IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 678 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== HIKMATALI SHERKHAN MEWATI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
THROUGH JAIL - MRS NISHA M PARIKH for Appellant(s) : 1, MR K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/07/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By way of this appeal, the appellant-original accused seeks to challenge judgment and order dated 9th March, 2006, passed by the learned Sessions Judge, Valsad, in Special Case No. 50 of 2006, convicting the accused-appellant for the offence of murder punishable under Section 302 of IPC and sentenced the accused to undergo life imprisonment with fine of Rs. 1,000/-.
2. The case of the prosecution in nutshell is that PW-1 Pravinbhai Chhanabhai Patel, Exh. 9 lodged a First Information Report Exh.10 on 2nd February, 2006 at around 23.45 hours stating that in the morning of 2nd February, 2006 at around 8' O Clock, he went to Bhadokmora Silvassa Road in his autorickshaw and at around 5' O Clock in the evening, he came home to have his food; after having food he once again left at around 6.30 in the evening in search of a customer as he was plying an autorickshaw and was earning his livelihood out of the same. At around 10.45 in the night, first informant's nephew named Ketan Babubhai Patel came and informed the first informant that an unknown person came from the direction of Cine Park Talkies bleeding profusely and has fallen down at the doorsteps of the first informant. The nephew also informed the first informant that the unknown person was unable to speak anything and appeared to be dead. On learning this, the first informant immediately rushed to his house and saw that one unknown person in the age group of 25-30 wearing a blue grey cream bush-shirt and a jeans was lying in a pool of blood with injuries on his right shoulder and stomach. As the first informant was unable to identify the person, he immediately called up the Sarpanch of the village, on telephone, named Mukesh Rameshbhai Patel and asked the Sarpanch to reach at the place where the dead body of the unknown person was lying. The Sarpanch inturn informed the Police and the Police accordingly arrived at the place where the dead body was lying. Thereafter the first information report came to be registered at Vapi Town Police Station.
3. On the strength of the first information report lodged on 2nd February, 2006, the Police started investigation by drawing an inquest panchnama of the dead body of the deceased Exh.14 and the scene of offence, panchnama Exh. 17. The dead body was sent for postmortem and the postmortem report revealed that the deceased had sustained one incised wound over right shoulder joint anterior aspect 6cm x 2cm x 4cm and one another incised wound over left lower chest lateral aspect in the ninth intercostal space 17cm lateral to midline 3cm x 11.5cm x 1.5cm. The cause of death assigned was haemorrhagic shock due to injury in the lung and intestine resulting from sharp object.
4. It appears that on 4th February, 2006, at around 10.15 hours the accused was arrested by drawing an arrest panchnama Exh.12 in the presence of two panchas. The record also reveals that immediately after arrest, the accused- appellant is said to have expressed his desire on his own free will and volition to point out the place where he threw away the weapon of offence. A discovery panchnama Exh. 13 was drawn in the presence of two panchas. The muddamal articles like weapon of offence, clothes of the deceased as well as clothes of the accused were seized and were sent to the Forensic Science Laboratory for serological tests. Statement of the witnesses were recorded and finally charge-sheet came to be filed against the accused in the Court of Judicial Magistrate First Class, Vapi, who in turn committed the case to the Court of Sessions as the offence being exclusively triable by the Sessions Court.
5. Vide Exh.4 dated 24th July, 2006, charge came to be framed against the accused-appellant for the offence punishable under Section 302 of IPC, to which the accused- appellant pleaded not guilty.
During the course of trial, prosecution examined the following witnesses:-
1. PW-1, Pravinbhai Chhanabhai Patel, First informant, Exh.9
2. PW-2 Kishorbhai Kukubhai Halpati, panch witness, Exh.11
3. PW-3 Ramanbhai Khushalbhai Patel, panch witness, Exh. 16
4. PW-4, Ashokkumar Shrilalsing, Exh.19
5. PW-5, Rameshdas Nepaldas, Exh.20,
6. PW-6, Kiranben Rameshdas, Exh.21
7. PW-7, Dr. Rupesh Dharamsinh Gohil, Medical Officer, Exh.22
8. PW-8, Dr. Vibhuti Chhotubhai Patel, Medical Officer, Exh. 26
9. PW-9, Sahebrao Shankar, Police Constable, Exh. 29,
10. PW-10, Chandubhai Babubhai Patel, PSO, Exh.30
11. PW-11, Fatehsinh Laxmanbhai Vasava, PSI, Investigating Officer, Exh. 32
12. PW-12, Jagdish Sheshgiri Nayak, ASI, Exh. 35.
6. Prosecution also relied upon documentary evidence as reflected from paragraph 10 of the judgment of the trial Court.
On overall appreciation and evaluation of the evidence led by the prosecution as well as by the defence, trial Court came to the conclusion that prosecution has been able to prove the case against the accused-appellant beyond reasonable doubt and accordingly convicted the accused-appellant for the offence of murder and sentenced him to undergo life imprisonment. Hence, this appeal.
7. The gist of the oral evidence led by the prosecution may be summed up thus:
7.1. PW-1, Pravinbhai Chhanabhai Patel, Exh.9. This witness earns his livelihood by plying an autorickshaw. On 2nd February, 2006 at around 22-22.15 hours, his nephew named Ketanbhai Babubhai came to call him as one unknown person was lying at the doorsteps of the house of this witness. This witness is the first informant. This witness has deposed that as he was unable to identify the person who was lying dead at the door steps of his house, he informed the Sarpanch of the village, who in turn informed the Police and thereafter, the Police started investigation. This witness is not an eye witness to the incident but still it appears that in the cross-examination few questions as regards the topography of the place of incident and other surrounding area were put to this witness. This witness has deposed that in between his house and Cine Park Theater, there is an open plot of land. He has also deposed that from his house upto Cine Park Theater, there is a walking pathway. He has also deposed that this pathway is being used by the residents of Shantinagar, Tonibhai's Chawl as well as Mohanbhai's Chawl. He has also deposed that the distance from his house to Cine Park Theater would be around 1500 to 2000 feet. There is no electric light on the road from the house of this witness to Cine Park Theater and if one has to travel, he has to travel in dark. He has also deposed that there are three screens at Cine Park and during the shows, people use the walking pathway and there is always flow of people on that particular road. This witness has nothing more to say as regards the actual incident.
7.2. PW-2, Kishorbhai Kukubhai Halpati, Exh.11. This witness is a panch witness. On 4th February, 2006, he was called at the Police Station. The other panch named Bablabhai Vestabhai was also present. This witness has deposed that Police showed them the clothes of the accused. The accused had worn a pant and a shirt. On shirt being shown by the Police, they noticed few blood stains on the same. This witness has further deposed that after the clothes were shown, they were asked to sit. This witness has deposed further that when the clothes of the accused were shown, at that point of time the clothes were tied and were put in one bag. Thereafter, they were taken to Cine Park Theater. The Police asked him and other panch to remain near the jeep. The Police went in a nearby field with the accused and returned with a blade of scissor. This witness has deposed that the blade of the scissor was seized under a panchnama. It appears that this witness failed to prove the contents of both the panchnamas Exh. 12 i.e. clothes of the accused as well as Exh. 13, discovery panchnama of the weapon of offence and was accordingly declared hostile.
7.3. PW-3 Ramanbhai Khushalbhai Patel, Exh. 16. This witness is a panch witness of the scene of offence Exh. 17. From the evidence of this witness it appears that in the southern direction from the place of occurrence, there is an open land. In the western direction there is land for parking surrounded by few rooms. This witness has shown one electric pole near the place of occurrence and has also deposed that there are residential houses. He has deposed that the first informant Pravinbhai Patel resides in a Chawl which is nearby the place of occurrence. He has also deposed that the road through which the deceased was running, trail of blood marks were noticed. In the cross-examination of this witness , few suggestions were put to this witness but they have been denied.
7.4. PW-4, Ashokkumar Shrilalsing, Exh.19. This witness has deposed that he is serving in a company named Multipack at G.I.D.C, Vapi. The deceased Kanaiyalal Rajput was known to this witness as the deceased has worked with this witness for 2-3 months. This witness had gone to his native during the festival of Diwali and by the time he returned, the deceased had left the job. This witness has no idea as to thereafter where the deceased was working.
7.5. PW-5, Rameshdas Nepaldas, Exh.20. This witness is one of the main witnesses on whose evidence the trial Court has based conviction. This witness has deposed that he is serving in a company named Hindustan Micro Ink and knows the accused very well. He knew deceased also very well. He knew the deceased as the deceased used to reside in the neighbourhood. Accused used to visit the house of this witness at times and that is how he knows the accused. According to this witness, the incident occurred on 2nd February at around 10.15 in the night. After returning from work he was having his food and in the meantime accused came at his house. On finishing his food, he shook hands with the accused and by that time the deceased also came at his house. This witness has deposed that the deceased did not like accused visiting the house of this witness. The accused shook hands with the deceased and left the house of this witness. When the accused walked few paces from the house of this witness, the deceased shouted and called the accused two to three times, but the accused did not pay any heed to the shouts of the deceased. The deceased thereafter ran and went near the accused and caught hold of the accused. Thereafter, a fight ensued between the accused and the deceased and all of a sudden this witness heard shouts of the deceased "Bachao... Bachao..." ("save...save..."). This witness has deposed that thereafter he and his wife closed the door of their house and went off to sleep. He has deposed that during the fight accused thrust a weapon in the stomach of the deceased. The weapon was a blade of scissor. This witness has further deposed that if he is shown the weapon, he would be able to identify and on being shown, he identified the same to be the weapon with which accused injured the deceased. He further deposed that thereafter accused ran away and deceased fell down. This incident was also witnessed by his wife. His wife's name is Kiranben. He has further deposed in his examination-in-chief that accused did not like deceased coming at his house and that was the reason for the incident to occur. In his cross- examination he deposed that he does not know the first informant Pravinbhai, who plys an autorickshaw. He has no idea that the first informant Pravinbhai resides in a Chawl near Shantinagar. He has deposed that it is true that opposite Tonibhai's Chawl, there is one house and thereafter Hariya Shantinagar. He has also admitted that Shantinagar - Hariya Chawl is opposite Tonibhai's Chawl. He denied the suggestion put by the defence that on the date of the incident the accused and the deceased had not come to his house. He further deposed that on the very next day of the incident between 1 to 1.30 in the early morning he was interrogated by the Police. His wife Kiranben was also brought to the Police Station. At around 5' O Clock in the morning he return to his house and thereafter once again the Police took him and his wife Kiranben to the Police Station. He admitted that in his Police statement he had not stated that after finishing dinner, he shook hands with the accused and in the meantime the deceased came at his house. He also admitted that he has not stated in his Police statement that the accused shook hands with the deceased and left the house of this witness. He also admitted in his cross-examination that he had stated in his Police statement that he and his wife heard the shouts save...save... and the voice was one of the deceased. He further deposed that the deceased ran away towards the Chawl shouting and the accused ran away towards Vapi-Silvassa Road, and he and his wife went off to sleep. He has also deposed that he and his wife had very good relation with the deceased. After hearing the shouts of the deceased save... save..., he and his wife went off to sleep and did not go to help the deceased. He tried to explain saying that accused had already ran away and therefore, there was no point in intervening. He admitted that he stated before the Police that he learnt about the dead body of the deceased being spotted at the door steps of Pravinbhai Chhanabhai, the first informant, on the date of his recording the Police statement. He further deposed that when the Police came to call him, deadbody of the deceased was lying near a Chawl next to the Cine Park. He further deposed that his wife Kiran was working in an STD Booth and the job was procured by the deceased for his wife. He denied to the suggestion of the defence that because of close relationship with the deceased, he is deposing against the accused. He also admitted that he did not say anything before the Police while recording his statement regarding accused thrusting a sharp weapon in the stomach of deceased. He also admitted that he did not inform the Police when his statement was being recorded that the weapon was somewhat like a scissor. He further deposed that the fight which ensued between the accused and the deceased lasted for around 1 to 2 minutes. He further deposed that the scuffle and the fight which took place between the accused and the deceased was near a big hoarding situated behind Cine Park. He further deposed that it takes around 2 to 3 minutes to reach Cine Park theater from his house. He denied the suggestion of the defence that it takes minimum ten minutes to reach Cine Park from his house. He admitted that there is a public pathway passing through an open land near Tonibhai's Chawl and Shantinagar - Hariya Society. He admitted in his cross that up to 12' O Clock in the night shop keepers and watchmen of Cine Park theater remain present near the theater. At the time of incident the shop keepers were present and the watchman of Cine Park Theater was also present. Neither the watchman nor any of the shop keepers of the area ran behind the accused, as the accused had a weapon in his hand.
7.6 PW-6, Kiranben Rameshdas, Exh.21. This witness is the wife of PW-5 Rameshdas. She has deposed that she was working at STD PCO next to Aero Camp, Vapi. She knew the deceased. She knew the accused too. She knew the accused as he used to visit the STD booth and that is how she started knowing the accused just before few days from the date of the incident. She deposed that she knew the deceased past 2 to 3 years and he used to visit her house. The incident in question occurred at around 10' O Clock in the night. She deposed that after returning from work she was cutting vegetables and in the meantime the accused came at her house. Accused enquired with her as to whether her husband had come home or not. After some time her husband came home and by that time deceased also came at her home. She and her husband were having food from one plate. She enquired the accused as well as deceased as to whether they would like to have food to which both said no. Thereafter, the accused shook hands with the deceased, but the deceased was very angry. The deceased called 'Kaliya ... Kaliya...' and saying so, asked the accused to wait. Thereafter, the deceased ran behind the accused and caught hold of the accused. A fight ensued between the accused and the deceased and at that point of time, she saw the accused running. She heard shouts of deceased "save.. save...". At about 1.30 in the early morning, the Police arrived at her house and took away her husband along with them.
Thereafter, she was also picked up by the Police and was taken to the Police Station. She has deposed that when deceased was shouting save.. save..., she closed the door of her house and went off to sleep with her husband as they were frightened. She deposed that deceased did not like the accused visiting her house and that is the reason why the incident occurred. This witness in her cross-examination deposed that she learnt about the murder of the deceased through Police. She admitted that it is true that she learnt about deceased being murdered after reaching Police Station. She did not learn about deceased being murdered, through any other person before reaching the Police Station. She deposed that she witnessed the scuffle which took place between the deceased and the accused and even her husband witnessed the incident. This witness admitted that she has not stated in her Police statement that on her husband returning home from work she and her husband were having food together. She also admitted that she has not stated before the Police in her statement that on her return from work when she was preparing vegetables the accused came at her house and enquired as to whether her husband had come home or not. She also admitted that she did not state anything before the Police that she asked the deceased and the accused as to whether they would like to have food or not. She has also admitted the omission in her Police statement regarding the fact that the accused shook hands with the deceased but deceased was very angry and shouted at the accused saying 'Kaliya.... Kaliya..., stop.
7.7 PW-7, Dr. Rupesh Dharamsinh Gohil, Exh.22. This witness is a Medical Officer and on 3rd February, 2006 he was associated with PHC Hospital at Chala, where the deadbody of the deceased was brought for postmortem. He performed the postmortem on the deadbody of the deceased and noticed that there was rigor mortis on the entire body. He also noticed postmortem lividity on the back of the body. He noticed one incised wound 6cm x 2cm x 2 cm on right shoulder and one incised wound 3cm x 1.5cm x 1.5cm on the chest. All vital organs were congested. He opined that the cause of death was due to injury in the right lung. He also opined on being shown the muddamal blade of scissor that the injuries sustained by the deceased could be possible by such a blade of scissor.
7.8. PW-8, Dr. Vibhuti Chhotubhai Patel, Exh.26. This witness is a Medical Officer and at the relevant point of time he was associated with CHC, Vapi. On 5th February, 2006 at around 9.20 in the morning, the accused was brought for medical examination with a Police yadi. During the course of medical examination of the accused, 3cc blood was drawn from his body, which was sent to FSL.
7.9. PW-9, Sahebrao Shankar, Exh. 29. This witness is a panch witness of the panchnama of the clothes of the deceased. He has nothing much to say in the matter.
7.10 PW-10, Chandubhai Babubhai Patel, Exh.30. This witness is a Police Officer of the rank of ASI and at the relevant point of time was at Vapi Town Police Station. He is the officer who recorded the first information report.
7.11 PW-11, Fatehsinh Laxmanbhai Vasava, Exh. 32. This witness is the Investigating Officer. He deposed that on registration of the FIR being lodged by one Pravinbhai Chhanabhai Patel, he started investigation by sending the dead body of the deceased for postmortem. Necessary panchnamas were drawn and the statement of witnesses were recorded. He deposed that a team of Police officers was sent in the direction of Mumbai as the information was that the accused has proceeded towards Mumbai and accordingly on 4th February, 2006, PSI Shri Ratanbhai Jivlabhai caught hold of the accused and produced him at the Police Station where the arrest panchnama of the accused was drawn. He has deposed that thereafter the clothes worn by the accused were taken in custody and were sealed in the presence of the panchas. He has further deposed that the accused on showing his willingness to show the place where the weapon of offence was concealed, proceeded towards that direction with the panchas and effected discovery of the weapon, namely a blade of scissor. In his cross-examination this witness stated that the place where the deceased was murdered is Cine Park compound. He has further deposed that he had seen the house of the first informant and from the house of the first informant towards Cine Park, there is an open land and a walking pathway. He has denied the suggestion put by the defence that the distance between Cine Park compound and the house of the first informant would be around 1500 to 2000 feet. According to this witness it would be around 500 feet. This witness has further deposed that he recorded statements of Kamleshsinh Uttamsinh Yadav and Tribhuvansinh Anandsinh Yadav, working as Watchmen at Cine Park and as per their statements, when the incident in question occurred both were on duty. He admitted that on recording the statements of both these witnesses, he found that they were not eye witnesses to the incident. He further deposed that the accused was brought by ASI Ratanbhai Jivlabhai from Mumbai on 4th Feb., 2006 and was arrested on 4th February, 2006 at around 11' O Clock. He has deposed that he has not recorded the statement of ASI Ratanbhai. He deposed that while recording the statements of the witnesses, the fact of a blade of scissor being used as the weapon of offence could not be disclosed.
8. Analysis:
Upon reappreciation revaluation of the entire evidence on record, oral as well as documentary, the picture that emerges may be summarized thus:
8.1 The prosecution has come out with a case that the deceased as well as the accused used to visit the house of PW-
5 Rameshdas Nepaldas and his wife PW-6 Kiranben Rameshdas. The deceased did not like the accused visiting the house of Rameshdas and Kiranben. On the date of the incident, as per the case of the prosecution, the accused and the deceased both reached at the house of Rameshdas and Kiranben. Upon seeing the accused at the house of Kiranben, the deceased got angry and when the accused left the house of Kiranben, the deceased is said to have shouted 'Kaliya .... Kaliya....', but the accused did not pay heed to the shouts of the deceased and proceeded ahead. The deceased thereafter is said to have run after the accused and caught hold of the accused. Thereafter, a fight ensued between the accused and the deceased in the form of a scuffle. Prosecution version is that Rameshdas and his wife Kiranben heard shouts of deceased "Save.... Save....' but both husband and wife i.e. Rameshdas and Kiranben closed the door of their house and went off to sleep. The deadbody of the deceased was found lying at the door steps of PW-1 Pravinbhai, who was informed by his nephew and on being informed by his nephew, he reached his house and found that an unknown person was lying dead and was bleeding. It appears that from the evidence of Rameshdas and his wife Kiranben, the prosecution alleged that on the date of the incident the accused and the deceased were together at the house of Ramesh das and Kiranben and thereafter, a fight ensued ending with the accused inflicting a blow with a blade of scissor on the chest region causing the death of the deceased. On considering the overall evidence on record and also the case of the prosecution, PW-5 Rameshdas and PW-6 Kiranben have been highlighted as eye witnesses to the incident, but it is very difficult to treat any of both these witnesses as eye witness, considering the overall evidence on record. It is very clear that the entire case hinges on circumstantial evidence, and the circumstances relied upon by the trial Court while convicting the accused appellant are:
(i) The deceased and the accused both had relationship with Kiranben, wife of Rameshdas, as a result of which both used to frequently visit the house of Kiranben. The deceased did not like the accused visiting the house of Kiranben and this was the apple of discord between the two;
(ii) On the date of the incident i.e. on 2nd February, 2006, at around 10' O Clock in the night, the accused as well as the deceased were at the house of Kiranben and at that point of time, a fight ensued between the accused and the deceased;
(iii) Upon leaving the house of Kiranben, Kiranben and her husband Rameshdas heard shouts of the deceased "Save .... Save. ";
(iv) On hearing the shouts of the deceased they found the dead body of the deceased lying near the house of the first informant;
(v) The house of Kiranben is very much near to Cine Park theater as well as to the house of the first informant;
(vi) Within a very short period of time from the date of the incident, the accused was arrested on 4th February, 2006 and at that point of time, the clothes worn by the accused were stained with blood and upon serological examination it revealed that the blood stains were of AB Group, which matched with the blood group of the deceased.
9. Contentions on behalf of the accused:
9.1 Ms. Nisha Parikh, learned Advocate appearing for the accused-appellant vehemently submitted that the trial Court committed a serious error in coming to the conclusion that the prosecution has been able to prove the case against the accused beyond reasonable doubt. She submitted that the trial Court committed serious error in convicting the accused- appellant for the offence of murder. Ms. Parikh submitted that the trial Court grossly erred in relying upon the evidence of PW-
5 Rameshdas Nepaldas, Exh.20 and PW-6 Kiranben Rameshdas, Exh.21. Ms. Parikh submitted that both these witnesses are unreliable witnesses and they have been created during the course of investigation of the crime. Ms. Parikh submitted that both these witnesses are not the eye witnesses to the incident and their version that on the date of the incident, the accused and the deceased both had come to their house and thereafter a fight ensued between them, cannot be believed in light of various inconsistencies and contradictions in their evidence.
9.2 Ms. Parikh submitted that learned trial Judge has committed a serious error in drawing an inference, without any evidence in this regard, that deceased and the accused both had illicit relations with PW-6 Kiranben. Ms. Parikh submitted that the learned trial Judge also committed a serious error in relying upon the evidence of recovery of blood stained clothes of the accused matching with the blood group of the deceased. Ms. Parikh submitted that as a matter of fact, the entire case hinges on circumstantial evidence and by no stretch of imagination PW-5 and PW-6 can be believed to be the eye witnesses to the incident. Ms. Parikh submitted that even if the entire evidence of PW-5 and PW-6 is believed to be true, it cannot be said that they witnessed the actual assault by the accused on the deceased as alleged by the prosecution. Ms. Parikh submitted that the appeal deserves to be allowed and the judgment and order of conviction passed by the trial Court be quashed and set aside.
10. On the other hand, Mr. K.P. Raval, learned Additional Public Prosecutor appearing for the State, vehemently defended the judgment of the trial Court submitting that the trial Court, upon proper appreciation and evaluation of evidence, rightly came to the conclusion that the accused committed the murder of the deceased by stabbing him in the chest with a blade of scissor.
10.1 Mr. Raval submitted that there is no reason worth the name to disbelieve the testimony of PW-5 and PW-6. He submitted that the presence of the accused and the deceased at the house of PW-5 and PW-6 on 2nd February, 2006 at around 10' O Clock in the night is established beyond reasonable doubt. He submitted that the accused and the deceased quarreled with each other at the house of PW-5 and PW-6 is also proved beyond reasonable doubt. Mr. Raval submitted that even if we believe that PW-5 and PW-6 have not witnessed the actual assault on the deceased by the accused, still the other circumstances are so clinching that it points only towards the guilt of the accused. He submitted that within few minutes from the time the accused and the deceased quarreled and entered into a scuffle, the dead body of the deceased was found lying at the door steps of PW-1, the original first informant. This chain of events, according to Mr. Raval, are sufficient to connect the accused with the crime. Mr. Raval also submitted that immediately after the incident the accused was not available as he absconded and was arrested on 4th February, 2006. At the time of drawing of arrest panchnama, the clothes worn by the accused were taken in possession, which contained blood stains matching with the blood group of the deceased, as per the serological test report. Mr. Raval submitted that judgment and order passed by the trial Court is just and proper and deserves to be confirmed.
11. Upon hearing learned counsel for the respective parties and on going through the materials on record, the first question which we would like to address is with regard to the credibility of depositions of PW-5 and PW-6. PW-5 Rameshdas is the husband of PW-6 Kiranben. We would like to approach this appeal preferred by the accused-appellant with a question as to whether the incident has actually occurred in the manner as narrated by PW-5 and PW-6. PW-5 and PW-6 both claim to be the eye witnesses to the incident. The defence of the accused all throughout was that he had never gone at the house of PW- 5 and PW-6 on 2nd February, 2006, lest it could be said that the accused had a chance to come in contact with the deceased resulting in a scuffle and thereafter the murder of the deceased. We have noticed that the evidence of both PW-5 and PW-6 appears to be very shaky and far-fetched. First, we are unable to understand as to on what basis the trial Court came to the conclusion that the accused and the deceased both had illicit relations with PW-6 Kiranben. There is no evidence worth the name in this regard. Naturally, it would not be the case of PW-5 and PW-6 also. However, PW-5 and PW-6 have put forward a story that both were known to them and they used to frequently visit their house. According to PW-5, the scuffle between the accused and the deceased lasted for around 1-2 minutes and this scuffle took place behind Cine Park. PW-5 has deposed that it takes around 2-3 minutes walk to reach Cine Park. He has denied the suggestion that it takes around 10 minutes. Even if we accept that it takes around 2-3 minutes to reach Cine Park from the house of this witness, it would be just impossible to hear deceased shouting "Bachao.... Bachao..." from the house of PW-5 and PW-6. It is not the case of PW-5 and PW-6 that they left the house and came out on the street. On the contrary, their version is that no sooner had they heard the shouts of deceased "Bachao... Bachao..." than they closed the door of their house and went to sleep. Even this conduct of PW-5 and PW-6 appears to us to be highly unnatural. It is true that at times due to fear a person may not get himself involved and would like to withdraw himself, but in the present case, at all stages in the evidence there are inconsistent versions. If it is the case of PW-5 that the fight and the scuffle which ensued between the deceased and the accused lasted for about 1-2 minutes, that means that the witness actually saw the scuffle, and at the same time, the second version is that this incident of scuffle occurred behind Cine Park, which is quite at a distance from the house of of PW-5 and PW-6. So far as the distance part is concerned, we have noticed that even as per the evidence of the Investigating Officer, the distance between Cine Park compound, the house of the first informant and the house of PW-5 and PW-6 is approximately 500 feet.
12. We have also noticed that the version of PW-5 is also inconsistent with the version of PW-6. PW-5 deposed that on 2nd February, 2006 at around 10' O Clock when he was having food the accused arrived, whereas PW-6 has deposed that on 2nd February, 2006 at around 10' O Clock in the night when she was preparing vegetables the accused came at her house and enquired as to whether her husband had returned home or not and it is thereafter that PW-5 Rameshdas, husband of PW-5 came home.
13. We are of the view that the genesis of the prosecution case is highly doubtful. Prosecution has tried to suppress the true origin of the occurrence. The evidence of PW-5 and PW-6 to the extent of actual assault upon the deceased being witnessed by them deserves to be outright rejected. The basic substratum of the prosecution case is that the accused inflicted a stab blow on the chest of the deceased with a blade of scissor appears to us very doubtful. Trial Court has not believed the discovery of the weapon of offence and rightly thought fit to reject this piece of evidence led by the prosecution.
13. In our view, considering the entire panchnama and the evidence of the panch witnesses, the trial Court rightly disbelieved the discovery of weapon of offence drawn under Section 27 of the Evidence Act. At the same time, trial Court committed a serious error in relying upon the evidence of recovery of clothes of the accused worn at the time of the incident containing blood stains, which matched with the blood group of the deceased, as per the serological test report. We are not inclined to accept this piece of evidence for the simple reason that the deposition of PW-2 Kishorebhai Kukubhai Halpati, the panch witness itself makes it clear that when the clothes of the accused were shown to the panch witnesses, the same were tied and placed in one bag. This is suggestive of the fact that the panch witnesses did not see the accused actually wearing the clothes containing blood stains, but by the time the panch witnesses could come, the accused had already put on another pair of clothes. It is difficult thereafter to accept the say of the prosecution that the clothes of the accused were recovered under a panchnama drawn in presence of two independent witnesses. Of course PW-2, the panch witness of the recovery of the clothes of the accused was declared hostile as he failed to prove the contents of the panchnama and most importantly prosecution could not prove this panchnama even through the Investigating Officer, as Investigating Officer has also failed to prove the contents of the panchnama of the recovery of clothes of the accused. All that the Investigating Officer deposed in this regard was that a panchnama of recovery of clothes of the accused was drawn. This is not sufficient. If an independent witness like a panch witness fails to support the prosecution case, then the panchnama may be proved through the evidence of the Investigating Officer, but the Investigating Officer is obliged to prove the contents of the entire panchnama and such a panchnama cannot be said to be proved on merely Investigating Officer saying that he had drawn the panchnama.
14. It appears that trial Court also relied upon the circumstance of the accused being arrested on 4th February, 2006, as according to the prosecution the accused had absconded somewhere towards Mumbai. First, the Investigating Officer has admitted that he has not recorded the statement of ASI Ratansinh, who actually arrested the accused and brought him from a particular place. There is no evidence worth the name as to from which place the accused was picked up and in what condition. There is no evidence on record to even remotely suggest that efforts were made by the Investigating Officer to search for the accused on 3rd of February, 2006. Nothing has been explained as to on what basis the Investigating agency got the clue that the accused had travelled towards Mumbai.
15. We have also noticed the contradiction in the form of an omission in the evidence of PW-5 Rameshdas, wherein he has admitted that he had not stated before the Police in his statement that he and his wife heard the shouts of deceased "Bachao ...Bachao..." and that the voice was of the deceased. This witness has also admitted that he has not stated before the Police in his statement that the deceased while shouting ran towards the Chawl and the accused ran towards Vapi- Silvassa Road and he and his wife thereafter went off to sleep. In fact, PW-5 and PW-6 have deposed that they learnt about the death of the deceased, rather murder of the deceased, only at the Police Station when the Police came and took them to the Police Station.
16. We have also gone through the evidence of PW-1, the original first informant. As such his evidence hardly helps the prosecution, except to prove the first information report, but from the evidence of this witness it is very clear that Cine Park Multiplex has three screens and all the three screens are in play at a time. He has also deposed that there is flow of people at the road which is a public pathway. Not only that but even the security personnel of the Cine Park were present on that day all through out and the statements of the security personnel were also recorded, but they had nothing to say as regards the incident in question. This witness has deposed that Tonibhai's Chawl i.e. house of PW-5 and PW-6 is at a distance of about 300 to 400 feet from his house.
On overall reappreciation and revaluation of the evidence on record, we are of the view that it is very difficult to believe the evidence of PW-5 and PW-6 and the trial Court ought not to have relied upon such evidence in a serious offence like that of murder.
17. There is one more aspect which deserves consideration. According to the prosecution the motive behind the commission of the crime was that the deceased disliked the accused visiting the house of PW-6 Kiranben. We have already discussed in the earlier part of our judgment that there is no evidence worth the name to even remotely suggest that the accused and the deceased both had illicit relations with PW-6 Kiranben and that was the reason why both used to frequently visit the house of PW-6 Kiranben. In the absence of such evidence, why should deceased dislike the accused coming at the house of PW-6 Kiranben. If that be so, then what could be the motive for the accused on that particular day to pick up a quarrel with the deceased. It may be that PW-5 and PW-6 both were known to the accused as well as the deceased, but it is very difficult for us to accept the motive behind the commission of crime as put forward by the prosecution. It is true that if there is direct evidence of the eye witness and if the Court finds such evidence to be reliable, then in such cases motive would not assume much importance, but in a case which hinges on circumstantial evidence and when there is no cogent or reliable evidence as regards enmity between the accused and deceased for a particular reason, then in such a case even motive would assume importance.
18. While assessing and evaluating the evidence of eye witnesses, the Court must adhere to two principles, mainly whether in the circumstances of the case it was possible for the eye witnesses to be present at the scene and whether there is anything inherently improbable or unreliable. The trial Court, in our opinion, has failed to observe the aforesaid principles and in fact has misappreciated the evidence which has caused gross miscarriage of justice. Credibility of a witness has to be tested by referring to his evidence and finding out how he has faired in cross-examination and what impression is created by his evidence taken in other context of the case and not by entering into the realm of conjecture and speculation. On scrutinizing the evidence of PW-5 and PW-6, we find the same to be very doubtful on all aspects so far as the place of occurrence, the manner of assault, the hearing of shouts of the deceased "Bachao... Bachao..." and most importantly the very presence of the accused at their house on the date of the incident.
19. At this stage we deem fit to deal with the submission of Mr. Raval, learned Additional Public Prosecutor appearing for the State that this is not a case which rests on the evidence of a solitary eye witness, but there are two eye witnesses and the evidence of both the eye witnesses gets corroboration with each other. According to Mr. Raval, the evidence of PW-5 stands corroborated with the evidence of PW-6 i.e. his own wife and therefore, Mr. Raval urged that we should accept the testimony of PW-5 and PW-6.
We have already discussed in the earlier part of our judgment that it is very difficult to rely upon the evidence of PW-5 as well as PW-6. Under such circumstances, it is difficult for us to accept the contention of Mr. Raval. In law, one infirm witness if supports the another witness of the same brand, it is not corroboration in the eye of law, as held by the Supreme Court in Muluwa V. State of M.P., AIR 1976 SC 989, that evidence of an infirm does not become reliable merely because it has been corroborated by other witnesses of the same brand. The evidence of PW-5 and PW-6 on which the prosecution relies on, is for the aforesaid reason, not worthy of credence and cannot be relied upon.
20. In that view of the matter, we unhesitatingly come to the conclusion that the prosecution has not been able to prove the charge against the accused and the trial Court committed grave error in convicting the accused-appellant. In the aforesaid premises, the appeal succeeds and the same is hereby allowed. Order of conviction and sentence passed by the learned Sessions Judge, Valsad in Sessions Case No. 50 of 2006 is quashed and set aside. The accused-appellant is ordered to be released forthwith, if not required in any other case.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas