Kishore Vs. State of Gujarat
EmailAppeal: Criminal Appeal No. 502 of 1999
Petitioner: Kishore
Respondent: State of Gujarat
Apeal: Criminal Appeal No. 502 of 1999
Judges: K.T. THOMAS & S.N. PHUKAN, JJ.
Date of Judgment: Nov 21, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302 read with section 34 – Murder – Four persons chargesheeted for murder – Trial court convicting one of them for the offence of murder and acquitting the other three – High Court while confirming the conviction of A1, reversing the order of acquittal of A2 and convicting him also under section 302 read with section 34, IPC. On appeal, held, no interference called for, so far as the conviction of A1 is concerned. But as regards A2, there being no evidence of any role played by him in the murder and the seeming discrepancy between the dying declaration and the evidence of PW8, the trial court was justified in entertaining a reasonable doubt about the involvement of A2 and hence, the High Court erred in interfering with the finding of the trial court. Conviction of A2 accordingly set aside.
Held:
PW-8 (Bhanuben) is the only eyewitness who supported the prosecution version. She said that A1-Harshad and A2-Kishore attacked her uncle, the deceased, with a knife and an axe respec-tively and inflicted the injuries on him. The trial court was disposed to accept her testimony in regard to A1-Harshad without any difficulty whatsoever, as the same found full support from the dying declaration spoken to PW-15 and exhibit 14 recorded by PW1-executive magistrate. The division bench of the High Court also found that the aforesaid approach made by the trial court cannot be faulted. On a reading of the relevant materials, we too felt that there is no scope for interference with the conviction and sentence passed on A1-Harshad. Accordingly, we dismiss the appeal filed by the A1-Harshad. (Para 4)
When the deceased himself could not identify A2-Kishore, it is a matter of difficulty for a criminal court to accept the testimony of PW8 without an iota of confirmation from any other material regarding the identity of A2-Kishore as one of the assailants. She could have committed a mistake, if not she had introduced the name of A2-Kishore as a co-assailant after subse-quent deliberations in the family. (Para 9)
There is no other material to afford con-fidence in the judicial mind that A2-Kishore was definitely present along with A1-Harshad for attacking the deceased. Not even one witness had made a mention of any role played by A2-Kishore at the time of occurrence. The axe alleged to have been used for attacking the deceased was not recovered by the investi-gating officer. In other words, it was not possible for the prosecution to adduce evidence under section 27 of the Evidence Act for the purpose of lending assurance to the court on that aspect. In the light of the seeming discrepancy between the versions given by the deceased in the dying declaration and the evidence of PW8 regarding the co-assailant, the High Court should have refrained from disturbing the order of acquittal passed by the trial court in respect of A2-Kishore. (Para 10)
JUDGEMENT:
ORDER
1. In the matter of murder of Anil Gora, four persons were chargesheeted by the police out of whom the trial court convicted first accused – Harshad of the offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. All the remaining three were acquitted by the trial court. The convicted person filed appeal in challenge of his conviction and sentence and the state filed an appeal against acquittal of second accused – Kishore. A division bench of the High Court confirmed the conviction and sentence passed on A1-Harshad and by the same judgment reversed the order of acquittal of A2-Kishore and convicted him under section 302 with aid of section 34 of the Indian Penal Code and sentenced him to imprisonment for life. First accused – Harshad filed one appeal by special leave in this Court and second accused – Kishore filed an appeal as of right under section 379 of the Criminal Procedure Code. We have heard arguments for both the appeals together.
2. Prosecution case in short is the following:
A1-Harshad, A2-Kishore and A3-Tulsi are brothers and A4-Kalu is a cousin of the former. There was love-lost between A1-Harshad and deceased Anil Gora on account of some allegation that the wife of the deceased, Geeta (PW5) had some illicit connection with A1-Harshad. The incident in this case has happened at about 7.00 p.m. on 5.10.1989 on a public road at Rajkot town. It happened in the following way according to the prosecution:
While deceased was driving a three wheeler autorickshaw, he was followed by A1-Harshad and A2-Kishore in another autorick-shaw driven by A1-Harshad. As they neared the front going autorickshaw, the assailants whipped out a knife and an axe and in-flicted injuries on the deceased. Later, A3-Tulsi and A4-Kalu joined them and they too inflicted assaults on the deceased. All the assailants thereafter ran away from the scene.
3. Deceased was taken to the civil hospital, Rajkot. PW-15, police constable recorded a statement from the deceased at about 8.00 p.m. on the same night. This became the basis of the FIR. Subsequently, PW1- executive magistrate recorded exhibit 14 – dying declaration at 9.50 p.m. Deceased had succumbed to his injuries on the same night around 2.00 a.m.
4. PW-8 (Bhanuben) is the only eyewitness who supported the prosecution version. She said that A1-Harshad and A2-Kishore attacked her uncle, the deceased, with a knife and an axe respec-tively and inflicted the injuries on him. The trial court was disposed to accept her testimony in regard to A1-Harshad without any difficulty whatsoever, as the same found full support from the dying declaration spoken to PW-15 and exhibit 14 recorded by PW1-executive magistrate. The division bench of the High Court also found that the aforesaid approach made by the trial court cannot be faulted. On a reading of the relevant materials, we too felt that there is no scope for interference with the conviction and sentence passed on A1-Harshad. Accordingly, we dismiss the appeal filed by the A1-Harshad.
5. While considering the appeal filed by A2-Kishore, we have to refer to certain materials in the evidence. When PW15 asked the deceased regarding the identity of the assailants, the name of A1-Harshad was mentioned without any manner of doubt. The deceased told PW15 that A1-Harshad and one Tulsi and three other unknown persons have attacked him (A3 is said to be the Tulsi). This means, as deceased was able to speak to PW15, he could remember only two names, one was that of A1-Harshad and the other one was that of A3-Tulsi.
6. When the executive magistrate asked the deceased at 9.50 p.m. deceased was able to say the name of A1-Harshad unmistakably and added that three other persons were also involved. Deceased then did not mention the name of any of the other three persons at the first instance, but when the executive magistrate put a question to him whether he could mention the name of any one other than A1-Harshad, the answer given by the deceased is the following: “one person known as Uyo, others are not known”.
7. Prosecution has made an endeavour to show that the name Uyo is the alias name of A2-Kishore. It appears that the division bench of the High Court accepted it as though there is no dispute in that regard. But the fact remains that there is not a mention anywhere throughout the length and breadth of the prosecution evidence that A2-Kishore has any such alias name as Uyo.
8. On the contrary, it is possible to think that name Uyo could be the alias name of A3-Tulsi. Our reasons for such a surmise is the following:
The deceased was able to mention only two names when he was asked by PW15, police constable at the first instance and those two names were A1-Harshad and Tulsi. Subsequently, when he told the executive magistrate, particularly as an answer to a query whether he could mention the name of any person other than A1-Harshad, he could mention only ‘Uyo’ and none else. It is a possi-ble inference that the nick name of Uyo could have been believed by the deceased as that of Tulsi.
9. Mr. S.K. Dholakia, learned senior counsel contended that when PW8, the young lady of 22 who is niece of the deceased, said in un-mistaken terms that A2-Kishore was also an assailant and that he used axe for inflicting cut injuries on the deceased, there is no perceptible reason for the sessions court to reject her testi-mony and that was why the High Court interfered with his acquittal in the appeal. It is true that the cross-examination of PW8 alone may not be sufficient to discard her testimony out right. But when the deceased himself could not identify A2-Kishore, it is a matter of difficulty for a criminal court to accept the testimony of PW8 without an iota of confirmation from any other material regarding the identity of A2-Kishore as one of the assailants. She could have committed a mistake, if not she had introduced the name of A2-Kishore as a co-assailant after subse-quent deliberations in the family.
10. We say so because there is no other material to afford con-fidence in the judicial mind that A2-Kishore was definitely present along with A1-Harshad for attacking the deceased. Not even one witness had made a mention of any role played by A2-Kishore at the time of occurrence. The axe alleged to have been used for attacking the deceased was not recovered by the investi-gating officer. In other words, it was not possible for the prosecution to adduce evidence under section 27 of the Evidence Act for the purpose of lending assurance to the court on that aspect. In the light of the seeming discrepancy between the versions given by the deceased in the dying declaration and the evidence of PW8 regarding the co-assailant, the High Court should have refrained from disturbing the order of acquittal passed by the trial court in respect of A2-Kishore.
11. An endeavour was made by Shri Dholakia, learned senior coun-sel to submit that the medical evidence is not inconsistent with the prosecution case that axe had been used for attacking the deceased. All the serious incised injuries have been described by PW2-Dr. Yogeshwar Kumar as having a uniform pattern. It could have been caused by one weapon. The public prosecutor in the trial court asked the doctor whether the contusion sustained by the deceased could have been caused with the blunt portion of the axe and answer was given in the affirmative. But that is too fragile a premise to conclude that a weapon like an axe would necessarily have been employed in launching attack on the de-ceased as deposed to by PW8.
12. On an analysis of the evidence and after bestowing our seri-ous consideration on the conspectus of the prosecution case, we entertain a reasonable doubt as to the involvement of A2-Kishore in the episode as entertained by the trial court. In such a situation, we cannot support the judgment of the division bench of the High Court which reversed the order of acquittal passed by the trial court in favour of the A2-Kishore.
13. We, therefore, allow the appeal filed by A2-Kishore and set aside the conviction and sentence passed on him by the High Court. We restore the order of acquittal passed by the trial court in his favour. We are told that A2-Kishore is on bail. His bail bond will stand discharged.
14. These appeals are disposed of accordingly.
1. In the matter of murder of Anil Gora, four persons were chargesheeted by the police out of whom the trial court convicted first accused – Harshad of the offence under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. All the remaining three were acquitted by the trial court. The convicted person filed appeal in challenge of his conviction and sentence and the state filed an appeal against acquittal of second accused – Kishore. A division bench of the High Court confirmed the conviction and sentence passed on A1-Harshad and by the same judgment reversed the order of acquittal of A2-Kishore and convicted him under section 302 with aid of section 34 of the Indian Penal Code and sentenced him to imprisonment for life. First accused – Harshad filed one appeal by special leave in this Court and second accused – Kishore filed an appeal as of right under section 379 of the Criminal Procedure Code. We have heard arguments for both the appeals together.
2. Prosecution case in short is the following:
A1-Harshad, A2-Kishore and A3-Tulsi are brothers and A4-Kalu is a cousin of the former. There was love-lost between A1-Harshad and deceased Anil Gora on account of some allegation that the wife of the deceased, Geeta (PW5) had some illicit connection with A1-Harshad. The incident in this case has happened at about 7.00 p.m. on 5.10.1989 on a public road at Rajkot town. It happened in the following way according to the prosecution:
While deceased was driving a three wheeler autorickshaw, he was followed by A1-Harshad and A2-Kishore in another autorick-shaw driven by A1-Harshad. As they neared the front going autorickshaw, the assailants whipped out a knife and an axe and in-flicted injuries on the deceased. Later, A3-Tulsi and A4-Kalu joined them and they too inflicted assaults on the deceased. All the assailants thereafter ran away from the scene.
3. Deceased was taken to the civil hospital, Rajkot. PW-15, police constable recorded a statement from the deceased at about 8.00 p.m. on the same night. This became the basis of the FIR. Subsequently, PW1- executive magistrate recorded exhibit 14 – dying declaration at 9.50 p.m. Deceased had succumbed to his injuries on the same night around 2.00 a.m.
4. PW-8 (Bhanuben) is the only eyewitness who supported the prosecution version. She said that A1-Harshad and A2-Kishore attacked her uncle, the deceased, with a knife and an axe respec-tively and inflicted the injuries on him. The trial court was disposed to accept her testimony in regard to A1-Harshad without any difficulty whatsoever, as the same found full support from the dying declaration spoken to PW-15 and exhibit 14 recorded by PW1-executive magistrate. The division bench of the High Court also found that the aforesaid approach made by the trial court cannot be faulted. On a reading of the relevant materials, we too felt that there is no scope for interference with the conviction and sentence passed on A1-Harshad. Accordingly, we dismiss the appeal filed by the A1-Harshad.
5. While considering the appeal filed by A2-Kishore, we have to refer to certain materials in the evidence. When PW15 asked the deceased regarding the identity of the assailants, the name of A1-Harshad was mentioned without any manner of doubt. The deceased told PW15 that A1-Harshad and one Tulsi and three other unknown persons have attacked him (A3 is said to be the Tulsi). This means, as deceased was able to speak to PW15, he could remember only two names, one was that of A1-Harshad and the other one was that of A3-Tulsi.
6. When the executive magistrate asked the deceased at 9.50 p.m. deceased was able to say the name of A1-Harshad unmistakably and added that three other persons were also involved. Deceased then did not mention the name of any of the other three persons at the first instance, but when the executive magistrate put a question to him whether he could mention the name of any one other than A1-Harshad, the answer given by the deceased is the following: “one person known as Uyo, others are not known”.
7. Prosecution has made an endeavour to show that the name Uyo is the alias name of A2-Kishore. It appears that the division bench of the High Court accepted it as though there is no dispute in that regard. But the fact remains that there is not a mention anywhere throughout the length and breadth of the prosecution evidence that A2-Kishore has any such alias name as Uyo.
8. On the contrary, it is possible to think that name Uyo could be the alias name of A3-Tulsi. Our reasons for such a surmise is the following:
The deceased was able to mention only two names when he was asked by PW15, police constable at the first instance and those two names were A1-Harshad and Tulsi. Subsequently, when he told the executive magistrate, particularly as an answer to a query whether he could mention the name of any person other than A1-Harshad, he could mention only ‘Uyo’ and none else. It is a possi-ble inference that the nick name of Uyo could have been believed by the deceased as that of Tulsi.
9. Mr. S.K. Dholakia, learned senior counsel contended that when PW8, the young lady of 22 who is niece of the deceased, said in un-mistaken terms that A2-Kishore was also an assailant and that he used axe for inflicting cut injuries on the deceased, there is no perceptible reason for the sessions court to reject her testi-mony and that was why the High Court interfered with his acquittal in the appeal. It is true that the cross-examination of PW8 alone may not be sufficient to discard her testimony out right. But when the deceased himself could not identify A2-Kishore, it is a matter of difficulty for a criminal court to accept the testimony of PW8 without an iota of confirmation from any other material regarding the identity of A2-Kishore as one of the assailants. She could have committed a mistake, if not she had introduced the name of A2-Kishore as a co-assailant after subse-quent deliberations in the family.
10. We say so because there is no other material to afford con-fidence in the judicial mind that A2-Kishore was definitely present along with A1-Harshad for attacking the deceased. Not even one witness had made a mention of any role played by A2-Kishore at the time of occurrence. The axe alleged to have been used for attacking the deceased was not recovered by the investi-gating officer. In other words, it was not possible for the prosecution to adduce evidence under section 27 of the Evidence Act for the purpose of lending assurance to the court on that aspect. In the light of the seeming discrepancy between the versions given by the deceased in the dying declaration and the evidence of PW8 regarding the co-assailant, the High Court should have refrained from disturbing the order of acquittal passed by the trial court in respect of A2-Kishore.
11. An endeavour was made by Shri Dholakia, learned senior coun-sel to submit that the medical evidence is not inconsistent with the prosecution case that axe had been used for attacking the deceased. All the serious incised injuries have been described by PW2-Dr. Yogeshwar Kumar as having a uniform pattern. It could have been caused by one weapon. The public prosecutor in the trial court asked the doctor whether the contusion sustained by the deceased could have been caused with the blunt portion of the axe and answer was given in the affirmative. But that is too fragile a premise to conclude that a weapon like an axe would necessarily have been employed in launching attack on the de-ceased as deposed to by PW8.
12. On an analysis of the evidence and after bestowing our seri-ous consideration on the conspectus of the prosecution case, we entertain a reasonable doubt as to the involvement of A2-Kishore in the episode as entertained by the trial court. In such a situation, we cannot support the judgment of the division bench of the High Court which reversed the order of acquittal passed by the trial court in favour of the A2-Kishore.
13. We, therefore, allow the appeal filed by A2-Kishore and set aside the conviction and sentence passed on him by the High Court. We restore the order of acquittal passed by the trial court in his favour. We are told that A2-Kishore is on bail. His bail bond will stand discharged.
14. These appeals are disposed of accordingly.
