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CR.A/2289/2005 24/ 51 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2289 of 2005
With
CRIMINAL
REVISION APPLICATION No. 55 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge?
No
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
AMARSING
RUPSING MAHIDA & 2 - Opponent(s)
=========================================================
Appearance : CRIMINAL APPEAL
NO.2289 OF 2005
MR
AJ DESAI, ADDL. PUBLIC PROSECUTOR for
Appellant(s) : 1,
MR MB GOHIL for Opponent(s) : 1 ? 3.
Appearance
: CRIMINAL REVISION APPLICATION NO.55 OF 2008
MS MARIA
DALAL FOR MR YATIN SONI for Opponent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
:16/06/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.R. SHAH)
1. Facts
of this case illustrate a disquieting feature as to how the trial
Court has committed a grave miscarriage of justice in recording the
acquittal of the respondents ? accused by playing in the hands of
the witnesses who were admittedly relatives of the respondents –
accused.
2. As
observed by the Hon’ble Supreme Court in the case of Zahira
Habibulla Sheikh and Anr. V/s. State of Gujarat and Ors.
reported in (2004) 4 SCC 158 and in the case of Zahira
Habibulla Sheikh (5) and Anr. V/s. State of Gujarat and Ors.
reported in (2006) 3 SCC 374 ‘A criminal trial is a
judicial examination of the issues in the case and its purpose is to
arrive at a judgment on an issue as to a fact or relevant facts which
may lead to the discovery of the fact issue and obtain proof of such
facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of
the accused. Since the object is to met out justice and to convict
the guilty and protect the innocent, the trial should be a search for
the truth and not a bout over technicalities, and must be conducted
under such rules as will protect the innocent, and punish the guilty.
If a criminal court is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a spectator and a mere
recording machine, by becoming a participant in the trial evincing
intelligence, active interest and eliciting all relevant materials
necessary for reaching the correct conclusions, to find out the
truth, and administer justice with fairness and impartiality both to
the parties and to the community it serves. Courts administering
criminal justice cannot turn a blind eye to vexatious or oppressive
conduct that has occurred in relation to the proceedings, even if a
fair trial is still possible, except at the risk of undermining the
fair name and standing of the judges as impartial and independent
adjudicators’. The Hon’ble
Supreme Court has further observed ‘the Courts have
always been considered to have an overriding duty to maintain public
confidence in the administration of justice often referred to as the
duty to vindicate and uphold the ‘majesty of law’. It
is further observed that ?Sdue administration of
justice has always been viewed as a continuous process, not confined
to determination of the particular case, protecting its ability to
function as to court of law in the future as in the case before it.??
It is further observed by the
Hon’ble Supreme Court that ?SCourts have to ensure that
the accused persons are punished. A criminal trial should not be
reduced to be mock trials or shadow-boxing or fixed trials.??
3. Present
Criminal Appeal being Criminal Appeal No.2289 of 2005 is filed by the
State of Gujarat under Section 378(1)(3) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the Code’)
against the judgement and order dated 04.03.2005 passed by the
learned Presiding Officer, 3rd Fast Track Court, Nadiad in
Sessions Case No.260 of 2002 acquitting the respondents herein ?
original accused for the offences punishable under Sections 302, 307,
323, 504 read with Section 114 of the Indian Penal Code.
4. Criminal
Revision Application No.55 of 2008 is registered pursuant to the
order dated 17.12.2007 passed by this Bench wherein respondent Nos.2
and 3 in the said Revision Application i.e. PW-1 ? Takhatsinh
Bhikabhai Mahida and PW-2- Chhatrasinh Bhikabhai Mahida were directed
to show cause as to why they should not be punished for perjury and
giving false evidence on oath and why appropriate proceedings against
them should not be initiated considering provisions of Section 344 of
the Cr.P.C. which permits the Court to try the accused / witnesses
who have given false evidence on oath summarily, aforesaid two
witnesses and the respondents are tried summarily and are given
reasonable opportunity as contemplated under Section 344 of the
Cr.P.C.
5. Briefly
stated the facts are as follows:
Original
complainant ? Takhatsinh bhikhabhai Mahida son of the deceased
victim, resident of the village Navagam gave complaint before the
Mahelav Police Station on 11.08.2002 which was recorded by one ?
Jasosing Ratansing ? Head Constable against the accused persons for
the offences punishable under Sections 302, 307, 323, 504 read with
Section 114 of the IPC alleging inter-alia that he is residing
with his parents at village ? Navagam and on 11.08.2002 in the
evening at about 7.00 p.m., the accused persons came there and
started quarreling with his father and his sister’s son ? Bhimsing.
At that time father of complainant requested them not to quarrel and
abuse and at that time Amarsing Rupsing Mahida? original accused
No.1 was shouting that why he is harassing his daughter ? Lilaben
and at that time original accused No.1 ? Amarsing Rupsing gave
‘Pavda blow’ on the right side of the head above ear of his father
and his father got injured and other accused ? Danaben Amarsing,
Lilaben Amarsing and Akbarbhai Amarsing were giving filthy abuses and
were giving fist blows to his father and at that time his elder
brother intervened and they were also abused. It was further alleged
in the complaint that thereafter, all the accused went to their
residence who were staying in the same faliya and as his father
sustained injuries he was taken to hospital. It is required to be
noted at this stage that at the time when the complaint was given
father of the complainant was alive and was taken to hospital.
However, subsequently he succumbed to injuries, therefore, accused
persons were charged for the offences punishable under Sections 302,
307, 323, 504 read with Section 114 of the IPC.
6. The
complaint was recorded by Head Constable of Mahelav Police Station ?
Jasosingh Ratansing. That thereafter, injured ? Bhikabhai father of
the complainant died in the hospital and necessary entry to that
effect was made in the station dairy. Arvindbhai Ravjibhai Patel-
P.S.I., Mahelav Police Station reached the hospital. Inquest
Panchnama was carried out in the presence of two panchas.
Investigation was carried out by him. Panchnama of place of
offence was also drawn by him in presence of two Panchas.
Panchnama of recovery of weapon was also drawn by him in
presence of two panchas. Postmortem was carried out by
Dr.Jignesh Kachralal. During investigation, Investigating Officer,
P.S.I. – Arvindbhai Patel recorded the statement of witness /
eye-witnesses who were present at the time of incident such as
Takatsing Bhikabhai ? original complainant son of deceased;
Kesarben Bhikabhai ? widow of the deceased; Mohamedsing Mahida;
Ashwinbhai; Bhimsing @ Tinabhai; Sukhben Chatrasing Mahida and
others. Investigating Officer also collected other documentary
evidences such as injury certificate issued by Dr.Vipul Shah of
Urvish Hospital who treated the deceased in the hospital; PM note;
FSL report; Serological report, etc. That thereafter, having found
that there is case made out against the accused persons, he filed
charge-sheet against the accused persons for the offences punishable
under Sections 302, 307, 323, 504 and 114 of the IPC in the Court of
learned JMFC, Petlad. As the case was sessions triable, the case was
committed to the learned District and Sessions Court, Nadiad which
was numbered as Sessions Case No.260 of 2002 and it was sent to the
Court of Additional Sessions Judge, Nadiad. Charge was framed
against the accused persons vide Exh.4 by the learned
Presiding Officer, 6th Fast Track Court, Nadiad on
04.06.2004 against all the accused persons for the offences
punishable under Sections 302, 307, 323, 504 and 114 of the IPC. All
the accused persons pleaded not guilty and therefore, they were put
to trial. During trial, prosecution examined as many as 15 witnesses
and produced on record voluminous documentary evidence. Takatsing
Bhikabhai ? original complainant and son of the deceased ? PW-1
came to be examined at Exh.10 initially on 06.07.2004; his
examination-in-chief was recorded on 06.07.2004 and he was partly
cross examined on the very day and that thereafter, the trial was
adjourned and he came to be further cross examined on 09.08.2004. He
was throughly cross examined. He fully supported the prosecution case
and stick to what was stated by him in the complaint as well as
whatever he stated before the police during investigation. Another
witness ? Chatrasingh Bhikabhai, son of the deceased and elder
brother of the original complainant came to be examined by the
prosecution as PW-2 vide
Exh.14 on 27.08.2004. He fully supported the prosecution case and
stick to what was stated by him before the police during
investigation. It appears that settlement was arrived at between the
parties between 27.08.2004 and 04.11.2004 and the defence gave one
application at Exh.40 on 04.11.2004 before the learned trial court
requesting to recall the aforesaid two witnesses with a view to prove
contradictions in the complaint and deposition of PW-1 as well as
contradictions in the police statement of the PW-2 and his
deposition. Learned trial Court granted the said application on the
very day mechanically. On 19.11.2004 both the aforesaid two witness
who earlier fully supported the case of the prosecution came to be
further cross examined by the defence and surprisingly they turned
hostile and they deposed contrary to what was deposed by them in
examination-in-chief and earlier cross examination recorded on
27.08.2004 and even contrary to what was stated by the complainant in
the complaint as well as contrary to their own statements recored by
the Investigating Officer during investigation. Both of them for the
first time stated that at the time of incident they had gone to their
sister’s residence at village ? Kanjari and they returned at about
7.30 p.m.; they came to know that their father got injured when they
reached their residence and many persons had gathered. It was further
deposed by aforesaid two witnesses that other persons staying in the
said faliya told him that their father fell down and sustained injury
by Otli. They further deposed that they have not seen how the
incident had taken place and what happened. Prosecution gave
application at Exh.55 to recall aforesaid two witnesses in light of
their further cross examination recorded on 19.11.2004. Said
application came to be allowed and the aforesaid two witnesses came
to be recalled for further examination-in-chief. They deposed that
whatever they have deposed in further cross examination is correct
though in examination-in-chief and at the time of earlier cross
examination it is deposed by them that at the time of incident they
were at their home. However denied what was stated by them during
examination-in-chief recorded earlier. However, both of them admitted
that they have deposed earlier as per their statement before the
police which was at the instance of other persons and having
realized, they stated correct facts in the further cross examination.
That thereafter, prosecution examined other witnesses, relatives of
deceased who were also relatives of accused persons, all of them
turned hostile. Even panch-witnesses also turned hostile. Prosecution
examined Dr.Vipul Shah who treated deceased at his Urvish Hospital.
In the examination-in-chief he has stated that he was informed that
his relatives have given ‘Pavda blow’. He was also cross examined.
Prosecution further examined Dr.Jignesh Kachralal who conducted
postmortem. As per postmortem report cause of death was stated to be
Cardiorespiratory arrest due to intracranial hemorrhage. Prosecution
also examined head constable ? Jasosingh Ratansing who recorded the
complaint given by Takatsing Bhikabhai. He stated in
examination-in-chief that the complaint was given by Takatsing
Bhikabhai Mahida in his presence and same was signed by Takatsing in
his presence and he also signed as Police officer. He is not cross
examined. Prosecution further examined Investigating Officer ? PSI
Arvindbhai Ravjibhai Patel, he fully supported the prosecution case
and deposed that he recorded statement what was stated by the
witnesses. In the cross examination he has specifically deposed that
it is not true that he has not recorded the statement as per their
say. That thereafter, attention of the accused persons were drawn to
the incriminating material found against them and statement of
accused persons under Section 313 were recorded on 13.01.2005. That
thereafter, learned Presiding Officer, 3rd Fast Track
Court, Nadiad solely relying upon the further deposition of the
aforesaid two witnesses Exh.10 and 14 acquitted the respondents –
accused by the impugned judgment and order by observing that it is
true that the prosecution has proved the statement of those witnesses
made before the police during investigation who have turned hostile
before the Court by examining PSI Arvindbhai Patel ? PW 15 examined
at Exh.52, however, as the witnesses are not supporting the case of
the prosecution, said proved statements cannot be used against the
accused persons and thereby acquitted the accused persons for the
offence punishable under Sections 302, 307, 323, 504 and 114 of the
IPC. Being aggrieved and dissatisfied with the same, State has
preferred the present appeal under Section 378(1)(3) of the Code.
7. Mr.A.J.Desai,
learned Additional Public Prosecutor appearing on behalf of the State
has vehemently submitted that the learned trial Court has materially
erred in relying upon the further cross examination / further
deposition recorded after cross examination was over. It is submitted
that the learned trial Court ought not to have relied upon the
deposition (cross examination recorded on 19.11.2004 after they were
recalled). It is submitted that the learned trial Court ought to have
relied upon deposition recorded prior to the application Exh.40
(recalling of the witnesses). It is submitted that the learned trial
Court has not considered and/or discussed deposition of other
witnesses on record i.e. deposition of Dr.Vipul Shah who has stated
that he was told that deceased sustained injury by ‘Pavda’ by
relatives and deposition of Head Constable ? Jasosingh Ratansing at
Exh.34 who recorded the complaint given by Takatsing ? PW-1. It is
submitted that even the trial Court has not considered and discussed
deposition of Arvindbhai Patel- Investigating Officer, PSI- Mahelav
Police Station who recorded the statement of the witnesses, who
subsequently turned hostile. It is submitted that he has
specifically deposed that he has recorded the statements of the
witnesses during investigation as per and whatever was stated by
those witnesses. It is submitted that the learned trial Court ought
to have become more vigilant and alert after aforesaid two witnesses
i.e. PW-1 and PW-2 turned hostile after they were recalled by further
realizing that said witnesses and other witnesses who have turned
hostile are all relatives of accused persons. It is therefore,
submitted that the learned trial Court ought to have relied upon
other independent witnesses and ought to have reached the truth
rather than acquitting the accused persons relying upon further cross
of the witnesses at Exh.10 and 14. It is submitted that the learned
trial Court has become mute spectator and acquitted the accused
persons by playing in the hands of the witnesses who are relatives of
the accused. It is submitted that the learned trial Court has failed
in its duty to convict the accused persons. It is submitted that
evidence of Dr.Vipul Shah, Postmortem report, injury sustained by the
deceased, evidence of head constable ? Jasosingh Ratansing and
evidence of Arvindbhai Patel, Investigating Officer are sufficient to
convict the accused persons. However, the learned trial Court has
not discussed and/or considered the evidence of aforesaid witnesses
as well as aforesaid documentary evidence and has acquitted accused
persons which has resulted into miscarriage of justice. It is
submitted that even the learned trial Court has also observed that
the prosecution has proved the statements of the witnesses who turned
hostile in the Court, still solely relying upon those witnesses who
have turned hostile and that too after they were recalled, the
learned trial Court has acquitted the accused persons, which requires
to be quashed and set aside.
Mr.Desai,
learned APP has relied upon decision of the Hon’ble Supreme Court in
the case of State of M.P. V/s. Badri Yadav and Anr.
Reported in (2006) 9 SCC 549 as well as decision of the
Hon’ble Supreme Court in the case of Zahira Habibulla
Sheikh(supra) in support of his prayer to allow the
present appeal, quashing and setting aside the judgment and order of
acquittal and convict the accused persons for the offences punishable
under Sections 302, 307, 323, 504 and 114 of the IPC and to impose
appropriate sentence. So far as Criminal Revision Application No.55
of 2008 is concerned, Mr.Desai, learned APP has submitted that
considering deposition of two witnesses PW-1 and PW-2 recorded prior
to 19.11.2004 and subsequent deposition recorded in cross examination
dated 19.11.2004, it is clear case of perjury and even in the
statement recorded before this Court, Chattrasing Bhikhabhai ? PW-2
has admitted that he has given false evidence. Therefore, it is
requested to appropriately punish aforesaid two witnesses ?
respondents of Criminal Revision Application No.55 of 2008 so as to
curb such type of practice as in recent days incident of witnesses
turning hostile has increased day by day.
8. Mr.M.B.Gohil,
learned Advocate has appeared on behalf of the respondents ?
accused. It is submitted that on appreciation of evidence and
considering evidence of deposition of PW-1 and PW-2 who were examined
at Exh.10 and 14, when it was found by the learned trial Court that
witnesses who were examined by the prosecution to prove the case have
not supported the prosecution case and thereby acquitted the accused
persons, same is not required to be interfered with by this Court in
an appeal against the order of acquittal under Section 378 of the
Code. It is submitted that the impugned judgment and order passed by
the learned trial Court cannot be said to be so perverse which
requires interference of this Court in an appeal under Section 378 of
the Code. It is submitted that as held by the Hon’ble Supreme Court
in catena of decisions when there are two versions possible and one
which is in favour of the accused has been accepted by the learned
trial Court and that accused persons are acquitted, the High Court in
an appeal under Section 378 of the Code should not interfere with the
same. Therefore, it is requested to dismiss the present appeal.
9. Ms.Maria
Dalal, learned Advocate appearing for Mr.Yatin Soni, learned Advocate
appearing for two witnesses ? PW-1 and PW-2 i.e. Takatsing
Bhikabhai and Chhatrasinh Bhikabhai whose evidence was recored at
Exh-10 and 14 and who are respondents in Criminal Revision
Application No.55 of 2008, has vehemently submitted that if this
Court is of the opinion that aforesaid two witnesses are liable for
perjury by giving false evidence, in that case, appropriate remedy is
to follow procedure as required under Section 195 of the Code and
this Court cannot assume criminal jurisdiction and convict them
without trial. She has heavily relied upon the decision of the
Hon’ble Supreme Court in the case of Ramsingh v/s. State of
Haryana and Anr. reported in AIR 2000 SC 544 and
in the case of M.S.Alawat v/s. State of Haryana and Anr.
reported in AIR 2000 SC 168. By making above submissions, she
has requested to discharge notice issued in Suo-moto Revision
Application No.55 of 2008. On merits she has addressed the Court by
submitting that said witnesses have not committed any offence of
perjury as whatever was found to be true, they have stated in the
subsequent cross examination and therefore, it is requested to
dismiss the Criminal Revision Application.
10. Heard
the learned Advocates appearing on behalf of the respective parties.
11. We
have minutely considered the deposition of all the witnesses in
detail. PW-1 ? Takatsing Bhikabhai ? son of the deceased
initially gave complaint at Mahelav Police Station which is at Exh.11
which was recorded by the Head Constable ? Jasosingh Ratansingh. In
the complaint he has specifically alleged that Amarsingh Mahida ?
original accused No.1 gave ‘Pavda blow’ on the right side of the head
near ear of the deceased and other accused persons ? Dhanaben
Amarsing Mahida and Lilaben Amarsingh Mahida were giving filthy
abuses and giving fist blows to the deceased. Head Constable ?
Jasosingh Ratansing who recorded the complaint at Exh.11 is examined
by the prosecution as PW-14 at Exh.34. He has deposed that the
complaint was given by Takatsingh Mahida in his presence which is at
Exh.11 and same was signed by Takatsing in his presence and he also
signed on the same as Police Officer. Said witness is not cross
examined by the defence. Thus prosecution has proved beyond doubt the
complaint at Exh.11. No question is asked to the said witness against
recording of the said complaint. During trial prosecution examined
Arvindbhai Patel ? Investigating Officer who investigated the case
and who recorded the statements of the witnesses during investigation
who subsequently turned hostile. He is throughly cross examined. He
specifically deposed that whatever was stated by the witnesses their
statements were recorded. He has also deposed what was stated by the
said witnesses in their statement during investigation. Though said
witness was cross examined the defence has failed to prove any
contradiction. It is required to be noted at this stage that even the
learned Trial Court has also specifically observed and held that by
examining Arvindbhai Patel ? Investigating Officer at Exh.52, the
prosecution has proved in Court, statements of those witnesses who
have subsequently turned hostile such as Takatsing Bhikabhai,
Chatrasingh Bhikabhai, Kesarben Bhikabhai etc. Prosecution has also
examined Dr.Vipul Shah who treated the deceased at his Urvish
Hospital. It is specifically deposed by him that he was told that his
relative has given ‘Pavda blow’. No question is asked to him so far
as that aspect is concerned in the cross examination. Medical
certificate of the said Doctor is at Exh.17 in which also it is
alleged that injury is due to assault by ‘Pavda’. Inspite of above
overwhelming evidence on record, the learned trial Court has not
considered and dealt with and/or discussed said evidences at all.
Takatsing Bhikabhai ? original complainant and son of the deceased
? eye witness ? PW-1 came to be examined at Exh.10. His
examination-in-Chief and some cross examination was recorded on
06.07.2004. He was fully and throughly cross examined by the defence
on 09.08.2004. He fully supported prosecution case and stick to what
was stated by him in the complaint as well as in his statement before
the police during investigation. He has specifically deposed in the
cross that he has seen the incident and injury caused to his father.
It is also specifically deposed by him in the cross that except
original accused no.1 ? Amarsing nobody has caused any injury to
his father and there was only one injury sustained by his father. He
has also specifically denied in the cross that it is not true that
his father fell down during scuffle and he sustained injury by
falling down on Otli. That PW-2 Chatarsing Bhikabhai ? elder son
of the deceased and elder brother of the complainant also eye witness
came to be examined by the prosecution at Exh.14 on 27.08.2004. He
has also fully and throughly cross examined by the defence. He fully
supported the case of the prosecution and statements made by him
before the Investigating Officer during investigation. It appears
that something happened after 27.08.2004, after deposition of the
aforesaid two witnesses were over. At this stage it is to be noted
that accused persons are also relatives of aforesaid two witnesses.
Original accused No.1 ? Amarsing Mahida is the maternal uncle
(mama) of the aforesaid two witnesses. It is equally true that the
deceased was their father. However, it appears that they choose to
be with the living persons rather than dead persons and not with the
real truth. Defence gave application at Exh.40 on 04.11.2004
requesting the learned trial Court to recall the aforesaid two
witnesses by submitting that through oversight certain questions to
prove contradiction in the complaint by PW-1 and deposition are not
asked; question to prove contradictions of the statement of PW-2 and
deposition are not asked and therefore, with a view to prove
contradictions in the police statements and deposition and complaint
and deposition of PW-1, it was requested to recall the aforesaid two
witnesses. Learned trial Court without realizing hard reality
mechanically accepted the said application immediately and passed
order to recall the aforesaid two witnesses. Aforesaid two witnesses
came to be cross examined by the defence on 19.11.2004; exactly that
has happened what was in the mind of the accused persons and the
defence and the aforesaid two witnesses. Aforesaid two witnesses
deposed just contrary to what was stated by them earlier on
09.08.2004 and 27.08.2004 respectively and deposed just contrary to
what was stated by PW-1 in the complaint as well as statements before
the police. PW-2 also came to be cross examined on 19.11.2004
pursuant to the order passed below Exh.40 and he also on subsequent
cross examination deposed just contrary to what was stated by him
before the police and just contrary to what was stated by him during
his cross examination on 27.08.2004. They have stated that they were
not present at the time of incident and they had been to sister’s
village ? Kanjeri and returned at about 7.30 p.m. At that time they
came to know that their father was injured and came to know from
others that their father had fallen down on Otli and sustained
injury. Relying upon the cross examination recorded on 19.11.2004
after aforesaid two witnesses came to be recalled, the learned trial
Court has acquitted the accused persons. It is required to be noted
at this stage that it is not the case of any of the accused in their
statement recorded under Section 313 that deceased sustained injury
by falling down on Otli. For the first time aforesaid two witnesses
i.e. PW-1 and PW-2 stated in further cross examination (after they
were recalled) that their father sustained injury by falling down on
Otli.
12. As
observed by the Hon’ble Supreme Court in the case of Zahira
Habibulla Sheikh (5) and Anr. (supra) ?Switnesses’
as Bentham said : are the eyes and ears of justice. If the witness
himself is incapacitated from acting as eyes and ears of justice, the
trial gets putrefied and paralysed, and it no longer can constitute a
fair trial. The incapacitation may be due to several factors, like
the witness being not in a position for reasons beyond control to
speak the truth in the court or due to negligence or ignorance or
some corrupt collusion. Time has become ripe to act on account of
numerous experiences faced by the courts on account of frequent
turning of witnesses as hostile, either due to threats, coercion,
lures and monetary considerations.?? It
is further observed by the Hon’ble Supreme Court that
?Sright from the inception of the judicial system it has been
accepted that discovery, vindication and establishment of truth are
the main purposes underlying the existence of the courts of justice.??
It is further observed that ?Sthe concept of fair trial
entails familiar triangulation of interests of the accused, the
victim and the society and it is the community that acts through the
State and prosecuting agencies. Interest of society is not to
be treated completely with disdain and as persona non grata.??
It is observed that ?Sit has to be unmistakably understood
that a trial which is primarily aimed at ascertaining the truth has
to be fair to all concerned. It will not be correct to say
that it is only the accused who must be fairly dealt with.??
As observed that ?Sit would be turning a Nelson’s eye to the
needs of society at large and the victims.?? It is observed
that the Courts have vital role to play. Cause of the community
deserves equal treatment at the hands of the courts in discharge of
its judicial function. It is emphasized in catena of decisions that
in a criminal case the fate of the proceedings cannot always be
left entirely in the hands of the parties, crime being public wrong
in breach and violation of public rights and duties, which affects
the whole community as a community and is harmful to society in
general. Dealing with the role of Presiding Judge, in a criminal
trial, the Hon’ble Supreme Court in the said decision has observed
that the the purpose and role of the Presiding Judge in a criminal
trial is discovery, vindication and establishment of truth and
therefore, trial should be a search for the truth and not a bout over
technicalities. Presiding Officer must cease to be a
spectator and a mere recording machine. He must become a participant
in the trial evincing intelligence, active interest and elicit all
relevant materials necessary for reaching the correct conclusion to
find out truth and administer justice with fairness and impartiality
both to the parties and to the community.
13. Complete
ignorance on the part of learned trial Judge of basic principle of
criminal law and criminal justice system has resulted in gross
failure of justice affecting the society at large. Forgetting all the
statues, and law to conduct criminal trial and dispensation of
criminal justice system the judgment impugned on face of it appears
to be mere opinion of individual as if arbitrating small dispute of
private individual. More
than century old criminal justice system structure of our country is
standing erect today because of faith of the people in justice system
and expectation of ordinary citizens from the trial Courts at least
to discern truth and extricate falsehood ultimately to establish law
and order in society. System of adducing
evidence by the parties and rules to appreciate such evidence is a
system evolved to extract truth, even if it is coted
by grave falsehood. If such an endeavour on the part of linchpin link
i.e. trial Court to search for truth is jettisoned overboard, law
lessness society could be the only result. While considering a
criminal case, the Court cannot resort to conjunctures and must not
abandon laborious exercise
to find out the truth, but must examine carefully the legal material
placed before it in order to find that the offence with which the
accused is charged has been made out by such material and then come
to its own conclusion. Ring of truth in the evidence adduced, if any,
must be found out having regard to the evidence as a whole and the
general tenor of the prosecution case. Direct evidence of witnesses
should not be brushed aside in any circumstances unless such evidence
renders the whole of the prosecution case improbable by the standard
of prudence of the ordinary person. It is the prime function of the
criminal Courts to separate the grain from the chaff and accept what
appears to be true and reject the rest. Therefore, the criminal
Courts have to do their best in the trials before them and it is
their duty to shift the evidence carefully and decide which part of
each is true and which is not. Total repulsion of the evidence, in
cases like one on hand is doing injustice to the society as a whole
especially when scheming parties before the Court attempt to defraud
the Courts of justice for their selfish purposes. To keep the
fountain of justice pure, it becomes pious duty of a criminal Court
to consider the evidence from the point of view of trustworthiness,
if this element is satisfied this must inspire confidence in the mind
of the Court to accept the stated evidence. It is known principle of
criminal law that falsus in uno, falsus in omni bus is not
applicable to our criminal justice system. The witnesses may
embroider prosecution case and attempt to spoil the very object of
criminal trial but instead of being conducive to this mischief,
criminal Courts must apprise itself in each case as to what extent
the evidence is worthy of acceptance and merely because in some
respect falsity deliberately created is found and when it does not
affect the substratum of the
prosecution case, and such falsity is brought for only purpose of
thwarting the course of justice, the same must be treaded upon. Only
because witnesses have resiled from
the statement earlier given and thus, attempts to divert the path of
justice, it must not necessarily follow as a matter of law that the
evidence of such witnesses must be discarded in all respect which is
done by the trial Court. Even if a major portion of the evidence is
found to be deficient and in a given case residue is sufficient to
prove guilt of an accused conviction must follow and, therefore, it
is said that it is the duty of the Court to separate the grain from
chaff because Judge does not preside over a criminal trial merely to
see that no innocent man is punished but a Judge also presides to see
that a guilty man does not escape and both are public duties. We have
examined that how failure of justice has occasioned in the present
case and how pervert is the judgment and order impugned.
14. Looking
to the facts of the case on hand and evidence on record and looking
to the judgment and order of acquittal passed by the learned trial
Court, it appears that the learned trial Court has turned blind eye
and has failed to perform its duty as a Presiding Judge to reach to
the truth. Though there was ample material and/or evidence on record
such as evidence of Dr.Vipul Shah, Head Constable ? Jasonsing
Ratansingh who recorded the complaint at Exh.11 and evidence of
Investigating Officer, learned trial Court has not considered, dealt
with and discussed the same at all and on the contrary relying upon
subsequent cross examination of PW-1 and PW-2 who were recalled, has
acquitted the accused persons by observing that witnesses have not
supported the prosecution. As stated above, it is to be noted that
the concerned Presiding Judge has specifically observed and held that
prosecution has proved the statements of the witnesses recorded
during investigation by examining Investigating Officer in the Court
and they are proved in the Court, still the learned Judge has
acquitted the accused persons. It appears to us that even the
deposition of witness ? PW-1 and PW-2 recorded prior to they were
recalled were sufficient to convict the accused persons. Said
depositions are required to be considered along with deposition of
other witnesses i.e. Head constable who recorded the complaint as
well as the Investigating Officer who recorded the statements during
the investigation and which are proved in the Court. The learned
Judge ought not to have given weightage to that part of the evidence
(cross examination) which was recorded after they were recalled. In
the present case PW-1 was examined by the prosecution as eye-witness
on 06.07.2004. He was cross examined at length on 09.08.2004 and was
discharged. He was subjected to lengthy cross examination but nothing
could be elicited to discredit the examination-in-chief. He was
recalled as witness at the instance of defence subsequently on
19.11.2004 and he resiled completely from the previous statements as
prosecution witness. Similar thing happened to PW-2. He was examined
by the prosecution as eye-witness on 27.08.2004. He was subjected to
lengthy cross examination but nothing could be elicited to discredit
the examination-in-chief and he fully supported the prosecution case.
Thus both PW-1 and PW-2 who were eye-witness fully supported the
prosecution case and they stick to what was stated by them in the
complaint as well as in their statement recorded during
investigation. That thereafter, they were recalled pursuant to the
order passed by the Presiding Judge on the application submitted by
the defence to prove contradiction; they resiled completely from
their previous statement and their deposition on oath. It therefore,
clears appears that subsequent statement in the cross examination
were concoated and were afterthougth. It appears that they were
either won over or were under threat or intimidation from the
accused. It is required to be noted at this stage that the accused
persons are relatives of the aforesaid two witnesses staying in same
faliya. No reasonable person, properly instructed in law, would have
acted upon such statements. Still the learned trial Judge has
acquitted the respondents ? accused relying upon the subsequent
deposition (cross examination after they were recalled). It appears
that submission of the application to recall PW-1 and PW-2 was
clearly for the purpose of defeating the ends of justice which is not
permissible under law. It is required to be noted at this stage that
the application at Exh.40 to recall aforesaid two witnesses was to
prove contradictions between the complaint and statement before the
police and deposition so far as PW-1 is concerned and to prove
contractions in statement before the police and deposition so far as
PW-2 is concerned. However, looking to the further cross examination
of the aforesaid two witnesses after they were called and the
question asked it appears that not a single question is asked by the
defence to prove contradictions for which they were recalled. It
appears that it was clearly for the purpose of defeating the ends of
justice. Identical question came to be considered by the Hon’ble
Supreme Court in the case of Badri Yadav and Anr.(supra)
and faced with similar situation the Hon’ble Supreme Court in a case
where High Court acquitted the respondents ? accused, quashing and
set aside the conviction of the trial Court relying upon the
subsequent submission of the witnesses after they were recalled, the
Hon’ble Supreme Court quashed and set aside the acquittal order
passed by the High Court and convicted the accused persons by
observing that the High Court should not have and ought not have
relied upon the subsequent deposition of the witnesses recorded after
they were recalled when they earlier fully supported the prosecution
case.
15. In
the result, considering the above circumstances and re-appreciating
the evidence and reasonable probabilities arising out of the
circumstances of the case which we have carefully considered, we are
satisfied that the judgment and order impugned in this appeal is
required to be set aside. Now, it is required to be examined for what
offence accused or each of the accused is guilty. The accused were
charged with offences punishable under Sections 302, 307, 323, 504 to
r/w. Section 114 of the Indian Penal Code. It is the allegation
against the accused that accused No.1 Amarsinh Rupsinh gave a spade
blow on the head of the deceased due to which deceased Bhikhabhai
died and accused No.2 Dhanaben and accused No.3 Lilaben both abetted
accused No.1 in the above act and also gave kick and fist blows to
the deceased. It is also the allegation against the accused that all
the three gave abuses to the deceased. From the evidence of P.W.1,
P.W.2 and the deposition of the other witnesses i.e. Dr.Vipul Shah,
Investigating Officer and other circumstances, it is proved beyond
doubt that accused No.1 ? Amarsinh gave a spade blow on the head of
the deceased Bhikhabhai. It is necessary, therefore, to examine the
incident as it is proved. It is the case of the prosecution that
during altercation, accused No.1 obtained spade from nearby and gave
blow on the head of the deceased. It is amply proved through the
evidence of Dr.Vipul Shah, P.W.3, Ex.16 that the injury on the head
of the deceased which is vital part of the body was sufficient in
ordinary course of nature to cause death. It is amply proved that
accused No.1 Amarsinh was author of the said injury. Therefore, the
act proved on the part of the accused No.1 ? Amarsinh is an act
done with the intention of causing bodily injury sufficient in the
ordinary course of nature to cause death. Therefore, the act of
accused No.1 ? Amarsinh is amply covered by the clause thirdly of
Section 300 of the Indian Penal Code i.e. culpable homicide
amounting to murder. The intention to inflict such bodily injury
sufficient in the ordinary course of nature to cause death is clearly
emerges from the evidence recorded during the trial on the part of
accused No.1. Spade is an agricultural instrument but when it is
used, as a weapon certainly spade becomes deadly weapon especially
when a blow is given on vital part of body like head. It is amply
proved that death was caused on account of this injury. It is also
proved from the record that accused No.1 ? Amarsinh fetched spade
lying nearby and gave a fetal blow on the vital part of body denoting
his intention to cause murder of deceased Bhikhabhai and, therefore,
accused No.1 is held guilty for causing murder of deceased Bhikhabhai
and is liable to be punished for the offence punishable under Section
302 of the Indian Penal Code. It is also proved that accused No.1 ?
Amarsinh gave the abuses to the deceased and, therefore, he is also
liable to be punished for the offence punishable under Section 504 of
the Indian Penal Code.
16. Now
we have to examine as to whether accused No.2 and 3 abetted the act
of accused No.1 causing murder of deceased Bhikhabhai. When we refer
to evidence of P.W.1 and P.W.2, it appears that all the three accused
along with one person Akbar had been to their house and the accused
were insisting to bring out Bhimsing who happened to be husband of
accused No.3 ? Lilaben and was in the house of deceased. Therefore,
from the evidence of P.W.1 and P.W.2, it clearly appears that there
was neither common intention on the part of the accused No.2 ?
Dhanaben or accused No.3 ? Lilaben along with accused No.1 to cause
murder of deceased Bhikhabhai. If the incident is further probed, it
transpires from the evidence of the P.W.2 that accused No.1 ?
Amarsinh stated to the deceased that Bhimsing was harboring
suspicion about her daughter Lilaben and, therefore, altercation took
place. Now during this altercation, however, accused No.1 ?
Amarsinh went nearby in the house of one Balvantsinh and from menger
of the house fetched spade and gave a blow to the deceased. This
proved fact discloses that killing deceased was individual act of
accused No.1 and the said act was not abetted by accused No.2 and 3,
no willful overt act on the part of accused No.2 and 3 or any
conspiracy or instigation, surfaces from the evidence recorded during
trial and, therefore, accused No.2 and 3 are held guilty for the
offences punishable under Sections 323 and 504 of the Indian Penal
Code as from the record it is proved that accused No.2 and 3 gave
kick and fist blows to the deceased and gave abuses. The act of
accused No.2 and 3 was individual of the act of accused No.1 and,
therefore, accused No.2 or 3 could not be held liable for the charge
under Section 302 to r/w. Section 114 of the Indian Penal Code and to
that extent only acquittal of these two accused is confirmed that
they are not held guilty under Section 302 of the Indian Penal Code,
but they are held guilty for the offences punishable under Sections
323 and 504 of the Indian Penal Code for their respective individual
act.
17. For
the aforestated reasons, this appeal succeeds and allowed and the
judgment and order impugned dated 04.03.2005 passed by the learned
Presiding Officer, 3rd Fast Track Court, Nadiad in
Sessions Case No.260/2002 acquitting the present respondents No.1, 2
and 3 ? original accused No.1, 2 and 3 of all charges levelled
against them is hereby quashed and set aside. The respondent No.1,
herein ? original accused No.1 is held guilty for the offences
punishable under Section 302 of the Indian Penal Code and under
Section 504 of the Indian Penal Code. Accused No.1 is sentenced to
undergo imprisonment for life and to pay fine of Rs.10,000/- [Rupees
Ten Thousand Only], in default, to undergo rigorous imprisonment of
one year. No separate sentence is awarded to accused No.1 for charge
of Section 504 of Indian Penal Code proved against him. The
respondents No.2 and 3, herein ? original accused No.2 and 3 are
held guilty for the offences punishable under Sections 323 and 504 of
the Indian Penal Code and each of accused No.2 and 3 are sentenced to
undergo one year rigorous imprisonment for each of the offence under
Sections 323 and 504 of the Indian Penal Code. The sentences awarded
to accused No.2 and 3 shall run concurrently. The acquittal of
accused No.2 and 3 in respect of rest of the charges including the
charge under Section 302 of the Indian Penal Code is confirmed. Time
to all the three accused to surrender before the trial Court for
serving sentences imposed upon accused No.1, 2 and 3 is granted to
accused No.1, 2 and 3 till 14.07.2008.
18. So
far as revision application No.55 of 2008 is concerned, the same is
registered pursuant to the order passed by this Bench dated
17.12.2007 wherein the respondents in the revision application and
P.W.No.1- Takhatsinh Bhikhabhai Mahida and P.W.No.2-Chhatrasinh
Bhikhabhai Mahida were directed to show cause as to why the
appropriate proceedings against them should not be initiated. The
aforesaid order came to be passed by this Bench considering the fact
that there were contradictory version of the aforesaid two witnesses;
one at the time of examination-in-chief and cross-examination prior
to the order passed below Exh.40 and subsequent to the order passed
below Exh.40 and having found that they have given a false evidence
on oath.
19. As
stated hereinabove and considering the record which is received from
the trial court more particularly considering the deposition of the
aforesaid two witnesses P.W.No.1 Takhatsinh Bhikhabhai Mahida and
P.W.No.2 Chhatrasinh Bhikhabhai Mahida who came to be examined at
Exh.10 and Exh.14 it is found that the deposition of P.W.No.1
Takhatsinh Bhikhabhai Mahida came to be recorded at Exh.10 which was
concluded on 9.8.2004 and the cross-examination of the said witness
was also over on 9.8.2004. The said witness P.W.No.1 Takhatsinh
Bhikhabhai Mahida fully supported the case of the prosecution.
Similarly, the deposition of P.W.No.2 Chhatrasinh Bhikhabhai Mahida
was also concluded on 27.8.2004 and his cross-examination was also
over on 27.8.2004 and he also fully supported the prosecution case.
However, subsequently, after the period of almost three months the
defence gave an application at Eh.40 on 4.11.2004 before the trial
court requesting to recall the aforesaid two witnesses with a view to
prove the contradictions in the complaint, deposition as well as
contradiction in the statement of P.W.No.2 and his deposition. The
learned Judge granted the said application mechanically on the very
day and on 19.11.2004 both the aforesaid two witnesses who earlier
fully supported the case of the prosecution as well as proved what
they have stated before the police as well as in the complaint, came
to be further cross-examined by the defence and it appears that the
defence had not asked any question to prove the contradictions for
which they were recalled. However, surprisingly both the aforesaid
two witnesses turned hostile and they deposed on oath just contrary
to what was deposed by them in examination in chief and earlier
cross-examination recorded on 9.8.2004 and 27.8.2004 respectively.
Both the aforesaid two witnesses for the reasons best known came out
with a story with respect to injury sustained by the deceased by
falling down on Otli which was not even the case of the defence and
the accused.
20. Considering
the above and having satisfied that both the aforesaid two witnesses
respondents in the revision application had given the false evidences
on oath, notices came to be issued upon the aforesaid two witnesses
and it was decided by the court to try them summarily considering
Section 344 of the Code of Criminal Procedure. The Court gave them
opportunity as provided under Section 262 read with Section 344 of
the Cr.P.C. and their statements on oath came to be recorded before
the Court. Attention of P.W.No.2 Chhatrasinh Bhikhabhai Mahida was
drawn to his entire deposition i.e. deposition prior to the order
passed below Exh.40 and his deposition after the order passed below
Exh.40 to recall him, and on considering the same, he has stated
before the Court that he does not want to give any further
explanation with regard to false evidence given by him on oath and he
admits having committed the offense of giving false evidence on
oath. So far as P.W.No.1 Takhatsinh Bhikhabhai Mahida is concerned,
his statement came to be recorded by this Court and his attention
was also drawn to his entire deposition i.e. deposition prior to
order passed below Exh.40 and his deposition after the order passed
below Exh.40 and he has stated before the Court that he does not want
to say anything further except that a settlement is arrived at
between the parties and he does not admit having committed any
offense with respect to giving false evidence.
21. Considering
the aforesaid two statements recorded by this Court after the
respondents were called upon to show-cause as to why they not be
punished for giving false evidences and the chronological events
which had taken place which is noted hereinabove, it appears that
till 29.8.2004 both the aforesaid two witnesses respondents in
revision application fully supported the prosecution case and
whatever they have said in the complaint as well as statements before
the police during the investigation P.W.No.1 Takhatsinh Bhikhabhai
Mahida is the original complainant and son of the deceased. It
appears that after 29.8.2004 a settlement has taken place which had
compelled the aforesaid two witnesses to turn hostile and say
something just contrary to what they have stated earlier and the
trial court acquitted the accused considering the subsequent
deposition of the aforesaid two witnesses.
22. Learned
advocate appearing on behalf of the respondents the aforesaid two
witnesses has not stated anything on merits of the case. However, he
has submitted that if this Court is of the view that the aforesaid
two witnesses have committed any offense giving false evidence on
oath before the court in that case the fully remedy available is to
initiate the proceedings for the offences under Section 193 of the
Indian Penal Code, and to comply with the procedure under Section 195
of the Cr.P.C., read with Section 340 of the Cr.P.C. No other
submissions have been made by the learned advocate appearing on
behalf of the respondents aforesaid two witnesses.
23. We
have considered the matter in detail and after giving anxious thought
and considering Sec.344 of the Cr.P.C., we have decided to try the
respondents in the revision application the aforesaid two witnesses
summarily for giving false evidences on oath and have given the
offenders reasonable opportunity of showing the cause why they should
not be punished for giving false evidence with the intention that
such evidence will be used in the criminal proceedings. We are
satisfied and even P.W.No.2 Chhatrasinh Bhikhabhai Mahida has
admitted that he has committed offence of giving false evidence on
oath. So far as P.W.No.1 Takhatsinh Bhikhabhai Mahida is concerned,
though he has not admitted that he has committed the offence of
giving false evidence in the criminal proceedings, but he has also
stated in his statement that a settlement has arrived at between the
parties. Thus, it appears that because of some settlement arrived at
between the parties, the aforesaid two witnesses turned hostile and
stated on oath just contrary what they have stated earlier on oath
while deposing prior to the order passed below Exh.40. It appears
that as some settlement had taken place, the defence gave an
application Exh.40 to recall the aforesaid two witnesses under the
guise of proving the contradiction, and thereafter the aforesaid two
witnesses have turned hostile and have deposed on oath just contrary
what they have stated earlier on oath. It cannot be disputed that
crime is a public wrong which affects the whole community and is
harmful to the society general. The fate of the criminal proceedings
cannot be left entirely in the hands of the parties. The outcome of
the criminal trial cannot be permitted to be in the hands of the
parties. In the recent days the incidence of witnesses being turned
hostile have increased day by day and thereby putting an end to the
criminal proceedings by acquitting the accused persons by the trial
courts without making any further efforts to find out the truth and
punish the guilty. There may be number of reasons for the witness to
turn hostile such as threats, coercion or surrounding social
circumstances etc. As stated hereinabove, the endeavour of the
Court in the criminal proceedings is to find out real truth and
punish the guilty as the crime is against the society. If such
hostile witnesses are permitted to play an important role in the
criminal proceedings, the faith of the citizen in the criminal
delivering justice will be shaken. It is experienced by this Court
that in spite of the fact that the trial court comes across so many
cases that the witnesses have turned hostile, without further making
any efforts to reach the truth and in a race to dispose of the case
hurriedly acquits the accused. Whenever it is found that any witness
has turned hostile (more particularly the witness who is the relative
or interested witness) and has stated something just contrary to what
he has stated in the complaint or statement before the police, the
trial court must become cautious and if it is found that the witness
has given false evidence on oath they must be dealt with strictly and
with iron hand. A settlement entered into after the commission of an
offense is no ground for the witness to turn hostile and give a false
evidence on oath to save the accused. He can also be said to be
equally guilty and such witness should be dealt with strictly.
24. Considering
the above and the entire evidence and the deposition of the aforesaid
two witnesses-respondents in Criminal Revision Application and the
statements given by them before this Court in the present revision
application, we are satisfied that both the respondents aforesaid two
witnesses are guilty of the offense of perjury i.e. giving false
evidence on oath before the Court in a criminal proceedings only with
a view to facilitate the accused persons.
25. It
is required to be noted at this stage that both the respondents in
the revision application and the aforesaid two witnesses are the real
sons of the deceased who has been murdered by the accused. P.W.No.1
Takhatsinh Bhikhabhai Mahida is the complainant and still as the
settlement has taken place he has turned hostile and has given false
evidence on oath to save the accused who has killed his own father.
It appears that for whatever be the reason the aforesaid two
witnesses chosen to be with the accused rather than to be with the
truth and their deceased father. Considering the above, we are of
the considered opinion that both the respondents in revision
application must be dealt with strictly.
26. For
the reasons stated above, the revision application is allowed. The
respondents in revision application i.e. P.W.No.1 Takhatsinh
Bhikabhai Mahida and P.W.No.2 Chhatrasinh Bhikhabhai Mahida are held
guilty for the offences of perjury for giving false evidence on oath
in a criminal proceedings, and considering Section 344 of the Code of
Criminal Procedure, both of them are directed to undergo rigorous
imprisonment of two months with fine of Rs.500/, and in default, to
undergo 15 days further imprisonment. Time to surrender is granted up
to 14th July, 2008. Rule is made absolute accordingly so
far as Revision Application No.55 of 2008 is concerned.
[J.R.VORA,J.]
[M.R.SHAH,J.]
satish
/ syed
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