2009 Supreme(Guj) 460

2009 (3) GCD 2288 (Guj) (DB)
Hon’ble Mr. Justice J.R. Vora &
Hon’ble Mr. Justice H.B. Antani
Lilgar Kamjibhai Pargi & Anr.
Versus
State of Gujarat
Criminal Appeal No. 874 of 20021—Decided on 04/08/2009

Point in Issue :
Whether trial Court rightly convicted Accused Nos. 6 and 7 and also rightly acquitted the rest of the eight accused?

Headnote:Head Note :

       (a) Criminal Trial — Eye-witnesses — Appreciation of their depositions — Cardinal principles — Stated.

       Held :

       It is necessary to bear in mind that when prosecution proposes to establish the case through direct evidence of eye-witnesses, it becomes the duty of a Court to appreciate such evidence carefully. The evidence of eye-witnesses cannot be brushed aside lightly or on imaginary or flimsy ground. Ordinarily, an eye-witness is worthy of credence unless it is established that the witness has reason to fabricate the case against the accused and that the facts from other evidence on record establish that it would not be just and proper to rely upon such witnesses. In cases of eye-witnesses, such evidence is required to be tested by considering as to what was the proximity of the witnesses with the scene of offence, what was the opportunity available to them to have witnessed the incident, whether the particular eye-witness was capable of observing of incident taking place and reproduce the same before the Court, etc. Once it is established that the presence of the eye-witness at the scene of offence was natural and that he had an opportunity to observe the incident, then unless it is shown that the evidence of an eye-witness is tainted for the sound reasons, such evidence must be acted upon. Needless it is to say that, each case stands on its particular facts, but generally, while appreciating the evidence of an eye-witness, the above cardinal rules should be taken into consideration by a court. [Para 10]

       Head Note :

       (b) Criminal Trial — Eye-witness — Injured eye-witness — Even if related and interested worthy of some credence subject to strict judicial scrutiny — Principles of appreciation indicated.

       Held :

       It must be noted that so far as the injured witnesses are concerned, their evidence is required to be considered in a particular manner. Injured witnesses even if they are related and interested are worthy of some credence subject to strict judicial scrutiny. This is so because when the injury is not apparently self - inflicted and is found corroborated by medical evidence immediately after the incident, ordinarily, the evidence of such injured witness cannot be assessed with the air of suspicion. Once the presence of the witnesses is established by the prosecution at the scene of offence, then only further scrutiny by the Court would be in what manner the injured witnesses reproduce in Court the crime committed. The presence of eye-witnesses at the place of occurrence cannot be suspected. Further, injured witnesses, unless cogent reasons shown by the defence, would not omit the real culprits and implicate falsely the accused person. The evidence of injured witnesses being of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine that how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. An injured eye-witness may be exaggerating in their say, but such exaggerations may be discarded but not his entire evidence. The Court while appreciating the evidence of injured eye-witnesses must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation must be ignored. It must not be forgotten that there is a tendency amongst the truthful witnesses even to back up a good case by false or exaggerated version. In this type of situation the best course for the Court should be, to discard the exaggerated version or falsehood but not to discard the entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. [Para 11]

       Head Note :

       (c) Criminal Trial — Witnesses — Contradiction in statements — Kind of contradictions and appreciation of — Principles in this regard stated.

       Held :

       The contradictions as per the settled law only goes to the root of the case would be material and would impeach the credibility of the witness. There may be two types of contradictions in the evidence of witnesses. One category covers the contradiction which witnesses create between the prosecution case and the deposition which they give before the Court. Meaning thereby that, when witnesses may improve their version in the Court from the version they gave before the police during investigation and these are the contradictions between the statements given by the witnesses before the police under Section 161 of the Code of Criminal Procedure and the deposition given in the Court. To appreciate the evidence of witness, it must always be an endeavour of each Court to ascertain whether witnesses improve the prosecution case in this respect and contradicts the original version of the prosecution case as to destroy the genesis of the story which was revealed from the investigation. Such contradictions can be proved through the investigating officer. The second type of contradiction is a contradiction amongst the witnesses. That is to say that the prosecution case developed by the witnesses in their deposition is destroyed by the other witness deposing something contradictory to other prosecution witness.

       When an eye-witness is examined at length it is quite possible for him to make some discrepancies even no truthful witness can possibly escape from making some discrepant details, but it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of a version that the Court would be justified in jettisoning his evidence of such witness. Mere variations falling in the narration of an incident must be ignored and adopting very serious view in this regard would be unrealistic approach for judicial scrutiny. Such discrepancies are not vital and cannot affect the credibility of the evidence of witnesses. [Para 27]

       Head Note :

       (d) [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 141 and 149 — Vicarious liability — Engrafted under — Determination — It must be proved by cogent evidence that accused were actuated by common object of assembly and that common object must be one set out in Section 141 of the Code.

       Held :

       Vicarious liabilities in criminal law is engrafted from Sections 141 to 149 of the Indian Penal Code other wise criminal law does not recognize vicarious liabilities. Any member of unlawful assembly becomes liable for the act of any other members of unlawful assembly, if the offence is committed in furtherance of common object as has been mentioned in Section 141 of the Indian Penal Code and to ascertain common object and the application of principles of vicarious liability, circumstances of the prosecution case has to be scrutinized critically before an accused is convicted as a member of an unlawful assembly. It must be proved by cogent evidence that accused were actuated by common object of the assembly and that object must be one of those set out in Section 141 of the Indian Penal Code. Where common object of unlawful assembly is not proved, the accused person cannot be convicted with the help of Section 149 of the Indian Penal Code. Sharing of the common object by all the accused has to be ascertained while appreciating the evidence from the facts and circumstances of the each case and there cannot be any general rule or straight jacket formula in this regard. Some help may be obtained from nature of weapons used, manner and sequences of attack and the setting and surrounding under which the occurrence took place. Common object is different from common intention. [Para 30]

       Head Note :

       (e) [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 143, 147, 148, 447, 302, 326, 323, 504 read with 149 alternatively Section 34 — Murder — Conviction — Appreciation of evidence — Finding as to — Sustainability — Prosecution against 8 accused — Out of which Accused Nos. 1 to 5 and 8 acquitted and only Accused Nos. 6 and 7 convicted — Appeal by accused convicted and State appeal against acquittal filed — Court while appreciating the evidence of eye-witnesses and I.O. held that Accused No. 7 inflicted two axe blows upon deceased which cause death of deceased is proved — Court also found that Accused No. 6 inflicted injury on head of the complainant is also proved — Intention to cause alleged injuries on the part of both the accused is proved, therefore, Accused No. 7 is rightly convicted for offence of murder under Section 302 and Accused No. 6 for offence under Section 324 of the Code — The other accused acquitted by trial Court were charged under Sections 326 and 302 with the aid of Sections 143, 147 and 149 — But there is no evidence that these five accused shared common object to kill deceased and they acted in pursuance of common object — They are, therefore, rightly acquitted by trial Court — There being no force in both the appeals Court rejected them.

       Held :

       Thus, while appreciating the evidence of these seven witnesses and the Investigating Officer, it is proved beyond doubt that accused No. 7 inflicted two axe blows upon the deceased which caused death of the deceased Kalyanbhai and accused No. 6 inflicted injury on the head of the complainant. It is immaterial that the complainant refers to only one blow on the deceased in the complaint as well as in the deposition. It would happen that in the commotion and depression and tension the complainant might not have seen the second blow inflicted upon the deceased by accused No. 7. All other witnesses supported the fact that the accused No. 7 inflicted two blows on the head of the deceased which was corroborated by medical evidence. [Para 28]

       There is no evidence that all the 8 accused or some of the accused or 5 accused shared common object to kill Kalyanbhai, and all of them acted in pursuance of common object or there is no evidence that all the accused knew about the common object and in furtherance of that common object, the quarrel ensued nor there is evidence that during the incident, unlawful assembly was formed and common object was put in action by one amongst them. Sequence discloses that the act first was done by accused No. 7, thereafter accused No. 6, thereafter accused Nos. 4, 5 and 8 with sticks came to the scene of offence and thereafter accused Nos. 1, 2 and 3 alleged to have pelted stones and, therefore, what appears from the evidence and appreciation of the evidence as wholesome that the acts of the accused were individual and there was no unlawful assembly of any sort. There was no relation between the act done by accused No. 7 first, then accused No. 6, thereafter accused Nos. 4, 5 and 8 and lastly accused Nos. 1, 2 and 3 and, hence, we come to the definite conclusion that the prosecution could not establish the existence of unlawful assembly and the act done by the accused in furtherance of common object. What is established is the individual liability of each of the accused.

        [Para 30]

       Though it has been argued on behalf of the appellants that one of the accused i.e. accused No. 6 was dragged from the tractor and received injuries in the same incident. It has been urged that, this indicates altercations between accused No. 6 and the witnesses. It has been urged that there is evidence that the accused No. 7 was exited and particularly when the land belong to accused, they had right to defend their property and, therefore, even if the accused No. 7 is held liable, he would be liable for the offence punishable under Section 302 Part-II of the Indian Penal Code and not under Sections 302 of the Indian Penal Code. We are unable to accept this contention as the evidence disclosed the intention on the part of the accused Nos. 6 and 7 for their individual act, and there is nothing in the evidence that any provocation was given by any of the prosecution witnesses. It was Maniben who only was preventing accused not to cultivate the land while deceased was not in the field and he was sitting near the hand pump and Jivabhai was also not there, but because both of them were assisting Maniben in the proceedings before the Mamlatdar Court, without any reason or provocation, accused No. 7 ran towards Kalyanbhai and inflicted blows. Like wise, accused No. 6 also inflicted an axe blow upon the injured Jivabhai. [Para 32]

       Law Laid Down :

       The contradictions which goes to the root of the case would be material and would impeach the credibility of a witness.