(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. The State of Gujarat is before this Court being aggrieved by the judgment and order dated 22.6.1991 passed by the learned Additional Sessions Judge, Ahmedabad, in Sessions Case No.20 of 1991, whereby the learned Additional Sessions Judge was pleased to record acquittal for offence under Section 302 read with section 114 of Indian Penal Code and Section 135(1) of the Bombay Police Act.
2. This Court is conscious that this is an appeal against an order of acquittal and the Hon'ble the Apex Court has reiterated scope and ambit of appeal against acquittal under Section 378 of the Code of Criminal Procedure. The Hon'ble the Apex Court in the case of Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, reported in (1973) 2 SCC 793 = AIR 1973 SC 2622 had an occasion to observe as under:-
“5. Before dealing with the merits of the contentions, we may perhaps make a few preliminary remarks provoked by the situation presented by this case. An appellant aggrieved by the overturning of his acquittal deserves the final court's deeper concern on fundamental principles of criminal justice. The present accused, who have suffered such a fate, have hopefully appealed to us for a loaded approach against guilt in consonance with the initial innocence presumed in their favour fortified by the acquittal that followed. We are clearly in agreement with this noble proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine and in our own on the more logical, socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such a course. In India it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court's judgment survives this exacting standard.”
(emphasis supplied)
2.1. The Hon'ble the Apex Court in the said judgment more elaborately laid down the guidelines to be followed by the appellate Court (in the present case the High Court) in the matters, particularly appeals against an order of acquittal. In para-6, the Hon'ble the Apex Court observed as under:-
“6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author (Glanville Williams in 'Proof of Guilt') has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...". In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents. We have adopted these cautious in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago.” (emphasis supplied)
2.2. The Hon'ble the Apex Court has very succinctly put desirability of striking a balance between the two that, 'thousand guilty men may go but one innocent martyr shall not suffer' and the, 'evil of acquitting a guilty person lightheartedly' as learned Author-Glanville Williams has observed in his book, 'Proof of Guilt' and the apprehension expressed by the Hon'ble the Apex Court that, 'If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty'.
2.3. The Hon'ble the Apex Court has further observed in para-7 as under:-
“7. This Court had ever since its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The, Privy Council in Sheo Swarup v. King Emperor 61 Ind App. 398 = (AIR 1934 P.C. 227(2) negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to appeal under s. 417 of the Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". He further pointed out at p. 404 that, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120 = (AIR 1961 SC 715) after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup's case and held that they afforded a correct guide for the appellate court's approach to a case against an order of acquittal. It was again pointed out by Das Gupta, J. delivering the judgment of five Judges in Harbans Singh and Another v. State of Pubjab (1962) Supp.1 SCR 104 = (AIR 1962 SC 439).
"In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on 'compelling and substantial reasons' and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State, (1952) SCR 193 = (AIR 1952 SC 52) Ajmer Singh v. State of Punjab, (1953) S.C.R.418= (AIR 1953 SC 76) Puran v. State of Punjab, A.I.R. 1953 S.C. 459). The use of the words 'compelling reasons' embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words 'compelling reasons'. In later years the Court has often avoided emphasis on 'compelling reasons' but nonetheless adhered to the' view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. The State of Madhya Pradesh, Criminal Appeal No.178 of 1959 decided on 18-11-1960 (SC), Ashrafkha Haibatkha Pathan v. The State of Bombay, Criminal Appeal No.38 of 1960 decided on 14- 12-1960 (SC).) "...... On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reason on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
(emphasis supplied)
3. Taking the aforesaid observations of the Hon'ble the Apex Court as the guiding principles, this Court deems it proper to first examine the judgment recording acquittal.
4. The facts of the case of the prosecution in brief are as under:
On the occasion of Navratri festival on 27.9.1990 at 12.30 hours of midnight, while the witness Mayur PW 4 was witnessing Garba programme in the company of Abha, Ranjit and Ramji standing at a particular spot near Bhavana Apartments located in Chandranagar area of Ahmedabad, accused No.1 in the company of other three accused went there and asked Mayur to move and give them space to enable them to watch Garba. On refusal by Mayur, accused No.1 Pappu @ Jitendra Bhatt started abusing him and delivering him fist blows which culminated into altercations between them. Deceased Ramesh intervened in order to rescue Mayur. Accused No.1 then took out a knife from his pocket and delivered five blows to deceased Ramesh. At that time accused Nos. 2, 3 and 4 caught hold of the deceased and also gave kick and fist blows with an intention to kill Ramesh. The injured was taken to V.S. Hospital, Ahmedabad for treatment. During treatment the injured succumbed to his injuries at 3.00 am. FIR was lodged immediately by Ramjibhai Taljibhai, a witness of the incident. After investigation, the accused were charge sheeted and case was registered as CR.I.673 of 1990 for offence punishable under Section 302 read with section 114 of Indian Penal Code and Section 135(1) of the Bombay Police Act. As the offences were triable only by the Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code.
5. Charge was framed at Exh. 6 against all the accused. The accused denied the charges levelled against them and claimed to be tried.
6. To prove the case, the prosecution has examined the following witnesses:
Besides the oral evidence, documentary evidence such as post mortem Note Exh.17, panchnama Exh.18, Inquest panchnama Exh.21, panchnama of scene of offence Exh.23, complaint Exh. 26, FSL report, Exh.29, sketch of scene of offence Exh. 30, panchnama of Identification Parade Exh. 36 etc. were also taken into consideration by the learned trial Judge.
7. After examining the prosecution witnesses, the learned Addl. Sessions Judge recorded statements of all the accused persons under section 313 of the Code of Criminal Procedure in which it is stated by the accused Nos. 2, 3 and 4 that a false case is filed against them. So far as accused No.1 is concerned he has given his explanation that, “Pravinsinh was harassing my neighbour's daughter and due to the same there were altercations and quarrels with him and because of said enmity, I was falsely implicated in this case.” After hearing the arguments of both the sides and after appreciating the evidence on record, the learned Addl. Sessions Judge has come to the conclusion that the case against the accused had not been proved as no satisfactory evidence was adduced to show that the accused were guilty of the offence they were charged with. The trial court, therefore, acquitted the present respondents-accused as referred above and hence this appeal.
8. We have heard Mr L R Pujari, learned APP for the appellant-State. He submitted that the learned Additional Sessions Judge has committed error in acquitting the accused. The learned APP has drawn attention of this Court to the Records & Proceedings of this Appeal and vehemently submitted that the learned Additional Sessions Judge has wrongly discarded the evidence of PW 5 Ranjitsinh Narubha Vala Exh.28 who is an independent witness, on the ground that though he is an eye witness and the accused is known to him, did not lodge the complaint nor disclose name of the assailant to the other eye witnesses, till his statement has been recorded by the police. He also submitted that the learned trial Judge has erred in considering the fact that there was no data/evidence to arrest the accused No.1 till his name was disclosed by PW 5. In fact the learned trial Judge has overlooked the evidence of PW 2 Exh.14 who lodged the complaint immediately after the incident and in the complaint the full description of accused No.1 was given which led the police to arrest the accused No.1. He then submitted that the learned trial Judge has also not understood the aspect of the muddamal weapon and as such most of the witnesses have deposed that the muddamal recovered during the course of investigation and shown to them during the trial was not the same which was alleged to have been used by respondent No.1-original accused No.1. Learned APP further submitted that the learned trial Judge has also erred in not considering the evidence of Dr. Sheth Exh.32 who deposed that with the very muddamal weapon the injuries sustained by the deceased can be caused though blade of the knife is short. He argued that it is to be noted that Dr Shah at Exh.13 in her cross examination stated that looking to the measurement of the blade of knife, the injuries found on the deceased cannot be caused', as against Dr. Sheth gives reasonable and acceptable explanation that because of the movement of air in the wound the inflicted wound can reach the posterior lob and for that measurement is immaterial. He submitted that the learned trial Judge has wrongly concluded that the Investigating Officer has not done anything for identification of the accused for 12 days and after which he has managed the same. In support of this, the learned APP has drawn the attention of the court to Exh.45 and submitted that in fact this document shows that on the next day of the incident the police agency had sent a yadi to the Executive Magistrate for holding the Identification Parade and this fact is unchallenged. He finally submitted that the learned trial Judge ought to have held that the prosecution has proved its case beyond reasonable doubt and therefore the respondents-accused were required to be convicted for the offence they were charged with.
9. Learned Advocate P P Majmudar appearing for the respondent No.1-original accused No.1 submitted that the trial court has rightly appreciated the evidence which is forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He has drawn our attention to the deposition of PW 5-Ranjitsinh Narubha Vala Exh.28 and the threadbare and microscopic discussion made by the learned trial Judge in his judgment and submitted that the learned trial Judge has rightly come to the conclusion that PW 5 Ranjitsinh Vala at Exh.28 appears to be a concocted witness because though he was aware of the name of accused No.1, he has not disclosed the same immediately to the other eye witnesses as well as to police who were present in the hospital. He, therefore, submitted that this being an appeal against the order of acquittal, the judgment and order rendered by the trial court deserves to be upheld, as proper and plausible reasons for acquittal have been recorded. He, therefore, prayed that the appeal be dismissed.
10. We have considered the rival submissions made by the learned Advocates for the parties. It is pertinent to note that in the above referred incident it is the case of the prosecution that accused No.2, 3 and 4 delivered kick and fist blows with an intention to kill deceased Ramesh and, they are also roped in for the offence under section 302 of Indian Penal Code as they have aided and abetted the commission of murder by accused No.1. The learned trial Judge has observed in para 12 of the judgment dated 22.6.1991 passed in Sessions Case No.20 of 1991 that for contemplating accused No. 2, 3 and 4 have delivered kick and fist blows to the deceased, the oral evidence on the point is scant and sketchy and no marks of injury on the body of deceased Ramesh corresponding to fist and kick blows have been noticed by the Doctor. In paras 13 to 31 the learned trial Judge has discussed the said point at length. In para 86, the learned trial Judge has concluded the said point 'as not proved'. Para 86 reads as under:
“So far as role of accused Nos. 2, 3 and 4 and the constructive liability is concerned, nothing to suggest that they were either accessories before the act or accessories after the act, no meeting, not common object, no common enmity. So far as their role of accessories at the fact is concerned, there also the evidence is not cogent. FIR Exh.26 and Exh.40 none contemplates probability of involvement of any person other than accused no.1. No role is attributed specifically to them by one of the witnesses in the incident. Only one person talks about one of them catching hold of the deceased and the other two giving fist and kick blows. The nature of evidence is feeble and the totality of evidence on this front is so scant and sketchy, that it has got to be ignored, nothing could be relied upon.” (sic)
11. In para 32 of the judgment the learned trial Judge has observed that the question of individual liability of the principal accused Pappu @ Jitendra Bhatt and the nexus between the offence and the accused is tried to be established through the evidence of witnesses of the incident viz, (1) PW No.2 Ramji Exh. 14, (2) PW 4 Mayur Exh. 27 and PW 5 Ranjitsinh Nirubha Vala Exh. 28.
12. Learned APP Mr LR Pujari and Learned Advocate Mr P P Majmudar both submitted during the course of their arguments that the deposition of PW 5 Ranjitsinh Vala is very important. In the judgment also learned trial Judge has made microscopic examination of deposition of PW 5 Ranjitsinh Vala which will be discussed hereafter. First of all, we will see the chief examination of this prosecution witness No. 5 Ranjitsinh Vala recorded at Exh.28 which reads as under:
“1. I left my sister's house in Ahmedabad to meet my friend Pravinsinh at 11.30 at night on 26.9.1990. As Pravinsinh was not present at his house, as the Garba was going on in Bhavana Apartment, I went there by believing that he would be there. I was watching Garba. Pravinsinh did not meet me. Mayur Vyas and his friends were standing beside me. An altercation took place between Jitendra Bhatt and Mayur Vyas. Jitendra Bhatt was standing there. Ramesh Rabari intervened to separate them in the said altercation, therefore, Jitu Bhatt stopped quarreling with Mayur Vyas and started quarreling with Ramesh. By taking out a knife from his pocket, Jitu Bhatt started inflicting blows to Ramesh. Jitu Bhatt had iniflicted two knife blows on his chest, inflicted one blow on one side-rib and inflicted two blows on hand. Jitu ran away from there. When Jitu was beating him, one of the boys who were with him had caught hold of Ramesh's neck from back side. Other boys were inflicting fist and kick blows to Ramesh Rabari. Ramesh Rabari fell down. At that time, he was shouting. Ramesh was lying on his stomache. I helped Ramesh and made him sit. When his name was asked, he replied 'Ramesh'. In the meantime Pravinsinh came there and after he had seen the incident, he went and brought a rickshaw. He was put in the rickshaw and Pravin, Ramji and Navin taken him to V S Hospital and I went there on scooter afterwards. Ramji had got him admitted in the ward. I was with him and later on I went to my house.
2. I know Jitu Bhatt because I used to see him frequently in the pan parlor when I used to go to see Prarvin at Vasana for two months prior to the incident. He is the accused No.1 in the case. I had identified all the accused persons in the identification parade. The names of other three accused persons are Rajesh Patel, Raju and Premchand. I do not know as to who is Premchand amongst the accused persons. The witness identifies the accused No.3 as Raju. It is not the proper identification. The accused No.3 is Rajesh, that identification is also not proper. The knife which was inflicted was not the muddamal knife, it was not an opening knife.”
13. It appears from the judgment dated 22.6.1991 passed in Sessions Case No.201 of 1991 prior to making their submissions regarding the deposition of PW 5 Ranjitsinh Vala, learned Advocate for the defence has put the learned trial Judge on 'caution' that Ranjitsinh Vala happens to be a friend of Pravinsinh who resides in the neighbourhood of one Karamsi Rabari who happens to be maternal uncle of deceased Ramesh and so while drawing inference from the evidence of Ranjitsinh Vala, PW 5, the same be considered cautiously. Learned Advocate for the original accused No.1 before the trial court had also submitted that Ranjitsinh Vala is an outrightly concocted witness. Had Ranjitsinh Vala been a witness of the incident he would have disclosed name of the assailant. It would be a normal human behaviour to have disclosed name of the assailant to the police as well as to the persons who were standing there in the hospital at the first instance. This aspect was further discussed in paras 41, 42 and 56 of the judgment of the learned trial Judge which reads as under:
Para 41 on page No.28 “41. In the present case, Ranjit is the witness during occurrence, identifies the assailant at the time of the occurrence taking place at 1.00 a.m. on 27.9.1990. Though he comes in contact with informant Ramesh and Mayur at the scene of occurrence immediately after the occurrence, though he accompanies the injured and Ramesh to the hospital of course he following them on scooter, though he remains present in the hospital till the death of victim at 3.00 a.m. and till the PSI comes in the hospital as per the say of Ramesh and Investigating Officer Udesingh, it stands controverted by Ranjit as per his theory, he running away from the hospital entrance, the moment the injured is brought near the entrance: that theory not inspiring much confidence. In this case he had enough opportunity to unfold the name of the assailant to Ramesh, Pravin, Abho and Investigating Officer yet if he discloses not the name of the assailant till his statement is recorded on 27th Sept. 1990 at 11 a.m. that means the non-disclosure is there for a period of 10 hours, while in the reported decision the non-disclosure is there disclosure is for 10 hours and that too some of the hours are night hours which is to be kept in mind while appreciating the evidence of this witness.
42. The highlight pointed out by Mr Zala, the learned defence advocate is that the accused stands arrested at 11 a.m. on next day of the incident so stated by Ramji at exh.14, para 8 and Mayur Exh.27 in para 3 says that on 27th of september, 1990 in the morning when his statement was recorded, the accused was already in the custody. The charge sheet says that the accused were arrested at 13 hours on 27.9.1990. The arrest panchnama of accused was made at 12.30 Exh.44. Ranjit in his evidence at exh.38 para 4 says that on 27th September, 1990 as 11 a.m in the morning when his statement was recorded by police he learnt from police that the accused was already arrested and was in police custody at that time. Then the fulcrum question comes and that is if the accused was arrested prior to recording the statement of Ranjit as evident from the testimony of Ranjit, Ramji and Mayur, as well as evident from arrest panchnama of accused, what was the data before the Investigating Officer to arrest the accused because Ranjit was the only person who knew the accused by name, by face and by figure but prior to his statement being recorded, the accused was arrested and the other two witnesses did not know the accused except they having a casual glance at him on the day of the incident. If it is the prosecution case that the witnesses identified the accused by face and figure prior to recording of statement of Ranjit banking upon which the accused was arrested then that is not the say of the witnesses not even of the Investigating Officer and why the question is allowed to remain there. Not trying to unearth from the Investigating Officer as to banking upon what he arrested the accused, it is really problematic. The prosecution has bothered not to get it unfolded in evidence of anybody, and the defence had admired at it.
56. It is the prosecution's case that Ranjit knew accused no.1 Jitendra by name and face since last two months prior to this occurrence. So his identification of accused Jitendra, as assailant, executing the knife cuts on deceased Ramesh was of prime importance and of dependable nature because he knew the person by name and face prior to the occurrence. If such a witness identifying the assailant by name and face goes to the hospital where FIR is lodged in his presence, well he had equal opportunity to go to police station located in the hospital itself and disclose the occurrence. Deceased being given knife cuts by the assailants whom he knew by name and face, he could have transmitted that data concerning the assailant to relatives of the accused-that would have been a normal approach of a man and quite likely the investigations officer could have arrested the accused much earlier. To the surprise of all, Ranjit approaches not the police man, of his own in order to make this disclosure and the result is that who was the assailant that stands not unfolded at the time of recording of FIR, not even on that day.” (sic) After much discussion on the deposition of PW 5 Ranjitsinh Vala at Exh.26 the findings are given by the learned trial Judge in para 95 which reads as under:
“95. So far as rest of the issues; issues No.2, 3 and 5 are concerned, now evidence of Ranjit if believed could provide an anchor base to land a conviction, it by itself solely potent but then if one looks at the infirmities viz, he not disclosing the name of assailant though he knew either to police or to his friends and though he professes to be friend of the deceased.” (sic)
14. On the point of non-disclosure of name of the assailant, in the cross examination this witness PW 5 Ranjitsinh Vala Exh.28 has deposed that as 'none has enquired from him, he did not unfold name of accused No.1.
15. Learned APP vehemently argued that keeping the above discussions and findings of the learned trial Judge in mind, if we peruse deposition of PW 5 Ranjitsinh Vala, it appears quite natural and the learned trial Judge has unnecessarily tried to make threadbare and microscopic examination of the same. It is important to keep in mind some of the admitted positions. As narrated above in para 95 of the judgment, the trial Judge finds infirmities in the statement of PW 5 Ranjitsinh Vala that he has not disclosed name of the assailant either to the police or to his friends though he profess himself to be friend of the deceased. Name of the deceased is Ramesh Amrut Rabari. In fact, PW 5 Ranjitsinh Vala has never professed himself as friend of the deceased- Ramesh Amrut Rabari. As per the deposition, of PW 5 Ranjitsinh Vala on 26.9.1990 at 11.30 p.m, he moved out from the house of his sister in order to see his friend Pravinsinh. Pravinsinh could not be traced at home. Thinking that Pravinsinh would be at the place where Garba programme was going on at Bhavana Apartment, he went to Bhavana Apartment. Pravinsinh was not found there. Mayur Vyas and friends of Mayur Vyas were standing besides PW 5. At that time, some altercations took place between Mayur and Pappu @ Jitendra Bhatt i.e. accused No.1. The deceased Ramesh Rabari intervened and tried to disengage both of them. On this accused No.1 assaulted the deceased with knife. This witness PW 5 Ranjitsinh Vala also deposed that -
“...I helped Ramesh and made him sit. When his name was asked, he replied 'Ramesh'. In the meantime, Pravinsinh came there and after he had seen the incident, he went and brought a rickshaw ”
Nothing has been asked in the cross examination to this witness regarding his friendship with the deceased Ramesh Rabari. In fact this PW 5 Ranjitsinh Vala had gone to the Hospital may be being a friend of Pravinsinh he wanted to meet and talk to him beside as a humanitarian gesture. Simply because PW 5 Ranjitsinh Vala did not disclose name of the assailant either to Pravinsinh or to the relatives at the hospital or to the police in the hospital, it does not mean that he is a concocted witness, is the submission made by the learned APP for the appellant-State. PW 5 has given reason for not disclosing name of the assailant to the effect that 'none has inquired/asked him and so he has not disclosed.' We do not find any infirmity in it. Besides we have to keep some relevant and important factors in mind while deciding the case on hand. Age group of the accused and the deceased as well as most of the eye witnesses is between 19 – 21 years i.e. they are not fully matured persons. The incident took place at midnight and so several factors are to intervene and several answers are to be given by them, if one stays out of the house late that too after midnight. It is important to note that on the night of the incident being festival night of 'Navratri' Garba programme was going on at night and to enjoy that programme they have assembled at the place of the incident which is a normal behaviour on the part of all the concerned i.e. the accused, the deceased as well as the prosecution witnesses and the same is not doubted. Moreover, the incident took place at the Garba ground near Bhavana apartment where electric lights have to be there enabling them to identify each other. The sad incident took place on a trivial issue. High temperament with tendency to show supremacy and that too when they are in group is usual behaviour of younger generation. It is also a fact that immediately after the incident FIR Exh.26 was lodged. Identification marks of respondent-accused No.1 were given, stating that a thin, tall with thin moustaches, wheatish in colour person had started quarrelling and played important role as narrated in it. On the post incident behaviour, three decisions have been cited before the trial court and in our view, they are important to be looked into on the aspect that there cannot be a straight-jacket formula on the point of human behaviour or the conduct.
16. Head Note 'F' in The State, complainant v. Aru Pradhan (1985 Cri.L.J. 161) it is held that-
“different persons act differently when they see a murderous assault and merely because these witnesses did not physically intervene by attempting to snatch away the weapon or otherwise physically prevent the accused from assaulting the deceased, their evidence could not be discarded”.
In our view, non-disclosure of name of the assailant by PW 5 Ranjitsinh cannot be considered to be sufficient ground to discard his evidence as discussed by the learned trial Judge in para 61 of his judgment dated 22.6.1991. On the reaction pattern, in Rana Pratap v. State of Haryana (1983) 3 SCC 327, Head Note 'B' reads as under:
“Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set of rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”
Reaction of the learned trial Judge on the above situation mentioned in para 62 of the judgment reads as under:
“62. ...Nobody expects in this case a rescue operation from Ranjit during the occurrence and looking to the fate of Ramesh a witness rescuing. However meeting his fate of death, it would be too unrealistic. Evidence of Ranjit is not to be discarded because he did not rescue. The conduct of Ranjit in not unfolding the name of the assailant and the prosecution changing the story of Ranjit moving on scooter instead of in rickshaw along with the injured at the stage of evidence, it is these two stands taken together that puts the court on guard while weighing the evidence of Ranjit. Ranjit in his evidence says that he did notice the policeman in the hospital. He did not intimate about the name of the assailant to police and then comes an important disclosure that he had no reason for not unfolding to police about he being a witness at the incident or about he knowing the assailant by name because none inquired from him, therefore, he did not unfold, that is, his say. There was no concern of his to go to the hospital with the injured whether in a rickshaw or on the scooter. His conduct stands unexplained on the standard of normal human approach and logic. It is his say that neither Ranjit nor anybody else inquired from him as to who was the assailant. Nay, not only that he goes ahead and says that he did not talk to Pravin also, nor to anybody in the crowd, what an uncommon approach this witness wants the court to digest.” (sic) We are of the opinion that the learned trial Judge has not appreciated the ratio in its true spirit and unnecessarily made a comment to the effect that “nobody expects in this case a rescue operation from Ranjit” i.e. Ranjitsinh Vala, PW 5.
The third decision cited is on “independent witnesses”. It is in the case of Appabhai and another vs. State of Gujarat (AIR 1988 SC 696). Head Note 'B' reads as under:
“'B' Penal Code (45 of 1860) S.300-Murder-failure of prosecution to examine independent witnesses-Held, prosecution case cannot be thrown out on that ground alone (Evidence Act (1 of 1872) S.3.)”
It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.”
17. Thus, as narrated earlier, so far as respondent No.1- original accused No.1 is concerned, his involvement in the alleged offence has not been believed by the learned trial Judge because the star witness PW 5 Ranjitsinh Vala has not disclosed name of the assailant though he professes to be friend of deceased Ramesh. Earlier we have seen that neither PW 5 Ranjitsinh Vala has claimed nor in the cross examination it has been asked whether deceased was friend of PW 5 Ranjitsinh Vala. The entire findings referred above appears to be dehors the record and, therefore, misguiding. From the above findings, the learned trial Judge wants to convey that because PW 5 Ranjitsinh Vala has not disclosed name of the assailant, he finds him as a concocted witness and in fact he was not knowing respondent No.1-original accused No.1 by name or by any other mode and if he was aware of the same he would have disclosed the same. We do not agree with the above finding of the learned trial Judge because we are quite satisfied with the reason given by PW 5 Ranjitsinh Vala for not disclosing name of the assailant as none has inquired from him, he has not disclosed the same and to us it appears that he is an independent and disinterested witness because he is neither connected with the deceased nor had any enmity with respondent No.1-original accused No.1. So far as deposition of this witness Ranjitsinh Vala Exh.28 is concerned, nothing has come on the record even in the statement of respondent No.1 recorded under section 313 of the Criminal Procedure Code. In the aforesaid statement referred above, respondent No.1- original accused No.1 raised finger against Pravinsinh stating that “Pravinsinh was harassing my neighbour's daughter. Due to this there were altercations and quarrels with him. Because of the said enmity, I was falsely implicated in this case.” Thus it is clear that against this witness PW 5 no grievance is made by either side and thus he cannot be labelled as concocted witness. In our considered opinion, he is an independent witness and the court can rely on his evidence.
18. It was also argued and dealt with at length on the point that if the accused was arrested prior to recording of statement of PW 5 Ranjitsinh Vala as evident from the testimony of Ranjitsinh Vala, Ramji and Mayur Vyas as well as evident from the arrest panchnama of accused, the question which was raised before the trial court that what was the data before the Investigating Officer to arrest the accused because Ranjitsinh was the only person who knew the accused by name, by face and by figure but prior to his statement being recorded the accused was arrested and the other two witnesses did not know the accused except they having a casual glance of him at the time of the incident. The learned trial Judge has observed that “not trying to unearth from the Investigating Officer as to banking upon what he arrested the accused, it is really problematic.”. When the defence has asked the witness at length on the said issue then in our view, it was the duty of the defence to ask the Investigating Officer that on what basis they have arrested the accused because the Investigating Officer is the right person who could have explained the said alleged controversy. If the defence has failed in getting the said aspect unfolded, then in our view, it cannot be said that the witnesses who have given reply to that aspect appears not believable. On this point in the cross examination of PW 8 Udesinh Jadav who had recorded the complaint and drawn the inquest panchnama was asked in the cross examination that after the complaint he has not recorded statement of the witnesses and it is also asked that up to 4.45 a.m. names of the accused were not unfolded. In fact in the entire judgment most of the places PW 8 Udesinh Jadav, PSI Exh.38 had been considered as Investigating Officer by the learned trial Judge. In fact PW 10 Mahendrakumar Muljibhai Shah Exh.43 was the Investigating Officer. Over and above the narration relating to the Investigating Officer mentioned in para 91 of the judgment dated 22.6.1991 passed by the learned trial Judge is contrary to the record. Para 91 reads as under:
“91. Coming to the evidence of Jadav, the Investigating Officer, he talks about the investigation.”
19. So far as the identification parade is concerned, it was argued and discussed by the learned trial Judge that in all 15 Rabaris were called upon to stand in queue along with the accused. Deceased Ramesh happens to be a 'Rabari' and the persons who were called to be in queue were also Rabari. So far as the accused are concerned none of them is Rabari and so they may provide the best situation to identify the accused easily from Rabaris. We are not able to agree to the above submission as well as the finding of the learned Judge because as discussed earlier, the identification marks as mentioned in the complaint Exh.26 related to the principal accused i.e. the present respondent No. 1-original accused No.1 as being thin, tall, thin moustached, wheatish in colour. It is the common knowledge that most of the Rabaris are generally tall. We had occasion to see respondent No.1 who is having a very good height and he can be said to be a tall man who can be differentiated anywhere from others due to his height. While carrying out the Test Identification Parade, with the persons resembling the accused should be called to stand in queue. It has not come on the record that most of the Rabaris who were standing in the queue were in their traditional attire. Considering the height factor of respondent No.1-accused No.1, by keeping a tall person in a queue i.e. along with the Rabaris best situation was created by the Executive Magistrate and we are not finding fault with it. The deposition of the Executive Magistrate Maheshbhai Ramprasad Jani PW 7 Exh.35 is quite satisfactory and in our view, the same is a very good corroborative piece of evidence to support the case of the prosecution. In our view, the learned trial Judge has erred in wrongly concluding that the Investigating Officer has not done anything for identification of the accused upto 12 days and after that he has managed the same. In fact the document at Exh.45 shows that on the next day of the incident the police agency has sent yadi to the Executive Magistrate for holding T.I Parade and it is unchallenged. In our view, it helps the present appellant.
20. As argued by learned Advocate for the respondent, it is true that so far as the recovery or discovery of muddamal knife is concerned, satisfactory evidence has not come on record to strengthen the case of the prosecution. However, it has come in the evidence of Dr. Sheth Exh.32 who deposed that with the very muddamal knife the injuries sustained by the deceased can be caused though the blade of the knife is short.
21. Learned APP vehemently submitted that it is to be noted that Dr. Shah Exh.13 in her cross examination and that too looking to the measurement of the blade of the knife saying that by this muddamal weapon injuries found on the deceased cannot be caused as against Dr. Sheth who gives a reasonable answer that “because of the movement of air in the wound the inflicted wound can reach to the posterior lob and for that measurement is immaterial.” There appears substance and merit in it.
22. The findings recorded by the learned Judge at page No.32, in para 47, is as under:
“So far as execution of five knife cuts on Ramesh is concerned, that version of incident given by Ranjit stands corroborated by the medical evidence. Doctor noticing all the five injuries at the sites, suggested by the witness, in addition it further stands corroborated by the two eye witnesses, namely Ramji the informant and Mayur, one of the persons injured rather involved in the incident.”
In our view, this supports the case of the prosecution.
23. Having heard both the sides and having perused the evidence on record, this Court, as set out in opening part of this judgment, is of the opinion that this is a fit case wherein the Court has to interfere with the order of acquittal recorded by the learned Additional Sessions Judge. Instead of reiterating the evidence and the manner in which it is appreciated, which is found to be not only unsatisfactory but not acceptable, this Court is of the opinion that the findings recorded and the conclusions reached by the Court below are untenable in law.
24. This Court is of the opinion that present is the case to which the observations made by the Hon'ble the Apex Court in the matter of Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra (supra) in paras-5, 6 and 7, which are referred to and relied upon are squarely applicable and therefore, the order of acquittal is required to be interfered with and reversed, otherwise there will be miscarriage of justice.
25. On consideration of the rival submissions made by both the sides and on appreciation of the of evidence on record, this Court is of the opinion that the respondent-accused is guilty of the offence with which he was charged. We therefore convict him for the offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act.
[RAVI R. TRIPATHI, J.]
[G. B. SHAH, J.]
msp
FURTHER ORDER
26. The respondent No.1-original accused No.1 is present in the court. He submitted that when he was a teenager and 19 years old, the incident was occurred and offence was committed. At present he is 38 years old and before 5 years he had married to a girl who is 8th standard pass and his in-laws are at Bhavnagar and his father-in-law has expired and his mother-in-law is doing agricultural work. He then submitted that he is settled at Surat and working in a Transport Company as a loader and getting Rs. 7,000/- per month, out of which he is expending Rs. 1500/- towards rent as he is residing in a rental premises. He then submitted that his parents are living together. His father is 75 years of age and was serving in UCO Bank. Learned Advocate representing respondent No.1-accused No.1 further submitted that the benefit under Exception 4 to Section 300 of IPC should be given to him because his evidence come on the record clearly established that though the whole incident was occurred on a trivial issue more particularly for not giving side/space to see Garba which was going on during Navratri festival and the whole incident was a sudden development and the accused had acted at the spur of the moment and without any premeditation. As such there had been no enmity between the accused and the deceased and on a trivial and casual issue, the accused provoked the deceased and the altercation ensued which culminated into stabbing with knife. He has then submitted that though as per the medical evidence, five blows have been caused to the deceased but in fact the two were on the vital part of the body and it appears that while inflicting the blows the deceased must have raised his hands to save himself from the assaulting and as a result of it he must have received two to three blows on the hands. Lastly he submitted that even while holding the respondent no.1-original accused No.1 guilty of the offence alleged against him, instead of awarding him imprisonment, he may be imposed fine and so far as the imprisonment is concerned, the period undergone may be treated as sufficient.
27. The court asked the learned Advocate to enquire from the accused about his willingness and readiness to pay fine, in the event, the court so decides. Learned Advocate for the respondent No.1-original accused No.1 has shown his readiness and willingness. Learned Advocate prayed for time and the matter is adjourned to 12.4.2012.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]