Full Judgment Text
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PETITIONER:
THE STATE OF GUJARAT
Vs.
RESPONDENT:
ANIRUDHSING & ANR.
DATE OF JUDGMENT: 10/07/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
THE 10TH DAY OF JULY, 1997
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice D.P. Wadhwa
B.V.Desai, Mrs. H. Wahi and Ms. S. Hazarika, Advs. for the
appellant
Sushil Kumar, Sr. Adv., Deepak H. Raval, Shailendra N.
Singh, Ms. Neelam Kalsi and Vimal Dave, Advs. with him for
the Respondents.
O R D E R
The following Order of the court was delivered:
WITH
CRIMINAL APPEAL NO. 1919 OF 1996
O R D E R
Delay condoned.
Leave granted.
Every criminal trial is a voyage in quest of truth for
public justice to punish the guilty and restore peace,
stability and order in the Society. Every citizen who has
knowledge of the commission of cognizable offence has duty
to lay information before the police and cooperate with the
investigating officer who enjoined to collect the evidence
and if necessary summon the witnesses to give evidence. He
is further enjoined to adopt scientific and all fair means
to unearth the real offender, lay the chargesheet before the
court competent to take cognizance of the offence. The
chargesheet needs to contain the facts constituting the
offence’s charged. The accused is entitled to as fair trial.
Every citizen who assists the investigation is further duty-
bound to appear before the court of session or competent
criminal court, tender his ocular evidence as dutiful and
truthful citizen to unfold the prosecution case as given in
his statement. Any betrayal in that behalf is a step to
testability social peace. order and progress.
Popatbhai, a sitting Member of Legislative Assembly was
done to death in the public gaze when full ceremonial
Independence Day function was in progress. The Chief
dignitary of the event, the Deputy Collector and Sub-
Divisional Magistrate, Mr. J.P. Dave who was sitting beside
the deceased, witnessed the occurrence of shooting of
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deceased, witnessed the occurrence of shooting of deceased
from behind; however, when culprit was caught, it would be
obvious that he saw him, yet he has turned hostile to the
prosecution and even refused to identify the respondent in
the Court sabotaging the prosecution case. Thus, he betrayed
his duty as a reasonable officer and as a worthy citizen and
has denied himself to hold an office of trust and
responsibility. His own unworthiness is writ large in the
present case. Similar is the case of many a dignitary
including the Mamlatdar, PW-36 , a leading private doctor
and Chief officer of the municipality and a host of others
numbering 45 in all. It would speak volumes of unworthy
conduct forsaking their responsibility as dutiful citizens
driving the prosecution to fall back upon the circumstantial
evidence.
Mr. Jhala, the Assistant Commandant, Special Reserved
Police, PW-4 and I.B. Shekhawat, PW-58 another officer on
duty from the same force, displayed high degree of
responsibility, courage and sense of duty in assistance of
the prosecution by swinging into action immediately. PW-4
caught the culprit; PW-58 secured the weapon of the offence,
lodged the FIR and handed over the accused and the weapon
with material particulars mentioned in that behalf in the
Fir to the Station House Officer. Everyone needs to take
leaf out of their books of service. It is seen that in some
cases of recent origin terror by the accused or at his
behest, has instilled in the mind of the weightiness the
instinct of self-preservation and inclined them to avoid
their extermination or reprisal. The state should extend
protection to them. this case is a classic illustration of
how the prosecution case gets sabotaged by the material
witnesses turning hostile and creating a disbelief in the
efficacy of criminal justice system which needs urgent
attention and appropriate remedial action on the part of the
legislature and the executive, in that behalf.
This appeal under Section 25 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987) (for short,
the "TADA ACT" ) arises out of a charge laid against two
accused, namely, Anirudhsing Mahipat Singh Jadeja, resident
of Rabidly Ta. Gondal District, Rajkot (for the short
"Accused No. 1" ) and Nilesh Kumar @ Limbabhai s/o
Mansukhlal under Sections 3 and 5 of the TADA Act, section
114 of the Indian Penal Code (IPC) for causing terror; for
having in possession unauthorised fire arms and for causing
death of Popatbhai Lakhabhai Sorathiya, sitting M.L.A. of
Gondal Constituency (for short, the "deceased"). The
Designated Court acquitted the respondents of all the
charges in Sessions case No. 23 of 1989 through the special
Judge , Rajkot appointed under TADA Act.
The substratum of the prosecution case against the
respondents was that on August 15, 1988, in Sagramsinghji
High School, Gondal, flag hoisting ceremony (State function)
was performed by PW - 38, J.P. Dave, the Deputy Collector
and sub-Divisional Magistrate, Gondal; when distribution of
the prizes was about to conclude, suddenly at about 9.30
a.m. a sound of cracker was heard from behind the deceased
who was siting next to J.P. Dave. People got panicky and
started running helter-skelter. PW-4 who was sitting left to
the deceased got up on the chair and looked around and saw
the Accused No. 1 attempting to run away. He jumped over
the chair and caught him. PW-58, I.B. Shekhawat saw that
some arm wrapped in handkerchief was thrown over his head
from behind. He ran into that direction and caught hold of
it; he found it to be a pistol. he took them into
possession, By the time, he came back, Jhala handed over
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Accused No.1 to Shekhawat and asked him and A.N. Tiwari, PW-
46 PSI to go to the police station, lodge a complaint and
hand over Accused No.1 and the pistol (Ex. 1-4) to the
police. since the deceased had fallen by the side with blood
profusing from his head, he was taken to Rajkot Hospital
where he succumbed due to the head injury, later in the day
Shekhawat, PW-58 went to the police station at about 9.55
a.m. and lodged the FIR, Ex-301/1. Therein, the had narrated
thus:
"I was present with may SRP Group
along with officers at
Sangramsingji High Saheb, Mamlatdar
Saheb and other important persons
were present. During Jhalasaheb,
Dy. S.P. etc. were Government
officials, After the parade
programme for school was going on
when bursting of a fir cracker from
behind at where we have seated
which was believed to have been
done by boys from behind. But on
people running helter, skelter,
during that I felt some arm thrown
or my head, i want towards and a
handkerchief with it. That pistol
was loaded and trigger was raised
which I immediately took in my
possession and other officers who
were there apprehended one person
who were there apprehended one
person who had thrown this pistol
and who when asked his name replied
that he was Anirudhsingh
Mahipatsingh Jadeja of Ribada. At
this time, Popatbhai Sorathyiya was
bleeding from his head, immediately
he was laid in Jeep and sent to
hospital. I and other officers have
brought this Anirudhsing to the
police Station at this time an
produce a loaded pistol with this.
with me are A.M. Tiwari of SRP,
R.S. Sharma , and the driver of
Government Jeep 9929, hence this
complaint to do as per law."
This first information report was received by the
Magistrate at 12.15 p.m. on the same day. Rawat the senior
Inspector had initiated the investigation and at around
12.30 p.m. Bhattacharya, DIG had arrived at the scene and
took over the investigation and recorded the statements of
the witnesses, conducted the investigation and then laid the
charge sheet against the respondents for the charge sheet
against the respondents for the charges referred to
hereinbefore. At the trial, many witnesses were examined of
which 45 witnesses turned hostile including J.P. Dave; Chief
Officer of the Municipality, D.P. Taraiya, PW-40; V.P.
Sojitra, PW-37, local leading doctor, the Mamlatdar etc. The
trial Court found that there is no direct evidence adduced
inculpating the respondents into the crime. The
circumstantial evidence adduced by the prosecution is as
under:
" The extra-judicial confession
made by Accused No. 1 to Jhala, PW-
4; S.R.P.; apprehending of Accused
NO.1 on the spot; recovery of the
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firearm (Ex.A-1) and the
handkerchief (Ex-18) thrown by
Accused No. 1 the homicidal death
of the deceased due to the firing
of the of the fire arm behind his
head."
The Designated Court after considering the entire
evidence reach the conclusion that:
1. the prosecution has totally failed to prove that
Accused No. 1 was present at the place of incidence
with the pistol:
2. the prosecution has failed to prove that Accused No. 1
had thrown the muddammal pistol and handkerchief from
the left back side of the sitting eminent persons
immediately after the incidence:
3. the prosecution has failed to prove as to at what
distance Accused No.1 was standing from the chair of
the deceased;
4. the prosecution has also failed to produce any
circumstantial evidence regarding Accused No.1 firing
at the decease.
The learned Judge observed thus;
"In my opinion, the prosecution has
failed to produce any legally
believable circumstantial evidence
so as to connect the accuse No.1.
with the crime."
Thus, he has given the benefit of doubt to the accused.
Thus, this appeal.
The question, therefore, is: whether the prosecution
has proved the case against the respondents beyond
reasonable doubt? As far as the second respondent is
concerned we have carefully considered the evidence. We find
that there is absolutely no worthmentioning evidence,
connecting the second accused with the commission of the
crime. His acquittal, therefore, gets confirmed.
The question then is; whether the prosecution has
proved the case as against Accused No.1, Anirudhsing, beyond
reasonable doubt?
The entire prosecution case hinges upon circumstantial
evidence. Witnesses may be prone to speak falsehood but the
circumstances will not. The circumstantial evidence consists
of the oral confession said to have been made to Jhala, PW-
4. The immediate question that arises is: whether P.W.4 is a
police officer and whether such a confession is hit by
Section 25 of the Evidence Act?
In Balkishan A. Devidayal etc. vs. State of Maharashtra
etc. [(1981) 1 SCC 107], this Court was to consider whether
an officer of the Railway protection Force making an enquiry
under the Railway Property (Unlawful Possession) Act, 1966,
is a police officer within the meaning of section 25 of the
Evidence Act. After elaborate consideration of the
provisions of the Code of Criminal Procedure (for short, the
’Cr.P.C. the Railway property (Unlawful possession) Act and
Article 20 (3) of the Constitution, this Court came to
conclude that R.P.F. Officer is not a police officer within
the meaning of section 25 of the Act and , therefore, a
confession made to that officer is admissible in evidence.
In Romesh Chandra Mehta vs. State of West Bengal
[(1969) 2 SCR 461 the confession made to a Customs officer
under the Sea Customs Act was held to a be not hit by
Section 25 of the Evidence Act and it was held that they are
not police officers within the meaning of section 25. The
entire controversy was considered by a bench of three Judges
in K.I. Pavunni vs. Assistant Collector (HQ), Central Excise
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Collectorate, Cochin [(1997) 3 SCC 721) at page 738, para
17]. It was held thus:
" It would thus be clear that the
object of the Act empowering
customs officers to record the
evidence under Section 108 is to
collect information of the
contravention of the provisions of
the Act or concealment of the
contraband or avoidance of the duty
of excise so as to enable them to
collect the evidence of the proof
of contravention of the provisions
of the Act so as to initiate
proceedings for further action of
confiscation of the authority of
law, the officer exercise the
powers under the Act is an
authority within the meaning of
Section 24 of the Evidence Act,"
but they are not police officers
within the meaning of section 25 of
the Act."
Accordingly, the confession made to them was held to be
admissible.
In Raj Kumar Karwal vs. Union of India [1990) 2 SCC
409], the question arose: whether the officers of the
Department of Revenue Intelligence (DRI) invested with
powers of officer-in-charge of police station under Section
53 of the narcotic Drugs and psychotropic substances Act,
1985 are police officers within the meaning of Section 25
and whether the confession made to them is inadmissible in
evidence? In this behalf, this Court had Court had held that
the officers of the Revenue Department, who have been
invested with the powers given to the in-charge of the
police station were not police officers within the meaning
of section 25 of the Evidence Act and, therefore, the
confessional Statement recorded by such officers in the
course of investigation of the persons accused of an offence
under the Act, is admissible in evidence as against him.
Officer appointed under Section 53, other than a police
officer is not entitled to exercise " all the powers" under
Chapter XII of the Cr. P.C. including the power to submit
charge-sheet under Section 173, Cr. P.C. This Court in
paragraph 5 at page 413 has stated thus:
" What impelled the interaction of
this provision was the overwhelming
evidence the police under the Code
were often issued and abused by
police officers investigating
crimes for extorting a confessional
statement from the accused with a
view to earning credit for the
prompt solution of the crime and/or
to secure himself against
allegations of supineness or
neglect of duty. It was also
realised that once a police officer
succeeds in extorting a confession
from the person accused of the
commission of the Crime by threats,
inducements, etc. the real offender
becomes more or less immune from
arrest. Therefore, the purpose of
the restriction under Section 25 of
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the Evidence Act is, broadly
speaking, twofold, namely, (ii) to
ensure a proper and scientific
investigation of the Crime with a
view to bringing the real culprit
to book."
It would, thus, be seen that the object of Section 25
is to ensure that the person accused of the offence would
not be induced by threat, coercion or force to make a
confessional statement and the officers also would make
every effort to collect the evidence of the commission of
the crime de hors the confession to be extracted from the
accused while they are in the custody of the police. The
question, therefore, 1st whether Jhala, PW-4 is a police
officer.
In this behalf, it is relevant to note the provisions
of the Bombay State Reserve Police Force Act, 1951 (for
short, SRPF Act). Section 2(a) of the Act defines "active
duty" to mean a duty to prevent or investigate offences
involving a breach of peace or danger to life or property
and to search for and apprehend persons concerned in such
offences and who are so desperate and dangerous so as to
render their being at large hazardous to the community etc.
Section 2(b) defines "Commandant and Assistant Commandant"
to mean respectively persons appointed to those offices by
the state Government under Section 5. Section 2(h) defines
reserve police Force established under the Act. Section 5
postulates appointment of Commandant and Assistant
Commandant and an Adjutant. It provides that "The state
Government may appoint for each group commandant who shall
be a person eligible to hold the post of a Superintendent
and an Assistant Commandant and an Adjutant who shall be
persons eligible to hod the post of an Assistant or a Deputy
Superintendent." Section 10 enumerates general duties of the
personnel of the State Reserve police Service. It postulates
that "Every reserve police officer shall for the purpose of
this Act be deemed to be always on duty in the State of
Bombay, and any reserve police officer and any member or
body of reserve police officers, may, if the State
Government or the Inspector-General of police so directs. be
employed on active duty for so long as and wherever the
services of the same may be required". Under sub-section
(3), "[A] reserve police officer employed on active duty
under sub-section(1), or when a number or body of reserve
police officers are so employed, the officer in charge of
such number or body, shall be responsible for the efficient
performance of that duty and all police officers who, but
for the employment of one or more reserve police officers or
body of reserve police officers or body of reserve police
officers, would be responsible for the performance of that
duty, will, to be best of their ability, assist and
cooperate with the said reserve police officer or officers
in charge of a number or body of reserve police officers.
Section 19 of the Act empowers every reserve police officer
to be the " police officer" as defined in Bombay police Act,
1951; the details thereof are not material for the purpose
of this case. Section 11 of the Act postulates that reserve
police officer shall be deemed to be in charge of a police
station. Sub-section (1) envisages that " when employed on
active duty at any place under sub-section (1) of section
10, the senior reserve police officer of highest rank, not
being lower than that of a Naik present, shall be deemed to
be an officer in charge of a police station for the purposes
of Chapter IX of the Code of Criminal procedure, 1898, Act 5
of 1898 , which is equivalent to chapter X of the Cr. P.C.
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Chapter X deals with "maintenance of public order and
tranquility". The Chapter relating to investigation is
chapter XII of the Cr.P.C. starting with Section 154
dealing with laying of the First Information Report etc.
It would, thus be clear that a senior reserve police
officer appointed under the SRPF Act, though is a police
officer under the Bombay police Act and an officer in charge
of a police station, he is in charge only for the purpose of
maintaining law and order and tranquility in the society and
the powers of investigations envisaged in chapter XII of the
Cr. P.C. have not been invested with him.
Shri Sushil Kumar, learned senior counsel appearing for
the respondents, has relied upon the judgment of this Court
in Kartar Singh vs. State of Punjab [(1994) 3 SCC 569 at
719, placitum b and at 720, placitum C). He contends that
the object of giving protection to the accused is that he
will not be put to lose his liberty by making a confession
to a police officer and to keep away the accused from the
threat or inducement which may be administered to the
suspect in the custody of the police officer. The accused
will not be in a position to distinguish as to who is or is
not a police officer invested with the power of
investigation. But will assume the person seen in the
uniform to be the police officer. Therefore, all the
officers performing the police duty, may be required to be
treated to be police officers within the meaning of Section
25 of the Evidence Act so that the liberty and protection
granted to an accused under Article 19 and Article 20(3) of
the Constitution would be safe guarded. Though the argument
of Shri Sushil Kumar is prima face attractive, on deeper
prove, we find it difficult to give acceptance to the same.
It is undoubted that in Kartar Singh vs. State of
Punjab [(1994) 3 SCC 569], one of us (K. Ramaswamy, J.) in a
separate but concurrent judgement, had held thus; "moreover,
the imbalance between the State an the defendant begins with
arrest and detention, for experiences influence the detenue
in ways analogous to interrogation, the negative
implications of silence, the self-mortification or extreme
humiliation at being arrested, the desire to shield the self
from potentially. humiliating questioning and the emotional
stress caused by the symbols of the law’s authority even in
persons of higher status would get lost. " Similar ,
observations came to be made that the police interrogation
can produce trance like state of heightened suggestibility
so that truth and falsehood become hopelessly confused in
the suspect’s mind at that it will be due to hypnosis the
suspect lose initiative and in the heightened fantasy,
confabulation and distortion get mixed up due to leading
question. As a result , the power of recording confession by
the police officer should be excluded.
These statements of law came to be made in the context
of empowering the police officer to record the confessional
statements of the accused under TADA Act while in custody.
That ratio has no application to the facts in this case.
It is already seen that PW-4 , Jhala, was not an
investigating officer within the meaning of Chapter XII of
Cr. P.C. and that he did not even conduct any investigation.
it is true , as rightly pointed out by Shri Sushil Kumar,
that even after the incidence, PW-4 remained present at the
scene of occurrence till evening, as admitted by him in the
cross-examination . But his explanation offered by him was
that since he occurrence had taken place, law and order
situation was likely to arise. So he remained on duty till
in the evening until the DOSP had come and started
investigation and thereafter he left the place. it would be
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seen that as a dutiful officer on duty, he had performed the
duty as a higher officer of the division in the parade and,
therefore, it cannot be gainsaid that he was an
investigating officer.
The question, thus, would emerge: whether Anirudhsing,
the first respondent had made any confession to Jhala, PW-4?
In this behalf, we have to state that in the First
Information Report lodged by I.B. Shekhawat there is a
sentence made that the Accused No. 1 made a statement to PW-
4 that he had committed the crime. We will examine whether
it would be treated as substantive evidence at a later
stage; suffice it to state here that except this piece of
evidence, there is no categorical statement given by PW-4 in
that behalf for the obvious reason that when he was being
examined as a witness and was going to state it, an
objection was raised as to the admissibility of the
confession made by the Accused No. 1 to PW-4. The trial
judge allowed the objections and ruled that he being a
police officer under the Act. the confession made was not
admissible. Against that order, special leave petition has
been filed. we have granted leave and also held that PW-4
is not a police officer, for the provisions of the Chapter
XII of the Cr.P.C and Section 25 of the Evidence Act do not
get attracted. In view of the finding recorded earlier, the
appeal is allowed and it must be held that he not being a
police officer, he was a witness to the occurrence.
It is now well settled position of law vide this
Court’s decision in Nizar Ali vs. State of U.P. [1957 SCR
657] that the first information report is not a substantive
piece of evidence and can only be used to corroborate the
statement of the maker under Section 157 of the Evidence Act
or to contradict it under section 145 of that Act. it cannot
be used as evidence against the maker at the trial, if he
himself becomes an accused; nor to corroborate or contradict
other witnesses. In Dharma Rama Bhagare vs. The State of
Maharashtra [(1973) 1 SCC 537], the same principle was
reiterated. it was held therein that the first information
report is never treated as a substantive piece of evidence.
It can only be used for corroborating or contradicting its
maker when he appears in court as a witness. Its value must
always depend on the facts and circumstances of a given
case. The first information report can only discrediting the
other witnesses who obviously could not have any desire to
spare the real culprit and to falsely implicate an innocent
person. Prosecution case cannot be thrown out on the mere
ground that in the first information report an altogether
different version was given by the informant.
It is seen that in the light of the evidence given by
I.B. Shekhawat, PW-58 that Anirudhsing made a confession to
someone, it is a hearsay evidence and, therefore, the
statement made in the FIR is not a substantive evidence to
corroborate the evidence of PW-4 and, therefore, that piece
of evidence stands excluded. As regards the evidence of PW-4
Jhala, as seen, that part of the statement has not come on
record. Two courses are open , namely, either to set aside
the judgment of acquittal and remand the case for retrial on
that issue or to consider the case for retrial on that issue
or to consider the case of other evidence, if available on
record. We think on the evidence, if available on record. We
think on the facts and circumstances of the case, that it
would not be desirable to set aside the judgement of the
designated court and remand the matter for retrial on that
issue. On the other hand, we are of the considered view that
the matter can be disposed of on that issue. On the other
hand, we are of the considered view that the matter can be
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disposed of on the basis of the evidence on record.
Accordingly, we hold that piece of evidence of oral
confession made by Anirudhsing, to Jhala, PW-4, is not
available to the prosecution.
The next question is: whether the evidence that
Anirudhsingh was apprehended on the scene of evidence
immediately after the occurrence is proved? In this behalf,
though the prosecution sought to examine member of witness,
unfortunately, most of them turned hostile to the
prosecution. What is the weight or acceptability of the
evidence of hostile witnesses has been considered by this
Court in some decisions. In Khujji vs. State of M.P. [(1991)
3 SCC 627 at 635] this Court said that:
"The evidence of PW-3 Kishan Lal
and PW-4 Ramesh came to be rejected
by the trial court because they
were declared hostile to the
prosecution by the learned public
prosecutor as they refused to
identify the appellant and
assailants of the deceased. But
counsel for the State is right when
he submits that the evidences of a
witness, declared hostile, is not
wholly effaced from the which is
otherwise acceptable can be acted
upon. It seems to be well settled
by the decisions of this Court-
Bhagwan Singh v. State of Haryana
[(1976) 1 SCC 389], Rabindra Kumar
Dev v. state of Orissa [(1976) 4
SCC 233], and Syad Akbar v. State
of Karnataka [(1980) 1 SCC 30]-
that the evidence of a prosecution
witness cannot be rejected in toto
merely because the prosecution
chose to treat him as hostile and
cross examined him. The evidence of
such witnesses cannot be treated as
effaced or washed off the record
altogether but the same can be
accepted to the extent their
version is found to be dependable
on a careful scrutiny thereof."
In that case, the evidence of a hostile witness was
scanned by this Court and found to be accepted and relied
on. In State of U.P. vs. Ramesh Prasad Misra [(1996) 10 SCC
360 at 363, para 7], it was held thus:
" It is rather unfortunate most
unfortunate that these witnesses,
one of whom was an advocate, having
given the statements about the
facts within their special
knowledge, under section 161 record
during investigation, have realised
from correctness of the versions in
the statements. They have not given
any reason as to why the
investigating officer could record
statements contrary to what they
had disclosed. It is equally
settled law that the evidence of a
hostile witness would not be
totally rejected if spoken in
favour of the prosecution or the
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accused, but it can be subjected to
close scrutiny and that portion of
the evidence which is consistent
with the case of the prosecution or
defence may be accepted."
In view of the above settled legal position, merely
because some of the witnesses have turned hostile, their
ocular evidence recorded by the Court cannot be held to have
been washed off or unavailable to the prosecution. It is the
duty of the Court to carefully analyse the evidence and
reach a conclusion whether that part of the evidence
consistent with the prosecution case, is acceptable or not .
It is the salutary duty of every witness who has the
knowledge of the commission of crime, to assist the state in
giving the evidence; unfortunately for various reasons, in
particular deterioration in law and order situation and the
principle of self-preservation, many a witness turn hostile
and in some instances even direct witnesses are being
liquidated before they are examined by the Court. In such
circumstances, it is high time that the law Commission looks
into the matter. We are informed that the Law Commission has
recommended to the Central Government to make necessary
amendments to the Cr.P.C. and this aspect of the matter
should also be looked into and proper principles evolved in
this behalf. Suffice it to state that responsible persons
like Sub-Divisional Magistrate turned hostile to the
prosecution and most of the responsible persons who were
present at the time of flat hoisting ceremony on the
Independences Day and in whose presence a ghastly crime of
murdering a sitting M.L.A. was committed, have derelicted
their duty in assisting the prosecution and to speak the
truth relating to the commission of the Crime. However, we
cannot shut our eyes to the realities like the present
ghastly crime and would endeavour to evaluate the evidence
on record. Therefore, it is the duty of the trial judge or
the appellate Judge to scan the evidence, test it on the
anvil of human conduct and reach a conclusion whether the
evidence brought on record even of the turning hostile
witnesses would be sufficient to bring home the commission
of the crime. Accordingly, we under take to examine the
evidence in this Case.
It is true that PW-4, PW-58 and PW-46 are police
officers; but they are not investigating officers. They
happened to present at the scene by virtue of their duty.
They being high ranked officers in the State were required
to be present on the Independence Day parade as per our
official conduct and rules. Merely because they are police
officers, their evidence cannot and must not be rejected
outrightly as unreliable or unworthy of acceptance. It
requires to be subjected to careful evaluation like any
other witness of occurrence.
We have the evidence of PW-4, Jhala, pw-58, I.B.
Shekhawat and PW-46, Atma Ram, on duty apart from PW-40, the
Chief Officer of the Municipality, who was conducting the
proceedings in the flag hoisting ceremony, though he turned
hostile, and also the evidence of PW-36, private Medical
Practitioner at Gondal and also EX- M.L.A., who had also
turned hostile.
At the outset, we would notice the contention of Shri
Sushil Kumar that the entire record of the prosecution has
not been prepared and a copy has not been given to the
accused and that therefore, he was handicapped to place
before the Court certain aspects relating tot he
investigation conducting by Rawat and Bhattacharya. In the
absence of scene of offence marked in two sketches and the
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evidence of witness, Kuber Singh in proof of fire arms;
omission to examine other medical evidence and the relevant
photographs wherein the first respondent could be properly
identified to be the person at the scene of offence. We had
given direction to the designated Judge to send the record
duly translated; he sent a report stating that it is a
voluminous record and would take considerable time for
translation and accordingly he sought time. We have
carefully scanned the evidence of the witnesses which is
already on record with the assistance of the counsel for the
state and the accused and have gone through the relevant
portions relied upon; thereafter we have ourselves minutely
examined the evidence. The other evidence are not of
material consequence in these case for the reasons we are
going to give. Under these circumstances, the objections of
Shri Sushil Kumar in our considered view are not of material
relevance. He also referred to order XX-E, Rule 1(v) of the
Supreme Court Rules in this behalf. Normally, in a case
where the material evidence is necessary for the prosecution
or the defence, certainly we adjourn the case to enable the
respondents to get the entire record prepared. However,
since in our view that evidence is not material for the
purpose of this case, we have not adjourned the case.
Though PW-38, the Deputy Collector and executive
Magistrate has spoken of the accident and also that Accused
No. 1 was caught, as admitted in cross-examination, we were
not relying upon that evidence for the reason that he acted
as an Executive Magistrate and issued remand order to the
accused. In that perspective, we are not placing any
reliance on the evidence of that witness, PW-36, A private
practitioner, through he turned hostile, has also given the
evidence that at the scene of offence Anirudhsing was caught
by the police. Similarly, PW-40, the Chief place immediately
after the prize distribution was over and while PW-46 was
announcing that some more programme was in the offing.
Let us first see whether the three circumstances,
namely, the homicidal death of the decease popatbhai, the
apprehension of the first respondent at the scene of
occurrence and recovery of pistol and handkerchief said to
have been thrown over the head of PW-58, have been proved to
the satisfaction of the Court before considering whether
these proved facts are sufficient to bring the offence
beyond reasonable doubt against the first respondent.
It is seen that PW-58, I.B. Shekhawat, was the first
informant, who gave the report. In this behalf, the
contention of Shri Sushil Kumar is that the first
information report was given by the doctor at Rajkot as to
the death of the deceased and it constitutes FIR and,
therefore, the FIR, Ex. 203/1, is not the FIR and,
therefore, it is not admissible in evidence. We don not
accept the contention of Shri Sushil Kumar as correct. It is
seen that under Ex. 203/1, FIR, the offence charged is under
Section 307 but not under Section 302 and the FIR has
already reached the judicial magistrate at 12.15 p.m. The
information conveyed by the doctor under Ex. 201 was the
intimation of the death of the deceased. Consequently. in
the FIR the offence under Section 307 was converted into an
offence under Section 302 and the converted FIR was issued,
which was marked as Ex. 202/3. Under these circumstances,
the FIR given by Shekhawat under Ex. 203/1 was the first
information report. As extracted earlier, it does contain
wealth of material particulars regarding the apprehension of
Anirudhsingh on the spot. The only commission therein was of
the apprehension of the accused by Jhala, PW-4. As regards
the factum of apprehension of the first respondent on the
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spot, his identify and name, being brought by PW-58 , PW-46
and others find place in the first information report
itself. Therefore, the evidence of PW-58 that he had brought
the Accused No.1, Anirudhsingh from the scene of the
offences and handed him over to police Rawat, Inspector to
record the FIR gets corroboration from Ex. 203/1.
The first question at the outset is dealt with this
that whether the prosecution has proved that the deceased
died due to homicidal death. Dr. Buch who conducted the
post-mortem examination along with Dr. Trivedi had given his
ocular evidence and he has sated as per the post-mortem
report as under:
" External Injury., Wound of
entry:- roughly rounded 1-1/2 c.m.
in diameter, Rugged and irregular
border with charring around wound
inverted situated 1 inch postero
superior to right mastoid tip. No
smell or deposition of gun powder.
No signeing of hair. Haetoma
underneath; dark red in colour, No
wound of exit, Vane section both
lower limbs and venu puncture both
upper limb. These were treatment
wounds. Fracture of right mastoid
and temporal bones ."
According to him the death was due to injury by fire
arm and it is a homicidal death. The Designated also in that
behalf recorded a finding as under;
"I come to the conclusion that the
prosecution has proved beyond
reasonable doubt that deceased
Popatbhai Lakhabhai Sorathia died a
homicidal death and, therefore,
decide point No.1 in affirmative."
Shri Sushil Kumar contends that though Dr. Trivedi was
available in this Court. the prosecution has not examined
him and the notes of the post-mortem report under Ex.P-38
have not been properly proved and, therefore, prosecution
has not proved the case beyond reasonable doubt that the
deceased died due to homicidal death. We are unable to agree
with the learned counsel. A reading of the post-mortem
report which is a part of the record and the evidence
recorded in the judgment of the Sessions Court, Correctness
of which even was not commented upon, does indicate that the
post-mortem was conducted jointly by DR. Buch and Dr.
Trivedi and the major work was does by Dr. Buch. It is also
the evidence of Dr. Buch. In view of that positive evidence,
as per the post-mortem report which is a part of the record,
the injury to the head have been caused due to the firm arm
and, therefore, there is no doubt that the homicidal death
and was not due to any other cause. That was not even the
case of the accused. The omission to examine Dr. Trivedi is
not of relevance. In this regard, it is also contended by
Shri Sushil Kumar that the prosecution has failed to Connect
the injury caused by the fire arm, EX.1A. There is a dispute
whether the pistol produced before the Court is the one that
was seized by PW-58, I.B. Shekhawat when it was alleged to
have been thrown and it was not established beyond doubt
that it was the same weapon that was used in the commission
of the crime. It is also contended that there is no evidence
that it was the weapon that was used by Accused No. 1 in
Commission of the Crime . It is also contended that if the
prosecution case is accepted that Accused No.1 hit the
deceased from behind his head where the deceased was sitting
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in the front row, there would have been entry and exist
wounds and in the absence of that, it would be difficult to
believe that the A-1 had caused such a death within the
short range without any exist wound. we find that there is
no force in the contention. As regards the identification of
the weapon, there is evidence of PW-58, I.B.Shekhawat who is
also an officer admittedly on duty at that time and in his
evidence he categorically stated that he saw that a fire arm
was thrown above his head, he immediately swung into action
and fan towards the direction where it had fallen; he took
it in his hand, identified it to be pistol wrapped up with
hand-kerchief. That fact finds express mention in the FIR,
Ex. 203/1. That was also spoken to by PW-46. another officer
on duty and also spoken to by PW-46, another officer on duty
and also spoken by PW-4, Jhala, As regards the pistol which
was seized, we have unimpeachable evidence on record of
Bharat Virji S/o Kapilari Mistry, Senior Scientific Forensic
Officer, PW-55, wh had done the analysis after the receipt
of the pistol from the ballistic expert, that it is the
pistol that was placed before the Court. In his evidence,
PW-55 in Ex. 217 has stated in examination-in-chief that he
received a pistol wrapped with hand-kerchief and he analysed
it; and when he was subjected to cross-examination, he has
specifically stated that the pistol was found wrapped in a
cover. He opened it in his presence and in the presence of
his servant; opened it and found iron rusting on the hand-
kerchief. Iron rusting was also analysed. In that behalf, a
great deal of extensive cross-examination was conducted by
the defence counsel but nothing came out to suggest it was
weapon other than the one that was sent to him for
examination. In this evidence, PW-4 has categorically stated
which has also remained unchallenged in the cross-
examination, that the pistol that was produced in the Court
was the one that was seixed at the place of occurrence
immediately after it was thrown. Thus it could be held that
the prosecution has established that the weapon which was
thrown over the head of PW-58, I.B. Shekhawat, was the one
that was seized by him and placed before the police under
FIR, Ex. 203/1; mention thereof was made in the custody of
the court immediately at 12.15 p.m. on that date. Thus the
prosecution has conclusively proved that the firm-arm Ex. 1-
A, was recovered from the scene. It is true that the empty
cartridge was discharged from the pistol It is also true, as
pointed out by Shri Sushil Kumar, that the magazine
contained an empty one and one loaded cartridge was found in
the chamber but it depends upon the velocity with which it
is used. It is in the evidence of PW-4, Jhala and PW-58 ,
I.B. Shekhawat, that they heard the sound like cracker from
behind them and immediately they saw the people running
helter-skelter and when PW-4 got up on the chair and looked
around, he saw Anirdusingh, Accused No. 1 attempting to run
away. As a consequence, he immediately jumped from the chair
and caught him. He has stated in his evidence thus:
"I and Shekhawat stood up and I saw
on my left a weapon wrapped in
cloth being thrown from my left
side to right side. Shri Shekhawat
went to the right side where the
weapon was thrown towards temple
side and I stood up on my chair and
to may left side behind where many
people were standing. one person
was trying to run away, hence. I
jumped from the chary and caught
hold of this suspected person. At
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that time, I saw popatbhai bleeding
from his nose and he lay on right
side with his head below".
In Paragraph 7, he stated thus:
" I and Shekahawat took the
apprehended boy next to the stage
where P.S.I. Rawat and other police
officials were standing. The boy
whom I apprehended is present in
the court and is accused No. 1 whom
I identify. Muddamal article no.1 A
pistol, and handkerchief, article
no.2 are shown to me, but if they
are two or there I cannot identify.
Muddamal article no.1-A pistol is
shown to me and it is the same. I
can identify the handkerchief if it
is shown to me. I am shown Muddamal
article no.2-A handkerchief, it is
the same and I identify it."
In the cross-examination, though he was subjected to
gruelling in the cross-examination, he withstood the cross-
examination, he withstood the cross-examination and stated
thus:
"It has happened when I stood up at
that time Shekhawat ran towards the
direction where the thing was
thrown up which appeared to have
been wrapped in a cloth . It is
true that i saw the thing thrown
wrapped in a cloth as pistol when
Shekhawat came to me with it. I saw
Shekhawat running at a distance of
10 to 15 feet away. The thing
thrown up passed opposite me from
the upper side. This landed in the
front line of chair. I did not feel
that it was thrown from the stage
side. I have not seen Shekhawat
picking up that thing from the
earth."
It is true, as contended by Shri Sushil Kumar, that the
sketches relating to the scene of offence and various places
were notes and photos have not been placed before us. but
the absence of placing the sketches and photos makes little
difference if we accept the evidence of PW-58 and PW-4 that
the pistol and handkerchief were identified by them which
was the one thrown over the head of PW-58 immediately after
the occurrence. if it were a case that there is a time gap
between the time of occurrence and of the recovery,
certainly that would be a matter to be established with
reference to the identify of the place at which the articles
were thrown and the place from which they were thrown. When
PW-58 and PW-4 were present at the scene of occurrence, it
was their duty to swing into action as dutiful citizens and
officers; to catch hold of the pistol without being blown
causing damage to the others; and PW-58 had taken them into
custody. He found that the pistol was kept in the position
for further firing. It would appear that one Kuber Singh,
the Fire Arm Expert has stated that he was called to the
police station and there he defused the weapon. It is true
that the evidence of Kuber Singh has not been placed before
us but that omission does not make much difference he being
an expert and his opinion being hypothetical opinion, so
long as the identify of the weapon is the surmise of the
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ballistic exert that the pistol was not the one that was
used in the commission of the crime. It does not create any
inescapable doubt. In view of the unimpeachable evidence of
PW-58 who seized the weapon thrown immediately after the
commission of the offence over his head and in view of
further corroboration in that behalf received from the
evidence of PW-4 and PW-46, another officer on duty, the
omission to place on record the sketch of the scene of the
offence or fire arm except, is not of material consequence.
As regards photographs, their relevance will be considered
while examining the evidence of Anirudhsingh having been
caught on the spot.
From the reading of the evidence of Forensic expert,
PW-55, the evidence Of PW-58, PW-4 and PW-46, it can safely
be concluded that the pistol with which the murder of
Popatbhai was committed was recovered immediately after the
occurrence by PW-58 which was thrown wrapped in the
handkerchief. It is true that there is no exist wound; but
pullet was found inside the brain and the evidence of Dr.
Buch clearly indicates that it was on account of the hit
from the pistol with which the deceased sustained injuries
which resulted in the homicidal death. Therefore, the
prosecution has established that the weapon, Ex.1A was the
one used for committing the murder of the deceased.
The Designated Court is obviously in error in recording
the finding that the muddamal pistol was not the one that
was used at the time of the commission of the crime and
something was planted. In view of the unchallengeable and
unimpeachable evidence of PW-55, the Forensic Doctor who has
spoken of the pistol and handkerchief in the Court , and in
view of the acceptable evidence of PW-58 and of PW-4 and PW-
46, another officer on duty, we have no hesitation to hold
that the muddamal pistol, Ex.1A was the one that was used
to hit the deceased, popatbhai, It is true that it depends
upon the velocity with which the trigger was operated that
would generate the speed for causing the wound and it is
difficult for the prosecution to established in that behalf
the speed but the fact remains that the pellet having ben
found in the head of the deceased, it is clear that pistol
was used in causing the death of the deceased and the
deceased was shot dead from behind.
The next question is: whether the death was caused by
Anirudhsing? That is the crucial area in which one has to
carefully scan the evidence. No doubt the Designated Court
has pointed out four circumstances enumerated hereinabove
which prosecution has failed to bring on record. If those
circumstances are brought on record , certainly that would
constitute direct evidence connecting Anirudhsing with the
commission of the evidence. The need to fall back upon
circumstantial evidence does not arise. The absence thereof
would not be a ground t throw over board the prosecution
case. Learned Additional Judge of the Designated Court did
not make any attempt to analyses the evidence in correct
perspective. we have the evidence of PW-4, PW-58 and PW-46
in this behalf. Undoubtedly, they are police officer. Their
presence cannot be disputed for the reason that they were
deployed on duty at the time of flag hoisting ceremony.
Accused No.1 was caught on the spot at the scene of the
crime. Infect, the trial judge also has accepted his
presence at the scene of occurrence. It has been proved
beyond reasonable doubt. Shri Sushil Kumar, learned senior
counsel in fairness has also not seriously disputed in that
behalf. From this perspective, the omission to place on
record the photographs is not at all relevant. The
photographer normally concentrates on high dignitaries and
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it is not the case that the photographer had clicked any
photograph of the actual commission of the crime. Perhaps,
if the Accused No.1 was taken into police custody long after
the incident, then the photos become relevant evidence. It
is an admitted position that in one of the photographs
Accused No.1 was seen at the time of flag hoisting ceremony.
The question then is: whether Anirudhsing, the first
respondent alone has committed the crime or someone has
committed or assisted him? It is true that PW-4 stated in
his cross-examination that apart dram Anirudhsing, others
were also taken into custody. Perhaps to investigate whether
there was any conspiracy behind the commission of the crime
or the first respondent alone has independently committed
the crime, They are the officers of special Reserve Police
and had given categorical statement in the ocular evidence
that they were on duty. The fact of their being on duty has
not been impeached in the cross-examination. When the
occurrence had taken place and to see that no further
untoward event would occur. In this background, one has to
consider the evidence of PW-4, PW-58 and PW-46 . It is seen
that PW-4, Jhala had no axe to grind by speaking falsehood
against Anirudhsing. Being the officer on duty, he swung
into action instantly and apprehended Accused No.1 on the
spot immediately while he was trying to run away. We have
already noted that in the First Information Report the
identity of the first respondent was specifically mentioned
and he was produced within 25 minutes after the time of
occurrence. The occurrence had taken place at 9.30 a.m. and
he was produced before the police at 9.55 a.m. The Report
contained the material particulars that Anirudsingh was
caught; handed over to and was kept in the custody of the
police. Fir was in the custody of the court at 12.15 p.m.
even before Bhattacharya, D.I.G. had started real
investigation into the matter. Thus we hold that
Anirudhsing, some others were taken it no custody. Merely
because others were taken into custody, it cannot lead one
to conclude that others committed the cream and that the
first respondent has been falsely implicated in the crime.
No other ground was even suggested to make any false
implication of Anirudhsingh. The fact that immediately after
Ex. A-1, the pistol wrapped in Ex.A-2, the handkerchief was
thrown over the head of PW-58, Shekhawat, PW-4 Jhala had
looked behind after getting on the chair and on finding the
first respondent attempting to run away, he ran and caught
him immediately. When the first respondent was caught
immediately, necessarily this mental faculty would be
disturbed as was found but it s not sufficient base to
conclude that he has not committed the crime. That is also a
relevant fact to be taken into account in PW-4 to reach the
conclusion that he is the suspect in the commission of the
crime. It can in fairness, be said that PW-4 has not stated
in his evidence that Accused No.1, Anirudhsing has committed
the crime by throwing it. Therefore, the conduct of PW-4 in
instantly swinging into action and the manner in which he
acted upon and gave the evidence in the Court, creates an
unmistakable impression in our mind that PW-4 is a truthful
witness. That evidence was also corroborated from the
evidence of PW-58 and PW-46, Special Reserve Police officer
on duty. It would thus be seen that throwing of the
handkerchief and catching of Anirudhsing have been
established beyond doubt.
When the pistol and the handkerchief were thrown from
being and when Anirudhsing was caught when he was at the
back of the deceased, the necessary conclusion to be drawn
unmistakably is that it was Anirudhsing who hit the deceased
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and thereafter he had thrown the pistol over the head of
Shekhawat, PW-58 so as to avoid his being identified and he
made an attempt to run away from the scene. Therefore, we
hold that Anirudhsingh, Accused No.1 alone has done
Popatbhai to death.
It is then contended by Shri Sushil Kumar that Accused
No.1 had no notice and the prosecution has failed to prove
it. We find no force in the contention. The motive gets
locked upon into mind of the makers and it is difficult to
fathom it. The evidence of Acharya P.A. to the deceased, who
too turned hostile to the prosecution speaks of motive.
Equally, others have spoken but their evidence is not on
record. If motive is proved that would supply a chain of
links but absence thereof is not a ground to reject the
prosecution case. So we reject the contention of the learned
counsel in that behalf too.
Thus considered in the light of the circumstances. we
have no hesitation to hold that the prosecution has
established the case that Anirudhsing and none else, has
committed the murder of the deceased. Papatbhai. The learned
designated Court has not correctly appreciated the evidence
in the proper perspective. Accordingly, we hold that the
prosecution has proved its case beyond reasonable doubt that
Anirudhsing, the first respondent was in possession of a
fire arm which was not proved to be licensed one. Therefore,
it is an unauthorised weapon. Accordingly, the first
respondent, Anirudhsing has committed the offence under
Section 5 of the TADA Act and also the offence of murder
punishable under Section 302, IPC.
Accordingly, the judgment and order of acquittal,
passed by the Designated Court stand set aside. Instead, the
first respondent having committed the offence of murder of
Popatbhai, is convicted under Section 302, IPC and is
sentenced to undergo imprisonment for life. Since more than
nine years have elapsed from the date of the commission of
the crime, we do not think it appropriate to impose capital
sentence of hanging, through he has committed an heinous and
a gruesome crime of killing a responsible Member of
Legislative Assembly who was attending flat hoisting
ceremony on the Independence Day. He is alls convicted for
an offence under section 5 of the TADA Act and is sentenced
to undergo imprisonment for three years, Both the sentence
are directed to run concurrently. The appeal against the
first respondent is allowed accordingly Appeal against the
second respondent is dismissed.
Bail bond of the first respondent stands cancelled. The
Superintendent of Police, Rajkot is directed to take the
first respondent into custody immediately to serve out the
sentence. He is also directed to report compliance of the
said direction to the Registry of this Court. The bail bond
of the second respondent is discharged.
Before parting with the matter, we place on record our
appreciation for the excellent and efficient service
rendered by Mrs. N. Anapurna, Senior Stenographer who has
always taken long dictation of heavy matters in the Court
and transcribed accurately as was dictated to her.
Accordingly, we place on record our commendation for her
excellent work.
REPORTABLE-563/97 SECTION-IIA
SUPREME COURT OF INDIA
No.F. 3/Ed/B.J.145/97
New Delhi
Dated: 30.7.97
CORRIGENDUM
This Court’s Order in
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Crl. A. NO. 626 of 1997
State of Gujarat v.
Anirudhsing & Anr.
(Dated : 10.7.1997
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4 13 Section 25 Section 19
SECTION OFFICER
EDITORIAL BRANCH