CR.A/853/1987 of BHIKHUBHAI D PATEL Vs STATE OF GUJARAT on 14 November 1995

1. Whether Reporters of Local Papers may be allowed to see the Judgment ?

2. To be referred to the Reporter or not ?

3. Whether Their Lordships wish to see the fair copy of Judgment ?

4. Whether this case involves substantial question of law as tothe interpretation of the Constitution of India, 1950 or any order made thereunder ?

5. Whether it is to be circulated to the Civil Judge?

Shri D.D. Vyas, Advocate for the appellant.Shri S.R. Divetia, Additional Public Prosecutor for therespondent State.

Coram: A.N. Divecha,J. & H.R. Shelat,J.

(14-11-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

Being aggrieved by the judgment and order dated 12thOctober 1987, passed by the then learned Sessions Judge-Bulsar atNavsari, in Sessions Case No. 24/87, convicting the appellant ofthe offence under Section 302 and 324 of the Indian Penal Code,and sentencing him for the offences under Section 302 to lifeimprisonment and passing no separate sentence for the offenceunder Section 324, the original accused-appellant has preferredthis appeal.

Dayaljibhai Patel are the cousins, while the accused-appellant istheir uncle. Ramilaben, the sister of Thakorbhai Lallubhaimarried Dhirubhai Bhikhabhai Patel. Both had settled at Sharjah.In the last week of November 1986 Dhirubhai Bhikhubhai had cometo India and was available at Malvan, his native place.Thakorbhai Lallubhai wanted to see his brother-in-law. He andHemantkumar Bhagwanbhai on 1-12-86 decided to go to DhirubhaiBhagwanji Patel at Malvan on 2nd December 1986. They alsodecided to meet in bazaar at Untdi. Thakorebhai was to arrive atUntdi from his place of work. In the evening of 2nd December1986, both met at the place agreed upon, i.e., rendezvous andthen on cycle went to Malvan to see Dhirubhai Bhikhabhai Patel.At 8.15 p.m., they returned back to Untdi. HemantkumarBhagwanbhai was in hurry to go back to his place because of gripeor collywobbles. Thakorbhai Lallubhai then asked him to gosaying that he would be following him taking his tiffin-box.Thakorbhai Lallubhai after taking his tiffin-box was going to hishouse by the road called Untdi-Village to Dipi Falia Road. Onthe way near primary school he found that the accused-appellantand Hemantkumar Bhagwanbhai were altercating and both werereviling. He inquired what the matter was. Each then foundfault with the other saying that the other one hit his cycle tohis cycle. Thakor then tried to pacify both saying that owing tothe dark event of such collision might bonafide occur.Bhikhubhai,the implacable appellant then got wild and feelinganguished and offended he took out a knife from his pocket, and agave blow to Thakorbhai Lallubhai which landed on the leftshoulder. Thakorbhai sustained bleeding incised injury.Hemantbhai then tried to rescue. The appellant then gave threeknife blows; as a result Hemantbhai sustained fatal injuriesnamely, (1) Incised wound over supra-claricular fossa on leftside which was above down ward from lateral to medial size 1 x 1x 1 cm; (2) Incised wound over left axillary fold and lateralborder of left scapula size 1 x 1 cm., active bleeding from woundstrait in direction; and (3) Incised wound over R. Medial borderof scapula near 4th thoracic size 1 x 1 cm and direction is abovedown ward from lateral to medium. He then fell down. ThakorbhaiLallubhai who was aghasted, went to the place of Dayalji Devabhaihis uncle to inform. Dilip,and Hitendra the sons of Dayalji andDhanuben, the wife of Dayalji were present. He informed aboutthe incident and all the four went to the scene of offence wherethey found Hemant lying in wounded condition and was no more. Atthat time, Jayeshbhai Thakorbhai Joshi was passing by riding overhis Rajdoot. He was requested to inform concerned persons inDipi Falia. Thereafter, Thakorbhai was taken to Dungri formedical treatment, but as the Doctor was not available he wastaken to Bulsar where he lodged the complaint and also tookmedical treatment. He was hospitalised and discharged on 8thDecember 1986. The police officer of the Bulsar Rural PoliceStation investigated into the offence. At the conclusion of theinvestigation, the charge-sheet against the appellant before the

Court of the Additional Chief Judicial Magistrate at Bulsar cameto be filed. As he was having no jurisdiction to hear and decidethe case, the learned Magistrate committed the case to the Courtof Sessions at Navsari. The case was then registered as SessionsCase No. 24 of 1987. The then learned Sessions Judge kept thecase with him for hearing and disposal in accordance with law. Acharge was framed against the appellant at Exh.1 to the effectthat on 2-12-1986 at 20-30 hours at Untdi on the road leading toDipi Falia near Primary School with the intention of causinginjuries sufficient in the ordinary course of nature to causedeath, gave knife blows and inflicting fatal injuriesintentionally caused the death of Hemant and voluntarily causedhurt to Thakorbhai by knife, the instrument for cutting orstabbing etc., and committed the offences under Sections 302, 324Indian Penal Code and Sec. 135 of Bombay Police Act. Knowingabout the allegations levelled against him, the appellant pleadednot guilty and claimed to be tried. The prosecution thenexamined 14 witnesses and produced documentary evidence, alongwith panchnamas, certificate of the Doctor, P.M. Note etc.Appreciating the evidence before him, the then learned SessionsJudge,Navsari, convicted the appellant as aforesaid but acquittedhim of the offence punishable under Section 135 of the BombayPolice Act. The appellant, who came to be convicted, haspreferred this appeal assailing the judgment and order of thelower Court.

3. Mr. D.D. Vyas, the learned Advocate representing theappellant, submitted that the learned Judge below committed theerror in reaching to the conclusions against theaccused-appellant and convicting him. There was no sufficientmaterial on record justifying the conviction. The learned Judgebelow overlooked the inimical relations, and appreciated theevidence wholly against the sound principle of law. He thenpointed out what were the errors committed by the learned Judge.Against such submission, Mr. Divetia, the learned AdditionalPublic Prosecutor for the respondent submitted that no error wascommitted. The order of conviction was in all respects quiteconsistent with the law and evidence on record. The testimony ofthe eye witness and other witnesses was rightly accepted by thelearned Judge and there was no justification to upset thefindings as well as order of the learned Judge below.

4. Here in this case, 14 witnesses are examined, but theevidence of Thakorbhai Lallubhai who is the only eye witness ismaterial which is rigorously assailed by the learned Advocaterepresenting the appellant. When the case mainly hinges upon theevidence of Thakor Lallubhai recorded at Exh.6, the same requiresto be scanned. Before we do so, we will be in brief referringthe evidence of other concerned witnesses whose evidence is tosome extent relevant. Jayeshbhai Thakorbhai Joshi does not throwlight much on the incident because he was not the eye witness.

His evidence (Exh.14) shows that when he was passing riding overhis Rajdoot he saw Hemantkumar lying on the ground injured.Kushalbhai Chhotubhai (Exh.22) has merely stated that theappellant had been to his place soon after incident for water.While giving a glass of water, he could see that there was injuryon right little finger of the appellant and his clothes werebloods-stained. The doctor performing the post mortem and givingtreatment both to the appellant and Thakorbhai Lallubhai isexamined at Exh.13. From the evidence of these witnesses, whatcan be deduced is that some incident took place whereinaccused-appellant, Thakorbhai and Hemantbhai, were injured andHemantbhai lost the life. Who did the wrong cannot be spelt outfrom the evidence of these witnesses and for that the evidence ofThakorbhai Lallubhai is required to be looked into.

5. It has been submitted on behalf of the respondent thatthe Court can convict the accused only on the testimony of onewitness, for quality was material and not the quantity. We donot dispute the principle of law that only on the evidence of asingle witness the accused can be convicted, provided theevidence of that witness is credible i.e., free from doubt,appeals to the conscience of the Court, and leads to the guilt ofthe accused positively. No doubt, Thakorbhai Lallubhai hasnarrated the incident accounting in full and has therebysupported the case of the prosecution - respondent; but we see nogood reason to unflinchingly rely upon the same.

6. Bhaghubhai Master had bred the belief alike others thatKamuben in the village was a witch. As such ill-based notion andvagary was looming large over the concerned, the betrothal ofParvatiben was broken. Consequently, the family owing to theresultant rift came to be divided into two rival groups,Bhaghubhai, Thakorbhai, Hiteshbhai Dayaljibhai and others haveformed one group, while the appellant, Kamuben and others theopposite group. Both the groups were inimical to each other, andthat fact has been admitted by Thakorbhai Lallubhai and HiteshDayaljibhai. Parvatiben is still unmarried and therefore thebitterness instead of being gradually slaked, it has rapidlyaggravated, making every one to hover for retaliation.Thakorbhai Lallubhai has admitted in his cross-examination thathe does not have speaking terms with his uncle the appellantbecause his father and the appellant are having inimical terms.He is also interested in seeing that appellant is convicted,ofcourse making it clear that despite the enmity he was tellingthe truth. When from the evidence of Thakorbhai Lallubhaivitriolic aspect emerges and each considers the other one to bethe arch-rival, we would be slow in accepting the evidence ofThakorbhai unless his evidence is found free from doubt andcertainly appealing leaving no possibility of the appellant'sinnocence. We are mindful about the law that enmity cannotalways damage the prosecution, it cuts both the ways, one may tell the truth, or a lie. The prosecution has therefore in suchcases eliminate the possibility running counter to its say, orlikely to impair its case, and show that evidence of the witnessis speckless. If that is not done, or necessary materialseliminating the same are not available from the facts on record,the Court will be cautious and slow in placing reliance, it willweigh the evidence of such witness with stinginess, and the Courtwill insist on independent corroboration. On query, therefore,Mr. Divetia, the learned Additional Public Prosecutorrepresenting the respondent submitted that Hitesh Dayalji wascorroborating Thakorbhai Lallubhai obliterating the questionmarks. No doubt, Hitesh Dayalji after Thakor Lallubhai informedhim at his place, went to the place of offence along withThakorbhai and saw Hemant Bhagwanbhai lying on the ground inwounded condition, and on further check-up it was found thatHemant was no more. But Hiteshbhai cannot and certainly does nottestify as to who assailed first and who caused injury toHemantbhai and how because he was not a witness to the incident.His evidence therefore cannot be said to be a corroboratingevidence with regard to the assailant and the manner in which theincident happened.

7. It has been suggested in the cross-examination before the

7. It has been suggested in the cross-examination before the lower Court that Thakorbhai Lallubhai and the deceased Hemantbhaihad gone to Malvan to see the brother-in-law of Thakorbhai whohad come back to India from abroad for some time. At the time ofthe visit they were drunk and had turned indiscreet anddiscommodious to the other one. On way back both having reachedto tumultuous state, became fratricidal and caused the injury tothe other one; and to screen oneself from the liability, a falsecase involving the appellant was engineered. Even if it isbelieved that the defence is got up and is far from truth,theprosecution has to eliminate the possibility of feud-vendetta,the enervating factor and prove the case beyond reasonable doubtwhich is not done. The prosecution is hence left in the lurch.Wewill, however scrutinize the evidence of Thakorbhai Lallubhaiwith care and caution from other angles too.

8. It seems, Thakorbhai Lallubhai was very anxious to have the medical treatment first, rather than going to the policestation for lodging the complaint. He therefore went to thedoctor at Dungri but the doctor was not available. He thereforewent to Bulsar. After going to Bulsar he did not go to thehospital, but straightway went to the police station and lodgedthe complaint though he was anxious about the medical treatmentand certainly he must be because he was having bleeding injuryand one would not know how the things would develop. The factthat he goes to the police station first despite his anxietyabout the medical treatment raises a doubt because of hisconduct. If at all he was keen to have the complaint beinglodged before the police station earlier, the outpost at Dungri was there on the way. He could have gone there and lodged thecomplaint, but he did not go to that outpost and straightway wentto Bulsar. His such conduct also leads us to believe that underthe guise of medical treatment he was deliberating with themembers of his group what to do and how to do and who should beimplicated; and after setting well in mind he lodged thecomplaint involving the appellant. Such possibility cannot beruled out.

9. Looking to the first abovestated injury on the person ofthe deceased, it can be assumed that there must be profusebleeding, and the assailant because of the length of the penknife must be very close to the deceased. The clothes of theappellant therefore must have been blood-stained to a littleextent if not extensively. The C.A.ought to have marked theblood stains of deceased's blood. It may be stated that theblood-stains on the clothes of the appellant were found, and thatfactor has influenced much to the learned Judge below in reachingto the conclusions against the appellant; but that cannot bemaintained being erroneous. The report of the Chemical Analyserreveals that the blood group of the blood-stains found on theclothes of appellant was 'B' and the appellant's blood group isalso 'B'. It may be recollected at this stage thataccused-appellant was also injured. The doctor treated himbecause of the injury on his little right finger. Because ofthat injury also, the blood-stain of 'B' group came to be noticedon the clothes of the appellant. The blood group of the deceasedis 'A' and no such blood-stain could be seen by the laboratorywhile analysing the appellant's clothes sent to it. Absence ofsuch blood-stains, therefore, leads us to think twice about thebonafides of Thakorbhai Lallubhai.

10. At the hearing distance there is a locality called DipiFalia where people reside. It is made clear in the evidence ofVithalbhai Nanabhai Patel that if some one shouts remaining fromthe place of the incident the persons of Dipi Falia would hearespecially because it was a winter-night. Thakorbhai Lallubhaidid not shout for help although Hemant was breathing last. Hissuch conduct coupled with above discussed factors,in our view,raises suspicion.

11. On the right little finger of the appellant the Doctorfound injury which can be caused by a sharp cutting instrument.How the appellant came to be injured if at all he was theassailant is a point not made clear by the prosecution. It wasdark and at that time perhaps Thakorbhai might not have noticedthe injury on the appellant's person, but on the next day orthereafter he came to know. He however did not explain beforethe lower court. This aspect of the case coupled with abovestated facts leads us to agree with the appellant's learnedAdvocate that how the incident took place has been suppressed so

12. If the weapons or thing used are not found out by theinvestigating authority, it can never be a ground to throw theprosecution's case overboard. But if the prosecution comes withthe specific case that because of the particular muddamal weaponbefore the Court, the injury has been caused, the same has to beestablished and if the prosecution fails to prove that aspect, itwould discredit the truth of the case if nothing else cogent,supporting the case is there on record. When the muddamal knifewas shown to the Doctor, about the possibility of the injuries,he made it clear that the injuries he noted no doubt could becaused, but no clear cut marks which he saw would appear. Hefound irregular and rough borders of the injuries on the personof the deceased instead of clearcut which would go to show thatby another weapon, may be sharp cutting, the injury was caused tothe deceased and Thakorbhai, but certainly not with the muddamalknife said to have been possessed by the appellant. Who washaving that weapon; with which the injury noted by the Doctorcould be caused, whether particulars thereof were available,where the same could possibly be are shrouded in mistery andtherefore, there is a reason to accept the appellant's submissionthat the origin is suppressed, some one else did the wrong, orthe wrong was done by Thakorbhai himself.

13. Facing with such situation, Mr. Divetia, the learnedAdditional Public Prosecutor representing the respondent, thenemphasised much on the discovery of the muddamal knife at theinstance of the accused-appellant.No doubt,the accused-appellantin the presence of the panchas, and Investigating Officer pointedout the knife, about which the police says that the blood-stainshaving blood group 'A' could be noted thereon. But that aspectof the case will not help the prosecution. It is made clear bythe Investigating Officer, whose evidence has been recorded atExh.34, that the place from where the knife was found was a placeaccessible by all. It was a bush on the border of the field. Ifthat is so, whether the appellant-accused can be fastened withthe liability has to be determined. A similar question arosebefore the Supreme Court in the case of Trimbak vs. The State ofMadhya Pradesh, A.I.R. 1954 Supreme Court, 39, wherein it isheld "when the field from which the ornaments were recovered wasa open one and accessible by all and sundry, it is difficult tohold positively that the accused was in possession of thearticles. The fact of recovery by the accused is compatible withthe circumstance of somebody else having placed the articlesthere and of the accused somehow acquiring knowledge about theirwhereabouts and that being so, the fact of recovery cannot beregarded as conclusive proof that the accused was in possessionof the articles" and consequently the accused cannot be fastenedwith the liability. In another case between Lacchhman Ram vs.State of Orissa, A.I.R. 1985 S.C. 486,the same principle is reiterated, ofcourse that principle is not found applicable tothe facts of that case. This Court in the case of NarsinhbhaiDahyabhai Vaghela vs. State, XXXV (1) GLR 118, reiterated thesame principle. In another case between Dudh Nath Pandey vs.State of U.P., AIR 1981 S.C. 911, while dealing with thequestion of recovery of pistol in murder case, the Supreme Courthas held "Evidence of recovery of the pistol at the instance ofthe accused cannot by itself prove that he who pointed out theweapon wielded it in offence. Where the statement accompanyingthe discovery is woefully vague to identify the authorship ofconcealment, the pointing out of the weapon may at best prove theaccused's knowledge as to where the weapon was kept." Here in thecase on hand as made clear by the Investigating Officer at themost knowledge of the appellant can be said to have been provedand not the possession or the role alleged to have been played atthe time of the incident. In view of such law made clear by theabovestated authorities, and situation of the place wherefromknife is found the contention must fail.

14. One more point casting doubt on the testimony ofThakorbhai Lallubhai cannot be overlooked. Soon after theincident Thakorbhai goes to the place of his uncle DayaljibhaiDevabhai. On the way there is a house of the police patel.Ordinarily in the village, even if a person is illiterate andrustic, knows that if some wrong is committed, the police patelis required to be informed provided he is available. Though onway the house of the police patel is there Thakorbhai while goingto the place of Dayaljibhai Devabhai does not inform the policepatel. He has taken no care to explain why; which would go toshow that he wanted to have his story improved or developed whichwould be found suitable later on. Thakorbhai has also on beingquestioned by the Doctor remained silent and has not given thename of the assailant and that aspect of the case, ofcourse notalone, but coupled with the abovestated factors, casts the doubt.We therefore find that his testimony cannot be free fromreasonable doubt or animosity. When the evidence of Thakorbhaithus, tainted with several doubts discrediting the truth of hiscase, the prosecution ought to have led independent cogentevidence satisfying the conscience of the Court which has notbeen done, and therefore we are not inclined to place anyreliance on the evidence of Thakorbhai. The possibility of thesame having been tainted with improvements cannot be ruled out.When that evidence is kept aside, there is no other evidence onrecord going to show that the appellant was the assailant; hecaused the injuries and Hemantbhai sustaining the injuries,succumbed to the same,and Thakorbhai also sustained the injuriesbecause of the blow from the appellant. In our view, therefore,the learned Judge below fell into error in accepting the evidenceof Thakorbhai and convicting and sentencing the appellant asaforesaid.

15. In the result, the appeal requires to be allowed andconviction and sentence inflicted require to be set aside.Consequently, the appeal is hereby allowed. The judgment andorder of the lower court convicting the appellant of the offencesunder Section 302 and 324 of the Indian Penal Code are hereby setaside, and appellant is acquitted of the same. The appellant beset at liberty forthwith if not required in any other matter.The muddamal shall be disposed of as per the order of the lowercourt.

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