CR.A/1351/1984 of THE STATE OF GUJARAT Vs NOOR MAMAD PANA on 17 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 S.T. Mehta, Addl. Public Prosecutor for the appellant State.

Shri P.B. Bhatt, Advocate for the respondents.

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

(17-11-1995)

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

The respondent in Sessions Case No. 42 of 1983, before the Court of the Sessions Judge of Kutchchh at Bhuj, came to beacquitted on 31st July 1984 of the offences under Section 147,148, 302; and in the alternative u/s. Section 302 read withSection 149 of the Indian Penal Code, and therefore the State haspreferred the appeal against the order of acquittal.

was the police constable against whom several cases were lodgedand one sessions case was also pending against him, and becauseof that pendency he was suspended. Prior to his suspension heused to raid the distillery of Noor Mamad Puna and therefore NoorPuna was hovering. On 24th February 1983 Sulaiman Jamal had toattend the Court in connection with the case pending against him.His fellow constable Kishorsinh and one Mahendrakumar were goingto the Court on foot. At 11.00 a.m. they were passing byHemlata Park. At that time one ambassador car came from Anjarside and went ahead upto a little distance but suddenly took aturn and came back and was stopped near Sulaiman Jamal and hiscompanions. Noor Puna, a man called Pavli and three othersalighted from the car. Noor Puna was armed with a knife, Pavliwas armed with a stick, and out of three others, two were armedwith sticks and the last one was armed with an axe. Noor Punachallenged Sulaiman Jamal and then assaulted him with the knife.The nose of Sulaiman Jamal was cut off. Rest accompanying NoorPuna also assaulted with the weapons they were having and givingthe blows they caused serious injuries to Sulaiman Jamal. Thepersons nearby assembled there and the respondents left theplace. Sulaiman Jamal was taken to the hospital at Anjar for thetreatment where one senior police sub-inspector recorded hiscomplaint. The Executive Magistrate was also informed to recordthe dying declaration. The senior police sub-inspector thenregistered the complaint and investigated into the case. At theconclusion of the investigation a charge-sheet against therespondents for the aforesaid offences was filed before the Courtof the Judicial Magistrate, First Class at Anjar. The learnedMagistrate at Anjar did not have the jurisdiction to hear anddecide the case. He therefore committed the case to the Court ofSessions at Bhuj for hearing and disposal in accordance with law.The then learned Sessions Judge at Bhuj hearing the partiesframed the charge at Exh.1. The respondents pleaded not guiltyand claimed to be tried. The prosecution-appellannt adducednecessary evidence so as to establish the charge. At theconclusion of the trial, the learned Judge below appreciating theevidence found that guilt was not brought home to the respondentsand acquitted them with which they were charged. It is againstthat judgment and order of acquittal, the State has preferredthis appeal before us.

3. The State has assailed the judgment and order acquittingthe respondents submitting that the learned Judge did notappreciate the evidence properly; there was dying declaration atExh. 17; and that was sufficient to connect the respondents withthe guilt. Over and above, Mr. Mehta, the learned Addl. PublicProsecutor also relied upon the evidence of Mulji Nanabhairecorded at Exh.16 and Jamalbhai recorded at Exh.18 (father ofthe deceased). Before we deal with the evidence on whichreliance is placed, it may be stated at this stage that theevidence of other witnesses recorded is not material as it throws no light on the proposition, and it may also be stated thatKishorsinh who was accompanying the deceased at the time of thealleged incident has not been examined, while Mahendrakumar hasturned hostile. The panchas have also not supported the case ofthe prosecution. Under the circumstances, we have to weigh theevidence of Muljibhai and Jamalbhai along with the dyingdeclaration, and to an extent the evidence of Ayishabai the widowof the deceased.

4. True that in law even if no one supports the case of theprosecution, the Court can base the conviction solely on thedying declaration, provided it is appealing and convincing, freefrom doubt, is made in the fit state of mind, and leads to theguilt of the accused. In this case, the dying declarationrecorded at Exh.17 when perused does not inspire confidence.Doctor Vayda has no doubt at the bottom of the dying declarationcertified that the deceased when made the declaration was in thefit state of mind and was in a position to make such statement.Whether the deceased was in a fit state of mind is the factcalled in question and therefore the evidence of Ayishabai andJamalbhai must be looked into. Dr. Vayda died thereafter andtherefore prosecution could not examine him. After Dr. H.N.Vayda (at present not alive) certified the consciousness of thedeceased Dy. Mamlatdar Muljibhai Naranbhai recorded the dyingdeclaration (Ex.17) Jamal, the father of the deceased, has nodoubt supported the case of the prosecution saying that when hewent to the hospital, the deceased was conscious and was in aposition to make the statement. However such evidence does notseem to be credible. The widow of the deceased Ayishabai doesnot support the fact of her husband's fit state of mind.According to her when she rushed to the hospital after coming toknow about the assault on her husband, she did not ask anyquestion to her husband and no talk took place with her husbandand at that time no one was present. She has also made it clearthat Jamalbhai, her father-in-law, had been to the hospital butwhen Jamalbhai reached to the hospital the deceased was not in aposition to make any statement. When both the nearest relativesthus run counter to each other, a reasonable suspicion ariseswith regard to the fit state of mind and therefore we would beslow in placing any reliance on the dying declaration. Theevidence of the Dy. Mamlatdar shows that before he started torecord the dying declaration he caused the P.S.I., policemen andfriends of the deceased to leave the ward. The possibility oftutoring or briefing cannot be ruled out. The learned Judgebelow has in the judgment in Para 22 elaborately discussed thedying declaration, and has in view of such facts rightlyconcluded that the same is neither appealing nor credible. Whenthe dying declaration being incredible is kept aside, there is noother evidence on record which would bring the guilt home to theaccused.

5. Of course, Mr. Mehta, the learned Addl. Public

5. Of course, Mr. Mehta, the learned Addl. Public Prosecutor made a lame attempt by submitting that the report ofthe Chemical Analyser would be sufficient to connect therespondents with the guilt but it is not auriferoses. We maymention at this stage that looking to the apathy of the peoplethe prosecution has to retreat in many cases but because of themarch of science now-a-days, the prosecution can certainly relyupon the result of the analysis as per the scientific theories,or test, but in this case the report of the Chemical Analyser isof no use to the prosecution. The blood-group of the deceasedwas 'A'. The police could seize the knife and that was sent tothe Chemical Analyser, but thereon no blood-stain was detected.The bush-shirt put on by respondent No.1 at that time was alsoseized. The Chemical Analyser found human blood thereon, but thegroup thereof was found inconclusive. Thus, the report of theChemical Analyser with regard to the muddamal cannot help theprosecution as it leaves us in the lurch.

6. At this stage, the learned Additional Public Prosecutor draws our attention to the evidence of Jamalbhai Dungarbhai, thefather of the deceased, before whom the deceased is said to havemade the statement against respondents. That statement cannot berelied upon, because as observed earlier, we have found thatconsciousness, ability, and fit state of mind to make statementis not clearly established; on the contrary its credibility isimpeachable.

7. Hemtuji Bhagwanji has been examined at Exh.39. He was also serving with the deceased. It is the case of theprosecution that the deceased, because of his sincerity in thedischarge of his duties was receiving threats from bootleggers,other mischief-mongers or wrongdoers in the city including therespondents, but Hemtuji Bhagwanji does not support the case ofthreat. In the dying declaration at Exh.17 the deceased hasstated that once he received a threat through Hemtuji Bhagwanjibut on that point also Hemtuji Bhagwanji, is silent. Thus, theprosecution does not get support from any of the witnesses, andtherefore we are of the view that the learned Judge below hasrightly appreciated the evidence before him on record andconcluded in favour of the respondents.

8. It transpires from the evidence of Hemtuji Bhagwanji that the deceased was having enmity with many and therefore it ispossible that some one might have done the wrong and therespondents under the mistaken impression or out of animositycame to be involved in the matter. Under the circumstances, wesee no reason to interfere with the judgment and order ofacquittal passed by the lower Court. The same are required to bemaintained. The appeal, therefore, being devoid of merits isrequired to be dismissed. We accordingly dismiss the appeal.

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