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2008 Supreme(Guj) 438
2009 (2) GCD 1539 (Guj) (DB)
Hon’ble Mr. Justice J.R.Vora &
Hon’ble Mr. Justice Sharad D. Dave
Hikha Jiva Gujaria & Ors. [Junagadh]
Versus
State of Gujarat
Criminal Appeal No. 1360 of 1999—Decided on 12/12/2008
Appearance :
Mr. Yogesh Slakhani, for the Appellants.
Ms. Archana Raval, APP, for the Respondent.
Point in Issue :
Whether in the facts and circumstances brought on record the prosecution has proved it’s case beyond doubt against accused appellant?
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302 and 302/34 — Murder — Conviction — Appreciation of evidence — Finding as to — According to prosecution appellant the four in number two having axes and rest two having sticks attacked deceased who was walking behind the complainant and caused grievous injuries resulting in death of deceased — Incident was result of some enmity between two families in connection with kidnapping a girl of accused appellant family — In all prosecution has examined seventeen witnesses — However the case of prosecution rests on evidence of two PW. 3 and PW. 4 eye-witnesses — Both there witnesses fully supports the prosecution story — Considering consistant statement of these witnesses and having no inherent weakness their evidence cannot be rejected merely because they are related or interested witnesses — Their statements are also corroborated by FIR which contains the description of the incident as given by complainant and recorded within half an hour — Court observed that minor discrepancies in the ocular evidence of the witnesses could not affect the credibility of these witnesses as they are not vital — Statement of both the eye-witnesses is further amply corroborated by medical evidence PW. 1 who has clearly stated that five of the injuries on the body of deceased could be caused by hard sharp cutting weapon — Two Panchas of Test Identification Parade Panchnama PW. 8 and PW. 10 have not supported prosecution case but Court found that evidence of Executive Magistrate PW. 16 is beyond any reproach — Court held that viewing the prosecution case and appreciating the same from all possible strict test of judicial scrutiny it appears that there is truth in the say of witnesses and that the prosecution has proved it’s case beyond doubt.
Held :
The case of prosecution rests on evidence of two eye-witness i.e. P.W. 3 Oghad Pancha, examined at Exhibit 21, P.W. 4 Pala Sajan, examined at Exhibit-22 and two other important witnesses i.e. P.W. 16 Vishalbhai Rudabhai Bharvad, Executive Magistrate, examined at Exhibit-49, who conducted the test identification parade and P.W. 17 Pradipkumar Odhavji Bhatt, examined at Exhibit-52, Investigating Officer. [Para 10]
Considering the evidence on record and the contentions raised, we are unable to come to the conclusion that both the eye-witnesses are got up one or they faked the evidence only because they are thickly related or interested in the deceased. It must be noted that the core of prosecution story right from the inception appears to be natural. [Para 19]
When we scrutinized the evidence of both the eye witnesses, on evaluation, witness Oghad pancha is well corroborated not only by First Information Report but by the medical evidence as well and by the Investigating Officer. When drawback is pointed out as to recording of FIR, it is in respect of where, in fact, FIR was recorded. This discrepancy is not at all material because within no time of the incident, the FIR came to be registered before the Police and was made a public document and embellishment in such record was impossible. When the witness gave the version and when it becomes a public record within half an hour of the incident, the fact becomes immaterial where actually the First Information Report was recorded. This is minor discrepancies on trivial matters not touching the core of the prosecution. It would be hyper technical approach to come to the conclusion that when witness erred as to the place of recording of the FIR, he must be a got up witness. This is so because, the general tenor of the evidence given by both the eye-witnesses is found credit worthy and natural. This opinion is also formed by the Trial Court and this Court will have to attach due weight to the opinion expressed by the Trial Court especially when the Trial Court had also an advantage to look at the demeanour of the witnesses. Same way, the evidence of Pala Sajan cannot be thrown out only because some contradiction appeared in deposition and police statement only in respect of how he reached Haldarwa nesh after the incident and returned to scene of offence. What is material is whether his presence at the scene of offence is natural and the account which he gave of the incident inspires confidence.
When the substratum of the prosecution case is established by weighty and affirmable evidence, it would not be proper to reject the evidence of Pala Sajan on the ground of minor variations or infirmities in the matter of trivial details. Even very honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with the persons. On the contrary, minor discrepancies in evidence may render credence to the deposition of such witness because parrot like statements and descriptions of minute details of the incident are disliked by the courts. In order to ascertain as to whether the discrepancies pointed out was minor or not as aforesaid the test is how the same affects the substratum of prosecution case. Thus, we do not find, in fact, any infirmity in the evidence of both the eye-witnesses i.e. Oghad Pancha and Pala Sajan. Their evidence is impeccable, natural, simple, credit-worthy and could not be shaken either in cross-examination or no circumstances could be shown by the defence so vital as to disbelieve these witnesses. [Para 20]
Thus, in all respects, viewing the prosecution case and appreciating the same from all possible strict test of judicial scrutiny, it appears that there is truth in the say of the witnesses and that the prosecution has proved its case beyond doubt. In all cases, it is not necessary that there should be independent witnesses only. The contention that Jagadishbhai ought to have been examined, is without substance because the role of Jagadishbhai was only to purchase ghee from the deceased and his brother and he had nothing to do with the actual incident. We cannot accept the submission of learned Advocate for the appellants that the prosecution case is adversely affected because Maldebhai, Police Head Constable, has not been examined by the prosecution which is referred everywhere in the prosecution case. Considering this argument, we come to the conclusion that Maldebhai was only a Head Constable and executing the orders of the Investigating Officer and was only assisting him. In no circumstances, it could be said that, he was so material witness that non-examination of the witness would affect adversely to the prosecution case. [Para 24]
Law Laid Down :
In all types of cases the testimony of an eye-witness is placed at the highest pedestals — The eye-witnesses are the eyes and ears of justice.
J.R. Vora, J.—Instant Appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973, and is directed against the judgment and order dated 13th of October, 1999, rendered by learned Additional Sessions Judge, Junagadh, in Sessions Case No. 164 of 1996, whereby present appellants No. 1 and 2 came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, while appellants No. 3 and 4 came to be convicted for the offences punishable under Sections 302 to read with Section 34 of the Indian Penal Code. Each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- in default to undergo simple imprisonment of 30 days.
2. As per the prosecution case, incident occurred on 10th of June, 1996, near the statute of Ambedkar at old bus-stand chowk, in the town of Visavadar, District - Junagadh, wherein Samat Sajan Charan died on account of injuries. On that day, deceased Samat Sajan and his brother P.W. 4 Pala Sajan, residents of Haldarwa nesh (hamlet), came to village Visavadar to sell ghee and purchasing of household things. Both these brothers reached Visavadar at about 8.00 a.m. and went to the shop of one Jagadishbhai Chandubhai to sell ghee. Thereafter, deceased Samat Sajan separated from his brother Pala Sajan and asked him to complete the purchasing, and that he (deceased) was going towards old bus stand and thereafter he (deceased) wanted to go to Junagadh. Now, after the deceased and his brother Pala Sajan separated, complainant Oghad Pancha met deceased Samat Sajan in the old bus stand chowk. They exchanged pleasantry and talked about a plot of land, which was to be purchased by the complainant. In the meantime, one Kathi Jagubhai and forester Chavdabhai also came there and deceased suggested to take tea together. All of them took tea at the hotel of Amubhai and thereafter complainant and deceased both went to see the plot of land and returned after about one and half hours. While when they reached at near new bus stand, in the chowk of statute of Ambedkar, deceased was walking behind the complainant and heard beckoning shouts. When complainant looked behind, he found four persons, which turned out to be four appellants herein in TI parade, were beating Samat Sajan with axe (‘farsi’) and sticks. Jagubhai Kathi, who was standing near, attempted to prevent the appellants, but in the meantime, all the four appellants started suddenly beating the deceased Samat. Out of four appellants, two were having axes and the two were having sticks. One of the appellants gave consecutive blows on the right side of the head and behind the ear of the deceased. The second appellant, who had an axe, also gave blows on the head of the deceased. It was turned out during investigation that accused No. 1 Hikha Jiva Gujaria and accused No. 2 Gogan Kalabhai had axes with them and accused No. 3 Harsur Vala Gujaria and accused No. 4 Gabha Valabhai Gujaria had sticks with them. Accused No. 2 Gogan Kala Gujaria had also inflicted an axe blow on the lower part of the body of the deceased and attempted to extract an axe from the body of the deceased. He could not do it. P.W. 4 Pala Sajan, according to prosecution case involved to Lakhabhai Sidabhai Gujaria, who was 5th accused and acquitted by the Trial Court and he was saying that to kill Samat. It was also transpired from the prosecution case that the deceased was friend of complainant Oghad Pancha and they had relation for last five years. Wife of the complainant was made sister by the deceased. The cause of dispute was that daughter of one Charan Hikha Mandan was kidnapped by the deceased and thereafter she was relieved and, therefore, for the last 15 years between these families, the enmity was continued. The complainant Oghadbhai Pancha did not know the names of the accused at that time, but in T.I. Parade, he identified four accused to be the participating accused along with weapons attributed to them. During inves
