NARENDRASINH KESHUBHAI ZALA versus STATE OF GUJARAT on 16 March 2023

1. Vide a judgment dated 19.07.2003 passed by the Ld. Addl.Sessions Judge, Fast Track Court at Surendranagar, Gujarat in SessionsCase No. 27 of 2002, the appellant Narendrasinh Keshubha Zala stoodconvicted for having committed offences under Section 302, Indian PenalCode read with Section 34, Indian Penal Code as also under Section 25(1) A and Section 27 (2) of the Arms Act. In relation to the offenceunder Section 302, Indian Penal Code, he is sentenced to sufferimprisonment for life and pay fine of Rs. 500 and in default thereof, anadditional sentence for one month. The same stands affirmed by theHigh Court vide impugned judgment.

2. In brief, the case set up by the prosecution reads as follows: on14.1.2002 at around 2:30 AM police registered an FIR in relation to themurder of a person namely, Ram. The complaint was registered on theasking of Shri Mahipal K. Jadeja (PW-1), father of the deceased in thenight intervening 13-14[th] of January, 2002. The Complaint records thecomplainant to have stated that at around 11:00 PM one person knownas Munna Bhai alias Krupal Rajnikant (PW-6) had come on a motorcycleto his residence informing him of his son being critically injured andbeing taken to MG Hospital in an autorickshaw. The Complainant alongwith this person reached the hospital where he saw the dead body of hisson lying on a stretcher. There was a cut on the left eyebrow and theright side of the neck bleeding profusely. On inquiry he was informed bythe doctor that the victim had died as result of a fire shot injury.Significantly, in the complaint recorded the same day at around 02:15AM he states that, his son had left the house for a walk after havingdinner. Further, “… I have no information as to how and who killed myson…” and that “…his son had no animosity prompting anyone to kill…”.

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A3. With the registration of the FIR, investigation was conductedby I.O. Manbha Bepasaheb Parmar, (PW - 20) which revealed that on13.1.2002 at around 9:30 PM, while the deceased and Nirav BipinbhaiPatel (PW-3) were sitting on the Nala near the Circuit House, accusedNarendra and Shailendra – pillion rider came on a motorcycle and aftera brief talk, accused Narendra Zala (Appellant herein) shot dead theBdeceased with a gun, which was discovered pursuant to his disclosurestatement. With the completion of investigation, challan was presentedin the court for trial only against accused Narendra Zala.

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4. The Ld. Trial Court convicted the accused on the ground thatthe incident was witnessed by Nirav Bipinbhai Patel (PW-3), whoseCtestimony, being the sole eye-witness was trustworthy and reliable tothe extent that there was motive, being money dispute which the deceasedhad to return to the Accused. The Police pursuant to Appellants disclosurestatement recovered the weapon of crime.

5. The High Court upheld the judgement of the Ld. Trial Court onDthe ground that the prosecution story was reliable and worthy of credence.Even on the absence of motive being established, i.e. whether or not thedeceased owed money to the Appellant, the testimony of the soleeyewitness (PW-3), worthy of credence, fully matched with the case ofMurder as set out by the prosecution.E6. We have heard learned counsels for both the parties at length.Certain facts are not in dispute:

(A) The identity of the deceased and the death as result of a gunshot injury; (B) The Post Mortem conducted by Dr. Ravjibhai Makwana(PW - 5) who prepared the Post Mortem Report (Ex. P.36) evidencingFthe fact that 60 metal pellets were recovered from the muscular tissuesof the neck of the deceased; (C) The cause of death being haemorrhageon account of injury on the right side of the neck pursuant to the use offirearm; (D) The prosecution case rests on the testimony of materialwitnesses, i.e. PW-3 sole eyewitness, who was the deceased’s friendand PW-1 who is father of the deceased.G

7. In the considered view of this Court this case primarily restssolely upon the testimony of PW-3, which is full of blemishes, absolutelyuninspiring in confidence and the witness not having deposed the truth.

8. It is a settled principle of law that doubt cannot replace proof.HSuspicion, howsoever great it may be, is no substitute of proof in criminal

jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp (3) SCC463]. Only such evidence is admissible and acceptable as is permissiblein accordance with law. In the case of a sole eye witness, the witnesshas to be reliable, trustworthy, his testimony worthy of credence and thecase proven beyond reasonable doubt. Unnatural conduct and unexplainedcircumstances can be a ground for disbelieving the witness. This Courtin the case of Anil Phukan v. State of Assam, (1993) 3 SCC 282 hasheld that:

“ 3. … So long as the single eyewitness is a wholly reliable witnessthe courts have no difficulty in basing conviction on his testimonyalone. However, where the single eyewitness is not found to be awholly reliable witness, in the sense that there are somecircumstances which may show that he could have an interest inthe prosecution, then the courts generally insist upon someindependent corroboration of his testimony, in material particulars,before recording conviction. It is only when the courts find thatthe single eyewitness is a wholly unreliable witness that histestimony is discarded in toto and no amount of corroboration cancure that defect…”

The same principle has been enunciated in: Amar Singh v. State(NCT of Delhi), (2020) 19 SCC 165.

9. In the instant case when we examine the testimony of PW-3,we notice him to have deposed that on the fateful night ie. 13.1.2002,around 11 PM both he and the deceased were sitting on a Nala near theCircuit House in Surendranagar. At that time, accused came on amotorcycle with Shailendra as a pillion rider and after abusing, wantedRam (deceased) to state as to when he would return the money borrowedby him. When the deceased stood up to answer, Narendra pulled out apistol and after placing it on the neck, said, “… this would not take muchtime to finish you.” Thereafter, accused fired the pistol. Resultantly, thedeceased collapsed on the ground and started bleeding profusely fromthe neck. Immediately, Narendra Zala and Shailendra drove awaytowards the Sardar Society. PW-3 states that the incident left him shockedand stunned. He was so scared that he ran towards the society wherehe met his uncle Harshad Veljibhai (PW-9) and his friend Manish NatvarlalTrivedi (PW-8) whom he informed of the incident. Seeing his condition,he was asked by his uncle to go home and sleep. Next morning, he wentto the house of Ram and narrated the incident to his mother and sister A

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AHeenaba Pradipsinh Zala (PW-2). Thereafter he went to the hospitaland informed Ram’s father (PW-1)of the incident. Police interrogatedhim at different places and recorded his statement on the 14[th] of Januaryat around 4:30PM at the Police Headquarters. Cross examination partof his testimony reveals this witness to have repeatedly improvised hisinitial statement, disclosed to the Police. Illustratively he had not informedBthe Police of having disclosed the incident to the sister of the deceased.He had also not disclosed to the Police that there was exchange ofwords between Ram and Narendra (Appellant herein) in relation to somemoney owed by the deceased to the accused. This may not have anyeffect on the veracity of his statement. But what makes his testimonyCshaky and the witness unbelievable is his admission of the PoliceHeadquarters being in close proximity to the place of occurrence of theincident and despite knowing that police is always posted at the gate hedid not approach the police. The explanation furnished is only that hewas “much scared”, which prudently is not acceptable, given that hewas a close friend of the Deceased.D

Further, his credit stands impeached in the cross-examination partof his testimony. The witness is an adult, mature and worldly wise. He isaged 24 years and runs a grocery shop. He is not illiterate, yet he choseto not take any action, even to save the life of his friend. His explanationthat he went home and slept is uninspiring in confidence for the incidentEtook place in his presence and in close proximity of habitation, morespecifically at a short distance i.e. just 3-4 minutes of walking distancefrom the Police Headquarters where constables are posted around theclock. He left his friend profusely bleeding on the spot but did not seekany help and immediately did not report the incident to the family membersFof the deceased whose house he visited only the following day at around8:00 – 9:00AM.His conduct of going off to sleep, having seen his friendbeing murdered right before his eyes and then not visiting the hospitalforthwith is quite unnatural. Also he did not inform the incident to hisparents. It was only when the police interrogated him that he named theGaccused. His testimony is not free from embellishments, nor is notcorroborated by any other evidence. Also, he admits not to have anyinformation of any monetary transactions between the accused and thedeceased.

10. This Court on multiple occasions has held that it is not thequantity but the quality of witnesses and evidence that can either makeH

or break the case of the prosecution. It is the duty of the prosecution toprove that the testimonies of the witnesses that it seeks to rely upon areof sterling quality, i.e. fully trustworthy and absolutely free from anykind of blemish. [Prahlad v. State of M.P.(supra); Amrik Singh v.State of Punjab, (2022) 9 SCC 402; Pramila v. State of U.P., (2021)12 SCC 550; Krishan Kumar Malik v. State of Haryana, (2011) 7SCC 130]

11. Examining the testimony of an independent witness, Munnabhai alias Krupal Rajnikant (PW-6), we find him to be the one to havefirstly informed the father of the deceased (PW-1) of his son havingsustained injuries and taken to MG Hospital, in such a condition. As perhis version, hearing cries of some fight, he rushed to the spot and noticedthe deceased lying on the road bleeding profusely. On his asking, oneautorickshaw driver took him to the hospital on the promise of payingthe fare. Who is this person? Why he himself did not take the deceasedto the hospital? All this remains unexplained. For after all, he knew himand had informed the father of the deceased. Is it that he himself was asuspect? Significantly, the witness admits not to have heard the sound ofthe gun shot. He contradicts himself by stating that he had informed thepolice of the incident only on 15.05.2002. He does not identify theautorickshaw driver and was not familiar with him. Significantly, theautorickshaw driver has not been examined in the Court.

12. When we examine the testimony of the Complainant (PW-1)we notice him to have deposed that around 11 PM, one person namelyMunna Bhai alias Krupal Rajnikant (PW-6) came on a motorcycle andinformed that in a critically injured condition, Ram, had been taken toMG Hospital in an autorickshaw. Immediately, he reached the hospitaland got recorded his complaint with the police. It is the case of thiswitness that Nirav (PW-3) met him in the hospital at around 9:30AMand at that time informed him of the incident. This witness does notcorroborate the testimony of Nirav (PW-3) of the disclosure of the incidenteither to his wife or daughter (PW-2). Further, if the identity of the accusedwas known both to the father (PW–1) and Nirav (PW-3) then why isthat the statement implicating the accused was recorded only at 4:30PMin the evening? The timing is significant, more so when Nirav (PW-3)himself was interrogated by the Police at two different places, whichexercise continued till 6:30PM of the evening of 14.01.2002.

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754SUPREME COURT REPORTS

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754SUPREME COURT REPORTS

A13. Coming to the testimony of Harshadbhai Veljibhai Patel (PW-9), we notice him to have not supported the prosecution at all and in thecross examination part of his testimony, we do not find anything elicitingof the accused in the crime.

14. We may observe that save and except for the confessionalBstatement of the accused, the Prosecution is not able to link the weaponwith the accused. There was no scientific evidence, or the marks of hisfingerprints, other identification marks or any tell-tale signs of the bloodfound on body of the deceased, linking it to the metal pellets of the bulletfired from the weapon recovered during investigation.

C15. This Court has consistently held in a catena of judgementsthat it is the duty of the prosecution to establish use of the weapondiscovered in the commission of the crime. Failure to do so may causeaberration in the course of justice. [Kartarey v. State of U.P., (1976)1 SCC 172; Ishwar Singh v. State of U.P., (1976) 4 SCC 355;Chaudhari Ramjibhai Narasangbhai v. State of Gujarat, (2004) 1DSCC 184; Amar Singh’s case (Supra)]

16. In the absence of any other evidence linking the accused tothe murder of the deceased, the testimony of PW-3 discarded, there isno other direct or circumstantial evidence, ocular or otherwise, linkingthe accused be it on the point of motive or the incident. It is in thisEbackdrop we find the Courts below to have seriously erred. The settledprinciples of convicting the accused on circumstantial evidence, enunciatedby this Court in Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116, have not been followed by the Courts below.

17. It is true that concurrent findings of facts of the Courts below,Fare usually, not to be interfered with. However, it is only in the presenceof exceptional circumstances, this Court exercises its wide powers wherethere is travesty of justice and when absurd and erroneous conclusionsare drawn by the Courts below. We are of the opinion that this is onesuch case fit for exercising the powers entrusted to us as a duty underGArticle 136 of the Constitution in lite of principles enunciatedin:Ramaphupala Reddy v. State of Andhra Pradesh, (1970) 3 SCC474; Balak Ram v. State of U.P., (1975) 3 SCC 219; BhoginbhaiHirjibhai V. State of Gujarat, (1983) 3 SCC 217.

18. We may record that the High Court seriously erred in findingthe accused guilty of having committed the offence of murder underH

Section 302, Indian Penal Code. In its judgment running into 21 pages,the Court has simply reproduced the decisions rendered by this Courtand presumptively, without actually appreciating or discussing thetestimony of PW-3, held him to have deposed truthfully, fully establishingthe prosecution case, against the accused, beyond reasonable doubt.

19. Unfortunately, none of the courts below have referred to thebasic principles of criminal jurisprudence. We may also state that theCourts must refrain from committing such grave errors in the future,whereby innocent people are made to suffer incarceration for over aperiod of nearly two decades, without proper appreciation of evidence.

20. Hence, we set aside the judgments passed by the Ld. Addl.Sessions Judge, Fast Track Court at Surendranagar, Gujarat in SessionsCase No. 27 of 2002, dated 19.07.2003, titled State Government of Gujaratv. Narendrasinh Keshubhai Zala, as affirmed by the High Court of Gujaratat Ahmedabad vide judgment in Criminal Appeal No, 1037 of 2003, dated29.12.2011, titled Narendrasinh Keshubha Zala v. State of Gujarat andacquit the accused (Appellant herein) of all the charges framed againsthim.

The present appeal is allowed.

We direct the Appellant to be released forthwith unless requiredin any other case.

Ankit Gyan

Appeal allowed.

(Assisted by : Mahendra Yadav, LCRA)

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