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PETITIONER: PRADUMANSINH KALUBHA

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT21/01/1992

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) YOGESHWAR DAYAL (J)

CITATION:  1992 AIR  881            1992 SCR  (1) 259  1992 SCC  Supl.  (2)  62 JT 1992 (1)   280  1992 SCALE  (1)155

ACT:      Indian Penal Code 1860:      Section  304  Part  II-Appellant-Prosecution  of-Caused death  by  delivering  knife  blow  on  chest  of  deceased- Acquittal  by  trial  court-Conviction  by  High  Court-Held appellant’s  involvement in  crime-Clearly  established-High Court  has demonstrated conclusion of trial court wrong  and not sustainable on evidence.      Indian Evidence Act, 1872 :      Section  27-Weapon-Seizure of-Not material-When  direct evidence available of involvement of accused.

HEADNOTE:      The  prosecution  alleged  that the  Harijans  and  the Garasia-Durbars   in  the  township  of  Thangadh   in   the respondent-State were not keeping good relationship for  the past  six months and that the brother of the  appellant  who was  the  manager of a Cinema Talkies  assaulted  a  Harijan teacher  and  that  thereafter the  Harijans  boycotted  the theatre.      On  February 12, 1978, the deceased who was  a  Harijan painter had gone alongwith two other at about 6.00 P.M.  for purchasing Datan and that when they proceeded to purchase  a brush as desired by the deceased they turned back to pick up the  Datan  before  it  was too late. In  the  process,  the deceased  came in contact and unwittingly brushed  with  the appellant  who  had  been passing alongwith  the  other  two accused.  Infuriated by the collision, the appellant scolded the   deceased  as  untouchable  drew  out  his  knife   and inflicted  a  blow on his chest. P.Ws. 4 and 5 were  on  the spot  purchasing  Datans  from the vendor.   The  other  two persons   who  accompanied  the  appellant   assaulted   the companions  of the deceased with sticks.  The deceased  fell down  with  bleeding  injury  and  the  appellant  and   his associates  left the place.  the deceased was rushed to  the Hospital, but died the same night.                                                        260      On recording the statement of PW 4 who was on the  spot alongwith  PW  5 a case was registered.   The  crime  though originally  registered  for the offence under  Section  307, IPC,  was altered to Section 302, IPC.  After  investigation

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the appellant and two others were charge-sheeted.      The   prosecution   adduced  evidence  to   prove   the relationship  between  the two factions and details  of  the investigation.   The defence plea was that the incident  did not  happen in the manner in which it had been  stated,  and that  the appellant was not involved.  It was  alleged  that there  was  a collision between the cyclists followed  by  a commotion in the course of which injuries had been sustained by the deceased.  Evidence was adduced to prove this plea.      The  Sessions  Judge  rejected  the  prosecution  case, considered  the defence version more probable and  acquitted the accused persons.  The trial court found that the genesis of  the crime as put forward was improbable.   The  appellant had  mingled with Harijans boys as a sportsman in  the  past, and  there was no reason for him to be annoyed and that  the injuries  sustained  by the two companions of  the  deceased were simple and superficial and could be self inflicted  and that  if  they were assaulted by all the  four  accused  the assault would have resulted in more serious injuries.      On  appeal by the State, the High Court  convicted  the appellant for the offence under Section 304 Part II, IPC and sentenced  him  to undergo imprisonment for a term  of  five years.   It  re-examined the entire evidence  and  concluded that the account given by the eye-witness was true, that the reasons  given by the Trial Court for rejecting the same  as not  sustainable.  It found no infirmity in the evidence  of the  witnesses and their testimony wholly reliable.  On  the medical  evidence it found that the deceased was stabbed  in the  left  loin from the side, the wound being  cavity  deep resulting  in a cut of the spleen and the kidney,  and  lent corroboration  to  the  testimony of the 4  PW  s  that  the appellant  had  given a knife blow on the left loin  of  the deceased.      In  the appeal to this Court it was contended that  the High  Court had disregarded the principles for dealing  with an  appeal  against  an order of  acquittal,  and  that  the absence of blood on the spot where the incident occurred and the  weapon  seized throw doubt on the  credibility  of  the investigation.  The failure to examine non-Harijan witnesses was  also  commented  upon as amounting  to  suppression  of material evidence.                                                        261      Dismissing the appeal, this Court,      HELD  : 1.  The High Court has carefully  analysed  the entire evidence and has demonstrated how the trial court has gone wrong and the conclusions drawn by the trial court  are not  sustainable  on the evidence.  The evidence  placed  on record as found by the High Court is truthful and proved the fact beyond the shadow of doubt, and the involvement of  the appellant in the crime is clearly established. [p.268 C-D]      2.   The  nature  of  the  injuries  sustained  by  the deceased and the medical evidence justify the inference that there would not have been the possibility of any blood stain remaining  on  the  spot for  the  injured  was  immediately removed from there and the place is one trampled upon by the public. [267 G]      3.  In a case where there is direct evidence, even  the seizure of the weapon is not very material. [p. 268 A]      4.   P.W. 4 the complainant and P.W. 5 the  person  who accompanied  the deceased to the hospital have  consistently shown  that  the  injured was taken in a  push-cart  to  the Government   hospital  and  the  medical  officer  was   not available.  He was brought to the dispensary where PW 16 the doctor’s  wife gave preliminary treatment.  Thereafter,  the injured  was  taken by the brother in a car  to  the  Rajkot

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Hospital. P.W. 16 corroborates the evidence of P.W. 5.   The fact that the brother of the deceased could not disclose the identity of the assailant at the earliest opportunity is  of no consequence.  He was only anxious to rush the injured  to the  hospital   If he had not probed into the cause  of  the assault  or the identity of the assailant in that  situation or carried a wrong impression about the involvement of  some persons  on the basis of the information conveyed to him  by persons  who  had no direct knowledge, no inference  can  be drawn  that there was an attempt to foist the case. [p.  266 D-F]      5.   It  is  unlikely that the  near  relation  of  the deceased  would  allow  the  real  culprit  to  escape   and implicate some innocent person if he had the opportunity  to know  the  real  state  of affairs.  If  he  could  not  get reliable  information,  it  is  not  likely  that  he  would implicate some innocent person without leaving the matter to be investigated. [p. 266 F-G]      6.   The  vague  suggestion that  the  brother  of  the deceased  had in the first instance  implicated  appellant’s brother and changed his                                                        262 stand later is not established on material.  The brother  of the deceased said that he learnt about the assault while  he was  at work. Since P.W. 4 had already left for  the  police station,  it is not necessary for the deceased’s brother  to make any statement to the police at that stage.  There is no proof that he had given a contrary statement at Rajkot. [pp. 266 G-H; 267 A]      7.   The trial court was not, therefore,  justified  in rushing to the conclusion that the whole case was  concocted to  falsely  implicate  the  appellant  on  account  of  the strained  relationship  between the two groups.  It  had  on conjecture and strained reasoning arrived at the  conclusion that the prosecution case is not true. [267 A; 268 D]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal  Appeal  No 149 of 1981.      From the Judgment and Order dated  16/17.12.1980 of the Ahmedabad High Court in Crl. A. No 24 of 1979.      N.N. Keshwani and R.N. Keshwani for the Appellants.      Bhushan  Dave, Anip Sachthey and Vimal Dev Jat for  the Respondents.      The Judgment of the Court was delivered by      FATHIMA BEEVI, J.  The appellant, Pradumansinh Kalubha, along with others was tried for the murder of one Keshav Uka on 12.2.1978 and acquitted by the Trial Judge.  On appeal by the State, the High Court of Gujarat convicted the appellant for  the  offence under section 304 Part II  of  the  Indian Penal  Code and sentenced him to undergo imprisonment for  a term of five years.  The appeal by special leave is directed against such conviction and sentence.      The occurrence happened at about 6.00 P.M. in Piplawala Chowk just in front of a shop.  The prosecution case briefly stated is this :  Keshav Uka was a Harijan Painter  residing in a Harijan Colony to the north of the Chowk.  The  Durbars of  the village had strained relationship with Harijans  and there  had been tension since the last six months  prior  to the occurrence on account of the boycott by the Harijans  of the  cinema  theatre  owned  by  Anopsinh,  brother  of  the appellant.   The deceased along with two others was  on  his way  to  get  brush and Datan.  While he  had  been  turning

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towards  the  entrance,  he  unwittingly  brushed  with  the appellant,  who  had been passing along with the  other  two accused.  Infuriated by the                                                        263 collision, the appellant scolded the deceased, drew out  his knife and dealt a blow on his chest.  The other two  accused dealt  blows  on the companions of the deceased  and  caused injuries.   They  slipped  away from  the  place  while  the deceased fell down with bleeding injury.  He was immediately rushed to the hospital and thereafter to the Nursing Home of Dr. Thakkar where Gayatri Devi gave some first aid.   Keshav Uka  was  removed to the Government  Hospital,  Rajkot.   He succumbed to the injuries on the way.      The crime was registered against the accused persons on recording  the  statement of Jivabhai who was  on  the  spot along with Purshottam.  The injured persons also arrived  at the  Police Station while the statement was being  recorded. The  crime  originally  registered  for  the  offence  under section 307 was altered to section 302.  After investigation the three persons were chargesheeted.      Jivabhai  and  Purshottam  Khanabhai,  both   Harijans, claimed  that they were near the scene when  the  occurrence happened.  Besides these two witnesses, the two injured also narrated the incident.  The medical evidence disclosed  that the  deceased had an incised wound while the  two  witnesses had  suffered  minor  injuries.   The  prosecution   adduced evidence to prove the relationship between the two  factions and details of the investigation.      The  defence plea was that the incident did not  happen in  the manner in which it had been stated.   The  appellant was  not  involved.   There  was  a  collision  between  the cyclists at the south-eastern side of the chowk followed  by a  commotion  in  the  course of  which  injuries  had  been sustained  by  Keshav Uka.  The defence  evidence  was  also adduced.      The  learned  Sessions Judge rejected  the  prosecution case,  considered  the  defence version  more  probable  and acquitted  the accused persons.  Reversing the judgment  and the  order  of the Trial Court, the High  Court  re-examined entire  evidence  and  arrived at the  conclusion  that  the account  given  by the eye-witnesses is true  and  that  the reasons given by the Trial Court for rejecting the same  are not sustainable.      The  High Court was, however, of the view that the  act would amount only to an offence under section 304 part II as it  cannot be said that the appellant had any  intention  to cause  death  or  such  bodily  injury  as  he  knew  to  be sufficient  to  cause  death, but caused  injury  which  was likely to cause death.      The  learned counsel for the appellant  in  challenging the  conviction and sentence maintained that the High  Court had disregarded the principles                                                        264 for  dealing with an appeal against an order  of  acquittal. When  the trial court had given the cogent reasons  for  its findings  and  the  view  taken  by  the  trial  court   was reasonable  and  plausible, the High Court should  not  have upset  the  finding  and recorded the  conviction.   It  was pointed  out that the High Court had not found the order  as perverse  and  that  the whole approach of  High  Court  was faulty  and  the  conviction  is  clearly  unwarranted   and unsustainable.  The learned counsel has taken us through the entire  evidence of the case, the appeal being  one  against the conviction by the High Court on reversal of the order of acquittal in an attempt to make out that the appreciation of

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the  evidence by the trial court which had the advantage  of seeing the witness is not improper and the view taken by the trial  court  is reasonable.  Before dealing in  detail  the arguments advanced, it shall be useful to refer in short  to the background and the sequence of events and the nature  of the evidence that have been placed on record.      The  prosecution story as narrated by the witnesses  is this.  The Harijans and the Garasia-Durbars in the  township of Thangadh were not keeping good relationship for the  past six months.  Anopsinh, the brother of the appellant, was the manager of Vasuki Talkies on the South-East of the chowk.  A Harijan teacher was assaulted by Anopsinh and thereafter the Harijans boycotted the theatre.      On February 12, 1978, Keshav Uka had gone to  Piplawala Chowk  with  Jagjivan  Gokal and  Govind  Hamir  from  Nava- Harijanvas  at about 6.00 P.M. for purchasing  Datan.   When they  proceeded  to  purchase  a brush  as  desired  by  the deceased who was a painter, they turned back to pick up  the Datan before it is too late.  In that process, the  deceased came  in  contact with the appellant who  was  annoyed.   He scolded  the deceased as untouchable and inflicted  a  knife blow.   Bhalabhai Jivabhai and Parshottam Khanabhai were  on the spot purchasing Datans from the vendors.  The other  two persons   who  accompanied  the  appellant   assaulted   the companions of the deceased with sticks.  The  deceased  fell down  with  bleeding  injury  and  the  appellant  and   his associates left the place.  This occurrence happened just in front  of Harish Stores.  The deceased though rushed to  the hospital  died  on the same night.  The  companions  of  the deceased  as  well as the two persons who were on  the  spot were  put  up  as  eye-witnesses  to  the  occurrence.   The witnesses  supported the prosecution and gave  a  consistent account.      The  reasons  given by the learned Sessions  Judge  for discarding  the prosecution case are these:  The genesis  of the crime as put forwarded is improbable.  The appellant had mingled with Harijans boys as a sportsman                                                        265 in  the past and there was no reason for him to be  annoyed. The injury sustained by Jagjivan and Govind were simple  and superficial  and  could  be self-inflicted.   If  they  were assaulted by  accused 2, 3 and 4 with  sticks,  the  assault would  have resulted in more serious  injuries.   Therefore, the  prosecution  story regarding the assault on  these  two witness  is  concocted  and this cuts at  the  root  of  the prosecution  version regarding the incident and  renders  it totally improbable.      The  conduct  of  Bhala Jiva in  going  to  the  police station  instead  of accompanying Parshottam Khanna  to  the hospital  when  the injured was in a critical  condition  is strange.  The complaint could not have been recorded at 7.00 P.M.  The time had been deliberately advanced.  The presence of  the two injured persons at the time when  the  statement was  recorded when they admitted having gone to  the  colony and  then to the dispensary indicate the  deliberations  and delay  in  recording  the complaint.  That  casts  suspicion regarding the truth of the earliest version.  The  panchnama on the injuries of the witness could not have been drawn  up at the time shown.      Kanji  Uka, the brother of the deceased,  was  informed about the attack.  He rushed to the dispensary and on  being told about the serious condition got down a car and took the injured  to the Rajkot Hospital.  The injured was  conscious and could speak.  The eye-witnesses were also present in the dispensary.   Kanji Uka had, therefore, the  opportunity  to

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khow  the  identity of the assailants.  He had  not  however implicated  the appellant and had on the other hand  alleged that  the  crime was committed by the  appellant’s  brother, Anopsinh.   It is by an afterthought that the appellant  has been implicated.  The material contradiction in the evidence of  the  witnesses  reveal that they are  not  witnesses  of truth.    The  prosecution  story  is,   therefore,   wholly improbable.  The true genesis of the crime was not disclosed and after deliberations the concocted story was set up.   On account  of the strained relationship between  the  Harijans and the Garasia and the tension prevailing in the  immediate past,  it  was quite unsafe to accept the testimony  of  the eye-witnesses  without independent corroboration.   As  such evidence  is not forthcoming, the prosecution has  to  fail. On such reasoning, the acquittal was recorded.      The High Court after analysing the entire evidence  has taken  the  contrary  view and found  no  infirmity  in  the evidence  of  the  witnesses  and  their  testimony   wholly reliable.  The High Court found on the medical evidence that the deceased was stabbed in the left loin from the side  the wound being cavity deep resulted in a cut of the spleen  and the kidney.  The medical evidence lends corroboration to the testimony of the four                                                   266 witnesses that appellant had given a knife blow on the  left loin  of  the deceased.  Regarding the injuries of  the  two witnesses,  the High Court said "True it is that the  injury to  both  these  witnesses were simple  and  superficial  in nature  and could be self-inflicted.  In order to reach  the conclusion that they are self-inflicted injuries, there must be basis because all injuries which are caused on accessible parts of the body can be self-inflicted but they necessarily need  not be self-inflicted."  On examining the  prosecution evidence,  the High Court negatived the suggestion that  the injuries are self-inflicted.      The  accused persons were coming from the  cinema  side and proceeding towards the village.  They were persons known to the witnesses and could be easily  identified.  The  High Court  said  that merely because in  the  first  information Ex.21  details  regarding the injuries caused to  these  two prosecution  witnesses  are given, it cannot be  urged  that there  was  a  meeting  of  minds  between  the  prosecution witnesses.  No serious infirmity has been brought out in the cross-examination of these prosecution witnesses to create a doubt  regarding  the  correctness  of  their  testimony  as regards the incident in question.      The  High  Court then considered the evidence  of  PW-4 (Bhalabhai  Jivabhai) and PW-5 (Parshottam Khana).  PW-4  is the  complainant and PW-5 is the person who accompanied  the deceased  to the hospital.  They have consistently shown  to the  fact  that the injured was taken in a push cart to  the government   hospital  and  the  medical  officer  was   not available.   He was brought to the dispensary of Dr.  Thakar where   Gayatriben  the  doctor’s  wife   gave   preliminary treatment.  Thereafter, the injured was taken by the brother in  a  car  to  the  Rajkot  Hospital.   Gayatriben  (PW-16) corroborates the evidence of Parshottam Khana.  The fact the Kanji  Uka could not disclose the identity of the  assailant at  the earliest opportunity is of no consequence.   He  was only anxious to rush the injured to the hospital.  If he had not probed into the cause of the assault or the identity  of the  assailant  in  that  situation  or  carrying  a   wrong impression  about  the involvement of some  persons  on  the basis of the information conveyed to him by persons who  had no  direct knowledge, no inference can be drawn  that  there

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was  an attempt to foist the case.  It is unlikely that  the near  relation of the deceased would allow the real  culprit to  escape and implicate some innocent person if he had  the opportunity  to  know the real state of affairs.   If  in  a case, where he could not get reliable information, it is not likely that he would implicate some innocent person  without leaving the matter to be investigated.  The vague suggestion that Kanji Uka had in the first instance implicated Anopsinh and changed his stand later is not established on  material. Kanji Uka said that he learnt about the assault                                                   267 while he was at work.  Since Bhala Jiva had already left for the  police  station, it is not necessary for Kanji  Uka  to make any statement to the police at that stage.  There is no proof that he had given a contrary statement at Rajkot.  The trial court was not, therefore, justified in rushing to  the conclusion  that  the whole case was  concocted  to  falsely implicate   the  appellant  on  account  of   the   strained relationship between the two groups.      It  has been argued before us that till the time  Kanji Uka disclosed the name of Anopsinh as accused before  Rajkot police, the witnesses did not know as to who had stabbed the deceased.   The witnesses met Kanji Uka at  the  dispensary. Had  they known the name of the appellant  that  information would have been collected by Kanji Uka.  As already  pointed out Kanji Uka was more anxious to remove the injured to  the hospital  and  if  he did not make  any  attempt  to  gather information  regarding  the incident and had  only  whatever information  he got from other sources at the Rajkot  Police Station,  it  would not follow that the  witnesses  are  not truthful.      It  was then maintained that the  Sub-Inspector  Thakur could not get any information regarding the assailant’s name though  he  met Parshottam and the injured  persons  at  the dispensary.   The  Inspector  has clearly  deposed  that  on getting the information about the incident, he rushed to the spot  to  verify whether such an incident has  happened  and having  seen the injured, he immediately proceeded  to  make necessary  arrangements to maintain law and order.   He  did not  register  a case before proceeding to the  hospital  or start  the investigation.  It was not, therefore,  necessary to  interrogate the persons present there.  He went  to  the police  station  where the complaint  was  registered,  made arrangements  for  standing  the injured  to  the  hospital, visited the scene and proceeded with the investigation.   At that  stage,  he had questioned the witnesses.    There  is, therefore,  nothing  suspicious in the steps  taken  by  the investigating officer.  There cannot also be any suppression by  the police from the fact that the deceased according  to PW-17  was conscious and had answered her queries.   She  is not  aware as to what answer the deceased has given  to  the police officer.      According to the learned counsel, the absence of  blood on the spot near the Harish Stores, the absence of blood  in the  weapon  seized throws doubt on the credibility  of  the investigation.    The   failure  to   examine   non-harijans witnesses  is also commented upon amounting the  suppression of material evidence.  The nature of the injuries  sustained by  the  deceased  and  the  medical  evidence  justify  the inference that there would not have been the possibility  of any  blood stain remaining on the spot for the  injured  was immediately removed from there and the place is one trampled                                                   268 upon by the public. It is quite possible that a large crowed gathered  at the scene immediately after the occurrence  and

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if  no blood could be detected by the inspector, it  is  not possible to infere that the incidence did not happen at  the spot.   The  presence of blood in the weapon is also  of  no consequence and no incriminating statement has been made  by the accused on the production of the same.  In a case  where there is direct evidence, even the seizure of the weapon  is not very material.      It  has  been contended that the acquittal may  not  be disturbed  unless  the  findings  of  the  trial  court  are perverse  and without cogent reasons for differing from  the trial  court the reversal is not justified according to  the counsel.  It is also a case where two views are possible and that  which is favourable to the accused has to prevail,  it is argued.  Though the proposition of law and the principles to  be followed are not disputable, we find no force in  the argument.   We  find  that  the  High  Court  has  carefully analysed  the entire evidence and has demonstrated  how  the trial court has gone wrong and the conclusions drawn by  the trial court are not sustainable on the evidence.  It is  not a  case  where  the High Court has  failed  to  observe  the caution  or misdirected itself in drawing  the  conclusions. We agree that the trial court had on conjecture and strained reasoning  arrived  at the conclusion that  the  prosecution case is not true.  The evidence placed on record as found by the  High Court is truthful and proved the fact  beyond  the shadow of doubt and the involvement of the appellant in  the crime  is  clearly  established.   We  find  no  reason   to interfere with the judgment of the High Court.      For  the foregoing reasons, the appeal must fail.   The appeal is accordingly dismissed. N.V.K.                                     Appeal dismissed.                                                   269