absence of any other evidence and some corroboration would be insisted upon. But, so is not the case in the present appeal. The find of blood group mark of the same blood group of deceased i.e. 'O' group on the bush-shirt of the accused No. 2 who inflicted knife blows is one of the circumstances to be borne in mind. But, it appears that the trial Court in its hyper-technical and sensitive approach in analysing the evidence of the prosecution has taken it to the level of creating a cloud of doubt on the veracity of the prosecution, which is not correct and permissible when other creditworthy and strong evidence is led by the prosecution.
47. Point No. 21 : In point No. 21, it is stated by the trial Court that eye-witnesses, P.W. 1, and P.W. 4 have not stated anything about the sheath of the knife. So what? How it affects the prosecution case? Where was the sheath? How was it lying? What was the condition? AH these things are not required to be mentioned by different and every witness. Therefore, the view perceived by the trial Court in point No. 21 is also not material to discard the prosecution case nor it could prove to be fatal.
48. Point No. 22 : In point No. 22, it is stated that there is some discrepancy in the story of prosecution about the sequence of events after Shekhar was declared dead by the Medical Officer in the Civil Hospital. The trial Court has observed that how could there be a prepared case paper before the Doctor. In absence of any other evidence as to who prepared, how prepared and why prepared by giving particulars, by no stretch of imagination this aspect can be said to be in any way material or relevant. Is it necessary? What is the nexus? These are insignificant, unnecessary and irrelevant considerations which are seriously taken by the trial Court. It is really very unfortunate that the trial Court has taken light things seriously and serious things lightly. The grounds stated in point No. 22 is also of no avail. It does not affect the theme and heart of the prosecution case, which is otherwise established by cogent evidence.
49. Point No. 23 : In point No. 23, it is stated that the prosecution has not been able to show as to accused Nos. 1, 3 and 3 are related with each other and at the best it can be said that accused Nos. 2 and 3 are friends. What is the relevance of this? What is the significance of it? It is the prosecution case that accused No. 1 is the father of accused No. 2 and accused No. 3 is the friend of accused No. 2. It is not necessary for the prosecution to establish the cordiality or close relationship between the accused persons. Prosecution is obliged to prove the complicity of the accused persons beyond reasonable doubt and not the relationship as emphasized vehemently by the trial Court in point No. 23.
50. Point No. 24 : In point No. 24, the reasons stated are again quite trivial, flimsy and unwarranted. What is the necessity of proving beyond reasonable doubt as to from which side or direction accused came at the venue of offence. It is really very unfortunate and painful to mention that these are the grounds which are not at all germane to the main theme of the prosecution case. Such a ground as stated in point No. 24 would not create any doubt. It would not also affect the core and the substratum of the prosecution case.
Dynamics Of Doctrine Of Burden Of Proof And Benefit Of Doubt :
51. Obviously, proof is an integral part of any justice system. Therefore, there is a need for rules as to who must prove what. Especially, these rules are necessary for two important purposes, like that, (i) the rules will determine who has the right to call evidence first at the Court proceedings and (ii) the nature of proof would enable the Court of law to reach a conclusion as to the existence or non-existence of a fact. In criminal case, it is a matter of common knowledge that the onus of proof of complicity or offence charged with, beyond reasonable doubt lies on the prosecution from first to last. Section 101 of the Evidence Act, 1872, speaks in favour of this principle.
52. While elaborating, on the nature of proof beyond reasonable doubt, Lord Denning in Miller v. Minister of Pensions, 1947 (2) All ER 372 has, succinctly observed :
"It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt means proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course, it is possible, but not in the least probable'. The case is proved beyond reasonable doubt, but nothing short of that will suffice."
The same principles relating to rules of evidence are equally applicable in India also. It is, therefore, for the prosecution to establish the culpability beyond reasonable doubt in an accusatory system of prosecution. It is well understood that the concept of benefit of doubt is vague. The concept of benefit of doubt is, many times, misunderstood. Since years, it has been treated and observed that before granting benefit of doubt to the accused, doubt should be a reasonable one which occurs to a prudent man and not to a weak or unduly vacillating or confused mind.
53. In our existing criminal jurisprudence, it is a matter of common understanding that one has to proceed with the presumption of innocence, but at the same time that presumption is to be judged on the basis of perceptions and conceptions of a reasonable and prudent person. Smelling doubt for the sake of giving benefit of doubt is not the law of the land. It must be strictly noted that it is a well established fact that there is a difference between fantastic and flimsy plea which has to be rejected altogether. The doubt which the law contemplates is certainly not that of a weak or an unduly vacillating, capricious, indolent or confused mind. It must be a doubt of a prudent man who has assumed to possess the capacity to "separate the chaff from grain". It is a doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstance of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.
54. The trial Court while making assessment and appraisal of the evidence of the prosecution has attached undue weight and attention to insignificant and inconsequential contradictions and circumstances and aspects which has culminated into granting of benefit of doubt. The trial Court, thus, fell in serious infirmity and fallacy in rejecting the prosecution case and the evidence which has, in the opinion of this Court, as such established the complicity of the accused persons beyond reasonable doubt. Needless to mention that doubt must be of a degree which would permit reaching to a particular conclusion. Principles in this regard are, time and again, highlighted, expounded and explored by various judicial pronouncements of this Court as well as the Hon'ble Apex Court. The following principles may be stated in view of the settled legal proposition :
(i) The doubt must be reasonable and real, not fanciful. (ii) The doubt must be of reasonable man, neither a weak, meek and timid man afraid of legal consequences. (iii) Reasonable doubt is simply that degree of doubt which would permit reasonable and just person to reach conclusion. (iv) Reasonableness of doubt must be commensurate with nature of evidence to be investigated upon. Ultimately, there is element and the degree of suspicion varies from accused to accused. (v) Exaggerated deviation to the rule of benefit of doubt must not nurture fanciful doubts and thereby destroying social defence. (vi) It be remembered that justice cannot be made sterile upon doubt which is not of prudent and reasonable man.
(vii) Doubt would be called reasonable when it is uninfluenced by zest and enthusiasm for abstract speculation.
(viii) Doubt should not be mere vague appreciation.
(ix) Reasonable doubt must generate and flow from evidence on record. (x) Reasonable doubt is not an imaginary, trivial, but a doubt based upon reasons and common sense. (xi) Forensic probabilities must rest on sound common sense and finally upon a trained infusions of the Judge.
(xii) While the protection affordable to the accused of doctrine of benefit of doubt from the record of the case cannot be allowed to be eroded at the same time, uninformed legitimisation of trivialities obviously would culminate into a mockery of dispensation of justice in criminal trial.
(xiii) Reasonable doubt must have fair basis and logic and not speculation of luck.
(xiv) It is the doubt of a reasonable astute and alert mind arrived at after due application of mind to all facts. It is not a doubt which occurs to a wavering mind.
(xv) It is the doubt which occurs to a reasonable man and which has legal recognition in the realm of criminal cases.
(xvi) The doubt which can take cognizance of not that of a weak or oscillating and vacillating, capricious, indolent or confused mind.
The trial Court has rejected the evidence of eye-witness merely because one portion of evidence of eye-witness is disbelieved. This approach is not correct. The contention raised on behalf of the defence that because the eye-witness's account of the manner and mode in which the incident occurred and the sequence in which the incident took place is not proved, and therefore, their evidence is suspect is wrongly accepted, in the facts of the present case. Merely because some portion of the evidence of eye-witness is disbelieved, does not necessarily mean that the Courts are bound to reject all of it. Merely because of one portion or some portion of evidence of eye-witness is not believed, it cannot be contended that the Court is obliged to reject the entire evidence. With due respect, the trial Court has failed to properly perceive the doctrine of "Falsus in uno, Falsus in omnibus", which means false in one thing, false in everything. It is now very well established principle that "falsus in uno, falsus in omnibus" does not apply to criminal trials and it is imperative for the Court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the evidence on its entirety merely on the basis of a few infirmities. This doctrine is not a sound rule to apply in conditions of our country, and therefore, it is the duty of the Court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining of the evidence is found trustworthy and the substratum of the prosecution case remains intact then the Court should uphold the prosecution case to the extent it is considered safe and trustworthy.
55. The mere fact that the evidence of the prosecution witnesses was not firm and sate enough to be relied upon with regard to the part assigned to the acquitted accused in the occurrence would not be a ground to reject it mechanically against the entire prosecution case. In fact, the entire approach of the Court must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is, undoubtedly, necessary for the Court to scrutinise the evidence more particularly keeping in view of the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. It is not a sound proposition or rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. The Court must, therefore, disengage the truth from falsehood and sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities. Many times, evidence is recorded after a long time. Discrepancies are bound to occur in the testimony of witnesses particularly when they are called upon to depose in Court a long time after the occurrence.
56. There are bound to be minor contradictions, omissions and discrepancies in the evidence when several witnesses try to describe the same incident. In this context, it must be remembered that where one part of a witness's evidence is disbelieved, the Courts of fact have the right to act on the rest of the testimony which is reliable. Merely because in one respect the Court considers it unsafe to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be rejected in all other aspects. It must, also, be mentioned that the evidence of eye-witnesses would not be rejected merely on the ground that they did not interfere to save the deceased. The clear and consistent evidence of eye-witnesses cannot be discarded only on the ground that their evidence has not been accepted with regard to some aspects of some other accused persons. Therefore, the doctrine of "Falsus in uno, falsus in omnibus" is neither a sound rule of law nor a rule of prudence and practice in evaluating and analysing the evidence in the criminal trials. In such circumstances, the Court has to analyse the prosecution evidence with more care and caution and on such analyse if the evidence is found to be consistent, coherent and reliable, the Court can accept the same. Therefore, it is a settled proposition of law that "Falsus in uno, falsus in omnibus" does not apply to criminal cases. This aspect is not seriously appreciated by the trial Court while giving benefit of doubt to the accused persons.
Celebrated Principles For Appreciation :
57. It is really unsafe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue. The trial Court failed to appreciate this perception in its correct legal settings. In fact, there is on some occasions a tendency amongst litigants to back up a good case by false or exaggerated evidence. Evidence of eye-witnesses could not be rejected on the sole ground of discrepancy in mentioning the sequences properly or in the timings or in regard to the manner and mode of entry and exit of accused persons at the venue of offence when many accused persons are involved. It is also a settled proposition of law that even an acquittal of some of the accused is not sufficient for rejection of entire prosecution case. When the evidence of eye-witness is supported by other reliable evidence, the Court should not reject the evidence of such witnesses merely because part of the evidence is doubtful or untrue.
58. The trial Court has given the benefit of doubt on account of certain discrepancies in the evidence of the prosecution. It must be noted that discrepancies do not necessarily demolish the testimony. Discrepancies in the testimony of various witnesses on material or broad points have to be carefully weighed in arriving at the truth; But trifling discrepancies should be ignored, as they are often a test of truth. Several persons giving their version of a transaction witnessed by them are naturally liable to disagree on immaterial points. Their powers of observation, expression or memory are not the same and honest differences are easily possible. It must be remembered that there are discrepancies of truth as well as falsehood. It is the broad facts of a case and not the little details that are to be considered in weighing evidence. It would be appropriate to mention the observations and views of Paley who said, "I know not, a more rash or unphilosophical conduct of the understanding than to reject the substance of a story by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of Courts of justice teaches. When accounts of transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but often times with little impression upon the minds of the Judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud".
It is, also, a settled proposition of law that an innocuous omissipn is inconsequential. Omissions amounting to contradictions that militate against the meat or core of the prosecution case are alone material. When the substratum of the prosecution case is established, minor and inconsequential discrepancies and omissions should be ignored. Improvements and inconsistencies in the evidence of eye-witnesses regarding the part played by each of the accused would not be a ground to disbelieve the witnesses when having regard to the number of injuries on them it would have been impossible to give a detailed account of the incident. Surely, discrepancies do occur even in the statements of perfectly honest witnesses which are really due to difference in individual faculties with regard to observations, recollection and recital of details and unless there is any good ground to indicate that they are due to deliberate attempt to suppress or depart from the truth, it is unreasonable, unjust and unfair to discard the direct testimony of witnesses merely on account of such discrepancies, when there is general agreement as to material circumstances, narration of photographical picturisation is not possible in the evidence of human being.
59. Witness is not like a tape-recorder or a computer. It is, therefore, observed in host of decisions that when scanning the evidence of various witnesses, the Courts have to inform themselves that variance on the fringes, discrepancies in details, contradictions in narrations and embellishments in unessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. Therefore, minor omissions and insignificant contradictions or inconsequential infirmities with regard to details of assault or sequence of incident ought to be discarded and ignored. Contradictions, embellishments and inconsistencies are natural and bound to creep in with the passage of time.
60. The evidence of the witness will have to be examined, analysed and assessed by its intrinsic worth. If there are contradictions in the evidence and if by such contradictions, the substratum of the prosecution case is affected, it can be a ground for the Court to reject the evidence of such a witness. But merely, because the previous complaint of the witness against some other person has been dismissed or that the witness was involved in some of the offences earlier, cannot be a ground for the Court to disbelieve the witness in the subsequent case. Law, therefore, permits a Court to believe the witness even if he has spoken both falsehood and truth in a particular case and if the truth can be separated from falsehood. It is open for the Court to act on that part of the evidence which is trustworthy, reliable, truthful and separable from the falsehood spoken by the witness,
61. The evidence of eye-witness, therefore, cannot be rejected merely on account of slight discrepancies or insignificant infirmities. Slight discrepancies are not uncommon in the testimony of most truthful witnesses. They are indications of truth rather than falsehood, at times. Of course, if it is successfully shown that there is any good ground to think that the discrepancy is due to a deliberate attempt to depart from the truth, then the evidence has to be discarded. Otherwise, minor discrepancies, inconsequential infirmities or insignificant contradictions in the human testimony are common and mathematical precision cannot be expected. These are the important settled propositions of law which a trial Court has to address itself while dealing with the facts of the case. It is noticed that the trial Court has not been able to fully, appreciate the settled principle of law in appreciation of evidence as slight discrepancies, micro-leval contradictions and inconsequential discrepancies are given undue weight despite the fact that the main core or substratum of the prosecution case is established to the hilt.
Totally Wrong Approach And Perversity Of Appreciation Of Evidence :
62. The trial Court has also committed serious error in rejecting the evidence of eye-witness because they are related or cordial to the deceased person. With due respect, this approach is also not correct. Related witnesses obviously would not shield the real culprit because of affinity with the deceased. Therefore, the evidence of a related witness is much more reliable than the evidence of an interested witness or inimical witness. Quite a good number of crimes are committed at the residence of victims and at odd hours when none but the relations and friends can be expected to be present. Thus, if their statements or testimony are to be discarded, it would be impossible to prove the guilt of the accused persons. It is not the relationship that matters, but the reliability of the witness. Close relations or friends of the victim, who were at the venue of offence and were found to be natural would not be interested to let off the real offender. More often than not, it has been observed that some crimes are committed in presence of persons who are close relations or friends of victims. Had there been any such rule that the testimony of such witness should be flung to the winds simply because he or she is related to the victim and thus an interested witness, in that eventuality it will become a hard nut to crack to convict an accused person. It is the intrinsic worth of the testimony of the witness and not the relation which is to be considered. Irrespective of relationship or friendship, if the Court comes to the conclusion that the evidence of such witness is natural, reliable, spontaneous and creditworthy, in that eventuality, there is no any impediment or obstruction in the way of the Court to base the conviction thereon. It cannot be contended that such persons are partisan, and therefore, their testimony would require corroboration.
63. The trial Court has not accepted the evidence of two eye-witnesses, mainly on account of certain discrepancies and contradictions and secondly, because they were related or known to the victims. This approach is not reasonable, much less legal. The testimony of related witness or the witnesses who are otherwise interested cannot be equated with the testimony of tutored or tainted witness. At times, Court may insist that the evidence of interested witness is required to be scrutinised with care and caution. Mere interestedness is not a ground to reject the evidence of eye-witnesses particularly when their presence is natural and testimony is corroborated by other witness and circumstances. This settled proposition of law is not fully appreciated by the trial Court with due respect.
64. The trial Court has not relied upon the evidence of P.W. 7, Ramesh Umiyashankar, merely by holding that he is a chance witness. It must be remembered that evidence of such a witness requires a close scrutiny. But at the same time, if the chance witness gives sufficient reasons for his presence, at the time of occurrence of crime and his presence is also supported by other evidence, that evidence can be accepted and relied on. It is found from the record of the present case that P.W. 7, Ramesh Umiyashankar was driving auto-rickshaw and immediately after the occurrence of the incident, he was passing by along with his rickshaw and one old lady was also sitting as a passenger. Despite searching cross-examination, his evidence has remained unshaken on the main theme of the prosecution case. His evidence is wrongly discarded.
65. It appears from the analysis of the evidence made by the trial Court that it has failed to appreciate the settled proposition of law that the credibility of the witness does not depend upon his status. The main anxiety of the Court while appreciating the evidence of the witnesses is to see the intrinsic worth, the creditability and trustworthiness. In this context, it must be noted that even an evidence of a hostile witness cannot be rejected merely because a person is declared hostile. If any part of the evidence even a hostile witness is found to be acceptable, trustworthy or truthful, the Court can rely on such part of evidence. It is a well-known rule that if the truth can be taken out from the hostile witness, the Court is competent to consider it.
66. The trial Court has, also, insisted upon unnecessary corroboration of the evidence of eye-witnesses. Corroboration means support. It is well-known that the need for corroboration for accepting the evidence of any witness arises only and only when the Court is not wholly satisfied regarding the credibility of that particular witness. Once, the judicial mind and conscience is clear and satisfied enough as regard the truthfulness and genuineness of any particular witness, it is indeed not necessary to look for any corroboration. Needless to reiterate that corroboration is simply 'rule of prudence' and not one of 'rule of law'. It is absolutely falling within the domain of judicial discretion. Evidentiary value of a deposition which is otherwise admissible and acceptable is not just wiped out in the absence of corroboration. When the evidence of two eye-witnesses whose presence on the venue of offence is found quite spontaneous and natural and who have no axe to grind against the accused persons, the same should have been accepted by the trial Court as their testimony is spelt out to be quite reliable, truthful and natural. Not only, their testimony is also significantly reinforced by other evidence. Therefore, it is wrong to hold that there is no corroboration to the testimony of eye-witness and the evidence of prosecution witness P.W. 7, Ramesh Umiyashankar, rickshaw driver in whose rickshaw injured Shekhar was taken to the hospital. With due respect, the approach of the trial Court in evaluating, assessing and appreciating the evidence of two eye-witnesses and the rickshaw driver, Ramesh Umiyashankar is not acceptable.
67. It may be mentioned that P.W. 5, Kanji Karamshi, Exh. 41, P.W. 6, Amrutlal Bhanji, at Exh. 42, P.W. 8, Gopal Mohanlal, at Exh. 45, P.W. 11, Rameshgiri Bhimgiri, at Exh. 52 and P.W. 13, Vinodkumar Khushaldas, at Exh. 55, have not supported the prosecution case as they have been declared hostile. As observed hereinbefore, the evidence of hostile witness cannot be totally discarded.
Evidence Of Hostile Witnesses :
68. It cannot be contended that the hostile witnesses were the best persons to support the prosecution case as they were running pan-beedi shops near Patel Restaurant and since they have not supported the prosecution and the witnesses who have supported are only belonging to one area therefore, the prosecution story should not be believed. Unfortunately, the trial Court has accepted such a plea and with due respect, wrongly. Many times, many witnesses, in order to back out from their statements before the Police during the course of investigation when they are examined before the Court for variety of reasons and sometimes to oblige the accused persons, either due to fear or favour turn hostile. That is the reason why, it has been the settled proposition of law that hostile witness's evidence cannot be ipso facto discarded merely he has been declared as such hostile. The evidence of hostile witness, also, if found, truthful and reliable can be used for corroboration. Most of the witnesses who have turned hostile are pan-beedi shop-keepers where the deceased was doing the same work. The accused persons cannot make any capital out of such a factum. The Court is vitally concerned with the quality of evidence and not the quantity. Conviction can be founded upon the testimony of a single witness if he is found to be dependable, trustworthy and reliable. It appears that the factum of these witnesses have been declared hostile has seriously influenced the decision-making process undertaken by the trial Court which is, in reality, not proper and permissible. The prosecution is obliged to prove the complicity of the accused beyond reasonable doubt and it can be established by leading evidence of eye-witness or by proving unerring chain of circumstantial evidence. If some of the witnesses turned hostile, as it happens in many cases, in the present criminal justice delivery system in India, for variety of reasons, does not necessarily mean that it would create a cloud of doubt. The trial Court has, seriously, erred in emphasising that the witnesses who have supported the prosecution case belonged to a particular area, and therefore, it would generate a cloud of doubt.
69. The evidence of eye-witness, P.W. 1, Navnit and P.W. 4, Parshottam, is also wrongly rejected and not relied on by the trial Court. The contradictions and discrepancies noticed in the evidence of these two eye-witnesses are quite at micro-level and they are inconsequential as the main substratum of the prosecution version has been proved and it has remained unshaken. Not only that P.W. 1, eye-witness Navnit is also the complainant who lodged the complaint immediately without any loss of time in the Civil Hospital itself before the Police when police reached there. The complainant had accompanied the deceased from the venue of offence to the Civil Hospital and immediately after the doctor declared Shekhar dead and his dead body was shifted and when the Police reached at the hospital, the complaint was given by P.W. 1, Navnit. It fully corroborates the version of eye-witness.
70. P.W. 4, Parshottam is also an eye-witness and his evidence has also remained strong and steadfast insofar as the main core of the prosecution case is concerned. His evidence is also supporting the eye-witness P.W. 1 Navnit. Their presence at the venue of offence is also found quite natural. Merely, because some contradictions were noticed in their evidence and because they were close to the deceased, their evidence cannot be discarded on that score. The intrinsic worth of their evidence, quality of their evidence must be considered and not the minor or inconsequential discrepancies or contradictions. The trial Court fell in serious error in giving undue importance to such insignificant and inconsequential discrepancies and contradictions.
71. The evidence of both the eye-witnesses is also fully corroborated by the F.I.R., Exh. 38, Inquest panchnama, Exh. 47, Post mortem report at Exh. 18 and the medical evidence of P.W. 2, Dr. Bharat Vyas, Exh. 17 and the medical case papers. There are also many other corroborative documentary and oral evidence.
The prosecution has also success established that the muddamal knife, Article 7, used by accused No. 2, Ghana contained blood-marks and it was discovered by A-2, Ghana in presence of panchas from the field of one Bhagwan Patel. The knife discovered by A-2 is identified by both the eye-witnesses and the medical evidence of P.W. 2, Dr. Vyas is also very clear that the fatal injury sustained by the deceased was possible by sharp cutting instrument like the knife at Article 7 which was discovered by A-2. Not only that the evidence of eyewitnesses is further reinforced by the N.C. complaint produced, at Exh. 96 which was lodged by A-1 against the deceased. It was recorded by P.W. 16, Ms. D. B. Shrimali which was sent to P.I., Waghela. The evidence of eye-witneses is also further reinforced by the recovery of iron rod produced by accused No. 1. Discovery panchnama produced at Exh. 93 is also proved without any doubt.
Principles And Case Law On Jurisprudential Doctrine Of Appreciation Of Merits Of Acquittal Appeal :
72. At the instance of the State, this acquittal appeal is filed invoking the aids of the provisions of Section 378 of the Cr.P.C. The principles pertaining to appreciation of merits of such an appeal may be highlighted.
73. Although in an appeal from an order of acquittal, the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to such matters as :
(i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused. The presumption is not certainly weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt and reasonable doubt; (iv) the slowness of the appellate Court in disturbing a finding of tact arrived at by a Judge who had the advantage of seeing the witnesses.
Where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. This proposition is relied on by the learned Advocates appearing for the respondents, original-accused persons, taking support from the following decisions :
1. Ganesh Bhavan Patel v. State of Maharashtra, AIR 1979 SC 135.
2. Sirajuddin v. State of Karnataka, AIR 1981 SC 113.
3. Babu v. State of U. P., AIR 1983 SC 308.
4. Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.
5. Surat Lal v. State of M. P., AIR 1982 SC 1224.
6. Dinanath Singh v. State of Bihar, AIR 1980 SC 1199.
It may be mentioned that when the view taken by the trial Court is found by the High Court to be manifestly wrong, and that it had led to miscarriage of justice, High Court is entitled to set aside the acquittal and convict the accused persons. This proposition is laid down, succinctly, in Arun Kumar v. State of U. P., AIR 1989 SC 1445.
74. It is, now well settled that the appellate Court has full power to review the order of acquittal and come to its own conclusion in appeal against acquittal. Of course, the only requirement which the appellate Court must observe is that while dealing with the order of acquittal, the appellate Court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the trial Court in support of its order of acquittal, but it should also express reasons in its judgment which led it to hold that the order of acquittal is not justified. The appellate Court would, also, required to be in mind that the trial Court has opportunity of witnessing the demeanour of witnesses while in witness box and moreover the presumption of innocence is in any event not weakened by the order of acquittal, and therefore, it two reasonable conclusions can be reached on the basis of record, the appellate Court should not disturb the finding of the trial Court.
75. The powers of the High Court in an appeal from order of acquittal to assess the evidence and reach its own conclusion under Section 378 are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of witness, presumption of innocence in favour of the accused, right of the accused to the benefit of any doubt and slowness of the appellate Court in disturbing a finding of fact arrived at by the trial Court which had the advantage of seeing the witness. If the main grounds on which the Court below has based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not and cannot disturb the order of acquittal. Though, the Code of Criminal Procedure does not make any distinction between the powers of the appellate Court while dealing with the order of conviction or of acquittal normally, the appellate Court does not disturb an order of acquittal in a case where two views of the evidence are reasonably possible. But the above principle is not applicable where the approach of the trial Judge in dealing with the evidence is manifestly erroneous and the conclusion drawn are wholly unwarranted or unreasonable and perverse.
76. The principles which would govern and regulate the hearing of appeal of the High Court against an order of acquittal passed by the trial Court, have been thus, set out, in innumerable cases and may be reiterated and re-particulated as under :
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, re-appraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial Court, if the said findings are against the weight of the evidence on record or in other words perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court, (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
77. It has been, succinctly, laid down in Banwari Ram v. State of U. P., AIR 1998 SC 674 that the High Court has full power while hearing appeal against order of acquittal to re-appreciate the evidence. Thus, it is now very well settled that in an appeal against the acquittal, the High Court is entitled to re-appreciate the evidence and can quash and set aside the acquittal and pass order of conviction if it is found that the view taken by the acquitting Court and the conclusion reached by the trial Court were not at all possible or that they were perverse or infirm or palpably erroneous. Thus, the law is well settled. While caution is the watchword in appeal against acquittal as the trial Judge has occasion to watch the demeanour of the witnesses and interference should not be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless. Thus, where the trial Court, apart from deciding the case on irrelevant considerations, criticise and discard the reliable evidence without reasonable basis or on conjectures and surmises, the High Court would be justified in setting aside such acquittal.
78. Where the reasons given by the trial Court for disbelieving the eyewitnesses and the order of acquittal appeared wholly unsustainable, it is the duty of the High Court to set aside the acquittal order. When perversity writ large on the face of the judgment of the trial Court, High Court is justified in overturning the judgment of acquittal. If High Court finds that the appreciation of evidence by the trial Court is wholly improper and it has acted with material irregularity or the trial Court has taken into consideration inconsequential circumstances to record acquittal of the accused and if it is spelt out that the trial Court, totally, went wrong in recording acquittal, the High Court is obliged to quash and set aside the acquittal on re-appreciation of evidence. It must, also, be remembered that the object of a criminal appeal, of course, is to see that no innocent person is punished. However, at the same time, it is the duty of the Court to see that no guilty persons escapes unpunished. If upon, true assessment, correct appraisal and objective evaluation of the evidence, appellate Court in exercise of its power under Section 378 of the Cr.P.C. finds that the acquittal order is perverse or is not possible in the factual profile and settings of evidence, or it has resulted into miscarriage of justice, it becomes imperative for the appellate Court to reverse it, quash it and pass appropriate order of conviction.
79. Twenty-four points relied on and summarised by the trial Court in Para 187 of the judgment, are found to be not sustainable and acceptable in the light of the clear, consistent, coherent and clinching evidence of two eye-witnesses and other corroborative circumstances and documents. After having taken close and critical examination and evaluation of the evidence and the reasons and views assigned by the trial Court, without any doubt and difficulty, it can, safely, be concluded that the acquittal order recorded by the trial Court is not only unreasonable, unjust, unsustainable, but with due respect to the trial Court, is full of perversity. There are various facts and factors, which, undoubtedly, go to transfix the culpability of the accused persons and the inconsistencies, contradictions, irregularities, noted by the trial Court and summed up in twenty-four points in the penultimate para of the judgment are based on totally wrong approach, surmises and conjectures which have led the trial Court to grant benefit of doubt.
Overall Evaluation Of Evidence :
80. In the opinion of this Court, following circumstances, facts and factors emerging from the record of the present case, prove without any doubt the nexus and culpability with the homicidal death of deceased Shekhar on the day of incident. It would be therefore, material and interesting to highlight some of them hereasunder :
(1) The evidence of eye-witness, P.W. 1, Navnit Ratilal, examined at Exh. 15, is found quite trustworthy on the main core of the prosecution case. His presence at the venue of offence is not only proved without doubt, but is also noticed natural.
(2) The testimony of second eye-witness P.W. 4, Parshottam Hanubhai, at Exh. 30 is also quite natural and reliable and his presence is also proved.
(3) P.W. 1, eye-witness, Navnit Ratilai is the complainant who had lodged F.I.R., Exh. 38, immediately after the occurrence of the incident. F.I.R. at Exh. 38, fully corroborates the evidence of P.W. 1 Navnit and proves the presence of both the eye-witnesses.
(4) The evidence of P.I., P.W. 19, Waghela records that the complaint was filed within one hour after the incident and his evidence, also proves the promptness in lodging F.I.R.
(5) I.O., Mr. Wagehla, immediately forwarded the complaint for being registered at the Police Station. The entry made in the regular register of F.I.R. also supports the evidence of eye-witnesses.
(6) F.I.R., Exh.38, was recorded by I.O., Waghela, as narrated by the complainant and forwarded the same with letter Exh. 110 to higher authority with a messenger.
(7) Deceased Shekhar was taken to the hospital from the venue in an auto-rickshaw bearing No. GRX-7142. The driver of the auto-rickshaw, P.W. 7, Ramesh Umiyashankar, at Exh. 43, fully supports the evidence of eye-witnesses. He is found to be reliable. There is no reason to discard his testimony.
(8) P.W. 4, Parshottam, an eye-witness, who was sitting along with Shekhar in the rickshaw, has stated in his evidence that when he asked Shekhar why he was attacked and Shekhar replied that A-2, Ghana, inflicted three knife blows telling to his father A-1, Raghu, that he (Shekhar) is a headstrong man (Dada no dikro). This part of the evidence is also supported by P.W. 7, Ramesh, in his evidence at Exh. 43. He has testified that Shekhar and Parshottam were in the rear portion of rickshaw and they were talking immediately after the rickshaw started.
(9) It was the last statement made by deceased when he was being shifted to the hospital from the venue of incident as he succumbed to injuries on reaching to the Civil Hospital at Amreli. This statement of deceased is relevant under Section 32 of the Evidence Act, 1872 and it fully corroborates the case of the prosecution. It also materially supports the case of the prosecution that A-2 inflicted knife blows on being instigated by A-1, Raghu.
(10) The evidence of P.W. 7, Ramesh, is discarded by the trial Court treating him as chance witness as the prosecution failed to prove as to who was the owner of the auto-rickshaw and whether it was registered with R.T.O. The evidence of eye-witness is corroborated by the evidence of P.W. 7, Ramesh who was driving the rickshaw. The evidence of P.W. 7, Ramesh cannot be rejected merely because R.T.O. document in respect, of auto-rickshaw is not proved. He cannot be also treated as chance witness. The trial Court has wrongly considered his evidence as an evidence of chance witness.
(11) The prosecution case is also supported by the evidence of the P.W. 14, Dr. Anil Asher, who had examined Shekhar after he was taken to the Civil Hospital at Amreli as he was in-charge Medical Officer, at the relevant time and he found, on examination Shekhar dead. The trial Court has wrongly perceived a view that xerox copy of the original case paper at Exh. 88 does not tally with the medical case paper at Exh. 77 and there are doubtful circumstances. This aspect is explained hereinbefore earlier and does riot create, as such, any doubt and the view of the trial Court is not justified.
(12) The prosecution case is also, fully, corroborated by the medical evidence of P.W. 2, Dr. Bharat Vyas, at Exh. 17, who had performed post-mortem. Dr. Vyas has clearly stated in his evidence that the injury on chest was possible by sharp-cutting instrument like muddamal knife produced at Art. No. 7 which was sufficient in ordinary course of nature to cause death. There were two other injuries on the person of deceased Shekhar. They were, also, possible by the said knife. This part of the evidence has remained, totally, unshaken.
(13) The prosecution case is also corroborated by the post-mortem report, at Exh. 18, and report of cause of death, at Exh. 19 and the inquest panchnama, at Exh. 47. Some contradictions in the type, nature and number of injuries in the inquest report and post-mortem report relied on by the prosecution and accepted by the trial Court are quite inconsequential and insignificant and does not affect the main substratum of the prosecution case.
(14) The muddamal knife, Article 7, was discovered by A-2, Ghana. The discovery panchnama of knife at Exh. 93, fully supports the prosecution case. It was prepared on the next day, like that on 20-8-1988 between 5-00 and 6-00 p.m. in terms of the provisions of Section 27 of the Evidence Act.
(15) The prosecution witness No. 15, Harisinh Mulji was one of the panchas who has clearly testified that A-2 Ghana voluntarily disclosed to the police to discover the muddamal knife Article No. 7 and he had led the panchas and Police party in the private farm of Bhagwan Popat. It was concealed under the cells of groundnut in the remote part of farm. The discovery of muddamal knife, Article 7, is in consequence of information received from A-2, Ghana, who was in the custody of the police and this discovery is proved without any doubt by the evidence of P.W. 15, Harisinh and P.W. 19, I.O., Waghela. It is, therefore, an important and relevant piece of evidence under Section 27 of the Evidence Act.
(16) Muddamal knife Article 7 contained blood-stains. Panch witness and I.O. both fully supported the prosecution case and it is also proved by the evidence of report of the Forensic Science Laboratory.
(17) The blood group of deceased was 'O' positive as per the serological report at Exh. 113 and the same blood group marks were found on the shirt of A-2, Ghana. It is very clear from the reports of the Forensic Science Laboratory that Article No. 4 bush-shirt of Ghana contained same blood group 'O' positive which was found on the clothes of deceased Shekhar. The deceased had put on Jabba and chorni and as per the report of Forensic Science Laboratory, at Exh. 113, clothes of the deceased and bush-shirt of A-2, Ghana contained the same blood group. Knife also contained human blood, but the group could not be identified as it remained inconclusive. This part of the evidence of the prosecution cannot be rejected merely on the ground that the blood group of A-2 was not identified. It must be noted that the case of the prosecution is fully reinforced by two eyewitnesses and is also supported by P.W. 7, Ramesh and is further corroborated by the reports of Forensic Science Laboratory. Each aspect is not required to be proved beyond reasonable doubt. The corroborative piece of evidence and that too, in the nature of documentary evidence by the competent authority of the Forensic Science Laboratory cannot be rejected merely because blood group of A-2, Ghana is not taken or proved or that the blood group on the muddamal knife remained inconclusive, particularly in view of the discovery panchnama under Section 27 of the Evidence Act. The trial Court has lost sight of these material proposition of law in the factual background of the case.
(18) The trial Court has considered non-mention of muddamal shoes of the deceased in one of the panchnama as a cause of benefit of doubt. It is at a very micro-level and it cannot override the trustworthy evidence of the prosecution on the main core of the case. Blood-stained earth was not taken or that it was not sent to the Forensic Science Laboratory or that it was not mentioned in the panchnama of scene of offence cannot be said to be a serious infirmity or material deficiency in the evidence of the prosecution. Anxiety of the Court should always be to see as to whether the main theme and the heart of the prosecution case is established without shadow of doubt or not. Each and every aspect cannot be expected to be shown beyond reasonable doubt. It is cumulative and collective consistency created in course of the evidence of the prosecution which must engage the attention of the Court and not insignificant, trifle or trivial aspect and they cannot be permitted to be the circumstances creating reasonable doubt on the veracity and the trustworthiness of the prosecution case.
(19) The muddamal motorcycle which was found from the venue of offence is of accused No. 2, Ghana. There is no doubt and dispute about this aspect. A-2, Ghana is the owner of the motorcycle. He claimed it during the course of trial and the trial Court by an interim order handed over possession of the motorcycle to A-2, Ghana. It is also stated during the course of the hearing before this Court that the said motorcycle is in the custody of A-2, even today. Motorcycle of A-2, is bearing No. GAR-9628 as per the panchnama and it is stated on the record that it was seized from the venue of offence and shown as Article No. 2 in the trial. A-2 has not given any explanation in his statement under Section 313 of the Cr.P.C. about the find of his motorcycle from the venue of offence immediately after its occurrence as per the panchnama of venue. No doubt, this Court is conscious of the fact that accused is not bound to tender his explanation and it is for the prosecution to prove the guilt beyond reasonable doubt. What is emphasized here is that the find of motorcycle, which, admittedly belonged to A-2 at the venue of offence and it is a circumstance which could have been explained by A-2 as it is within his special knowledge. In the further statement under Section 313, A-2, has totally denied and has stated that he is falsely implicated in the prosecution case. Falsity of defence when questioned in further statement under Section 313 of the Cr.P.C. is not a strength of the prosecution. But in a given case, like the one on hand, it can be treated as one of the incriminating circumstances. This proposition is very well elucidated in Erabhadrappa v. State of Karnataka, AIR 1983 SC 446 (Para 30) and in Geeta v. State of Karnataka, 2000 SCC (Cri.) 1208. It has been held that statement under Section 313 of the Cr.P.C. making a false denial in the light of the circumstantial evidence would assume importance as it would also supply missing link in the chain of circumstances. Of course, in the present case, there is a direct evidence which is quite trustworthy, reliable and of high order of credence. It is also held in Kuldeep Singh v. State of Rajasthan, 2000 SCC (Cri.) 865 that false explanation offered by the accused provides additional link in the circumstances.
(20) It will be interesting to mention that in State of Maharashtra v. Damu, 2000 SCC (Cri.) 1088, it is held by the Hon'ble Supreme Court that when it was known by the accused that there was blood on the pitcher, it was for the accused to explain how it was there and when he denied even the seizure of pitcher, such a denial would be sufficient to provide a missing link to the chain of circumstances. This conduct of accused persons is also one of the relevant circumstances to be kept in mind. Omission to offer an explanation or offering of a false explanation by the accused in response to a question regarding an incriminating circumstance held as an additional link in the chain of circumstances to make them complete in a criminal trial based on circumstantial evidence and considering the conduct of the accused. Thus, conduct of the accused is one of the circumstances as held by the three Judge Bench of Hon'ble the Supreme Court in State of Tamil Nadu v. Rajendra, 2000 SCC (Cri.) 40. The find of motorcycle, Article No. 2, admittedly, belonging to A-2, Ghana, from the venue of offence and non-explanation of this circumstance by A-2 is misappreciated and wrongly discarded by the trial Court. This circumstance ought to have been seriously considered before giving benefit of doubt.
(21) The recovery panchnama of muddamal iron rod held and used by A-1, Raghu, is produced at Exh. 92. In fact, this panchnama which is proved in the evidence of P.W. 15, Harisinh, examined at Exh. 91 shows that muddamal iron rod was produced by A-1, Raghu and recovery of blood-stained clothes of A-2. Recovery of iron rod and clothes of A-2, on the next day when accused persons presented before the Police is important corroborative documentary evidence. Shirt of A-2 was found stained with same blood group of 'O' positive which was of the deceased.
(22) The complaint filed by A-1, Raghu, against P.W. 4, Parshottam and the deceased at about 11-00 a.m. on the next day of incident on 20-7-1988 before I.O, P.I., Waghela as per the evidence of I.O. at Exh. 109 is also very important circumstance. A-1 had produced iron rod voluntarily before the Police, and also, presented N.C. complaint against P.W. 4, Parshottam and deceased Shekhar. N.C. complaint recorded in the station diary is at Exh. 104 and N.C. register at Exh. 96 as per the evidence of Head Constable P.W. 16, Dahiben, examined at Exh. 94. It is also testified by I.O., P.W. 19, Waghela in his evidence at Exh. 109. This part of the evidence of I.O. is recorded without any challenge in his cross-examination. Accused Nos. 1 and 2 has voluntarily appeared in the Police Station on the next day at 11-00 a.m. and A-1 voluntarily had submitted the said N.C. complaint against deceased and P.W. 4, Parshottam. Even excluding inculpatory potion of N.C. complaint from the consideration, the factum of filing voluntary complaint by A-1 against the deceased and P.W. 4, Parshottam, while presenting himself before the police along with muddamal iron rod and blood-stained short of A-2, Ghana, would be a very significant and relevant circumstance, which ought to have been taken into consideration by the trial Court. In such a situation, conduct of accused is very relevant under Section 8 of the Evidence Act and to the extent it is exculpatory and non-confessionary in nature and it would be relevant under Section 21 of the Evidence Act as it is not hit by Section 25. This proposition is very well explained and elucidated by the Hon'ble Apex Court in Bheru Singh v. State of Rajasthan, 1994 (2) SCC 467. Production on seizure of incriminating muddamal Articles or weapons by the accused persons at the Police Station is also held to be saved by the provisions of the Evidence Act. Such a proposition is, also, very well expounded in Aghnoo v. State of Bihar, AIR 1966 SC 119. Of course, the guilt of the accused is established even while totally excluding the factum of N.C. complaint.
(23) It is a settled proposition of law that the Court is predominantly concerned and guided by the intrinsic worth of the evidence. The Court is concerned with the quality and not quantity. Upon appreciation and evaluation of the evidence of even a single witness, if the same is found trustworthy and reliable proving the complicity of the accused beyond reasonable doubt, conviction can be founded upon the sole testimony of an eye-witness. Corroboration is not a rule of law. It is a matter of prudence. Criminal Court should not expect set reaction from eye witnesses on seeing the incident like murder. When more than one eye-witness is examined, some inconsequential infirmities or contradictions should not be taken to the level of fatality of the prosecution case.
(24) The evidence of complainant P.W. 1, Navnit, who is an eye-witness radiates an imprint of truth. So, is the factual profile in case of an eyewitness, P.W. 4, Parshottam. The main core of the prosecution case is, succinctly, established from their evidence. Minor contradictions in their evidence are insignificant and trifle. Their evidence cannot be rejected as the evidence of interested or partisan witnesses. The decease and his father and this two eye-witnesses knew since long. Deceased was a friend of this two witnesses does not mean that they would be giving evidence against the accused persons. It must be, seriously, noted that it is not the closeness or intimacy of relationship or interestedness, but the credibility and the reliability is the criteria and the test. On the contrary, such persons would not be interested to let off real offenders and manipulate evidence to wrongly book the strangers or unknown or inimical persons. There evidence is fully supported by the evidence of P.W. 7, Ramesh Umiyashankar and voluminous documentary evidence. Unfortunately, the trial Court emphasized and relied on inconsequential, trifle and insignificant infirmities and contradictions and accorded undeserved, undue and unwarranted benefit of doubt to the accused persons. It is established beyond any shadow of doubt that A-2, Ghana is the author of the crime and responsible for causing culpable homicide of deceased Shekhar. A-1, father of A-2, and A-3, Sanjay were present and they helped A-2, Ghana in inflicting knife blows on the person of deceased Shekhar and one of the knife blows inflicted by A-2 proved fatal. So, the complicity of A-2, for causing culpable homicide is proved without any doubt. The accused Nos. 1 & 3 were present and they are also responsible. The culpable homicide is, thus established beyond doubt.
The Character And Type Of Offences Established : Doubtless :
81. Now, the next question which would require consideration is as to which offence is committed by the accused persons. Culpable homicide is proved. Culpable homicide is defined in Section 299. It provides that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits offence of culpable homicide. There are three illustrations and three explanations attached to Section 299.
82. Culpable homicide is of two type : (1) culpable homicide amounting to murder and (2) culpable homicide not amounting to murder. Section 300 of Indian Penal Code defines the offence of murder. It prescribes when culpable homicide is murder. Section 300 fastens special requirement of murder upon culpable homicide. In the scheme of Indian Penal Code, culpable homicide is genus and murder is specie. All murder is culpable homicide and not vice versa. Culpable homicide without special characteristics of murder is culpable homicide not amounting to murder. Section 302 of I.P.C. provides for punishment of murder, whereas, Section 304 provides for the punishment of culpable homicide.
82.1 Culpable homicide consists of doing of an act (a) with the intention of causing death or (b) with the intention of causing such bodily injury as is likely to cause death or (c) with the knowledge that the act is likely to cause death. Section 299 ingredients postulate, the "intent" and "knowledge" showing the existence of positive mental attitude and this mental condition is a special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates, the intended death of the person harmed or intentionally causing of an injury likely to cause death. Knowledge in third condition contemplates knowledge of the likelihood of death of the person. If one of the special exceptions incorporated in Section 300 is attracted or covered, the offence would be culpable homicide not amounting to murder.
82.2 As such, there is no any radiant and radical distinction between the offence of culpable homicide and murder. Causing of death is obviously common to both the offences. The act which caused it is the act of offender in each case. However, it must be remembered that there must, necessarily, be criminal intention or knowledge in both such offences. The real distinction then, lies in the degree, there being the greater intention or knowledge of the fatal result in one case than in the other. It is, therefore, apparent that such a distinction is sought to be explained and accentuated by four clauses prescribing offence under Section 300.
82.3 In determining the issue whether the act of the accused in question amounts to offence of murder or culpable homicide simpliciter, the Court ought not to lead itself to confusion, but must turn to the words of the Sections in question. Apparently, therefore, if homicide comes within anyone of the four clauses of Section 300, its exceptions apart murder.
82.4 Whenever Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, in the light of the facts of the given case, the Court has to approach and address this problem in three important stages. (1) The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused death of another, proof of such gather nexus between act of the accused and the death leads to the second stage for consideration (2) whether that act of the accused amounts to culpable homicide as defined in Section 299 of the I.P.C. If the answer to the question, prima facie, is found in affirmative, the stage for considering the operation of Section 300 of I.P.C. is reached. This is a stage at which the Court should bear in mind whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative, obviously, the culpability would be culpable homicide not amounting to murder, which is punishable under first or second part of Section 304 depending respectively on whether the second or third clause of Section 299 is applicable. If this question is found in the positive, but the case falls within any one of the exception enumerated in Section 300, the offence obviously would still be culpable homicide not amounting to murder and it is punishable under Section 304. It must, however, be remembered, seriously that these are broad guidelines and not fixed norms or imperatives. There are cases and cases in which facts are so intrigued and intervened.
82.5 Since the academic difference between murder and culpable homicide not mounting to murder is a difficult and delicate task and since it has vexed the Courts many times, since long, the following comparative celebrated and very much highlighted Table may be useful and may furnish a good guide in appreciating the points of comparison and contradictions between the two offences.
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death caused is done INTENTION a.
with the intention of causing death; nor (1) with the intention of causing death; or b.
with the intention of causing such bodily injury as is likely to cause death; or (2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or c.
with the knowledge that the act is likely to cause death (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
Murder Or Culpable Homicide Not Amounting To Murder :
83. From the above profile and conspectus, it emerges that whenever a Court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder" on the facts of a case, it will be convenient for each to approach the problem in three stages, as stated hereinabove. If upon analysis and assessment of the evidence of the prosecution, Court comes to the conclusion that offence of murder is established to the hilt, the provisions of Section 302 prescribing punishment for murder would be attracted, whereas, if the Court reaches to the conclusion that the offence of culpable homicide not amounting to murder is proved beyond doubt, then Section 304 of I.P.C. prescribing punishment for such offence will be attracted.
83.1 Conditions precedent for recording conviction under first or second part of Section 304 are different. The first part of Section 304 applies where there is guilty intention, whereas, the second part applies when there is a guilty knowledge. In order to hold the accused guilty and punish under first part or second part of Section 304, a death must have been caused by accused under anyone of the circumstances mentioned in five exceptions to Section 300.
83.2 The paragraph of Section 304 is normally referred to Part I, whereas, second Paragraph as Part II. It is very explicit from the plain perusal of Section 304 that Part I applies where the accused causes bodily injury with an intention to cause death or with intention to cause such bodily injury as is likely to cause death, whereas, Part II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death, but there is no intention either to cause death or to cause such bodily injury. It is, also, a settled proposition of law that where the case is on the borderline of murder or culpable homicide not amounting to murder, the accused is entitled to the benefit of reasonable doubt and he can be convicted only under Section 304. It is, therefore, very clear that Part II of Section 304 would apply when the Act is done with the knowledge that it is likely to cause death, but without intention to cause death. So, these clauses will not come into operation when there is nexus to cause such bodily injury as is likely to cause death. Where fatal injury is inflicted by the accused with deadly weapon in the course of an incident, without intention to cause such injury or the some injury, Part II of Section 304 would be attracted.
83.3 The Court has, therefore, to consider the evidence and weigh all the facts and circumstances before reaching to the conclusion as to whether the offence alleged is proved to be murder or culpable homicide not amounting to murder. If the ingredients of offence of murder are established beyond doubt, punishment obviously would be under Section 302. On the other hand, if the salient features constituting offence of culpable homicide not amounting to murder is established without doubt, then in that case, the provisions of Section 304 would be attracted.
83.4 If culpable homicide not amounting to murder is proved to have been done with the knowledge that it is likely to cause death, but without any intention to cause death, Part II of Section 304 would be attracted. The main gist and the correct evaluation and appraisal of the provisions of Sections 302 and 304 is 10 consider as to whether the fatal injury caused to the victim was intended or not.
83.5 In absence of an intention to kill, Section 304 Part II would be established. The conceptual distinction between the offence of "murder" and as punishable under Section 302 of I.P.C, and culpable homicide not amounting to murder as punishable under Section 304 Part I or II is elaborated by the Hon'ble Apex Court in State of A. P. v. R. Punnayya, AIR 1977 SC 45. In that case, a test is suggested that whenever a Court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of the case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question, prima facie, found in the affirmative, the stage for considering the operation of Section 300, of Indian Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300.
83.6 If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder' punishable under the first or the second part of Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300 the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of Section 304 of I. P. Code. That if the act by it, the death is caused is done without intention of causing death or causing such bodily injury as is likely to cause death, in that situation, the case would fall in Part II of Section 304 of I. P. Code.
Common Intention : Or Abetment Only?
84. The accused persons are charged with the offences punishable under Section 302 read with Sections 109 and 114 and in the alternative, under Section 302 read with Section 34 for causing culpable homicide of deceased Shekhar.
85. Section 109, by itself is an offence though punishable in the context of other offences. It prescribes punishment of abetment if the act abetted is committed in consequence of the abetment and where no express provision is made for its punishment. Chapter V of the I. P. Code deals with abetment. Section 114 provides that whenever any person who is absent would be liable to be punished as an abetter is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
86. A-2 is charged with offence under Section 302 and as he had inflicted knife blows one of which proved fatal on the anatomy of victim Shekhar, whereas, A-1 and A-3 are charged with offence under Section 302 read with Sections 109 and 114 of the I. P. Code. They are also alternatively charged under Section 302 read with Section 34 of the I. P. Code.
87. Section 34 is one of the provisions under which joint criminal liability is created and made punishable. Though, Section 34 does not create offence, it merely enunciates the principle of joint liability for criminal acts done in furtherance of the common intention of offenders. Conviction of accused persons recorded relying upon the principles of joint liability, is therefore, for the offence committed in furtherance of the common intention and if the reasons for conviction established that the accused was convicted for an offence committed in furtherance to the common intention of himself and others, a reference in order recording conviction under Section 34 may appear to be surplusage. It must be noted that in order to convict person vicariously under Section 34, it is not necessary to prove each and every one of them indulged in overt act. When a criminal act done is by several persons in furtherance of common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone.
87.1 In order to attract the provisions of Section 34, following two conditions must be fulfilled. They are : (1) there must be a common intention to commit a criminal act and (2) there must be a participation by all other persons in doing such act in furtherance of such an intention. Section 34 embodies the common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them has done it individually. The leading feature of Section 34 is the element of participation in action. Common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. Section 34, thus elucidates a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention. It is well established principle that common intention in this Section pre-supposes prior concert. It requires a pre-arranged plan because before a person can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly, there must have been prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. There is a difference between 'same intention' and 'similar intention'. It is not enough to have the same intention independently of each other for fastening vicarious liability for the act of another under Section 34 of the I. P. Code. Section 34 is thus restricted to common intention and does not embrace any knowledge.
87.2 The object of Section 34 seems to be to meet a case in which it may be difficult to distinguish between the act of individual members of a party or to prove exactly what part was played by each of them. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement and support and protection to the person actually committing the act. More and more, it is established that the criminal act was done in furtherance of the common intention of all, each of such is liable for criminal act as if it were done by him alone. The primary object underlying the provisions of Section 34 is to prevent miscarriage of justice in case where all are responsible for the offence which has been committed in furtherance of common intention. In order to invoke the aids of Section 34, it ought to be established that the criminal act was by more than one persons in furtherance of common intention of all. It must be, therefore, established that (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually by them in furtherance of that common intention.
87.3 With a view to invoke the aid of Section 34 of the I. P. Code, the prosecution is obliged to establish beyond reasonable doubt that the criminal act was done by one or more of the several accused persons in furtherance of the common intention of all. It is true that it is really difficult, if not impossible, to procure direct evidence to prove the intention individually since it is subjective one. In most cases, it has to be inferred from the act or conduct or other relevant circumstances of the case. The inference could be gathered by the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the beating was given or injuries were caused by one or some of them, the acts done by others to assist those causing injuries, the concerted conduct subsequent to the commission of offence and other such circumstances.
87.4 In order to judge whether there was a common intention and whether the act impugned was committed in furtherance of the common intention, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit offence with which they could be convicted. Obviously, the question whether there was suchm a common intention or not will have to depend in many cases on the inference to be drawn from the proved facts and not direct evidence about a pre-conceived plan or scheme which may not be available at all. It should also be remembered that though common intention can be presumed from proved circumstances, but the presumption is obviously subject to some restrictions as other presumptions; it must not take the formation of surmises and conjectures or suspicion. It must be inferred with least amount of fancy. The inference of common intention should never be reached unless it is necessary inference deducible from the circumstances of the case. Existence of common intention and act committed in furtherance of such common intention is always a question of fact. Such inference must be drawn from the facts and surrounding circumstances appearing on record of the case.
88. After having given anxious thoughts and serious consideration to the proved facts emerging from the record of the present case and examining the rival version and submissions, in the opinion of this Court, in view of the peculiar facts and special circumstances obtainable from the record of the present trial, it can safely be concluded that the accusation of common intention to commit murder of deceased Shekhar is not established to the hilt. There is no convincing, clear and consistent and cohesive material to reach to a positive conclusion that all the three accused persons had common intention to cause murder of deceased Shekhar. No doubt, all the three accused persons were present at the time of occurrence of incident. A-1 is the father of A-2. A-3 is not related to A-1 and A-2. There is no any iota of evidence even to infer that there was concert between three accused persons or that there was a pre-arranged plan or scheme to commit murder of deceased Shekhar. As it appears from the record, A-1 and A-2 came on the motor bike of A-2 Ghana at the venue of offence. It has not been shown as to how A-3 came on the venue of offence. However, his presence and his role in the incident is proved beyond doubt.
89. A-2 Ghana on being instigated by A-1, his father took out knife from his pocket and inflicted three knife blows, one of them proved fatal. One knife blow on the chest of victim deceased Shekhar was sufficient in ordinary course of nature to cause death as per the evidence of Medical Officer Dr. Vyas and Dr. Asher. The injury on the chest caused death and deceased Shekhar had sustained two other injuries which was possible by sharp cutting instrument like muddamal knife at Article 7 produced in the trial Court.
90. It is succinctly established without any reasonable doubt that A-2 gave three knife blows after being instigated by A-1 and abetted by A-3. Culpable homicide of deceased Shekhar is proved by beyond reasonable doubt. The author of this offence is, also, undoubtedly, A-2, Ghana. He is, therefore, responsible for unlawful culpable homicide of deceased Shekhar. Since, there is not even prima facie evidence to deduce or make any reasonable inference from the record of the present case that there was a common intention to kill victim Shekhar, the question which is required to be considered is as to whether the infliction of knife blow which proved fatal and caused death of Shekhar by A-2 could be said to be an act of murder in the circumstances of the case or not. Undoubtedly, intention and knowledge are mental phenomena and it becomes very difficult if not impossible to prove by direct evidence as to what was passing in the mind of the offender at the time of commission of incriminating act. It is rightly said that human mind is unfathomable. Science has reached to the depth of Atlantic Ocean. It has also gone to find out the highest peak of Everest on the Himalaya. Yet, the process of mind is not established to be of a particular phenomena at the relevant time by any scientific method. It is in this context, the Court is obliged to take into consideration the entire evidence, the totality of circumstances and the material on record to gauge and judge the elements of intention and knowledge. Again, it must be noted that while doing so, the Court cannot embark upon its fancy or surmises or conjectures without any reasonable nexus in the light of the evidence on record. This area is undoubtedly vexed, slippery and delicate and difficult to examine and appreciate by the Courts. Therefore, extra caution has to be kept in mind.
91. The manner and mode in which the incident occurred, type and pattern in which the accused persons were found standing near the venue of offence when deceased Shekhar along with Navnit went to Patel Restaurant, the number of blows inflicted by A-2, taking out his knife from his pocket upon instigation of A-1 and abetment of A-3, by holding hands and hair of deceased Shekhar, in the opinion of this Court, in absence of any evidence even to infer about the common intention to cause death of deceased Shekhar, material factors and significant aspects emerging from the record of the present case, the manner and mode in which knife was wielded, the modus operandi adopted by the accused persons after commission of offence, undoubtedly, would give rise to an inference that A-2, Ghana did not intend to commit murder by inflicting injury on the chest portion of deceased Shekhar. Nothing has been, successfully pointed out by the prosecution from the record of the present case, nor it has been spelt out from the record, that A-2, Ghana, while giving knife blows entertained the intention to commit murder or even the injury which he caused and proved to be fatal was intended.
92. This inference is supportable by other circumstances. Out of the three knife blows given by A-2, to deceased Shekhar, only one which hit the chest portion, which culminated into death as it was sufficient in ordinary course of nature to cause death. But, it cannot be said with certainty that it was intended one that by accused No. 2 Ghana. The two other knife blows were not fatal. One of them was only an abrasion. When A-3 had held the hands and hair of Shekhar and at the same time when A-1 had held iron rod, A-2 had sufficient opportunity to inflict more fatal blows on the vital parts of organs of anatomy of deceased Shekhar. He has not done so, which is an admitted fact. Even the medical evidence shows that the iron rod was not used by A-1, Raghu did not act in a cruel manner as alleged by prosecution though he had an opportunity to do so. It may be stated, that in this connection, at this juncture, this Court had also called for the original muddamal incriminately used in crime, like that Article iron rod and knife for the purpose of inspection and appreciation of evidence on record. Therefore, in the opinion of this Court, the act committed by A-2, Ghana, falls short of attracting the rigors of the provisions of offence of murder and the ingredients of Section 302. Undoubtedly, A-2 is responsible for causing death of deceased Shekhar. The authorship of A-2 for the commission of unlawful homicidal death of deceased Shekhar is established without any shadow of doubt. However, in the light of the facts and circumstances and the evidence on record, it is also not inferable that it was the intended injury. At the best, knowledge can be imputed that such an injury was likely to cause death. Therefore, the commission of act which resulted into unlawful culpable homicide of deceased Shekhar cannot be said to be an act of murder in which one of the very important requisites is the intention.
93. It is also a settled proposition of law that even when case is a borderline one between murder and culpable homicide not amounting to murder, the Courts should lean to the latter than the former. So, death of Shekhar which is caused by A-2 by inflicting one knife blow which proved fatal was not intended, and therefore, alternate submission that it was an act with knowledge that it was likely to cause death appears to justified. Thus, there was no intention on the part of A-2 either to cause death or to cause such bodily injury as is likely to cause death. At the best, as stated earlier, knowledge can be attributed that such injury was likely to cause death.
94. The alternative case of the prosecution that there was common intention to commit murder of deceased Shekhar is not at all proved. Of course, the presence of A-1 and A-3 is proved beyond doubt, at the venue of offence when A-2, inflicted knife blows, one of which resulted into death. It is, also, proved without any doubt that A-1, Raghu, father of A-2, Ghana had instigated Ghana to use knife and at that time, A-3, Sanjay had held the hands of deceased from behind to facilitate the commission of offence by A-2 and thereby abetted in commission of offence of culpable homicide not amounting to murder. Therefore, in the opinion of this Court, A-2, who is the author of the culpable homicide not amounting to murder in causing death of deceased Shekhar is found guilty without any doubt, and therefore, he can be convicted and punished for the offence punishable under Section 304 Part II. A-1, Raghu father of A-2 and A-3, Sanjay, friend of A-2, can be convicted for abetment in the commission of offence by A-2.
95. It is noticed from the record that even according to the prosecution, A-1 and A-3 abetted A-2 in commission of crime, and therefore, the provisions of Section 302 read with Sections 109 and 114 had been mentioned in the charge-sheet. Not only that it also appears from the framing of charge at Exh. 5 by the trial Court that the main charge against A-1 and A-3 appears to be under Section 302 read with Sections 109 and 114 of the I. P. Code. Alternatively, vicarious liability issue engaged the attention of the Court in view of some of the allegations of prosecution, and therefore, even the Sessions Court also gave precedence to the charge of Section 302 read with Sections 109 and 114 of the I. P. Code. No doubt, alternatively, A-1 and A-3, were, jointly also charged with offences punishable under Section 302 read with Section 34 as it was alleged by the prosecution that there was common intention to commit murder of deceased Shekhar.
96. In view of the shaky and hasty evidence with regard infliction of iron rod blow on the person of Shekhar by A-1 Raghu and particularly when it is not supported by the medical evidence, it cannot be said that charge under Section 323 of I. P. Code against A-1 is proved beyond reasonable doubt. Therefore, A-1 is required to be acquitted of the same. Accused Nos. 1 and 3 are also required to be acquitted from the charges of Section 302 read with Section 34 of the Indian Penal Code as the first charge against them under Section 302 read with Sections 109 and 114 and is established beyond reasonable doubt. A-2 is also required to be acquitted from the charge under Section 302 as his complicity in causing the death of deceased Shekhar beyond doubt is, only, established under Section 304 Part II.
97. After having taken into consideration the entire evidence of the prosecution, documentary and viva voce, the catalogue of circumstances, conspectus of facts the manner and mode in which the crime was committed, the way in which the accused persons had fled away from the venue of offence immediately after the incident, including the leaving of motor bike by A-2, Ghana and in absence of any deep-seated motive, this Court has no slightest hesitation in finding that the culpability of A-2, Ghana has been succinctly established without any reasonable doubt for the commission of offence punishable under Section 304 Part II and A-1 Raghu, father of A-2 and A-3, Sanjav, friend of A-2 for the offence punishable under Section 304 Part II read with Sections 109 and 114 of the I. P. Code.
Statutory Pose As Mandated By Section 235 (2) Criminal Procedure Code :
98. Here, there shall be a statutory pose so as to afford an opportunity of hearing to the accused persons on the quantum of sentence. Before the quantum of sentence is fixed by this Court, in exercise of its discretionary powers, as there is no minimum sentence prescribed therein and pursuant to the statutory mandate contained in Section 235(2) of the Cr.P.C., the accused are required to be heard on the quantity and quantum of punishment for the aforesaid offences. Therefore, the matter shall stand adjourned.
I. SUMMARY OF MATERIAL MATRIX AND FACTUAL PROFILE OF THE CASE
(a) Date & time of offence 19-7-1988 at 4-45 p.m., Amreli
(b) Venue of Offence Near Patel Restaurant in the main market on a road leading from Raj Kama! Hostel to tower at City Amreli, Gujarat
(c) Charged by Sessions Court 10-11-1990 Exh. 5
(d) Sessions Case No. 70 of 1988 Charges, at Exh. 5, in trial
(i) A-l Court under Sec. 302 read with Secs. 109 and 114 of I.P.C., Sec. 323, and under Sec.
302 read with Sec. 34
(ii) A-2 Under Sec.
302 of I.P.C. for inflicting knife blows
(iii) A-3 Under Sec.
302 read with Secs. 109 and 114 of I.P.C., Sec. 323, and under Sec. 302 read with Sec. 34
(e) Witnesses 19
(f) Victim Homicidal death of Chaku @ Shekhar, son of Ravishankar Shukla
(g) Eye-witness (2) P.W. 1-Navnit Ratilal-Complainant Exh. 15 P.W. 4 - Parshottam Hanubhai Exh. 30
(h) Date of Judgment and Order recorded by Hon. Sessions Judge 25-3-1991
- Acquittal of all three giving benefit of doubt II. DETAILS OF THE ACCUSED Name of the Accused Weapon used
(a) Raghu @ Raghav, S/o. Vasram Iron rod
(b) Ghana @ Ghanshyam, S/o A-l Raghav Knife
(c) Sanjay @ Gadhi, S/o Chunnilal Holding deceased III. JUDGMENT AND ORDER
(a) Trial Sessions Against accused No. 1 Acquittal from all charges Court Judge, Arareli-Dist.
Against accused No. 2Acquittal " Against accused No. 3 Acquittal " (b) Division Mr. R. K. Bench Abichandani, J. Against accused No. 1 Conviction and sentence under Sec. 302 read with 34 of I.P.C. Against accused No. 2 Conviction and sentence under Sec. 302 of I.P.C. Against accused No. 3 Conviction and sentence under Sec. 302 read with 34 of I.P.C. Mr. K. R. Against All Vyas, J. Acquittal from all charges 25-1-2002 (J. N. Bhatt, J.)
Since the accused persons are not present today and they are required to be heard on the question of quantum of punishment as mandated in law under Sec. 235(2) Cr.P.C., request made by the learned Advocates appearing for the accused persons for adjournment for the purpose of hearing the accused persons on the quantum of punishment is accepted and the matter is now posted on 8th February 2002, as requested.
25-1-2002 (J. N. Bhatt, J.) Design And Desideratum Of Hearing As Mandated Under Section 235(2) Of CR.P.C.:
99. Pursuant to the direction and order recorded on the last occasion, like that on 25-1-2002, in terms of the provisions of Section 235(2) of Cr.P.C., the accused persons are present today in the Court. Learned Advocates appearing for the accused persons are also present. Learned Public Prosecutor Mr. Oza is also present. The accused persons are heard as mandated by Section 235(2) of Cr.P.C., in person. Learned Advocates for the accused have also offered their submissions and learned Public Prosecutor, Mr. Oza has also made submissions, on the quantum of punishment.
99.1 The accused persons have, in substance, submitted that in view of the long intervening period of more than 13 years from the date of incident and the fact that any further period of imprisonment will operate as an insulation from the societal environments which will not only affect them but also will equally affect adversely to the interest of the entire family, and therefore, the period undergone be treated as sufficient. The learned Advocates appearing for the accused has stated that written submissions will also be submitted but on the next date.
99.2 A-1, Raghu @ Raghav Vasram, has stated before this Court that he is suffering from chronic diabetes and hyper-tension since long and he has already become victim of two cardiac arrests, one prior to the incident and last one during the course of the period as an under-trial prisoner. Of course, no medical evidence is tendered by him before this Court. However, learned Advocate appearing for the accused has desired to wait for a period of one week or so to enable the accused to trace and submit old medical record. A-1, has already undergone imprisonment as an under-trial for a spell of 22 months. It is also mentioned that the business is now-a-days not going on well. The tractor and transport work is also not happily done. A-2, has also, stated before this Court that he was young man of 26 years when the unfortunate incident occurred and he was an under-trial prisoner till the acquittal, for a total spell of 32 months. So is the submission of A-3 but his period as an under-trial prisoner was for 23 months, as stated by him.
99.3 A-2 and A-3 were young persons at the relevant time. A-3, Sanjay has further stated that he got married two years after the incident and he has two minor sons aged about 2 years and 4 years respectively. He has stated that he has also to look after the welfare and interest of his parents to an extent as one of the four sons of his parents. Therefore, the submission on behalf of the accused persons is also that the period undergone by each one of them may be taken and treated as sufficient in the light of the facts and circumstances and the nature and type of offence and the lapse of more than 13 years. However, learned Advocates for the accused, fairly, stated that the amount of fine, as may be deemed reasonable, may be imposed, and reasonable time may be given for payment of fine and they have no objection if the fine amount is directed to be paid to the dependents of the deceased.
99.4 Learned Public Prosecutor Mr. Oza has submitted that insofar as A-2 is concerned, he cannot be leniently dealt with and he deserves exemplary punishment and maximum punishment as provided in Section 304 Part II, may be awarded to him, in view of the fact that he, successively, gave three knife blows on the person of the deceased. Insofar as accused Nos. 1 and 3 are concerned, their complicity is abetment to the offence committed by A-2, Ghana, and therefore, reasonable view may be taken and exemplary and higher amount of fine may be imposed so as to award compensation to young widow and minor child.
100. The provision of Section 235(2) in Cr. P. C. has added a much-needed dimension in the Indian Criminal Jurisprudence. The object and design of such provision is to give a fresh opportunity to the convicted person, to bring to the notice of the concerned Court such circumstances as may help the Court in awarding appropriate sentence, having regard to the personal, financial, social and other circumstances of the case. Since acquittal was recorded by the trial Court, obviously, there was no any question of exercise of such process.
101. Again, presumbly since one of the differing Brother Judges of this Court of a Division Bench, upon hearing acquittal appeal quashing acquittal awarded minimum sentence under Section 302 of the I. P. Code, the statutory provision of Section 235(2) was not invoked and the accused persons were not afforded with an opportunity of hearing on the quantum of sentence.
102. However, since this Court has recorded conviction under Section 304 Part II read with Sections 109 and 114 of the I. P. Code, the discretion in awarding punishment upto the period of 10 years or fine or with both thereunder, is required to be exercised, and therefore, accused persons were required to be afforded with an opportunity of hearing as mandated under Section 235(2) of the Cr.P.C.
103. There is a purpose and policy and design and desideratum in introducing Section 235(2) in Cr.P.C., 1973. It is, therefore, imperative, for this Court to give an opportunity to the accused-persons before reaching the conclusion on the quantum of punishment. Hearing on the question of quantum of punishment is not an empty formality. It is a statutory incumbency upon the Court to provide an opportunity of hearing to the accused, on the question of sentence unless the Court proposes to release the accused on good conduct or after admonition as provided under Section 360 of the Cr.P.C. So, is not the case in the present appeal in view of the undoubtable evidence of aforesaid complicity against the accused persons.
104. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and reasons to be heard on the question and considerations of sentence bearing upon the sentencing process. The social compulsion, the pressure of poverty, the retributive needs, instinct of the extralegal remedy due to a sense of being wronged, the lack of means to be educated and the difficult art of honest living, the parentage, the heredity, personal and social environments; all these can and obviously similar other conditions, in a given case, can hopefully and legitimately tilt the skill and the propriety of the fixity of appropriate sentence. It is, therefore, rightly, said the mandate of Section 235(2) ought to be implemented and obeyed in its true letter and right spirit.
Meaning Of Effective Hearing What It Shall Include :
105. The expression, "hear" incorporated in Section 235(2) would, merely, give an opportunity to the accused to place before the Court various facts and circumstances bearing on the issue of sentence to be passed against him. Obviously, therefore, it is not an idle formality which can be achieved only by oral submissions. The party, specially, the accused-persons must be given an opportunity to produce material in regard to various factors on the question, and sentence and, if necessary, to lead evidence. On placing such material before the Court, no doubt, the Court has to be conscious to oversee that such a process may not lead to unduly practice to prolong the process or proceedings for reaching the conclusion of quantum of punishment. It has been explicitly propounded and settled proposition that the Judge must make all attempts to elicit from the accused available all information, which, eventually, can influence and bear on the question of sentence. It may also be mentioned that the question which the Court can put to the accused under Section 235(2) Cr. P.C. and answers which the accused gives to these questions are beyond the narrow constraints of the Evidence Act. The Court, while, determining the quantum of sentence has altogether different scale in which facts and factors which part are on an entirely different order than those, which come into affect the question of conviction.
106. It must be remembered that it is not sufficient for the trial Judge to comply mechanically with the form and letter of the provisions of Section 235(2) of Cr. P.C. But, the Court should, mindfully, also comply with the provisions with the true spirit and substance of such provision. If trial Judge or a given case, the Sessions Judge has not followed the provisions of Section 235(2), the Appeal Court can afford this opportunity and reach to a right conclusion in determining the quantum of sentence. The Sessions Judge or the trial Court, while delivering the judgment of conviction, is to address at that stage, on the question of sentence and afford him an opportunity to lead evidence, if required, which may also be rebutted by the prosecution. This proposition is extensively dealt with and settled. The Judge is not absolved from his duty by merely undergoing casually a formality. The main anxiety of the Court or a Judge concerned, in such a situation, is to put the Court and ought to put a genuine effort to elicit all material information and special facts bearing on the question of sentence.
107. No doubt, the seriousness or heinousness of crime, is not only one relevant aspect in the choice of sentence. The circumstances of the crime, specially, social-pressures, which induce the crime, which may be epitomized as "a just sentence in an unjust society", are other considerations. The criminal, not the crime, must figure, prominently in establishing the sentence when a wreath of individual, rehabilitation in the society and other measures to prevent emerging from record are also weighty factors. However, this concept has, also, been questioned by some experts particularly in case of the acts of the terrorists. Even if judgment is one of the conviction, the accused will be entitled to an opportunity to make his representation, if any, or he may also lead the evidence on question of sentence and of course, the prosecution has a right to rebut such an evidence, if required. The Court is, thus, obliged to elicit relevant and acceptable material which will have a bearing on the question of sentence and it is the requirement of law.
108. A proper sentence should be the outcome of various circumstances and many factors like nature of offence, circumstances extenuating or aggravating the evidence, prior Criminal Court record and any untoward event or even during the commencement till the conclusion of the trial, age, employment, earning, family responsibility, social and economic background, education, home-life, sobriety and social judgment, emotional and mental condition, prospect for rehabilitation, possibility of return to normal life in the community and these and other like factors have to be taken into consideration in deciding the proper sentence. Obviously, pre and pending the conviction developments, if established, can also be taken into account in fixing the quantum of sentence. It is, equally true with that the hearing is not confined to merely oral submission, but intended to give an opportunity to the defence as well as prosecution to place the facts and material relevant to various factors hearing on the question and if they are contested by other side, then to produce evidence for the purpose of proving the same. Of course, it is painful to note that, at times, such a process or exercise referable to reaching proper quantum of sentence is taken casually. Many a time, Courts are not, seriously, observing or adhering to the underlined design and purport. It is, therefore, really a high time to caution the trial Courts in such a situation to follow and observe true and correct approach in letter and spirit of statute mandated and enshrined in Section 235(2) of the Cr.P.C. There is no doubt that the object of Section 235(2) in the new Code, 1973, is to split up the trial into two fundamental parts. Once the Court delivers the judgment of conviction, one part comes to an end. The second part of trial is restricted to the question of sentence for which a hearing is to be given, wherein fresh evidence, if required and desired can also be tendered. It is, therefore, clear that Section 235(2) provides for a trial and specially, gives an accused the right of pre-sentence hearing, at such a stage, he can bring on record material permissible and relevant to or connected with crime. Nevertheless, it will have consistency with the policy underlined and has a bearing on the choice of the sentence.
Object Of Punishment Process :
109. Reaction to crimes has been different at different stages of human civilization and even at a given time, they have been different in various societies. It has been said that the attitude towards crime and criminals at a given time in a society manifest the basic features of that society. The attitude towards the criminals has always been exalted by types of emotions displayed by the society. As a result of the changing attitudes, three types of reactions can be discerned in various societies. The first is the traditional reaction of a universal nature, which can be termed as a "punitive approach". It regards the criminal as a basically bad and dangerous sort of person and the object under this approach is to inflict punishment on the offender in order to protect the society concerned his onslaught. The second of relatively recent origin, considers the criminal as a victim of circumstances and the product of various factors within the criminal and the society. This approach, since it regards the criminal as a sick person requiring treatment, is terms as a "therapeutic approach". Finally, there is a preventive approach for which, instead of focussing the attention on particular offenders, seeks to eliminate those conditions which are responsible for crime causation. It should, however, be understood that the three approaches are not merely exclusive. Not only do they overlap with each other, but sometimes, they may co-exist as parts of the overall system in the society. It should, however, be understood that the theories reflecting these approaches are not theories in normal sense, they are not assertions, but are in nature of moral claims, also.
110. The fundamental aims of all punishments is the protection of those social objectives which the dominant social group of a State regards as good for the society. The techniques employed by the States are those believed to be the best to secure the obedience. Selection of best correctional technique is a function of a society. Tradition is lever of knowledge and its economic and social conditions. This anxiety also binds between the social relations and penal systems which as such is very often lacking in standard of history of punishment; these traditions, and conditions traditionally, spent good deal of time discussing the abstract theories of or providing historical discrepancies without an attempt to give personal troubles to public issues.
111. The history of punishment is presented as an "unfolding of an idea". The penological conditions are bound to be the ideological conditions to progress and reform a more sophisticated understanding of the history of punishment required that one considers penal changes in relation to the changes in a social set up and structure. It is said punishment is neither a simple consequence of crime nor reflecting the state of crime nor the mere means to be determined by the ends to be achieved. It is, thus, necessary to investigate the pattern and history and fate of the use of the specific punishments and the continuance of penal practice as they are determined by social forces, above all, by the economic, and then by physical and like forces.
112. In a celebrated book, "Introduction to Criminal Law", the author Stephen Schafer has observed, "Criminality in general terms", is the study of crimes, criminals and victims. It connects a long and eventful way; from the factors that precipitate the crime through the actual law-breaking; to the rehabilitation of the offender and compensation to the victim. Criminology, thus, is a scientific study of crime, criminality and justice. It studies the nature, the extent of etimology, cause, consequences, control and prevention of criminal behaviour. It is therefore, said criminology is the study of law-making, law-breaking, and responds to law-breaking.
113. The sphere of criminology is the study of crime and socio-legal analysis of phenomenon of crime. The sphere of criminology includes and involves the following significant aspects and facets and it would be proper to put it in a graphical form or tabular shape, which would clearly spell out the sphere of criminology :
THE SPHERE OF CRIMINOLOGY Criminalistic Sociology of Remedies to Crime Penology Victimology Forensic Science Ballastics Formulation of laws Policing Correctional Techniques Victimization Processing Physical Evidence Laws and Ethics Law (Deference) Theories of Crime Remedies Social Policing Deterrence Social Reconstrution and Education The Conceptual Contours Of Penology :
114. "The best punishment is to be despised by your neighbours, the world, and members of your family" as observed by Edgar Watson Home. Rohington, in Crime and Criminology, who has described the ten most important characteristics of punishment. The elements of punishment constitute the chief characteristics of punishment. They are the fundamental or irreducible aspects of punishment. It would be, therefore, proper and expedient to refer to ten most important components and ingredients of punishment :
1. Punishment is applied by employing coercion and can be enforced even against the will of the punished.
2. Punishment is a measure adopted and enforced by the State. Private punishment meted out by parents, teachers, employers, the community etc. is outside the scope of penological consequences of a crime.
3. Punishment or the limits of punishment are stipulated in advance by the State. Punishment very clearly embodies the principle of nulla poena sine lega there is no punishment without the law.
4. Punishment is applied by competent organs of the State in a properly constituted legal procedure. Due process is the name of the game. Thus, if a murderer is lynched by the people, then such a punishment is not punishment in the criminological sense.
5. Punishment is generally believed to be directly enforced on each individual personally. Any sort of 'collective punishment' is outside the scope of penological punishment.
6. Punishment is a disadvantage designed to act as a negative and to hurt the receiver of the punishment mentally, emotionally, physically or financially.
7. Punishment is the consequence of crime. The prohibited act must be listed and defined as a crime in the law books,
8. Punishment is applied in the name and defence of the society.
9. Punishment is disapproval; and expresses condemnation by the State.
10. Prevention of crime is main reason for the existence of penal provisions in law books.
Evaluation Of Different Theories Of Punishment :
115. Sir Waller Moberley has said in the Ethos of Punishment. "Pain is, always, regarded as itself an evil, and as indeed the only thing that is unconditionally evil. To inflict avoidable pain on any sentient creature utilitarian equivalent to the sin against the HOLY GHOST." There are various theories of punishment, but the following theories and modes may be highlighted which are important and material :
1. Utilitarian theory.
2. Retributive theory.
3. Reformative theory.
4. The theory of compensation.
5. The Deterrence theory.
6. The Preventive theory.
The Court is obliged to take into consideration the modern trends and prevalent ways in the realm of criminology and penology. Law and life must derive strength from each other and then the Rule of Law will gain relevance and meaning to those who suffer from abuses and power. Without abuse of power and escalating crime afflicted, considerable numbers of weaker class of humanity, the State has a sovereign obligation to develop a dynamic system of victim restitution. An age-old controversy has been the question : Can punishment reform? Any power of punishment to reform is widely and strongly denied on the double ground of principle and of experience. The prison world is very different from the world outside. There is almost complete misunderstanding between them and it proves an intractable task to train any one for life in the other. That may be the reason why George Bernard Shaw might have said, "Don't expect a prison officer to have a heart. His pay will not allow it." Thomas Reed has said, "It is an indefinable something to be done, in a way nobody knows, how at a time nobody knows when, that will accomplish nobody knows what", in a reply when he was asked what reformation means. Even then, the concept of reformation is as old as civilization itself. Every religion and the greatest of the philosophers have advocated this concept.
116. Plato made a distinction between incorrigibies and criminals, who could be cured. Aristotle viewed punishment as a moral medicine unpalatable, but wholesome. The penal law of ancient China involved the idea of repentance. Muslim Law provided measures of re-education for delinquent children. The idea of reformation is traced to HOSEA, who conceived of God's wrath against unfaithful Israel, as the use of punishment to purify and redeem he or her, and got to destroy. The Zoroastrian religion has (perhaps the oldest existing religion) has as its "raison d'etre" of punishment both deterent and reformation. It can be therefore gainsaid that the concept of reformation was and is true. The history of reformation has been a tale of the search of mankind for the absolute correctional techniques and of its failure. Again and again, the idea of reformation through punishment has appeared in some form or other as an expression of the search for an ideal higher than mere retribution or deterrence, after having been rejected and derided in the interval, the history of reformation is like that of the phoenix. Many a times, the anti-reformationists have immolated it, leaving no more than ashes behind. Many times, it has sprung up again from those same ashes to resume its reign. The shrewd and skeptical blows of Lipton, Martinson and Wilks could not extinguish its life. The belief goes on struggling and struggling. It is, therefore, to be seriously understood that it is imperative to balance punishment and reformation.
Sociology Of Criminal Punishment :
117. In the realm of criminology and penology, the victimology cannot be overlooked. Victimology has an important role in the realm of criminal jurisprudence. Victimology means the science of study of relationship between the victims and violators and offenders. The plight of the victims cannot be overlooked. Rehabilitation of the prisoners should not be by closing towards the sufferings of the victims of the offences. It will be, also, interesting to mention that the powers of Criminal Courts are strengthened by providing Section 357 in Cr.P.C. Special powers are required to be exercised to rehabilitate such victims of crime properly.
118. Social justice the signature tune of the institution has its overtures in the criminal system too. Therefore, administration of criminal justice has to be geared towards the same goal of social justice. Society changes and the perception, which is social justice, has to undertake corresponding changes.
119. The study of victims is said to be a new field. Before victims can be properly helped and particularly before they can be carefully studied, more information is noted about them and their needs. Similarly, before work on the precipitation of crime by victims can be seriously considered, more needs to be known about the victims, by them, those who report the victims to the police and those who do not. In recent years, more information has been obtained by them on victims on sphere of victimisation. Victims have to be considered with all other disadvantaged and unfortunate groups for the aid that they may require. Therefore, workers must both study their case and ascertain why their particular demands should be met. The plight of the victims receive recognition from Councils of Rapporter, in 1983 Convention and in 1985 Guidelines.
120. The United Nations, in its, Declaration in 1985 included similar lists of victims needs - the need to be treated with respect and dignity to be allowed, access to the justice and legal process which will provide them with redress for the harm done. Offenders should made restitution to the harm done to victims, to their families or their dependents and such restitution should be made possible as a sentencing upon them in criminal cases. The views of the victims are to be considered Whether their personal interests are to be affected. In 1990 in the U.K., the victimisation, therefore was public, which shortly set out in general terms exercising arrangement for victims.
Restitution To The Crime Victims :
121. Apart from feeling ignorant by the criminal justice system, victims have been misunderstood many times by the Courts. They are expected to report to the police but are always not made to feel comfortable to do this. Police Stations must be reformed and have an inviting environment. This reduces the effectiveness of crime control as it increases the offenders chances of getting away undetected.
121.1 Recently, the interests of the victims gained prominence in media and political rhetoric. The shift has usually been associated with a call for greater law and order. In fact, there is high time that the requirement for providing Universal Guarantee Rights for victims are gradually recognised. Victims are, no doubt, integral part of the criminal-legal system. The importance in the criminal justice system is increasing about other basic powers and rights or interests, which will help prevent them within the system and it has an important formation. Even the needs of the victims must be kept in perception. They must also be taken, those in authority, not alone the system. The provision incorporated in Section 357 of the new Cr.P.C. has a relevance and significance and material bearing with the recent trend to consider and appropriately compensate the victims of crime by the Criminal Courts. The victims of crimes can be adequately compensated out of the imposition of fine or also otherwise by passing an order in judgment. When the Court imposes a sentence of fine, the Court, may, without passing the judgment, whole or part of the fine recovered to be applied in the payment to in passing of compensation for any loss or injury caused by the offence when compensation is in the case recorded by the Civil Court.
The Role Of Victimology :
122. It is really right and high time that a serious attention is paid to the interests of victims of crimes in terms of providing compensation in view of the provisions of Section 357 of Cr.P.C. and the rising trend in the realm of criminology and penology to the existence and recognition of the rights of victims and the successful expenses made by the western countries. The Court can also balance the policy of reformation and rehabilitation with the theory of compensation to the victims of crimes. That is the need of the hour. That is not, as such, a call but a creed of the time. It is in this context it was thought expedient by this Court to hear and ascertain updated socio-economic and persona! circumstances which have generally been after the conclusion of the evidence before the trial Court as, since then, more than 13 years period has elapsed. The Public Prosecutor was requested to keep the responsible officer of the concerned Police Station to remain present in the Court with the latest updated information about statements made by the accused-persons before the Court on the question of quantum of sentence and also on the point of status - personal and socio-economic, circumstances of the young widow of the deceased and a child, who was hardly about one year when the life of deceased Chaku @ Shekar, was cut short at the unfortunate incident on 20th August, 1988.
123. Victimization Of Victims Of Crime And Remedial Measures :
Place of victims in the Criminal Justice System, has not always, been the immortal one as it is today. The victims who is particularly, charged, is really a loser in the present scenario. Not only, the victim has suffered loss, morally or physically or otherwise and not only does the State take interest in giving the compensation. Above all, the victim has lost participation is his own case. The victim of crime is a forgotten personality in the present criminal system. Until in the last few years, a general awakening has accord with the respect to the unfortunate plight of the crime victimization in the present-day criminal system.
The interest in the increased victim involved in the criminal justice system and enhancement of victims right has been rightly a matter for the criminologists, social-scientists rather than the legislative and popular political interests. So also, the judicial response has, far been not very happy. It is, therefore, not opposing to observe that the rationale for enhancement of victims rights in the criminal justice system must frequently proceed from a non-legal base. Following aspects are some of the important and relevant rationale most frequently articulated :
1. There is serious injustice in the present system because it ignores victims' interest and have been towards victims, unfortunately.
2. The present system harbours inequality about the procedural rights of the accused, but denies a proper standing in the criminal justice process.
3. Enhancements of the rights and privileges of the rights victims will encourage co-operation within the criminal justice system in the successful institution and prosecution. The result has improved the effectiveness of the criminal justice system in apprehending and affecting criminals will, deterrence, crime and lowered the overall crime rate.
Insofar as the role, goal and status of the concept and philosophy of victimology is concerned, more so, when the Criminal Justice System reforms are being examined, it would be really and obviously, relevant and expedient to, shortly, highlight certain aspects pertaining to the realm of criminology and victimology. Some of them may be mentioned.
It is heartening to note that lately, also, the Government of India has taken up the issue of reforms in the Criminal Justice System and pursuant to that a Committee of Reforms of Criminal Justice System in India headed by Hon'ble Mr. Dr. Justice V. S. Malimath (Malimath Committee) has been appointed, mainly, to examine the fundamental principles of criminal jurisprudence including the Constitutional provisions relating to Criminal Jurisprudence and see if any modifications and amendments are required thereto so as to regain the lost confidence by revamping the entire Criminal Justice System, in such a way, that no guilty persons escapes punishment nor does any innocent person suffer and the role and status of victims of crime is attended and done justice. It is really one more encouraging and inspiring reason to make following suggestions :
(1) Attention is required to be paid to the concept and philosophy of sociology of crime and role and status of victimology in the realm of criminology.
(2) One of the fundamental objects of criminal justice is to vindicate the right of justice of the unfortunate victims of crimes. Notwithstanding that in the current system, in our country, the victim has no effective role to play in the process of criminal justice. He has also no right to lead evidence or cross-examine the witnesses or to make his own pleas good or advance arguments. The crime victim services has become virtually foreign to the existing system which has adversely affected not only the interest of victims of crime, but has added adverse dimension in increasing the backlog of criminal cases and decreasing the rate of conviction. It is, therefore, imperative to provide adequate provisions for effective role and participation of the crime victims and resultant crime victims compensation programmes.
(3) One of the important interests of the crime victims would be restitution which could be adequately provided. No doubt, it could also be appropriately, ordered by the Court. The restitution can be defined as a sanction imposed by the Court on a person convicted of crime which requires the convicted person to make monetary payment to the victims for the loss or injury sustained. This remedy of restitution to be exercised by the Court makes the victim's role significant and the crime victim services as correctional function.
The growth in the expectation of restitution as an alternative, and also, U.N. Declaration on "Basic Principles of Justice for victims of Crime and abuse of Power" manifested in its resolution dated December 11, 1985, evidently, emphasises that the Member State should take required steps to provide fair restitution to the victims of crime for the loss or injury. The declaration includes :-
(1) The importance of role and status of victims of crime in the process. (2) Access to justice and fair treatment to the victims by providing adequate mechanism. (3) Fair and reasonable restitutions to victims, their families or dependents by Governmental and non-Governmental agencies. (4) Providing adequate and reasonable compensation when compensation is not fully available from the offender by the State. (5) Legal, medical, health assistance to the victims by community-based or State provided funds, (6) Sufficient and adequate provision by the State and other benevolent agencies to the victims of abuse of power.
In our country, for the purpose of restitution, basically, the main provision has been made in Section 357 of the Cr.P.C. which has not been adequately employed into service by the Courts. In Harikrishna v. Sukhbir Singh, AIR 1988 SC 2127, it has been observed by the Hon'ble Apex Court that provisions of Section 357 leave it entirely to the discretion of the Court, and unfortunately, have seldom invoked these powers due to ignorance of the object of it. The Law Commission of India in its 42nd Report, therefore, has observed that the Courts in India do not exercise their powers as freely and liberally as could be desired.
The present law, therefore, in absence of legal mandate of action to pass restitution to the victim of crime has been rendered lips service to them. Therefore, there is urgent need for the suitable amendment to this Section providing guidelines, under which the offender or the accused should be ordered to pay restitution to pay the victims of crime.
No doubt, it may be mentioned, at this stage that making a mandatory provision in respect of providing compensation to the victims of crime by the violator or offender may not be able to solve all the problems of the victims insofar as compensation by the offender is concerned. Needless to mention that conviction rate is very low in case of offences against the persons, property and reputation. At times, offenders are let off on technicalities. Therefore, it is absolutely, necessary to make provision for crime victims services mechanism including the Crime victims Compensation Programme.
It will be worthwhile to mention at this stage the observations of McNamara and Sullivan in making the crime victims whole, compensation restitution and compensation have rightly highlighted primary impediments in the establishment of and functioning of victim compensation by the offender. Firstly, they also call attention to the fact that only a smaller number of offenders are actually apprehended and convicted. Secondly, they are not financially capable of compensating to the crime victims due to financial inability and the fact that most of the offenders come from the lower socio-economic strata. Thirdly, because of the fact that the earning of offender as prisons even is not equal to the cost of maintaining them in the prisons.
The appropriate Authority may also consider extending the activities and services under the Legal Services Authorities Act, 1987 to the victims of crime and also their dependents.
124. The Status Of Victims In The Present Criminal Justice System : Victimized And Tormented?
It cannot be gainsaid that the status of victim in the current criminal justice system, has been at the minimal, the victim unfortunately is particularly a heavy loser in the present system. Not only he/she has suffered, lost materially or become hurt, physically, psychologically or otherwise. Not only that but victim has above all lost participation in the process of criminal justice system.
It is quite evident that the victim of crime is a "forgotten man" in the present system. It is unfortunate to note that there is disturbing trend in crime rates and law enforcement effectiveness. It has been reported that there is at least one congnizable crime every 7 seconds, one penal offence every 20 seconds, a property crime every one minute, theft crime every 1 1/2 minutes, violent crime every two minutes, burglary every 4 minutes and a rape every 52 minutes. It is also unfortunate phenomena that nowadays more women and youths are taking to crime than ever before in our country, While population increased by 127.6% between 1951-1990, the total incidents of Indian Penal Code crime is gone up by 146.9%, worse still there is no effect of deterrent.
It has also been reported that long time trends clearly showed that massive increased in incidents of crime, a less than proportionate increased in registration, growing backlog of investigation, prosecuting trials, declining the rate of conviction. In this context, it will lead to reasonable and obvious conclusion that increasingly more and more criminals are going unpunished, deterrent effect of law is one of vain and its supremacy is being stymied by individuals. Naturally, therefore, if this trend is allowed to go undeterred and unchecked, it will further lead to erosion of credibility of the Criminal Justice System. Reduce faith of a common man and confidence in its effectiveness and efficacy and further will encourage a trend or tendency on their part to take law on their hands.
It cannot be disputed that crime victims and witnesses are responsible for the successful solution when victims start not to co-operate with the Criminal Justice System, where failing to report crime, assist in investigation or in prosecution as a witness, the success rate of the government in apprehending, convicting, and punishing criminals over violators of law would become negligible. It is in this context, the conclusion has become virtually inescapable that the Criminal Justice System ignoring the interest of poor, illiterates, the victims runs the risk of alienating a person upon whom the success the entire eateries of the Criminal Justice System depends. It may also be noted that a massive lack of participation of the people in the Criminal Justice System runs the risk of seriously damaging the present constitutional objects and goals of criminal justice, as well as permanently affecting and undermining the crime monitoring or control function of the agencies concerned in general and in Government in particular.
Obviously, imagining a situation where victims do not willingly report crime or become witnesses, the evident result would be the entire Criminal Justice System itself will be relegated to a status of bystardie restricted to prosecuting petty or public offences which would be not only unhealthy syndrome but will materially affect the law and order leading to composed situation.
It is true that largely interest in the victim involvement in the criminal justice system and enhancement of victims rights has been improved for social scientists, social reformists, criminologists and crime victim researchers, rather than legislative and popular political interest. It has also been observed that judicial responses have often been not very positive and therefore, it is not surprising to observe that the logically and rationale for enhancement and implementation of victims rights and the Criminal Justice System most frequently proceeds from and not legally on judicial sources. It is in this context, it would be obviously expedient and desirable to consider and examine the rationale most frequently required to be observed. The following are some of the important and useful reported rationale may be highlighted at this stage.
[1] In the present Criminal Justice System the interest of victim is virtually ignored, resulting into serious injustices to them and resultant emergence of a sense of frustration and in equal and unfairly treatment to the victims.
[2] The current system is causing or harbouring in equity or elaborate procedural rights of the accused whereas on the other hand, denial of even right of a victim of crime, a proper status and standing in the criminal justice process.
[3] Enhancement and improvement of the rights and privileges of the crime victims will indutably lead to encouragement for victim participation and co-operation within the system in the successful investigation and prosecutorial areas. The result of improved effectiveness of the criminal justice system in monitoring, apprehending and convicting criminals and that the recognition of the roll status and rights of such victims of crime will have an impact of deterrent and lowering the overall crime graph but increasingly the conviction rates.
[4] The recent concerned for the plight of the crime victim is largely attributable to the writing of Margery Fry, an English penal reformer, who has strongly proposed that victim should no longer be made to depend upon civil suits for loss inflicted upon them by crimes. Advocating that government compensation to the victims of violence was a logical extension of an enlightened social policy which already provided transfer payments for the majority of social dislocation occasioned by modern life.
[5] The point has been reached where we must give consideration to the victims of crimes to the one who suffers because of crime. Society has an obligation when the protection of the society is not sufficient to prevent their being victims society has an obligation to compensate the victim for that failure of protection.
[6] It would be worthwhile to refer the deterrent rationale for introducing of compensation scheme projects and programmes in the penal process suggested and Advocated by learned author Mr. Rajan " [Victimology in India]
1. The best raison de'tre for victim compensation is the theory of the State. The State is a complex of rulers and ruled, politically conceived, territorially organized, seeking by the conferment of powers on the rules, the effective maximization of the individual interest and the social welfare of the ruled. The State achieve its purpose through enactment and promulgation of laws and it enforces obedience to the laws by the exercise of power. Power is the capacity to produce the intended effect. If the intended effect cannot be produced in respect of any law, the State has to assume responsibility for the loss, pain or damage caused to any law abiding citizen by someone's caused to any law abiding citizen by someone's disobedience of the law.
2. The assumption of power by the State necessarily implied deprivation of the citizen of his right to private vengeance or personal retributive action. Such a deprivation is a sine qua non of modern society's civilized existence. But for that, we would be reverting to the law of jungle. In return for that deprivation the citizen gets the protection of the State. In cases in which the State fails in its obligation to protect the individual it has broken its agreement, and should thus be liable for damage done to the victim of crime. Such a rationale will argue for the most liberal type of compensation programme, in principle a citizen has a right to advance claim against the State for its failure to protect him.
3. Another justification offered for the victim compensation is the "shared risk" argument. In a sense, the Government may be viewed as a entrepreneur or an employee who included the cost of the risk of service it renders to the consumer in the price of the product. Thus, each consumer contributes towards the payment made to these individuals who will be compensated for damages. The taxes paid by the citizens are seen as payment of premium to cover the insurance against the risk of crime victimization which every citizen shares with every other citizen and compensation to crime victim or deceased [individual's next-of-kin or victims under the insurance scheme.]
4. Another functional justification for victim compensation is the "welfare" theory arising from the assumption that the government exists and functions for the people. The approach holds that, just as the State has a humanitarian duty to the poor, the sick, the unemployed, the under-privileged, and so on, it has a duty towards the victim of crime also. However, this duty is based not only on contractual obligation on the part of the State, but on the social conscience of its rulers and its people.
5. Related to the welfare theory is the theory of "mercy of the Government". Under this rationale, it is argued that the State has the power to deal mercifully with certain individuals. Thus, it may, by legislative grace, grant compensation to individuals who have been unfortunate to become victims of crime. This is probably known as ex-gratia payment made by the Government to victims of crime, accidents and other natural calamities.
6. The Constitution of India guarantees equality to all under Article 14 and also Article 41. It has been provided under Article 41 that "the State will shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement and in cases of undeserved wants." It has therefore, rightly been Advocated by learned Author Das in "Victims in Criminal Justice System" that the victims of crime are under-served because of the State's failure to give them protection and also, in many cases of offences against person the victim suffers from physical and psychological wounds which leads some-times to disablement.
It is necessary to make adequate provisions so that any of the perception of victim of crime in the present system "the forgotten man" can be remedied.
125. Dynamics Of Victimology And Cures :
It is high time to create a consolidating the Victim Welfare Fund on a statutory basis, such funds can well be administered by a Council or a Board named "Victim Welfare Board or Crime Victim Service Council" the payment of compensation may be left to the discretion of such statutory authority.
It is high time to make adequate provisions by suitable amendments in Articles 40 and 39A of the Constitution of India, which guarantees justice and equal protection of the law and also the United Nations declared of "Basic Principles of Justice for Victims of Crime and the Abuse of Powers" for proving easy and speedy access to victimized victims of crime.
The consideration for the creation of the Victims Compensation fund and scheme by appropriately enacting the legislation on "the Victims Compensation to Provide Adequate Mechanism for Interim and Final Order of Restitution, creation of directorate victim services to provide adequate assistance and help to a person who is an victim of a act of crime who does not have a compensable injury could get counselling and physical therapy by qualified psychiatrist on the line of provisions of "The Victim Compensation Act, 1966" and amended by the Victim Compensation Act, 1998 in the United States.
It is also necessary to create and establish the crime victims institution with a purpose to provide for relevant research and information program evaluation and policy recognitions for improving services to the crime victims in our country. It can also be examined and considered the suitable provisions for suitable training and victim assistance programmes. It is also necessary to consider and create a separate department for maintaining, monitoring and guiding the victims compensation and welfare measures in our country, The creation of adequate provisions for providing guidelines for [a] to include the material information to be included in the victim impact statement; [b] to create wounds amongst crime victims and their family members and dependents; [c] to provide counselling to a victim of violent crime who has sustained serious psychological impairment; [d] creation of adequate mechanism for providing facility. The victims of crime by way of legal aid.
It may be mentioned that the victims service is a business unit in the Attorney General department in United States. The victims services provides [a] the victim compensation review and [b] the Victims of Crime Bureau to provide counselling information and referral services to assist victims of crime, to constitute a statutory victims advisory Board as has been provided in the United States under the provisions of "The Victims Right Act, 1996".
To provide Mental Health Advocacy Services to the Victims of Crime.
126. The expansion of victims compensation criminology must so respond realitically to the new challenge of human rights social justice as to solace and destitute victims of crime and abuse of public power by resorting to new methodology of rehabilitative, repetitive, participating and preventive other administrative and judicial redressal and remedies, the victim of crime must claim our attention since injustice to him/her to only be fully amended by restitutive justice, more punishment of offender that is the reason why the trends, new trends and recent development within the new words of human order must be kept in mind which broaden the humanitirian diamines or Criminal Justice System.
126.1 It may be mentioned that victimology has deep root in the human raison and culture. It has been a part of code of Samurai ["Babylon"]. It is also spelt out in ancient text Greek, Roman and Indian even in Hague Convention of 1907 of Article 3 therein is the payment of compensation to the over crimes and a crime against humility. No doubt the modern trend in its present sake of victimology occurred prominently in 1960s.
126.2 The jurisprudence or criminal and victim compensation has been predominantly found its role and place in Europe, United States and Australian States in 1960s. In 1962, the British School of the International Commission of Jurists, advocated for victim compensation as an integral organ of Criminal Justice System. Even in French Court provisions are made for civil action to claim damages against the prisoner in addition to compensation to the victims at the criminal trials. The renowned and non-Italian criminologists Mr. Gara Falo also champion the participation lab criminal Board can be confiscated if available for restitution to the victims and if he is finally unable, he should be directed to work for the State and the State may also be held accountable for compensation to the victim.
126.3 There is high time for an Indian legislation for providing victim assistance and compensation and guidelines for a scheme and as restitution for working in an effective statutory frame-work for victimological, rehabilitative project in our country.
126.4 Learned Advocates for the accused persons and learned Public Prosecutor have jointly submitted that one week's time may be granteed to enable them to tender available documentary evidence or the persons concerned for ascertaining the latest information which would help the Court in arriving at a fair and reasonable quantum of punishment, including the quantum of fine and the amount of compensation if so warranted and that may be directed to be paid to the dependents. It is in this light of the consensual request, the matter is adjourned to 15th February, 2002 for further hearing. Learned Public Prosecutor, also, desired that the concerned in-charge Police Inspector or higher officer will be called and the widow and minor son of the deceased will be kept present on the next date.
The matter is therefore, adjourned to 15th February, 2002. The learned Advocates appearing for the accused assured that the accused shall be kept present on the next date.
8-2-2002 [J. N. BHATT, J.]
127. In pursuance of the earlier order, today learned Advocates appearing for the accused persons have submitted written memorandum highlighting reasons and grounds, socio-economic status on the question of quantum of punishment. They are taken on record. They are also signed by the learned Advocates appearing for the accused persons. Written submissions on behalf of A-1 and A-2 is now placed at Exh. AA-HC-1, whereas, written submissions given on behalf of A-3 is now placed at Exh. AA-HC-2. A copy of the loan sanction advise-cum-receipt on the basis of ornament evidencing the loan transaction by A-3 from Bank is also tendered in course of submissions. It is placed at Exh. AA-HC-3. Learned Advocates for the defence have stated that unfortunately, on account of long lapse of time, medical evidence in respect of health condition mentioned by A-1 on last occasion has yet not been traced and procured and the some medical record will have to be obtained from the record of the Court as the same had been presented and produced for the purpose of bail during the pendency of trial. On this ground, it is requested that reasonable time may be granted so as to collect available documentary medical evidence. It was, also, requested that since some medical record was produced along with bail application, in this Court, the Registry may be directed to trace it, if available as early as possible. Obviously, upon undergoing the requisite procedure for return or copies thereof, the Registry shall help and expedite the process of search and supply as per the Rules. Learned defence Advocates may also bring to the notice of the Registry, in case of any difficulty.
128. The learned Public Prosecutor Mr. Oza has shown the material collected by the Police Officer of the concerned Police Station. However, he has requested for some time to prepare a statement on the basis of record brought including statements brought by the Police Officer today in the Court and to make one more attempt to keep the widow of the deceased and the minor child of the deceased person in the Court as only father of the deceased has been able to come today.
129. Of course, adjournment is necessitated on account of long duration or hearing of acquittal appeal at two stages. However, grant of adjournment may not be interpreted as contributory to protracting proceedings of second part which is, also, equally important. In the larger interest of justice, and in view of the peculiar facts and circumstances, S.O. to 1st March, 2002.
The learned defence Advocates have assured again that all the accused persons will remain present on the next day as they are present in the Court today as directed by the Court.
15-2-2002 [J. N. BHATT, J.]
130. Again reverting back to the sentencing process, it is not reality, significant component of the Criminal Justice System, it is an important organ of the process and bringing not only an end of the trial, but also sending signals to many including potential criminals qua of sentencing process is undoubtedly a very dynamic but difficult and delicate as well. It is a matter of understanding that whether the Court has been empowered to exercise discretion. It has to be observed and exercised obviously on relevant material, factual profile in finalizing the decision making process in reaching the quantum of punishment or sentence. Obviously, therefore, the Court in exercise of discretionary power in process of sentencing has to be safeguard so that unnecessarily harsh punishment is not imposed and at the same time, to see that the required punishment is not left out. In reality, it is a process of balancing and thereby to reach to a point of conclusion for the purpose of appropriate and expedient also reasonable exercise of discretionary power of Court in fixing the quantum of sentence and punishment.
131. Undoubtedly, one cannot expect the Court to make standardize or a shape the raceipy (sic receipt) of a strait-jacket formula in awarding any appropriate sentence regarding the question of laying down the standard and norms restricting area the imposition of certain kinds of punishment would be in many cases unjustified or unreasonable. The Court is obliged to take into consideration the aggravating as well as mitigating circumstances while going through the process of sentencing for fixing the quantum of punishment in the realm of penology. Obviously, the Court cannot oblivious the modern views and trend prevalent in victimology, therefore, standardization of sentencing formula or categorization in sentencing process in all probability will cease to be judicial, as it depends upon the factual matrix of the appropriate of a given case. No doubt broad principles, general guidelines consistent with the policy manifested by the legislature in Section 354(3) of the Cr.P.C, this proposition has been elaborately articulated very well expounded by the Hon'ble Apex Court in a recent decision of Mohmed Chaman v. State, 2000 (2) SCC 28 decided on 11-12-2000.
132. In the light of principles broad guidelines and the observations in host of the judicial pronouncement and the discussion elaborately made by this Court hereinbefore, the culpability established beyond doubt against the accused persons in this appeal and will have therefore, to be judged, evaluated for the purpose of awarding appropriate punishment and imposition of sentencing if relevant in the case of the accused persons. The type, the mode, the manner, the weapon, the role and the contribution made by A-1, A-2 and A-3 have been materially stated hereinbefore.
133. The culpability of the main accused A-2 is established beyond reasonable doubt for culpable homicide not amounting to murder, which is punishable under Section 304 Part II whereas A-1-Raghu and A-3-Sanjay have been found guilty for the offence punishable under Section 304 Part II read with Sections 109 and 114 of prescribes punishment which is relevant for our purpose.
134. Section 304 of the Cr.P.C. is in two parts, if analyzed, the Sec. provides two kinds of punishment for different situation. [1] if the act just like accused has done with the intention of the causing death or causing such injury is likely to cause death, the important ingredient is intention whereas in [2] if the act is done with the knowledge but without any intention to cause death or such injury is likely cause death when person hits any weapon on the vital part of the body of the person, knowledge of the likelihood of death of the person, in that event or in such a situation, obviously the case would fall in Part II of Section 304 of I.P. Code.
So far as the first part of Cr.P.C. is concerned, it is not act to play in the present case. Part II Section 304 provides punishment for imprisonment for term which are exceeding to 10 years or with fine or with both.
135. It is in this context, now at this stage, the significant and substantial questions therefore falls for consideration is about the appropriate choice of sentence keeping in mind the factual matrix and the role and overtake played by the accused persons in the unfortunate incident in culminated into untimely killing of a young man of 24 who left this world "leaving minor son and young widow".
136. The Court addressed on earlier occasions elaborated hereinbefore on the question of quantum of punishment including the amount of fine and also on the question of direction for payment of compensation to the victims of crime like that minor son and young widow in terms of provisions of Section 357 of the Cr.P.C.
137. This Court has also heard the accused persons in the open Court and also heard the members of the victim party so as to reach just and reasonable conclusion on the question of punishment and imposition of fine and or the payment of compensation, if any, to the minor son and the young widow of the deceased. Written statement are also tendered. Therefore, in view of the statutory mandate enshrined in the provisions of Section 235(2) of the Cr.P.C., sufficient opportunity has been given to the accused persons so as to submit and bring on record necessary, and relevant material referable to each accused persons before reaching determination of quantum of punishment.
138. Needless to reiterate that the role of status of victimology, unfortunately in our present Criminal Justice System in our country is a very minimal level when this aspect is paid priority in many other countries.
139. It is in this context, we have also observed that the sole provisions for compensation to be paid to the victims of crime incorporated in Section 357 of Cr.P.C. in the present statutory frame-work requires a lot of reform, adequate and proper manner. As it has been many time the criminals, offenders or the violators, one from poor state of society and the amount of compensation to be borne by the accused persons for being paid to the victims of crime may not be sufficient and even adequate. Not only that it is also a very celebrated and undisputable fact that if the victims, who are provided some work during incarcernation, they do not earn sufficient fund to get their two ends meet, how they could always be directed to pay reasonable if not handsome amount of compensation to the victims of crimes. It is in this context, it is high time for the authorities concerned or appropriate forums should take up this issue on a top priority so that the victims of crime are not victimized or tormented. In fact, in such a situation, these are State's responsibility for providing compensation by creating statutory mechanism and crime victims service and crime victims benevolent funds out of public exchequer. In this connection, some of the suggestions are made by this Court hereinbefore which may be some help in future and since a judicial Criminal Justice System is reformed by the Malimath Committee, the form of suggestions would not be a ground, and therefore, it would be proper to direct the Registry to send a copy of this judgment free of cost to the said committee, which may be of some use in forming their views and their suggestions and resultant report on vital issue of Criminal Justice System service.
140. After having given gist of the intention, though to the actual prevalent of each accused persons and his role, overtake, financial position, social status, liability to maintain family as also the financial and social conditions of minor son who is reportedly below 15 years at present and is in fact studying in a hostel. The brother of the deceased, it is reported to have divorced his first wife and had entered into marriage with the widow of the deceased and it is also stated that deceased had a minor son Vishal, who is aged about 15 years and studying in hostel and the brother of the deceased after a second marriage with the widow of the deceased has also got to the said relationship whose name is Jay.
141. Accused A-1 Raghu, as it is found from the record though was armed with the muddamal Article No. 9 has not been shown to have used in view of the medical evidence on record. His age 62 years old, he has in past undergone cardiac trouble, he has also already undergone imprisonment for a period of almost 22 months as a under-trial prisoner as during the course of trial, he appears to be the main person, head of the family no doubt, the role attributed and is established by instigating A-2 in infliction of knife blows by shouting to kill the deceased. It is found from the record that he has been doing transport business since long. He is also the owner of vehicles including one TATA vehicle. He also owns a residential house of his own which, as reported in the police report to be valuable one. He has been thus doing transport business. It is also noticed on this point, during inquiry by the police that the economic condition of A-1 Raghu his family is good and sound with good social background. In short, accused persons belong to a fairly rich family and having good earnings.
142. Insofar as A-2 Ghana @ Ghanshyam, he was hardly 22 years, who is now 36 years old, he has his own vehicle and he is also doing business and is earning by renting and hiring tractor, he has joint ownership of renting and hiring the tractor in Amreli district. Unfortunately on instigation and the assistance of his father, A-2 Ghana inflicted three successful knife blows on the person of deceased, who was helpless. This Court has categorically appreciated the evidence hereinbefore and it is found culpable homicide not amounting to murder and resultant culpability under Section 304 Part II. Section 304 of I.P.C. provides for punishment of murder and Section 304 Part II provides for the punishment for culpable murder. Be as it may, he has already undergone the period of 32 months imprisonment as a undertrial prisoner. Therefore, an important question which will now arise for consideration and adjudication at this juncture, that what should be the sufficient quantum of sentences and an amount of fine, if any, whereas what should be the reasonable amount of compensation to be awarded. It may be stated that both the sides have contended that insofar as the amount of fine out of which amount of compensation to be awarded to the victims is concerned, that whatever the fine is imposed, the Court may award reasonable amount of compensation out of the amount of fine. However, on behalf of the accused persons, it has been strongly, empathetically urged that the period undergone as undertrial prisoner coupled with the lapse of almost 13 years, therefore, there will be no fruitful result by sending him for a longer period of imprisonment. Needless to mention that the maximum punishment which can be imposed for the offence punishable under Section 304 Part II is of 10 years. However, learned Advocate appearing for the accused persons have left it to the Court, the reasonable amount of fine to be awarded and out of which, a sum reasonable amount by way of compensation may be awarded to the victims of crime.
143. Insofar as the merits of the punishment process for A-1 is concerned, the learned Public Prosecutor has also not seriously desired or insisted for higher imprisonment. However, he has empathetically submitted that in view of his financial status, assistance and the poor position of the victims of crime, the Court should impose the amount of fine not exceeding one lakh and or otherwise the directions may be given for compensation to be paid to the minor child and the widow of the deceased.
144. In this connection, the learned Public Prosector has also relies on the decision in the case of Venkatesh v. State of Tamil Nadu, AIR 1993 SC 1230, it is found from the said decision upon thorough examination that accused persons came to be convicted under Section 304 Part II and was sentenced to undergo R. I. for 5 years and to pay a fine Rs. 3000/- for having hit by the wooden reaper, accused after releasing the grievous misdeed tried to commit suicide and also upon matter being taken to the Hon'ble Supreme Court, it has been held in that case, the Hon'ble Supreme Court has reduced the period of sentence to the period of already undergone and enhanced the fine to Rs. 1,00,000/- to be paid to the widow and the daughter of the deceased overruling the judgment of the Madras High Court rendered on 14-6-1991 in part. In Para 7 of the said judgment, the Hon'ble Apex Court had given directions as to how this amount should be payable to the minor daughter and the widow of the deceased.
145. As regards the accused No. 3 Sanjay @ Gaddhi, his role was only to catch hold the deceased Shekhar when A-2 inflicted knife blows, he has also undergone 23 month's imprisonment as an under trial prisoner. Therefore, learned Counsel appearing for the accused persons has reiterated same submission that the period of imprisonment undergone may be treated as sufficient and reasonable amount of fine may be imposed and out of that, the reasonable amount may be directed to be paid by way of compensation as per the provisions of Section 357 of the Act to the widow and the minor of the deceased. Learned Public Prosecutor insofar as A-3 has not again very seriously insisted the submission for sentencing in terms of imprisonment is concerned. However, he has fairly submitted that he should be awarded the amount of fine and out of that reasonable amount by way of compensation may be directed to be paid for the welfare and upkeepment of the minor and the widow of the deceased.
146. No doubt in a realm of victimology the decision is one of the aspect towards the fulfilling the design and desideratum and restorative justice to the victims of crime but that is not all. The loss of affinity, cordiality, family warmth and the caressing by close kith and kin which otherwise also would be invaluable, the minor child and the uneducated woman and so on forth as these are the illustrations and not the exhaustive items which are undoubtedly irreparable and invaluable. Nonetheless what the Court is required to perform its duty to consider how such persons insofar in terms of money, as far as possible can be compensated, in view of the lesser than aided hardship on account of unfortunate death. Of course unfortunately in the country like our, many other useful services other than the compensation for victims and services adequate for payment from the statutory mechanism, authorities have to evolved, though, it is high time to do so and it is hoped that Malimath Committee will go into such aspects. Any way, at this stage, we are concerned at what should be the quantum of punishment or sentence and reasonable amount of fine and out of that, payment of compensation to the minor son and widow of the deceased.
147. In this connection, on behalf of the accused persons following decisions have been cited and relied on in support of their contention that the period so far undergone as undertrial prisoner and additionally the lapse of spell of more than 13 years in between and to see that the accused persons are not insulated from and through and family life and social environment, the period undergone should be treated as sufficient for the purpose of substantive sentence and leave it to the discretion of Court about reasonable amount of fine and from such amount, direction for compensation to be paid to the minor and the widow of the deceased. To substantiate the submission, reliance is placed on the following decisions :
[1] AIR 2000 SC 1374 in the case of Camilo Vaz v. State of Goa In this case, conviction under Section 302 came to be set aside and substituted by the offence punishable under Section 304 and Part II and sentence of 5 years had been imposed.
[2] 1997 (1) GLR 698 in the case of Narvat @ Bhatti Rayajibhai , State of Gujarat, has been relied on in which one accused gave stick blow on the back and waist of deceased whereas other gave blows with fist and kicks. The Sessions Court imposed sentence of 4 years looking to the age of accused, sentence reduced to period undergone.
The decision in Anjana Patel Abberaj Phulabhai v. State of Gujarat, reported in 1993 (2) GLH 242, in this case, the accused was 60 years old, 8 years period was passed after the incident, on facts substantive sentence of imprisonment came to be reduced to the period of imprisonment already undergone with a fine of Rs. 8,000/- and the amount of fine directed to be paid to the widow of the deceased.
In the decision in the case of Kapildeo v. State of Uttar Pradesh, reported in 1983 Cri.LR 553 (SC). In that case, for the offence punishable under Section 304 Part II sentence of 7 years imposed by the High Court came to be reduced to two years. The facts are not elaborately stated in the judgment of two paragraphs.
Reliance on the Supreme Court decision in the case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, reported in 2000 Cri.LJ 3508 is out of contest and not attracted to the facts of the present case. In that case, the offence established against the accused under Section 304A of I.P.C. The main question was whether the passenger while boarding bus falling down, the presumption of negligence can be drawn or not.
Reliance is also placed on the decision of the Hon'ble Supreme Court reported in 2000 (10) SCC 225 in the case of Bhera v. State of Rajasthan, offence punishable under Section 304 Part II, the accused was convicted thereunder and sentenced to 5 years imprisonment. In this connection, it would be preferable to refer the decision of the Hon'ble Apex Court in the case of Kalinder Bharik v. State of H. P., 2000 SCC (Cri.) 96, conviction under Section 302 was altered to conviction under Section 304 Part II and sentence of R. I. for 7 years was imposed.
148. It, therefore, become clear that insofar as the culpability of A-1 and A-3 is concerned, the learned Public Prosecutor has not seriously submitted for further sentence of imprisonment. However, he has urged strongly that in view of the fact that victim of crime deceased Shekhar was the only earning member of the family and died leaving behind young widow and minor son, who is now admitted in the hostel for education, and therefore, Public Prosecutor Mr. Oza has submitted that the period of 22 months imprisonment as undertrial prisoner should be considered as sufficient for the purposes of imprisonment but not for the purpose of imposition of fine. For that, he has strongly urged that A-1 is doing transport business and is also earning by renting and hiring the tractor and he has also agriculture properties, he is the man of means and he has good income, and therefore, in the peculiar facts and circumstances of the case and the opposite indigent situation of the minor and the widow of the deceased, imposition of fine not less than Rs. 1 lakh will be justified and the amount of fine, if paid Rs. 1 lakh may be directed to be paid to the widow who is illiterate and unsophisticated lady and who is totally helpless and workless. Of course, the marriage with the elder brother of the deceased husband is not shown to be legal and valid or that it was performed with required procedure and necessary ceremonies. Apart from that, she has also one child out of new wedlock with Dipak, elder brother of the deceased. In the opinion of this Court, it would be just and reasonable to direct that 90% of the amount of fine for being disbursed to the young widow of the deceased on the appropriate terms and conditions either partly in fixed deposit term in any institution or nationalized bank by account payee cheque, as decided by the concerned Sessions Judge.
149. As regards the accused No. 2 the same submissions are advanced on his behalf by him as well as by his learned Counsel. However, leaned Public Prosecutor has vehemently argued that in view of the three successive knife blows, out of one found as fatal on the person of deceased aged about 24 years. In this context, it is submitted by the learned Public Prosecutor Mr. Oza that he deserves at least imprisonment not less than 5 years and substantial amount of fine out of which reasonable amount can be awarded to the minor and the young widow of the deceased. It has also submitted that the imposition of fine of 1,25,000/- considering the agriculture business, renting and hiring work and the sound financial position of the family, compensation should be imposed by way of fine and at least an amount of one lakh should be directed to be deposited as F.D.R. after disbursing it for the welfare and upkeepment for the minor who has a long way to go even he has to complete his basic education.
150. Obviously, that lead to the conclusion that insofar as A-3 is concerned, almost same submissions are advanced before this Court on behalf of the accused and accused himself reiterated the same ground in the open Court. It has been contended that the A-3 has already undergone, as a undertrial prisoner, imprisonment for a period of 23 months and that period should be treated as sufficient so far as substitute imprisonment is concerned. The learned Public Prosecutor in his fairness in light of the facts of the case, he has contended that the period undergone may be treated as sufficient and amount of fine exceeding Rs. 25,000/- may be awarded by way of compensation as he has having good financial position and status.
151. Insofar as A-1 and A-2 are concerned, though offence established against them under Section 304 Part II is punishable up to the period of 10 years in view of the peculiar facts and special circumstances of the case and the submissions of the parties and the personal circumstances referable to the accused persons narrated before us during the course of the submissions, the period as undergone by the accused Nos. A-1 and A-3, may be treated as sufficient. However, ends of justice will be met, if the period of 22 months imprisonment already undergone as undertrial prisoner is to be treated as sufficient and to impose a fine of Rs. 80,000/- and in default to undergo further R.I. for a period of 13 months whereas A-3 is concerned he has undergone imprisonment of 23 months as a undertrial prisoner, the period of imprisonment already undergone as a undertrial prisoner, it would be considered and treated as sufficient in the facts and circumstances of the case. However, the amount of fine of Rs. 30,000/- is imposed and in default to undergo further R.I. for a period of 11 months. If the amount of fine is paid, the learned Sessions Court concerned, will get reasonable amount fixed deposit terms in any nationalized bank for a initial period of 5 years and the interest that accrue shall be paid to the minor and the widow for the welfare and upkeepment of the life.
152. The main question which now falls for consideration is as to what should be the quantum of punishment for the culpability established against the A-2 Ghana. No doubt, he has given three successful knife blows one fatal proved resultant in the homicide death of the deceased Shekhar. He has been convicted for the offence punishable under Section 304 Part II of I.P.C. He has also undergone the imprisonment for a period of 32 months as undertrial prisoner during the course of trial. In light of the facts and circumstances and in this relation, the A-2 who has inflicted three successive knife blows who was helpless, the manner and mode in which the offence came to be committed by him the period undergone as a undertrial prisoner so far of 32 months is quite less against the maximum punishment of sentence under Section 304 Part II. However, since more than 13 years of period of lapse in between, he is also a man of 35 in the facts and circumstances of the case, other relevant and attendant aspects, the ends of justice will meet if the he is imposed imprisonment for a period of 4 years and a fine to pay Rs. 1 lakh in default to go further R.I. for a period of 14 months, if the amount of fine is deposited or paid in the trial Court, it will be open for the learned Sessions Judge, to pass appropriate order and directions for the disbursement in appropriate utilization of the said amount for the upkeepment and welfare of the minor and the young widow. It will be open for the trial Court to consider to deposit in three to four parts in the name of minor through guardian for his effective and constructive education for expanses, evocation of life. Again, it will be clarified that it will be open for the learned Sessions Judge to see that if so desires to pay reasonable amount of by way of compensation by A-C payee cheque, the direction for payment of compensation out of amount of fine are necessitated in the light of the peculiar facts and special circumstances, the plight and financial status of widow and the minor son.
153. In the result, A-1 Raghu @ Raghavbhai has been found guilty for offence punishable under Section 304 Part II read with Sections 109 and 114 of the Indian Penal Code and who has already undergone imprisonment for a period of 22 months as undertrial prisoner is to be treated as sufficient in the light of and role played by him and contribution causing the killing of deceased Shekhar. He shall also pay a fine of Rs. 75,000/- by way compensation in default thereon, to undergo further R.I. for 13 months. If the amount of fine being paid, the same shall be disbursed by the trial Court in accordance with law for the better upkeepment and welfare of the widow.
154. Insofar as A-2 Ghana is concerned he has been sentenced to undergo R.I. of 45 months and shall also pay a fine of Rs. 1,10,000/- for the offence punishable under Section 304 Part II in default to undergo further R.I. for a period of 14 months. If the amount of fine is paid out of which Rs. 10,000/- shall be disbursed to the minor son of the deceased who is studying in hostel by way of compensation in view of the provision of Section 357 of the Cr.P.C.
155. Sofaras A-3 Sanjay @ Gaddhi is concerned as already stated hereinbefore us and since he has undergone 23 months imprisonment as undertrial prisoner, in the facts and circumstances of the case and role played by him, shall be considered and treated as sufficient imprisonment. However, he shall also pay a fine of Rs. 25,000/- in default of paying fine, he shall undergo further R.I. for 11 months and if the fine is paid, it will be open for the learned Sessions Court to pass appropriate order for disbursement either by depositing in F.D.R. in part or in full for his career study and better upkeepment of the minor. It will also be open for the learned Sessions Judge concerned to exercise his discretion as to how best the total amount of fine be utilized and to see that the amount of compensation is to be paid and the purpose for invoking the provisions of Section 357 of the Cr.P.C. are sub-served.
156. Before concluding, it will be noted that during the course of marathon submissions on different occasions for the purpose of close considerations and evaluation insurance of the facts and rival submissions before us, we had called for our examination and consideration the muddamal Article from the trial Court. We had seen, inspected and examined mainly the muddamal knife incriminating knife A-2 Ghana and the iron rod held by A-1 Raghu we had them seen in the open Court in presence of the learned Advocates, since the matter is completed the Registry is directed return with a messenger the said muddamal Articles at the earliest opportunity.
157. Learned Advocate appearing for the accused persons has submitted that sufficient time should be granted for being paid the amount of fine. In the light of facts of the present case, the amount of fine shall be paid within a period of 2 months from today. A-2 Ghana is directed to surrender his bail serving out imprisonment imposed hereinbefore. He is granted six weeks time to surrender. The bail bond shall stand cancelled forthwith.