IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 650 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
============================================================= NEMA @ NARESHBHAI CHANDUBHAI CHAUDHARY Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR PB GOSWAMI for Appellant.
MS MAITHALI MEHTA, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 13/07/2012
CAV JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict and is directed against an order dated 5th March 2007 passed by Additional Sessions Judge, Vyara, Dist. Surat in Sessions Case No. 56 of 2006 and thereby convicting the appellant for an offence punishable under section 302 of the Indian Penal Code and sentencing him for rigourous imprisonment for life with a further direction for payment of fine of Rs.500/-; in default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for three months.
2. The case made out by the prosecution may be summed up thus:
2.1 The accused is the husband of the complainant, Ramilaben, and the deceased, namely, Bipinbhai, was the stepson of the accused. The deceased Bipinbhai was a follower of one Asharam Bapu, a religious personality, and did not like the accused as he had the habit of drinking liquor. The deceased used to remind the accused on many occasions not to drink liquor. Two days prior to the incident, the deceased again asked the accused not to drink liquor. For the above reason, on 22nd May 2006 at about 4.00 AM [morning], while the deceased was sleeping in his house at village Dolvan, the accused came with an axe with an intention to kill the deceased and struck the axe above the neck [left side of the face] of the deceased resulting in grievous injury and consequent death.
2.2 The FIR was lodged by the complainant Ramilaben, the wife of the accused and the mother of the victim, and the case made out by the complainant was as follows:
2.2.1 The complainant had a first marriage with one Ratilal Naranbhai and in the said wedlock, she had given birth to two sons, of which the deceased was the elder one.
2.2.2 About 7 years prior to the date of incident, the said Ratilal died. Thereafter, the complainant contracted a second marriage with the accused of village Bamanmadur and the complainant and the accused were thus living as wife and husband. The complainant was residing at Patel Faliyu, Dolvan and the accused was residing at Village Mamanmadur and he used to come at the house of the complainant at the interval of a week or fortnight.
2.2.3 The deceased Bipinbhai was a follower of one Asharam Bapu and he used to perform religious formalities of the said sect, and he did not like drinking of liquor. Therefore, the deceased used to ask the accused not to drink liquor. As the accused was displeased with the deceased's reminders for not drinking liquor, he killed the deceased.
2.2.4 Two days prior to the date of the incident at about 5.00 PM, the accused came to the house in a drunken stage and at that time, the deceased warned the accused that he should not come to the house in a drunken condition. The accused became enraged and went away on his bicycle by abusing the deceased.
2.2.5 On the night of the incident, the complainant and the deceased had slept after taking dinner. The deceased was sleeping on a cot in the pajari situated at the backside of the house and the complainant was sleeping in the house at the door by keeping open the backdoor of the house and the front door of the house was locked. In the pajari part, there was an electric bulb and light was on in the night. At the early morning, the complainant heard a shout in Adivasi language “aaya” (Mother) and therefore, she woke up and had seen in the light of the electric bulb her husband, the accused, with an axe in his hand and he was going away from the cot of the deceased. The accused went to the vada and ran away towards the road ahead. The complainant followed the accused for few paces and thereafter, came back.
2.2.6 When she returned to the cot of the deceased, she had seen that there was an injury on the side of the cheek [above neck] and there was profuse bleeding. The complainant tried to call the deceased but he was not able to give any reply and it appeared that he was dead.
2.2.7 Thereafter, the complainant shouted for neighbours and the brother of the complainant, viz. Chandrasingh and others, viz. Pravinbhai, Madhubhai, Ashwinbhai, Jagubhai and the persons residing nearby the house of the complainant rushed to the house of the complainant and she informed those persons that the accused, after killing her son, had run away.
3. After registering the complaint as FIR, the In-charge PSI of Vyara Police Station, Shri K.F. Gohil, started investigation and after recording statement of witnesses and executing necessary panchnama etc., filed charge sheet in the court of Judicial Magistrate, First Class, Vyara under section 173 (2) of the Code of Criminal Procedure. Thereafter, the said court committed the case to the court of Sessions under section 209 of the Code of Criminal Procedure. The Sessions Court framed the charge, Exh.3, under sections 228(1) (b) and 228(2) of the Code of Criminal Procedure, and read out and explained the details thereof to the accused, who denied the charge and claimed to be tried.
4. At the time of hearing, the prosecution produced the following prosecution witnesses in support of the prosecution case.
5. The following pieces of documentary evidence were also adduced by the prosecution in support of its case:
6. The learned Sessions Judge, on consideration of the materials on record, came to the conclusion that the prosecution had established that the accused had assaulted the deceased Bipinbhai with a sharp-edged-weapon, i.e. axe, and due to such attack, the deceased suffered grievous injuries and died immediately, and therefore, passed an order of conviction and sentence as stated hereinabove.
7. Being dissatisfied, the accused has come up with the present appeal.
8. Mr. Goswami, the learned advocate appearing on behalf of the appellant, has laboriously contended before us that the learned Sessions Judge erred in law in convicting the appellant on the basis of a solitary eye witness, Ramilaben, notwithstanding the fact that she was all through inconsistent in her deposition. Mr. Goswami submitted that in this case, the recovery of the axe by the panch witness has not been proved. Moreover, even the said axe did not contain any trace of blood as is evident from the FSL report. Mr. Goswami submits that there is no dispute that the deceased was killed by a sharp cutting weapon but there was no justification for implicating the appellant when admittedly he was, at the relevant point of time, not staying with the accused in the house where the incident took place. Mr. Goswami, by referring to the map of the place of incident points out that it is not believable that the mother and son would sleep by putting the electric light on throughout the night. Mr. Goswami points out that the complainant, at the first instance, stated that after waking up upon hearing the cry of her son, she found the accused running away with an axe in his hand, which is an absurd statement because of the fact that the incident took place during night hours. Mr. Goswami further contends that as it appears from the evidence adduced by the complainant, after seeing the dead body of the accused, she became unconscious for 2 to 4 hours whereas the other witnesses, who immediately came after the incident, all stated that she was crying while standing. None of those witnesses who came immediately after the incident to the house supported the case of the complainant that she remained unconscious for 2 to 4 hours. Mr. Goswami further contends that in this case, only the execution of panchnama has been proved but the contents thereof have not been proved by any of the witnesses, and at the same time, the recovery of the alleged axe has also not been proved. Such being the position, according to Mr. Goswami, there was no justification for convicting the appellant on the sole evidence given by the complainant. He, therefore, prays for setting aside the order of conviction and sentence.
9. Ms. Mehta, the learned Additional Public Prosecutor, on the other hand, has supported the prosecution case and the order passed by the learned Sessions Judge. She contends that there is no reason to disbelieve the evidence given by the complainant who happens to be none other than the wife of the accused. According to Ms. Mehta, it has been well established that the accused was the husband of the complainant, and, therefore, she has rightly recognized the accused when he was running away, even if it is assumed for the sake of argument that there was no sufficient light in the room. Ms. Mehta further contends that even in the cross-examination of the complainant, a suggestion was given on behalf of the accused that he killed Bipin under a wrong impression that it was one Mahesh, the alleged lover of the complainant, who was in the room. Such suggestion, according to Ms. Mehta, strengthens the case of the prosecution that it was the accused who has actually killed Bipin. Ms. Mehta further contends that there is always a tendency of the witness to exaggerate the incident so that his version is believed by the court, and in such a case, even if there is some inconsistency, for that reason the truth should not be disbelieved. In support of such contention, Ms. Mehta has placed reliance upon a decision of the Supreme Court in the case of STATE OF UP vs ANIL SINGH reported in AIR 1988 SC 1998. Ms. Mehta, therefore, prays for dismissal of the appeal by confirming the order passed by the learned Sessions Judge.
10. Therefore, the only question that arises for determination in this appeal is whether the learned Sessions Judge, on the basis of the materials on record, was justified in holding the accused guilty for murder.
11. First of all, we propose to consider the evidence of the only eyewitness, viz. Ramilaben, the PW.2.
11.1 Ramilaben, in her examination-in-chief stated that she had married the accused as his previous wife died and after marriage, she was residing with her two sons at Dolvan. She has further stated that the accused was residing with her at Dolvan for some days and for some days he was residing at village Bamnamal. Her son Bipin was a devotee of Asharam Bapu and was following the rituals in worshiping and had no addiction whereas her present husband was addicted to liquor. As Bipin did not like this habit, he used to scold the appellant saying him not to come in a drunken condition. She has further stated that as a preparation for combating the forthcoming monsoon, they required wood and she and her son Bipin used to cut wood of Mango trees and other frees of the forest and asked the accused to assist them. When the deceased and PW.2 were cutting woods, the accused came in a drunken condition and at that time, Bipin had told him not to come in such a condition and asked him to leave. According to PW.2, the accused had threatened him that he would see him as to how he would live in the house, and went away abusing.
11.2 In the evening of the day of the incident, the deceased and the said witness had gone to bed after taking dinner, and the incident took place on 22nd May 2006 at 4 O'clock when both of them were sleeping. According to the said witness, Bipin was sleeping on the cot and she was sleeping on the ground. The electric light was kept on in the verendah. At that time, at about 4 O'clock, the accused came and gave an axe blow on the neck of Bipin. She woke up hearing the cries of Bipin and saw the accused with an axe in his hand and the accused ran away from the house. She shouted and therefore people in the surrounding rushed and gathered there.
11.3 According to the said witness, hearing her shouts, her brother Chandrasing, Pravinbhai, Ashwinbhai etc. arrived to whom she informed about the occurrence caused by the accused. When those people saw Bipin, they informed the police that Bipin had died. The police arrived there and she gave complaint in respect of the incident to the police. She has stated that the police had recorded the complaint according to her dictation and then obtained her thumb impression.
11.4 This witness has further stated that she had seen the axe, which was in the hand of the accused, and she could identify the axe if it was shown to her, and after looking at muddamal article No. 12, she had identified the axe to be the one which was in the hand of the accused.
11.5 In her cross-examination, this witness has stated that it is not true that she used to go to the house of the accused at Bamanamal and used to stay there. On the other hand, the accused used to visit her house at Dolvan and used to stay at her house
11.6 This witness had denied the suggestion on behalf of the accused that she knew Mahesh Chandrasinh of village Kakadava. She has, however, admitted that she knew Pravin Madhu of Dolvan and the said Pravin Madhu used to run the business of selling liquor in the past. She has also denied the suggestion that Mahesh used to serve liquor in the bar of Pravin Madhu.
11.7 This witness has further stated that she is not addicted to liquor. She has also denied the suggestion that Mahesh Chandrasinh provided her liquor and she used to take it. She has also denied the suggestion that Mahesh and she used to take wine together. However, in her cross-examination, she has admitted that prohibition cases had been filed against her in the past.
11.8 She has also denied the suggestion that one month prior to the occurrence of the incident, the accused had lodged a complaint against Mahesh in the police out-post at Dolvan and on the basis of the said complaint police had arrested Mahesh and Pravin Madhu and she were the sureties to release Mahesh on bail.
11.9 This witness has stated in her cross-examination that her house has one kitchen and one veranda and there is no room. According to her, she was sleeping at the threshold of her house and Bipin was sleeping in the veranda. She has denied the suggestion that she was sleeping on the threshold of her house by closing the door of her house. She has further stated that the backside door was open and the door of the kitchen was closed. She has denied the suggestion that there was only one electric bulb in the kitchen and there was no electric light at any other place in her house. She has also denied the suggestion that they slept after switching off the light.
11.10 This witness has further stated that on seeing her son had expired, she became unconscious and recovered consciousness after two to four hours. She has further stated she did not know what was written by the police. The police had told her to give thumb impression and so she put her thumb impression and did not know how many thumb impressions were given by her. She has further stated that as she saw her son in a bleeding condition, she became unconscious and fell down there. She has denied the suggestion of the accused that it might have so happened that the accused was under a wrong impression that Mahesh was sleeping and believing Bipin to be Mahesh, killed him.
12. Chandrasinh Jamsinh Chaudhary, the brother of the complainant Ramilaben, who arrived at the scene of offence after the incident, is PW.4. In his deposition, he has stated that his sister kept the accused and he was residing with her for three to four years. He has further stated that his nephew Bipin was a follower of Asharam Bapu and he used to meditate Asharam Bapu. He has further stated that the accused was a habitual consumer of liquor and for that reason, his nephew used to have altercation with the accused. He has further admitted that he was not an eye witness and he has heard about the incident from her sister, Ramilaben.
12.1 In his cross-examination, he has stated that he dictated his statement before the police as whatever was told by his sister Ramilaben to him in respect of the incident.
13. Similarly, PW.5, Amarsinh, is also not an eyewitness, but he came to the spot after hearing the shouts of Ramilaben.
14. Sharadaben Rameshbhai Chaudhary, who is stated to be doing social service as a political activist, is PW. No.6. She has stated in her examination-in-chief that she came to know that after the death of her first husband, Ramilaben made a second marriage with the accused. She has further stated that the accused was in the habit of taking liquor and since the deceased Bipin was a follower of Asharam Bapu, he used to ask the accused not to come to the house after consuming liquor. She has repeated the case of Ramilaben that there was an altercation two days prior to the incident as told by Ramilaben.
14.1 In her cross-examination, PW 6 has stated that many times she had seen the accused in a drunken condition. She has further stated that although she knows that Ramilaben was earlier married to Ratilal, she does not know whether the mother of Ratilal is alive or whether the said mother of Ratilal is residing in the adjoining room of Ramilaben. She has further stated that although she had gone to the house of Ramilaben and had seen the entire house, she cannot say as to in which room in the house there is electric light and it was Ramilaben who told that light was put on.
15. It appears that in this case, five different panchnamas have been prepared but the pancha witnesses are the same in all the five panchnamas.
16. PW.7 Pravinbhai is one of the panch witnesses. Reading the evidence adduced by him, we find that though he has proved the execution of the panchanama, he did not prove the contents of the same. Thus, the contents of the panchnama were not proved. He has further admitted that the police had not seized anything in his presence except the axe which was seized from a distance of 10 to 12 metres from the house of Ramilaben which was a field of sugarcane. It is not his case that the accused had lead them to the place from which the axe was recovered.
17. PW.8 Karansinh is the Investigating Officer. He started the investigation on 22nd May 2006 as the regular officer was on leave. He has proved his investigation. He has admitted that only two panchas are the witnesses in all the five panchnamas out of which only one was not examined. He has admitted that it is true that it has not been stated in the panchnama that axe has been used and the accused is ready to show it and only the word 'weapon' has been used. He has further admitted that the axe was found from the fence of Henna of the sugarcane field.
18. From the aforesaid evidence, we find that apart from Ramilaben, there is no either eye witness of the incident, and the learned trial Judge has relied solely upon her deposition to convict the accused.
18.1 It is a well settled law that a witness may be wholly reliable, may not be wholly reliable or may be unreliable but the law is equally settled that in order to convict a person on the basis of a sole eyewitness, the Court must be satisfied that the said witness was wholly reliable. At this stage, we may profitably quote and refer to the well-known judgment of the Supreme Court in the case of V. THEVAR v. STATE OF MADRAS reported in AIR 1957 SC 614. The Supreme Court made the following observations in paragraphs 11 and 12.
“11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. 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.”
19. Bearing in mind the aforesaid principle of law, we now propose to consider whether from the evidence given by Ramilaben, she can be said to be wholly reliable so as to uphold the conviction on the basis of her evidence.
19.1 From the evidence of Ramilaben narrated above, it appears that her case was that her house has only one kitchen and one veranda and it has no room. On the date of the incident, she was sleeping at the threshold and her son Bipin was sleeping in the veranda by closing the main door of the house but keeping the back door open with an electric light switched on. It is also her case that in the said night, the accused was not staying with her in her house but according to her as the back door was open, the accused entered into the house through the back door.
19.2 It is very difficult to accept the contention that any reasonable person will sleep in the house with the back door open inviting intruders into the house though the main door is closed. It is also unusual for a person to sleep in the night with electric light switched on.
19.3 It appears from the evidence of the said witness that although she has stated that she was not addicted to liquor, nevertheless, in the past prohibition cases have been filed against her.
19.4 She has further stated that immediately after the incident when she saw that her son died, she became unconscious and remained unconscious for about 2 to 4 hours. However, the other witnesses of the locality, who immediately rushed to the house, have not stated that Ramilaben was lying unconscious but on the other hand, one of the witnesses has stated that Ramilaben was crying standing by the cot of the deceased. Moreover, all the witnesses have stated that it was Ramilaben who narrated the incident to them. None of the witnesses have mentioned about her becoming unconscious for 2 to 4 hours. We are, therefore, unable to believe her case that she became unconscious.
19.5 In her examination-in-chief she has stated that she lodged the complaint whereas in the cross-examination she has stated that she merely put her thumb impression. Her brother had stated that he dictated the FIR.
19.6 It further appears that in the written complaint before the police, it was stated that after her second marriage with the accused, the accused used to come to the house of the complainant for some time and she also used to go to the house of the accused for some time, but in her cross examination, she has stated that she never used to go to the house of the accused, her second husband.
19.7 In her evidence she has also stated that she had chased the accused for some time and she could identify the axe, which was in the hand of the accused by which he allegedly killed her son, but the FSL report shows that the axe that was seized did not contain any trace of blood.
19.8 Thus, the evidence given by the alleged sole eyewitness, Ramilaben, is replete with inconsistencies. It is, therefore, very difficult to treat the said witness as wholly reliable so as to uphold the conviction of the accused on the basis of such evidence.
20. The prosecution has also failed to prove the contents of the panchnama. Only signature of one of the panch witnesses was proved and the contents are not proved, and even the said witness has stated that he simply put his signature although he was not declared as hostile. We also cannot appreciate what was the reason for having only two panch witnesses for all the five different panchnama and even out of the two, one was not even examined.
21. We further find that in this case, the grandmother of Bipin used to stay along with the family in the adjoining room. Whether it is adjoining room or adjoining house, no specific evidence has been produced. We do not know as to why the grandmother of the victim was not brought as a witness even though she was a member of the same family. Even it has come in evidence that Ramilaben has another son also. Whether the said son was present or not, there is no evidence.
22. Moreover, there is no evidence adduced by the prosecution that the accused escaped from his house. It appears that on the next day, the accused was arrested. Although the prosecution tried to prove that he came by a bicycle, the existence of such bicycle was not proved.
23. On consideration of the entire materials on record, we are of the view that the prosecution has failed to prove that it was the accused who came during the dead of night from his own village and killed Bipin merely on the ground that he did not like the accused as the accused was addicted to liquor although evidence indicates that in the past prohibition cases have been filed against Ramilaben also. Therefore, the motive of murder is also not convincing.
24. It appears that the learned trial Judge placed reliance upon the suggestion given to Ramilaben on behalf of the accused that treating Bipin to be Mahesh through mistake, the accused had killed Bipin.
24.1 In a criminal case, it is for the prosecution to prove the case by adducing convincing evidence. Merely on the basis of a suggestion given by the learned advocate for the accused in the cross-examination that the accused might have killed the victim under mistaken belief that he was Mahesh, the accused cannot be held to be guilty. Under the Code of Criminal Procedure even on the basis of a confession of the accused under section 164 of the Code of Criminal Procedure, a person cannot be convicted if it appears that such confession is not consistent with the case made out by the prosecution. If, on the sole basis of the confession a person could be convicted, in that case, many guilty persons could avoid punishment by setting up some other persons as accused and by obtaining such person’s confession by getting such confession on payment of money. In other words, law does not permit a person to protect the guilty person by taking burden on himself. Such being the law of the land, a mere suggestion made on behalf of the accused for the purpose of proving that such witness had some illicit relationship with another person who might be present at the place of incident, cannot be a ground for holding the accused as guilty.
25. In view of what is stated hereinabove, we are unable to uphold the conviction based on such evidence adduced by Ramilaben who cannot be treated as wholly reliable witnesses. We are, thus, of the view that the learned trial Judge erred in law in holding that the accused was guilty of murder. We, therefore, set aside the order dated 5th March 2007 passed by the learned Additional Sessions Judge, Vyara, Dist. Surat in Sessions Case No. 56 of 2006 convicting and sentencing the appellant. The appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty forthwith, if not required in any other criminal case. Fine, if paid, be refunded to the accused.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]