JUDGMENT
K.J. Vaidya, J.
1. This appeal by the State of Gujarat is directed against the impugned judgment and order dated 26-3-1984, rendered in Sessions Case No. 25 of 1984, by the learned Additional Sessions Judge, Kheda at Nadiad, wherein the respondent-Balubhai Madhabhai Zala. who came to be tried for the alleged offence punishable under Section 302 of I.P.C., was at the end of the trial ordered to be acquitted.
2. According to the. prosecution, the accused-Balubhai Madhabhai Zala was residing jointly along with his two brothers viz., (1) Udesing Madhabhai (deceased), and (2) Popatbhai Madhabhai, in Village-Parabia. The incident in question wherein Udesing was axed to death by giving him successive blows on his head by the accused, took place in the house itself on 13-11-1984 at 4.00 p.m. This incident is alleged to have been seen by three eyewitnesses viz., (I) Shardabcn Udesing (PW-1, Exh-17); (2) Vinuben Popatbhai (PW-3 Exh-19); and (3) Mansing Jenaji (PW-4, Exh-22), who happens to be the Police Patel of village. It is further, the case of the prosecution that on information being received by Mansing Jenaji from some boys of the street that the accused and his brother Udesing were quarrelling in their house, he rushed to the scene of the incident and when he was at the distance of about 20 paces, he saw the accused armed with an axe giving blows to Udesing on the head. According to the Police Patel, both Sharda wife of injured Udesing and Vinuben were present near the injured Udesing. Udesing on receiving the injuries at the hands of the accused immediately fell down profusely bleeding from the head, whereupon Police Patel caught accused Balubhai red-handed and took to ‘Chora (prominent place in the village) where the complaint was noted in the Occurrence Book. Thereafter the accused was taken to Balasirior Police Station, where FIR Exh-25 for the alleged offence under Section 302 of the I.P.C. came to be recorded by PSI P.M. Solanki (PW-5, Exh-24). On the basis of the said FIR, after the investigation was over, the respondent came to be charge sheeted for the aforesaid alleged offence to stand trial before the Sessions Court at Nadiad.
3. At trial, the respondent pleaded not guilty and claimed to be tried, and was ultimately acquitted on the ground that the prosecution failed to prove it seas beyond doubt, giving rise to the present appeal by the State of Gujarat.
4. Now, having gone through the entire prosecution evidence as well as the reasons for acquittal given by the trial Court, it may be stated at the very outset that order of acquittal is on face of it is patently perverse’ deserving quashing and setting aside the same, further warranting immediate order of conviction and sentence under Section 302 of the Indian Penal Code. When we say so, we are indeed quite conscious of the fact that the appeal we are dealing with is an acquittal appeal, and for that purpose the guidelines laid down by way of ‘Rule of Prudence’ and the same time and again reiterated by the Supreme Court arc required to be kept in forefront while re appreciating the evidence before reversing the order of acquittal. To cite one such authority on the point-in case of. Awadesh v. The State of Madhya Pradesh, reported in AIR 1989 SC, p-1158, the Supreme Court has observed as under:-
“Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a ‘Rule of Prudence’, the High Court should always give proper weight and consideration in matters e.g. (i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused; (iii) the right of the accused to the benefit of any doubt and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had, the advantage of seeing the witnesses. If on appraisal, of the evidence and on considering relevant attending circumstances, it is found that two views, are possible, one as held by the trial Court for acquit in the accused, and the other for convicting the accused in such a situation, rule of prudence should guide the High Court riot to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial Court drawn on the evidence on record are found to be unreasonable, perverse, or unsustainable, the High Court should not interfere with the order of acquittal.”
5. Bearing in mind the aforesaid guiding principles of ‘Rule of Prudence’ we now proceed to appreciate those reasons on the basis of which the impugned order of acquittal came to be passed by the trial Court. They are : (1) Shardaben (PW-1, Exh-17) and Vinuben Popatbhai (PW-3, Exh-19) who at the social stage claimed themselves to be the eye witness. by volunteering the police statement alleging the involvement of the accused in committing murder of Udesing, have not supported the prosecution before the Court. This situation knocks down the bottom of the prosecution case; (2) that the evidence of the Police, Patel – Mansing Jenaji (PW-4, Exh-22) cannot be relied upon. Firstly, because two lady initiates of the house particularly Shardaben who happens to be the widow of deceased Udesing did not support the prosecution, secondly, because the medical evidence clearly falsifies him, thirdly, because though near the place of scene of offence, admittedly, there arc number of houses in the neighbor hood and therefore, though the independent persons residing nearby who in very nature of things either on hearing the quarrel earlier or thereafter the alleged incident taking place must have rushed to the scene of offence and tried to intervene or seen the accused with weapons standing near by the injured or seeing them running away, and if not all these at least would have been informed by the inmates of the house as to how the incident look place, who indeed was the real assailant, and where he had gone, etc. etc., are for whatever reasons, not examined before the Court. Fourthly, because Ravania who at the initial stage accompanied the Police Patel has not been examined before the Court.
6. Now, none of the aforesaid reasons for acquittal when closely scrutinised has any substance worth the name to sustain the impugned order of acquittal. Rather to put it positively, they are ‘patently perverse’ as could be seen from the re-appreciation of evidence that follows.
6.1. To start with the aforesaid first reason of acquittal, it is indeed quite true that Shardaben and Vinuben who were inmates of the house and close relatives of the deceased have not chosen to support the prosecution, but this circumstance standing by itself is not at all sufficient to cloud and over shadow otherwise quite dependable evidence of the Police Patel Mansing Jenaji whose sterling evidence standing on its own strength cannot be doubted. It should not be forgotten that Mansing Jenaji being the Police Patel of the village was entrusted with the duty to attend such offences immediately. Accordingly, in very nature to things when any quarrel, breach of peace and some such other offences take place in the village, he was the first and best person to being formed and in turn, it was his duty to immediately rush to the scene of occurrence and do the need full. Now, this Police Patel on being informed about the quarrel between the brothers, not only immediately rushed to the scene of offence and saw the accused giving axe blows to his brother Udesing but in fat the had also caught him red-handed on the spot and thereafter produced him before the Police immediately filing FIR Exh-25 against him and was arrested. In fact, in such type of cases where murder of any person take place at the hands of some family members, close relatives despite whatever be their earlier police statement involving the accused with the crime, when they actually come before the Court to give evidence, in the very nature of things, many a times, it is noticed that they just do not support the prosecution and love to desert it to be declared hostile. The reason for such hostile attitude of the relative prosecution witness is indeed not difficult and far to seek. Rather, in such tricky circumstances, quite embarrassing situation arises for such relative prosecution witnesses. They first of all know that because of the murder one member of the family was already dead and lost and if they were to give evidence against the accused who was also relative(in the present case brother-in-law) and if he on the basis of their evidence was to be ultimately convicted under Section 302 of the Indian Penal Code, and sentenced to life, it would be still further a loss to the family ! Thus, by giving honest and truthful account before the Court which was their earlier version before the Police, not only the accused would be lost to the family but the same may as well in its turn also boomerang upon such witnesses, the most vulnerable situation creating excruciating economic problem and crisis arising there from for surviving (witness) member of the family! Accordingly, in the case also, in very nature of things, what else indeed Shardaben; widow of deceased Udesing could have done except to turn hostile and remain friendly with the future. By the time, she gave evidence before the Court, Shardaben had already lost her husband and was rendered totally destitute with the liability to maintain and rear up the minor children and the dark devouring future staring right in her eyes! She under the weakest moment of her life, reeling and shuddering under the gripping fear complex, if yielded to the ordinary human weakness/pragmatism of bowing to unavoidable and inevitable situation, there is indeed nothing which should surprise any Court, if such a witness turn shostile to the prosecution and give evidence in a way which may not at least create future problem of bread, butter and shelter for herself and her children! The husband was already lost. A matter of past no more in existence! Rest of the challenging life, that is the future was yet to be lived and if anyone whom she can look up for assistance, that would be the only family member of whom the accused was also one of the member rather eldest member! Similarly, Vinuben, Popatbhai, yet another dependent-lady would hardly dare to raise her voice by giving the honest, truthful version before the Court against the accused who was the head of the family. Thus, under such unfriendly and hostile circumstances, where the vision, wisdom and the future of any person is surrounded by the ominous dark clouds, any witness for that purpose, under the suffocating pressure would obviously become to the prosecution. Accordingly, the trial Court if acquits the accused merely because near and dear one do not support the prosecution, ignoring altogether other dependable piece of evidence available on the record, to that extent, appreciation of the evidence becoming patently defective was likely to result into miscarriage of justice. The vortex of embarrassing situation in which Bai Shardaben and Vinuben were unfortunately caught and placed, is indeed simply unbearable and breaking enough for any truthful witness to withstand while in witness-box and under such grilling situation, unless they turn-coat and become hostile to the prosecution, they will not be in a position to avoid and save themselves from the hostile future ! Once again when such is the pointblank, trying situation for any witness and they turn hostile, the same cannot be given any undue weight in favour of the accused merely because they did not support the prosecution. In fact, in such type of cases, the peculiar circumstance of the family members surprisingly turning hostile to the prosecution, in a way, in a given case, indirectly lends corroboration to the prosecution case to the effect that it was the accused and accused alone who had committed the alleged offences otherwise why indeed should such witnesses give their statement against the accused before the police (?) unless of course something is specifically alleged, brought out from there cord and probabilized that the Investigating Agency with some ulterior motive had some definite axe to grind to deliberately create false statement of the family members to implicate the innocent accused. In other words, turning hostile of one set of the family member/witness by itself cannot be permitted to destroy the other set of dependable prosecution evidence which is otherwise sufficient enough to hold the accused guilty for the offence alleged against him. In this view of the matter, in the instant ease also, merely because Shardaben and Vinuben did not support the prosecution that by itself can not be permitted to cloud the judicial vision from having correct perspective from other dependable piece of evidence connecting accused with the crime alleged against him ! Hence, this ground of acquittal being totally untenable falls flat to attach any importance.
6.2 Now this takes us to second ground for acquittal wherein the evidence of Police Patel came to be discarded branding him unreliable on four sub counts stated in detail above. Now so far as the first count viz., because the lady inmates of the house particularly Shardaben widow of the deceased did not support the prosecution, the evidence of Mansing Jenaji becomes doubtful, since the same is duly dealt with in aforesaid paragraph, it is not necessary to repeat the same. However, it may further be added that ordinarily the evidence of the prosecution witness either stands or falls depending upon its own inherent, intrinsic strength or weakness which it contains. If the evidence of the prosecution witness found to be in any way interested or motivated [of course after close scrutiny such evidence also can be accepted], suffers from any patent vices such as material contradiction or inconsistency or improbability going to the roots of the case, then in that case, evidence of such witness has got to be discarded but that is not the case here. So far as the Police Patel Mansing Jenaji is concerned, he has withstood the a fore said test certifying him to be quite dependable witness for the Court to safely base order of conviction and sentence. In fact (i) in the first instance if the evidence of the injured witness is duly corroborated by medical evidence on record; (ii) identity of the accused is not in doubt; (iii) further even in cases where the witness is not injured, but at the same time, if his presence at the time and place is found to be natural and cannot be doubted, (iv) his police statement is recorded without any inordinate delay; (v) incase of any delay, if there is a reasonable explanation available on record, and (vi) if further his evidence does not suffers from any of the patent vices pointed out hereinabove going to the root of the case, then the evidence of such witness can certainly be accepted even though other witnesses do not support the prosecution. For the purposes either of accepting or rejecting evidence of any witnesses, if the comparison of his evidence with other witness is introduced as a ‘touch stone’ to test the credibility of such a witness, the same in a given case was likely to mislead the Court in properly appreciating the evidence, as has been done in the instant case. There a son is, at times it becomes doubtful to a judge as to which of the witness is truthful. To assume that the particular witness is liar because his evidence is contrary to the evidence that of inmates/relatives of the house on the ground as to why indeed should inmates/relatives witness otherwise turn hostile to the prosecution is indeed quite a dangerous path/practice which every criminal court has to be very carefully steer-clear. In fact, the trial Court must of its own should go deep into the matter and reach the definite conclusion as to which of the witness in ultimate analysis is found to be honest, truthful and dependable applying the test of probability. If such in depth appreciation of witness evidence is not made on the lines discussed above, then what ever way the Court may otherwise appreciate it, the same is bound to be superfluous and cannot lead in the right justice. While appreciating the evidence, the Court is expected to go deep into the root of things, beings and the situations and is just not expected to decide on peripheral tentative appreciation which at first sight though gives a particular impression but on making in depth inquiry in ultimate analysis is found to be quite illusory. For example in the instant case, merely because the evidence of Shardaben and Vinuben whose statement, though came to be recorded immediately, has been given go bye and ultimately. Mansing whose evidence which is otherwise quite truthful and reliable has been discarded by the trial Court comparing the respective evidence on the touch-stone of the said two witnesses is something quite difficult to conceive. Such superfluous appreciation of evidence should carefully be avoided by the Court. In this view of the matter also, the trial court has committed an obvious error in rejecting the evidence of Police Patel on the ground that Shardaben widow of deceased and the alleged eye witness did not support the prosecution.
6.3 That takes us now to the second count on which the evidence of Police Patel. Mansing came to be discarded viz. Medical evidence falsified him. Now in order to appreciate this, it is first of all necessary to have a look at the evidence of Dr. C.R. Oza (PW-2. Exh-18) who noticed the following external and internal injuries on the person of Udesing.
External Injuries
1) An oblique incised wound 5 1/2 “x 1/2 “incised wound 51/2 “x 1/2 ” bone deep of the brain cut under nip the wound on the left parietal region of the head.
(2) An oblique incised wound 31/2 ” x 1/2 bone deep and brain under nip the wound on the left side of occipital region of the head 1/4 “below injury No. 1.
(3) An oblique incised wound 21/2 ” and 1/2″ bone cut on brain out under nip the wound on the left occipital region of the head left part I 1/2 “below injury No. 2
(4) An oblique incised wound 5 1/2 “and I” crushed under nip the wound on the left temporal region of the head 1/2″ above the left ear and I 1/2″below injury No. 1
Internal Injuries
(1) Underneath facia bone and brain out as per above four injuries.
(2) Fracture of left parietal bone 51/2″ of the skull.
(3) Fracture of left occipital bone 31/2″ in length.
(4) Fracture of left occipital bone 21/2″ at the back.
(5) Fracture of left temporal bone 4″ in pieces. At this stage, if we recall the evidence of Mansing Jenaji, he has right from the beginning stated that the accused gave four axe blows on the person of Udesing. How the aforesaid medical evidence to the said extent fully corroborates the evidence of Mansing Jenaji. In fact, on going through the examination-in-chief and cross-examination of Dr. Oza, there is indeed no ambiguity worth the name on the point so as to give cause for any suspicion and yet quite surprisingly at the fag end of the cross-examination, the learned Judge of his own has put certain questions in para-8 of the evidence of Mansing Jenaji who admitted that out of four blows given on the head of the deceased, three were horizontal and one was vertical. We have just seen a boy e the nature and direction of injuries on the person of Udesing, which clearly indicate that he had received four oblique incised wounds under the circumstances, there was no question of three blows being horizontal and one blow vertical. The position of the sign mark “/” (oblique) is neither horizontal nor vertical. In this view of the matter, it was indeed quite strange of the learned Judge to have misread the clear medical evidence on the record contradicting Mansing Jenaji and then on the basis of the same to give benefit to the accused saying that the medical evidence did not corroborate the evidence of Mansing Jenaji.
6.4 Turning to the third count, namely ‘though the independent witnesses were available, yet the prosecution failed to examine them, which surely weakens the credibility of the Police Patel, it may be stated that this approach of the learned trial judge in the facts and circumstances of this case, is totally misconceived. Firstly, because the questions and consequences of non-examination of independent witnesses from the locality would arise only and only if in the first instance, the evidence of the Mansing Jenaji was found to be little doubtful that is to say not wholly dependable, and therefore, in the second instance, to resolve the said lingering doubt, the Court feels that something more is indeed necessary by way of support from independent source of evidence before any definite conclusion about the guilt of the accused could be safely reached home beyond any manner of doubt such less the reasonable doubt. This is not the case here. Merely because Mansing Jenaji is a Police Patel that is hardly aground to discard his evidence more particularly when his evidence on close scrutiny is found to be quite trustworthy. For the reasons already stated in the foregoing paragraphs, Mansing has appealed to this Court as quite safe and reliable witness suffering from no infirmity which would require independent corroboration. It is true that some stray allegation is made in the cross-examination of Mansing that for some misbehavior he had scolded the accused, etc. but that standing by itself cannot help the accused. Further still even if the said allegation is believed to be true, the same is hardly a circumstance on the basis of which otherwise reliable evidence of. Mansing can be thrown over board. Thus, in a case where there is a convincing and reliable evidence, even of a solitary eye witness, mere non-examination of the independent witnesses, by itself cannot be permitted to necessarily doubt his evidence. To do so would be to shut eyes and ignore the available acceptable evidence on the record and detract the judicial vision to other aspect viz., of non-examination of the independent witnesses from the locality. Such an uncalled for confusion is required to be carefully avoided in order the injustice is not done to the concern witness before the Court. Secondly, incase of family disputes, quarrels, it is a matter of common knowledge that no third person ordinarily would like to dabble so as to invite wrath and displeasure of one of the side against whom he may say something. To do so, it would be just like “living in water with enmity towards crocodiles”. Thus, ordinarily, even if in a given case, the person knows some thing about the incident, he would like to keep distance from figuring as a witness. Thirdly, these days, the apathy, of the citizens to volunteer themselves as a witness in a criminal case is too well known to be mentioned. No doubt such an apathy on the part of citizen on the one hand manifestly does exhibit lack of civic sense and duty towards Society and Courts of law, but on the other hand if pragmatically examined, it is equally true that the sensible citizens the learning from bitter experience of life these days carefully prefer to avoid to figure as a witness [even if they were in a position to give evidence throwing light on the alleged incident connecting the accused with the crime], many a times with a view to avoid (1) “Police lafra” (Harassment); (2) enmity and wrath of the person who is booked as an accused person inviting trouble for himself and his family members; (3) being unnecessarily robbed of precious time, physical convenience and money, as it disturbs their other wise routine life as day-in and day-out because of frequent indiscreet adjournments of the cases and sudden lightening strike calls by the learned advocates etc., etc. the court working is paralysed. These and some such other hard facts of the life have got to be borne in mind and taken realistic stock and, therefore, judicial notice before condemning the prosecution for not examing the independent witnesses from area though available, etc., etc.
6.5 This takes us to the fourth and last count on which evidence of Mansing Jenaji came to be discarded namely – “that Ravania who at the initial stage accompanied Police Patel for filing FIR was not examined before the Court.” Now this count also likewise other previous three counts has no substance for the simple reason and to repeat the same, once we feel that the evidence of the Police Patel Mansing Jenaji was wholly trust-worthy and dependable, there is indeed no need to look any where for corroboration. Corroboration means support. It is too well-known that need for corroboration for accepting the evidence of any witness arises only and only when the Court is not wholly satisfied regarding the credibility of that particular witness. Accordingly, once the judicial mind and conscience is clear and satisfied enough as regard the truthfulness and genuineness of any particular witness, it is indeed not necessary to look for any corroboration. Mind well, corroboration is simply ‘rule of prudence’ and not the one of ‘rule of law’. It is entirely a matter of judicial discretion depending upon the facts and circumstances of that particular case wherein may or may not call in aid and dispense with the need for corroboration. In this view of the matter, this last and fourth count for rejecting the evidence of Mansing Jenaji has to be rejected as having any merits worth the name.
7. In view of the aforesaid discussion, it is indeed very clear that not only none of the grounds for acquittal given by the trial Court are in any way sustainable to maintain the order of acquittal but there a stoning adopted are too peripheral, lopsided, mechanical and without any honest efforts to find out the real truth. In fact, to briefly reproduce there a sons as to why we have found Police Patel Mansing Jenaji to be quite dependable to convict the respondent under Section 302 of the Indian Penal Code, it may be stated (i) that at the relevant point of lime, when he received the information from Ravaniya and boys, he was only at the distance of 100 paces from the scene of offence; (ii) when he actually reached the place of incident, he was hardly at distance of 20 paces from where he saw the accused giving axe blows on the head of Udesing; (iii) he caught hold of the accused red-handed on the spot;(iv) and immediately produced him before PSI Mr. Solanki ; (v) filed a complaint Exh. 25 also ; (vi)medical evidence fully corroborated his evidence as discussed above; (vii) nothing serious has been alleged against this witness in his cross-examination either by way of any relationship with the deceased or hostility towards the accused to concoct a false case to the extent of implicating him in commission of the serious offence punishable under Section 302 of the Indian Penal Code; (viii) muddamal weapon axe discovered by the accused is also found to be stained with the same blood viz., “A” group, which is the group of the deceased; (ix) blood stains found at the alleged place of the incident. In view of all these clinching circumstances, we have indeed not even the slightest of doubt in our mind that it was the accused and accused alone and none else who had committed murder of his younger brother Udesing. To over-look the above listed glaring circumstances and then to a quit the accused comparing his evidence with other hostile witnesses merely because they are relatives of the deceased is not only illegal and improper but the same per se is perverse way of looking at and appreciating evidence on the record. This requires to be corrected by reversing order of acquittal.
8. In view of the aforesaid discussion, the impugned judgment and order of acquittal being wholly unsustainable, the case shall have to be quashed and set aside.
9. In the result, this appeal is allowed. The impugned judgment and order of acquittal passed by the Sessions Court, Kaira at Nadiad is hereby ordered to be quashed and set aside. Respondent Balubhai Madhabhai Zala is hereby convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo RI for life.
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