{"id":221774,"date":"2008-06-16T00:00:00","date_gmt":"2008-06-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-facts-on-16-june-2008"},"modified":"2016-06-25T03:38:58","modified_gmt":"2016-06-24T22:08:58","slug":"state-vs-facts-on-16-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-facts-on-16-june-2008","title":{"rendered":"State vs Facts on 16 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Facts on 16 June, 2008<\/div>\n
Author: J.R.Vora,&Nbsp;Honourable Mr.Justice Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/2289\/2005\t 24\/ 51\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 2289 of 2005\n \n\nWith\n\n\n \n\nCRIMINAL\nREVISION APPLICATION No. 55 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.R.VORA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?    \n\t\t\t                Yes\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?   Yes\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?       \n\t\t\t                  No\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?                               No\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge?                        \n\t\t\t            No\n\t\t\n\t\n\n \n\n=========================================================\n\n\n \n\nSTATE\nOF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nAMARSING\nRUPSING MAHIDA & 2 - Opponent(s)\n \n\n=========================================================\n Appearance : CRIMINAL APPEAL\nNO.2289 OF 2005 \nMR\nAJ DESAI, ADDL. PUBLIC PROSECUTOR for\nAppellant(s) : 1, \nMR MB GOHIL for Opponent(s) : 1 ?  3.\n \n\n Appearance\n: CRIMINAL REVISION APPLICATION NO.55 OF 2008 \nMS MARIA\nDALAL FOR MR YATIN SONI for Opponent(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.R.VORA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:16\/06\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE M.R. SHAH)<\/p>\n
1.\t\tFacts
\nof this case illustrate a disquieting feature as to how the trial
\nCourt has committed a grave miscarriage of justice in recording the
\nacquittal of the respondents ?  accused by playing in the hands of
\nthe witnesses who were admittedly relatives of the respondents –
\naccused.\n<\/p>\n
2.\t\tAs
\nobserved by the Hon’ble Supreme Court in the case of  Zahira
\nHabibulla Sheikh and Anr. V\/s. State of Gujarat and Ors.
\nreported in (2004) 4 SCC 158 and in the case of  Zahira
\nHabibulla Sheikh (5) and Anr. V\/s. State of Gujarat and Ors.
\nreported in (2006) 3 SCC 374 ‘A criminal trial is a
\njudicial examination of the issues in the case and its purpose is to
\narrive at a judgment on an issue as to a fact or relevant facts which
\nmay lead to the discovery of the fact issue and obtain proof of such
\nfacts at which the prosecution and the accused have arrived by their
\npleadings; the controlling question being the guilt or innocence of
\nthe accused. Since the object is to met out justice and to convict
\nthe guilty and protect the innocent, the trial should be a search for
\nthe truth and not a bout over technicalities, and must be conducted
\nunder such rules as will protect the innocent, and punish the guilty.
\nIf a criminal court is to be an effective instrument in dispensing
\njustice, the Presiding Judge must cease to be a spectator and a mere
\nrecording machine, by becoming a participant in the trial evincing
\nintelligence, active interest and eliciting all relevant materials
\nnecessary for reaching the correct conclusions, to find out the
\ntruth, and administer justice with fairness and impartiality both to
\nthe parties and to the community it serves. Courts administering
\ncriminal justice cannot turn a blind eye to vexatious or oppressive
\nconduct that has occurred in relation to the proceedings, even if a
\nfair trial is still possible, except at the risk of undermining the
\nfair name and standing of the judges as impartial and independent
\nadjudicators’.  The Hon’ble
\nSupreme Court has further observed ‘the Courts have
\nalways been considered to have an overriding duty to maintain public
\nconfidence in the administration of justice often referred to as the
\nduty to vindicate and uphold the ‘majesty of law’.  It
\nis further observed that ?Sdue administration of
\njustice has always been viewed as a continuous process, not confined
\nto determination of the particular case, protecting its ability to
\nfunction as to court of law in the future as in the case before it.??
\nIt is further observed by the
\nHon’ble Supreme Court that ?SCourts have to ensure that
\nthe accused persons are punished. A criminal trial should not be
\nreduced to be mock trials or shadow-boxing or fixed trials.??\n<\/p>\n
3.\t\tPresent
\nCriminal Appeal being Criminal Appeal No.2289 of 2005 is filed by the
\nState of Gujarat under Section 378(1)(3) of the Code of Criminal
\nProcedure, 1973 (hereinafter referred to as ‘the Code’)
\nagainst the judgement and order dated 04.03.2005 passed by the
\nlearned Presiding Officer, 3rd Fast Track Court, Nadiad in
\nSessions Case No.260 of 2002 acquitting the respondents herein ?
\noriginal accused for the offences punishable under Sections 302, 307,
\n323, 504 read with Section 114 of the Indian Penal Code.\n<\/p>\n
4.\t\tCriminal
\nRevision Application No.55 of 2008 is registered pursuant to the
\norder dated 17.12.2007 passed by this Bench wherein respondent Nos.2
\nand 3 in the said Revision Application i.e. PW-1 ?  Takhatsinh
\nBhikabhai Mahida and PW-2- Chhatrasinh Bhikabhai Mahida were directed
\nto show cause as to why they should not be punished for perjury and
\ngiving false evidence on oath and why appropriate proceedings against
\nthem should not be initiated considering provisions of Section 344 of
\nthe Cr.P.C. which permits the Court to try the accused \/ witnesses
\nwho have given false evidence on oath summarily, aforesaid two
\nwitnesses and the respondents are tried summarily and are given
\nreasonable opportunity as contemplated under Section 344 of the
\nCr.P.C.\n<\/p>\n
5.\t\tBriefly
\nstated the facts are as follows:\n<\/p>\n
\t\tOriginal
\ncomplainant ?  Takhatsinh bhikhabhai Mahida son of the deceased
\nvictim, resident of the village Navagam gave complaint before the
\nMahelav Police Station on 11.08.2002 which was recorded by one ?
\nJasosing Ratansing ?  Head Constable against the accused persons for
\nthe offences punishable under Sections 302, 307, 323, 504 read with
\nSection 114 of the IPC alleging inter-alia that he is residing
\nwith his parents at village ?  Navagam and on 11.08.2002 in the
\nevening at about 7.00 p.m., the accused persons came there and
\nstarted quarreling with his father and his sister’s son ?  Bhimsing.
\nAt that time father of complainant requested them not to quarrel and
\nabuse and at that time Amarsing Rupsing Mahida?  original accused
\nNo.1 was shouting that why he is harassing his daughter ?  Lilaben
\nand at that time original accused No.1 ?  Amarsing Rupsing gave
\n‘Pavda blow’ on the right side of the head above ear of his father
\nand his father got injured and other accused ?  Danaben Amarsing,
\nLilaben Amarsing and Akbarbhai Amarsing were giving filthy abuses and
\nwere giving fist blows to his father and at that time his elder
\nbrother intervened and they were also abused. It was further alleged
\nin the complaint that thereafter, all the accused went to their
\nresidence who were staying in the same faliya and as his father
\nsustained injuries he was taken to hospital. It is required to be
\nnoted at this stage that at the time when the complaint was given
\nfather of the complainant was alive and was taken to hospital.
\nHowever, subsequently he succumbed to injuries, therefore,  accused
\npersons were charged for the offences punishable under Sections 302,
\n307, 323, 504 read with Section 114 of the IPC.\n<\/p>\n
6.\t\tThe
\ncomplaint was recorded by Head Constable  of Mahelav Police Station ?
\nJasosingh Ratansing. That thereafter, injured ?  Bhikabhai father of
\nthe complainant died in the hospital and necessary entry to that
\neffect was made in the station dairy. Arvindbhai Ravjibhai Patel-
\nP.S.I., Mahelav Police Station  reached the hospital. Inquest
\nPanchnama was carried out in the presence of two panchas.
\nInvestigation was carried out by him. Panchnama of place of
\noffence was also drawn by him in presence of two Panchas.
\nPanchnama of recovery of weapon was also drawn  by him in
\npresence of two panchas. Postmortem was carried out by
\nDr.Jignesh Kachralal. During investigation, Investigating Officer,
\nP.S.I. – Arvindbhai Patel recorded the statement of witness \/
\neye-witnesses who were present at the time of incident such as
\nTakatsing Bhikabhai ?  original complainant son of deceased;
\nKesarben Bhikabhai ?  widow of the deceased;  Mohamedsing Mahida;
\nAshwinbhai; Bhimsing @ Tinabhai; Sukhben Chatrasing Mahida and
\nothers. Investigating Officer also collected other documentary
\nevidences such as injury certificate issued by Dr.Vipul Shah of
\nUrvish Hospital who treated the deceased in the hospital; PM note;
\nFSL report; Serological report, etc.  That thereafter, having found
\nthat there is case made out against the accused persons, he filed
\ncharge-sheet against the accused persons for the offences punishable
\nunder Sections 302, 307, 323, 504 and 114 of the IPC in the Court of
\nlearned JMFC, Petlad.  As the case was sessions triable, the case was
\ncommitted to the learned District and Sessions Court, Nadiad which
\nwas numbered as Sessions Case No.260 of 2002 and it was sent to the
\nCourt of Additional Sessions Judge, Nadiad.  Charge was framed
\nagainst the accused persons vide Exh.4 by the learned
\nPresiding Officer, 6th Fast Track Court, Nadiad on
\n04.06.2004 against all the accused persons for the offences
\npunishable under Sections 302, 307, 323, 504 and 114 of the IPC. All
\nthe accused persons pleaded not guilty and therefore, they were put
\nto trial. During trial, prosecution examined as many as 15 witnesses
\nand produced on record voluminous documentary evidence.  Takatsing
\nBhikabhai ?  original complainant and son of the deceased ?  PW-1
\ncame to be examined at Exh.10 initially on 06.07.2004; his
\nexamination-in-chief was recorded on 06.07.2004 and he was partly
\ncross examined on the very day and that thereafter, the trial was
\nadjourned and he came to be further cross examined on 09.08.2004.  He
\nwas throughly cross examined. He fully supported the prosecution case
\nand stick to what was stated by him in the complaint as well as
\nwhatever he stated before the police during investigation.  Another
\nwitness ?  Chatrasingh Bhikabhai, son of the deceased and elder
\nbrother of the original complainant came to be examined by the
\nprosecution as PW-2 vide
\nExh.14 on 27.08.2004. He fully supported the prosecution case and
\nstick to what was stated by him before the police during
\ninvestigation. It appears that settlement was arrived at between the
\nparties between 27.08.2004 and 04.11.2004 and the defence gave one
\napplication at Exh.40 on 04.11.2004 before the learned trial court
\nrequesting to recall the aforesaid two witnesses with a view to prove
\ncontradictions in the complaint and deposition of PW-1 as well as
\ncontradictions in the police statement of the PW-2 and his
\ndeposition.  Learned trial Court granted the said application on the
\nvery day mechanically.  On 19.11.2004 both the aforesaid two witness
\nwho earlier fully supported the case of the prosecution came to be
\nfurther cross examined by the defence and surprisingly they turned
\nhostile and they deposed contrary to what was deposed by them in
\nexamination-in-chief and earlier cross examination recorded on
\n27.08.2004 and even contrary to what was stated by the complainant in
\nthe complaint as well as contrary to their own statements recored by
\nthe Investigating Officer during investigation. Both of them for the
\nfirst time stated that at the time of incident they had gone to their
\nsister’s residence at village ?  Kanjari and they returned at about
\n7.30 p.m.; they came to know that their father got injured when they
\nreached their residence and many persons had gathered. It was further
\ndeposed by aforesaid two witnesses that other persons staying in the
\nsaid faliya told him that their father fell down and sustained injury
\nby Otli.  They further deposed that they have not seen how the
\nincident had taken place and what happened. Prosecution gave
\napplication at Exh.55 to recall aforesaid two witnesses in light of
\ntheir further cross examination recorded on 19.11.2004. Said
\napplication came to be allowed and the aforesaid two witnesses came
\nto be recalled for further examination-in-chief. They deposed that
\nwhatever they have deposed in further cross examination is correct
\nthough in examination-in-chief and at the time of earlier cross
\nexamination it is deposed by them that at the time of incident they
\nwere at their home. However denied what was stated by them during
\nexamination-in-chief recorded earlier. However, both of them admitted
\nthat they have deposed earlier as per their statement before the
\npolice which was at the instance of other persons and having
\nrealized, they stated correct facts in the further cross examination.
\nThat thereafter, prosecution examined other witnesses, relatives of
\ndeceased who were also relatives of accused persons, all of them
\nturned hostile. Even panch-witnesses also turned hostile. Prosecution
\nexamined Dr.Vipul Shah who treated deceased at his Urvish Hospital.
\nIn the examination-in-chief he has stated that he was informed that
\nhis relatives have given ‘Pavda blow’. He was also cross examined.
\nProsecution further examined Dr.Jignesh Kachralal who conducted
\npostmortem.  As per postmortem report cause of death was stated to be
\nCardiorespiratory arrest due to intracranial hemorrhage. Prosecution
\nalso examined head constable ?  Jasosingh Ratansing who recorded the
\ncomplaint given by Takatsing Bhikabhai. He stated in
\nexamination-in-chief that the complaint was given by Takatsing
\nBhikabhai Mahida in his presence and same was signed by Takatsing in
\nhis presence and he also signed as Police officer. He is not cross
\nexamined. Prosecution further examined Investigating Officer ?  PSI
\nArvindbhai Ravjibhai Patel, he fully supported the prosecution case
\nand deposed that he recorded statement what was stated by the
\nwitnesses. In the cross examination he has specifically deposed that
\nit is not true that he has not recorded the statement as per their
\nsay. That thereafter, attention of the accused persons were drawn to
\nthe incriminating material found against them and statement of
\naccused persons under Section 313 were recorded on 13.01.2005. That
\nthereafter, learned Presiding Officer, 3rd Fast Track
\nCourt, Nadiad solely relying upon the further deposition of the
\naforesaid two witnesses Exh.10 and 14 acquitted the respondents –
\naccused by the impugned judgment and order by observing that it is
\ntrue that the prosecution has proved the statement of those witnesses
\nmade before the police during investigation who have turned hostile
\nbefore the Court by examining PSI Arvindbhai Patel ?  PW 15 examined
\nat Exh.52, however, as the witnesses are not supporting the case of
\nthe prosecution, said proved statements cannot be used against the
\naccused persons and thereby acquitted the accused persons for the
\noffence punishable under Sections 302, 307, 323, 504 and 114 of the
\nIPC. Being aggrieved and dissatisfied with the same, State has
\npreferred the present appeal under Section 378(1)(3) of the Code.\n<\/p>\n
7.\t\tMr.A.J.Desai,
\nlearned Additional Public Prosecutor appearing on behalf of the State
\nhas vehemently submitted that the learned trial Court has materially
\nerred in relying upon the further cross examination \/ further
\ndeposition recorded after cross examination was over. It is submitted
\nthat the learned trial Court ought not to have relied upon the
\ndeposition (cross examination recorded on 19.11.2004 after they were
\nrecalled). It is submitted that the learned trial Court ought to have
\nrelied upon deposition recorded prior to the application Exh.40
\n(recalling of the witnesses).  It is submitted that the learned trial
\nCourt has not considered and\/or discussed deposition of other
\nwitnesses on record i.e. deposition of Dr.Vipul Shah who has stated
\nthat he was told that deceased sustained injury by ‘Pavda’ by
\nrelatives and deposition of Head Constable ?  Jasosingh Ratansing at
\nExh.34 who recorded the complaint given by Takatsing ?  PW-1. It is
\nsubmitted that even the trial Court has not considered and discussed
\ndeposition of Arvindbhai Patel- Investigating Officer, PSI- Mahelav
\nPolice Station who recorded the statement of the witnesses, who
\nsubsequently turned hostile.  It is submitted that he has
\nspecifically deposed that he has recorded the statements of the
\nwitnesses during investigation as per and whatever was stated by
\nthose witnesses.  It is submitted that the learned trial Court ought
\nto have become more vigilant and alert after aforesaid two witnesses
\ni.e. PW-1 and PW-2 turned hostile after they were recalled by further
\nrealizing that said witnesses and other witnesses who have turned
\nhostile are all relatives of accused persons. It is therefore,
\nsubmitted that the learned trial Court ought to have relied upon
\nother independent witnesses and ought to have reached the truth
\nrather than acquitting the accused persons relying upon further cross
\nof the witnesses at Exh.10 and 14. It is submitted that the learned
\ntrial Court has become mute spectator and acquitted the accused
\npersons by playing in the hands of the witnesses who are relatives of
\nthe accused. It is submitted that the learned trial Court has failed
\nin its duty to convict the accused persons. It is submitted that
\nevidence of Dr.Vipul Shah, Postmortem report, injury sustained by the
\ndeceased, evidence of head constable ?  Jasosingh Ratansing and
\nevidence of Arvindbhai Patel, Investigating Officer are sufficient to
\nconvict the accused persons.  However, the learned trial Court has
\nnot discussed and\/or considered the evidence of aforesaid witnesses
\nas well as aforesaid documentary evidence and has acquitted accused
\npersons which has resulted into miscarriage of justice. It is
\nsubmitted that even the learned trial Court has also observed that
\nthe prosecution has proved the statements of the witnesses who turned
\nhostile in the Court, still solely relying upon those witnesses who
\nhave turned hostile and that too after they were recalled, the
\nlearned trial Court has acquitted the accused persons, which requires
\nto be quashed and set aside.\n<\/p>\n
\t\tMr.Desai,
\nlearned APP has relied upon decision of the Hon’ble Supreme Court in
\nthe case of  State of M.P. V\/s. Badri Yadav and Anr.\n<\/p>\n
Reported in (2006) 9 SCC 549 as well as decision of the
\nHon’ble Supreme Court in the case of  Zahira Habibulla
\nSheikh(supra) in support of his prayer to allow the
\npresent appeal, quashing and setting aside the judgment and order of
\nacquittal and convict the accused persons for the offences punishable
\nunder Sections 302, 307, 323, 504 and 114 of the IPC and to impose
\nappropriate sentence.  So far as Criminal Revision Application No.55
\nof 2008 is concerned, Mr.Desai, learned APP has submitted that
\nconsidering deposition of two witnesses PW-1 and PW-2 recorded prior
\nto 19.11.2004 and subsequent deposition recorded in cross examination
\ndated 19.11.2004, it is clear case of perjury and even in the
\nstatement recorded before this Court, Chattrasing Bhikhabhai ?  PW-2
\nhas admitted that he has given false evidence. Therefore, it is
\nrequested to appropriately punish aforesaid two witnesses ?
\nrespondents of Criminal Revision Application No.55 of 2008 so as to
\ncurb such type of practice as in recent days incident of witnesses
\nturning hostile has increased day by day.\n<\/p>\n
8.\t\tMr.M.B.Gohil,
\nlearned Advocate has appeared on behalf of the respondents ?
\naccused. It is submitted that on appreciation of evidence and
\nconsidering evidence of deposition of PW-1 and PW-2 who were examined
\nat Exh.10 and 14, when it was found by the learned trial Court that
\nwitnesses who were examined by the prosecution to prove the case have
\nnot supported the prosecution case and thereby acquitted the accused
\npersons, same is not required to be interfered with by this Court in
\nan appeal against the order of acquittal under Section 378 of the
\nCode. It is submitted that the impugned judgment and order passed by
\nthe learned trial Court cannot be said to be so perverse which
\nrequires interference of this Court in an appeal under Section 378 of
\nthe Code.  It is submitted that as held by the Hon’ble Supreme Court
\nin catena of decisions when there are two versions possible and one
\nwhich is in favour of the accused has been accepted by the learned
\ntrial Court and that accused persons are acquitted, the High Court in
\nan appeal under Section 378 of the Code should not interfere with the
\nsame.  Therefore, it is requested to dismiss the present appeal.\n<\/p>\n
9.\t\tMs.Maria
\nDalal, learned Advocate appearing for Mr.Yatin Soni, learned Advocate
\nappearing for two witnesses ?  PW-1 and PW-2 i.e. Takatsing
\nBhikabhai and Chhatrasinh Bhikabhai whose evidence was recored at
\nExh-10 and 14 and who are respondents in Criminal Revision
\nApplication No.55 of 2008, has vehemently submitted that if this
\nCourt is of the opinion that aforesaid two witnesses are liable for
\nperjury by giving false evidence, in that case, appropriate remedy is
\nto follow procedure as required under Section 195 of the Code and
\nthis Court cannot assume criminal jurisdiction and convict them
\nwithout trial. She has heavily relied upon the decision of the
\nHon’ble Supreme Court in the case of  Ramsingh v\/s. State of
\nHaryana and Anr. reported in AIR 2000 SC 544 and
\nin the case of  M.S.Alawat v\/s. State of Haryana and Anr.
\nreported in AIR 2000 SC 168. By making above submissions, she
\nhas requested to discharge notice issued in Suo-moto Revision
\nApplication No.55 of 2008. On merits she has addressed the Court by
\nsubmitting that said witnesses have not committed any offence of
\nperjury as whatever was found to be true, they have stated in the
\nsubsequent cross examination and therefore, it is requested to
\ndismiss the Criminal Revision Application.\n<\/p>\n
10.\t\tHeard
\nthe learned Advocates appearing on behalf of the respective parties.\n<\/p>\n
11.\t\tWe
\nhave minutely considered the deposition of all the witnesses in
\ndetail. PW-1 ?  Takatsing Bhikabhai ?  son of the deceased
\ninitially gave complaint at Mahelav Police Station which is at Exh.11
\nwhich was recorded by the Head Constable ?  Jasosingh Ratansingh. In
\nthe complaint he has specifically alleged that Amarsingh Mahida ?
\noriginal accused No.1 gave ‘Pavda blow’ on the right side of the head
\nnear ear of the deceased and other accused persons ?  Dhanaben
\nAmarsing Mahida and Lilaben Amarsingh Mahida were giving filthy
\nabuses and giving fist blows to the deceased. Head Constable ?
\nJasosingh Ratansing who recorded the complaint at Exh.11 is examined
\nby the prosecution as PW-14 at Exh.34. He has deposed that the
\ncomplaint was given by Takatsingh Mahida in his presence which is at
\nExh.11 and same was signed by Takatsing in his presence and he also
\nsigned on the same as Police Officer. Said witness is not cross
\nexamined by the defence. Thus prosecution has proved beyond doubt the
\ncomplaint at Exh.11. No question is asked to the said witness against
\nrecording of the said complaint.  During trial prosecution examined
\nArvindbhai Patel ?  Investigating Officer who investigated the case
\nand who recorded the statements of the witnesses during investigation
\nwho subsequently turned hostile. He is throughly cross examined. He
\nspecifically deposed that whatever was stated by the witnesses their
\nstatements were recorded. He has also deposed what was stated by the
\nsaid witnesses in their statement during investigation. Though said
\nwitness was cross examined the defence has failed to prove any
\ncontradiction. It is required to be noted at this stage that even the
\nlearned Trial Court has also specifically observed and held that by
\nexamining Arvindbhai Patel ?  Investigating Officer at Exh.52, the
\nprosecution has proved in Court, statements of those witnesses who
\nhave subsequently turned hostile such as Takatsing Bhikabhai,
\nChatrasingh Bhikabhai, Kesarben Bhikabhai etc. Prosecution has also
\nexamined Dr.Vipul Shah who treated the deceased at his Urvish
\nHospital. It is specifically deposed by him that he was told that his
\nrelative has given ‘Pavda blow’. No question is asked to him so far
\nas that aspect is concerned in the cross examination. Medical
\ncertificate of the said Doctor is at Exh.17 in which also it is
\nalleged that injury is due to assault by ‘Pavda’. Inspite of above
\noverwhelming evidence on record, the learned trial Court has not
\nconsidered and dealt with and\/or discussed said evidences at all.
\nTakatsing Bhikabhai ?  original complainant and son of the deceased
\n?  eye witness ?  PW-1 came to be examined at Exh.10. His
\nexamination-in-Chief and some cross examination was recorded on
\n06.07.2004. He was  fully and throughly cross examined by the defence
\non 09.08.2004. He fully supported prosecution case and stick to what
\nwas stated by him in the complaint as well as in his statement before
\nthe police during investigation. He has specifically deposed in the
\ncross that he has seen the incident and injury caused to his father.
\nIt is also specifically deposed by him in the cross that except
\noriginal accused no.1 ?  Amarsing nobody has caused any injury to
\nhis father and there was only one injury sustained by his father. He
\nhas also specifically denied in the cross that it is not true that
\nhis father fell down during scuffle and he sustained injury by
\nfalling down on Otli.  That PW-2 Chatarsing Bhikabhai ?  elder son
\nof the deceased and elder brother of the complainant also eye witness
\ncame to be examined by the prosecution at Exh.14 on 27.08.2004. He
\nhas also fully and throughly cross examined by the defence. He fully
\nsupported the case of the prosecution and statements made by him
\nbefore the Investigating Officer during investigation. It appears
\nthat something happened after 27.08.2004, after deposition of the
\naforesaid two witnesses were over.  At this stage it is to be noted
\nthat accused persons are also relatives of aforesaid two witnesses.
\nOriginal accused No.1 ?  Amarsing Mahida is the maternal uncle
\n(mama) of the aforesaid two witnesses. It is equally true that the
\ndeceased was their father.  However, it appears that they choose to
\nbe with the living persons rather than dead persons and not with the
\nreal truth.  Defence gave application at Exh.40 on 04.11.2004
\nrequesting the learned trial Court to recall the aforesaid two
\nwitnesses by submitting that through oversight certain questions to
\nprove contradiction in the complaint by PW-1 and deposition are not
\nasked; question to prove contradictions of the statement of PW-2 and
\ndeposition are not asked and therefore, with a view to prove
\ncontradictions in the police statements and deposition and complaint
\nand deposition of PW-1, it was requested to recall the aforesaid two
\nwitnesses. Learned trial Court without realizing hard reality
\nmechanically accepted the said application immediately and passed
\norder to recall the aforesaid two witnesses. Aforesaid two witnesses
\ncame to be cross examined by the defence on 19.11.2004; exactly that
\nhas happened what was in the mind of the accused persons and the
\ndefence and the aforesaid two witnesses.  Aforesaid two witnesses
\ndeposed just contrary to what was stated by them earlier on
\n09.08.2004 and 27.08.2004 respectively and deposed just contrary to
\nwhat was stated by PW-1 in the complaint as well as statements before
\nthe police. PW-2 also came to be cross examined on 19.11.2004
\npursuant to the order passed below Exh.40 and he also on subsequent
\ncross examination deposed just contrary to what was stated by him
\nbefore the police and just contrary to what was stated by him during
\nhis cross examination on 27.08.2004.  They have stated that they were
\nnot present at the time of incident and they had been to sister’s
\nvillage ?  Kanjeri and returned at about 7.30 p.m. At that time they
\ncame to know that their father was injured and came to know from
\nothers that their father had fallen down on Otli and sustained
\ninjury. Relying upon the cross examination recorded on 19.11.2004
\nafter aforesaid two witnesses came to be recalled, the learned trial
\nCourt has acquitted the accused persons. It is required to be noted
\nat this stage that it is not the case of any of the accused in their
\nstatement recorded under Section 313 that deceased sustained injury
\nby falling down on Otli. For the first time aforesaid two witnesses
\ni.e. PW-1 and PW-2 stated in further cross examination (after they
\nwere recalled) that their father sustained injury by falling down on
\nOtli.\n<\/p>\n
12.\t\tAs
\nobserved by the Hon’ble Supreme Court in the case of Zahira
\nHabibulla Sheikh (5) and Anr. (supra) ?Switnesses’
\nas Bentham said : are the eyes and ears of justice. If the witness
\nhimself is incapacitated from acting as eyes and ears of justice, the
\ntrial gets putrefied and paralysed, and it no longer can constitute a
\nfair trial. The incapacitation may be due to several factors, like
\nthe witness being not in a position for reasons beyond control to
\nspeak the truth in the court or due to negligence or ignorance or
\nsome corrupt collusion. Time has become ripe to act on account of
\nnumerous experiences faced by the courts on account of frequent
\nturning of witnesses as hostile, either due to threats, coercion,
\nlures and monetary considerations.?? It
\nis further observed by the Hon’ble Supreme Court that
\n?Sright from the inception of the judicial system it has been
\naccepted that discovery, vindication and establishment of truth are
\nthe main purposes underlying the existence of the courts of justice.??
\n It is further observed that ?Sthe concept of fair trial
\nentails familiar triangulation of interests of the accused, the
\nvictim and the society and it is the community that acts through the
\nState and prosecuting agencies. Interest of society is not to
\nbe treated completely with disdain and as persona non grata.??
\nIt is observed that ?Sit has to be unmistakably understood
\nthat a trial which is primarily aimed at ascertaining the truth has
\nto be fair to all concerned. It will not be correct to say
\nthat it is only the accused who must be fairly dealt with.??
\n As observed that ?Sit would be turning a Nelson’s eye to the
\nneeds of society at large and the victims.?? It is observed
\nthat the Courts have vital role to play. Cause of the community
\ndeserves equal treatment at the hands of the courts in discharge of
\nits judicial function. It is emphasized in catena of decisions that
\nin a criminal case the fate of the proceedings cannot always be
\nleft entirely in the hands of the parties, crime being public wrong
\nin breach and violation of public rights and duties, which affects
\nthe whole community as a community and is harmful to society in
\ngeneral.  Dealing with the role of Presiding Judge, in a criminal
\ntrial, the Hon’ble Supreme Court in the said decision has observed
\nthat the the purpose and role of the Presiding Judge in a criminal
\ntrial is discovery, vindication and establishment of truth and
\ntherefore, trial should be a search for the truth and not a bout over
\ntechnicalities.  Presiding Officer must cease to be a
\nspectator and a mere recording machine. He must become a participant
\nin the trial evincing intelligence, active interest and elicit all
\nrelevant materials necessary for reaching the correct conclusion to
\nfind out truth and administer justice with fairness and impartiality
\nboth to the parties and to the community.\n<\/p>\n
13.\t\tComplete
\nignorance on the part of learned trial Judge of basic principle of
\ncriminal law and criminal justice system has resulted in gross
\nfailure of justice affecting the society at large. Forgetting all the
\nstatues, and law to conduct criminal trial and dispensation of
\ncriminal justice system the judgment impugned on face of it appears
\nto be  mere opinion of individual as if arbitrating small dispute of
\nprivate individual. More
\nthan century old criminal justice system structure of our country is
\nstanding erect today because of faith of the people in justice system
\nand expectation of ordinary citizens from the trial Courts at least
\nto discern truth and extricate falsehood ultimately to establish law
\nand order in society. System of adducing
\nevidence by the parties and rules to appreciate such evidence is a
\nsystem evolved to extract truth, even if it is coted
\nby grave falsehood. If such an endeavour on the part of linchpin link
\ni.e. trial Court to search for truth is jettisoned overboard, law
\nlessness society could be the only  result. While considering a
\ncriminal case, the Court cannot resort to conjunctures and must not
\nabandon laborious exercise
\nto find out the truth, but must examine carefully the legal material
\nplaced before it in order to find that the offence with which the
\naccused  is charged has been made out by such material and then come
\nto its own conclusion. Ring of truth in the evidence adduced, if any,
\nmust be found out having regard to the evidence as a whole and the
\ngeneral tenor of the prosecution case. Direct evidence of witnesses
\nshould not be brushed aside in any circumstances unless such evidence
\nrenders the whole of the prosecution case improbable by the standard
\nof prudence of the ordinary person. It is the prime function of the
\ncriminal Courts to separate the grain from the chaff and accept what
\nappears to be true and reject the rest. Therefore, the criminal
\nCourts have to do their best in the trials before them and it is
\ntheir duty to shift the evidence carefully and decide which part of
\neach is true and which is not. Total repulsion of the evidence, in
\ncases like one on hand is doing injustice to the society as a whole
\nespecially when scheming parties before the Court attempt to defraud
\nthe Courts of justice for their selfish purposes. To keep the
\nfountain of justice pure, it becomes pious duty of a criminal Court
\nto consider the evidence from the point of view of trustworthiness,
\nif this element is satisfied this must inspire confidence in the mind
\nof the Court to accept the stated evidence. It is known principle of
\ncriminal law that falsus in uno, falsus in omni bus is not
\napplicable to our criminal justice system. The witnesses may
\nembroider prosecution case and attempt to spoil the very object of
\ncriminal trial but instead of being conducive to this mischief,
\ncriminal Courts must apprise itself in each case as to what extent
\nthe evidence is worthy of acceptance and merely because in some
\nrespect falsity deliberately created is found and when it does not
\naffect the substratum of the
\nprosecution case,  and such falsity is brought for only purpose of
\nthwarting  the course of justice, the same must be treaded upon. Only
\nbecause witnesses have resiled from
\nthe statement earlier given and thus, attempts to divert the path of
\njustice, it must not necessarily follow as a matter of law that the
\nevidence of such witnesses must be discarded in all respect which is
\ndone by the trial Court. Even if a major portion of the evidence is
\nfound to be deficient and in a given case residue is sufficient to
\nprove guilt of an accused conviction must follow and, therefore, it
\nis said that it is the duty of the Court to separate the grain from
\nchaff because Judge does not preside over a criminal trial merely to
\nsee that no innocent man is punished but a Judge also presides to see
\nthat a guilty man does not escape and both are public duties. We have
\nexamined that how failure of justice has occasioned in the present
\ncase and how pervert is the judgment and order impugned.\n<\/p>\n
14.\t\tLooking
\nto the facts of the case on hand and evidence on record and looking
\nto the judgment and order of acquittal passed by the learned trial
\nCourt, it appears that the learned trial Court has turned blind eye
\nand has failed to perform its duty as a Presiding Judge to reach to
\nthe truth. Though there was ample material and\/or evidence on record
\nsuch as evidence of Dr.Vipul Shah, Head Constable ?  Jasonsing
\nRatansingh who recorded the complaint at Exh.11 and evidence of
\nInvestigating Officer, learned trial Court has not considered, dealt
\nwith and discussed the same at all and on the contrary relying upon
\nsubsequent cross examination of PW-1 and PW-2 who were recalled, has
\nacquitted the accused persons by observing that witnesses have not
\nsupported the prosecution. As stated above, it is to be noted that
\nthe concerned Presiding Judge has specifically observed and held that
\nprosecution has proved the statements of the witnesses recorded
\nduring investigation by examining Investigating Officer in the Court
\nand they are proved in the Court, still the learned Judge has
\nacquitted the accused persons. It appears to us that even the
\ndeposition of witness ?  PW-1 and PW-2 recorded prior to they were
\nrecalled were sufficient to convict the accused persons. Said
\ndepositions are required to be considered along with deposition of
\nother witnesses i.e. Head constable who recorded the complaint as
\nwell as the Investigating Officer who recorded the statements during
\nthe investigation and which are proved in the Court.  The learned
\nJudge ought not to have given weightage to that part of the evidence
\n(cross examination) which was recorded after they were recalled. In
\nthe present case PW-1 was examined by the prosecution as eye-witness
\non 06.07.2004. He was cross examined at length on 09.08.2004 and was
\ndischarged. He was subjected to lengthy cross examination but nothing
\ncould be elicited to discredit the examination-in-chief. He was
\nrecalled as witness at the instance of defence subsequently on
\n19.11.2004 and he resiled completely from the previous statements as
\nprosecution witness.  Similar thing happened to PW-2. He was examined
\nby the prosecution as eye-witness on 27.08.2004. He was subjected to
\nlengthy cross examination but nothing could be elicited to discredit
\nthe examination-in-chief and he fully supported the prosecution case.
\nThus both PW-1 and PW-2 who were eye-witness fully supported the
\nprosecution case and they stick to what was stated by them in the
\ncomplaint as well as in their statement recorded during
\ninvestigation. That thereafter, they were recalled pursuant to the
\norder passed by the Presiding Judge on the application submitted by
\nthe defence to prove contradiction; they resiled completely from
\ntheir previous statement and their deposition on oath. It therefore,
\nclears appears that subsequent statement in the cross examination
\nwere concoated and were afterthougth. It appears that they were
\neither won over or were under threat or intimidation from the
\naccused. It is required to be noted at this stage that the accused
\npersons are relatives of the aforesaid two witnesses staying in same
\nfaliya. No reasonable person, properly instructed in law, would have
\nacted upon such statements. Still the learned trial Judge has
\nacquitted the respondents ?  accused relying upon the subsequent
\ndeposition (cross examination after they were recalled).  It appears
\nthat submission of the application to recall PW-1 and PW-2 was
\nclearly for the purpose of defeating the ends of justice which is not
\npermissible under law. It is required to be noted at this stage that
\nthe application at Exh.40 to recall aforesaid two witnesses was to
\nprove contradictions between the complaint and statement before the
\npolice and deposition so far as PW-1 is concerned and to prove
\ncontractions in statement before the police and deposition so far as
\nPW-2 is concerned. However, looking to the further cross examination
\nof the aforesaid two witnesses after they were called and the
\nquestion asked it appears that not a single question is asked by the
\ndefence to prove contradictions for which they were recalled. It
\nappears that it was clearly for the purpose of defeating the ends of
\njustice. Identical question came to be considered by the Hon’ble
\nSupreme Court in the case of Badri Yadav and Anr.(supra)
\nand faced with similar situation the Hon’ble Supreme Court in a case
\nwhere High Court acquitted the respondents ?  accused, quashing and
\nset aside the conviction of the trial Court relying upon the
\nsubsequent submission of the witnesses after they were recalled, the
\nHon’ble Supreme Court quashed and set aside the acquittal order
\npassed by the High Court and convicted the accused persons by
\nobserving that the High Court should not have and ought not have
\nrelied upon the subsequent deposition of the witnesses recorded after
\nthey were recalled when they earlier fully supported the prosecution
\ncase.\n<\/p>\n
15.\t\tIn
\nthe result, considering the above circumstances and re-appreciating
\nthe evidence and reasonable probabilities arising out of the
\ncircumstances of the case which we have carefully considered, we are
\nsatisfied that the judgment and order impugned in this appeal is
\nrequired to be set aside. Now, it is required to be examined for what
\noffence accused or each of the accused is guilty. The accused were
\ncharged with offences punishable under Sections 302, 307, 323, 504 to
\nr\/w. Section 114 of the Indian Penal Code. It is the allegation
\nagainst the accused that accused No.1 Amarsinh Rupsinh gave a spade
\nblow on the head of the deceased due to which deceased Bhikhabhai
\ndied and accused No.2 Dhanaben and accused No.3 Lilaben both abetted
\naccused No.1 in the above act and also gave kick and fist blows to
\nthe deceased. It is also the allegation against the accused that all
\nthe three gave abuses to the deceased. From the evidence of P.W.1,
\nP.W.2 and the deposition of the other witnesses i.e. Dr.Vipul Shah,
\nInvestigating Officer and other circumstances, it is proved beyond
\ndoubt that accused No.1 ?  Amarsinh gave a spade blow on the head of
\nthe deceased Bhikhabhai. It is necessary, therefore, to examine  the
\nincident as it is proved. It is the case of the prosecution that
\nduring altercation, accused No.1 obtained spade from nearby and gave
\nblow on the head of the deceased. It is amply proved through the
\nevidence of Dr.Vipul Shah, P.W.3, Ex.16 that the injury on the head
\nof the deceased which is vital part of the body was sufficient in
\nordinary course of nature to cause death. It is amply proved that
\naccused No.1 Amarsinh was author of the said injury. Therefore, the
\nact proved on the part of the accused No.1 ?  Amarsinh is an act
\ndone with the intention of causing bodily injury sufficient in the
\nordinary course of nature to cause death. Therefore, the act of
\naccused No.1 ?  Amarsinh is amply covered by the clause thirdly of
\nSection 300 of the Indian Penal Code  i.e. culpable homicide
\namounting to  murder. The intention to inflict such bodily injury
\nsufficient in the ordinary course of nature to cause death is clearly
\nemerges from the evidence recorded during the trial on the part of
\naccused No.1. Spade is an agricultural instrument but when it is
\nused, as a weapon certainly spade becomes deadly weapon especially
\nwhen a blow is given on vital part of body like head. It is amply
\nproved that death was caused on account of this injury. It is also
\nproved from the record that accused No.1 ?  Amarsinh fetched spade
\nlying nearby and gave a fetal blow on the vital part of body denoting
\nhis intention to cause murder of deceased Bhikhabhai and, therefore,
\naccused No.1 is held guilty for causing murder of deceased Bhikhabhai
\nand is liable to be punished for the offence punishable under Section
\n302 of the Indian Penal Code. It is also proved that accused No.1 ?
\nAmarsinh gave the abuses to the deceased and, therefore, he is also
\nliable to be punished for the offence punishable under Section 504 of
\nthe Indian Penal Code.\n<\/p>\n
16.\t\tNow
\nwe have to examine as to whether accused No.2 and 3 abetted the act
\nof accused No.1 causing murder of deceased Bhikhabhai. When we refer
\nto evidence of P.W.1 and P.W.2, it appears that all the three accused
\nalong with one person Akbar had been to their house and the accused
\nwere insisting to bring out Bhimsing who happened to be husband of
\naccused No.3 ?  Lilaben and was in the house of deceased. Therefore,
\nfrom the evidence of P.W.1 and P.W.2, it  clearly appears that there
\nwas neither common intention on the part of the accused No.2 ?
\nDhanaben or accused No.3 ?  Lilaben along with accused No.1 to cause
\nmurder of deceased Bhikhabhai. If the incident is further probed, it
\ntranspires from the evidence of the P.W.2 that accused No.1 ?
\nAmarsinh stated to the deceased that Bhimsing was  harboring
\nsuspicion about her daughter Lilaben and, therefore, altercation took
\nplace. Now during this altercation, however, accused No.1 ?
\nAmarsinh went nearby in the house of one Balvantsinh and from menger
\nof   the house fetched spade and gave a blow to the deceased. This
\nproved fact discloses that killing deceased was individual act of
\naccused No.1 and the said act was not abetted by accused No.2 and 3,
\nno willful overt act on the part of accused No.2 and 3 or any
\nconspiracy or instigation, surfaces from the evidence recorded during
\ntrial and, therefore, accused No.2 and 3 are held guilty for the
\noffences punishable under Sections 323 and 504 of the Indian Penal
\nCode as from the record it is proved that accused No.2 and 3 gave
\nkick and fist blows to the deceased and gave abuses. The act of
\naccused No.2 and 3 was individual of the act of accused No.1 and,
\ntherefore,  accused No.2 or 3 could not be held liable for the charge
\nunder Section 302 to r\/w. Section 114 of the Indian Penal Code and to
\nthat extent only acquittal of these two accused is confirmed that
\nthey are not held guilty under Section 302 of the Indian Penal Code,
\nbut they are held guilty for the offences punishable under Sections
\n323 and 504 of the Indian Penal Code for their respective individual
\nact.\n<\/p>\n
17.\t\tFor
\nthe aforestated reasons, this appeal succeeds and allowed and the
\njudgment and order impugned dated 04.03.2005 passed by the learned
\nPresiding Officer, 3rd Fast Track Court, Nadiad in
\nSessions Case No.260\/2002 acquitting the present respondents No.1, 2
\nand 3 ?  original accused No.1, 2 and 3 of all charges levelled
\nagainst them is hereby quashed and set aside. The respondent No.1,
\nherein ?  original accused No.1 is held guilty for the offences
\npunishable under Section 302 of the Indian Penal Code and under
\nSection 504 of the Indian Penal Code. Accused No.1 is sentenced to
\nundergo imprisonment for life and to pay fine of Rs.10,000\/- [Rupees
\nTen Thousand Only], in default, to undergo rigorous imprisonment of
\none year. No separate sentence is awarded to accused No.1 for charge
\nof Section 504 of Indian Penal Code proved against him. The
\nrespondents No.2 and 3, herein ?  original accused No.2 and 3 are
\nheld guilty for the offences punishable under Sections 323 and 504 of
\nthe Indian Penal Code and each of accused No.2 and 3 are sentenced to
\nundergo one year rigorous imprisonment for each of the offence under
\nSections 323 and 504 of the Indian Penal Code. The sentences awarded
\nto accused No.2 and 3 shall run concurrently. The acquittal of
\naccused No.2 and 3 in respect of rest of the charges including the
\ncharge under Section 302 of the Indian Penal Code is confirmed. Time
\nto all the three accused to surrender before the trial Court for
\nserving sentences imposed upon accused No.1, 2 and 3 is granted to
\naccused No.1, 2 and 3 till 14.07.2008.\n<\/p>\n
18.\t\tSo
\nfar as revision application No.55 of 2008 is concerned, the same is
\nregistered pursuant to the order passed by this Bench dated
\n17.12.2007 wherein the respondents in the revision application and
\nP.W.No.1- Takhatsinh Bhikhabhai Mahida and P.W.No.2-Chhatrasinh
\nBhikhabhai Mahida were directed  to show cause as to why the
\nappropriate proceedings against them should not be initiated. The
\naforesaid order came to be passed by this Bench considering the fact
\nthat there were contradictory version of the aforesaid two witnesses;
\none at the time of examination-in-chief and cross-examination prior
\nto the order passed below Exh.40 and subsequent to the order passed
\nbelow Exh.40 and having found that they have given a false evidence
\non oath.\n<\/p>\n
19.\t\tAs
\nstated hereinabove and considering the record which is received from
\nthe trial court more particularly considering the deposition of the
\naforesaid two witnesses P.W.No.1 Takhatsinh Bhikhabhai Mahida and
\nP.W.No.2 Chhatrasinh Bhikhabhai Mahida  who came to be examined at
\nExh.10 and Exh.14 it is found that the deposition of  P.W.No.1
\nTakhatsinh Bhikhabhai Mahida came to be recorded at Exh.10 which was
\nconcluded on 9.8.2004 and the cross-examination of the said witness
\nwas also over on 9.8.2004.  The said witness  P.W.No.1 Takhatsinh
\nBhikhabhai Mahida  fully supported the case of the prosecution.
\nSimilarly, the deposition of P.W.No.2 Chhatrasinh Bhikhabhai Mahida
\nwas also concluded on 27.8.2004 and his cross-examination was also
\nover on 27.8.2004 and he also fully supported the prosecution case.
\nHowever, subsequently, after the period of almost three months the
\ndefence gave an application at Eh.40 on 4.11.2004 before the trial
\ncourt requesting to recall the aforesaid two witnesses with a view to
\nprove the contradictions in the complaint, deposition as well as
\ncontradiction in the statement of P.W.No.2 and his deposition.  The
\nlearned Judge granted the said application mechanically on the very
\nday and on 19.11.2004 both the aforesaid two witnesses who earlier
\nfully supported the case of the prosecution as well as proved what
\nthey have stated before the police as well as in the complaint, came
\nto be further cross-examined by the defence and it appears that the
\ndefence had not asked any question to prove the contradictions for
\nwhich they were recalled.  However, surprisingly both the aforesaid
\ntwo witnesses turned hostile and they deposed on oath just contrary
\nto what was deposed by them in examination in chief and earlier
\ncross-examination recorded on 9.8.2004 and 27.8.2004 respectively.
\nBoth the aforesaid two witnesses for the reasons best known came out
\nwith a story with respect to injury sustained by the deceased by
\nfalling down on Otli which was not even the case of the defence and
\nthe accused.\n<\/p>\n
20.\t\tConsidering
\nthe above and having satisfied that both the aforesaid two witnesses
\nrespondents in the revision application had given the false evidences
\non oath, notices came to be issued upon the aforesaid two witnesses
\nand it was decided by the court to try them summarily  considering
\nSection 344 of the Code of Criminal Procedure. The Court gave them
\nopportunity as provided under Section 262 read with Section 344 of
\nthe Cr.P.C. and their  statements on oath came to be recorded before
\nthe Court.  Attention of   P.W.No.2 Chhatrasinh Bhikhabhai Mahida was
\ndrawn to his entire deposition i.e. deposition prior to the order
\npassed below Exh.40 and his deposition after the order passed below
\nExh.40 to recall him, and on considering the same, he has stated
\nbefore the Court that he does not want to give any further
\nexplanation with regard to false evidence given by him on oath and he
\nadmits having committed the offense of giving false evidence  on
\noath. So far as P.W.No.1 Takhatsinh Bhikhabhai Mahida is concerned,
\nhis statement came to be recorded by this  Court and his attention
\nwas also drawn to his entire deposition i.e. deposition prior to
\norder passed below Exh.40 and his deposition after the order passed
\nbelow Exh.40 and he has stated before the Court that he does not want
\nto say anything further except that a settlement is arrived at
\nbetween the parties and he does not admit having committed any
\noffense with respect to giving false evidence.\n<\/p>\n
21.\t\tConsidering
\nthe aforesaid two statements recorded by this Court after the
\nrespondents were called upon to show-cause as to why they not be
\npunished for giving false evidences and the chronological events
\nwhich had taken place which is noted hereinabove, it appears that
\ntill 29.8.2004 both the aforesaid two witnesses respondents in
\nrevision application fully supported the prosecution case  and
\nwhatever they have said in the complaint as well as statements before
\nthe police during the investigation   P.W.No.1 Takhatsinh Bhikhabhai
\nMahida is the original complainant and son of the deceased.  It
\nappears that after 29.8.2004 a settlement has taken place which had
\ncompelled the aforesaid two witnesses to turn hostile and say
\nsomething just contrary to what they have stated earlier and the
\ntrial court acquitted the accused considering the subsequent
\ndeposition  of the aforesaid two witnesses.\n<\/p>\n
22.\t\tLearned
\nadvocate appearing on behalf of the respondents the aforesaid two
\nwitnesses has not stated anything on merits of the case.  However, he
\nhas submitted that if this Court is of the view that the aforesaid
\ntwo witnesses have committed any offense giving false evidence on
\noath before the court in that case the fully remedy available is to
\ninitiate the proceedings for the offences under Section 193 of the
\nIndian Penal Code, and to comply with the procedure under Section 195
\nof the Cr.P.C., read with Section 340 of the Cr.P.C. No other
\nsubmissions have been made by the learned advocate appearing on
\nbehalf of the respondents  aforesaid two witnesses.\n<\/p>\n
23.\t\tWe
\nhave considered the matter in detail and after giving anxious thought
\nand considering Sec.344 of the Cr.P.C., we have decided to try the
\nrespondents in the revision application the aforesaid two witnesses
\nsummarily for giving false evidences on oath and have given the
\noffenders reasonable opportunity of showing the cause why they should
\nnot be punished for giving false evidence with the intention that
\nsuch evidence will be used in the criminal proceedings.  We are
\nsatisfied and even  P.W.No.2 Chhatrasinh Bhikhabhai Mahida has
\nadmitted  that he has committed offence of giving false evidence on
\noath. So far as  P.W.No.1 Takhatsinh Bhikhabhai Mahida  is concerned,
\nthough he has not admitted that he has committed the offence of
\ngiving false evidence in the criminal proceedings, but he has also
\nstated in his statement that a settlement has arrived at between the
\nparties.  Thus, it appears that because of some settlement arrived at
\nbetween the parties, the aforesaid two witnesses turned hostile and
\nstated on oath just contrary what they have stated earlier on oath
\nwhile deposing prior to the order passed below Exh.40.  It appears
\nthat as some settlement had taken place, the defence gave an
\napplication Exh.40 to recall the aforesaid two witnesses under the
\nguise of proving the contradiction, and thereafter the aforesaid two
\nwitnesses have turned hostile and have deposed on oath  just contrary
\nwhat they have stated earlier on oath. It cannot be disputed that
\ncrime is a public wrong which affects the whole community and is
\nharmful to the society general.  The fate of the criminal proceedings
\ncannot be left entirely in the hands of the parties.  The outcome of
\nthe criminal trial cannot be permitted to be in the hands of the
\nparties.  In the recent days the incidence of witnesses being turned
\nhostile have increased day by day and thereby putting an end to the
\ncriminal proceedings by acquitting the accused persons by the trial
\ncourts without making any further efforts to find out the truth and
\npunish the guilty.  There may be number of reasons for the witness to
\nturn hostile such as threats, coercion or surrounding social
\ncircumstances etc.  As stated hereinabove,  the endeavour of the
\nCourt in the criminal proceedings is to find out real truth and
\npunish the guilty as the crime is against the society.  If such
\nhostile witnesses are permitted to play an important role in the
\ncriminal proceedings, the faith of the citizen in the criminal
\ndelivering justice will be shaken.  It is experienced by this Court
\nthat in spite of the fact that the trial court comes across so many
\ncases  that the witnesses have turned hostile, without further making
\nany efforts to reach the truth and in a race to dispose of the case
\nhurriedly acquits the accused.  Whenever it is found that any witness
\nhas turned hostile (more particularly the witness who is the relative
\nor interested witness) and has stated something just contrary to what
\nhe has stated in the complaint or statement before the police, the
\ntrial court must become cautious and if it is found that the witness
\nhas given false evidence on oath they must be dealt with strictly and
\nwith iron hand.  A settlement entered into after the commission of an
\noffense is no ground for the witness to turn hostile and give a false
\nevidence on oath to save the accused.  He can also be said to be
\nequally guilty and such witness should be dealt with strictly.\n<\/p>\n
24.\t\tConsidering
\nthe above and the entire evidence and the deposition of the aforesaid
\ntwo witnesses-respondents in Criminal Revision Application and the
\nstatements given by them before this Court in the present revision
\napplication, we are satisfied that both the respondents aforesaid two
\nwitnesses  are guilty of the offense of perjury i.e. giving false
\nevidence on oath before the Court in a criminal proceedings only with
\na view to facilitate the accused persons.\n<\/p>\n
25.\t\tIt
\nis required to be noted at this stage that both the respondents in
\nthe revision application and the aforesaid two witnesses are the real
\nsons of the deceased who has been murdered by the accused.  P.W.No.1
\nTakhatsinh Bhikhabhai Mahida is the complainant and still as the
\nsettlement has taken place he has turned hostile and has given false
\nevidence on oath  to save the accused who has killed his own father.
\nIt appears that for whatever be the reason the aforesaid two
\nwitnesses chosen to be with the accused rather than to be with the
\ntruth and their deceased father.  Considering the above, we are of
\nthe considered opinion  that both the respondents in revision
\napplication must be dealt with strictly.\n<\/p>\n
26.\t\tFor
\nthe reasons stated above, the revision application is allowed. The
\nrespondents in revision application i.e.  P.W.No.1 Takhatsinh
\nBhikabhai Mahida and P.W.No.2 Chhatrasinh Bhikhabhai Mahida are held
\nguilty for the offences of perjury for  giving false evidence on oath
\nin a criminal proceedings, and considering Section 344 of the Code of
\nCriminal Procedure, both of them are directed to undergo rigorous
\nimprisonment of two months with fine of Rs.500\/, and in default, to
\nundergo 15 days further imprisonment. Time to surrender is granted up
\nto 14th July, 2008. Rule is made absolute accordingly so
\nfar as Revision Application No.55 of 2008 is concerned.\n<\/p>\n
[J.R.VORA,J.]<\/p>\n
[M.R.SHAH,J.]<\/p>\n
satish
\n\/ syed<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Facts on 16 June, 2008 Author: J.R.Vora,&Nbsp;Honourable Mr.Justice Shah,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-221774","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Facts on 16 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-facts-on-16-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Facts on 16 June, 2008 - 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