IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1367 of 2009 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== KANDUBHAI VESTABHAI DHANUK Versus STATE OF GUJARAT ========================================== =============== Appearance :
MRS NISHA M PARIKH for Appellant.
MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for Respondent.
========================================== =============== Date : 26/09/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict for offence punishable under sections 302 and 504 of the Indian Penal Code and Section 135 of the Bombay Police Act, and is directed against an order of conviction and the consequent sentence dated 29th June 2009 passed by the learned Additional Sessions Judge, Vadodara, Camped at Chhotaudepur in Sessions Case No. 61 of 2008 by which the learned Sessions Judge imposed sentence of life imprisonment and a fine of Rs.10,000/- upon the appellant, with a further direction that out of the amount of fine, Rs.5000/- shall be paid to Rangliben Dhanuk, wife of the deceased Ramsingh Vesta, as compensation.
2. The following charges were framed against the appellant.
“On 5.4.08 at eight O'clock of night, the deceased, your brother, who was building new house next to the old house of yours and the deceased, had gone to sleep at about eight O'clock after having the food. At about ten O'clock in the night, when he came back to take a mattress, you, the accused, had told your brother, Ramsingh, that, “you are younger to me and building a new house; people will tell to me that I was unable to build a house.” Saying that you had used abusive words to the deceased Ramsingh Vesta and as the deceased had asked you not to use those abusive words, you got infuriated and hit a blow of paliya [a sharp edged weapon] that was with you on the head on the back side of the left ear on neck of the deceased. As the complainant Rangilben had intervened, you raised the Paliya [a sharp edged weapon] to hit her and as she started shouting, you fled with Paliya and the death of your brother happened on the spot. By doing this you have committed an offence punishable under section 302, 504 of Indian Penal Code and section 135 of B.P.Act in the jurisdiction of this Court.”
3. The case made out by the prosecution may be summed up thus:
3.1 Ramsing, the deceased, the husband of the complainant, Rangliben, was building a new house next to his old paternal house. On 5th April 2008 at 8 O'clock in the night, the complainant and the deceased went to the place where the new house was under construction to sleep there after finishing their dinner. The elder brother of the deceased, Kandubhai Vestabhai Dhanuk [the accused] and his wife Shardiben, their son and daughter, were sleeping at the old house. At about half past ten in the night, the deceased had gone to the old house to bring a quilt [godadu]. At that time, the accused told the deceased that though the latter was younger to the former, as the latter was building a new house, people would say that he, in spite of being the elder one, was unable to build a house, and after saying so, the accused started using abusive words to the deceased. The deceased asked the accused not to use abusive words, as a result, the accused got infuriated and hit a blow by a palia on the head on the back side of the left ear on the neck area of the deceased. As the complainant, the wife of the deceased, intervened, the accused raised the palia to hit her, and as such, she raised alarm by shouting. The uncles-in-law of the complainant, viz. Narsingbhai, Senglabhai Dhanuk and her aunt-in-law Bachliben Narsingbhai and her family, the brother-in-law, viz. Jangaliyabhai Manjibhai and people of the faliya, viz. Chimabhai Senglabhai and Diyaliyabhai Manjibhai Dhanuk had arrived being attracted by the screams of the deceased. The accused thereafter ran away towards the forest and with the paliya, with his wife and children.
3.2 Rangliben had given a written complaint to the Rangpur Police Station during the same night and the complaint was registered as First Criminal Register No. 29 of 2008. Investigating Officer of the Rangpur Police Station took charge of the investigation and informed his higher officer with special report. He drew up the inquiry panchnama of the dead-body of the deceased, got the post mortem of the dead-body done, had drawn panchnama of the scene of offence, and the panchnama of the body condition of the accused in the presence of the panchas and seized the muddamal after arresting the accused. Ultimately, the charge-sheet was prepared against the accused for the offences punishable under sections 302 and 504 of the Indian Penal Code and section 135 of the Bombay Police Act and filed it in the court of the learned Judicial Magistrate First Class, Chhotaudepur. However, as the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions under section 209 of the Code of Criminal Procedure .
3.3 The accused denied the allegations and claimed to be tried.
3.4 The prosecution had examined the following witnesses in support of its case:
3.5 The prosecution as also produced the following pieces of documentary evidence.
3.6 The statements of the accused under section 313 of the Code of Criminal Procedure were taken wherein the accused denied the allegations made against him. The accused, however, did not adduce any evidence in support of his defence.
As indicated earlier, the learned Sessions Judge, by the order impugned in this appeal, found the accused guilty of the charges framed against him and imposed sentence as indicated earlier.
4. Being dissatisfied, the convicted person has come up with this appeal.
5. Ms. Parikh, the learned advocate appearing on behalf of the appellant, had taken us through the entire depositions and the documentary evidence on record. Ms. Parikh contends that in this case, all the witnesses, except the complaint, the Doctor who performed the post mortem examination and the investigating officer, having become hostile, the learned Sessions Judge committed substantial error in convicting the appellant. Ms. Parikh contends that none of the witnesses who were examined by the police at the stage of investigation supported the prosecution, as a result, the prosecution declared them hostile, and on the basis of such state of affairs, the prosecution could not prove beyond reasonable that the appellant had committed the crime. According to Ms. Parikh, in this case, it is unsafe to rely upon the evidence of the widow of the victim, she being an interested witness, and thus, we should set aside the order of conviction and the consequent sentence by allowing the appeal.
6. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the respondent, has, on the other hand, supported the order impugned in this appeal and has contended that in the facts of the present case, there was no reason to disbelieve the version of the complainant, who being the widow of the victim, would not unnecessarily indict an innocent person. Mr. Rawal contends that on the basis of evidence on record which has been corroborated by the evidence of the Doctor, we should affirm the order impugned.
7. Therefore, the only question that arises for determination in this appeal is whether in the facts of the present case, the learned Sessions Judge was justified in holding the appellant guilty and imposing the sentence upon him.
8. After hearing the learned counsel for the parties and after going through the materials on record, we find that the prosecution has examined as many as 15 witnesses including the Investigating Officer and the Doctor. It, however, appears that except the complainant, Rangliben, all other witnesses who earlier supported the prosecution case before the police, became hostile. Even the panch witnesses also became hostile.
9. The Code of Criminal Procedure does not prescribe any number of witnesses to be believed in order to uphold a conviction. The Court can rely upon the evidence given by a solitary eyewitness for the purpose of convicting or acquitting a person provided such witness is wholly reliable and if such evidence is found to be above reproach or suspicion of interestedness, incompetence or subornation. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Vadivelu Thevar v. The State of Madras reported in AIR 1957 SC 614 where the Apex Court made the following observations regarding the duties of the court before it decides to base its conviction by relying upon the version of the sole eyewitness:
“Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after the consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' - 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized on S. 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”
10. Bearing in mind the aforesaid principles, we are of the view that merely because the most of the witnesses were won over as the incident occurred among the members of the same family, a guilty person cannot escape conviction. We, therefore, propose to consider whether Rangliben, the complainant in this case, can be treated to be a wholly reliable witness.
11. The said Rangliben has appeared as PW. No.11 (Exh. 27). In her examination-in-chief, she stated that she was residing with her husband, the deceased, and she had two sons. She has further given description of the family of her husband and has pointed out that the accused was the second one of the three brothers, and her husband was the youngest one. She has identified the accused in the Court.
11.1 According to her statement, the incident took place at the night at 10 O'clock when her husband had gone to the old house to bring a quilt [godadu]. At that time, the accused had hit her husband with a palio on the left ear at the neck region, as a result of which, her husband died. She pointed out that her husband was building a new house for which the accused became jealous and told the victim that though the victim was younger to the accused, by building a house the victim had in the eye of the public grown more than him and became elder to him and he, thus, became younger to the victim in the estimation of the people, and saying so, hit the victim with the palio. She has stated that at the time of occurrence of the incident, she was sitting on a cot in front of the new building and she has further stated that the distance between the place where she was sitting and the place of incident was only 20 ft. to 25 ft. by pointing out the distance between the witness-box on which she stood and the door of the court room. She has further stated that when the accused raised the palio towards her, she shouted and ran away, and as she shouted, Machliben, Narsingh, Diwaliyo, Jangaliyo and Chiman came and as these people came, the accused ran away towards the mountain. She has further stated that she had gone to Rangpur Police Station at about 12 O'clock to give the complaint. She identified her thumb impression on the complaint, which is marked as Exh. 26. Subsequently, police came to the village and she had shown to the police the place of incident.
11.2 In her cross-examination, she has admitted that the people in the village construct their respective houses in their farm. She has denied the suggestion that fencing was done on the sides of the farms. She has further stated that tribal males do the work of labour. She has also stated that tribal people get up at about 3 O'clock in the morning and have food and at about 6 O'clock go out for labour work and come back to their respective houses at about 5 O'clock in the evening after doing labour work. She has further stated that people get tired after coming back and they go to sleep after having food as the sun sets. She has further stated that her house and the houses of the accused, her uncle-in-law Narsingh Sengla, Jangaliya Manji, Chima Sengla and Patel Chima Sengla are situated in their respective farms. However, she has denied the suggestion that the farms are situated at distance. She has further stated that the forest starts immediately behind her new house and there are number of Neem and Mahuda and a lot of other trees in the forest. She has admitted that Nakamali village is situated on the border of Madhya Pradesh and has stated that the border of M.P. is about half a kilometer distance from Nakamali village. She has admitted that thieves come from M.P. to Nakamali village and other border villages with lethal weapons and such weapons include palio, bow and arrow etc. She has further admitted that if those thieves are resisted, they kill persons.
11.3 She has denied the suggestion that her uncle-in-law Narsingh Sengla, Chima Sengla and brother-in-law Jangaliya Manji etc. had informed her about the incident by coming to her father's house. She has further denied the suggestion that the incident took place in the night in dark. She has also denied the suggestion that at 8 O'clock on the date of the incident, she and her husband had gone to sleep after spreading the quilt. She has also denied the suggestion that when her husband went to pick up the quilt, she was sleeping in her house. She has specifically asserted that she was sitting on the cot and she had seen the accused hitting her husband. She has denied the suggestion that as there was a commotion at the house of the accused, she went there to see. She has also denied the suggestion there is a distance of about 80 ft. to 90 ft. between the house of the accused and the new house. In her cross-examination, she has again maintained that the distance between the two houses was equivalent to the distance between the witness-box on which she stood and the door of the court room. She has denied the suggestion that when she had gone towards the house of the accused, she saw the dead-body of her husband lying. She has admitted that she had not mentioned in the complaint that at the time of the incident, she was sitting on a cot in front of her house and when the accused had raised the palio to hit her, she had run away. She has also admitted that in the complaint she has stated that till date, they had no quarrel with regard to the land.
12. PW No.1 Purshottamdas is the Doctor who performed the post mortem. The said Doctor has, in his examination-in-chief given details about the injuries and the procedures done at the time of making the post mortem. According to the Doctor, the probable cause of death is excessive blood loss or shock to the nerves due to injury No.1 shown in column N.17 of the PM Report. According to this witness, injury in column No.17 can be caused by a sharp edged weapon and this was sufficient to cause death in the ordinary course of nature. After looking at the muddamal weapon, the Doctor has opined that the injuries mentioned in column No.17 can be caused by the said weapon.
12.1 In the cross-examination, he has denied the suggestion that if a person falls from 15 to 20 ft. wall on his back at left side on a rocky surface, then injuries shown in column No.17 and 19 could be caused.
12.2 We find that nothing is elicited from the cross- examination which belies the prosecution case.
13. It appears from the court's daily docket [Rojkam] of the Sessions Court that adjournment applications were filed before the Court on the ground that talks for settlement were going on, and such adjournment was also granted. It appears that all the witnesses in this case, except the widow of the victim, who according to their statements made under Section 161 of the Code, were eyewitnesses or who gathered immediately after the incident, became hostile and even the panchas also became hostile.
14. We, however, find that in the case before us, there was no dispute that the two houses were contiguous, and as it appears from the map exhibited that the distance between the two houses is 56 ft.
15. It appears that the complainant and the deceased were sleeping in their new house which consists of only one room and at about 10 O'clock in the night, when the deceased came to the old house for bringing a quilt, there was an altercation between the two brothers. The accused, the elder one, was suffering from inferiority complex as his younger brother was constructing a house of his own, and, as a result, he expressed his jealousy for the same. At that time, there was altercation and the accused inflicted the blows with a palio. When the complainant who was sitting on a cot placed in front of his new house, intervened, the accused also raised the palio towards her. It appears that the recovery of palio could not be proved because of the fact that the panch witnesses became hostile, but the fact remain that the complainant, in the course of the same night, lodged the complaint by going to the police station.
16. We find substance in the contention of Mr. Rawal, the learned Additional Public Prosecutor that there is no reason to disbelieve the complainant who has lost her husband. In her cross-examination, no suggestion was given to this witness that she had any enmity with the accused so as to unnecessarily implicate her brother-in-law. She has asserted that there was no dispute between the brothers over land. We are also not impressed by the submission of Ms. Parikh, the learned advocate for the appellant, that thieves from MP came and murdered as there is no evidence to indicate that anything was stolen or any articles were looted from the persons of that locality. We have already pointed out that the dead-body was found in front of the old house where the accused used to live with his family and not in the new house of the deceased. In such circumstances, we are of the view that the case made out by the Prosecution is quite probable and there is no reason to conclude that the complainant will falsely implicate her brother-in-law within few hours of the incident by going to the police station during the same night. There is no material on record to brand the evidence given by the Complainant as one tainted with reproach or suspicion of interestedness, incompetence or subornation.
17. On consideration of the entire materials on record, we, therefore, agree with the learned Sessions Judge that it was the appellant who had committed the murder of the victim by use of the palio, and thus, the learned Sessions Judge was quite justified in finding him guilty of all the offences indicated in the charges sheet and in imposing the sentence upon him. The learned Sessions Judge had the occasion to see even the demeanour of the complainant in the witness-box, and he having believed the said witness, having regard to facts and circumstances and the events described by the complainant and her answers in cross-examination, we do not find any reason to take a contrary view from the one taken by the learned trial judge in the present case. After taking into consideration the nature of the weapon used and the place of injury on the body of the victim and the cruel manner in which the crime was committed being motivated by envy, there is no scope of even converting the offence to one of culpable homicide not amounting to murder.
18. The appeal is, thus, devoid of any merits and deserves to be dismissed, and is hereby dismissed. The order of conviction and sentence recorded against the appellant are confirmed.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]