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1995 Supreme(Guj) 427
Gujarat High Court
Judgename :K.J.VAIDYA, M.H.Kadri
VISHAL RAJENDRA TRIVEDI - Appellant
Versus
STATE - Respondent
S.CRI.A. 638 of 1994
Decided On : 10/20/1995
Headnote:(a) Criminal Trial - Appreciation of evidence - Witness giving one version before trial court & another before appellate Court - Evidentiary value of such witness - Discussed and guideline of approach given.A witness who gives two types of evidence one before the trial court and thereafter quite different at the appellate stage cannot be ordinarily trusted. But then, when the court is called upon to do justice in any case, justice is not done on some generalisation and peripheral view of the matter without minutely examining the evidence. Justice is not done on some bald apprehensions. Justice is also not done by a court tieing itself is also with some technicalities. In fact, when the court is called upon to do justice, it is not supposed to be mechanical or to be voluntarily under duress of technicalities. Judge as a human being is not a machine but has to be humane and thinking entity. He is expected to have live approach rather than to bank upon mechanically on some formal proposition without thinking afresh having the correct judicial approach accordingly. Accordingly, he has first of all got to shake up and eschew all undue obsessions, apprehensions and generalised aberrative approach eclipsing the judicial version and thereby cloting judicial discretion. To put it positively, for doing justice, he has to resolutely take care of his overall sense of duty, the conscience and decide accordingly where the probability ultimately clicks, beckoned with the sense of sound common sense. Not only that, but there is also another yardstick for this Court to decide such type of cases, and the same is the yardstick of the principle of abundant caution, that is to say, even if the Court is committing some error, it should not halt or hesitate to commit the error on the safer side, that it to say, in cash what is urged before this court is ultimately true, and if it is negatived on some general objections raised by the learned APP, whether this court would be advancing the cause of criminal justice or not? In substance while appreciating the evidence of prosecution witnesses at any stage, the court is required to be pragmatic and of sound common sense calling in aid and drawing upon its wisdom, the quintessence of the life experience. [Para 10](b) Hostile witness - Scope of - A witness supports prosecution story in trial Court - Same witness gives additional evidence in High Court, disclosing additional facts - He is not a witness hostile to prosecution - Principles to evaluate the evidence of such witness explained.Now, accordingly before we call upon ourselves to reappreciate the fresh evidence of CW 1 taken before this Court, in order that we are not misled and accordingly wander away from the just and proper decision, we feel that following should be the proper guidelines. Firstly, to find out whether the evidence that has been recorded before the trial court contains some germs by way of suggestion or to say in other words intrinsic foundation support which has indeed the direct relation, and relevance with the fresh evidence produced before the appellate court? Secondly, the ground advanced for suppressing or not adducing the said evidence before the trial court clicks reasonable and probable enough? Thirdly, if yes, then having regard to the overall probabilities of the case, the fresh evidence fits in with the original evidence before the trial court and probabilities the same in favour of the accused. Fourthly, in such type of unprecedented cases where a witness gives altogether different or shade different version, first before the trial court and thereafter before the appellate court, which in a way fully or to some extent is hostile to the prosecution and further when there is neither any express provision of law nor reported decision to enlighten the path of the court to do justice, the sound basic common sense, the test of ordinary prudence of the man, the sense of justice, equity and good conscience, when the accused has any defence, the burden to prove the same upon him under Section 105 of the Evidence Act to prove it on basis of the probabilities and for this burden on him is not that stringent, heavy and high as the one upon the prosecution, and last but not the least, is the cardinal principle of criminal jurisprudence, viz. "that let 99 accused go scot-free, but not one innocent should go to jail" are the sure guidelines to deliver safe criminal justice. [Para 11]
( 1 ) ). The question of indeed very great importance and unprecedented also in the known annals of decided cases has cropped up for our consideration in this appeal. The said question is What indeed is the evidentiary value of that prosecution witness on whose evidence indisputably (alongwith other pieces of evidence) the trial court recorded the order of conviction and sentence against the accused under Section 302 of the I. P. Code who now comes before the court allegedly making clean breast of his conscience saying that while giving evidence before the trial court he in a state of utter unenviable helpless self pitied embarrassing condition suppressed the real and material facts of the case having direct bearing upon two vital questions ultimately determining firstly the nature of the alleged offence committed by the appellant-accused and accordingly necessary corollary to the same secondly the quantum of sentence pursuant thereto ? That to give an indication as to who is the said witness it may be stated that he is none other than the father of the appellant-accused himself who has confessed before this Court to have been the sole cause for victimising the appellant-accused charging him as having committed the murder of his second wife Lata. And the evidence which he admits to have suppressed and which is projected to be the real unvarnished truth before this court is firstly that Lata his second wife was of easy virtue having illicit relations with one Rajubhai and was also having the cankerous nature and secondly the same was not liked by the appellant-Vishal and the suppressed pent up provocation reaching the flashing point one day drew him blank to stabbing her to death Under the circumstances what ultimately we are called upon to decide is Whether a witness having given one set of evidence before the trial court on oath resulting into the conviction of the appellant-accused under Section 302 of the I. P. Code if he not exactly turns around but at the same time gives some material additional facts quite relelvant and pertinent having ultimate bearing on the complexion and nature of the offence and on resultant awarding of sentence can he be said to be a witness hostile to the prosecution and if not firstly how indeed his evidence is required to be tested and reappreciated and secondly what indeed is the evidentiary value of such a witness ? This introductory preface to examine the most important question cropped up with utmost care and circumspection arises in the background and context of firstly the evidence led before the trial court and secondly thereafter before this court by re-examining PW 4 Rajendra Trivedi as Court Witness No. 1 is stated in detail as under:
( 2 ) ). Prosecution case including that of evidence of P. W. 4-Rajendra Ramanlal before the Sessions Court. The prosecution case as briefly summed up in charge Exh. 2 against the accused is to the effect that the alleged incident wherein Vishal Rajendra boy aged 18 stabbed his step-mother Lata to death by giving her three successive knife blows outside their house situated in Gokulnagar Society at Dakor took place on 18-7-1993 at about 12. 00 noon. The eye-witnesses to the alleged incident were two namely (1) P. W. 2 Rachna Rajendra; and (2) P. W. 5 Prithvik Rajendra (a child witness aged 12 as corroborated by P. W. 4-Rajendra Ramanlal Trivedi and the medical evidence brought on the record. On the basis of this allegation FIR Exh. 9 was filed by P. W. 2 Rachna Rajendra which was recorded by P. W. 10 P. S. I. Dashrathbhai Parmar of Dakor Police Station on the very day within the matter of hours only. 2. 1 At trial the accused pleaded not guilty and claimed to be tried as according to him he was falsely implicated. No specific defence was raised while availing the opportunity to explain away the circumstances appearing against him. However on perusing the cross-examination of prosecution witnesses it appears that the relations b
