The
State of Gujarat Vs. Anirudhsing & ANR [1997] INSC
593 (10 July 1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
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 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 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 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 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 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.
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
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 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 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 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 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 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 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 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 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 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 Crl. A. NO. 626 of 1997 State of
Gujarat v. Anirudhsing & Anr.
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