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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No 652 of 1990
with
CRIMINAL APPEAL No 790 of 1990
For Approval and Signature:
Hon'ble MR.JUSTICE R.K.ABICHANDANI
and
Hon'ble MR.JUSTICE SHARAD D.DAVE
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1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
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CRIMINAL APPEAL NO. 652 OF 1990 :
Chandrasinh @ Chandubha Lalubha .. Appellant
Versus
State of Gujarat .. Respondent
--------------------------------------------------------
Appearance:
MR KB ANANDJIWALA for the Appellant (original
accused No.2)
MR SN SHELAT, ADVOCATE GENERAL WITH
MR SUDANSHU S. PATEL, APP for Respondent - State
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CRIMINAL APPEAL NO. 790 OF 1990
--------------------------------------------------------
The State of Gujarat .. Appellant
Versus
1. Ajitsinh Andubha Parmar
2. Bharatsinh Andubha Parmar .. Respondents
(original accused Nos.1 & 3)
---------------------------------------------------------
Appearance :
MR SN SHELAT, ADVOCATE GENERAL WITH
MR SUDANSHU S. PATEL, APP for Appellant - State
MR KB ANANDJIWALA for Respondent No. 1 & 2
(original accused Nos. 1 & 3)
--------------------------------------------------------------
CORAM : MR.JUSTICE R.K.ABICHANDANI
and
MR.JUSTICE SHARAD D.DAVE
Date of decision: 06/07/2001
ORAL JUDGEMENT
(Per : MR.JUSTICE R.K.ABICHANDANI for the Court)
1. These two appeals arise from the judgement and
order dated 17th July 1990 passed by the learned
Additional Sessions Judge, Surendranagar in Sessions Case
No. 56 of 1987, convicting the original accused No.2
Chandrasinh for the offence under section 302 of the
Indian Penal Code and sentencing him to rigorous
imprisonment for life and to pay a fine of Rs.2,000=00,
in default of which to undergo rigorous imprisonment for
six months, and acquitting the original accused No.1
Ajitsinh Andubha and the original accused No.3 Bharatsinh
Andubha for the offence under section 302 read with
section 34 of the Indian Penal Code. There was Sessions
Case No. 73 of 1987, clubbed with Sessions case No. 56
of 1987 in respect of the same incident. The original
accused No.4 - Bakubha @ Ashoksinh Lalubha, who is the
brother of the original accused No.2 - Chandrasinh was
also tried and by the same judgement and order, original
accused No.4 Bakubha @ Ashoksinh Lalubha was also
acquitted for the offence under section 302 read with
section 34 of the Indian Penal Code.
1.1 Criminal Appeal No. 652 of 1990 is preferred by
the original accused No.2 - Chandrasinh against his
conviction, while Criminal Appeal No. 790 of 1990 has
been preferred by the State Government against the
acquittal of the original accused Nos. 1 and 3 of the
Sessions Case No. 56 of 1987. The acquittal of the
original accused No.4 - Bakubha @ Ashoksinh Lalubha is
not challenged.
2. The prosecution version was that a couple of days
before the day of incident, there was some quarrel
between Sahdevsinh, who was the younger brother of the
deceased Gajubha and the original accused No.4 - Bakubha
@ Ashoksinh, who was the younger brother of the original
accused No.2 - Chandrasinh Lalubha. In that quarrel,
Sahdevsinh was injured by a spade blow given to him by
the original accused No.4. However, no complaint was
filed in respect of that incident. On 14th May 1987 in
the morning, while Abhesinh who was also the younger
brother of Gajubha, was cleaning the `utara' (a place of
tethering cattle as per the prosecution witnesses) which
was near their house, the accused No.4 quarrelled with
him and the father of the accused No.4, Andubha caught
Abhesinh's hands from the back and the accused No.4 dealt
a knife blow to him for which the FIR exh.55 was lodged
by Abhesinh at Muli police station. The injured Abhesinh
was then sent to the Muli Hospital and thereafter taken
to Surendranagar Hospital for treatment by his father
Manubha.
2.1 In the same morning, at about 10 o'clock,
according to the prosecution, the accused Nos. 1 and 3
i.e. Ajitsinh and Bharatsinh, who are real brothers, and
are the cousin brothers of the accused No.2 and the
accused No.4, barged into the house of Gajubha and
started beating his mother Mayaba who was dragged out of
the house. At that time, Ranubha and his sister Harshaba
were present. Harshaba was also given a push. According
to the prosecution, these two accused persons Ajitsinh
and Bharatsinh assaulted Mayaba also with sticks causing
her injuries, in respect of which, she was later on
treated and medical certificate was issued.
2.2 While the accused Nos.1 and 3 started assaulting
Mayaba, Ranubha rushed to their `utara' to call his
brother Gajubha for help. Gajubha immediately started
rushing towards his house which was only 200 feet away
from the `utara' and when he came near a spot which is
described as the rear of the house of Surubha (`Surubha
Na Ghar Ni Pachhit'), and saw his mother being beaten, he
shouted at the accused. At that juncture, the accused
No.2 Chandrasinh emerged from the lane adjoining
Surubha's house, took out a knife from a maroon coloured
sheath and gave two knife blows, one on the chest and the
other on the abdomen of Gajubha. On getting the knife
blows, Gajubha started running back towards his `utara'
and at that time, the accused Nos. 1 and 3 who were
beating his mother left her and started chasing Gajubha
with lathis in their hands. While Gajubha was running
back to his `utara', he was given another knife blow near
a spot which is described in the evidence as `Mataji's
Madhi', which spot is, as per the map exh.37, one hundred
feet away from the spot where the knife blows were first
given to Gajubha by the accused No.2 near the house of
Surubha. That earlier spot was about sixty-two feet away
from the entrance of the house of Gajubha and his family.
Even after inflicting a knife blow at the spot near
`Mataji's Madh', these three accused continued to chase
Gajubha, who fell down near his `utara', at which place
the accused Nos. 1 and 3 had given stick blows to him on
his head. According to the prosecution, Mayaba who was
being beaten in that very street and Harshaba who was
also with her had witnessed this incident. Ranubha who
had gone to call Gajubha to help their mother, had also
seen the incident.
2.3 Ranubha who was hardly 16 years of age at that
time, tried to seek help when his brother Gajubha fell
down due to the assault by these accused persons and
witness Tejubha who had also seen the incident from a
distance of 50 feet went and brought a bullet motorcycle
alongwith Jambha and they carried Gajubha to the Civil
Hospital. From there, the injured Gajubha was taken to
Surendranagar in Mahatma Gandhi Hospital. At the Mahatma
Gandhi Hospital, Surendranagar, Gajubha was examined by
Dr. Wadher at 10.40 a.m. on that day. The statement of
Gajubha was recorded as per exh.14 by the police at about
1.30 p.m. which ultimately become a dying declaration.
The Executive Magistrate was also summoned and he
recorded his dying declaration exh.72 between 3.10 p.m.
and 3.35 p.m. on 14-5-1987. In the evening, injured
Gajubha was advised to be shifted to Ahmedabad and was
brought to the V.S. Hospital, where he was admitted at
8.25 p.m. on 14-5-1987. Gajubha died on 18-5-1987 in
the V.S. Hospital, Ahmedabad during treatment as a
result of these injuries. According to the prosecution,
Gajubha though seriously injured was fully conscious and
in a position to give the dying declarations. He had
also given an oral dying declaration before his father
Manubha, who had come to the hospital after getting
Mayaba treated for her injuries caused by the accused
Nos. 1 and 3.
2.4 According to the prosecution, in all his dying
declaration, Gajubha had stated that he was given knife
blows by the accused No.2 - Chandrasinh and stick blows
by the accused Nos. 1 and 3 i.e. Ajitsinh and
Bharatsinh. As regards the accused No.4 - Ashoksinh, he
had stated that the said accused tried to give him a
knife blow, which however did not land on him.
2.5 The prosecution case further is that, from the
spot where the accused No.2 - Chandrasinh had given two
knife blows initially to Gajubha near the back side of
the house of Surubha, blood stained sheath and a pair of
chappals were recovered which ultimately were found to be
having blood of group `O' which was of Gajubha.
According to the prosecution, the knife was discovered at
the instance of the accused No.2 and it was having blood
stains on the blade. Moreover, from the spot where a
further knife blow was inflicted by the accused No.2 on
Gajubha while he was running back, near the `Mataji's
Madh', blood stained scrappings were taken from the wall
of the `Madh' which were found to be having the blood of
`O' group, which was of Gajubha.
2.6 The prosecution has also relied upon the evidence
of Puriba PW-2 who is residing in the same street near
`Mataji's Madh' as an eye-witness who had seen one knife
blow being inflicted by the accused No.2 on Gajubha and
the accused Nos. 1 and 3 chasing him with lathis and
also another neighbour Prannaba PW-7 who saw the accused
No.2 giving two knife blows near Surubha's house and the
accused No.1 and 3 with sticks.
2.7 The prosecution version, therefore, is that both
from the ocular version as well as the dying declarations
of Gajubha, it was established beyond doubt that the
accused No.2 had inflicted knife injuries to Gajubha with
intention of causing his death and that the accused Nos.
1 and 3 had inflicted stick blows causing injury on his
head and had shared his common intention of causing death
of Gajubha.
3. In the Charge exh.3, it was alleged that all the
four accused persons, in furtherance of their common
intention of causing death of Gajubha and causing
injuries to Mayaba, had entered the house of Gajubha and
the accused No.2 - Chandrasinh @ Chandubha had inflicted
knife blows on the chest and abdomen of Gajubha and the
accused Nos. 1 and 3 had given stick blows to him, and
thereby, they had intentionally caused his death and that
they had committed an offence under section 452, 302 read
with section 34 of the Indian Penal Code. All the
accused were also charged for the offence under section
323 read with section 34 of the IPC as regards the
injuries which were caused to Mayaba. In the
alternative, each one of them was separately charged for
the offences punishable under sections 452 and 302 of the
Indian Penal Code. They were also charged for offence
under section 302 read with section 114 of the IPC.
Finally, they were charged for the offence under section
135 of the Bombay Police Act for committing breach of the
notification prohibiting carrying of arms in public
places.
4. The learned trial Judge, on the basis of the
material on record, came to a finding that death of
Gajubha was homicidal. It was held that the prosecution
had proved that, on 14-5-1987, the accused No.2
Chandrasinh @ Chandubha had given knife blows to Gajubha.
It was, however, held that it was not established that
the other accused persons had common intention of causing
death of Gajubha. The Court held that the prosecution
did not establish that accused Ajitsinh and Bharatsinh
had given stick blows to Mayaba and thereby committed
offence under section 323 read with section 34 of the
Indian Penal Code. The charge for the offence punishable
under section 135 of the Bombay Police Act regarding the
breach of the notification issued by the Collector was
held as not proved. The trial Court found that Gajubha
died a homicidal death which was caused due to injuries
inflicted upon him, which were sufficient in the ordinary
course of nature to cause death. The learned trial Judge
while holding that it was established that the accused
No.2 had inflicted knife blows on Gajubha, held that the
dying declaration was silent about the incident that took
place at his house where the accused Nos. 1 and 3 are
said to have assaulted his mother Mayaba, and that it was
also silent about his brother Ranubha having come to call
him and pursuant to that call, he having rushed towards
his house to save his mother. The trial Court observed
that the contradictions in the version of Mayaba and
Harshaba were proved in the cross-examination through the
investigating officer. Here, the trial Court overlooked
the fact that there were two police statements of each of
these eye witnesses, one recorded on 14-5-1987 and the
other on 18-5-1987 by two different police officers. The
P.S.I. Jhala who took over the investigation on
18-5-1987 when Gajubha died, had recorded further
statements of the witnesses. The trial Court observed
that, looking to the evidence of Ranubha, Puriba,
Harshaba and Mayaba, the incident at home was not proved,
because, there were material contradictions and omissions
which go to the root of the case. This the trial Court
has observed without specifying as to what type of
material contradictions and omissions were there and
without considering whether the omissions were material,
as can be seen from paragraph 30 of the judgement where
these observation occurs. The trial Court, however,
accepted the version of the witnesses and as occurring in
the dying declaration of Gajubha that Gajubha was
assaulted and given knife blows by the accused No.2
Chandrasinh. The defence version that the only one
incident had taken place and that was at 7.30 a.m. on
14-5-1987, and that while there was an altercation, the
crowd had assaulted Gajubha by a knife, was rejected by
the trial Court. The trial Court observed that it cannot
be a mere coincidence that the slippers found from the
scene of offence where the initial knife blows were given
to Gajubha would fit the accused No.2, nor was it a mere
coincidence that in the sheath which was found from that
spot, muddamal knife could be fitted. The trial Court
found that the accused Nos. 1 and 3 had sticks and the
original accused No.4 tried to give a knife blow to
Gajubha which did not cause any injury, but held that
this was not sufficient for the Court to believe that all
of them had assaulted Gajubha. It was held that the fact
that the incident occurred during the daylight, ruled out
the possibility of any mistake in identifying the
assailants who were known persons. The trial Court,
while convicting the accused No.2 for the offence under
section 302 of the Indian Penal Code, observed that, "For
rest of the accused, it is not that they are falsely
involved but authorship of injury cannot be attributed to
them." It was held that the prosecution had failed to
prove that all other accused had acted in furtherance of
common intention to murder Gajubha. The accused Nos. 1,
3 and 4 were, therefore, acquitted.
5. We have heard the learned counsel appearing for
both the sides in these two appeals at great length. It
has been contended by the learned counsel appearing for
the accused No.2 Chandrasinh @ Chandubha Lalubha, who is
the appellant in Criminal Appeal No. 652 of 1990, and
also for the original accused Nos. 1 and 3 (respondents
of Criminal Appeal No.790 of 1990) that, having regard to
the physical condition of Gajubha, who according to the
medical evidence was gasping for breath due to leakage in
his lung which was punctured by the stab wound, it would
not have been possible for him to speak and therefore,
the story that Gajubha had narrated the events in the
dying declaration, cannot be accepted. Therefore, the
earliest version which is said to be reflecting in the
dying declaration exh.14 recorded around 1.30 p.m. on
14-5-1987 was doubtful. He submitted that the subsequent
dying declaration exh.72, which was taken around 3.15
p.m. by the Executive Magistrate, was also doubtful for
the same reason. The learned counsel further contended
that there was a conflict between the version of Gajubha
given in the dying declarations and the version of the
eye-witnesses, as regards the origin, manner, sequence
and place of the incident in which Gajubha is said to
have been assaulted and injured. There is also conflict
between these two versions as regards the part attributed
to the accused persons. He submitted that the dying
declarations in fact destroy the ocular version, because,
there is no reference to the incident about the assault
on the mother of Gajubha by the accused Nos. 1 and 3 and
Ranubha going to Gajubha for help and Gajubha rushing to
save his mother which was a version coming out from the
eye-witnesses. He also submitted that, in the dying
declarations, there was no reference to the assault that
took place on Abhesinh, brother of Gajubha in the morning
at 7.30 a.m. on that day by the accused No.4. He
submitted that, in the dying declaration exh.14, Gajubha
is said to have stated that he initiated the talk with
the accused No.2 about the assault on his younger brother
and there was a sudden attack by the accused No.2 which
story was different from the version of the eye-witnesses
who have said that when Gajubha was coming to save his
mother and was near the spot described as rear
(`pachhit') of the house of Surubha which was about
sixty-two feet away from the house of Gajubha, the
accused No.2 Chandrasinh had, at that time, emerged from
the by-lane adjoining Surubha's house and gave two knife
blows to Gajubha. It was further submitted that, in the
dying declaration exh.72, Gajubha speaks about the
incident having taken place near his `utara' and even in
that dying declaration, Gajubha had not spoken about the
incident of assault on his mother Mayaba and his rushing
to save her on being called by his youngest brother
Ranubha. The learned counsel further argued that the
conduct of the so called eye-witnesses does not inspire
any confidence and that there were material
contradictions and omissions in their version. The
learned counsel referred to the contradictions and
omissions brought out in the cross-examination of the
First Grade Head Constable Tulsibhai in his deposition
exh.58 had stated that Mayaba had not stated in her
police statement that she was pulled by her hair by the
accused Nos. 1 and 3, or that the accused Nos. 1 and 3
had sticks with which they had beaten her son Gajubha.
He also referred to other contradictions and omissions in
respect of other witnesses brought out in the
cross-examination of this police witness. When it was
pointed out to the learned counsel that these
contradictions are with reference to the statements of
these witnesses which were recorded on 14-5-1987 and they
were not with reference to the further statements of
these witnesses which were recorded by P.S.I. Navalsinh
Zala on and after 18-5-1987 when he took over the
investigation, as stated by him in his deposition exh.16,
the learned counsel strongly contended that this Court
cannot refer to the police statements (which are on
record in the miscellaneous papers) of any witnesses for
the purpose of ascertaining as to from which of the two
statements the contradiction was put. He submitted that
the appellate Court cannot look into the police
statements for any purpose whatsoever. The learned
counsel submitted that even such use of the police
statement was not permissible by section 162 of the
Criminal Procedure Code and this Court may read the
evidence as it is, without referring to the police
statements from which the contradictions / omissions were
proved in the deposition of the investigating officers.
The learned counsel for the accused persons further
argued that in this case no motive was established which
would have caused the accused No.2 Chandrasinh to assault
Gajubha or the accused Nos. 1 and 3 to assault Mayaba.
It was submitted that the accused No.2 - Chandrasinh
never took part in the earlier incident which took place
in the morning at 7.30 a.m. wherein his real brother
Ashoksinh and his father Andubha are said to have
assaulted Abhesinh, the younger brother of Gajubha. It
was also submitted that no independent person from the
locality was examined by the prosecution and only
relatives of the injured were examined as eye-witness.
It was submitted that some ingenious mind seems to have
worked to fabricate false story for implicating all the
members of the accused family. It was further argued
that Mayaba was not corroborated by medical evidence
regarding her version that she was pulled out of the
house by her hair by the accused Nos. 1 and 3. It was
submitted that Ranubha did not give the names of the
assailants to Rejubha whom he met in a few seconds after
the incident and this created a doubt as to whether he
had witnessed the incident. Moreover, when the history
was recorded, the name of the accused No.2 Chandrasinh
alone was disclosed to the doctor by some person from the
crowd and it has come on record that one of the relatives
of Manubha, father of the deceased was a police person
named Lakhubha. It was, therefore, submitted that it was
likely that Chandrasinh's name was roped in because of
the quarrel between Abhesinh and Ajitsinh in the morning.
He also submitted that the fact that the word `family'
was written alongwith the name of Chandrasinh by the
doctor in the history of the case given by a member from
the crowd, shows that an attempt was made to implicate
not only the accused No.2, but his other family members
also, and this circumstance creates doubt over the
prosecution story. The learned counsel finally contended
that looking to the medical evidence, it appears that
there were chances of Gajubha's survival if complications
had not occurred due to the injuries suffered by him and
proper medical treatment was given. He submitted that
the immediate cause of death was not injury and the
accused could have lived with one lung even if the lung
which was punctured was removed. He, therefore,
submitted that the accused cannot be held guilty for the
offence of murder, because, the death could have been
averted with proper treatment. It was also submitted
that the contused lacerated wound on the head was
initially described by the earlier doctor as an incised
wound. It was contended that an incised wound would be
caused by a sharp cutting instrument like knife and
therefore, the story that a stick blow was given on the
head of Gajubha by the accused Nos. 1 and 3 cannot be
accepted, as a stick blow cannot cause an incised wound.
5.1 The learned counsel for all the accused persons
in these two appeals cited the following decisions in
support of his contentions :
[a] The decision of the Supreme Court in Harchand
Singh v. State of Haryana reported in AIR 1974
SC 344 was cited for the proposition that where
one set of evidence condemned the other set, the
Court was left with no reliable and trustworthy
evidence upon which the conviction of the accused
might be based. In that case, the prosecution
led two sets of evidence, each one of which
contradicted the other.
[b] The decision in case of State of U.P. v. Madan
Mohan reported in AIR 1989 SC 1519 was cited to
point out that where the prosecution version
regarding the incident as stated by the two
eye-witnesses materially differed from the
version unfolded by the dying declaration, the
acquittal of the accused was confirmed. In that
case, the Supreme Court on the basis of the
material on record held that the prosecution had
suppressed the genesis of the crime and no
witness from the locality whose presence would be
natural were examined which created a doubt
regarding the truth of the prosecution version.
The decision of the Calcutta High Court in Jugal
Kishore Laha v. State, reported in 1984 Cr.L.J.
360 was also cited for similar proposition.
[c] The decision in case of Babu v. State of Uttar
Pradesh, reported in AIR 1983 SC 308 was cited
for the time honoured proposition that in appeal
against acquittal if two views are possible, the
appellate Court should not interfere with the
conclusions arrived at by the trial Court unless
the conclusions are not possible. It was held
that if the finding reached by the trial Judge
cannot be said to be unreasonable, the appellate
Court should not disturb it even if it was
possible to reach a different conclusion on the
basis of material on the record, because, the
trial Judge has the advantage of seeing and
hearing the witnesses and the initial presumption
of innocence in favour of the accused is not
weakened by his acquittal. The appellate Court,
therefore, should be slow in disturbing the
finding of fact of the trial Court and if two
views are reasonably possible on the evidence on
the record, it is not expected to interfere
simply because it feels that it would have taken
a different view if the case had been tried by
it. The learned counsel also cited in respect of
the same proposition the decisions in case of (1)
Solanki Chimanbhai Ukabhai v. State of Gujarat,
reported in AIR 1983 SC 484 and, (2) Ram Kumar v.
State of Haryana, reported in AIR 1995 SC 280.
The decision of the Supreme Court in case of Ajit
Savant Majagvai v. State of Karnataka, reported
in 1997 SCC (Cri.) 992 was cited for pointing out
the principles reiterated therein which would
govern and regulate the hearing of an appeal by
the High Court against the order of acquittal.
6. The learned Additional Public Prosecutor
submitted that the evidence on record clearly established
beyond any reasonable doubt that all the three accused
had acted in a concerted manner when in the morning of
14th May 1987, after the earlier incident which took
place at 7.30 a.m. in which there was a quarrel between
Ajitsinh, brother of Gajubha and Abhesinh, brother of the
accused No.2, the accused Nos. 1 and 3 around ten
o'clock went to the house of Gajubha and dragged out his
mother Mayaba of the house and assaulted her and while
Gajubha who was called by Ranubha for help, was
proceeding on that street, the accused No.2 who must have
been waiting in the lane with a knife, inflicted two
knife blows on Gajubha and when Gajubha started to run
back, the accused Nos. 1 and 3, armed with sticks, also
chased him alongwith the accused No.2 who gave him a
further knife blow and the accused Nos. 1 and 3 gave
stick blows, causing the head injury to him. It was
submitted that there was ample time and opportunity to
these three accused persons to have shared the common
intention of going to the house of Gajubha for the
purpose of the murderous assault and the motive was
clearly the quarrel in the early morning between
Ajitsinh, younger brother of Gajubha and Abhesinh,
younger brother of the accused No.2. It was submitted
that even though Gajubha tried to escape by running away
after he was given initial knife blows by the accused
No.2, all the three accused persons acted in an unusual
and cruel manner by pursuing and giving him further
blows, as a result of which ultimately he died on
18-5-1987. It was submitted that mere possibility that
by some treatment of removing one lung, Gajubha may have
survived, the rigor of the offence was not reduced. The
learned Additional Public Prosecutor further argued that
the dying declarations were implicitly reliable, because,
as per the medical evidence, the injured Gajubha was
conscious. The first dying declaration exh.14 was
recorded on the same day at 1.30 p.m., while the other
also on the same day by the Executive Magistrate at 3.15
p.m. and the names of all the four accused figured
therein. There was clear reference in the dying
declarations to the knife blows given by the accused No.2
to Gajubha and the stick blows given by the accused Nos.
1 and 3. It was submitted that, if at all Gajubha wanted
to falsely implicate anyone, he would not have stated in
his dying declaration that the knife blow which was aimed
at him by the accused No.4 had missed him. The learned
Additional Public Prosecutor, referring to the deposition
of witnesses, submitted that the presence of Mayaba,
Harshaba and Ranubha was natural and there was no reason
to doubt that they had witnessed the incident. It was
submitted that mere omissions of insignificant nature
cannot be used for rejecting their direct evidence. The
learned A.P.P. also submitted that some omissions were
brought on record only in the context of the statements
which were recorded on 14-5-1987 and that the learned
trial Judge had overlooked the fact that the omissions or
contradictions which were proved from the evidence of the
investigating officer were only in context of the
statements of these witnesses which were recorded on
14-5-1987, and that even these insignificant
contradictions and omissions were not there in the
subsequent statements of these witnesses, because, no
such contradictions or omissions were brought on record
in the context of the further statements which were
recorded on 18-5-1987 by the investigating officer, who
took over the investigation on 18-5-1987 when Gajubha
died. It was submitted that the trial Court had not
examined the aspect that none of the contradictions or
omissions can be said to be material. They were
insignificant omissions and contradictions which would
occur in the depositions of the witnesses who are telling
the truth. The learned counsel, therefore, submitted
that there was no warrant to interfere with the
conviction of the accused No.2 Chandrasinh, and that
since the guilt of the accused Nos. 1 and 3 was also
established beyond any reasonable doubt from the record
of the case, the State appeal against their acquittal
deserves to be allowed and they ought to be convicted for
the offence under section 302 read with section 34 of the
Indian Penal Code for having shared the common intention
of causing death of Gajubha with the accused No.2.
6.1 The learned Additional Public Prosecutor cited
the following decisions in support of his contentions :
[a] The decision of the Supreme Court in Makan Jivan
v. The State of Gujarat, reported in 1971 (3)
SCC 297 was cited for the proposition that where
witness states that he had signed his statement
or put a thumb mark in his statement made during
investigation, it is the duty of the trial Court
to clear this point by questioning the
investigating officer and by looking into
relevant record whether the witness had actually
signed his statement or not.
[b] The decision of the Supreme Court in Sham Sunder
v. Puran, reported in AIR 1991 SC 8 was cited
for the proposition that the powers of the High
Court under section 386 of the Criminal Procedure
Code in any appeal in dealing with evidence are
as wide as that of the trial Court. It was held
that, as the final Court of facts, the High Court
has also a duty to examine the evidence and
arrive at its own conclusion as to the guilt or
otherwise of the appellants before it.
7. The learned Advocate General, addressing the
Court on the question as to whether the appellate Court
can refer to the police statements which are on record
for the purpose of ascertaining as to whether the
contradiction or omission was correctly brought on record
in the evidence of witnesses, submitted that the extreme
proposition canvassed on behalf of the accused persons
that the appellate Court can under no circumstance refer
to the police statements which have been used at the
trial and from which, part of the statement is duly
proved at the trial in the contradictions was not
warranted. He submitted that when omission to be brought
on record is to be ascertained, necessarily the entire
statement has to be viewed to find out whether the
omission existed or not. The learned Advocate General
argued that whatever the trial Court can do with regard
to the police statements, the appellate Court also can
do.
7.1 The learned Advocate General referred to the
following decisions in support of his contentions :-
[a] State of Madhya Pradesh v. Kalu Kachru Keer,
reported in AIR 1959 M.P. 391, a decision of a
Division Bench was cited to point out that the
Court held in context of the provision of section
145 of the Evidence Act and section 162 of the
Criminal Procedure Code that, the only use to
which any part of the statement made by the
witness to the police and recorded in the police
diary can be put to is to contradict the
witnesses called for the prosecution with regard
to what he states in Court. If what is said in
the police statement is either reconciled by
explanation offered by the witness in his
examination in Court or is reconcilable apart
from the explanation, there is no contradiction.
It was held that before the contradictory
statement can be used as evidence against the
prosecution and also to discredit the witness,
the attention of the witness has to be called to
that particular part and his explanation sought.
It, therefore, follows that calling attention to
the whole of that statement and showing that the
contradictory portion does not exist is not
enough. What is necessary to put the witness is
what he actually stated to the police with regard
to the particular detail of the incident and what
he stated in Court. When these two statements
are either not reconciled by the explanation
offered by the witness or are irreconcilable,
then contradiction may be said to exist. It was
pointed out from para 21 of the judgement that
the Court held that, where the contradictory
statement in the police diary is something
positive, that is where there is direct
contradiction between what is said to the police
and is said in court, the proof has to be
confined to particular part of the contradictory
statement of the witnesses in the police diary,
but where contradiction consists in omission, the
said omission can be proved either by bringing on
record the whole of the statement, confining its
use to the actual absence of the statement made
in Court, or, the police officer might be told to
refer to the police statement of the witness for
refreshing his memory and asked whether such
statement had been made.
[b] In Nareshkumar Kikabhai Tandel v. The State of
Gujarat, reported in 1984 G.L.H. 233, a decision
of a Division Bench of this Court, which was also
in context of the provision of section 145 of the
Indian Evidence Act and section 162 of the
Criminal Procedure Code, it was held that it was
necessary that in every case where the witness is
to be contradicted, the Judge should bear in mind
these two provisions. In light of the principles
enunciated in Tahsildarsingh v. State of U.P.
reported in AIR 1959 SC 1012 and Ismail Bijalbhai
v. The State of Gujarat reported in 8 G.L.R. 25
(DB), it was held that omission will not amount
to contradiction unless it vitally touches the
very factum which is required to be proved by the
prosecution. The Division Bench of this Court
cited the observation of the earlier Division
Bench in Ismail Bijalbhai (supra) in which it was
held that when an omission from a statement
before the police is brought on record in the
cross-examination of a particular witness, it
becomes obligatory on the public prosecutor and
if the public prosecutor fails to carry out that
duty, it becomes obligatory to the Court to put
question to the witness and to bring on record
under the powers under section 162 of the Cr.P.C.
as to what the witness actually stated to the
police. It was held that it is for the trial
Judge to decide in each case, after comparing the
part or parts of the statement recorded by the
police with that made in the witness box to give
ruling, having regard to the aforesaid
principles, whether the recital intended to be
used for contradiction satisfied the requirements
of law. The Division Bench also quoted the ratio
of the decision in Tahsildarsingh's case (supra)
that section 162 of the Code was conceived in an
attempt to find a happy via media, namely, while
it enacts an absolute bar against the statement
made before a police officer being used for any
purpose whatsoever, it enables the accused to
rely upon it for a limited purpose of
contradicting a witness in the manner provided by
section 145 of the Evidence Act by drawing his
attention to parts of the statement intended for
contradiction.
[c] The decision in State of Kerala v. Babu,
reported in AIR 1999 SC 2161 which is also in
context of the provisions of sections 161 and 162
of the Cr.P.C. and section 145 of the Evidence
Act, was cited to point out that it was held
therein that it is the right of a party in a
trial to use the previous statements of a witness
either for the purpose of establishing a
contradiction in his evidence or for the purpose
of impeaching the credit of the witness and this
right given to a party in a trial under section
145 of the Evidence Act is somewhat controlled in
criminal trials by the provisions made in the
Code. The Supreme Court held that, on a reading
of section 162 of the Code bearing in mind the
object of the said section and section 145 of the
Evidence Act, it is clear that an accused in a
criminal trial has the right to make use of the
previous statements of a witness including the
statements recorded by the investigating agency
during the course of an investigation for the
purpose of establishing a contradiction in the
evidence of a witness or to discredit the
witness.
8. The record establishes without any dispute that
the accused Nos. 1 and 3, Ajitsinh and Bharatsinh, are
the real brothers and that the accused No.2 - Chandrasinh
@ Chandubha Lalubha is the real brother of the original
accused No.4 - Bakubha @ Ashoksinh Lalubha. Accused Nos.
1 and 3 are the cousin brothers of the accused Nos.2 and
4. All these accused were distantly related with Gajubha
and his family. A couple of days prior to the date of
incident which took place on 14-5-1987, there was a
quarrel between Sukhdevsinh and the original accused No.4
- Ashoksinh and during that time, the accused No.4 had
given a spade blow to Sukhdevsinh. However, no
complaints were filed. Manubha has deposed about this
incident in his deposition exh.28. The original accused
No.4, in his statement under section 313 of the Code, in
reply to question No.12, had stated that two days prior
to the date of incident, there was a quarrel between him
and Sukhdevsinh and that, Sukhdevsinh had beaten him with
spade and he had tried to defend himself with spade and
in that process, he had injured Sukhdevsinh with spade.
He had further stated that two days after that (i.e. on
14th May 1987), when the accused No.4 was proceedings to
his `utara', Abhesinh and Gajubha had come near him and
Abhesinh pressed his neck and Gajubha was having a knife,
but the people who gathered had saved him and he does not
know as to who had injured Gajubha. He had stated that
the said incident had occurred at 7 o'clock in the
morning. Manubha, father of Gajubha, in his deposition
exh.28 has stated that, on 14-5-1987 in the morning at
about 7 o'clock, while he was proceeding towards his
`utara', he heard some commotion and saw that his second
son Abhesinh was standing near the door of the `utara',
profusely bleeding. He therefore asked him as to what
had happened and was told that Anadubha i.e. father of
the accused Nos. 1 and 3 had caught him by his hand and
the accused No.4 Ashoksinh @ Bakubha had given him a
knife blow. This witness, therefore, took his son
Abhesinh to the police station at Muli for lodging the
F.I.R. Thereafter, Abhesinh was taken to the
Surendranagar Hospital and this witness, after collecting
money from his house, also proceeded to Surendranagar and
reached there at about 9.30 a.m. Abhesinh, in his
deposition exh.55, has stated that he had lodged the
F.I.R. exh.54 about the incident that took place in the
morning of 14-5-1987 around 7.00 to 7.30 a.m. He has
stated that, while he was sweeping near his `utara', the
accused No.4 had started abusing him and had taken out a
knife and given him a blow. Anadubha, father of the
accused No.4 was also there. He has denied the
suggestion that he and his brother Gajubha had tried to
beat the accused No.4 - Ashoksinh or that Gajubha was
trying to give a knife blow to Ashoksinh. He has also
denied the suggestion that the people had gathered there
and with a view to save Ashoksinh, they had assaulted his
brother Gajubha. In the F.I.R. exh.55, which was in
respect of the incident that took place at 7.30 a.m. on
14-5-1987, the accused No.4 - Ashoksinh Lalubha and
Anadubha, father of the accused Nos. 1 and 3 were named
as the accused persons with an allegation that the
complainant Abhesinh Manubha was given knife blows by the
accused No.4 Ashoksinh Lalubha, while Anadubha had held
his hands from the back.
8.1 The injury certificate of Abhesinh is at exh. 34
and is proved in the deposition exh.29 of Dr. Devajibhai
Khimajibhai Wadher. This medical evidence shows that, on
14-5-1987, Dr. D.K. Wadher had examined Abhesinh at
9.25 p.m. at M.G.S. Hospital, Surendranagar and he
noted an incised wound on his right posterior auxiliary
fold of the size 3" x 1/2" and an incised wound on left
first wab dorsally, of the size 1" x 1/4".
8.2 Witness Ranubha at exh.11 also referred to the
incident that took place at 7.30 in the morning of
14-5-1987 in which is brother Abhesinh was given knife
blows by the accused No.4 while his hands were held from
the back by Anadubha, father of the accused No.1 and 3.
Even Mayaba in her deposition exh. 21 has spoken about
that incident and to the fact that her son Abhesinh was
taken to the Surendranagar Hospital for treatment after
he was injured in the morning on the day of the incident.
8.3 Thus, on 14-5-1987, one incident had taken place
in the morning at 7.30 a.m. in which Abhesinh, the
younger brother of Gajubha was injured by a knife blow
given by the accused No.4 while Abhesinh was being held
by Anadubha, father of the accused Nos. 1 and 3, as per
the prosecution version. Two days before that, an
incident occurred in which the accused No.4 is said to
have given a spade blow to Sukhdevsinh who was also the
younger brother of Gajubha. It would, thus, appear that
the relationship between the accused persons on one side
and the brothers of Gajubha on the other, was estranged.
Gajubha was the eldest of the four brothers. The
incident that followed at 10 o'clock on 14-5-1987 is to
be viewed in this background. From the evidence on
record, it appears that there is absolutely no substance
in the defence version tried to be put up at the trial
that Gajubha was beaten by members of the crowd in the
morning at 7.30 a.m. when he was trying to assault the
accused No.4.
9. Coming to the main incident that took place
around 10 o'clock in the morning of 14-5-1987, we find
from the deposition of Ranubha that, at 10 o'clock while
he, his mother Mayaba and his sister Harshaba were
sitting in the falia of their house, and his mother was
weeping, at that time (presumably because of the incident
that had taken place in the morning at 7.30 a.m. in
which her son Abhesinh was injured and taken to the
hospital), the accused No.1 - Ajitsinh Anadubha had come
and pushed open the gate of the `Deli' and started
abusing his mother. They gave her fist and kick blows
and dragged her out of the `Deli'. The accused No.3
Bharatsinh had brought the sticks. When Harshaba tried
to intervene, she was given a push as a result of which
she fell down. This witness therefore rushed to the
`utara', which is about 200 feet away from his house, to
call his brother Gajubha. He told Gajubha that their
mother was being beaten and that he should come.
Thereupon, Gajubha went with him but ahead of him.
Gajubha told the accused as to why they were beating his
mother and at that time the accused No.2 Chandrasinh came
out from the lane of Surabha's house with a knife and he
gave knife blows on the chest and the waist of Gajubha.
Thereupon, Gajubha started running back towards the
`utara'. The accused No.2 - Chandrasinh chased him. The
accused Nos. 1 and 3, Ajitsinh and Bharatsinh had also
run after Gajubha, leaving his mother. The accused No.4
also started running. When Gajubha reached near
`Mataji's Madh', the accused persons had overtaken him
and the accused No.2 Chandubha gave a knife blow in the
abdomen of Gajubha, who fell down while going towards the
`utara'. At that time, accused Nos. 1 and 3 had given
stick blows on the head of Gajubha. This witness,
therefore, started running away and at the corner of that
locality, which is known as `Naranpa', he met Tejubha
whom he spoke about the incident and when he and Tejubha
came near their brother, all the accused had run away.
At that time, one Ajitsinh Nanubha had also come.
Thereafter, Tejubha and Jambha took Gajubha on a motor
cycle to the hospital. This witness has stated that even
Puriba who resides in that street had seen the incident.
He has stated that his brother was taken to Surendranagar
and thereafter to Ahmedabad where he died after four
days. He has stated that the police recorded his two
statements. In his cross-examination, he has denied that
his family members were angry on the accused No.4,
because, two days back, the accused No.4 had given a
spade blow on the head of his brother Sukhdevsinh which
had caused injury which required to be sutured. He has
stated that, at the time of giving deposition, he was 19
years of age, which means he was 16 years of age when the
incident had occurred, three years before his deposition.
He has admitted that he had not stated in the police
statement that sticks were brought at the time when his
mother was being beaten, but had stated that at that
time, the accused Nos. 1 and 3 were having sticks. He
has denied that no injury by stick was caused to Gajubha.
He has admitted that, in his statement dated 14-5-1987,
he has not stated that Harshaba was pushed down. He has
denied that he did not know from which direction
Chandubha came. He has admitted that, in his statement
of 14-5-1987, he had not stated that Chandubha had come
from the lane. He has denied the suggestion that in the
morning while the accused No.4 was going towards his
`utara', his brothers Abhesinh and Gajubha who were at
their `utara' had attacked the accused No.4 and pressed
his neck. He has denied that at that time, people had
gathered and for saving the accused No.4, they had given
blows to Gajubha. He has denied that no incident had
occurred at 10 o'clock. Barring minor and insignificant
contradictions, nothing is brought out in the
cross-examination of this witness which can throw any
doubt over his version that at 10 o'clock while they were
sitting in the falia their house. the accused Nos. 1
and 3 had come there and had started abusing his mother
who was dragged out of the house in the street. His
conduct of rushing to call his eldest brother Gajubha was
quite natural. Gajubha was at the `utara' and as per the
map exh.37, the `utara' of Gajubha and his family which
is described in the map as `Manubha Ramsang's utara'
(Manubha is the father of this witness and the deceased),
was hardly 200 feet away from the house of Gajubha. In
the map exh.37, house of Gajubha is shown in the north
abutting on the internal road. About sixty-two feet from
that house, there is a lane in which there is a house of
the accused Nos. 1 and 3 at the end. At the corner of
that lane is the house of Surubha Jethubha, the rear side
(`pachhit') of which falls on the said internal road and
the corner where the lane and the internal road meet is
the place where the first two knife blows are said to
have been given by the accused No.2 Chandrasinh when
Gajubha had reached there while proceeding towards his
house. The mother of Gajubha who is said to have been
dragged out on the street, would have been a few feet
away from the spot where Gajubha was attacked. From that
place, Gajubha started running back and when he came near
`Chamunda Mataji's Madh' about 100 feet from the place
where he was given knife blows near the `pachhit' of
Surubha, there is a mark in the map, which shows the spot
where another knife blow was given. Thereafter, Gajubha
kept running, but he fell down at the spot which is shown
in the map which is near his `utara'. From the short
distances between these spots, it is clear that the
incident must have taken place within a few minutes. The
distance of 150 or 200 feet on this street is not a
distance on the basis of which it can be said that the
scene of offence was different than the one which is
suggested by the evidence adduced by the prosecution
particularly when the incident spanned over more than a
hundred feet of the street.
9.1 Ranubha's evidence establishes that when his
mother Mayaba was being beaten around 10 o'clock by the
accused Nos. 1 and 3, he immediately called Gajubha by
going to the `utara' and Gajubha started rushing towards
their house and while on his way, when he came near the
lane adjoining the house of Surubha, the accused No.2
Chandubha emerged from there, and gave him knife blows.
This would mean that Chandubha was waiting in the lane at
the time when the accused Nos. 1 and 3 who were his
cousin brothers had gone to Gajubha's house and had
started assaulting his mother Mayaba and dragged her out
in the street. After giving Gajubha two knife blows when
Gajubha was trying to run away back to his `utara', the
accused No.2 pursued him. The accused Nos. 1 and 3 also
simultaneously started running after Gajubha with lathis
and all of them overtook Gajubha and caused him other
injuries, of which accused No.2 gave the third knife blow
on his abdomen, while a lathi blow was given on his head.
10. Puriba in her deposition exh.12 has stated that
she had seen the knife blow being given to Gajubha on his
abdomen. She has stated that the incident had occurred
around 10 o'clock while she was in the house, just
opposite `Mataji's Madh'. Her daughter had come to tell
her that Chandrasinh was beating Gajubha. She has stated
that Ajitsinh and Bharatsinh were also running after
Gajubha. She has stated that Bharatsinh and Ajitsinh
were running after him with sticks, while Chandubha was
running after him with a knife. In her
cross-examination, she has stated that in her statement
dated 15-5-1987, she had not stated that Bharatsinh and
Ajitsinh were having sticks. It appears that her further
statement was also recorded on 19-5-1987 by the
investigating officer in respect of which no such
contradiction is suggested. The deposition of this
witness shows that while the incident was happening, she
was in her house opposite `Mataji's Madh' and when
Gajubha was being chased by these three accused persons,
she had seen a knife blow being given by the accused No.2
to Gajubha on his abdomen at that place. To this extent,
she fully supports the prosecution version.
11. Mayaba, mother of Gajubha in her deposition
exh.21 has stated that around 10 o'clock, while she and
her daughter were weeping at their house, the accused
Nos. 1 and 3 suddenly came, opened the door and started
abusing them. The accused No.1 and the accused No.3 had
beaten her and dragged her out pulling her by her hair.
She has stated that Bharatsinh had gone to his house and
brought two sticks. The house of Ajitsinh and Bharatsinh
was just fifty feet away from her house. They gave her
stick blows on her back and waist. Her daughter Harshaba
tried to intervene, but she was given a push by the
accused No.1 - Ajitsinh. Her son Ranubha had rushed to
the `utara' to call Gajubha. Gajubha started running
towards their house and while he was near Surubha's house
he gave a shout as to why were they beating his mother
and at that time, from the lane near Surubha's house, the
accused No.2 Chandrasinh suddenly emerged with an open
knife, charged Gajubha and gave a knife blow on his chest
and another knife blow on the left side of his abdomen.
She has stated that the rear of the house of Surubha was
about 25 feet away from the place where she had fallen.
She has also stated that the accused Nos. 1 and 3
started running towards Gajubha with sticks. She had
seen Gajubha being hit by sticks. She has stated that
while Gajubha was being beaten, Ashoksinh i.e. accused
No.4 had also come from his house with a stick. This
witness had at that time fallen down near Surabha's
house. In her cross-examination, she has stated that her
further police statement was recorded on 18/5/1987. She
has stated that, in her first police statement, she had
mentioned that the accused Nos. 1 and 3 were having
sticks and she was beaten by the sticks. She has also
stated that she has stated before the police about her
being dragged out by pulling her hair. She has stated
that she does not remember whether in her statement dated
14-5-1987, she had stated that the accused Nos. 1 and 3
had given stick blows to Gajubha.
11.1 From the deposition of this witness, it
transpires that the accused Nos. 1 and 3 had entered the
`falia' of her house, from where she was beaten and
dragged out and while she was being beaten by the accused
Nos. 1 and 3 by sticks, Ranubha who was at the house had
rushed to call Gajubha and when Gajubha came near
Surubha's house, the accused No.2 Chandrasinh emerged
from the lane and gave him two knife blows and when
Gajubha tried to run away back to his `utara', the
accused No.2 chased him with the knife and the accused
Nos. 1 and 3 also chased him with their sticks and give
further injuries to Gajubha.
12. The learned counsel referring to the deposition
of First Grade Head Constable - Tulasibhai which is at
exh.58, pointed out from his cross-examination that he
had stated that Mayaba has not stated in her police
statement that the accused Nos. 1 and 3 were having
sticks and that they had beaten her son with the sticks.
He had further stated that Mayaba had not stated before
him that anyone had pulled her by her hair. On the basis
of these omissions, it was contended that Mayaba had
never stated before the police that Ajitsinh or
Bharatsinh were having sticks. When it was pointed out
to the learned counsel that this omission has to be read
only in respect of the police statement which was given
by Mayaba on 14-5-1987 and which was recorded by Head
Constable Tulsibhai and that this omission cannot be read
in context of the further statement of Mayaba which was
recorded on 18-5-1987 by P.S.I. Navalsinh Zala and that
no such omissions were proved in context of that
statement, the learned counsel submitted that this Court
cannot refer to the statements of these witnesses and
identify as to in respect of which of the two statements
the omissions or contradictions related, and the evidence
should be read as it is. We will deal with this aspect
later on since we have been addressed at great length by
the learned counsel and the learned Advocate General also
on this legal aspect of the matter.
11.1 We may note here that Tulsibhai in his deposition
exh.48 states that he had recorded the statement on
14-5-1987, while P.S.I. Navalsinh in his deposition
exh.60 states that he had taken over the investigation on
18-5-1987 and recorded further statements of Mayaba and
others on 18-5-1987. Therefore, the contradictions and
omissions which are brought on record in the evidence of
Tulsibhai exh.48 obviously would relate to the statements
recorded by him and cannot be attributed to the further
statements of the witnesses which were recorded by the
P.S.I. Navalsinh on 18-5-1987 or thereafter, in respect
of which no such omissions or contradictions were
suggested. In our opinion, the deposition of Mayaba
fully supports the prosecution version and she appears to
be a reliable eye-witness who had seen the incident of
Gajubha being attacked with knife by the accused No.2 and
the accused Nos. 1 and 3 with sticks as well as accused
No.2 with knife chasing Gajubha when he was trying to
escape further injuries by running towards his `utara'
from where he had come to save his mother.
12. Harshaba, in her deposition exh.22, has stated
that around 10 o'clock while she and her mother were
weeping after her brother Abhesinh who was injured by a
knife blow given by the accused No.4 in the morning was
taken to the hospital, the accused Nos. 1 and 3 had come
to their house, they had started beating her mother by
fist and kick blows and her mother was dragged out of the
house by pulling her hair. The accused No.3 Bharatsinh
went to his house which is nearby and brought sticks.
She had intervened, but she was given a push by
Bharatsinh, as a result of which she fell down. Her
younger brother Ranubha who was in the house had rushed
to call her brother Gajubha. When Gajubha came near the
site of Surubha's house, and shouted as to why they were
beating his mother, Chandrasinh, the accused No.2,
emerged from the lane and gave two knife blows to
Gajubha, one on his chest and the other on his abdomen.
Leaving their mother Mayaba, the accused Nos. 1 and 3
started running towards Gajubha. Gajubha was chased by
all the four accused. She has stated that the accused
No.4 - Ashoksinh had also come there. Chandrasinh was
having a knife in his hand. The accused Nos. 1 and 3
were having sticks, while the accused No.4 was having a
knife which he did not use. We may note here that if
this witness really wanted to falsely implicate these
persons, there was greater reason to implicate the
accused No.4, who had in the morning given a knife blow
to her brother Abhesinh. In her cross-examiantion, she
has maintained that she had seen her brother Gajubha
being given knife blows. She started looking after her
mother and did not follow them till the `utara'. From
the map exh.37, it is clear that from outside her house,
this witness would have easily seen the spot where
Gajubha was attacked by the accused No.2 who emerged from
the lane and she would have also seen the accused Nos. 1
and 3 chasing Gajubha while he was trying to run back to
the `utara' after being given two knife blows by the
accused No.2. The omissions as regards her mother being
pulled by her hair from the house and about Bharatsinh
going to his house and bringing sticks were put to her in
context of her police statement recorded on 14-5-1987.
She has denied that she had not stated in her police
statement on 14-5-1987 that her mother was dragged by
pulling her hair. As regards the statement of 18-5-1987,
the only omission which was put to her was that she had
not stated that accused No.4 Ashokbhai was having a
knife. The omissions which were in her first statement
taken on 14-5-1987 cannot be attributed to her further
statement which was taken on 18-5-1987 in respect of
which no such omissions were suggested. From her
deposition, we are fully satisfied that she had witnessed
the incident and she saw the accused No.2 emerging from
the lane when her brother Gajubha was coming to their
help while the accused Nos. 1 and 3 were beating their
mother, and the accused No.2 giving two knife blows to
Gajubha and also the accused Nos. 1 and 3 chasing
Gajubha with lathis while he was trying to go back to the
`utara'. On all material particulars, this witness fully
supports the prosecution version.
13. Prasannaba Dilubha in her deposition at exh.23
has stated that her house is about 10 to 15 feet away
from the house of Mayaba and she knows the accused
persons. She has stated that at the time of incident
around 10 o'clock, when there was commotion, she had come
out near the house of Surubha and had seen the accused
No.2 Chandrasinh giving two knife blows to Gajubha. She
has stated that the accused Nos. 1 and 3 were having
sticks.
14. Witness Tejubha in his deposition exh.25 has
stated that at the time of the incident, he was sitting
at the corner of the locality of Naranpa when Ranubha had
come to call him and told him that his brother was being
beaten. He rushed to the spot where Gajubha was lying
with knife and stick blows on his person. He has stated
that the accused No.2 had given knife blows, while the
accused Nos. 1 and 3 had given stick blows to him and
that he had seen the accused going away from a distance
of about fifty feet. He had then gone to Jambha's house
and brought the motorcycle on which he and Jambha had
taken Gajubha to the hospital. He has maintained that he
has seen the accused Nos. 1 and 3 giving stick blows to
Gajubha.
15. Manubha in his deposition exh.28 has stated that,
after he returned from Surendranagar where Abhesinh was
admitted in the hospital after the 7.30 a.m. incident,
and reached back to Muli at about 11.30 a.m., he saw that
his wife Mayaba was unconscious. He was told by Harshaba
that the accused Nos. 1 and 3 had pulled her out of the
house by her hair and had beaten her. She also told him
that these four accused persons had assaulted Gajubha.
She had said that the accused No.2 Chandubha and the
accused No.4 had assaulted him with knife, while the
accused Nos. 1 and 3 had given stick blows on his head.
He had gone to the hospital at Surendranagar. He has
then stated that when he met Gajubha after 2.00 p.m. in
the hospital he told him that he would not survive as he
had received severe injuries. He had asked Gajubha as to
who had assaulted him and Gajubha had given the names of
the four accused persons and had stated that the accused
No.2 had given him knife blows and the accused Nos. 1
and 3 had given him stick blows, while the accused No.4
was having a knife. He has denied the suggestion in his
cross-examination that Gajubha was injured by people who
had gathered in the crowd at the time when in the morning
his sons Gajubha and Abhesinh were trying to beat
Ashoksinh. This witness also fully corroborates the
version of the eye-witness and there is nothing in his
cross-examination which would create a doubt on his
deposition as to the material particulars of the
prosecution case.
15. The medical evidence shows that the following
injuries described in the certificate exh.30 were noticed
at the time when Gajubha was examined by Dr. D.K.Wadher
on 14-5-1987 :
"(1) Incised stab wound on (Rt) side chest 4th
i.e space just 1.1/2 " lateral to L.B.
sternum / 1.1/4" x deep to lung.
(2) Incised wound on left hypochondrium at
level of 7th rib tip deep 1"
(3) Incised wound on right forearm 2.1/2" x
1/2"
(4) Incised wound on scalp to bone vertex
(posterior) 3" x 1.1/2" deep "
It will be noticed that in the history noted in
the certificate exh.30 by Dr. Wadher, it was mentioned
that Chandubha Lalubha (i.e. the accused No.2) and
family had assaulted Gajubha.
15.1 Mayaba, who was also examined at 12.55 p.m. on
14-5-1987 by Dr. Devajibhai as stated in his deposition
exh.29, was having the following injuries, as mentioned
in the medical certificate exh.32 :
"(1) Contusion on right side scalp temporal
region size 2" x 1"
(2) Contusion left leg 3" x 1"
(3) Contusion left side scalp temporal region
size 1.1/2" x 1" "
He has stated that these injuries were possible
by hard and blunt substance like stick. Thus, there is
positive evidence to corroborate the deposition of Mayaba
that she was beaten with sticks by the accused Nos. 1
and 3.
16. As per the post mortem notes, in column No.17,
the following injuries have been noticed :
"(1) Sutured wound about 5 cm long on left
parietal region.
(2) C.L.W. 3 cm x 1 cm below the previous
wound.
(3) Sutured vertical wound extending
(laperotomy) from xyphysternum to
umbelius, 18 cm long.
(4) Sutured wound 3 cm long in right 4th
intercostal space situated below and
anterior to right nipple.
(5) Sutured wound over left lower part and
chest in mid-clavicular line 4 cm long.
(6) Sutured wound in left 8th intercostal
space, extending to lateral and posterior
part of chest (operation wound).
(7) Sutured wound in 5th right intercostal
space, in mid-clavicular line.
(8) Sutured wound on anterior surface of
middle of right forearm 3 cm long. "
16.1 Dr. Kiritbhai Hirabhai in his deposition exh.
76 has proved the case papers exh. 77 in respect of the
treatment which was given to Gajubha. He has stated that
Gajubha was brought to the hospital in the evening at
about 8.30 a.m. on 14-5-1987 and he had noted the four
injuries, which included C.L.W. 7 cm x 1 cm on the head
and three knife wounds, one on the right side of the
chest, the other on the left and a fracture of the 5th
rib on the chest.
16.2 It was tried to be contended on behalf of the
accused that the first medical certificate described the
injury on head as an incised wound, while as per the
other medical evidence, it was described as a contused
lacerated wound. It was submitted that the benefit of
this discrepancy should go to the accused by treating it
as an incised wound which could not have been caused by
giving stick blows, which are attributed to the accused
Nos. 1 and 3. This contention is fallacious. It has
been held by the Supreme Court in Suresh v. State of
U.P., reported in AIR 1981 SC 1122 in paragraph 9 of the
judgement that the injuries which were found on the
forehead can give the appearance of incised injuries. If
caused by an iron rod, the skin just above a hard surface
can break by a severe blow and give the appearance of an
incised injury.
17. The contention that if proper medical treatment
was given, a person could live even with one lung and
therefore, this injured who survived for four days after
the injuries could have lived if he had been given proper
treatment and that the injuries which were caused to him
were not the immediate cause of his death and the death
may have occurred due to the sepsis that had developed
which could have been due to the surgical treatment which
was given to him, is misconceived. It is specifically
provided in Explanation 2 to section 299 of the Indian
Penal Code that where the death is caused by bodily
injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to
proper remedies and skilful treatment, the death might
have been prevented.
18. We may now consider the dying declarations exh.14
and exh.72. From these two dying declarations, it
clearly transpires that the names of all the accused were
disclosed by Gajubha at the earliest point of time and it
was stated by him that the accused No.2 - Chandrasinh had
given him knife blows, while the accused Nos. 1 and 3
had given him stick blows. He has stated that a knife
knife blow was aimed at him by the accused No.4
Ashokbhai, but the blow missed him. If Gajubha really
wanted to falsely implicate anyone, the accused No.4
Ashoksinh would have been his first target, because, in
the morning, Ashoksinh is said to have assaulted his
younger brother Abhesinh by knife and injured him.
18.1 Gajubha in his dying declaration exh.14, the
recording of which was completed at 1.30 p.m., referred
to the morning incident of that day. He stated that he
had talked to Chandubha about the accused No.4 having
beaten his brother and there was a quarrel between him
and Chandubha and Chandubha gave him two knife blows, one
on the right side of his chest and the other on the left,
near the ribs. At that time, the accused Nos. 1 and 3
armed with sticks had come and hit him with the sticks on
his head. It was stated that, earlier before this
incident, his brother Abhesinh was beaten by the accused
No.4 Ashoksinh by giving a knife blow. He also stated
that the accused No.4 was having a knife. It is recorded
in the margin of the statement that the patient was
conscious at the time when it was recorded and the
medical evidence also establishes that he was conscious
when he was brought to the hospital as well as thereafter
when his statements were recorded, as even at the time
when he reached V.S. Hospital, Ahmedabad in the evening
at about 8.30 p.m.
18.2 The other dying declaration exh.72 which was
recorded by the Executive Magistrate who has deposed at
exh.70 also discloses that when Gajubha was, around 10
o'clock in the morning of 14-5-1987, cleaning at his
`utara' and starting to tether the bullocks, he asked the
accused No.2, who was passing by his `utara', as to why
were his brothers Abhesinh, Sukhdev and Ranubha beaten.
It is stated that the boys were quarrelling in the school
where they were studying together. Sukhdevsinh and
Bakabhai, the accused No.4 were studying together in the
Standard XIth. In their quarrel, Sukhdevsinh was beaten.
Gajubha, therefore, told the accused No.2 that this
should not happen. Thereupon, the accused No.2 Chandubha
gave him knife blows near his `utara' and the accused
Nos. 1 and 3 gave him stick blows on his head. The
accused No.4 tried to give him a knife blow, but it
missed him. He has stated that there were ladies around
that place. He has then stated that, after assaulting
him, these persons had run away. It is established from
the evidence on record that Gajubha was conscious even
while giving this statement and an endorsement to that
effect appears below the statement. The Executive
Magistrate, in his deposition, has proved this statement
and has stated that Gajubha was conscious. There is
absolutely no reason to doubt the genuineness of this
statement.
19. The contention of the learned counsel for the
accused persons was that the version in the dying
declarations was different from the ocular version as
regards the origin, manner, sequence and place of the
incident and the part played by the accused persons.
There is, in our opinion, no question of any discrepancy
as regards the part played by the accused persons,
because, in both the dying declarations, Gajubha had
clearly attributed knife blows which were given to him,
to the accused No.2, and the stick blows on his head to
the accused Nos. 1 and 3. He has not attributed any
blow to the accused No.4 though he has stated that the
accused No.4 was having a knife.
20. In Laljit Singh v. State of U.P., reported in
2000 SCC (Cri.) 1501, where in the deposition of the
eye-witness a vivid account as to how the occurrence took
place was given, while in the dying declaration, a sketch
as to how the accused persons arrived at the scene of
occurrence and started assaulting the prosecution party
was given, the Supreme Court held that it was not
expected that a detailed account would be given at that
stage, particularly when the person concerned himself was
severely injured and in fact, died on the next day in the
hospital on account of such injuries. Therefore, all the
details which may have come out in the depositions of
eye-witnesses Mayaba, Harshaba, Ranubha and Puriba and
others cannot be expected in the brief dying declarations
which were given by Gajubha when he had suffered severe
injuries and as a result of which, he was gasping for
breath. The incident had occurred near the `utara' as
per the ocular evidence, when he was proceeding to rescue
his mother Mayaba who was being beaten by the accused
Nos. 1 and 3 after being dragged out of her house, and,
when he shouted as to why were they beating her, the
accused No.2 emerged from the lane and gave him knife
blows and the accused Nos. 1 and 3 started running
towards Gajubha with the sticks. All of them chased him
upto the `utara' and on the way, gave him further blows.
The part played by them in assaulting Gajubha is clearly
mentioned in the dying declarations. The fact that
Gajubha did not state that Ranubha had come to call him,
and that Mayaba was being beaten by the accused Nos. 1
and 3 would hardly create any doubt over the prosecution
version. Gajubha had clearly referred to the quarrel
that was existing, because of his brother Sukhdevsinh
being assaulted earlier and because of his other brother
Abhesinh being beaten in the very morning by the accused
No.4. That was the genesis of the dispute that had
arisen which gave motive to the accused persons to go to
the house of Gajubha and then ultimately pounced on him
when he came to the rescue of his mother causing severe
injuries to him by lethal weapons which resulted in his
death. Gajubha could not have known as to what had
happened at his house when the accused Nos. 1 and 3 were
beating his mother, because, at that time, he was at his
`utara' and had to be called by Ranubha for help. Just
when he reached nearer his house, he was assaulted by the
accused No.2 with a knife and the accused Nos. 1 and 3
also pursued him and gave him stick blows. The distance
between his `utara' and the house is hardly 200 feet and
it is a street where a person can see from one end to the
other. Therefore, the witnesses Mayaba, Harshaba and
Ranubha would have easily seen the assault on Gajubha.
On the material aspect of the part played by the accused
Nos. 1, 2 and 3, there is absolutely no conflict between
the version given by Gajubha and version of the
eye-witnesses. As held by the Supreme Court in Marwadi
Kishor Parmanand v. State of Gujarat, reported in (1994)
4 SCC 549, the evidence of witnesses has to be
appreciated in a realistic manner.
21. In Narayan Chetanram Chaudhary v. State of
Maharashtra, reported in (2000)8 SCC 457, it was held
that minor contradictions are bound to appear in the
statements of truthful witnesses as memory sometimes
plays false and sense of observation differs from person
to person. The omissions in the earlier statement if
found to be of trivial details, the same would not cause
any dent in the testimony of the eye witness. It was
held that even if there was contradiction of statement of
a witness on any material point, that was no ground to
reject the whole of the testimony of such witness.
22. The learned counsel contended that it was not
open for this Court to look into the police statement of
a witness to ascertain whether the contradiction or
omission brought on record was really there or not. He
submitted that no police statement can be used for any
purpose in view of section 162(1) of the Code of Criminal
Procedure and therefore, it cannot even be referred to by
this Court. This untouchability attached to police
statements has indeed taken root and became almost a
blind belief that can be unscrupulously exploited for
obscuring the truth. Let us therefore examine the true
character of a police statement and see whether the
extreme stand taken by the learned counsel that this
Court cannot even look at the police statement even in
respect of the purpose for which it was used at the trial
under section 162 of the Cr.P.C. read with section 145
of the Evidence Act, is warranted by the provisions of
section 162 of Cr.P.C.
23. Section 161 of the Cr.P.C. entitled "Examination
of witness before police" provides for oral examination
of a person by any investigating officer when any such
person is supposed to be acquainted with the facts and
circumstances of the case. Sub-section (2) of section
161 enjoins a statutory duty on such person to answer
"truly all questions relating to such case put to him by
such police officer". Such witness can refuse to answer
only the questions the answer to which would have
tendency to expose him to a criminal charge, penalty or
forfeiture. To provide authenticity to the recording of
statements under section 161(1), it is laid down in
sub-section (3) that when the police officer reduces into
writing any statement made during an examination of the
witness under section 161, a `separate and true record of
the statement' of each such person whose statement is
recorded by him, shall be made.
24. The statutory duty cast upon a person giving
statement before the police under section 161 to answer
truly all questions relating to the case put to him by
the investigating officer is significant, because,
whoever being legally bound by an express provision of
law to state the truth (as has been provided by
sub-section (2) of section 161) makes any statement which
is false and which he either knows or believes to be
false or does not believe to be true is said to give
false evidence within the meaning of section 191 of the
Indian Penal Code. While intentionally giving of false
evidence in a judicial proceeding is punishable with
imprisonment of either description for a term which may
extend to seven years and fine in any case other than
judicial proceedings, which will include the liability
arising out of the breach of the statutory duty imposed
on a person to tell the truth when his statement is
recorded by the police officer, the person who
intentionally gives such false evidence shall be punished
with imprisonment of either description for a term which
may extend to three years and to payment of fine as
provided by the second part of section 193 of the IPC.
Thus, a person who makes a statement before the police
which he either knows or believes to be false or does not
believe to be true commits an offence punishable under
section 193 second part read with section 191 of the IPC
read with section 161(2) of the Cr.P.C. under which
there is express provision that such person is bound to
state the truth while giving statement under section
161(1) before the police. When such witness deposes on
oath before the court that he had not stated what was
reduced in writing by the investigating officer under
section 161(2) to which his attention was drawn, he would
expose himself to a liability to be prosecuted under
section 193 read with section 191 of the IPC for giving
false evidence in view of the statutory duty imposed by
section 161(2) to state truth in the police statement.
The offence in such cases is in relation to the
examination of the person by the investigating officer
under section 161(1) and not in relation to any judicial
proceeding in any court and therefore, the provision
regarding complaint in writing by the court under section
195(1)(b) of the Cr.P.C. will not apply for prosecuting
a person for giving false evidence within the meaning of
section 191(1) read with section 161(2) of the Cr.P.C.
Under section 161(3), the police officer is enjoined with
a duty to make a "true record of the statement of each
person whose statement he records". Therefore, if a
police officer does not make a true record of the
statement i.e. either adds something in the statement
which is not said by the witness or omits therefrom
something that he may have said or does not correctly
take down the statement, he commits a breach of his duty
and would be liable for a gross misconduct in discharge
of his duties besides exposing himself to criminal
liabilities including for the offence of fabricating
false evidence, as defined in section 192 of the IPC
which is punishable under section 193 when it is
fabricated for the purpose of being used in any stage of
a judicial proceeding with imprisonment of either
description for a term which may extend to seven years
and fine. The instances where the witnesses making
statements before the police officers under section
161(1) of the Code resile or cases in which it appears
that the police officer concerned had not made a true
record of the statement under section 161(1) or had made
the record containing a false statement which was not in
fact made by the witness or omitted the statements made,
must be brought to the notice of the Head of the
Department and the State Government so that proper check
is maintained and appropriate action is taken when called
for. If the witnesses and police officers are educated
on these aspects of their liability, the witnesses would
be less erratic in their responses and the investigating
agency will act with greater responsibility.
25. The purpose for and the manner in which a police
statement recorded under section 161 can be used at any
trial are indicated in section 162 of the Code. The
embargo against the use of the statement applies in
respect of the offence under investigation at the time
when such statement was made, meaning thereby that such
statement can be used at the trial arising of such
investigation only as provided in the proviso to section
162(1). Section 162(1) of the Cr.P.C. reads as under:
"Section 162(1) :
No statement made by any person to a police
officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be
signed by the person making it; nor shall any
such statement or any record thereof, whether in
a police diary or otherwise, or any part of such
statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or
trial in respect of any offence under
investigation at the time when such statement was
made:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with the
permission of the Court, by the prosecution, to
contradict such witness in the manner provided by
section 145 of the Indian Evidence Act, 18972 (1
of 1872); and when any part of such statement is
so used, any part thereof may also be used in the
re-examination of such witness, but for the
purpose only of explaining any matter referred to
in his cross-examination."
25.1 Thus, at the trial, part of such statement made
before the police during the investigation of the offence
to which the trial relates can be used for the purpose of
contradicting the witness who made that earlier
statement. The manner in which this can be done is
incorporated by referring to the provision of section 145
of the Evidence Act, which reads as under :
"145. Cross-examination as to previous
statements in writing -
A witness may be cross-examined as to previous
statements made by him in writing or reduced into
writing, and relevant to matters in question,
without such writing being shown to him, or being
proved; but if it is intended to contradict him
by the writing, his attention must, before the
writing can be proved, be called to those parts
of it which are to be used for the purpose of
contradicting him."
26. Under the Explanation to section 162, an omission
to state a fact or circumstance in the police statement
may amount to contradiction if it appears to be
significant and otherwise relevant having regard to the
context in which such omission occurs. Whether an
omission amounts to a contradiction in the particular
context is a question of fact. Since the statement made
by a witness before the police under section 161(1) can
be used only for the purpose of contradicting such
witness on what he has now stated at the trial as laid
down by the proviso to section 162(1), only the latter
part of section 145 of the Evidence Act which lays down
the manner in which a witness can be contradicted is
applicable in context of section 162(1) of the Code. The
proviso to section 162(1) allows such use of the police
statement "if duly proved". This means that the record
should show that the police statement which is sought to
be used for contradicting the statements made by such
witness in his deposition in cross-examination was a
statement duly proved to have been made by him. When the
attention of the witness is drawn to such previous
statement before the police and he admits the making of
the statement, it would be duly proved to have been made.
If the making of it is disputed by the witness, then it
has to be proved through the investigating officer that
it was the statement of such witness recorded under
section 161(1) of the Code.
27. Under section 145 of the Evidence Act, when it is
intended to contradict the witness by his previous
statement reduced into writing, the attention of such
witness must be called to those parts of it which are to
be used for the purpose of contradicting him, before the
writing can be proved. The idea behind this provision is
to enable the witness to explain his statement in the
deposition which is to be contradicted by his previous
statement. The parts of the police statement to which
attention is so drawn can now be proved and read in
evidence. A part of police statement can thus be used
for the purpose of contradicting the witness deposing at
the trial. While recording the deposition of a witness,
it, therefore, becomes the duty of the trial Court to
ensure that the part of the police statement with which
it is intended to contradict the witness is brought to
the notice of the witness in his cross-examination. This
necessarily would entail referring to the police
statement for the purpose of drawing the attention of the
witness to that part of the police statement with which
he is to be contradicted. The process of bringing such
part of the police statement to the attention of the
witness would involve correctly indentifying that part
from the police statement. The attention of witness is
drawn to that part, and this must reflect in his
cross-examination by reproducing it. If the witness
admits the part intended to contradict him, it stands
proved and it will be read while appreciating the
evidence. If he refuses to have made that part of the
statement, it will then be proved in the deposition of
the investigating officer who again by referring to the
police statement will depose about the witness having
made that statement. The process again involves
referring to the police statement and culling out that
part with which the maker of the statement was intended
to be contradicted. When it is the duty of the trial
court to ensure that the attention of the witness to the
part of his police statement with which he is to be
contradicted is drawn in his cross-examination, it
follows that such part must be correctly reproduced in
his cross-examination and duly proved, when disputed, in
the evidence of the investigating or authorised officer.
All this necessarily involves referring to and reading of
the police statement. It is within the ambit of the
powers of the appellate Court to consider whether the
process of confronting the witness with the part of his
police statement was correctly followed during the trial
and for this purpose, the police statements which are
amongst the miscellaneous record and were used at the
trial for the purpose of contradicting can always be
referred and read in order to ascertain whether the part
of the police statement with which the witness was to be
contradicted was correctly shown to him or not. It is
within the ambit of the appellate jurisdiction of this
Court to verify from the record whether any error has
crept in the trial in the process of confronting the
witness with a part of the police statement with which he
was required to be confronted.
28. In cases of contractions which are not omissions,
the process is simply of checking up the part which was
purported to have been brought to the attention of the
witness as reproduced in his cross-examination from the
police statement from which it was shown to him and by
comparison, the court can ascertain whether there is any
error. The part of the police statement with which the
witness is contradicted is already proved by the
investigating officer and forms part of the evidence and
can always be read to find out whether the part which is
referred in the cross-examination for drawing the
attention of that witness is the same.
28.1 In cases where omission amounts to contradiction,
the omission in the police statement of the witness is
required to be put in his cross-examination under section
145 (second part) of the Evidence Act read with section
162(2) and the Explanation to section 162 by drawing his
attention to the fact that what he is now stating at the
trial was not stated by him in the police statement.
This process necessarily entails the reading of the
entire police statement and if the omission brought to
the attention of the witness is admitted, then it stands
proved, otherwise, it will have to be proved in the
evidence of the investigation agency, where again the
process of referring and reading the police statement
takes place. The omission to state a fact or
circumstance in the police statement which appears to be
significant and is relevant having regard to the context
in which such omission in the police statement occurs may
amount to contradiction, as provided by the Explanation
to section 162 of the Cr.P.C. Thus, only material
omissions which amount to contradiction can be proved at
the trial. For finding out whether there is such
omission (as was put to the witness) proved, one has
necessarily to read the police statement from which the
omission was to be proved. Whether the omission exists
and was duly proved at the trial is a matter which can be
considered by the appellate Court and such consideration
would involve and justify referring to the police
statement to ascertain whether the provisions of section
145 of the Evidence Act read with section 162(2) and the
Explanation to section 162 of the Cr.P.C. have been duly
observed by the trial Court, and whether the omission
really is there or not. Albeit, the exercise of power by
the appellate Court is circumscribed by the provision of
section 162 about the purpose for which any part of a
police statement can be used at the trial. However,
within the above permissible limits, the appellate court
is empowered to verify the material which forms part of
the evidence by virtue of the attention of the witness
being drawn to that material in his cross-examination
under section 145 of the Evidence Act to contradict him
and the proof of such contradiction or omission as
adduced at the trial. One has necessarily to read that
portion of the statement which is used for contradiction
and which is said to be duly proved in order to decide
whether it really was duly proved. It would, therefore,
be too naive to suggest that the appellate Court cannot
even refer to or read that part of the police statement
which has already been used for the purpose of
contradicting the witness, for deciding whether any error
is committed in drawing the attention of the witness to
that part in his cross-examination as required by section
145 of the Evidence Act read with section 162 (1) of the
Code and whether such part was duly proved in the
deposition of the investigating officer, if disputed by
the witness.
29. In the present case, the statements of the eye
witnesses were recorded by the police officers twice,
first on 14-5-1987 and again after the death of the
injured on 18-5-1987 and thereafter. While
cross-examining the First Grade Head Constable Tulsibhai
exh.23 for proving the contradictions or omissions in the
police statements of the eye-witnesses, they are sought
to be proved merely by a general reference to the police
statement of the witnesses without specifying whether the
contradiction or omission was being put in the context of
the first statement recorded on 14-5-1987 or the further
statement of the witness recorded on 18-5-1987. An
impression can, therefore, be generated, as has been
successfully done before the trial Court, that such
contradiction or omission refers to all the police
statements of the witness though in reality what was put
to the witness in his cross-examination was the
contradictions or omissions in the first statement
recorded on 14-5-1987 and there were no such
contradictions or omissions suggested to the
investigating officer in respect of the subsequent police
statement of that witness. It would, therefore, become
necessary in such cases to ascertain whether the
contradiction or omission which was sought to be proved
was in the context of the first statement of the witness
or his further statement. Witness may have omitted in
his first statement to the police what he stated in the
subsequent one when two police statements were recorded
of that witness and in such cases, the evidence recorded
must show from which statement the part to be used for
contradiction or omission, as the case may be, was put in
the cross-examination and was proved by the investigating
officer. When it is left nebulous in the deposition of
the investigating officer whether he deposes regarding
the contradiction or omission in respect of one or the
other or both the police statements of the witness, whose
more than one police statements were admittedly recorded
and were produced in the record of the proceedings before
the trial Court, the Court can always ascertain from the
record whether the contradiction or omission proved is
with reference to the first or the subsequent or both the
statements made before the police by that witness. This
verification of the record will not amount to using the
police statements of that witness for any purpose other
than the purpose of contradiction by a duly proved part
of the police statement or when it is a case of omission
amounting to contradiction for ascertaining whether the
omission as contemplated by the Explanation to section
162 of the Code really existed and was duly proved as per
the second part of section 145 of the Evidence Act read
with section 162 of the Cr.P.C.
30. In the present case, two different police
officers had recorded the statements of witnesses. After
the investigation was taken over by the P.S.I. Navalsinh
Zala on 18-5-1987, when Gajubha died, he had recorded the
further police statements of the eye witnesses.
Obviously therefore, in their cross-examination, when
they were asked about the contradiction or omission that
was in the context of the statement recorded by the
concerned investigating officer. There are hardly any
contradictions or omissions brought on record in context
of the further statements of the eye witnesses which were
recorded on 18-5-1987 by the P.S.I. Zala in his
deposition. When more than one statements are recorded
by the investigating officer, the contradictions and
omissions occurring in one statement cannot be attributed
to the other statement in the context of which no such
contradictions or omissions are proved.
31. The statements recorded on 14-5-1987 were
recorded at the time when Gajubha was injured, but
living, while the statements taken on 18-5-1987 were
recorded after his death by the P.S.I. Zala who took
over the investigation from the First Grade Head
Constable Tulsibhai. Under section 161(1) of the Code, a
police officer has power to examine orally any person
supposed to be acquainted with the facts and
circumstances of the case and such person is bound to
answer truly all questions relating to such cases put to
him by such officer, as provided by sub-section (2) of
section 161 of the Code. Therefore, the factum of
omission will depend on what questions are put by the
police officer while examining the witness under section
161(1) which such witness is bound to answer truly under
sub-section (2) of section 161 of the Code. The First
Grade Head Constable Tulsibhai had taken the statements
on 14-5-1987 when the offence was registered under
section 326 etc. of the Indian Penal Code. in respect
of the knife injuries caused to Gajubha, but the P.S.I.
took over the investigation when the injured died on
18-5-1987, as a result of which, the offence of murder
was registered against these accused persons. Therefore,
the questions put by the P.S.I. in the further
statements of the eye witnesses would be for eliciting
greater details in respect of the offence of murder.
Thus, a witness cannot be condemned when his more
detailed examination is undertaken by the investigating
officer in the further statement after the offence of
murder was registered for any omissions in his earlier
statement during which detailed questions may not have
been put by the police officer, as, at that time, the
police officer was the Head Constable who was
investigating the offence of injuries by sharp cutting
instruments and not of murder. The omissions in the
first statement recorded on 14-5-1987 of certain minute
details would hardly be relevant when from the further
statement of that witness under section 161(2) of the
Code recorded on 18-5-1987, there are no such omissions
proved. There is, therefore, no substance in the
contention raised on behalf of the accused persons that
the eye witnesses have made improvements in their version
before the Court to rope in the accused persons.
32. The version that Gajubha had proceeded towards
his house on being called by Ranubha and was inflicted
knife blows when he came near the rear side of Surubha's
house is corroborated by important circumstantial
evidence of the finding of the blood on the sheath which
was recovered from that spot which was of group `O' being
the blood group of the deceased Gajubha, as has been
proved from the panchnama of the scene of the offence
exh.28 drawn on 14-5-1987 at 7.00 p.m. and proved in the
deposition of panch Balubhai ex.56 who was not even
cross-examined, and the report of the Serologist at
exh.64 showing that the said sheath was having blood of
`O' group which was of the deceased as established from
group `O' of the blood stains on his clothes which were
also forwarded for analysis. The report exh.64 shows
that both the chappals recovered from that very spot were
also having human blood. The scrappings recovered from
the wall of `Mataji's Madh' near which the third knife
blow was given to Gajubha by the accused No.2 who was
chasing him alongwith the accused Nos. 1 and 3 had
overtaken him, were also found to be having the blood of
`O' group, in the report exh.64. This is an important
circumstance which corroborates the version of the eye
witness that Gajubha was attacked when he came near the
house of Surubha by the accused No.2, who gave him two
knife blows there and that Gajubha, therefore, started
running back to his `utara' when he was chased by the
accused No.2 with knife and the accused Nos. 1 and 3
with sticks in their hands, and further assaulted near
`Mataji's Madh' by the third knife blow given by the
accused No.2 on his abdomen. Even according to the eye
witnesses, the accused continued to chase him further and
the accused Nos. 1 and 3 gave him lathi blows causing
the injury on his head, which is corroborated by the
medical evidence. Since the accused persons had chased
Gajubha till he fell near his `utara', the version of
Gajubha shorn of all details in his dying declaration
speaks of his being attacked by the accused persons near
his `utara' where in fact he had fallen down. The
distance between the `utara' and his house was hardly 200
feet and his mother was dragged out of the house while he
too had come out of his `utara' on the same street, and
this obviously suggest that the incident of attack on
Gajubha started near the lane adjoining Surubha's house
as stated by the eye witnesses and ended near the `utara'
upto which Gajubha was chased and further assaulted and
when he fell down because of the injuries. The version
of the eye witnesses establishes beyond any shadow of
doubt that the incident started when Gajubha was coming
towards his house from his `utara' and had reached near
Surubha's house and the incident continued when he tried
to save himself from further assault by running back
towards his `utara' and while doing so, he was again
given a knife blow on his abdomen near the wall of
`Mataji's Madh' and lathi blows which caused him the head
injury, and that he ultimately fell down near his
`utara'. There is, therefore, no substance in the
contention that the dying declaration of Gajubha destroys
the ocular version or that the stories are different.
The severely injured Gajubha could not have been expected
to give a detailed account of the incident at that time
about Ranubha having come to call him and having told him
that the accused Nos. 1 and 3 were assaulting Mayaba,
more so because he had not seen the initiation of such
assault on Mayaba and was not expected to give such
details when he was giving the dying declaration in a
precarious state of health. In any view of the matter,
there is no inconsistency in the version of Gajubha
appearing in his dying declarations and the version of
the eye witnesses. The evidence of the eye witnesses is
absolutely reliable and establishes the guilt of the
accused no.2 as well as the accused Nos. 1 and 3 beyond
any reasonable doubt. The learned trial Judge has
erroneously appreciated the evidence on record for
acquitting the accused Nos. 1 and 3 while rightly
holding the accused No.2 guilty of the offence under
section 302 of the Indian Penal Code. Even the learned
trial Judge did not rule out the presence of the accused
Nos. 1 and 3 and merely held that their having lathis
was not enough to implicate them ignoring the reliable
evidence of the eye witnesses Mayaba, Harshaba and
Ranubha and the dying declarations which also establish
their role in assaulting Gajubha with lathis as well as
medical evidence showing a contused lacerated wound on
the head of Gajubha which could be caused by a stick blow
and three injuries on Mayaba which were as per the
medical evidence possible by stick blows. The trial
Judge has failed to notice that there were no material
contradictions or omissions as assumed by him in the
deposition of the eye witnesses who could not have been
so lightly discarded on the question of involvement of
the accused Nos. 1 and 3. We may recall the ratio of
the decision in Marwadi Kishor Parmanand v. State of
Gujarat, reported in (1994) 4 SCC 549, in which it was
held by the Supreme Court that the evidence of a witness
deposing about a fact has to be appreciated in a
realistic manner having due regard to all the surrounding
facts and circumstances prevailing at or about the time
of occurrence of an incident. Some contradictions and
omissions even in the evidence of a witness who was
actually present and had seen the occurrence are bound to
occur even in the natural course. It is a sound rule to
be observed that where the facts stated by an eyewitness
substantially conform to and are consistent on material
points from the facts stated earlier to the police either
in FIR or case diary statements and are also consistent
in all material details as well as on vital points there
would be no justification or any valid reason for the
court to view his evidence with suspicion or cast any
doubt on such evidence.
33. The finding of the trial Court that nothing was
brought in the evidence to show that there was prior
meeting of mind, a prearranged plan and all the accused
acted in furtherance of common intention of all is wholly
erroneous and such as no reasonable mind will reach on
the basis of the evidence on the record of this case.
33.1 Ordinarily, there cannot be any direct evidence
of the process of formation of common intention. The
common intention is to be culled out from the facts and
circumstances of the case established by the prosecution.
In state of State of Haryana v. Tej Ram, reported in AIR
1980 SC 1496, where two accused who were brothers were
alleged to have murdered the deceased by attacking him
with pharsa (sharp edged weapon) and lathi respectively
at the dead hours of night, and the High Court maintained
the conviction of the accused who was armed with pharsa,
but acquitted the other accused who was armed with a
lathi though holding, that both the accused persons were
present at the time and place of occurrence, that both
had repeatedly come to the house of the deceased and were
nursing a grudge against the deceased, that they came
armed to the house of the deceased and made a concerted
assault on the deceased and the injuries on the body of
the deceased revealed that they were caused by a sharp
edged weapon as well as a blunt weapon, the Supreme Court
held that in the circumstances that the accused armed
with lathi could not be acquitted on the ground that he
did not attack the deceased or that he had no common
intention to commit murder. It was held that he was also
liable to be convicted under section 302 read with
section 34 of the I.P.C.
33.2 As noted above, in the present case, there is
cogent and reliable material on the basis of which the
Court can arrive at the finding that the accused Nos. 1
and 3 shared common intention of causing murder of
Gajubha alongwith the accused No.2. It is a settled
legal position that the common intention can develope
even during the course of occurrence (Sheoram Singh v.
State of U.P. reported in AIR 1972 SC 2555).
33.3 In Brijlala PD. Sinha v. State of Bihar,
reported in (1998) 5 SCC 699, it was held that the
liability of one person for an offence committed by
another in the course of a criminal act perpetrated by
several persons will arise under section 34 of the Indian
Penal Code only where such criminal act was done in
furtherance of a common intention of the persons who join
in committing the crime. It was held that direct proof
of common intention will, of course, be difficult to get
and such intention can only be inferred from the
circumstances. It was held that the common intention can
develop at the spur of moment.
33.4 In Sheoram Singh v. State of U.P. reported in
AIR 1972 SC 2555, it was held that the totality of the
circumstances must be taken into consideration in
arriving at the conclusion whether the accused had a
common intention to commit the offence with which they
could be convicted. The prearranged plan may develop on
the spot during the course of the commission of the
offence, but the crucial circumstance is that the said
plan must appreciate the act constituting the offence.
34. In the present case, these accused had ample
opportunity to form their common intention to assault
Gajubha and his family members. In the morning, the
incident had taken place at 7.30 a.m. between the
accused No.4 and Abhesinh, younger brother of Gajubha,
which had resulted in a knife blow being given to
Abhesinh for which he had filed an FIR exh.55 at 9.30
a.m. and was taken to the hospital at Surendranagar.
Manubha had also gone to Surendranagar. All the accused
were closely related. The accused Nos. 1 and 3 had
their house in the lane near Surubha's house and the
accused No.2 had emerged from that very lane when the
incident rapidly occurred indicating that he was waiting
in the lane at the time when the accused Nos. 1 and 3
were assaulting Mayaba. The accused No.2 is the real
brother of the accused No.4, against whom the FIR exh.55
was lodged at Muli police station and Anadubha, the
father of the accused Nos. 1 and 3, was the co-accused
in that FIR. This obviously must have infuriated these
accused Nos. 1, 2 and 3 and they had sufficient motive
to commit the offence. The concerted manner in which the
accused No.1 and 3 barged with sticks into the courtyard
(i.e. Dela) of the house of Gajubha and assaulted his
mother dragging her out in the street, while the accused
No.2 was waiting in the lane which had at its dead end
the house of the accused Nos. 1 and 3, as is clearly
seen from the map exh.37 prepared by the Circle
Inspector, and on Gajubha's coming near the lane, the
accused No.2 pounced on him and inflicted two knife blows
on the vital parts of his body and the further fact that,
on seeing that happening, the accused Nos. 1 and 3 left
Mayaba whom they were assaulting and ran after Gajubha
with their sticks and pursued him even while the accused
No.2 dealt yet another knife blow on his abdomen near the
wall of `Mataji's Madh', and that they gave stick blows
causing injury on the head of Gajubha pursuing him till
he fell down near his `utara' and after inflicting
serious injuries to Gajubha, they all ran away together,
are the facts which unequivocally establish that the
accused Nos. 1 and 3 shared the common intention with
the accused No.2 to murder Gajubha. No elaborate design
was required, and, the time and manner of the collective
and planned assault, the nature of injuries caused and
their escape together, lead to the only possible
inference that the accused Nos. 1 and 3 also shared the
common intention with the accused No.2 to commit the
murder of Gajubha. The evidence also clearly establishes
that the accused Nos. 1 and 3 had made a concerted
effort by starting the attack on Mayaba and that they had
dragged her out of her house and gave stick blows to her.
They are therefore also guilty of the offence under
section 323 read with section 34 of the I.P.C. for
causing injuries to Mayaba in furtherance of their common
intention.
35. We, therefore, hold that the accused No.2 is
rightly found guilty of the offence under section 302 of
the Indian Penal Code. We hold that the accused Nos. 1
and 3 are guilty of the offence under section 302 read
with section 34 of the Indian Penal Code and section 323
read with section 34 of the Indian Penal Code. We,
therefore, while upholding the conviction and sentence of
the accused No.2 Chandrasinh @ Chandubha Lalubha, and
dismissing his appeal (Criminal Appeal No. 652 of 1990),
allow the acquittal appeal (Criminal Appeal No. 790 of
1990) against the respondents Nos.1 and 2 who are the
original accused No.1 - Ajitsinh Anadubha Parmar and
accused No.3 - Bharatsinh Andubha Parmar, and convict
them for the offence under section 302 read with section
34 of the Indian Penal Code and also for the offence
under section 323 read with section 34 of the Indian
Penal Code.
36. We have heard the learned Additional Public
Prosecutor and the learned counsel for the original
accused No.1 and 3 on the question of sentence. The
accused Nos. 1 and 3 are on bail and during the hearing
of these appeals, though asked by the Court, they have
not remained present. Their learned counsel has
submitted that this is a case which would call only for
minimum penalty for the offence under section 302 read
with section 34 of the Indian Penal Code, and therefore,
their presence is not necessary.
37. We, accordingly, pass the following order :
:: ORDER ::
[A] Criminal Appeal No. 652 of 1990 of the appellant
- original accused No.2 - Chandrasinh @ Chandubha
Lalubha is dismissed.
[B] (i) Criminal Appeal No. 790 of 1990 filed by
the State against the acquittal of the
respondent No.1 - original accused No. 1
- Ajitsinh Andubha and the respondent
No.2 - original accused No. 3 Bharatsinh
Andubha is allowed and they are convicted
for the offence under section 302 read
with section 34 of the Indian Penal Code
and each of them is sentenced to suffer
imprisonment for life, and to pay a fine
of Rs.100=00, in default of payment of
which to suffer rigorous imprisonment for
15 days.
(ii) The original accused No. 1 - Ajitsinh
Andubha and original accused No. 3
Bharatsinh Andubha are also convicted for
the offence under section 323 read with
section 34 of the Indian Penal Code and
each of them is sentenced to undergo
rigorous imprisonment for a period of six
months and to pay a fine of Rs.100=00, in
default of payment of which to suffer
rigorous imprisonment for 15 days.
(iii) The sentences of imprisonment shall run
concurrently.
(iv) The learned counsel for the original
accused No. 1 - Ajitsinh Andubha and
original accused No. 3 Bharatsinh
Andubha prays that the accused Nos.1 and
3 be given time to surrender. This
request cannot be accepted. They shall
be taken in custody forthwith.
JULY 6, 2001 [R.K.ABICHANDANI, J. ]
[SHARAD D. DAVE, J. ]
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