VISHRAMBHAI SOMABHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The fateful incident took place on 27-3-1986 at about 11 a.m. taking life of minor Sukabhai Ambalal, aged about 6 years. According to prosecution case, the deceased minor had gone to take biscuits and while returning the accused saw him on the way. The accused demanded biscuits but the minor refused to give. The accused enraged by negative reply assaulted the deceased with "tavetha" (a spade type instrument with long handle used for cooking and changing sides of cake). As alleged, the deceased was assaulted with pointed portion giving blows in stomach (abdominal portion), loin and right thigh. After injuring the minor, the body of the injured was thrown into a nearby well. On hearing commotion, the complainant- father of the deceased and three others came on the spot and managed for taking out the body of the deceased from the well. With this set of facts, the accused was charged and tried for commission of offence under S.302 of I.P.C. by the learned Additional Sessions Judge, Bharuch. The learned Judge having found favour with the case of prosecution, convicted the accused/appellant for offence under S.302 of I.P.C. and sentenced to undergo rigorous imprisonment for life vide his judgment and order dated 30-8-1988. Aggrieved by the order of conviction and sentence, the accused/appellant has preferred this appeal.

(2.) The learned Advocate Mr. Satish A. Pandya for the appellant has assailed the judgment on following points : 1. That the conviction is based on the testimony of sole eye witness Kashmiben P.W.3. 2. The evidence of complainant is inconsistent and is not trustworthy. 3. That the accused was suffering from insanity and thereby claims protection under S.84 of I.P.C. The sole ocular witness, Kashmiben, was examined as P.W.3, at Ex. 19. There is nothing on record that she is either interested or related witness which may caution us from weighing her testimony with great care and caution. We have also not come across any such proposition of law which provides that conviction cannot be based on the testimony of sole eye witness, if otherwise the witness is trustworthy and reliable. The presence of this witness is natural and, therefore, nothing can be said about her being a chance witness. According to her, she had gone to fetch water from the outskirts of the village and while returning she saw deceased Sukabhai proceeding towards his residence with biscuits. It is at that moment that the accused caught hold of the deceased Sukabhai and assaulted him with tavetha. She has categorically stated that the accused had given blows one at stomach, another at loin and third at thigh portion and thereafter the body of the injured was thrown into the well. On seeing this, she shouted calling for the father of deceased. On hearing her shouts, the complainant-father of deceased and his wife, came there. Three other persons named Chandu Nanji, Punia Devla and Maruji Deva also came there and they fished out the body from the well. Till this event the witness was present and it is only thereafter that she went inside her house. She has admitted that after seeing the body being fished from the well she went away and is unaware about anything beyond that. Relying upon this statement, Mr. Pandya, learned Advocate for the appellant, has argued that the witness cannot be treated as an eye witness. But in our view, this argument is misplaced and misconstrued as a particular statement in isolation and divorced from the rest of the evidence is relied by him. This is not permissible in law. As a rule of interpretation, a document or evidence has to be read as a whole and individual sentence cannot be separated or isolated or read as divorced from other context. She was cross-examined at length but we say that she stood firm and was not shaken at all. Her presence was also not challenged. The only suggestion regarding insanity of accused was made in cross and the same also came to be turned down emphatically. Since natural presence of this witness is not under challenge and otherwise her testimony is reliable and trustworthy, we have no reason to disbelieve and discard her testimony. Version given by this witness being true and correct, inspire confidence especially when she is neither related nor interested in the complainant or is inimical to the accused. In such set of facts, in no uncertain terms we say that P.W. 3, Kashmiben, is an independent witness, is reliable, credible and trustworthy. Her evidence does not suffer from any infirmity and can be relied as cogent and concrete piece of evidence for basing conviction.

(3.) Mr. Pandya, the learned Advocate for the appellant, has argued that the oral testimony of the complainant is inconsistent with that of F.I.R., Ex. 31, and therefore, shakes its trustworthiness and shall not be relied upon. The complainant - father of the deceased - has been examined as P.W. 2, Ex. 18 and the F.I.R. is produced at Ex. 31. It is needless to say that F.I.R. is not a substantive piece of evidence and can only be used for contradictions. In his oral testimony the complainant has adhered to what he has stated in the F.I.R. Ex. 31, with regard to actual occurrence or how he came to know. According to him, on hearing shouts of P.W. 3, Kashmiben, he came out of his house and went to the spot only to find the body of his deceased son having been thrown into the well. We find some minor inconsistencies and contradictions in between the F.I.R. and his oral testimony. But, such minor inconsistencies are not very much relevant with regard to actual occurrence of incident, namely, involvement of the accused and the manner in which the incident occurred and, therefore, much significance to such inconsistencies or contradictions cannot be attributed so as to weaken the case of prosecution. As stated in the F.I.R., on hearing commotion, he came out of his house and at that time he heard Somabhai saying that his son - the deceased - had been thrown into the well. Of course, in oral testimony he does not refer to the name of Somabhai but he does say that he came out of his house hearing shouts from local residents saying that the body of his son - deceased Sukabhai - has been thrown into the well. In our view, if at one place the witness refers to the name and if at another place he refers to local residents, much significance should not be attributed to such discrepancy especially when such named person is from the same locality. Witness is not expected to have photographic memory after lapse of some years when he comes before the Court for deposition and, therefore, even if in his oral testimony omits name but refers by some other mode aiming at same person, we do not find as material discrepancy which may adversely affect the prosecution. Technically we may say that this is not at all a discrepancy but for the sake of argument even if it is treated as a discrepancy then it is not material because at one place the witness refers by name and at another place the presence of such a person is referred in general as resident of locality.