Mohanlal Gangaram Gehani vs State Of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1982 Supreme(SC) 63

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, D.A. DESAI AND A. VARADARAJAN, JJ.
Mohanlal Gangaram Gehani, Appellant
Versus
State of Maharashtra, Respondent.
Criminal Appeal No. 4 of 1976
Decided on 17-2-1982.
Mr. Ram Jethmalani, Sr. Advocate, Mrs, S. Bhandare, A.N. Karkhanis, T. Sridharan and C.K. Sucharita, Advocates with
im, for Appellant; Mr. J.L. Nain, Sr. Advocate, M/s. H.R. Khanna and M.N. Shroff, Advocates with him, for Respondent.
* Criminal Appeal No. 1639 of 1972, D/- 1-9-1975 (Bom).

Headnote:Indian Penal Code, 1860 Sections 326 and 323 read with Section 34-Evidence Act, 1872, Sections 32 and 145-Cede of Criminal Procedure, 1973, Section 164 - Assault with fists-Conviction under Sections 326/34-Modification in conviction by High Court, retaining it under Section 326 simpliciter excluding evidence of Dr. Heena (P.W. 11) as inadmissible under Section 145 of Evidence Act-High Court misconceived of provisions of Section 145 of Evidence Act-Application of Section 145 - Distinction between admission and statement - Identification without identification parade -Value of-Acquittal of appellant by Supreme Court.
       Held -
       A. The High Court sought to exclude the evidence of P.W. 11 as being inadmissible as the provisions of Section 145 of the Evidence Act were not complied with. It was suggested that Shetty had mentioned the name of the appellant in his statement in Court but the statement of P.W. 11 shows that he had named Tiny as his assistant and, therefore, Dr. Heena (P. W. 11) should have been cross-examined on this point to explain the contradiction. The High Court has erred on this point and has misconstrued the- provisions of Section 145 of the Evidence Act. (Para 11)
       B. It is obvious from a perusal of Section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145. In other words, where the statement made by a person or witness is contradicted not by his, own statement but by the statement of another prosecution witness, the question of the application of Section 145 does not arise. (Para 12)
       C. In Bishwanath Prasad v. Dwarka Prasad, (1974) 2 S.C.R. 124: A.I.R. 1974 S.C. 117, while dwelling upon a distinction between and admission and a statement to, which Section 145 would apply, this court observed as follows:
       "In the former case an admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by section 145 of the Evidence Act." (Para 14)
       D. As Shetty P. W. 5 did not know the appellant before the occurrence and no test identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification. On this ground alone the appellant to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straight forward. (Para 19)

JUDGMENT

FAZAL ALI, J. :— This appeal by special leave is directed against a judgment dated 29th Aug., 1975/1st Sept., 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A-1) under Sec. 326, I. P. C. and sentencing him to rigorous imprisonment for three years. He was also convicted under Section 323 read with S. 34, I. P. C. but no separate sentence was awarded.

2. The trial Court had convicted A-1 under S. 326/34, I. P. C. which was altered by the High Court to one under Section 326 simpliciter. The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same. We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.

3. The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11/11.30 p. m. According to the prosecution while Ishrat Malik Faqih (hereinafter referred to as Ishrat) was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12.15 a.m. he met Salim, a friend of his, along with Sheikh Abdul. Kalim alias Pappu (P. W. 4). He also saw another person standing with Salim and Pappu. All of them started talking to one, another when suddenly they saw a black Fiat car coming from Lady Jamshedji Road and, taking a turn to Chotani Road. The car stopped near the place where the aforesaid persons were talking and A-1, A-2 (Shashi) and A-3 (Kumar) emerged from the car. According to the informant, Ishrat, all the three accused were known to him before. These persons were dead drunk and asked Ishrat and party as to who amongst them was their leader. Some sort of an altercation took place in the course of which A-2 caught hold of the shirt of Shanker Shetty and assaulted him with fists. He was joined by A-3 and the altercation culminated in a murderous assault said to have been made by A-1 who took out a dagger and stabbed Shetty on the right side of the stomach below, the chest. Shetty fell down. Thereafter A-1 ran back to his car and sped away leaving behind A-3 who could not get into the car. Ishrat immediately proceeded to the Mahim police station and lodged an F. I. R. with Sub-Inspector Sawant (P. W. 7) at 00.50 hrs. on April 3, 1972. According to the prosecution, the informant had rushed to the police station and lodged the FIR within an hour of the occurrence.

4. Subsequently, it appears that wireless police van which passed through the place of occurrence having found Shetty lying injured picked him up and removed him to K. E. M. Hospital. Dr. Heena. (P. W. 11) admitted Shetty and made a note of the injuries received by him in the note-sheet of the hospital register and also mentioned the fact that the injured had named his assailant as one Tiny. It was further alleged by the prosecution that Sawant after recording the FIR rushed to the hospital and contacted Shetty and recorded his statement at 1.45 a. m.

5. After the usual investigation, charge-sheet was submitted against A-1 to A-3 who were ultimately tried and convicted for an offence under S. 326 read with S. 34, I. P. C. and A-1 wag sentenced as mentioned hereinbefore. A-2 and A-3 each was sentenced to suffer rigorous imprisonment for two years. A-1 pleaded innocence and his defence was that he was falsely implicated due to enmity because Ishrat and his friends were carrying on Matka business and the appellant being an informer of the Customs Department had made certain reports against the prosecution witnesses particularly Ishrat who was a smuggler. We need not refer to the defence of A-2 or A-3 as they have been acquitted by the High Court.

6. The appellant raised several points before the High Court which after hearing the parties confirmed his conviction but reduced his sentence to rigorous imprisonment for three years.

7. In support of the appeal Mr.

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1982 Supreme(SC) 63

Cases Referred (2)