Decided on August 12,1983



S.L.TALATI, J. - (1.) The State has challenged the judgment rendered by the Additional Sessions Judge Bhavnagar in Sessions Case No. 71/79 by which the learned Addl. Sessions Judge was pleased to acquit the seven accused persons. Before entering into the facts of this case we may state that the appeal against the acquittal is already dismissed so far as accused Nos. 2 to 5 and 7 are concerned and now therefore we are concerned with the appeal against original accused No. 1 and original accused No. 6. The facts according to the prosecution are as under:
(2.) On the night which started on 19th February 1979 and which was to end on 20th February 1979 at 3 a.m. accused No. 1 went to the house of deceased Daud Mohmadbhai and knocked the door. On the same day at 8.00 a.m. Mohmad Ala P.W. 1 of Daud went to Issa Vira and had a talk with the brother of accused No. 7. Again on the same date at 1.45 p.m. there was exchange of words between the deceased and the accused Nos. 2 3 4 and 5 and 6. Mohmad Ala P.W. 1 and Mohmad Ali P.W 4 intervened Nothing happened on that day. On the next day i.e. on 21-2-1979 at about 11.30 a.m. in the locality known as Navapara exchange of abuses took place between the deceased and the accused No. 1. Accused No. 7 and father of de ceased separated them. The real incident occurred thereafter at about 12.00 or 12.30 p.m. The deceased was passing from his dehli and he was going towards Kesharbais Masjid. Accused Nos. 3 and 4 ran after the deceased with dhokas. Accused No. 5 also went there running and gave a push. Deceased fell down. Accused Nos. 2 and 7 went there and they shouted kill him. It appears from the prosecution case that accused No. 3 4 5 2 and 7 beyond running and uttering words did nothing. In the mean time accused No. 1 came there and he gave knife blow on the back of the deceased. Mohmad Ala P.W. 1-father of the deceased tried to save his son and at that time accused No. 6 gave him a blow with dhoka on the head. Many persons gathered there. Mohmad Ala P.W. 1 was removed to the hospital P.S.I. Chandel P. W. 14 Exhibit 47 went to the hospital. He was recording the complaint. At that time Dr. Gavasia gave information by phone at the police station Bhavnagar and the information was that Mohmad Ala aged 52 residing Nat avapara was admitted in Ward No. 8 for treatment because of scufflelt was further stated that his condition was normal and Sr. P.S.I. has already arrived at the hospital. That information was conveyed at 2.00 p.m. and the Police Station Officer made an entry in the Station Diary. Immediately there is another entry Exhibit 44 in which it is stated that a complaint was received from Sr. Police Sub-Inspector and therefore the offence was registered under Sections 302 323 405 and 34 I.P.C. and special reports were sent. That was Yadi written by Sr. Police Sub-Inspector to the Police Station Officer. It was mentioned that the offence occurred at 12.45 noon and it was registered at 2.1 p.m. which was received by the Police Station Officer at 2.20 p.m. The offence was registered as above. The complaint which was recorded by P.S.I. Chandel was marked A by the learned Addl. Sessions Judge and it was not exhibited. P.S.I. Chandel thereafter started investigation and he is examined as P.W. 14 at Exhibit 47. According to him he reached the hospital at 1.45 p.m. he saw a crowd and therefore on inquiry he came to know about the incident. He met Mohmad Ala in Ward No. 8 questioned him and recorded his complaint. He stated that it was recorded in his own hand and signature of the complainant was obtained in his presence. Thereafter according to him he sent report Exhibit 44 at the Police Station for registering the offence. The offence was registered at Criminal Register No. 51/79 and he received the report Exhibit 45 and started investigation. He went to the scene of offence and prepared inquest panchnama Exhibit 13. Thereafter he prepared the panchnama of the scene of offence Exhibit 24 and recorded statements of Alimahmad Hajibhai and Abdul Valibhai. He arrested six accused persons on that day at 5.15 p.m. and recovered the knife and other articles which were blood stained and prepared panchnama Exhibit 39. Accused No. 7 gave a complaint under Section 323 I.P.C. which was noted as N.C. complaint and thereafter accused No. 6 was also arrested. According to the P.S.I. there was injury on his person which was noted in the panchnama. Accused No. 6 was there-after sent to the hospital for treatment. On 22-2-1979 the accused were sent to judicial custody. On 23-2-1979 statement of Bachuben and Juvedaben-widow of deceased were recorded. The articles seized were sent to Forensic Laboratory for opinion. Dead body was already sent on 21-2-1979 for post-mortem examination after inquest panchnama. H ead Constable Kathad produced the clothes etc. of the deceased and the injured which were attached. Ultimately after completing the investigation on 31 charge-sheet submitted in the Court of the Judicial Magistrate First Class Bhavnagar. In due course the case came to be committed to the Court of Sessions. At the trial before the learned Additional Sessions Judge in all 14 witnesses were examined. Accused denied the guilt and did not lead any defence. Ultimately after hearing the arguments the learned Addl. Sessions Judge came to the conclusion that the offence against the accused persons was not proved beyond reasonable doubt and therefore for reasons stated in the judgment he acquitted the accused persons. The State has filed this Appeal challenging the acquittal. As stated above the appeal against accused Nos. 2 to 5 and 7 is already dismissed and therefore we have to decide the appeal so far as accused Nos. 1 and 6 are concerned. Before referring to the evidence which was led in the case it is required to be stated that it is an appeal against the acquittal. Therefore certain principles which are well-settled are required to be remembered at the time of reappreciation of evidence on record. The first is the case of Sheo Swarup and Others v. King Emperor AIR 1934 Privy Council 227 (2) wherein it was observed as under: It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact except in cases in which the lower Court has obstinately blundered or had through incompetence stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. In that case it was held as under: Sections 417 418 and 428 of the Code (Cr. P.C. 1898 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact the High Court should and will always give proper weight and consideration to such matters as- (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. The Supreme Court has adhered to this view in a case of Sanwat Singh and Others v. State of Rajasthan AIR 1961 SC 715 wherein it is observed as under: In an appeal against acquittal the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Sheo Swarups Case AIR 1934 PC 227 (2) afford a correct guide for the appellate courts approach to a case in disposing of such an appeal and the different phraseology used in the judgments of the Supreme Court such as (i) substantial and compelling reasons (ii) good and sufficient cogent reasons and (iii) strong reasons are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on these facts but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified. In another case Bhagwati and Others v. The State of Uttar Pradesh AIR 1976 SC 1449 it was observed by the Supreme Court as under: The power of an appellate Court to review evidence in appeals against acquittals is as extensive as its power in appeals against convictions. Before an appellate Court can set aside an order of acquittal it must carefully consider the reasons given by the trial Court in support of its decision and give its own reasons for rejecting them. If the finding reached by the trial Judge cannot be said to be unreasonable the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court therefore should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by itself
(3.) Having stated that law we are clearly of the opinion that if the view which the learned Sessions Judge took was a reasonable view or that it was a possible view we would not interfere with it. Bearing this principle in mind we have gone through the entire evidence on record and also the judgment rendered by the learned Addl. Sessions Judge Bhavnagar. The first witness who is of importance Mohmad Ala P.W. 1 father of the deceased and complainant in the case is examined at Exhibit 17. After stating as to what happened on the night of 19th and in the morning and during the day of 20th February 1979 he narrated the main incident which occurred on 21-2-1979 and according to him when his son Daud was going to Kesharbai Masjid at abubut 12.30 noon he was on his pan shop. He stated that when his son Daud passed from near the shop he has just walked 10 or 12 paces and accused No. 3 ran after him with a dhoka so also accused No. 4. Accused No. 5 who was standing near pan shop of Issa Vira also went running there and gave a push to Daud. Daud fell down. Accused No. 2 also ran and stated that he may be killed. Accused No. 7 who was near the other shop went there though he had no weapon in his hand. He also stated that he should be killed. Thereafter accused No. 1 ran and according to the witness he went there in order to support them. At that time accused No. 1 took out a knife from his pocket and gave a knife blow to Daud on the right side back. Accused no. 6 was also present there with dhoka and at that time he gave blow with a dhoka on the left side head of the witness. He sat down. Thereafter accused ran away. He went near his son and found that he was dead and there was a pool of blood. Seeing that he fell down and at that time Ali Mohmad P.W. 4 came there and his son Gani also came there. He was ultimately removed to the Government hospital. According to him police came to him at about 2.00 p.m. and his statement was recorded and that statement was complaint and his signature was taken. The complaint was shown to him. He admitted his signature and stated that the contents stated therein were correct. That complaint was marked A. In cross-examination he stated that as soon as he reached the hospital a policeman on duty came near him. He immediately altered this statement and stated that the policeman had not come near him. Thereafter he stated that in the hospital panchnama regarding injuries on his person was prepared. He has not stated in the panchnam as to who made that panchnama or at what time that panchnama was made. It was not asked in the cross-examination. Then the cross-examination was diverted towards the incident as he stated that he went to the hospital immediately after the incident and reached there at about 1.00 p.m. and according to him half an hour thereafter injury panchnama was prepared and he stated that that panchnama was made by Jamadar. He stated that the panchnama was prepared in regard to the injury by a person who had come to record his complaint. Therefore the position which emerges from this cross-examination is that Jamadar recorded the complaint and. prepared panchnama in regard to the injury. It is thereafter nowhere asked in the cross-examination as to whether P.S.I. had come and recorded his complaint or prepared any panchnama. This would clearly mean that the witness was calling the P.S.I. to be a Jamadar. He denied the fact that police recorded his complaint at 4.30 p.m. or 5.00 p.m. He admitted that he did not name accused No. 7 in the complaint. Thereafter the residential addresses of the accsued were asked and they were correctly answered. The cross-examination was thereafter diverted as to what happened on the night of 19th and thereafter immediately some contradictions were tried to be brought on record. The first three contradictions were in regard ot what happened on 19th and 20th. Thereafter the cross-examination was diverted as to of which wood the dhoka was prepared. Immediately thereafter it was asked that the muddamal dhokas were kept in order to see that the hand lories may not move away and he denied that suggestion. Thereafter it was asked that many persons had gathered there but the witness stated that the persons were passing on the road and they had gathered there. He admitted that on both the sides there were shops. He stated that certain shops were closed. Thereafter the cross-examination was in regard to the knife and the question put was whether the knife had a sheath or not. The witness stated that he was not in a position to say so. He was asked the description and measurement of the knife. The witness stated that he will not be in a position to describe the knife. He denied the suggestion that till the knife blow was given he was on his shop. He stated that after accused No. 5 gave a push and his son fell down he had got up. He denied the suggestion that his son had a knife with him. He also denied the suggestion that Daud had run with a knife to injure Sattar at 11.00 a.m. on the date of the incident. He denied the further suggestion that on the day of the incident Daud had gone to injure Sattar-accused No. 1 with a knife and accused No. 1 tried to ward off the blow and at that time accused No. 1 was injured near the thumb and finger. He denied the suggestion that during that period someone from the crowd gave a knife blow on the back of Daud. Now in regard to this witness whose presence cannot be doubted at the scene of offence because of the injury on his own person for which he was admitted in the hospital and for which he was treated the arguments advanced in the trial Court were that the Police Jamadar has recorded his complaint and had prepared a panchnama and therefore the complaint recorded by the P.S.I. was inadmissible. The further argument was that the information given by the Doctor Gavasia Exhibit 43 was the F.I.R. and therefore the complainat recorded by the P.S.I. was not admissible in evidence. The learned Additional Sessions Judge accepted this argument. We may only say that the arguments advanced were totally unwarranted and were against the evidence on record. This witness never stated that the Jamadar recorded his complaint and thereafter P.S.I. recorded his complaint and that there were two complaints. He never stated that Jamadar prepared the panchnama in regard to his injury and P.S.I. also made another panchnama in that regard. He clearly stated that the person who recorded his complaint prepared the panchnama of his injury. Now he described the person to be Jamadar. If this circumstance was to be relied upon it was expected of the defence to call the P.S.I. and he should have been shown to the witness that it was not this gentleman but some other jamadar who recorded his complaint or at least question should have been put to-the witness that after the jamadar had recorded his complaint P.S.I. had also recorded his complaint. It was more than clear that this witness did not know the difference between the jamadar and the P.S.I. In the cross-examination he made it clear that it was only one person who recorded the complaint and it was that person alone who also prepared the panchnama in regard to the injury on his person. Now it was argued before the trial Court that the panchnama in regard to the injury was prepared prior to the complaint. That argument was against the record of the case. The panchnama is at Exhibit 14 and it was brought on record by consent of the parties. This panchnama was prepared at 3.15 p.m. on 21-2-1979 and it is clear that the complaint was recorded at 2.10 p.m. and not only that in the panchnama itself it is mentioned that this panchnama is made because of investigation of the crime of an offence which is registered at Crime Register No. 51/79 for offences under Sections 302 323 504 and 34 of the I.P.C. However it was lost sight of and the learned Addl. Sessions Judge was perhaps misled to believe that Exhibit 43 was the F.I.R. Mere look at the Station Diary entry shows that it did not show any cognizable offence. Bare reading of Section 154 of the Cr.P.C. would show that unless an information in regard to a cognizable offence is given to a police station officer orally or in writing that information is not an information as required by Section 134 of the Criminal Procedure Code. Therefore Exhibit 43 was not a F.I.R. under Section 154 Cr.P.C. as it did not disclose any cognizable offence. In Exhibit 43 it is stated that the P.S.I. was already there at the hospital. Now this entry was made at 2.00 p.m. and the P.S.I. recorded the complaint at 2.10 p.m. which in fact was received at the police station at 2.20 p.m. meaning thereby that when Dr. Gavasia sent the message Sr. P.S.I. was not only present in the Hospital but was in the process of recording the complaint. Curiously enough forgetting all these aspects of the case an argument is advanced that his complaint was not required to be exhibited and the learned Sessions Judge accepted that argument without bothering about the argument advanced by the public prosecutor. The arguments noted by the learned Addl. Sessions Judge are at Exhibit 51 and the Public Prosecutor clearly stated that the telephonic message did not show that information of the cognizable offence was given. It was also argued that the P.S.I. had recorded the complaint which was required to be exhibited. This argument was not even at all discussed by the learned Addl. Sessions Judge. Therefore he started abruptly on a wrong premises. Curiously enough we do not find anything in the judgment as to why this witness is not believed. The evidence is only reproduced in the judgment. In paragraph 57 the learned Addl. Sessions Judge after analysing all the witnesses stated that there were serious omissions and the witnesses were interested and he had no hesitation in coming to the conclusion that the prosecution had failed to prove the case against the accused persons beyond all reasonable doubt. Now we do not find in the whole judgment as to why father of the deceased who was admittedly present is disbelieved by the learned Addl. Sessions Judge. Can he be disbelieved on the mere ground that he is the father of the deceased? Is the presence of the father of the deceased at that particular place was not natural? If he was not present at that particular place how did he receive the injury ? It was more than clear that from the very place he was removed to the hospital. In the Hospital before he met any body the P.S.I. recorded his complaint. That complaint was not exhibited on the ground that some Jamadar recorded the complaint and prepared the panchnama regarding his injury and on another ground that Doctor gave information. That information was not in regard to a cognizable offence. Learned Advocate Mr. Barote appearing on behalf of the accused was fair enough to concede that it was not proper for the learned Addl. Sessions Judge not to exhibit the complaint. Now therefore it is more than clear that the learned Addl. Sessions Judge started on a wrong premise and he disbelieved the most important and natural eye-witness who was present at the scene of offence and therefore he has come to a wrong conclusion. It is true that he named other accused per sons but it is equally true that he did not allege anything against any of the accused persons except that he stated that accused No. 5 had given a push. Now therefore the learned Addl. Sessions Judge came to a conclusion that there was not an unlawful assembly because all the accused persons had come from different directions and did not form an unlawful assembly in the sense that they had any common object and they did nothing to the deceased. It was for the first time that accused No. 1 abruptly came there took out a knife and gave a knife blow on the back of the deceased and there after when this witness-father of the deceased intervened accused No. 6 gave a dhoka blow on the head of the complainant and he fell down. Nothing is attributed against other accused persons. Merely because there was no unlawful assembly and there was no overt act attributed to other accused persons it would never mean that what is stated against accused No. 1 and accused No. 6 is required to be discarded on the ground that the charge of unlawful assembly was not proved against the other accused persons. It cannot be suggested for the moment that they were falsely implicated or involved. It may be because they were merely present and did nothing they were entitled to acquittal. That does not mean that the case put up by the complainant is false. A witness may here or there exaggerate something but it is the function of the Judge to separate the exaggeration from the truth and arrive at the right conclusion. The learned Addl. Sessions Judge mechanically for no reason whatsoever threw away the entire evidence on the ground that it appeared to him that there are some exaggerations made in the deposition. That approach would be an absolutely perverse approach to say the least. Under these circumstances we have to say that Mohmad Ala Exhibit 17 was a reliable and trustworthy witness and he is unnecessarily disbelieved. It is not as if two views were possible and by one view it is possible to believe him and by another view it is not possible to believe him. It is not the evidence of that nature. A person in a broad day-light sees with open eyes the whole incident; he goes there; intervenes; receives injury; gets himself admitted in the hospital and files complaint immediately. If such a person is disbelieved on the ground that he is the father of the deceased it will be unsafe for the society to exist. It is true that when a relative gives evidence his evidence requires a careful scrutiny. Careful scrutiny could never be equated with the corroboration. Relative is not an accomplice. There is nothing in the Evidence Act which requires that evidence of relatives requires corroboration. If that were so no offence could be proved. There could be cases where no one else except the relatives would be present. There could be cases where there would be persons like baniyas sitting in their shops and witnessing the incident but not coming out to give evidence. And when some body approaches them for recording their statements they might say that they were busy with the business and had not seen the incident. It is not the I case of the defence that the statements of other persons were recorded and they were not examined. It is not the case of the defence that any person named in the charge sheet is not examined. It is not suggested and can never be suggested that father of the deceased was not present. Now when this particular witness was present how could his evidence be brushed aside that he is the father of the deceased. That has resulted into miscarriage of justice. Under these circumstances we believe the evidence of the complainant.;

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